Rugby Australia’s inclusion policy vs. Folau’s freedom of speech

Earlier this month, high profile rugby star Israel Folau posted some highly offensive comments on Instagram stating that gay people were headed to “HELL… Unless they repent of their sins and turn to God”. It’s brought up the traditional questions about the right to free speech, vs. the rights of inclusion, as well as our expectations of sports stars who we laud as “role models in the community” until their off-field behaviour gets them into strife, or they go rogue with unsavoury opinions on social media.

Of interest to me has been the hypocrisy of spouting a commitment to LGBTQI inclusion but being unwilling to back it. Rugby Australia was rightly quick to distance itself from Folau the day after his comments were published on Instagram, stating that “Folau’s personal beliefs do not reflect the views of Rugby Australia. Rugby supports all forms of inclusion, whether its sexuality, race, or gender, which is set out in our Inclusion Policy (2014).” Some suggested such a response was merely to placate its largest corporate sponsor Qantas.

From that point on there were two clear paths that Rugby Australia could have been taken. Option A was to go down the freedom of speech avenue and let Folau deal with the consequences. Continue to distance themselves, let Folau cop any heat for his homophobia and leave it to more progressive Christians to challenge his views publicly. Or Option B – take a stance, and assess whether Folau’s statement was in breach of its Inclusion Policy, it’s social media policy, and any employment contract clauses. If Folau’s statements were in breach, then deal out the consequences. In doing so, show that its commitment to fostering inclusion and diversity in its organisation and the wider rugby community is more important than upsetting one of its stars. Follow the path it took last year when it pledged its support for marriage equality and the LGBTQI community.

If solely judged by the Court of Public Opinion, Rugby Australia would have probably come out fairly unscathed had they taken Option A. Media pundits, sporting commentators and fans appear determined to protect what they believe is our fundamental human right to free speech, arguing that Folau’s right to express his religious belief shouldn’t have been undermined by Rugby Australia’s concerns about upsetting sponsors. Whilst initially expressing their disappointment, I think it’d be unlikely that Qantas would have made any further public statements on the matter, given Alan Jones’ questioning of why the airline maintained a partnership with Emirates Airlines, which is based in the UAE, where homosexuality is punishable by imprisonment.

Instead Rugby Australia managed to get itself into quite a pickle, in its attempt to appease everyone. After meeting with Folau to discuss social media policy, CEO Raelene Castle emerged stating “I think Israel has acknowledged that maybe he could have put a positive spin on that same message and done it in a more respectful way”, and “Rugby Australia has got a policy of inclusion and using social media with respect”. Castle suggested it was just the first conversation, and more conversations with Folau would be had. She was however also quick to alleviate fears that Folau might be leaving rugby, stating “we would really like him to stay in rugby, that’s hugely important to us”. The overall impression was that Folau had been given a slap on the wrist and he’ll think twice next time, but that Rugby Australia was determined to hold onto its golden boy.

Yeah nah, Folau said. Rather than retracting his comments, he doubled down publishing an article quoting Bible passages to justify his remarks. He made it clear he would not easily give up his position and would walk away from his contract if necessary. He argued Castle mis-represented his position in her comments to the media and did so to appease other people.

Castle then appeared to back down and call an end to the matter, conceding there would be no sanctions: “In his article, Israel clearly articulated his religious beliefs and why his faith is important to him and has provided context behind his social media comment. In his own words, Israel said that he did not intend to upset people intentionally or bring hurt to the game. We accept Israel’s position.”

Rugby Australia has attempted to placate everyone, but in doing so has managed to leave both sides of the divide pissed off. Those that believe Folau has a right to his opinions and to speak opening about his faith feel he shouldn’t have had to explain his actions to Rugby bosses. Some felt the game was letting down a decent man who had a right to express his religious beliefs without being gagged by his employer based on commercial considerations.

And on the other side it’s upset those who believe Rugby Australia’s response only compounds the hurtful message Folau made and leaves LGBTQI youngsters feeling unwelcome by a sporting organisation where such intolerance continues to exist. Some questioned whether Rugby Australia’s inclusion policy was worth the paper its written on.

