18 August 2026
6 min read
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The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) protect employees, and in some cases, contractors from unlawful adverse action by an employer because they have exercised a workplace right or engaged in conduct protected by a workplace law.
But what happens when the relevant workplace right arises under state or territory anti-discrimination laws?
In Gillham v Melbourne Symphony Orchestra Pty Ltd (Liability) [2026] FCA 891, the Federal Court dismissed an application by Jayson Gillham arguing that the Melbourne Symphony Orchestra (MSO) took unlawful adverse action against him because he had expressed a political opinion, an action protected by the Equal Opportunity Act 2010 (Vic) (EO Act). In dismissing the case, the Court ruled the EO Act was not a ‘workplace law’ within the meaning of the FW Act.
Mr Gillham is a pianist who was engaged by MSO as an independent contractor. On 11 August 2024, when introducing a new piece called ‘Witness’ during a concert, Mr Gillham made a statement that Israel had committed war crimes by targeting journalists in Gaza. The MSO then cancelled Mr Gillham’s next performance scheduled for 15 August 2024.
Following the cancellation, Mr Gillham made an application under section 340 of the FW Act against the MSO, contending that the cancellation represented ‘adverse action’ against him because he had a ‘workplace right’ under section 341 of the FW Act, which protects employees and contractors from these adverse actions. Mr Gillham argued that the relevant ‘workplace right’ was the benefit of the EO Act which protected him from discrimination based on political belief.
While the MSO accepted that the cancellation constituted adverse action, it successfully defended its decision by arguing the EO Act is not a workplace law under section 12 of the FW Act, therefore Mr Gillham was not protected against the alleged ‘adverse actions’. The MSO also successfully contended that the political statement was not the principal reason for the cancellation.
Although contractors are protected from unlawful adverse action under section 340 of the FW Act, Mr Gillham’s claim depended on whether the right he relied on arose under a ‘workplace law’ within the meaning of section 341 of the FW Act.
Mr Gillham argued that, by cancelling his performance, the MSO breached section 21 of the EO Act by discriminating against him based on his political belief. He contended that this was unlawful adverse action against him because the EO Act was a ‘workplace law’.
The MSO disagreed, arguing that the EO Act could only be a workplace law “to the extent it applies to employers and employees” and that it does not extend to the principal-contractor relationship.
Mr Gillham then referred to section 336(2) of the FW Act, which provides that the protections in Part 3.1 (i.e. general protections) are “provided to a person (whether an employee, an employer or otherwise)”, to back his claim. In his view, such wording should be treated as ‘words of inclusion’ and therefore include independent contractors.
To determine whether the EO Act was a workplace law, and if it was, whether it protected Mr Gillham (as a contractor), the Court looked at section 12(d) of the FW Act, which defines workplace law as “any other law of the Commonwealth, a State or a Territory that regulates the relationship between employees and employers”.
Justice Hill agreed with the MSO’s submissions and found that section 341 does not suggest section 12(d) “extends beyond laws regulating employers and employees”. He did not agree with Mr Gillham’s submission that these were ‘word of inclusion’.
Justice Hill also observed that “the EO Act is not a ‘workplace law’ even in its application to common law employers and employees” because otherwise the employment specific provisions of the EO Act would be ‘re-applied’ as federal laws in the form of a ‘workplace right’.
As a result, Justice Hill found that the EO Act is not a workplace law in this case because it did not regulate the relationship between employees and employers. In any case, it was not a ‘workplace law’ for the purposes of the FW Act.
The Court also considered whether, if Mr Gillham did have a protection under the FW Act for expressing a political belief, his statement was a substantial and operative reason for cancelling his performances.
Mr Gillham relied on the decision of the Federal Court in Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669 (Lattouf) to argue that the MSO’s motives for terminating his contract could not be separated from his political opinion. The Applicant in Lattouf was a journalist who had made several social media posts expressing her views on the Israel/Gaza war, a majority of which condemned the mass killings of Palestinians by Israeli forces. She was dismissed by the ABC for a specific repost she had made on her social media account. The Applicant claimed the ABC had terminated her employment for reasons that included her political opinions, race and national extraction, in contravention of the FW Act. The Court rejected the ABC’s argument that they were concerned only to preserve the ABC’s impartiality, and it was Lattouf’s expression of a political opinion rather than the content of the opinion itself that resulted in the termination of Lattouf. The court in Lattouf ultimately found in favour of the Applicant.
The Court reached a different conclusion in Gillham because the MSO was prepared for the possibility that a performer may use the stage to express their political belief about the Israel-Gaza war. In December 2023, the MSO Board submitted a Board Briefing Note confirming their neutrality. This assisted the MSO in proving the ‘substantial and operative reasons’ for their actions.
This ruling confirms that the EO Act is not a workplace law for the purposes of section 340(1) of the FW Act, with the effect that rights or complaints exercised under that legislative scheme are not protected by the corresponding general protections provisions. The judgment also precludes the FW Act protection for the exercise of rights under ‘workplace laws’ from contractors.
Employers who intend to take adverse action against an employee should ensure that their decision-making processes are not infected with reasons that may contravene the general protections provisions of the FW Act, and that the process is carefully documented. Employers should also have clear policies on contentious matters that involve anti-discrimination legislation.
If you have any questions about the implications from this case or need assistance with reviewing your workplace policies, please contact us here.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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