The starting point is, of course, the express terms of the applicable employment contract. This is, however, unlikely to be of much assistance. While the employment contracts for some media and sporting talent will contemplate and specifically address the issue, the over­whelming majority of employment agreements will be silent on it.

In those instances, an employ­er who wants to direct an employee to participate will need to rely upon the implied contractual term that the employee will obey the lawful and reasonable direction of the employer. In a recent unfair dismissal decision, dealing with mandatory workplace vaccination, Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931 (Jovcic), the nature of this implied term was considered (at 53):

“A contract of employment contains an implied term that the employee will obey the employer’s lawful and reasonable directions (Bayley v Osborne). The requirement that the direction be lawful has two distinct dimensions. One is that the direction must involve no illegality. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan). The latter requirement reflects the ​‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all ser­vice that may be thought rea­son­able, but such ser­vice only as prop­er­ly apper­tains to that char­ac­ter’ (see Com­mission­er for Gov­ern­ment Trans­port v Roy­all). Whether a direc­tion is rea­son­able is a ques­tion of fact to be deter­mined hav­ing regard to all of the circumstances.”

The relevant direc­tion from the employ­er will almost invari­ably be law­ful. Unless the employ­er is direct­ing the employ­ee to be involved in an ille­gal protest, the ques­tion of whether the direc­tion is law­ful will not be deter­mi­na­tive. The more salient and con­tentious ques­tion is like­ly to be whether the direc­tion is reasonable.

In con­sid­er­ing whether the direc­tion is rea­son­able, the beliefs of the employ­ee (par­tic­u­lar­ly reli­gious con­vic­tions) can become rel­e­vant. The Jov­cic deci­sion address­es the con­flict between a direc­tion from an employ­er and the beliefs of an employ­ee (at 81):

“There will be occa­sions where the exi­gen­cies of work col­lide with an employee’s per­son­al beliefs and require dif­fi­cult deci­sions to be made. It would be unrea­son­able to require work­ers to choose between their beliefs and their work with­out good rea­son.”

As such, there would need to be a ​“good rea­son” to com­pel an employ­ee to pro­mote, or be involved in, a cause, mes­sage or cam­paign that is incom­pat­i­ble with the beliefs of the employ­ee. As not­ed above, Jov­cic was a deci­sion relat­ing to a work­place vac­cine man­date (to which objec­tions on the basis of reli­gious belief were raised), and in that con­text it was not­ed (at 81):

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“… in this case, there were good rea­sons. The pol­i­cy was in line with ATA­GI and gov­ern­ment advice that vac­ci­na­tions reduced trans­mis­sion. It was direct­ed at the well­be­ing of all work­ers on site, espe­cial­ly those known to be immuno­com­pro­mised. It served the company’s legit­i­mate inter­ests in main­tain­ing con­ti­nu­ity of oper­a­tions. The pol­i­cy was respon­sive to iden­ti­fied risks. It was with­in rea­son­able bounds for the com­pa­ny to take the cau­tious approach that it did to the risk of trans­mis­sion, to require com­pli­ance with the pol­i­cy, and to decline to grant exemp­tions to the appli­cants.”

It is a trite obser­va­tion that what con­sti­tute ​“good rea­sons” will depend on the cir­cum­stances of the case. To use the Man­ly Sea Eagles con­tro­ver­sy as an illus­tra­tive exam­ple (assum­ing there is no applic­a­ble express term in the play­er con­tract), the good rea­sons could arguably include the impor­tance of the club being involved in pro­mot­ing inclu­siv­i­ty (through the wear­ing of the ​“rain­bow” jer­sey) and the role play­ers have as ambas­sadors of the club to advance its broad­er com­mer­cial and rep­u­ta­tion­al inter­ests, beyond the core duty of play­ing foot­ball to the best of their abil­i­ty. Con­sid­er­a­tions such as these might have arguably tipped the bal­ance in favour of play­ers being com­pelled to sub­ju­gate their per­son­al beliefs to the inter­ests of the club and be direct­ed to play. (As it hap­pens, this is moot as it has been report­ed that play­ers who are object­ing to wearing the jersey are being permitted to sit out the game for the round.)

Away from the worlds of media, sports and entertainment, it might be harder to mandate the involvement of an employee in a cause that conflicts with their beliefs. The employer will need to demonstrate some benefit or importance attached to the involvement of the specific employee to whom the direction is given. That might be difficult if the employee does not have a public, or prominent internal, dimension to their role.

Michael Byrnes is a partner at Swaab. This opinion piece first appeared on that firm’s website.