In good faith: How will the Religious Discrimination Bill affect workplaces?

Michaelia Cash Scott Morrison

Attorney-General Michaelia Cash and Prime Minister Scott Morrison. Source: AAP/Mick Tsikas

The Prime Minister personally introduced a revised edition of the Religious Discrimination Bill to the House of Representatives on Thursday.

The legislation must strike a balance between protecting people to practice their faith without undermining the human rights of others, and it’s fair to say, it has attracted intense, politically charged debate throughout its drafting.

The latest iteration of the bill has ditched the “Folau clause” which proposed to stop employers from being able to prevent derogatory comments outside the workplace, and the “conscientious objector clause” which would have allowed health professionals to refuse to provide certain treatments where it conflicted with their beliefs.  

Under the bill, it will be considered discrimination where a person is treated less favourably on the ground of their religion. A new religious discrimination commissioner will sit within the existing Human Rights Commission to handle complaints. 

The legislation makes it unlawful to discriminate against another person on the ground of that person’s belief or religious activity in:

  • hiring deliberations;
  • the terms or conditions of an offer of employment; 
  • determining who to form a business partnership with; or
  • the terms or conditions on which that person is invited to become a partner in a partnership.

It also outlaws denying employees’ career progressions, subjecting employees to detriment or dismissing employees because of their religion. Among other things, these provisions will protect people from discrimination when wearing their traditional religious dress and practicing religious rituals in the workplace. 

Two controversial provisions remain in the final draft, however, that employers will grapple with when regulating their own, and their employees’ conduct.

Religious bodies may ‘generally act’ in accordance with their faith 

The Religious Discrimination Bill distinguishes between unlawfully discriminating against someone because of their religion versus lawfully preferencing someone because of their religion. 

Religious bodies will be protected from discrimination claims when they engage in conduct that a person of the same religion would reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of their religion.  The broad-brush with which the ‘engage in conduct’ provision is painted is of serious concern to human rights advocates. Champions of women, people with disability, LGBTIQ+ people are troubled by the notion that what is classed as discrimination pre-bill, will be classed as a statement of belief post-bill. 

The bill specifically permits religious bodies to preference persons of the same religion. Schools, hospitals, aged care homes, accommodation providers and disability service providers can lawfully preference specific religions when making hiring and firing decisions. 

An important caveat for religious bodies that are educational institutions is that conduct will only be non-discriminatory if made in accordance with an existing policy. Any such policy must: 

  • outline the body’s position in relation to particular religious beliefs;
  • explain how its religious position will be enforced; and 
  • be publicly available at the time the employment opportunity becomes available. 

Statements of belief

The most polarising feature of the bill is the ‘statements of belief’ provision. Where an employee expresses a religious belief they genuinely hold, that statement will not constitute discrimination under anti-discrimination legislation, including the Sex Discrimination, Racial Discrimination and Disability Discrimination acts. 

If passed, the legislation will create serious dilemmas within secular workplaces.

What if an employee’s statement of belief takes aim at the characteristic of a fellow employee’s sexuality? In such situations, an employer would ordinarily have cause to dismiss the employee, particularly where they have offended, demeaned or humiliated another employee. Employers have general workplace protection duties, including to protect employees from adverse action and discrimination. 

But where a comment would classify as a statement of belief, an employer must consider the dismissal potentially being classed discriminatory under the new laws, creating potential exposure to an unfair dismissal claim or a complaint to the commissioner. 

The government’s solution to such dilemmas is that any statement or conduct must be done in “good faith”. A statement of belief will not be protected by the bill if it is malicious, or considered to threaten, harass, intimate or vilify. Determining the subjective mindset of the employee who made the statement, and whether they were indeed acting in good faith, will prove to be a difficult task for employers.  

Employers will need to consider developing policies that reconcile the conflicts posed by the bill and nurturing healthy, respectful and inclusive workplaces.

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