In Lattouf v Australian Broadcasting Corporation [2025], the Federal Court has clarified the operation of the Fair Work Act 2009 (Cth) (FW Act) provisions that protect employees from adverse action or termination on the basis of political opinion. The decision provides important guidance on the interpretation of political opinion in the workplace context and the contractual limits of an employer’s right to vary duties.
Statutory Protection for Political Opinion
Section 351 of the FW Act prohibits an employer from taking adverse action against an employee because of the employee’s political opinion. In this case, the applicant alleged that the Australian Broadcasting Corporation (ABC) unlawfully terminated her employment due to views she expressed publicly.
The Court accepted that the term political opinion includes both the holding of a view and the expression of that view. It further confirmed that:
- An employer can contravene s 351 even if it acts on an assumed opinion, such as one inferred from the statements of a spouse or associate.
- Conversely, protection may also extend to someone who expresses a political opinion without personally holding it (e.g. an actor in a political advertisement).
The essential issue is why the employer took the adverse action, not whether the opinion was expressly held or articulated.
Was the Employment Terminated? The Repudiation Argument
The ABC submitted that it did not terminate the applicant’s employment but merely varied her duties pursuant to an express term in her contract. The employer relied on a provision that allowed it to alter the employee’s hours and duties across the engagement period.
The applicant contended that by preventing her from presenting the radio program (which was the central feature of her role) and by excluding her from the workplace, the employer repudiated the contract and thereby effectively terminated her employment.
The Court examined the principles governing when an employer is required to provide work under an employment contract. Although employers are generally not obliged to provide work provided wages are paid, the Court confirmed that exceptions apply, particularly for performers and presenters, whose roles are inherently tied to the performance of duties.
The Court found that:
- The employee’s role as a presenter placed her in the exceptional category where an obligation to provide work is implied.
- The ABC’s conduct - removing her from her presenting duties for the remaining two days of her contract and denying her access to the workplace - amounted to a repudiation of the contract.
- The employer’s failure to provide formal notice of termination did not prevent a finding that termination had occurred. The Court held that a reasonable observer would interpret the employer’s conduct as a termination, particularly given it involved an immediate cessation of duties, a direction to leave the premises and allegations of misconduct.
Determining the Reason for Termination
The ABC argued that the sole reason for its decision was that the employee had expressed controversial opinions that compromised the requirement for presenters to appear impartial.
The Court accepted that impartiality was relevant but found that the decision-maker was also motivated by the content of the employee’s political views. It concluded that the employer’s decision was made, at least in part, because of her political opinion, thereby contravening s 351 of the FW Act.
Implications for Employers
This decision serves as a cautionary reminder for employers, particularly those in media and public-facing industries, that:
- The protections under s 351 of the FW Act are broad in scope and can extend to both expressed and implied political views.
- Termination or adverse action that is partly motivated by an employee’s political opinion can constitute unlawful discrimination, even where business interests such as reputation or neutrality are cited.
- Where roles are performative in nature, such as presenters or entertainers, employers may have a contractual obligation to provide work, not just pay.
- Repudiation of an employment contract can occur without formal notice, if conduct clearly signals the end of the employment relationship.
If you require assistance in reviewing your workplace practices, People Mosaic can assist with commercially practical advice tailored to your organisation’s needs.
