With the referendum on the Indigenous Voice to Parliament on the horizon, HR could soon find their workplaces abuzz with political opinions. An employment law expert outlines some things to keep in mind.
At one point in time, we would have said there was no place for politics in the workplace. But now, expectations are shifting.
The most recent Edelman Trust Barometer shows that 75 per cent of people want their CEOs to take a stand to address discrimination, and 69 per cent of people want an organisation to have a strong social impact before they will consider working for them.
Not only can taking a public stance on social or environmental factors favourably impact attraction metrics, it can also be a boon to employee engagement. In 2019, Gartner’s global survey of over 30,000 people found that employees’ discretionary efforts were boosted by almost 20 per cent when companies spoke out about a relevant social issue.
However, taking a stand on issues publicly also poses plenty of risk for employers – especially if your employees hold a different opinion to you. With the Aboriginal and Torres Strait Islander Voice Referendum upcoming, it’s worth thinking about how and when to take a public stand on politically fraught matters.
A right to publicly disagree
Many organisations have adopted a corporate position on the Voice Referendum, including the National Rugby League, NAB, Commonwealth Bank, ANZ, BHP, Rio Tinto, Wesfarmers, Woolworths and Coles.
On the other hand, there have also been corporate supporters of the ‘No campaign’, some of whom have donated to the Advance group, which will be one of the organisations campaigning against the Voice.
This begs the question: should an employer publicly express their view on a social or political matter that could be divisive amongst their employees? And what happens if employees choose to publicly oppose your take on the issue?
Employees’ right to express their views
If an employee is expressing personal or private views that are contrary to those held by their employer, HR and leadership should communicate that is needs to be done in a way that makes it clear the view being expressed is a private or personal view, and not connected with their employment.
Having a robust policy around social media is a good place to start. For example, your policy might stipulate that when using platforms such as Twitter or Facebook, an employee should not refer to their employment or employer on their account and to include a disclaimer to the effect that the views expressed on the account are personal.
Also, consistency is essential – such a disclaimer is of little or no value if the employee nevertheless posts or tweets about employment-related matters on that account.
Employers should also be careful not to engage in knee-jerk reactions to posts made by employees that adopt a different stance to that of the employer (i.e. disciplining or terminating them).
A careful consideration of the circumstances is required, including the terms of the post and the context in which it is made, and employees should be afforded procedural fairness; any disciplinary action taken should be proportionate to the alleged conduct.
For example, if their post included offensive or racist language, it could be grounds for a warning or dismissal, depending on the contents. However, simply stating a different opinion to the employer is usually going to be within an employee’s rights.
In some states, there is a specific prohibition on discriminating against employees on the basis of ‘political opinion’ (or political belief or activity) which employers need to consider before taking action against employees who express a particular view on the Voice. In those states, the prohibition in section 351 of the Fair Work Act against discrimination on the ground of political opinion could also be enlivened.
With that said, the conclusion in these states will usually be the same as states without such discrimination laws – an appropriately expressed personal view will not provide a basis for disciplinary action by the employer, but discrimination laws will usually not protect an employee who has gone beyond the mere expression of a view on the Voice and engaged in public disparagement of the employer for adopting a position.
Further risks for employers
Those are some of the things to consider if you’ve got employers who want to express a difference of opinion, but what about some of the risks associated with trying to get employees to align with your company’s opinions?
For example, some employers are conducting information sessions and other activities in relation to the Voice; some such sessions are neutral, but others mirror and promote the publicly stated position of the employer.
This raises the question of whether an employee can refuse to participate in such activities on the basis that they hold a different view to that which might be promoted during those activities.
The answer will usually come down to whether the direction from the employer to participate is lawful and reasonable. The direction from the employer will almost invariably be lawful. The more relevant and complex question is whether the direction is reasonable.
“Employers should be careful not to engage in knee-jerk reactions to posts made by employees that adopt a different stance to that of the employer.”
When it comes to the Voice, the reasonableness of an employer’s direction will depend on what the employer is directing the employee to do. For example, a one-off information session might be deemed reasonable, but forcing an employee to change their email signature or post publicly in support of the company’s stance on LinkedIn might not be considered reasonable. To be safe, it’s best to make such activities optional.
Crucially, there might not even be a requirement for employees to choose between their beliefs and their work, in which case the ‘good reason’ requirement will not be enlivened. For example, a direction that an employee attend an information session on the Voice, even if that information session might be conducted in a manner that advocates for one side over another, does not require an employee to choose their work over their beliefs – the employee can listen to the material presented and act in a manner consistent with their beliefs.
Attending the sessions and listening is, by and large, a passive exercise. Of course, in extreme cases, where the information is presented in a way that causes significant upset to employees with an opposing view, a direction to attend (or remain) may not be reasonable.
However, if an employer is going further and directing employees to give a commitment or undertaking of some kind that they will vote a particular way in the Voice referendum, or to actively advocate for that view in and/or outside the workplace, that could be forcing employees with a contrary view to make a choice between their work and beliefs.
In most cases, employers will not have a ‘good reason’ to put employees in such a position and such a direction would likely be unreasonable.
Employers also need to ensure that employees with a properly expressed contrary view are not subject to bullying conduct such as exclusion or gratuitous negative commentary from other employees, particularly those in management.
The issue beyond the Voice
With companies giving increasing emphasis to environment, social and governance considerations and taking a stand on various social and political issues, there is increasing potential for the personal views of employees to conflict with the avowed position of the employer.
While employees owe employers a range of duties (some expressly stated in an employment contract, others implied by law), those duties generally do not extend to mirroring the philosophical or ideological position of the employer on all matters.
Employers should be aware of the possibility of discussions in the workplace about social issues, particularly those on which the employer has taken a public stance, becoming heated or argumentative.
While an absolute ban or prohibition on political discussion is likely not ultimately enforceable (especially when the employer itself has taken a public stance), the employer can insist any discussions between employees be conducted in a respectful, collegiate and professional way.
Just because an issue is contentious and arguments about politics can inflame passion, that does not give employees the right to deviate from the usual standards of appropriate workplace conduct.
There will likely be many future cases in the FWC (and other courts and tribunals) examining and determining where the balance lies between the employer’s right to advocate for a position on social issues and the scope of the right of employees not to be compelled by their employers to act contrary to their own personal beliefs, so watch this space.
The information in this article is general in nature and does not constitute specific advice.
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