Fears of complexity and conflict lie behind fault-finding submissions from the Australian Council of Trade Unions (ACTU) and the Australian Industry Group (AIG).
If you can get the ACTU and the AIG to wholeheartedly agree that you’re wrong about an industrial relations issue, you have done something out of the ordinary. If you can also get the Catholic Church, Victorian Labor, the Anglican Church, Amnesty International and many more organisations to add their criticisms then you have done something truly rare.
That is what the government has managed with its draft versions of the Religious Freedom Bills, particularly the Religious Discrimination (RD) Bill.
Of course, it’s very normal for there to be pushback against proposed laws. Attorney General and Minister for Industrial Relations Christian Porter has said the drafts are a starting point and that the government will take all submissions on them seriously. But, considering the government wants to pass legislation by the end of the year, he must have hoped to have begun with more concord.
While some religious institutions’ complaints are focused on the law not being broad enough, the ACTU and AIG have quite similar submissions that argue something closer to the opposite.
As you might expect from these particular bodies, the tone of the former’s submission (hosted by Workplace Express) to the government is a lot more combative and the latter’s more conciliatory. But the upshot of both is the same. They agree in principle with protecting people from religious discrimination, but they think the laws as they are currently written would do more harm than good.
Perhaps the strongest arguments they present are around unnecessary legal complexity and an increased chance for workplace conflict and disharmony.
The new religious freedom laws are entering the opposite of a legal vacuum. There are five federal statutes that prevent discrimination based on religion, numerous state laws and anti-discrimiation provisions in the Fair Work Act.
Both the ACTU submission and AIG submission make note of the existing structure and question the utility of adding these laws to it. The ACTU at one point suggests smaller adjustments to existing anti-discrimination laws would be more effective than the religious freedom bills.
Both submissions are also worried about the confusion caused by terms in the RD Bill with too broad a definition (or no definition at all).
- ACTU: “A ‘statement of belief’ is defined broadly in s5 of the Bill, and includes any statement that ‘may reasonably be regarded as being in accordance with the tenets of a religion.’ This would seem to cover statements which are not actually in accordance with the tenets of a religion, but which may be regarded as being so.”
- AIG: “The concept of a ‘religious belief or activity’ is not defined in the Bill. It is broad and uncertain and this is problematic for employers.”
Both AIG and ACTU make specific mention of how the laws might unravel a lot of organisations existing attempts to craft diverse and inclusive workplaces. The latter is concerned about the possibility that religious bodies would have wider scope to discriminate against workers and that, in trying to adhere to the new laws, businesses might have to forgo protecting other groups from discrimination.
“It would be deeply concerning and counterproductive if organisations were discouraged by these laws from developing policies promoting non-discrimination and equality at work.”
Both the ACTU and AIG are concerned about the potential for increased workplace conflict.
As it stands, the RD Bill prohibits ‘indirect discrimination’. Here is the relevant section:
(1) A person discriminates against another person on the ground of the other person’s religious belief or activity if:
(a) the person imposes, or proposes to impose, a condition, requirement or practice; and
(b) the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons who have or engage in the same religious belief or activity as the other person; and
(c) the condition, requirement or practice is not reasonable.
The law specifically prohibits an employer with revenue over $50 million from making an employee conduct rule that “would have the effect of restricting or preventing an employee of the employer from making a statement of belief at a time other than when the employee is performing work on behalf of the employer”.
AIG identifies two problems with this.
- Existing laws outline how employees can be “at work” even as they are not “performing work” – such as during authorised meal breaks.
- Some statements of belief can actually be quite contentious. As AIG writes: “Some religious beliefs (including non-religious beliefs) under the RD Bill’s broad definition include opinions and behaviours that conflict with other religious beliefs, promote their own religious beliefs over others or contemplate dire consequences for persons who do not hold a particular religious belief.”
A statement that is “malicious” or “that would, or is likely to, harass, vilify or incite hatred or violence against another person or group of persons” is not covered, the law says. Nevertheless, you can see the situations AIG might be worried about.
Imagine a scenario where a religious adherent explains to agnostic colleagues at lunchtime that, according to her beliefs, their lives are evil and they are doomed to suffer eternal torment. Or where a devout man tells his female co-workers that women should not work and should only wear certain things in public. Since the law is intended to capture beliefs “such as atheism and agnosticism”, you should also imagine a scenario where an atheist disparages religion in front of religious colleagues.
In every one of these examples employers operating under these new laws would have to be very wary with how they treated the employee.
What does it mean to be malicious, or harass or vilify, in the context of talking about your personal beliefs? Not only do many religious texts have something negative to say about non-believers, the law as it stands doesn’t require your behaviour be theologically sound. It only requires that your words “may reasonably be regarded as being in accordance”. You don’t have to look further than the Folau controversy to realise how contentious this sort of thing gets.
Complicating matters further, AIG notes, is the fact that employers have legal obligations to prevent behaviours that adversely impact the mental health of employees. How will this obligation operate if any of the above examples were to take place? It raises the prospect that employers would be damned if they try to stop the behaviour, and damned if they don’t.
Both groups are also concerned about how the laws would interact with existing laws around when and where a company is liable. Workers’ compensation laws and the Sex Discrimination Act both allow employers to be held liable for things that happen outside of the workplace, outside of work hours (at Christmas parties, for example).
What will the final version be?
For its part, AIG wants the bills changed. Particularly it asks for three provisions to be removed from the RD Bill.
- The statement of belief provisions.
- The indirect discrimination provisions. Because, amongst other things, “Employers may only become aware that they have indirectly discriminated against a person(s) on the grounds of religious belief, after the condition, requirement or practice has been implemented.”
- The reverse onus of proof. This requires a business to prove that its policies are reasonable, rather than a complainant prove they’re unreasonable. “Given the broad and subjective nature of a religious belief that may not be known or articulated to an employer and the wide ability for employees to resist complying with employer conditions, requirements or practices, the reverse onus is inappropriate and unfair,” writes AIG.
It has to be said that removing these provisions, as opposed to adjusting them, really does tear the teeth out of the proposed laws. So the AIG position is not too different from the ACTU’s, which is, “The government should withdraw these bills and commence a proper process to consider the effectiveness of Australia’s human rights and anti-discrimination law regime as a whole.”
Given the broad coalition of organisations that are against the bills as they stand, it’s highly likely the drafts we have seen are very far from the final versions. So it will be interesting to see what changes the government makes to address what appears to be a rare example of employer groups and unions seeing eye to eye.