Freedom of contract or freedom of speech

A number of comments on the Folau case have made the point that Folau failed to pay attention to the terms of his contracts with Rugby Australia [1] and also with GoFundMe, with the implication that he has only himself to blame for the outcome .

That’s a cute debating point, but it’s not one that should be used by those of us concerned with protecting workers’ rights. The use of contractual terms to constrain what workers say and do outside working hours is a misuse of the power of employers and a danger to free speech on issues of all kinds. The fact that we don’t like Folau’s use of this freedom shouldn’t lead to a retreat from the principle that, within very broad limits, what we do and say in our own time is no business of the boss.

The issue with GoFundMe is less problematic: funding a legal dispute is not obviously part of the site’s mission[2]. But we should be wary of the idea that Internet platforms should be able to set whatever terms of service they like and interpret them as they wish.

fn1 As with just about everything in this case, the exact status of the contract is a matter of dispute

fn2 neither is this much-mocked request by two layabouts for money to fund a trip to Africa that is beyond the resources of the mother who is currently working two jobs to support them in idleness)..

109 thoughts on “Freedom of contract or freedom of speech

  1. “what we do and say in our own time is no business of the boss”

    This misses the point. Elite celebrities in sport or show business don’t have any “own time”. They give that up in return for the massive incomes they receive, which strikes me as a fair bargain. Pretending they are ordinary employees with set hours, who can distinguish between ‘work’ and ‘personal’ time, is ignoring the reality of their status.

    It seems to me the only reason Folau is receiving so much sympathy is that he has sought to justify his behavior as an exercise of religious freedom. If he’d said he sees nothing wrong with men having sex with children, or using performance-enhancing drugs in sport, I doubt we’d be seeing many people criticising Australian Rugby’s decision to terminate his contract.

  2. Folau is not a vulnerable employee whose rights outside work need to be protected by government. He’s a professional sportsperson, with a real ability to influence attitudes and impact on the commercial interests of the ARU. He has the financial resources and athletic skills to negotiate fair terms, unlike unskilled workers.

  3. Is Israel Folau a worker? Do I stand in solidarity with him as a worker? Legally he might be a worker, but I think if you consider this question on those terms you miss the point. The reason his statements have had an impact is because of his public profile, which places him beyond the realm of workers because it allows him to earn so much money and because it gives him so much (additional) power. I think it’s a bit cute to suggest this is somehow a test case for the principle that “what we say and do in our own time is no business of the boss.”

    I think a more productive frame to view it might be as a sign of the consequences of the corporatisation of everything, including sport, but then it would be hard to justify why it’s worth drawing the line over a homophobic rugby player instead of over the many other outrages that have been committed in the name of sport and the brand.

  4. John,

    1) as far as we know Folau has said there were NO social media clauses in the contract.
    I have yet to be told how RA has a policy on whom enters heaven or hell.
    2) Sarah Hanson Young still has a go fund me page in her fight with another ex-senator so that is wrong as well so their argument was obviously a load of old cobblers in the end ironically making it easier for Folau to raise money

    The reason why people wish to contribute to his case is merely as john states. They wish a court ruling on knowing just how much power an employer has in sacking a person and they want it to go to the highest court in the land if necessary.

  5. AFAIK the issue is, do Folau’s comments constitute hate speech and therefore a breach of an *anti discrimination act?

    *which act and in which jurisdiction would have to be determined.

    It’s a curious thing, if Folau was a Muslim and was advocating all sorts of dire punishments for alleged breaches of the Koran he would be roundly condemned by all sides.

  6. I would have thought Folau qualifies as a contracted employee and is subject to terms and conditions outside of everyday employment.

  7. how in the hell ( pun intended) could what he put up be constituted hate speech?

    Are people going to ban the bible now?

  8. @nottrampis It’s hate speech because states people will go to hell not for what they do, but for who they are. To make it clearer, substitute any other attribute in there – race, gender, physical or intellectual ability – and I’m sure you can see it as hate speech.

  9. The distinctions raised above are certainly relevant ones. But they go beyond the claimed principle that employers can impose whatever contractual conditions they like.

    @Rog If Folau were a Muslim, you’d see an awful lot of people switching sides. Most of his current defenders would want him sacked, of course. But I a lot of people who want Folau sacked would see the risks of this more clearly if he were a Muslim

  10. As I understand it, every employee has a contract of employment, even if it’s not a written one. I think I got that from my union’s industrial officer. In my case, when my employer sent me a letter saying I was being offered a job, that counted as a contractual offer, which I accepted–in fact I think the letter asked me to sign it and return a copy, as evidence that I was accepting the offer. I think that’s standard with my employer, and probably with lots of big organisations.

