The Federal Court has dismissed proceedings brought by pianist Jayson Gillham against our clients, the Melbourne Symphony Orchestra (MSO), and its former Chief Operating Officer, Guy Ross, arising from the cancellation of an MSO presented performance in August 2024. The Court found that although the MSO cancelled Gillham’s performance after he made remarks from the stage accusing Israel of committing war crimes targeting journalists in Gaza, the cancellation did not breach the Fair Work Act.
The Court found that the MSO had acted in the belief that the pianist had made an unauthorised political statement from its stage on a highly contentious issue, not because of the particular views he had expressed.
Justice Hill accepted the evidence of the MSO’s decision-makers that they were motivated by concerns including:
• the use of the MSO stage for unauthorised political statements;
• maintaining the MSO’s policy of not expressing support for either side of the Israel-Gaza conflict; and
• the potential impact on the MSO’s audience, donors and partners.
The Court found these concerns - not agreement or disagreement with Gillham’s views - were the substantial and operative reasons for the decisions.
Rejecting Gillham’s claim at every stage, Justice Hill found that the Victorian Equal Opportunity Act was intended to operate independently, rather than being incorporated into the Fair Work Act’s workplace-rights regime. The Court also emphasised that Gillham was not an employee but an independent contractor and, as a result, not covered by relevant Fair Work protections.
The decision sets an important precedent for arts organisations and other cultural institutions navigating issues of artistic expression, public controversy and organisational governance.
The ABL team was led by partners Leon Zwier and Rachel Soh.
To read the summary judgement click here.
