The Federal Court decision in Gillham v Melbourne Symphony Orchestra Pty Ltd (Liability) [2026] FCA 891 narrows the scope of general protections under the Fair Work Act 2009 (Cth) (Act), particularly for independent contractors and claims based on State anti-discrimination laws. The Court dismissed an adverse action claim concerning political comments made during a recital, with significant implications for workplace rights and discrimination claims.
- Causation and neutrality in adverse action: the Court found the Melbourne Symphony Orchestra’s substantial and operative reason for cancelling Gillham’s performance was not his particular political opinion or its view on the Israel-Gaza conflict, but its concern of unauthorised political comments made from its stage and the resulting institutional risks. The Court accepted that the Melbourne Symphony Orchestra would have responded similarly to opposing political remarks or comparable non-political conduct causing similar harm. In doing so, the Court qualified, but did not reject, the decision in Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669 (Lattouf v ABC) where the Court found that the ABC’s concerns about impartiality, complaints and reputation were “interconnected” and could not be separated from the particular political opinion attributed to the employee.
- Workplace rights for contractors limited: the Court held that political-belief protections under Victorian law do not constitute a “workplace right” under the Act for independent contractors, restricting claims based on State laws that regulate principal–contractor relationships. The Court found that a contractor’s workplace rights under the Act are confined to rights arising under the Act itself, the Fair Work (Registered Organisations) Act 2009 (Cth), or the Independent Contractors Act 2006 (Cth), and contractors are unable to rely on workplace rights from broader legislation regulating a principal–contractor relationship.
- State anti-discrimination laws distinct from federal protections: the Court concluded that State and Territory anti-discrimination laws operate independently from federal provisions, meaning employees and contractors cannot rely on the underlying State anti-discrimination entitlement itself as a workplace right under the Act’s general protections, but must pursue claims under specific federal or State regimes.
- Adverse action defined by contractual relationship: protections from adverse action which prejudices a contractor’s position only apply to conduct referable to the contractual relationship. Post-termination conduct affecting only a former contractor’s reputation or future professional prospects does not, without more, qualify as adverse action prejudicing a contractor’s position under the Act. This distinguishes such adverse action in the contractor context from earlier decisions recognising post-termination prejudice in relation to employees.
Implications for employers
- This case reinforces the lessons from Lattouf v ABC about the importance of employers maintaining clear, neutral policies governing use of organisational platforms, public statements and departures from agreed programs. JWS has extensive experience in preparing such policies.
- Decision-makers should document their actual reasons for any detrimental action to be taken against workers contemporaneously. Where contemplated action follows political or other protected expression, decision-makers should test whether the same response would follow from the opposite viewpoint or from comparable non-political conduct causing similar harm.
- Employers should not assume that describing a concern as reputational, commercial or stakeholder-related will protect a decision from scrutiny. Courts will examine whether those stated reasons are genuine or are proxies for hostility to a protected attribute or viewpoint.
For any questions or comments on this article, or for advice on workplace policies governing the use of organisational platforms and public statements, contact Ruveni Kelleher.