    On the other hand, there are many conditions of my employment which are determined not by that contract but rather by the enterprise agreement that covers me. The kind of written contract of employment that covers the full range of conditions is probably in the minority.

    The distinctions raised above are certainly relevant ones. But they go beyond the claimed principle that employers can impose whatever contractual conditions they like.

    I agree. I think that, in general, employers shouldn’t seek to include conditions in contracts of employment which restrict what employees do in their own time, and shouldn’t be able to: in general I think it’s wrong for employers to try to impose such terms, and if they do nevertheless succeed in imposing such terms I think it’s wrong for them to be enforced.

    I do think that this particular case does fall either within or close to the border of what should be a very limited category of exceptions, but the exceptions should be a very limited category and it’s a mistake to think ‘He was in breach of his contract’ should ever be enough by itself to settle a case like this. (I mean, as a matter of principle; I have no idea what would actually be sufficient to settle it in the existing state of the law.)

    (I could go on about what kind of situations might justify making an exception which might extend to cover cases like this one, but I’m not sure it’s relevant.)

  11. “The fact that we don’t like Folau’s use of this freedom shouldn’t lead to a retreat from the principle that, within very broad limits, what we do and say in our own time is no business of the boss.”

    But just how far does that principle extend, and how do you define ‘broad limits’? I don’t see a problem with, say, an employer who happens to hire many Jewish employees and/or has many Jewish clients, terminating the contract of an employee on the basis that the employee has repeatedly made public anti-Semitic comments on social media.

    On the other hand, someone being fired by a right-leaning CEO a public relations firm simply because they once said on Facebook that they vote for the Greens, clearly violates that principle.

    I don’t necessarily have the answer – but would be interested to know where you would draw the line.

  12. On this free speech thing, does that freedom extend to intentionally lying?

    I was thinking of David Irving and his failed libel case, in which the judge found that he had lied to suit his own purposes.

    It seems Israel Folau would be hard pressed to prove his assertions re hell and sin and has therefore used a lie to suit his own agenda.

  13. seqaugur,
    Actually you got it ALL wrong.He said they go to hell because of what they do .he actually gave a way to avoid it as well.
    rog, can you enlarge on what you think he has lied about please

  14. As someone who will go to Hell multiple times according to Folau, I think he has been harshly treated. Some perspective is needed. He is not a modern day Julius Streicher, FFS. His views are worthy of ridicule but that doesn’t mean he should lose his job.

    And of course if this stands the HR departments of big companies will be trawling through their employees’ social media accounts looking for ammunition to use against them one day.

  15. It’s fairly simple Homer, if he can’t prove that hell and sin actually exist, then they be untruths.

    Maybe this is why the christians backed Trump, I wonder. Both seem to be comfortable with their untruths.

  16. A rather silly question rog.

    We are dealing with the afterlife.
    no-one has ever come back except one and he was also god which is Flau’s point

  17. Simple thought experiment for any freeze speech controversy- replace the abused group with Jews. If you now do not have a case you never did.
    This is simply a debate about whether homosexual people count and that’s it, whether abusing them is beyond the pale in the way that various left wing ideas are or not. The right obviously want to maintain their right to abuse this group systematically.

  18. Or rather wants to sustain the sort of culture that prohibits most left wing radicalism but permits as much on the right as they possibly can protect from general opprobrium and rejection. Slightly different to a right.
    Obviously this is not genuinely an issue of free speech which right the conservatives do not and have never care about ever ever ever.

  19. By contrast the Hanson-young matter is a simple traditional defamation case. Normal people accept that people should not dishonestly accuse other people of being a whore in a workplace for personal advantage, nor deliberately and repeatedly lie about the words they say. This is not similar to telling homosexuals they are an abomination obviously.

  20. @LtFred Until very recently, the Catholic Church taught that Jews can only go to Heaven if they become Christian. Most of the main Protestant denominations still claim this. That raises problems for all sides in this debate, too many to cover in a comment.
    I agree with you that most of Folau’s conservative supporters are only too happy to suppress speech with which they disagree.

