To speak or not to speak; when can an employer gag an employee?

The Fair Work Commission has held that an employer’s policy to the effect that an employee is not permitted to make public comment or undertake political activity which can be “attributed” to employment with the employer is not unlawful or unreasonable. Although the following point was not at the centre of that case, it would presumably follow that a direction to that effect issued by an employer would be ignored at the employee’s peril and would be regarded by the Commission as a lawful and reasonable instruction, failure to comply with which might constitute misconduct justifying dismissal.
As Bissett C said “I consider that it may often be a fine line between activity and comment as a private citizen and what may be seen by AGL as attributable to employment with AGL. However, AGL’s Code, of course, does not exist in isolation of laws governing employment. In this case the restriction is only on public comment or political activity that can be attributed to employment with AGL. It does not seek to limit engagement by employees in their private time in political activity or making a public comment as a private citizen. This distinction is important and must be recognised.
I do not consider the position of AGL as stated in the Code of Conduct itself to be unreasonable. There is nothing unreasonable in AGL seeking to protect its reputation by ensuring that comment and activity attributable to it is actually representative of its views and is done by those properly authorised to do so. I have taken into account that the restriction complained of is within the context of managing conflicts of interest and that the Code does not seek to banish the existence of such conflicts but rather to try and put in place a regime that allows such conflicts to be managed.”
AGL Loy Yang v Construction, Forestry, Mining and Energy Union [2014] FWC 8093 delivered 21 November 2015