Employers may be unable to fulfil their legal duty to prevent workplace bullying under religious freedom law, say academics

This article is more than 11 months old

This article is more than 11 months old

Legal academics and the Diversity Council have warned that the Coalition’s proposed religious discrimination bill is unworkable for employers and will thwart policies designed to create safe and inclusive workplaces.

In a joint submission, the academics warn the bill’s proposed ban on workplace policies regulating religious speech would leave employers in the invidious position of having a duty under occupational health and safety laws to create safe workplaces, but being restrained in their ability to prevent bullying.

The Australian Chamber of Commerce and Industry has warned the bill does not properly define religion, meaning that Indigenous spirituality could be excluded by the common law definition while “esoteric or emerging religions” are protected.

The draft bill would prevent employers from having codes of conduct that ban religious speech in the workplace or on social media, on the grounds that such a ban would indirectly discriminate on the grounds of religion. The provision exempts large employers only if they can show they would suffer “unjustifiable financial hardship” without the rule.

The academics’ submission – coordinated by Liam Elphick and Alice Taylor and signed by Professors Beth Gaze, Simon Rice and Margaret Thornton – noted the effect of the section is that religious speech “would have greater protection from employer intervention than any other statement or expression”.

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For example, an employer with a code of conduct banning employees from publicly engaging in controversial political debates would not be able to impose the rule on a religious employee who wanted to oppose marriage equality. A gay employee, however, would be restricted from publicly supporting it.

“There are also workability issues in how an employer can factually prove that a conduct rule is ‘necessary’ to avoid unjustifiable financial hardship, considering the very high standard required to prove necessity,” the academics said.

The academics warned the clause exempting religious speech from federal, state and territory discrimination protections would create an “unworkable situation for businesses in regard to employment”.

“Work health and safety laws impose a positive duty on employers to prevent bullying, and discrimination laws require businesses to provide their services free from discrimination, yet [the exemption] would authorise bullying and discrimination,” they wrote.

Australian Chamber of Commerce and Industry (Acci) submitted that an employee’s religion, beliefs and practices “may not be readily apparent” to employers, making it “highly foreseeable” that an employer may unintentionally discriminate against them.

It proposed a defence or exemption for unintentional breaches to prevent an “unfair” legal liability.

The Diversity Council’s chief executive, Lisa Annese, said the bill “would impair organisational efforts to implement diversity and inclusion policies” and would confuse businesses.

Annese said religious people should be protected against discrimination because of their faith. “But at the same time, we know that using that faith as a reason, genuinely held or not, to discriminate against others isn’t good for inclusion,” she said.

Annese suggested the bill would create “absurd situations” where homophobic comments are protected when made by an employee of a religious background but not when made by a non-religious employee. “The only people who win in this scenario are the lawyers.”

The Uniting Church LGBTIQ+ Network also complained about the ban on employer conduct rules, warning it would have “significant unintended consequences”.

It said employees would be licensed to tell a single mother that they are “inappropriate parents” or to tell a LGBTIQ employee “they are praying for them every day that they will be made whole as a straight person”.

The network recommended the ban be scrapped or replaced with a more balanced provision recognising “employees who have gained a higher profile due to their employment do have a higher level of responsibility to their employers”.

The religious discrimination bill has been panned by the Australian Human Rights Commission and civil society groups including the Equality Campaign and Public Interest Advocacy Centre, who warn it provides greater protection for religion than other protected attributes, overrides other discrimination laws and allows medical practitioners to refuse treatment.

Even the conservative Sydney Anglican diocese has opposed the law in its current form, warning it would force Anglican youth camps to host Satanist masses at its campsites and has the “perverse effect” of encouraging companies such as Qantas to threaten to withdraw sponsorship to justify restrictions on religious speech in cases like Rugby Australia’s sacking of Israel Folau.

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On Wednesday a group of about 150 Muslim organisations called for a higher protection against vilification on the grounds of religion in the bill.

The groups noted Muslim Australians do not have the same level of protection as ethnic communities, which are protected from conduct that “offends, insults, humiliates or intimidates” based on race under section 18C of the Racial Discrimination Act.

They called for a provision to prevent conduct which “harasses, vilifies or incites hatred or violence against” another person based on their religion, arguing this would prevent violence without precluding religious debate.

On Thursday Liberal senator Amanda Stoker rejected the idea of extending 18C-type provisions to religion, which the Muslim groups did not propose. She told Sky News “you don’t want to stray into something that could end up becoming a de facto blasphemy law”.

Stoker said religious people should be protected from violence but not “fair game criticism of religious beliefs”.