Pianist loses adverse action claim as court rules state anti-discrimination law falls outside FW Act
The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) protect employees, and in some cases, contractors from unlawful adverse action by an employer because they have exercised a workplace right or engaged in conduct protected by a workplace law.
But what happens when the relevant workplace right arises under state or territory anti-discrimination laws?
In Gillham v Melbourne Symphony Orchestra Pty Ltd (Liability) [2026] FCA 891, the Federal Court dismissed an application by Jayson Gillham arguing that the Melbourne Symphony Orchestra (MSO) took unlawful adverse action against him because he had expressed a political opinion, an action protected by the Equal Opportunity Act 2010 (Vic) (EO Act). In dismissing the case, the Court ruled the EO Act was not a 'workplace law' within the meaning of the FW Act.
Mr Gillham is a pianist who was engaged by MSO as an independent contractor. On 11 August 2024, when introducing a new piece called 'Witness' during a concert, Mr Gillham made a statement that Israel had committed war crimes by targeting journalists in Gaza. The MSO then cancelled Mr Gillham's next performance scheduled for 15 August 2024.
Following the cancellation, Mr Gillham made an application under section 340 of the FW Act against the MSO, contending that the cancellation represented 'adverse action' against him because he had a 'workplace right'...
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