Free speech at work: watch what you say?

By Dario Mujkic | 16 Apr 15

Last month, a worker at a warehouse operated by one of the supermarket giants was suspended from work and threatened with dismissal after speaking to a journalist about safety at work.

Even though her employer did not know what had been said to the journalist, it was alleged that the worker had breached the company’s code of conduct, which seeks to prohibit the making of statements or provision of information of any kind to the media.

While this worker was spared the sack or any kind of disciplinary action after intervention from her union, her experience is becoming more common. In late 2013, two workers were suspended by a transport company after speaking to the media about bullying in their workplace when attempts to deal with the issue at work and complaints made to the safety regulator failed to rectify the problem. In 2010 a hairdresser was sacked after a Facebook post in which she grumbled about a warning and her lack of holiday pay.

Australian employers are increasingly trying to curtail what their employees can say to the media or on social media when not at work. The policies of a number of large employers prohibit “unauthorised” media contact or comments, negative comments or references on social media about the employer, other employees or the workplace in general and, in some cases, “providing information to politicians or government officials”.

These attempts at regulating what workers do or say when not at work are problematic (and dangerous) for a number of reasons. If employment is to be properly distinguished from slavery, what one does when not at work should not be your employer’s business unless it can be said to make on-going employment impossible or too difficult. Continuing intrusion into workers’ private space by employers risks the total breakdown of the boundary between privacy and the workplace to the detriment of workers.

Constraining work-related discussions or comments that take place out-of-hours also has significant consequences for workers looking to organise for better wages and conditions at work and efforts to build worker solidarity. Workers organise around workplace grievances or issues and must be free to raise these with colleagues, friends and the community at large through whatever mechanism they can, including on social media and through the mainstream media, in order to build links and relationships with other workers. Blocking these means is a direct assault on workers’ opportunities to change their workplace and fight against injustice at work.

Workers and unions are increasingly organising online in conjunction with more traditional organising methods in the workplace. In this context, social media is an increasingly vital information-sharing tool for employees in one workplace or across different workplaces.

Perhaps the most extreme example of an employer’s social media policy unashamedly restricting the rights of workers to organise around issues at work was the policy (since changed) of one of the major banks, which prohibited any comment about the bank online, including commentary about the work performed and terms and conditions of employment.

This kind of attempt at worker control denies workers a legitimate voice. But it is also difficult for employers to lawfully restrict the right of workers to discuss work-related issues online or in mainstream media in this way.

There is no right to free speech or expression in Australia on which workers can rely to freely and openly discuss work or their employer.

But according to a decision by the national industrial tribunal handed down some years ago, for an employer to take action against an employee because of something the employee has said or done out-of-hours, the relevant conduct must either have caused serious damage to the employment relationship, be incompatible with the employee’s duties as an employee or have damaged the employer’s interests. In other words, mere criticism of the employer online or the discussion of a legitimate grievance in a news report is not normally grounds for termination or disciplinary action.

In the case of the hairdresser, the decision to terminate her employment was found to have been unfair by the industrial tribunal and the hairdresser was compensated as a result.

A subsequent case involving a truck driver sacked after friends posted derogatory and harassing comments about managers on his Facebook page also found the dismissal in question unfair.

However, the tribunal in both cases issued a caution about using social media to make comments about work or colleagues, stating in the case of the truck driver that conversations on social media were different from “a conversation in a pub or cafe” and could, in some cases, allow for the lawful termination of an employee’s employment.

There are protections in federal workplace laws for employees who exercise broadly-defined “workplace rights”, including the making of complaints about their employment. Similar protections exist in health and safety laws in relation to workplace safety. Workers who engage or have engaged in any kind of lawful activity organised by their union are also protected from any kind of action against them as a result of the activity.

These protections can and do extend to activities done outside work. While the courts have questioned whether making comments to the media could be a “workplace right” that is protected by the law, for union members and activists this kind of activity would likely be protected if it has been “organised” by their union.

But these rights and protections have not stopped employers from prescribing strict rules about what can and cannot be said online or to the media about work and, in certain cases, seeking to enforce those rules. More often than not this will be an unjustified intrusion into the private affairs of employees and is designed to limit workers’ ability to organise with other workers for a better workplace.

When employers’ actions or policies are challenged by workers and their unions, or by the courts, employers will often need to back down. Ironically, the media can help bring attention to employer overreach in this context as it will likely fall foul of community expectations about freedom of speech. In other words, workers cannot be silenced so easily.