Many questions remain unanswered – What would Rugby Australia do next time a player says something so offensive publicly? Is it ok if its faith-based? Is it ok to post hurtful comments as long as the player claims there was no intent to harm? Is it only ok if it’s said by a top player who does not seem particularly concerned about his future with rugby? Is it an inclusion policy with exclusion clauses?

If you’re going to have an inclusion policy or a code of conduct, be prepared to walk the talk. Have a good hard think when implementing these policies about the type of behaviour which would breach the policy, and what repercussions would follow. Rugby Australia proclaims its support for Pride in Sport initiatives and the creation of “inclusive spaces though the reduction of homophobia, stigma and discrimination.” It seems rather hypocritical to then to fail to reprimand one of its most prominent players when they seek to demonise a vulnerable minority group.

If Rugby Australia took action to sanction Folau, many would be outraged claiming Folau’s right to freedom of speech had been infringed upon and his employer has no right to censor him. However, freedom of speech is significantly qualified by exceptions. One of these exceptions can include a contract of employment which limits our freedom of speech to ensure we abide by the ethics, values and morals of our employers. Back in 2015 when SBS presenter Scott McIntyre found himself out of a job for breaching SBS’s Code of Conduct and Social Media policy after tweeting some offensive remarks about the ANZACs, Human Rights Commissioner Tim Wilson said “Decrying McIntyre’s dismissal as a free speech violation and censorship is absurd – McIntyre was free to tweet his bile before he worked for SBS, while he worked for SBS and now that he no longer works for SBS. SBS simply decided it didn’t want to be associated with him. No one is guaranteed a job. Employers are not compelled to put up with behaviour that harms their public reputation.”

Enforcing code of conducts, or policies around inclusion and diversity is a tricky business. They can be ambiguous and open to interpretation, if not well defined and communicated. Particularly when they attempt to capture behaviour outside of work. Rugby Australia’s Inclusion Policy attempts to do just though stating “There is no place for homophobia or any form of discrimination in our game and our actions and words both on and off the field must reflect this”. Rugby Australia has avoided engaging with their Inclusion Policy this time in fear of losing their code-hopping superstar, but it may make it even more tricky for them to enforce next time future off-field behaviour comes into conflict with the values that the organisation purports to support.

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December 12

Professional sports contracts: Are they worth the paper they are written on?

As a matter of principle, professional sports contracts, whether it be in the NRL, AFL, A-League or Suncorp Super Netball, are more or less the same as other employment contracts. The athlete is the employee and the club that they play for is the employer. Both types of contracts set out the terms and conditions that will govern the relationship between the contracting parties and includes terms relating to salary, KPIs, length of the contract and termination of the contract. In reality though, the practicalities surrounding sports contracts are vastly different, especially regarding their termination.

A prime example of this is the news recently that Jarryd Hayne effected the end of his contract with the Gold Coast Titans to return to Sydney to fulfil his current “lifelong dream” to play for the Parramatta Eels. This isn’t the first time, nor will it be the last, that NRL players have effectively walked out on their clubs with many in the past unable to resist the lure of a well-paid gig in overseas rugby union (I’m looking at you Sonny Bill Williams and Semi Radrara). Hayne himself is a repeat offender having previously walked out on the Eels in 2014 to pursue his then “lifelong dream” to play in the NFL. Standard NRL player contracts do not generally contain an out clause so it has become somewhat common for a player seeking to move to reach a “mutual agreement” with their club whereby the contract is terminated, and the player free to go elsewhere.

The issue isn’t just confined to rugby league either. The AFL has seen a large number of players in the recent trade period, such as Jake Lever, Charlie Cameron and Josh Schache, effectively pushing through their own trade to move back to the state in which they grew up. This so called “go-home factor” has seen players like Charlie Cameron, previously of the Adelaide Crows, requesting a “compassionate” release from his contract so he could be closer to his family and friends. Cameron got his wish, he is now back in QLD and will line up for the Brisbane Lions in 2018.

