26 June 2026
8 min read
#Workplace Relations & Safety, #New South Wales Government
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Over recent years, the increase in social media activity across different platforms has facilitated opportunities for employees to comment on a broad range of topics both relating to their employment and on social issues. This has complicated an employer’s ability to maintain a safe and harmonious workplace, which has traditionally been achieved through express contractual terms, lawful and reasonable directions and/or policies and procedures.
The question is to what extent, and on what basis, an employer can regulate social media commentary made outside of work and on third party platforms by an employee who does not identify their employment. That is, can an employer regulate conduct that has no apparent bearing on work?
Some cases are clear-cut, for instance where an employee uses social media to threaten or denigrate other employees. Others are more difficult, such as when an employee uses social media platforms to expose news or make statements that are contrary to the interests and values of the employer.
For NSW public sector employees, the answer will be based on the employment contract, the legislation regulating the employment, together with workforce determinations, codes of conduct and industrial instruments. All of this must then be balanced against the protections afforded to all employees against victimisation and bullying, and the requirement to provide a safe workplace that is free from psychosocial hazards.
There is no personal right to freedom of speech in Australia.
Instead, there is a limitation on the legislative and executive power of the Commonwealth, states and territories by the implied freedom of political communication, which is not a personal right, but a restriction on government power.
Specifically, the NSW Parliament must not pass laws which infringe upon the implied freedom of political communication, unless the burden on the freedom of communication is to fulfil a constitutionally legitimate purpose (that is, a purpose which is compatible with the preservation of the integrity of the system of representative and responsible government) in a manner reasonably appropriate to achieve that purpose. Our system of representative and responsible government involves an acceptance of the potential for disharmony in public discourse and the protection of dissent. Suppressing political communication in the interest of social cohesion is not a constitutionally legitimate purpose.
In other words, individuals don’t have the freedom to say whatever they like. Rather, they have the limited freedom of political communication which the government cannot suppress except in limited circumstances. The same limitation on power applies to the state as employer. Any discretionary powers to discipline or terminate an employee based on statutory powers must be exercised having regard to this limitation.
Section 210(1)(h) of the Industrial Relations Act 1996 (NSW) protects NSW public sector employees and prospective employees from victimisation for engaging in, or proposing to engage in, a public or political activity, unless it interferes with the performance of their duties. Redress is wide-ranging and includes reinstatement or re-employment of the employee, and the payment of remuneration or other financial benefits forgone because of the termination. Importantly, this affords redress for termination where an employee may otherwise be precluded from unfair dismissal or other redress because of exclusions contained in the legislation that regulates their employment.
A ‘public activity’ is not confined to activities undertaken for the public benefit. Rather, they are specific deeds or actions that relate to or affect people or a community generally, and do not need to be directed to the group or community as a whole. The activity must, however, be directed to interests beyond the private interests of the individual employee or prospective employee and would include matters such as lobbying, law reform activities or issues of general public interest.
A ‘political activity’ includes actions directed to influencing the form, organisation or administration of government, including policy and legislation. It is the activity, not the belief, that must have the political character and includes activities associated with a political party. For example, media comments about the management of an industrial organisation or the legitimacy of a Royal Commission into trade union corruption. Efforts to secure public support for or to oppose certain laws also constitute political activities as they are directed to influencing government policy. Similarly, trade union activities with a public or political character or participation in a media campaign as a union delegate to obtain support for legislative reform may also fall within this definition.
However, the protection does not apply where the public or political activity interferes with the performance of the employee’s duties. This will be a question of fact resolved on a case-by-case basis.
In Wright v Industrial Relations Secretary o/d Department of Primary Industries and Regional Development (No 2) [2025] NSWIRComm 1087 , the Commission considered an application under s213 of the Industrial Relations Act for relief against victimisation in contravention of protections in s210 (in the form it then was). Broadly, the Applicant, a Supervising Fisheries Officer, was a member and delegate of the Public Service Association, which had engaged in a long running industrial dispute with the Respondent, his employer.
The Applicant had been selected and agreed to undertake the role of contact person for media enquiries relating to the industrial action. He had made public comments about his employer in the course of this role.
The Applicant’s employment was regulated by the Government Sector Employment Act 2013 (NSW) and subject to the Department’s Code of Conduct and other policies. The Respondent asserted that, by making unauthorised media comments and failing to comply with restraints on making those comments, the employee’s activities had interfered with the performance of his public functions and obligations, thereby removing his protection from victimisation.
Significantly, the Commission determined that the protection in s210(1)(h) could not be circumvented by the failure to comply with a lawful and reasonable direction in a policy, code of conduct or a contractual restraint on conduct. It took the view that the interference exception applied where the activity hampers or causes a conflict or opposition with the execution, performance or accomplishment of the action required by the employee’s position, occupation or station.
In this case, the focus was on whether the employee’s activities affected his ability to perform his job, not whether he had breached a policy or contractual obligation. The Commission then went on to question whether a direction that stripped an employee’s capacity to engage in public or political activity was a lawful and reasonable direction at all.
In other words, NSW public sector employees enjoy protection from victimisation (including termination of employment) for engaging in or proposing to engage in public or political activity.
In these circumstances, it is difficult for the state as employer to restrict or limit the protected conduct irrespective of any legislation, code of conduct or directions which operate to suppress or limit the freedoms. This restriction does not apply where the conduct interferes with the performance of the employee’s duties, but this is likely to be given a narrow scope of operation as the protections have been regarded by the Commission to have a remedial or beneficial purpose.
An issue yet to be resolved here is whether political activity on social media that creates an unsafe workplace because of the potential to cause disharmony or psychosocial hazards for other employees, falls within the scope of interference with the performance of an employee’s duties. If so, this may remove the protection and enable an employer to discipline and terminate the employment.
NSW government employees are protected from bullying, discrimination and psychosocial hazards in the workplace, including those arising from workplace conflict, bullying and harassment.
It is possible to envisage a scenario where, for example, the expression on social media of an opinion advocating for a change in immigration policy may create tension in the workplace, particularly with employees who hold opposing views or who are the subject of the political commentary.
In these circumstances, there is a clear need to ensure that the expression of a political opinion on social media by one group of employees does not create workplace conflict or result in bullying or harassment of others. The question for the courts will be how an employer should respond to such issues to maintain a safe work environment and comply with section 19 of the Work Health & Safety Act 2011 (NSW) (WHS Act).
The answer may well lie in how the specific conduct on social media interferes with the employee’s performance of their duties. If it includes ensuring compliance with work health and safety obligations to prevent psychosocial hazards in the workplace, then social media comments which bring conflict and disharmony into the workplace will arguably interfere with the performance of an employee’s duties.
There is some scope for regulating public and political activity on social media through appropriately targeted and crafted policies and procedures that balance the competing rights and obligations of employees and the employer.
Public sector employers can take a proactive approach by:
Ultimately, careful judgment is required when considering social media comments by employees. Decisions must be nuanced and balance discreet and competing obligations under different legislation.
If you have any questions about your employee’s conduct on social media or need assistance with reviewing workplace or social media policies, please contact us here.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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