‘restrictive confidentiality agreements’.
It seems likely that such agreements would have
restricted some forms of political communication.
Third, the contract might incorporate documents such as workplace policies into the contract of
Such policies may contain similarly broad restrictions. In particular, ‘social media
policies’, which constrain what employees may say even in their private lives on social media, are
now commonplace in workplaces.
For instance, in 2015, the social media policy for employees of
a major contractor for immigration detention centres was leaked to the press and caused contro-
versy for its draconian bans on expressions of opinions.
Finally, employment contracts may give rise to implied terms of fidelity
which terms may also incidentally restrain employees from certain political communications.
If an employee engages in political communication which allegedly breaches the employment
contract, there may be at least two consequences. First, the employee could be sued for breach of
contract. The remedies sought might include damages and an injunction restraining further
breaches. Second, and perhaps more realistically, the employer may rely on the breach to bring
about the termination of the contract of employment.
This will not be relevant for all categories
of employees—casual employees, for example, may be lawfully dismissed by their employer
without any breach of contract having occurred.
In recent years, a number of examples of political communication allegedly breaching a con-
tract of employment have arisen. On Anzac Day 2015, Scott McIntyre, an SBS reporter, tweeted
outside of work hours an offensively expressed but political opinion that official war commem-
orations overlook the wrongdoings of Australian soldiers.
SBS decided the tweet brought it into
6. Australian Human Rights Commission, Submission to the Senate Legal And Constitutional Affairs References
Committee, Inquiry into the Incident at the Manus Island Detention Centre from 16 February to 18 February 2014
(16 May 2014) 25 [2.29]–[2.30].
7. Mark Irving, The Contract of Employment (LexisNexis Butterworths, 2nd ed, 2019) 393–9 [7.22]–[7.24]. However,
depending on the precise wording of the employment contract in question, it is arguable that often policies thought to be
incorporated into the contract of employment in fact simply constitute directions of the employer to the employee, and
thus must be obeyed only if lawful and reasonable: Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505,
518–30 (Buchanan J).
8. See Asma El Ouirdi et al, ‘Institutional Predictors of the Adoption of Employee Social Media Policies’ (2015) 35(5–6)
Bulletin of Science, Technology & Society 134.
9. Ben Doherty, ‘Transfield Immigration Staff Told They Can Be Fired for Using Facebook’, The Guardian (online), 7
April 2015 https://www.theguardian.com/australia-news/2015/apr/07/transfield-immigration-staff-told-they-can-be-
fired-for-using-facebook>; Michael Bradley, ‘Depths of Detention Centre Secrecy Revealed’, ABC News (online), 10
April 2015 https://www.abc.net.au/news/2015-04-10/bradley-depths-of-detention-centre-secrecy-revealed/63
10. Irving (n 7) 518–21 [9.18].
11. Ibid 601–4 [9.102]–[9.105].
12. Equivalent duties also arise in equity. A consideration of the freedom’s application to equity is beyond the scope of this
article. See G J McCarry, ‘The Contract of Employment and Freedom of Speech’ (1981) 9(2) Sydney Law Review 333,
for an enlightening discussion concerning ways that terms implied by law into contracts of employment may constrict
employees’ freedom of speech.
13. Irving (n 7) 800–7 [13.6]–[13.11].
14. That is not to say these employees may be dismissed at will—many such employees will have a statutory right under
the Fair Work Act 2009 (Cth) not to be dismissed unfairly (and potentially other statutory rights too). But that right
involves no question of contract law, so is irrelevant for present purposes.
15. Michaela Wh itbourn, ‘SBS Presenter Sacked over “Ina ppropriate” Anzac Day Tweets’, Syd ney Morning Herald
(Sydney), 27 April 2015, 3; Michael Bodey, ‘Sacked SBS Reporter Scott McIntyre Sues over Anzac Day Tweets’,
42 Federal Law Review 49(1)