This contrasts significantly with an ordinary employment context, where an employee is rarely able to up and leave with their employer highly unlikely to reach a “mutual agreement” regarding a release. Ordinary employers certainly would not allow a mutual termination because of a “go-home factor”. If an employee was adamant on leaving, their employer would insist they provide notice under their contract of employment. For particularly skilled and highly valued employees (which would be a fair description of professional athletes), their contracts generally provide long notice periods in which their employer can place them on gardening leave as well as enforce restraints of trade that prevent them from working for competitors.

From the perspective of the clubs, I often wonder why they rarely play hard ball with their players and try to prevent them from leaving. Clubs rarely insist on the performance of the player’s contract (with the Sonny Bill situation being a notable exception) despite investing significant resources in them in the form of money, development and draft picks. Nor do clubs attempt to enforce restraint of trade provisions after they have left. Clearly, clubs would much rather cut their losses and run than have a $1.2 million a year player such as Jarryd Hayne, or a number 2 draft pick such as Josh Schache, sulking in reserve grade when they could let them go, and use that money and salary cap space to recruit someone who wants to be there.

However, it would seem the pendulum has swung too far towards player power with clubs seemingly unable to ensure that their players, many of whom are extremely well paid, honour their contracts. Professional sporting clubs need to consider whether a hard-line approach should be adopted because it is clear that if the status quo remains, professional sporting contracts will continue to be worth less than the paper than are written on.

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October 30

Workplace sexual harassment and the culture of silence: Are non-disclosure agreements to blame?

Harvey Weinstein has been in the news for all the wrong reasons recently. The New York Times investigative article on 5 October 2017 exposed Weinstein’s 30-year history of alleged sexual harassment and assault of young actresses and female employees. Since this article, many other women have come forward with their stories relating to Weinstein and his inappropriate and unacceptable behaviour. Weinstein’s demise has been swift, with his removal from the Academy of Motion Picture Arts and Sciences, the Producers Guild of America and his own film production company, Weinstein Company, firing him.

At first glance, it seems inexplicable that Weinstein could continue to allegedly sexually harass and sexually assault for over 30 years without his behaviour becoming public, or charges being laid. However, what has also recently come to light is that Weinstein has reached at least 8 settlement agreements according to The New York Times. Such settlement agreements involved Weinstein paying a sum of money to the victim, who was then prohibited from discussing the matter by a non-disclosure agreement.

Non-disclosure provisions are also common practice in settlement agreements in Australian workplaces. They often involve standard confidentiality terms that prohibit either party from disclosing certain facts such as the identity of certain people and the settlement amount. Often, both parties are satisfied with this outcome. The perpetrator protects their reputation by avoiding having criminal or civil proceedings brought against them whilst the victim avoids having to take legal action and reliving traumatic experiences in a public setting. There is also a fear that career prospects will be damaged if you have a reputation for suing.

Despite the existence of strong laws prohibiting sexual harassment, this is unfortunately also an issue in the workplace in Australia. In 2016, the Australian Human Rights Commission heard 453 complaints under the Sex Discrimination Act 1984 many of which relate to sexual harassment in the workplace. It is estimated that a staggering 25% of women are sexually harassed over the course of their employment. Whilst it is understandable that victims may wish to avoid reliving a traumatic experience, non-disclosure agreements do nothing to protect other people from becoming victims and allows the Harvey Weinstein’s of the world to continue to avoid facing scrutiny. A serious question must be asked whether employers should be able to use non-disclosure agreements to keep sexual harassment claims secret.

On moral grounds, most people would answer this in the negative since an alleged crime has been committed, and that person should have to face these allegations in a court. However, there are also compelling legal arguments that employers should not be able to cover up workplace sexual harassment using a NDA.

It is an implied term in all employment contracts in Australia that employers have an obligation to provide their employers with a safe place to work. Commonly in sexual harassment cases, such as Weinstein’s, the victim agrees to settlement terms and exits the company whilst the perpetrator, usually a senior employee or manager, remains. The employer’s decision to retain the perpetrator likely places other employees at risk of experiencing sexual harassment and thus breaches the right of employees to have a safe workplace. However, because the settlement terms are confidential, and the victim is bound by a NDA, often the employees are none the wiser and have no knowledge that this implied term of their employment contract is being breached.