  21. They might well say that in private or formally but you’d certainly never see a religious right politician say anything like that because they understand it as being beyond the pale. I agree that this does not reflect a lack of genuine anti semitism on the right but it is a tactical choice

  22. I would suggest this whole issue is damaging to the Christian cause, and I can see employers pre vetting potential employees to ascertain potential risk of a company’s core values and mission being breached, this would make any employer rightfully wary of religious people being able to damage their brand under the banner of freedom of religion

  23. See Rugby Australia Code of Conduct, Part 2: Code of Conduct – 1 CODE OF CONDUCT – PLAYERS.

    “1.3 Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby.”

    “1.7 Use Social Media appropriately. By all means share your positive experiences of Rugby but do not use Social Media as a means to breach any of the expectations and requirements of you as a player contained in this Code or in any Union, club or competition rules and regulations.”

    I assume that contracts, like Folau’s, have standard clauses which refer to the Code of Conduct. In that case, Folau knew or should have known what he was signing up to. Contractually, he was probably in breach of contract, hence the decision. The ARU presumably is on firm ground and had legal advice to that effect, hence their action.

    Let us abandon any fiction that Folau was an ordinary worker. He was not. He was an over-privileged, elite sportsman playing a GAME; i.e. doing nothing of serious import which would help anybody except himself. For this he was royally over-rewarded and for this he was contracted. The contract and the conduct code were and are clear. He broke the contract.

    He seems to expect a special privilege which is not even extended to Australian Federal Public Servants (to name a group). The APS code of conduct names under “Type of Misconduct”;

    “At all times behave in a way that upholds the APS Values and APS Employment Principles and the integrity and good reputation of the employee’s Agency and the APS.”

    Plenty of real workers (not just over-privileged, over-payed entitled male sportsmen) have to comply with similar requirements. These requirements do not prevent people having or posting genuine, constructive religious or political beliefs. They just limit forms of divisive and harmful hate speech.

  24. Religious communities are more often than not full of wonderful virtuous people who care for each other and provide much good to society, but one can often sympathise with the cynical observer’s impression that if you remove their freedom to discriminate, you’re confiscating a significant foundation of what they stand for.
    Take the US Pentecostal & Evangelical movements as a case in point. Movements with historical foundations mired in slavery, persecution and discrimination of all minorities. Such movements predominately voted for, and will likely vote again for Trump. A candidate with more moral and ethical question marks over his head than any of his competitors by some orders of magnitude.
    These movements are all too willing to turn a blind eye to all these moral shortcomings… because… why? Because, he gives them what they want. He delivers discrimination of minorities. He delivers whatever the Israeli right wants and that’s all that fundamentally matters all said and done.

  25. The double-standards-o-meter on this issue is through the roof. If Folau had been fired after tweeting that the Anzacs were a bunch of war criminals the partisans in this debate would be taking exactly the opposite position to what they are now.

    Come to think of it, a few years ago an ABC journalist did lose his job for tweeting that or something close to it. And the partisans then, in some cases the same people as now, did take the opposite position.

  26. I very much share the concerns in the OP *but* is there a case to be made that roles like Folau’s are unusual, in that those who fill them are of necessity public figures (and thus are never “outside working hours”)? After all, Folau isn’t just paid to play catch and tips for 80 mins every now and then; he’s also paid to be a target for sponsorship and to “represent the code”.

    Naturally, the problem with this line would be how you stop it from applying to e.g. public servants and their tweets. But it doesn’t strike me as an obvious non-starter for jobs like Folau’s that require a high level of public visibility

  27. Smithy, he was an SBS sports journalist Scott McIntyre and he tweeted this as a SBS journalist.
    If Scott had done that in a private capacity I would have supported him.

  28. Can I clear up a few things here for those whom do not understand.

    Christians believe in what is set out in the bible.
    All people are sinners. Read up on original sin.
    The only difference is those whom repent and those whom do not.
    The only way to heaven is through Jesus. He said this very clearly
    homosexuals or heterosexuals for that matter only go to hell for actions.

    If someone can tell all why rugby Australia got involved with whom goes to heaven or hell when it has nothing to do with them I would be grateful.
    This has NOTHING to do with their inclusion or diversity policy.

    My only comment is most intensive comments against anyone going to hell are from people who do not believe in the concept.

  29. Nottrampis, you perfectly exemplify Smith9’s comment. You manage to conclude that when a sports commentator writes about Anzac Day he is on the job, but when a sportsplayer damns (literally) the boss of his major sponsor he isn’t.

    I expect there are plenty of people doing the mirror image switch – do any readers have examples ?

