MELBOURNE — Federal Court Justice Graeme Hill ruled that pianist Jayson Gillham lost his discrimination case against the Melbourne Symphony Orchestra (MSO). The MSO had canceled Gillham's concert, scheduled for August 15, 2024, following remarks he made during a prior performance.

During an August 11, 2024, performance, Gillham dedicated a piece titled "Witness" to Palestinian journalists killed by Israeli forces. He stated to the audience that more than 100 Palestinian journalists had been killed and that targeting journalists in a conflict was a war crime under international law. Gillham alleged that the concert cancellation by the MSO was an attempt to silence him regarding his political views.

Justice Hill found that Gillham was an independent contractor for the MSO. The MSO sent an email to patrons stating that Gillham had made personal remarks without seeking the orchestra's approval or sanction. The email further stated that the orchestra does not condone the use of its stage as a platform for expressing personal views.

Justice Hill determined that the MSO acted legitimately to protect its business and reputation. He stated that the political content of Gillham's remarks was not a substantial reason for the orchestra's actions. The justice also noted a custom or practice that performers should not make statements on sensitive political or social issues from the stage without permission. Justice Hill added that the MSO would have taken the same actions if Gillham had expressed a political belief in support of Israel or on any other topic with the same impact on the orchestra's business and reputation.

Gillham alleged that the MSO undertook four adverse actions contrary to Section 340 of the Fair Work Act. These alleged actions included cancelling his show, emailing attendees of his August 11 recital to announce the cancellation and apologize for his statements, attempting to impose conditions on the August 15 recital prohibiting physical or verbal statements, and failing to apologize for the cancellation in public statements. The MSO admitted during the trial that cancelling Gillham's show was an adverse action.

However, Justice Hill found that none of the actions other than the cancellation altered Gillham's position as an independent contractor to his prejudice. The justice also found that the MSO did not breach section 342 of the Fair Work Act in three of four alleged breaches because those actions were taken after Gillham's independent contract was terminated. Additionally, Justice Hill ruled that Victoria's Equal Opportunity Act is not a workplace law.

Why It Matters

This ruling clarifies the rights and responsibilities of independent contractors who perform with performing arts organizations in Australia, particularly regarding expression of political views on stage. The case centered on whether a performing arts organization could cancel a contract based on a performer's uncensored remarks, and the court's decision in favor of the MSO highlights the importance given to an organization's business interests and reputation. The MSO maintained a policy of not expressing support for either side of the Israel-Gaza conflict.