There is another legal argument that that non-disclosure agreements should be void as a matter of law. It has long been recognised that contracts that are contrary to public policy, such as those that are prejudicial to the administration of justice, are unenforceable. Therefore, it stands to question, are non-disclosure agreements in confidential settlements enforceable? Clearly, there is a significant public interest in preventing persistent sexual predators like Harvey Weinstein from continuing their unsavoury behaviour. There is also clearly a public interest in allowing the administration of justice to take its course.

Despite legal arguments that employers should not be able to use NDAs, unfortunately the practical reality ultimately wins. Victims who have signed NDAs are fearful of speaking out. In addition, the potential legal repercussions for breaching a NDA, depending on the contractual terms, can be quite costly. Of course, there is also the power imbalance between the employer and employee that contributes to the culture of silence and ensures NDAs regarding sexual harassment are rarely challenged.

The current use of NDA allows persistent offenders such as Harvey Weinstein to remain unchecked. Perhaps a change in the law is necessary to protect potential future victims of serial sexual harassers in the workplace.

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September 2

NRL contracts – what are they really worth?

This NRL season has seen it’s normal amount of controversy over players’ contracts. Notably the the Daly Cherry Evans backflip, and Chris Sandow ‘s abrupt release from the Eels. But the Wests Tigers Robbie Farah news last week takes the cake as a clear indication that the a Contract of Employment in the NRL is worth less than the paper it’s written on. Farah was instructed by the club on Tuesday that he was no longer a feature in their future plans, to look elsewhere for a new role, and that if he remained at Wests Tigers in accordance with his $900,000 per annum contract he would be playing reserve grade next year.

From a footballing perspective the madness of this decision is outside the scope of this blog – and that issue is best left for the sports journalist to discuss further, as no doubt they will.

But it’s the business and employment perspective of this decision that baffles me, and yet another occasion this year as both an employment specialist and NRL fan that I’ve observed the business practices of these clubs being far below acceptable contemporary standards.

If Farah finds a new club in this short time frame the Tigers will, in the best case scenario, be subsidising his salary in the region of $500,000 to have Farah play against them instead of for them. All of this for a ‘fresh start’ and to free up relatively insignificant $400,000 in their salary cap. In leadership terms, they will also be depriving themselves of one of their only senior players, and have no hope of recruiting anyone else at this late stage. There is also the fact that publicly breaking promises to a loyal employee, to allow you to make new promises to other employees, is more than just morally flawed. It’s strategically weak. Employees are not that stupid. If this action has led to a bad taste in the mouths of the fans and the wider community, what is it like in the locker room.

One way or another, it seems that between the 30 June cooling off period that allowed DCE to backflip, the provision for bilateral release like Sandow’s, and then this remarkable repudiation of Wests Tigers provides us with just three examples in as many months that demonstrate that NRL contracts are basically meaningless. They are aspirational documents, the only purpose of which is to create media attention around the re-signing of players. This needs to change if the NRL clubs are serious about player retention and fan satisfaction.

Within the executive world, it is standard practice to allow unilateral termination of employment at will, with often as little as one month’s notice provided. The NRL need to think about this as an option going forward, but with robust protections for players and fans. For example, termination at will of a player’s contract by either party should be allowed, provided that a deadline half way through the season for all contract alterations for the following year should be observed. This would prevent clubs from cutting players loose when there were no other opportunities, and likewise protect clubs from being stuck unable to find replacements. If the club exercises the right to terminate, a termination payment (preferably salary cap exempt) could be provided under the contract.

This bizarre eleventh hour move from the Tigers leads to an assumption that the true extent of their salary cap crisis is at the point where rational decisions are no longer possible. This begs yet another question to the administrators of this sport. How hard is it to manage the salary cap? The rest of the business community deal with a range of compliance tasks every day of the week which are far more complex. Why do NRL clubs find this so difficult to manage in advance? With the discovery of numerous breaches in recent years, it’s clearly time to insist that clubs make all player contracts publicly available. This would provide for a industry wide self regulation system. The clubs, aided by the media and other stakeholders, can regulate each other much more effectively than the hit and miss audits currently performed by the integrity commission.

