FCW Lawyers

Out of Work Jokes About Bosses and COVID-19 Award Variations Over


Out of Work Jokes About Bosses – Don’t be too precious!

26 May 2020

There is abundant authority that out of work conduct that breaches a workplace law (such as discrimination, bullying etc) or otherwise, damages the business or offends an employee and identifies the business, can be the basis for disciplinary action. But the Courts and FWC have repeatedly warned employers to not be too precious. People are allowed to have a bit of fun, poke jokes at their bosses’ expense and criticise the business between themselves, in some decisions referred to as ‘Pub Banter’.

In the recent case of BP Oil Refinery v Tracey, The Full Bench of the Federal Court of Australia (FBFCA) made it plain there is a big difference between the criticism of the other parties position and conduct in an industrial dispute (itself a robust undertaking) and targeted disparagement of an individual. It held that Mr Tracey’s use of a scene from the famous movie Downfall (where Hitler acts in an agitated and aggressive manner when told by his Generals he had just lost the Second World War) with captions satirically mocking BP’s position in the EA negotiations, was not offensive and in breach of its Code of Conduct. It held that the meme was broadly distributed and utilised by many to make jokes about different circumstances. Interestingly BP never called as a witness, the employee of BP they said it offended and FBFCA said any suggestion of offence without such evidence was fatal.


  1. As an employer, don’t take yourself too seriously. Being thin-skinned creates a very vulnerable culture and means your employees won’t respect you
  2. Before you commence an action (BP started in the FWC, ended up before the Full Bench of the FWC and then sought relief before FBFCA – costing hundreds of thousands of dollars) – google the meme. See its prevalence and use.
  3. The above case reinforces that conduct that does individually target a person in the opposing camp is unlawful. The Unions whilst boasting this case is authority that says it is ‘ok to take the piss out of your employer’, do be  warned. The FBFCA says that targeting a specific person is not on – a tactic often deployed by the Unions and their employee delegates!

COVID-19 Award Variations Over

Employers are refocussing their efforts on business rather than the cumbersome and expensive process of gaining Award variations for COVID-19. Large law firms and retailers have stepped away from Award variation applications, no doubt driven by the FBFWC’s refusal to make lengthy changes and playing wait and see with the recent Fast Food variation.

It is unlikely we will see more applications as the economy and employers ready themselves for relaunch.

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce. Please contact Andrew Douglas at andrew.douglas@fcwlawyers.com.au or on 0488 151 503.

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