Federal Court denies concert pianist’s adverse action claims against Melbourne Symphony Orchestra

On 15 August 2024, the MSO emailed and published a statement regarding the cancelled 15 August 2024 concert. The public statement did not include an apology to the applicant for the cancellation of his 15 August 2024 performance, which the MSO’s then programming director had promised. 

The applicant raised a number of issues in his application. 

First, the applicant claimed a “workplace right” under s 341(1) of the Fair Work Act 2009 (Cth) (FW Act), arising from the prohibition in the Equal Opportunity Act 2010 (Vic) (EO Act) against an employer’s unfavourable treatment of an employee due to the latter’s political belief. He added that the EO Act was a “workplace law” for the purposes of the FW Act. 

Second, the applicant contended that the MSO took adverse actions against him under s 342 of the FW Act and that the MSO’s COO was knowingly involved in one of those contraventions. 

Third, the applicant asserted that the MSO took these adverse actions “because” he had a workplace right. 

The MSO’s position was that it did not wish anybody on its stage to make remarks supporting either side of the Israel-Gaza conflict. 

Application dismissed

The Federal Court of Australia denied the applicant’s claims against the MSO and its COO. 

First, the court did not consider the EO Act a workplace law for the purposes alleged by the applicant. Thus, the court ruled that the applicant did not have a relevant workplace right. In making these findings, the court explained that: 

• The EO Act was not a law “regulating the relationship between employer and employee” because the applicant was an independent contractor of the MSO 
• Treating the EO Act as a workplace law would contradict the pertinent legislative scheme, under which state anti-discrimination laws like the EO Act applied of their own force, supplemented by the FW Act’s specific anti-discrimination rights 

Second, the court acknowledged that the 12 August 2024 cancellation was an adverse action, as admitted by the MSO. However, the court saw no adverse actions through the 12 August 2024 cancellation message, the 14 August 2024 condition, and the 15 August 2024 public statement. 

The court pointed out that these three actions did not alter the applicant’s position as an independent contractor to his prejudice. The court added that the condition did not discriminate against him and that the MSO was not proposing to execute a contract with him at the time of the public statement. 

Third, even assuming that the other issues favoured the applicant, the court decided that his expression of his political beliefs was not a substantial and operative reason for the MSO’s decision to take any of its actions against him. The court explained that: 

• The MSO had a policy of not expressing support for either side of the Israel-Gaza conflict 
• There was a custom or practice that classical musicians on the stage refrain from issuing statements on sensitive political or social issues without the host’s approval 
• The applicant’s suggested test of interconnection was not the standard for deciding whether the MSO took its actions for prohibited reasons 

The court held that the 12 August 2024 cancellation and cancellation message sought to respond to the anticipated negative consequences of the applicant’s remarks on the MSO’s business and reputation. 

The court added that the 14 August 2024 condition and the 15 August 2024 public statement aimed to address the expected adverse effects on the MSO of cancelling the applicant’s performance scheduled for that date. 

The court determined that the MSO would have reacted the same way if the applicant had expressed a political belief supporting Israel or made statements on any other subject with the same impacts on the MSO’s business and reputation. 

Given these conclusions, the court deemed it unnecessary to rule on the associated claim of accessorial liability against the MSO’s COO, who had sent the message with the 14 August 2024 condition to convey the MSO’s wishes. 

Lastly, the court noted that its role was not to: 

• Enter into the broader issues surrounding the Israel-Gaza conflict 
• Determine the factual correctness of the applicant’s statements during the recital 
• Answer the question of whether performing artists were entitled to express political views