Everyone else in the economy is finding creative ways to meet their business goals and maintain compliance. It’s high time that the NRL followed suit.

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March 23

Popularity and unfair termination of employment – are workplace rights really a democracy?

While I understand the iconic popularity of Top Gear host Jeremy Clarkson, I was genuinely surprised to learn over the weekend that an online petition demanding his reinstatement had passed the 1,000,000 signature mark.

This comes after an interesting month, in which Clarkson was suspended from his job with the BBC for a ‘fracas’ with one of the show’s producers, which allegedly was a response to the producer not providing Clarkson with a hot meal after a long day shooting the program. A determination as to his future at the BBC is still pending, however while on suspension Clarkson has been open about his intention to sue the BBC if his employment is terminated, and at a recent charity auction delivered a public verbal spray about the BBC. He has since claimed this was ‘tongue in cheek’. Yet the petition rages on, and was recently delivered to the BBC offices through London by a tank, driven by the Stig.

I’m not going to comment on some of the causes in today’s world that might have deserved the 1,000,000 signatures more than Clarkson and Top Gear. We are all entitled to our own opinions, and entitled to lend our support to whatever we feel passionate about. However I couldn’t help sparing a thought for those many thousands of people around the western world who lose their jobs each year by perpetrating minor workplace violence, normally as a a result of the exact same type of ‘brain snap’. We don’t see any petitions on Change.org for these people, who are no doubt hardworking people who love their careers and their families and equally don’t ‘deserve’ the harsh realities of unemployment all because of one moment of madness.

A search of the Fair Work Commission Website with the term “punching fellow employee”, produces hundreds of hits, and the decisions display a zero tolerance attitude toward workplace violence. Even in cases where violence was used in situations of great provocation, and often where it was actually initiated by the other employee. It is a cornerstone of workplace law that employee safety is paramount, and acts of violence are fundamentally inconsistent with this. Sympathy for the perpetrating employee is often expressed, but so very rarely outweighs other considerations.

John Whittaker (see John Whittaker v EDI Rail-Bombardier Transportation (Maintenance) Pty Ltd T/A EDI [2013] FWC 7908) was dismissed in 2013 for his part in a ‘fracas’between himself and one of his subordinate employees. In his case it was accepted by the employer as well as the Commission the start was started, and finished, by the other employee – who was also dismissed. Mr Whittaker only threw one punch. Mr Whittaker was dimissed, and the decision was not held to be unfair because the altercation was not ‘unavoidable’. Even though the other employee had instigated the violence, it was held to be relevant that Mr Whittaker had added to the disagreement with previous verbal provocation. The Commission admitted that the applicant had a long service with the company, and a high level of commitment to his job, which had in fact been one of the factors leading to his conduct. However these factors were not sufficiently mitigating.

In the case of Raymond Gleeson v Aurora Energy Pty Ltd [2010] FWC 2956, a similar altercation took place after two electirician employees had been working on street light faults. It was accepted by the court that Mr Gleeson’s state of extreme fatigue was a mitigating circumstance, but that his conduct still justified dismissal. Perhaps if he’d argued that he’d been ‘hungry’, and that his victim had failed to provide him with a hot meal, he would have had more success? I doubt it.

Where was Mr Gleeson, or Mr Whittaker’s 1,000,000 signatures? Was their work not valuable enough to us to engage the community’s support? Should we be able pressurize the employer to turn a blind eye to conduct which is unacceptable and dangerous? Should these 1,000,000 votes convince the BBC to continue Clarkson’s employment, but to employ a special bodyguard to accompany him on location – not for his physical protection, but to protect any of his colleagues that may might accidentally displease him?

This is hardly Clarkson’s first display of unreasonable behavior, and to me the idea that the wealthy and famous are entitled to conduct themselves in a way that is not considered acceptable by normal members of society is insidious.

