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Dismissal of contractor for opposing same-sex marriage 'unlawful', experts say - Australian Financial Review

By Alan J. McDonald


An ACT contractor has been dismissed after openly opposing same-sex marriage on social media.

McDonald Murholme Managing Director, Alan McDonald, highlights that protections for political opinion under that Fair Work Act 2009 (Cth) only covers employees, but they could still apply if the person’s working relationship is deemed to have the characteristics of employment.

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Dismissal of contractor for opposing same-sex marriage ‘unlawful’, experts say

A Canberra business’ termination of an independent contractor because she supported voting No to same-sex marriage on social media was probably unlawful, legal experts say.

Workplace lawyers said the much-publicised case, detailed on Facebook by the owner of small business Capital Kids Parties, would be covered by the ACT’s broad anti-discrimination protections for political opinion and the business could be subject to compensation orders.

The Fair Work Ombudsman said on Wednesday it was now investigating the matter after former employment minister Eric Abetz attacked the dismissal as a “fundamental attack on free speech” and a potential breach of the Fair Work Act.

Director for Canberra law firm Bradley Allen Love, John Wilson, told The Australian Financial Review anti-discrimination laws in the ACT specifically protected contractors from such behaviour.

“It’s unlawful under the ACT Discrimination Act to treat someone unfavourably because of their political conviction so there would be an apparent breach of the act.”

He said the ACT civil and administrative tribunal had broad remit to hand down any orders it saw fit in such cases, including compensation for lost income.

Owner Madlin Sims defended her decision on Facebook by arguing that the views of the contractor, an 18-year-old Christian, amounted to “hate speech” and she couldn’t risk her passing them on to children.

But Mr Wilson said that defence would not stand up.

“The person was expressing a personal view on what is presently the law.

“Some might characterise that as hate speech but on what I read it wasn’t. It simply read ‘I would be voting no because of my religious and political conviction’.

‘Spectre of sham contracting’

The business could also face further legal action over the “spectre of sham contracting”.

While Fair Work protections of political opinion only cover employees, not contractors, McDonald Murholme principal Alan McDonald said they could still apply if the person’s working relationship had the characteristics of employment.

“She might be called a contractor but under the strict requirements of the Fair Work Act she might be an employee,” he said. “The legislation looks through to the real relationship [of the parties].”

Mr Wilson went further and said it was “disturbing” that an 18-year-old was being presented as an independent contractor.

“It’s hard to imagine an 18-year-old person who periodically turns up at children’s birthday parties on someone else’s behalf to be conducting a separate business. I mean, it doesn’t pass my pub test.”

If the contractor was really an employee, the business may have taken unlawful adverse action under the Fair Work Act and be subject to civil penalties and compensation orders.

A FWO spokesman said it was “aware of this matter and in order to form an assessment as to whether any workplace laws have been breached will be contacting the parties involved as part of its inquiries”.

Case rallies ‘No’ voters

Coalition supporters of the No vote leapt on the case to attack the Yes campaign for alleged bullying.

Senator Abetz said “this action is deeply disappointing and I am hopeful that it will be fully investigated and if appropriate, prosecuted”.

“To assert that voting No is homophobic as claimed by the employer is demonstrably false and indicative of the unacceptable bullying and name-calling engaged in by the Yes campaign.

“There are literally thousands of gay Australians who will be voting ‘no’, like millions of others, they are not homophobic – they’re concerned about the consequences for parental rights, freedom of speech, freedom of religion and the right to conscientious objection.”

The case follows signs the No camp had split this week, with Senator Abetz claiming Treasurer Scott Morrison, who is opposed to same-sex marriage, could not be trusted to deliver protections for freedom of speech and expression of religion if the Yes vote prevailed.

Mr Morrison said protections would be sorted out after a Yes vote, in contrast to campaigners such as former prime minister John Howard and Tony Abbott who want them detailed up front.
Reference: ‘Dismissal of contractor for opposing same-sex marriage ‘unlawful’, experts say’, Australian Financial Review, 20th September 2017.