    I made the same point as Smith9 a while ago and also upthread a bit

  30. Jones, I responded to the same point a bit earlier saying “the distinctions raised above are certainly relevant ones. But they go beyond the claimed principle that employers can impose whatever contractual conditions they like.” See also the post and also upthread a bit

  31. nottrampis,

    “What can be asserted without evidence can be dismissed without evidence.” – Hitchens.

  32. With the Folau case I do incline towards the idea that a significant part of his job is to promote his employer, and he has stuffed that part up. And his defenders were part of the mob that hounded Yassmin Abdel-Magied out of the country in a case that’s quite similar to this one. The difference being that “ANZAC” is not a protected identity under the various human rights acts (and where it is protected it’s more of a truth requirement than a human rights protection), but being homosexual is protected. Maybe Folau should have stuck to “blessed are the peacemakers”?

    Further problems come from the fact that his profile and audience come from his job, not from his (no doubt fascinating) life outside of his job. So like Abdel-Magied he’s using his job to promote a controversial view. Either of them could have easily had a non-work social media presence and used that to say their piece, and there’s a reasonable chance no-one would have noticed. That’s what many of us have to do simply because of where we work. Not that I necessarily say controversial things, but my employer watches social media and gets upset about what they see so I can either never mention work on social media, or split my social media use. But my job requires a social media presence so one of those things isn’t an option (kinda like Folau… without the huge salary)

    In general I think it would be nice if employers had less control over the non-work lives of their employees. But I think a spokesman for the sport getting fired for speaking badly is a very poor test case. There are much bigger, systematic problems that should be addressed – from the restraint of trade in “you can’t use anything you learned here anywhere else for two years” clauses that are common in many professional careers to the zero-hours no-notice contracting arrangements that seemingly dominate the low-paid employment market.

    So I think the defence fails on the grounds that Folau’s comments were explicitly designed to link his employer to their content, the employer objected, the employer *has* clauses making that a breach of contract… the end.

  33. “sportsplayer damns (literally) the boss of his major sponsor”

    There’s a difference between saying gays (and fornicators, adulterers etc) generically will go to hell and saying “Alan Joyce you are going to hell because you are gay”. If Folau had done the second he would have a much weaker case. But he only did the first.

    Here is a bold prediction. The ARU and Folau will reach a confidential financial settlement, as nearly always happens with contractual employment disputes, which is what this is, with each side notably represented by employment lawyers. It is not at law (as distinct from Twitter) a dispute around freedom of speech or religious observance. Folau will go and play rugby in France or England. Nobody in the culture wars will be satisfied. Folau’s supporters will be unhappy that he wasn’t martyred and his critics will be unhappy that he got away with it.

  34. Folau was warned, renegotiated and broke 2nd contract I believe.

    David Marr says, in agreement with Smith9 “The double-standards-o-meter on this issue is through the roof.” & JQ;

    “So what are they fighting for? Free speech, but free speech of a particular kind that keeps gays in the firing line. As Australia succumbs to secular values on marriage and sex and family, that’s getting harder and the Christian mission more urgent.”

    “So his target is everything. If Folau were insisting on vilifying, say, Jews and the disabled, would anyone object to Rugby Australia insisting he shut up about it?”

  35. a comment at 7:59

    said “no-one came back except etc, etc.”

    i beg to differ.

    Kerry bloody Packer did, and reported “there is nothing there.”

    my niggle is, if i went to a reporter or any broadcast type information outlet,access to
    a very wide audience for my opinion/views/prejudices/ideologies and stuff would be totally ignored.

    so some-one, paid a lot of money to be very good in the sports-entertainment field can voice religious menaces.

    and every body knows.

  36. “Folau was warned, renegotiated and broke 2nd contract I believe.”

    That’s in dispute. According to one version of events, the ARU forgot to put the relevant clause in Folau’s second contract, asked him whether they could amend the contract after he signed it and he said no.

  37. John you need to read properly, Scott said his comments on his official SBS twitter account. Folau’s statement was made on his personal account with RA nowhere to be seen I hope you now can see the difference. If Scott ,whom is a great journo , had done it on his own account it would be the same argument

    I think the reason for the campaign is to get a resolution of the matter ie can quoting or paraphrasing a bible passage lead to a person being sacked. A lot of people not just Christians, want to know this in a court judgement. It aint about the money it is about the principle.

