Employment is based on a contract in which there is an implied obligation on the employee not to harm the employer. If an employee steals from the employer or damages the employer’s property, the contract may be terminated. The same is true when an employee drives away customers or financiers by publicly criticising their employer.
The High Court recently ruled that a public servant can be sacked for social media posts critical of the government, even when the posts are made anonymously. Rugby Australia sacked Israel Folau on the grounds that he is not entitled to express his religious beliefs, with which it disagrees, because they are said to breach his employment contract.
Governments should be very wary of intruding into matters of individual choice, even when that choice is unwise. That includes entering into a contract. It is sometimes said that providing a means to uphold contracts is one of the few useful functions of a government.
There are, nonetheless, rules that govern whether a contract exists, who can be a party to a contract, remedies for breach of contract, whether aspects of a contract are unconscionable, and even what can be contracted. A court will not uphold a contract if it involves an act that is illegal, for example. A contract to kill a person, commit forgery or discriminate on the grounds of race would not be enforceable.
A person also cannot contract to become a slave. It is not relevant, legally at least, that they might willingly sign a contract to that effect. Owning a human being, unlike owning a dog or a cow, is simply illegal.
The High Court decision, although ostensibly about a public servant, has broad implications. Informed people suggest it means that any employee who is critical of their employer’s position on a politically relevant social issue can be sacked. The Rugby Australia decision suggests it holds that view too.
Given the growing propensity of companies and organisations to adopt policies on social issues, this is a matter of considerable concern. A Qantas employee who does not share the company’s policy on gay rights, or someone who disagrees with their employer’s decision to withdraw advertising from the Alan Jones radio program, may find they need to remain silent or risk losing their job. The implications for free speech and political discourse are enormous.
It is also in conflict with Australia’s international obligations. Freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights, which states that “everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.
Furthermore, Australia is a signatory to the International Covenant on Civil and Political Rights, which protects not only the expression of favourable information or ideas but also unpopular ideas including those that may offend or shock.
The key issue here is whether it is acceptable for employers to have control over expressions of opinion by their employees, when such expression is legal and causes the employer no material harm. This is a far bigger issue than the current debate about religious freedom, significant as that may be.
Notwithstanding my strong support for contract freedom, I do not believe it is acceptable. If an employee is not allowed to express an opinion, or to express an opinion contrary to that of the employer or a sponsor, it amounts to opinion slavery. Indeed, it could be said that the employee’s mind is owned.
It is certainly not consistent with JS Mill’s famous statement, “over himself, over his own body and mind, the individual is sovereign”. An employee is hardly sovereign over his own mind if he is prevented from expressing an opinion disagreeable to his employer.
Maybe the government will succeed in passing legislation to protect freedom of religious expression. Maybe the High Court will decide Folau didn’t break his contract. But even if both occur, which is unlikely, it would not be sufficient. Ultimately, contracts imposing opinion slavery need to be made just as unenforceable as contracts involving physical slavery. Nobody should own our minds, not even when we work for them.
David Leyonhjelm is a former senator for the Liberal Democrats