By Nicola Martin (Principal) and Samantha Beattie (Law Graduate) of McCabe Curwood.
On 29 August 2019, the Federal Government released an exposure draft of its proposed Religious Discrimination Bill for public submissions (the Bill). The Bill seeks to establish a Commonwealth Act prohibiting religious discrimination.
The Explanatory Memorandum to the Bill states:
“This Bill will introduce comprehensive federal protections to prohibit discrimination on the basis of a person’s religious belief or activity in a wide range of areas of public life, including in relation to employment, education, access to premises, the provision of goods, services and facilities, and accommodation. This will ensure that all people are able to hold and manifest their faith, or lack thereof, in public without interference or intimidation”.Protected “religious activity” is not specifically defined in the Bill but the explanatory note states that “expression of a religious belief” may be included.
In a similar vein to current Commonwealth discrimination legislation concerning race, sex, age and disability, the Bill prohibits both direct and indirect forms of discrimination as well as victimisation.
Direct discrimination will occur when a person treats, or proposes to treat, another less favourably than someone who does not hold the religious belief in circumstances which are not materially different. Indirect religious discrimination will occur in circumstances where a condition, requirement or practice is broadly imposed which is either unreasonable or disadvantages a person on the basis of their religion.
The draft Bill has its origins in the Religious Freedom Review headed by Phillip Ruddock. The review was established following debate surrounding the 2017 same-sex marriage legislation, wherein religious groups expressed their concerns that the legislation would prevent them from voicing their beliefs.
Advocates of the Bill argue that it provides much needed protections against religious discrimination in Australia, in line with the other Federal anti-discrimination laws already in place. The Bill will also consolidate the current piecemeal religious discrimination protections offered in some State and Territory legislation and give credence to Australia’s obligations under the International Covenant on Civil and Political Rights.
However, those opposed to the Bill argue that the current legislative framework is sufficient, and that the Bill gives religious groups protections to lawfully discriminate against others. The latter argument is oft-cited, given the Bill’s origins during the same-sex marriage debate. Further, in light of Israel Folau’s unlawful termination claim (which we discussed in an earlier article) others have argued that the proposed legislation seems specifically tailored to providing those in a similar position recourse under Federal anti-discrimination legislation.
What does the Bill mean for employers?
Should the Bill be passed, and subject to any amendments arising from the public consultation process, it will have a number of impacts upon employers. Private company employers with revenue of at least $50 million in the current or previous financial year, will be most impacted by the legislation.
Section 8 of the Proposed Act, dealing with indirect discrimination, contains a prohibition on private company employers with revenue of at least $50 million in the current or previous financial year, imposing an “employer conduct rule” which prevents an employee making a statement of belief outside of work. The imposition of any such conduct rule will be held to be unreasonable and discriminatory and will not be considered an inherent requirement of someone’s employment to be a justified form of discrimination. The Bill defines an employer conduct rule as a “condition, requirement or practice imposed by an employer on their employees or prospective employees, which relates to dress standards, appearance or behaviour of employees.” Such a condition might be imposed by an employer in a company policy document.
While the Bill provides that an employer can impose such a condition if it is necessary for them to avoid “unjustifiable financial hardship”, this is a very high bar. In proving this, the onus will be on the employer to demonstrate that the condition is necessary.
Notwithstanding, the prohibition against discrimination will not be imposed in circumstances where the statement of belief is malicious, or would harass, vilify, or incite hatred towards another person or group of persons, or would encourage conduct constituting a serious offence.
If the proposed legislation was in force, in cases such as Israel Folau’s, Rugby Australia’s Player’s Code of Conduct may have been held to be discriminatory and unreasonable unless they could prove the following:
- the conditions imposed in the Code of Conduct were necessary under the “unjustifiable financial hardship” exception;
- the post was made whilst Folau was performing work on behalf of Rugby Australia; or
- the post was malicious or would (or was likely) to harass, vilify or incite hatred or violence towards homosexuals.
Accordingly, in applying the “employer conduct rule” provisions to the Folau case, it seems that the proposed legislation could render broadly worded company social media policies discriminatory.
As with other Federal anti-discrimination legislation, employers may be liable for the actions of their employees in contravening the Bill unless it can be demonstrated that the employer took reasonable precautions and exercised due diligence to avoid the discriminatory conduct. Accordingly, it would be prudent for employers to implement programs educating staff about religious tolerance in the workplace in order to limit their liability.
Whilst still in its early stages, the Bill has the potential to restrict the ability for certain employers to influence employee conduct when they are not “performing work”. Moreover, the Bill will bolster the adverse action prohibitions in the Fair Work Act relating to discrimination on the grounds of a person’s religious beliefs. Since the Bill was released, the Australian Industry Group has called for an overhaul of the draft law before Parliament votes on the legislation. This overhaul is on the basis that businesses need to be able to maintain workplace standards of conduct, and to impose reasonable rules on employees using media platforms, “to prevent their reputations, their brands and other legitimate commercial interests being damaged”.1
Accordingly, we will be watching the progression of the Bill with interest, and if passed, will be recommending that companies review their codes of conduct and associated policies to ensure that they are not at risk of infringing the employer conduct rule provisions, or otherwise allowing for indirect discrimination to occur.
1 John Kehoe, ‘Business Fears Israel Folau Religious Freedom Law‘, Australian Financial Review (Article, 12 September 2019).
This article was originally published on the McCabe Curwood website and has been reproduced with permission.