International classical pianist Jayson Gillham is one of the brave people who broke the unofficial prohibition on speaking out for Palestinians during a Melbourne Symphony Orchestra (MSO) hosted solo recital.
Not only did the MSO then drop him from a future concert, but it is now trying to have the discrimination case he brought against it dismissed.
In introducing the world premiere of contemporary classical composer Conor D’Netto’s Witness at Iwaki Auditorium in Naarm/Melbourne last August 11, Gillham said: “Over the last 10 months, Israel has killed more than one hundred Palestinian journalists, and this piece is dedicated to the slain reporters of Gaza.”
“The killing of journalists is a war crime in international law, and it is done in an effort to prevent the documentation and broadcasting of war crimes to the world,” the pianist added.
The MSO informed its patrons on August 12 that Gillham would no longer perform in a scheduled August 15 performance of a Mozart concerto due to his unsanctioned “introductory remarks”. The cancelled performance was the second Gillham had been contracted for.
The Australian British musician lodged a statement of claim with the Federal Court of Australia on October 3, challenging the rights of an employer to discriminate against an employee based on political beliefs.
Gillham will appear before the Federal Court on March 17 over an attempt by the MSO to strike out his case against it.
Speaking truth in corrupt times
“The MSO are trying to avoid facing the facts in court,” Gillham said on March 10. “They are arguing that because I was engaged under a particular type of contract, I shouldn’t be protected by Australia’s workplace discrimination laws.
“If they succeed, this would create a dangerous loophole that could strip away discrimination protections for thousands of freelance artists and anyone working under similar contracts — not just in the arts, but across all industries,” the pianist said.
The MSO will argue that Gillham’s case against it does not hold because he had no workplace right to speak out about Israel’s murder of Palestinian journalists under the Fair Work Act 2009 and nor do the terms of the Victorian Equal Opportunity Act 2010 extend this right to him.
Gillham is just one of many cultural figures who are being cancelled for speaking out against the genocide in Palestine.
So many solidarity statements with the pianist came in, including from MEAA (Media, Entertainment and Arts Alliance), that the MSO had to apologise on the day Gillham’s second performance was to have taken place.
“Mounting a legal challenge of this scale is expensive, but it’s essential,” Gillham said. “This is about protecting everyone’s rights, not just my own.
“I’m asking the public to chip in … because if we lose this battle, it’s not just artists who will suffer, but anyone working under a contract.”
Under dispute
Gillham launched legal action last October 3 against four respondents: the MSO, Symphony Services Australia (SSA), former MSO managing director Sophie Galaise and chief operating officer Guy Ross.
He later dropped the case against SSA, after it became apparent that the MSO was claiming his SSA contract in August had no direct bearing.
Barrister Sheryn Omeri KC will put it to the court that via the terms of the SSA contract, Gillham had an implied contract with MSO, along with an expressed contract between SSA and MSO, which entailed the former acting as an agent for the latter.
The SSA considered Gillham a contractor under the Fair Work Act, while SSA was an employer under section 4 of the Equal Opportunity Act (EOA).
Therefore, under the implied contract MSO had with Gillham, he was protected against discrimination based on his political beliefs or any political action under section 6 of the EOA. He was also protected against direct discrimination under section 8 of the EOA and section 18 also protects employees against an employer’s discrimination.
Omeri will argue that section 341 of the FWA considers the EOA a workplace law and, therefore, does protect Gillham from discrimination based on his political beliefs, and he should not have been cancelled.
Gillham is seeking is a public apology, compensation and pecuniary penalties under section 545 of the FWA.
The MSO is set to argue that there was no implied contract between it and Gillham, that the EOA does not confer a right to anyone against discrimination and while the FWA recognises the EOA as a workplace law, that is only to the extent in which it does regulate relations between employers and employees within their common law definition, which does not include contractors.
A fight for all
“This case goes far beyond what happened to me,” Gillham said. “It’s about whether all Australians — whether full-time, part-time or freelance — have the right to freedom of expression and protection from discrimination based on political beliefs.”
When Gillham highlighted the intentional slaughter of Gazan journalists, the death toll was already 158. The number is now 198.
“If the MSO succeeds, any employer could contract their way out of antidiscrimination laws,” Gillham said. “This is a fight for basic rights at work and I’m calling on Australians to stand with me.”
[You can donate to the Justice for Jayson Gillham legal fund to challenge the attack on workers’ rights and free speech. Paul Gregoire writes for Sydney Criminal Lawyers, where this article was first published.]