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Australia is a secular country with a good record of religious freedom. Despite this, the issue of religious discrimination in employment has some controversy. You may have heard the discussion about the recent Religious Discrimination Bill. This article will provide you with a brief overview of the relevant laws.
The Nuances of Religious Discrimination in Employment Law
There are several laws which protect religious freedom in Australia.
s351 of the Fair Work Act 2009 protects employees from adverse actions on the basis of religion. Adverse action includes :
- Dismissing an employee
- Injuring the employee in the course of their employment
- Altering the employee’s position to their prejudice
- Discriminating between the employee and other employees of the employer
Thus, the act prohibits adverse action on the basis of religious discrimination.
You may be asking: What’s the catch? In fact, there are several exemptions to the act. Discrimination under the section does not apply if:
1. A Practice Prevents You From Completing the ‘Inherent Requirements’ of a Position
An element of religious practice may prevent you from doing the ‘inherent requirements’ of a job. It is not unlawful to refuse employment on that basis. For example, a religious garment you wear may not work with safety equipment. In this instance, it may not be considered discrimination to refuse you employment.
The court of law views ‘inherent requirements‘ as a subjective test. This means that the definition can vary from case to case. Generally, you should try to determine whether something is essential to a position, rather than an addition to it.
Let’s take the example of a religious rest day which stopped you from working a certain day of the week. If your work can be easily rescheduled, your attendance will not serve an ‘inherent requirement.’
In this instance, it would be unlawful to dismiss you on that basis.
2. Adverse Action Is Taken in Accordance With a Particular Religion
ss2(b) provides powers to religious organisations to reject employment on the basis of religion. ‘Good faith’; and ‘to avoid injury to the religious susceptibilities of adherents of that religion or creed’ serve as the legal tests. Simply, if you work for a religious group and harm their religion, you can be dismissed. In the past, church employees have been dismissed for marrying same-sex partners or for being un-‘templeworthy.’
3. Adverse Action Is Permissible Under Any State or Territory Anti-Discrimination Laws
ss2(a) limits s351’s operation in states where the discrimination is not unlawful. States such as NSW have no legal provision for religious discrimination. In these states, s351 would not apply. In this instance, you should seek the remedy of unlawful termination under s772(1)(f) of the Fair Work Act.
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Get startedWhat if I Have to Take a Religious Holiday?
Can an employer discriminate an employee who needed to observe a religious holiday? Fair Work strongly recommends employers to make allowances. Hence, employers should let you use your leave for religious holidays. Similarly, they should agree to flexible working arrangements.
Where Do I Take a Claim of Religious Discrimination?
In conclusion, it is usually in employers interests to agree with your religious requests. Notably, allowances with religion in the workplace are likely to contribute to your productivity in the workplace. Be sure to have a conversation with your employer about arrangements they can make to accommodate your religious practices.
Lastly, this paragraph will explain what to do if you ever do encounter religious discrimination:
Firstly, you can make an enquiry with Fair Work where you can advance a claim. Or, you can make a free complaint at the AHRC. Both avenues allow for resolutions ranging from reinstatement to compensation.
Finally, if you wish to seek guidance we recommend that you get advice from our lawyers.
