Melbourne Symphony Orchestra wins adverse action fight over Gaza comments

By the following night, the Melbourne Symphony Orchestra (MSO) had emailed the audience members to inform them that Gillham would not be performing at Melbourne’s Town Hall on the following Thursday.

MSO also stressed it did not “condone” the use of the stage “for expressing personal views”, adding Gillham’s comments were “an intrusion of personal political views of what should have been a morning focused on a program of works for solo piano”.

Gillham contended this email (known as the “cancellation message”), along with a condition for his continued performance and a public statement, were adverse actions taken by the MSO and then-chief operating officer Guy Ross, in contravention of the Fair Work Act 2009.

The MSO accepted the cancellation itself was an adverse action.

In a decision published on Friday (10 July) morning, Justice Graeme Hill of the Federal Court of Australia said that neither the cancellation message, the condition, nor the public statement was an adverse action.

According to Giuseppe Carabetta, workplace and business law associate professor at UTS, “the practical importance of Gillham is that it confirms an organisation can legitimately regulate the use of its own platform and protect its business interests, provided its actions are directed at those interests rather than suppressing a particular political stance”.

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The decision, he said, “reinforces a longstanding principle in employment law: disputes often turn not on the content of political speech itself, but on where, when and how it is expressed”.

“Justice Hill found that the political content of Gillham’s comments was not the operative reason for the MSO’s actions in cancelling. The court accepted that the orchestra was responding to perceived business and reputational consequences arising from the use of its stage for an unapproved political statement,” Carabetta said.

The first issue before the court was whether Gillham had a “workplace right” under the FW Act, which would have prohibited the MSO from treating Gillham unfavourably because of his political beliefs, contained within the Equal Opportunity Act 2010 (EO Act).

Gillham argued the EO Act was a “workplace law” for the FW Act.

Justice Hill found in favour of MSO, which argued the EO Act is not a workplace law in its application to Gillham, an independent contractor. The EO Act does not “regulate the relationships between employers and employees, and is outside the definition of ‘workplace law’”.

Turning to the alleged adverse action, Justice Hill first determined that the cancellation message could not be considered adverse because of Gillham’s role as an independent contractor. The relevant issue was not the scope of the “person”, but rather the “position” of an independent contractor.

Justice Hill said a statement issued after an engagement has ended – as is the case with the cancellation message – does not reduce the advantages enjoyed by the independent contractor before the conduct in question.

“Accordingly, the cancellation message did not alter Gillham’s ‘position’ to his prejudice, because it was made after his engagement with the MSO had been terminated,” Justice Hill further clarified in his written decision.

While Justice Hill accepted that the cancellation message was capable of damaging Gillham’s reputation, it did not alter the adverse action finding.

The condition issue was in reference to the MSO’s requirement, communicated via Ross, that Gillham’s performance could be reinstated provided there would be no “physical or verbal statement from the stage”.

Gillham had argued that the condition altered his position to prejudice by imposing a contractual term that violated his right to freedom of expression and to express a lawful belief, and would require him to contract out of this right to perform at the next concert.

Justice Hill said this argument must fail because Gillham had already decided not to return to the concert before he saw this condition.

The public statement, published on the MSO’s website, stated the Thursday performance would be cancelled due to “safety concerns”.

The MSO added it was “engaging constructively” with Gillham to reschedule the concert, but maintains “a concert platform is not an appropriate stage for political comment”, even if it acknowledged Gillham’s concerns for “those in the Middle East and elsewhere”.

This statement could not be an adverse action because Gillham’s contract had been terminated by the time it was published, Justice Hill found.

The final issue was whether a “substantial and operative reason” for MSO’s actions was that Gillham expressed a political belief.

As part of his argument, Gillham claimed the MSO was biased against a pro-Palestinian message, that its policy was “actually pro-Israel”, it had “exaggerated” the number of complaints received about his comments, and was attempting to placate Jewish donors.

“However, I find that the MSO leadership group (and the MSO generally) did not have a strong commitment that nothing should be said from the MSO about this conflict, in support of either side,” Justice Hill said in dismissing this part of Gillham’s argument.

Justice Hill instead found the substantial or operative reason for the cancellation was the potential implications of Gillham’s remarks.

In further support of this conclusion, Justice Hill found the MSO would have still cancelled the Thursday concert had Gillham made comments that were instead supportive of Israel.

“I also find that the MSO’s reasons in this hypothetical situation would have been driven by the impacts of the MSO arising from the remarks, and not their political content,” Justice Hill said.

At the beginning and end of the judgment, Justice Hill stressed the role of the court was not to canvas the “considerable public controversy” associated with the conflict in Gaza.

The court was also not in a position to make a determination about the factual correctness of Gillham’s comments in August 2024, or whether performing artists have a right to express political views.

“The role of the court is to resolve legal disputes, and to make the necessary findings of fact to resolve the legal issues (and only those findings). In practice, the court’s decision is not likely to vindicate one party’s view of events over another, even if the orders of the court favour one party,” Justice Hill further said.

“Apart from everything else, the parties’ conflicting views of events are not matters that lend themselves to ‘binary analysis’.”

Justice Hill added that the findings did not present either Gillham or MSO to their “greatest advantage”, and it was a “matter of some regret” that they were unable to resolve their differences outside court.

Carabetta said: “Australian employers are not being given a license to punish workers for their political opinions. But what the court has reinforced is that organisations may regulate the use of their platforms, stages, brands and reputations.”

“The judgment may further encourage employers to frame political-expression disputes through familiar doctrines of managerial control, contractual authority, and reputational protection rather than attempting to justify action on the basis of disagreement with the underlying political message.”

Carabetta said that for employers, and particularly arts organisations, media organisations and professional bodies, Justice Hill’s decision has provided support for policies aimed at maintaining institutional neutrality on “highly contentious issues”.

“The judgment gives some comfort to organisations seeking to maintain political neutrality, provided they can demonstrate that their actions are genuinely directed to institutional interests rather than suppressing a particular viewpoint,” Carabetta said.