Following the Marriage Equality debate and the ongoing Israel Folau saga, the issue of religious freedom has been given some prominence. The Australian Government has released what it describes as ‘religious freedom reforms’ on which it is actively seeking submissions. The proposed reforms will undoubtedly be the subject of much political and legal discussion in the coming months. Here are some initial observations.
Key Points
- The Religious Discrimination Bill (Bill) seeks to extend religious freedom by protecting against discrimination on the basis of religion belief or activity. The Bill also protects against discrimination for not holding a religious belief; so being atheist or agnostic (and activities associated with that).
- The Bill prohibits discriminatory conduct in a range of areas including employment, education, access to premises, accommodation, sport, and goods, services and facilities. (This brief article will focus on employment.)
- The Bill is largely modelled on other Commonwealth discrimination legislation such as the Age Discrimination Act, Sex Discrimination Act and Disability Discrimination Act.
- It covers both direct and indirect discrimination.
- The complaint process is the same as for claims brought under the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act — a claim is initially brought before the Australian Human Rights Commission and, if the complaint can’t be successfully conciliated, the complainant may then proceed to either the Federal Court or Federal Circuit Court.
- Interestingly, there is also, in effect, an additional restriction on ‘large businesses’ (with a turnover of over $50 million) in relation to the imposition of an ‘employee conduct rule’, that is a rule which would have the effect of restricting or preventing employees from making a ‘statement of belief’ at a time other than when the employee is performing work. A large employer will not be able to use the ‘reasonableness’ defence to indirect discrimination arising from the imposition of such a rule unless it can demonstrate that compliance with the rule is necessary to avoid ‘unjustifiable financial hardship’. Further, if the imposition of the rule is not considered ‘reasonable’ then the employer will also not be able to rely upon the ‘inherent requirements’ exception.
Initial Observations
- In the context of employment, the Bill represents a significant increase in religious protections presently provided, particularly when compared to section 772 of the Fair Work Act (unlawful termination of employment on the grounds of religion), upon which Israel Folau is relying (and which, in my view, will be unlikely to provide him relief).
- Given the nebulous nature of belief systems and faith, precisely what constitutes a ‘religion’ can be a vexed issue. It is not defined in the Bill. As such, the High Court decision in Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120, which adopted a broad approach, will be instructive. That might present a challenge for employers dealing with employees who assert their belief in an esoteric or emerging religion, the bona fides of which are yet to be established.
- The Bill also protects ‘religious activity’ – this could be something of a minefield to navigate. It is not defined in the Bill. Even religious groups have their own disagreements (and sometimes more serious internecine disputes) as to whether a particular activity or practice is religious or cultural. Expert evidence may need to be called in some situations
- The ‘inherent requirements’ exception will address the classic situation of the employee who can’t work on certain days or undertake particular tasks (or perform them safely) due to their religious beliefs. This exception, which applies in other areas of discrimination law in the context of employment, is interpreted narrowly — it needs to be ‘something essential’ or an ‘essential element’ of the position.
- The restriction on employee conduct rules in respect of a ‘statement of belief’ made when the employee is not ‘performing work’ is likely to generate significant discussion. There has been some disquiet and debate about the intrusive nature of some employer codes of conduct in respect of various types of private expression (including religious and political statements). Some of these codes do undoubtedly overreach, purporting to regulate private conduct outside the prerogative of the employer to give a ‘lawful and reasonable direction’. There is, however, already a body of Fair Work Commission case law (much of it based on the decision on out of hours conduct in Rose v Telstra Corporation Limited (1998) AIRC 1592)) which defines the proper limits of such policies or codes.
- The imposition of such a restriction is only protected if it imposes ‘unjustifiable financial hardship’ on the employer if employees do not comply. That is a high bar for the employer to reach, particularly given the restriction only applies to ‘large businesses’ which, by definition, will need to show that non-compliance by employees will have a bigger impact than it would on smaller enterprises. The relevant test, however, relates to the effect of non-compliance by employees generally, not just the employee or employees alleging discriminatory treatment.
- The conduct rule restriction in the Bill seems to be a bespoke response to the Israel Folau situation. That begs the question as to how that restriction would have impacted the Folau (or a similar) situation.
- The first issue that arises is whether the relevant conduct (the Instagram post) occurred while ‘performing work’. At first blush, it seems unlikely that it was. Lawyers for Folau contend it was in a private capacity and not connected to his work as a professional rugby player. The post was, however, made on an Instagram account that was, at the relevant time, verified (presumably on the basis of his status as a rugby player) and which contained some content related to his rugby career. Of particular relevance would be the question of whether posting to a verified social media account is the performance of work. If it is accepted that the work of a professional athlete is not limited to the playing field, then as a corollary an argument would be open that it extends to the performance of marketing or associated promotional activities relating to the sport, such as posting on social media.
- The next issue is whether the post involved was malicious or would, or be likely to, harass, vilify or incite hatred or violence against another person or group of persons. Given the intent of the Bill, and formulation of this test, a statement of belief would likely need to be particularly egregious to fall foul of this provision.
- If it was accepted the statement did not occur while performing work, then the question arises whether employees not complying with the restriction would impose ‘unjustifiable financial hardship’. In the case of a sporting organisation, this would require evidence of substantial loss of sponsorship or other revenue as a result of employees acting in breach of the restriction. While sponsors will sometimes express generalised views on such matters (no doubt being careful about the possibility of accessorial liability under the Fair Work Act), query to what extent they will be willing to provide admissible evidence in such a dispute. While loss of sponsorship might seem axiomatic a court will require cogent evidence of the extent of such loss.
- Finally, the right of employees to make private statements of religious belief contrasts with the strict restrictions on public servants expressing political opinions on social media in a private capacity, as recently upheld in the Banerji decision. That contrast might lead some to ask why freedom of political expression is seemingly less important than freedom of religious expression.
The Bill will no doubt be the subject of a vigorous debate in the coming months, one all employers should follow closely.