But perhaps even more disturbing is the idea that Clarkson’s professional success should afford him greater protection – and in turn greater scope for unaccountable misconduct. In my years as a junior solicitor it was standard practice in large firms to turn a blind eye to high revenue earning partners who alternated between lecherous and abusive on a day to day basis. And these are dangerous waters. There is a fine line between turning a blind eye to poor conduct to protect a company’s high revenue generators, and making a statement to society and the workforce that successful people are entitled to mistreat their colleagues because of their success.

But my main issue with the BBC if they respond to this petition, is buying into the idea that workplace law is a democracy. Should we allow the public to ‘vote’ on whether or not a termination is fair? Workplace rights are part of the essential fabric of free and equal society. I would hate to see it become a popularity contest.

* Helen Carter is the Director and founding solicitor solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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November 17

The importance of express terms in Contracts of Employment and Enterprise Agreements

A presentation on 16th October 2014 on both Contracts of Employment and Enterprise agreements.

Employment contracts

In Commonwealth Bank of Australia v Barker [2014] HCA 32, the High Court held that the implied term of trust and confidence does not exist. This decision overruled the two federal court decisions below it, as well as the current English authority, Malik v Bank of Credit and Commerce International SA. The thrust of the High Court’s reasoning as that an implication of a term at law requires the term to be ‘necessary’ for the performance of the contract. It is not enough that it simply be ‘reasonable’.

The significance of this decision is that an employment contract is like any other contract, and is to be interpreted according to the words of the document. This is significant in the that traditionally employees framing actions in contract against their employers have often relied upon implied terms, choosing to leave the express contractual terms to one side. The decision in Barker suggests that this may now be a mistake.

From the employer’s perspective, this relaxed attitude toward express terms frequently leads to some lax practices. Express terms concerning things such as KPIs, incentive schemes, and right to renewal have been construed by courts strictly, and they have shown themselves to be unimpressed by evidence of contrary intentions. Courts are demonstrating no desire to treat contracts of employment differently to other contracts, and relying on the statutory regime behind the contract of employment is a mistake for both employees and employers.

The message is, get your express terms right. Don’t put anything in your contract that you can’t do, and don’t rely on implied terms to prevail.

Enterprise Agreements

EA’s can be a nightmare to some employers. But often they can be fantastic in offering flexibility, especially in getting around some of the problems presented by the modern awards, and some cultural benefits to the workforce in bringing people together.

But they can be a significant issue if they are not done correctly.

There have been some developments recently. Every employer wants to retain the right to change workplace policies if and when they see fit. But there have been some recent decisions in which an employer, in attempting to alter workplace policies, have been hauled before the Fair Work Commission under dispute resolution clause, and have been held up from changing their policies. One case involved a policy relating to mobile phone use policy, where the Dispute resolution clause in the Enterprise Agreement gave the FWC the right to concililate and arbitrate on ‘terms and conditions’ of employment: not just on the employment terms governed by the Enterprise agreement, Modern Award or the National Employment Standards. This is a huge mistake, because effectively it is an invitation to the Fair Work Commission to become involved in operational matters at work.

Another decision related to a No Further Claims clause. Every Enterprise Agreement has a clause like this, as they perform an important function in preventing ongoing claims from either side – however in one instance the clause was held to prevent the employer from changing their motor vehicle policy – as it was held to have relationship to the remuneration of the employees.

The lessons : while EA’s can be a great vehicle for flexibility when you are dealing with a good workforce – it is absolutely essential that the agreements dispute resolution does not allow the FWC to arbitrate, and secondly is based on what is covered by the modern award or Enterprise Agreement, and does not go more broadly into terms of employment. If you do that, you are going to end up with the Union or the Fair Work Commission trying to tell you how to run your business.

Once the agreement is made – The importance of consultation

No one likes having these difficult conversations, especially in the context of an employee not receiving a benefit or entitlement that they expect – but it is extremely important that consultation takes place. Not only is the consultation process legally required, but a calm, reflective consultation can actually take the heat out of a situation, and will often reduce your likelihood of having an industrial problem by approximately 90%. View it not as a difficult conversation to be endured, but rather as an opportunity to connect with them, diffuse the situation and begin the process of resolution.

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