‘They won’t be able to win’: Media companies risk wrath of IR law over Gaza discipline, top lawyer says

As the media industry grapples with the sackings of Antoinette Lattouf from the ABC and Clementine Ford from Nova over expressing strong views on the war in Gaza — and the preventing of staff at Nine papers who signed an open letter calling for objective coverage from reporting on the conflict — one pertinent question raised is whether it’s legal to sack journalists for their political views.

Lattouf, who had taken to social media to share content from UNICEF and Human Rights Watch, put out a statement late on Wednesday night stating she was “very disappointed” by the decision, believes she was “unlawfully terminated”.

Lattouf, represented by Sarah Ibrahim of Central Lawyers, filed proceedings in the Fair Work Commission on December 22, alleging that managing director David Anderson personally ordered her sacking.

The application, reported by the Nine papers, alleges that content director Elizabeth Green handballed responsibility for the decision to Anderson.

“It was above me, it was David Anderson. I know I shouldn’t be telling you this,” the application alleges.

The application also alleges that the Executive Council of Australian Jewry made complaints relating to her employment.

The ABC declined to comment when contacted by Crikey.

Crikey understands reports in The Australian, as well as posts to social media by the Executive Council of Australian Jewry, were live within an hour of Lattouf being given notice of her termination. 

Meanwhile the ABC Melbourne office was vandalised on Friday morning, with “tell the truth about Palestine” written in white paint, and red paint splashed across the front of the Southbank facility. 

Crikey spoke to Josh Bornstein, the principal lawyer in employment law at Maurice Blackburn, about whether media companies are legally entitled to restrict the rights of their employees.

Bornstein himself took to social media to share Lattouf’s statement, tweeting: “One of the issues raised is whether the ABC sacked Antoinette by reason of her political opinion in breach of s772(1) (f) of the Fair Work Act.”

“This was the provision invoked by Scott McIntyre when he was sacked by SBS several years ago.”

Former SBS football reporter Scott McIntyre was fired by the multicultural broadcaster in 2016 over tweets about Anzac Day that saw then-communications minister Malcolm Turnbull personally intervene. McIntyre eventually settled out of court with SBS, having been represented by Bornstein pro bono. 

Section s772(1)(f) of the Fair Work Act prohibits termination of an employee’s employment based on things such as race, sex, gender, nationality, ethnicity or political views, among other things. 

“You cannot contract out of s.772 (1),” Bornstein said. “An employment contract that stipulated that you are not allowed to get pregnant or vote for the ALP would not be enforceable. Nevertheless, in these sorts of cases, employers argue that they were not terminating because of religion or political opinion but because the employee violated a policy. In my view, they are one and the same.”

Employers are not at liberty to dodge their obligations under the act by way of an employment contract, though not only has the definition of a political opinion not been tested in the courts — owing to the relevant cases settling, such as those involving La Trobe University’s Roz Ward or former Wallaby Israel Folau — but employer overreach has also increased in recent years. 

“The words political opinion have not been given a detailed (meaning). There’s not detailed jurisprudence about what they mean,” he said. 

“What is happening, in the digital age, the reach of employer, assertion of power and control over their employees has radically expanded and has become repressive and anti-democratic.” 

Bornstein said the Fair Work Act didn’t impose a different standard on journalists, but that the media industry imposed on itself a unique position in the labour market. 

“There’s no different standard [for journalists of what brings a media company into disrepute], but corporate brand managers claim brand catastrophe every time someone tweets — the sky is falling because Fred tweeted about Anzac Day or Sally tweeted about a rainbow flag,” he said. 

“Journalists are in a different position to most people in the labour market, because at least in organisations which are journals of record, there is this tension, which is a tension in theory and by convention, rather than by any ironclad law, that goes, ‘We are a journal of record reporting the facts. It’s important that our staff trade off democratic rights so that the presentation of facts is not besmirched or tainted by the activism of journalists’.”

“You can make a decent case that for news journalists, their obligations of fair and impartial reporting mean that they should refrain from participating in contentious political debate. Where it gets messier is a lot of journalists don’t do that — a lot of members of media organisations aren’t engaged in that activity [and are engaged in opinion journalism]”.

“The issue of what the legitimate constraints are for employees in the media industry and for journalists, what are legitimate constraints [versus] what are lawful constraints is very unsettled. The law, the rules and conventions that apply in journalism are very brittle. There is a lot of contestation about the restrictions, particularly in America, where journalists have fought about the right to express views about things like #MeToo, Black Lives Matter, to march in the streets. It’s a very hotly contested space, and there isn’t a settled orthodoxy.” 

Asked why cases of this nature tended to settle, Bornstein said it was because he thought employers in that position “wouldn’t be able to win”. 

“I think the employer realises they’re going to look ridiculous. They won’t be able to win. Their claims of a brand catastrophe will probably be torn to shreds. And they don’t want that all aired in a public trial,” he said. 

“It’s a debate over commercial brand management and human rights. And whether you should be able to contract out of the human right to participate in democracy, by expressing opinions, by marching in the streets, by waving a flag.”

Clarification: Since this story was published, Crikey has updated it to reflect confirmation of legal proceedings reported by the Nine papers. Josh Bornstein spoke to Crikey before legal undertakings were filed — his remarks are not a comment on proceedings.