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Free speech, unfair dismissal and unions (crosspost from Crooked Timber)

March 6, 2018 - 00:38 -- Admin

(Reposted from Crooked Timber, hence written for a mainly US audience, but referring to the Australian debate.)

I’m seeing a lot of comments from the political right and centre-right worrying about the possibility that workers may be fired for expressing conservative views. For example, here’s David Brooks (paywalled, I think) linking to Andrew Sullivan.

It strikes me that this would be a really good time for people like Brooks and Sullivan to campaign for an end to employment at will, and the introduction of the kind of unfair dismissal laws that protect workers in most democratic countries, but not, for the most part, in the US. Among other things, these laws prohibit firing employees on the basis of their political opinions. Better still, though, would be a resurgence of unionism. Union contracts generally require dismissal for cause, and unionised workers have some actual backup when it comes to a dispute with employers.

There was a case during the recent equal marriage debate in Australia that illustrates both points. A children’s party organizer fired a worker who posted on Facebook opposing equal marriage. This would have been clearly illegal if the worker had been a regular employee but the employer relied on the claim that she was a contractor. Converting workers to independent contract status has been an important element of union-busting strategies in Australia. The resulting legal situation is unclear. It was reported at the time that the Fair Work Ombudsman was investigating the case, but I haven’t been able to find out whether there was an outcome.

Unsurprisingly, religious opponents of equal marriage were very critical of the employer in this case. But they’ve been far more concerned about protecting their own special exemptions as church employers to sack anyone who disagrees with their religious views, than to consider the implications of the quasi-plebiscite, which showed that they are in a shrinking minority.