    David Marr is rarely right. and again he is wrong here. you cannot have teachers practising one thing and teaching another which is the complete opposite. It is just like a person working for Rothmans who is writing ant-tobacco articles on social media

    Can I add Folau and Castle offer completely different versions of what occurred and what was said at the meeting. Unbelievably to my mind Castle never followed up with either a note or e-mail to Folau with a agreed summary of the meeting. This has NEVER occurred in any organisation I have worked in.

    Finally this sums this up.
    Imagine getting upset at some-one for claims the God you do not believe in said in the book you do not read that unless you repent of the sin you do not care about you will go to a place you do not think exists.
    This is Australia

  38. “A lot of people not just Christians, want to know this in a court judgement.”

    If Folau chooses to settle they will have to wait until the next case, if there is one.

  39. Everyone agrees that expressing some ideas in a public forum should get you sacked. None of the people currently claiming not to believe this are telling the truth. The question is whether abusing gay people ought to be considered as unacceptable as for instance being a black woman who says the word ANZAC (or as I pointed out above, anti semitism). You’re obligated to defend the substantive position you’re defending which is flat homophobia in this case. Nobody believes they can do this so instead they lie. There is no obligation to take their lies seriously and they can be dismissed on all other issues as well

  40. Nottrampis’ position is particularly egregious. You’re not entitled to lecture a minority group about the issues they’re to take seriously

  41. “That’s in dispute. According to one version of events, the ARU forgot to put the relevant clause in Folau’s second contract, asked him whether they could amend the contract after he signed it and he said no.”

    So we are all just pundits re contract and sacking. Without detail of contract as Smith9 says, I hope it goes to trial and no supression order.

    But some of us seem sensible re vilification as LtFred said: “not entitled to lecture a minority group about the issues they’re to take seriously”

  42. Thankfully, Christianity is in long term decline in the Western world. According to European Social Survey data from 2014 to 2016, the percentage of 16 to 29 year olds identifying as Christian is as follows:

    Czech Republic 9% Sweden 18% Estonia 19% The Netherlands 19% United Kingdom 22% Belgium 25% France 25% Hungary 33% Denmark 34% Norway 36% Finland 37% Spain 40% Russia 41% Switzerland 44% Germany 47% Austria 52% Portugal 57% Ireland 59% Slovenia 59% Lithuania 74% Poland 83%


    I couldn’t find good data for Australia but I imagine it is the same. As I understand it, the bigotry inherent in Christianity, and the vile behaviour of church leaders, in persecuting gays while simultaneously exposing children to abuse by clerical perverts, is hastening the decline of Christianity.

  43. Homer makes his position very clear, he believes implicitly in his interpretation of the Bible and everybody else can go jump.

  44. “Everyone agrees that expressing some ideas in a public forum should get you sacked.”

    I don’t. More precisely, anything that justifies getting you sacked should justify getting you prosecuted, criminally or civilly. If what you say is legal, and unrelated to your work, it’s none of your boss’s business.

    If you want to assert the contrary, please explain how you propose to stop bosses arbitrarily sacking people whose views they don’t like.

    Test case: Someone takes a public position on the Iraq war, asserting that anyone who backs the war is complicit in war crimes (or, to turn it around, complicit in the crimes of Saddam Hussein. Their boss is a public backer of the war (or, in the opposite case, opponent). An OK case for sacking? If not, who decides this?

  45. My expectation is that the appeal will not challenge whether there was a breach of contract, through the code of conduct, but whether an employer has a right to suppress religious freedoms in a labour contract. I suspect this is also the basis of the support he is receiving.

  46. “I don’t.”

    I tend to agree but it’s easy to come up with hypothetical counter-examples. Suppose someone is employed in the dining room of a Jewish nursing home serving meals to the residents, some of whom are Holocaust survivors. He also is on Twitter denying the Holocaust. Holocaust denial is legal and unrelated to his work.

    Sackable offence?

  47. Nottrampis
    “can quoting or paraphrasing a bible passage lead to a person being sacked.”

    What abut this passage from Leviticus, directed to a gay man in your workplace?

    “If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them.”

    This could with complete justification be interpreted as a death threat to a colleague. Not sackable, because it’s a quote from the Bible? If the same message was sent in plain English, and so wasn’t a quote from the Bible, it would be instantly sackable.

  48. Good luck convincing a court AR was ‘suppressing Folau’s religious freedom’. His employer had taken a public position in favor of equal rights for same sex couples. Folau was under no religious duty to publicly condemn that position. Nevertheless he chose to make statements in the public square in the full knowledge his employer believed they would bring the organisation into disrepute. Remaining silent would not have been a limitation on his religious freedom.

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