Reheat­ed retweets: The sig­nif­i­cance of a retweet in employment

The CFM­MEU Case

In a recent case of the Fair Work Com­mis­sion (FWC) (Con­struc­tion, Forestry, Mar­itime, Min­ing and Ener­gy Union-Con­struc­tion and Gen­er­al Divi­sion, Queens­land North­ern Ter­ri­to­ry Divi­sion­al Branch [2018] FWC 6462), a 'retweet' by a mem­ber of the FWC, Senior Deputy Pres­i­dent Ham­berg­er, formed the basis of a sub­mis­sion by the Con­struc­tion, Forestry, Mar­itime, Min­ing and Ener­gy Union (CFM­MEU) for Ham­berg­er SDP to recuse him­self from con­sid­er­ing entry per­mit appli­ca­tions made by the union.

Before delv­ing into an analy­sis of this deci­sion and the broad­er con­sid­er­a­tions relat­ing to 'retweets', it is prob­a­bly worth briefly explain­ing what is meant by a 'retweet'. A retweet is defined as a re-post­ing of a tweet on the social media plat­form Twit­ter. The act of retweet­ing posts the orig­i­nal tweet to your fol­low­ers. There is a spe­cif­ic, eas­i­ly accessed func­tion on the Twit­ter plat­form for retweet­ing. A user can retweet either with or with­out addi­tion­al com­men­tary to the orig­i­nal tweet.

In the CFM­MEU case, the orig­i­nal tweet retweet­ed by Ham­berg­er SDP was by the then Min­is­ter for Employ­ment, Sen­a­tor Michaelia Cash. That tweet includ­ed the text: 'Labor gets mil­lions from the CFMEU. That's why they're against restor­ing the ABCC. Bring back the ABCC'. The tweet also con­tained an image of Bill Short­en, the Leader of the Oppo­si­tion, dressed as a crick­eter and hold­ing a bat in the air with the text, 'CFMEU notch­es up 100 mem­bers before courts. A CEN­TU­RY of SHAME', super­im­posed on the image.

The CFM­MEU submitted:

"The tweet express­ly con­veyed a mes­sage that was very crit­i­cal of the CFM­MEU. That is, the CFM­MEU should be ashamed of its con­duct, and the ALP ashamed of its affil­i­a­tion with the ALP. Fur­ther, the tweet car­ried with it the impu­ta­tion that because the CFM­MEU had mem­bers cur­rent­ly involved in legal pro­ceed­ings (as opposed to hav­ing act­ed unlaw­ful­ly), it need­ed to be more close­ly scru­ti­nised by a new reg­u­la­to­ry body."

On this basis, the CFM­MEU con­tend­ed the retweet cre­ates a rea­son­able appre­hen­sion of bias, mean­ing that, as Ham­berg­er SDP, put it:

"...a fair-mind­ed lay observ­er might rea­son­ably appre­hend that I might not bring a fair, impar­tial and inde­pen­dent mind to the deter­mi­na­tion of these appli­ca­tions for entry permits."

In reach­ing his con­clu­sion, Ham­berg­er SDP did not actu­al­ly need to grap­ple with the gen­er­al sig­nif­i­cance of retweets, but instead relied upon the fact that the retweet issue had been pre­vi­ous­ly raised in a men­tion (but not sub­se­quent­ly pur­sued) in anoth­er mat­ter on 27 July 2017:

"...since 27 July 2017, I have dealt with over 50 mat­ters to which the CFM­MEU (or its pre­de­ces­sor, the CFMEU) was a par­ty (not includ­ing Full Bench mat­ters where I was not the pre­sid­ing Mem­ber). In none of these mat­ters has there been any sug­ges­tion that I have act­ed oth­er than impartially."

Ham­berg­er SDP continued:

"I con­sid­er that this is suf­fi­cient to erad­i­cate any rea­son­able appre­hen­sion of bias in rela­tion to the appli­ca­tions cur­rent­ly under con­sid­er­a­tion. Accord­ing­ly, I have decid­ed not to recuse myself from deal­ing with these applications."

What's in a Retweet?

While a retweet gave rise to the CFM­MEU case, the gen­er­al sig­nif­i­cance of retweets did not need to be explored to deter­mine the rea­son­able appre­hen­sion of bias sub­mis­sion. It is, nev­er­the­less, a use­ful cat­a­lyst to exam­ine the issue.

The com­mon assump­tion is that a retweet is effec­tive­ly the same as com­pos­ing and send­ing the orig­i­nal tweet itself. In oth­er words, the act of retweet­ing is an unequiv­o­cal adop­tion of the orig­i­nal tweet. On that basis, if that tweet con­tains offen­sive or con­tentious con­tent, any­one retweet­ing it is uncrit­i­cal­ly endors­ing and prop­a­gat­ing that con­tent. For an employ­ee sub­ject to a social media pol­i­cy that could poten­tial­ly con­sti­tute a breach of that pol­i­cy and form the basis for dis­ci­pli­nary action.

While that com­mon assump­tion is a good start­ing point, it's not defin­i­tive. As always, pro­ce­dur­al fair­ness in such sit­u­a­tions will be imper­a­tive because an employ­ee might argue there are cir­cum­stances sur­round­ing the retweet that put a dif­fer­ent com­plex­ion on it.

There are a num­ber of such argu­ments or sub­mis­sions that might poten­tial­ly be raised:

1. The retweet was not an endorse­ment: Some Twit­ter users actu­al­ly have a mes­sage on their account pro­file stat­ing that a retweet does not nec­es­sar­i­ly con­sti­tute an endorse­ment. Some retweets are sim­ply for the pur­pose of pass­ing on an item of poten­tial interest.
2. The retweet was an act of con­dem­na­tion: Oth­er retweets are for the pur­pose of draw­ing atten­tion to a par­tic­u­lar­ly offen­sive or egre­gious tweet, with a view to draw­ing cen­sure or oppro­bri­um to the orig­i­nal tweeter.
3. Retweet and com­men­tary: As men­tioned above, the retweet func­tion enables retweets both with and with­out com­men­tary. Any com­men­tary asso­ci­at­ed with the retweet needs to be con­sid­ered. Employ­ees who are con­cerned that a retweet with­out com­men­tary might lead to a false infer­ence of endorse­ment being drawn should con­sid­er adding com­men­tary that reflects con­dem­na­tion of the orig­i­nal tweet.
4. The broad­er con­text: The con­text in which the retweet occurs, includ­ing oth­er tweets by the employ­ee and replies or com­ments to oth­er tweet­ers relat­ing to the retweet, can pro­vide an insight into the moti­va­tion behind the retweet and might be a rel­e­vant fac­tor to be con­sid­ered by an employ­er before decid­ing on any action.

While the CFM­MEU case did not end up square­ly tack­ling the ques­tion of the mean­ing of a retweet, it is only a mat­ter of time before the FWC will need to do so, most like­ly in the con­text of an unfair dis­missal case. Sim­i­lar prin­ci­ples arise from using the 'share' func­tion on Face­book, or even Twitter's 'like' func­tion (which some use as endorse­ment, oth­ers as more like a book­mark for inter­est­ing con­tent). While endorse­ment might be a start­ing assump­tion, it may not nec­es­sar­i­ly be a sound conclusion.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.