18 May 2025
5 min read
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The intersection of workplace rights, freedom of expression and independent contracting is once again under judicial scrutiny in the recent case of Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458. This proceeding raises important questions about whether Australia's workplace laws extend protections to independent contractors who engage in political expression under the Fair Work Act 2009 (Cth) (FW Act). As the case proceeds to trial, it has the potential to reshape how political speech is treated in professional environments, particularly for independent contractors.
In this case, the applicant was an international concert pianist who was scheduled to perform 1 recital and 1 concert with the Melbourne Symphony Orchestra (MSO). For the purposes of this hearing, the Court acknowledged that the applicant was not a common law employee but rather an independent contractor.
Prior to performing the recital, the applicant made a statement to the audience that the musical piece he was about to perform was dedicated to Palestinian journalists in Gaza who he claimed had been targeted by Israeli forces. The next day, the MSO cancelled the applicant’s upcoming performance and issued a public statement. The MSO paid the applicant for both the completed performance and the cancelled performance. The applicant is seeking a public apology and additional damages for alleged harm to his reputation, after the MSO emailed ticket holders following his recital and apologised for the ‘offence and distress’ his remarks allegedly caused.
The applicant commenced proceedings in the Federal Court alleging that the MSO had treated him unlawfully and had taken adverse action against him within the meaning of sections under the FW Act. The applicant contended that the Equal Opportunity Act 2010 (Vic) (EO Act) is the source of an alleged workplace right in that he must not be discriminated for holding or expressing a political belief or engaging in political activity.
The MSO applied to the Court to have the case dismissed, relying on the Federal Court decision in Tattsbet Ltd v Morrow [2015] FCAFC 62, which held that independent contractors cannot be considered employees and therefore are not covered by the FW Act. The MSO submitted that the applicant’s claim was bound to fail because the relevant sections of the EO Act, which prohibits discrimination against employees and contractors, are not part of the relevant workplace laws. The FW Act defines ‘workplace law’ as the FW Act itself, or any other law of the Commonwealth, a state or a territory that regulates the relationships between employers and employees. In light of this, the MSO submitted that the applicant’s claim had no reasonable prospects of success and should be dismissed.
While Justice Mortimer made clear that there is no doubt that in certain circumstances the EO Act protects people from discrimination on the basis that they hold or express a political belief or engage in a political activity, the key issue for the Court to consider was whether the FW Act includes these protections under federal law. MSO argued that, by reason of the definition of ‘workplace law’, the protections under the FW Act only apply in relation to the EO Act to the extent that a person is a common law employee.
Justice Mortimer highlighted that section 340 of the FW Act, which states that a person must not take adverse action against another person, does not operate principally on the terms ‘employer’ and ‘employee’. It is a wider prohibition than that, as the table in section 342 of the FW Act at item 3 provides that adverse action can be taken by a person against an independent contractor. This is different from section 351, which deals specifically with discrimination and is directly confined to ‘employees’. Justice Mortimer accepted that the protection given by the EO Act extends to people who are discriminated against on the basis that they hold or express a political belief or engage in a political activity. This protection includes conduct that occurs in, or is sufficiently connected to, the workplace and extends at the state level to common law employees, independent contractors and contract workers.
For the MSO’s dismissal application to be successful, Justice Mortimer stated that it must convince the Court that:
Justice Mortimer did not accept that the MSO had made good on the second and third points to an extent that the Court could conclude that the applicant’s claim has no reasonable prospects of success.
It is important to note that while Justice Mortimer adopted a broader interpretation of section 341 for the purposes of this dismissal application, she emphasised that she was not determining the correct construction and that this is a matter for trial. One of the key questions at trial will be whether the orchestral environment, in terms of both rehearsal and performance, constitutes a workplace.
This case will be significant to observe, as a successful claim by the applicant may set a precedent that allows independent contractors to express political views freely in professional settings and may clarify the extent of legal protections available to freelance performers under Australian workplace laws. It also serves as an important reminder to employers about the protections in the EO Act for those who express political views.
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