The Federal Government is on track to introduce religious discrimination legislation in 2020, with a second exposure draft of its Religious Discrimination Bill introduced in parliament in late December 2019.
The Bill adopts the general objects, protections and prohibitions contained in similar Federal anti-discrimination laws such as the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act, with some alterations to reflect the distinct nature of ‘religious belief or activity’ as a protected attribute.
Amongst other things, the Bill will (if passed):
- protect and promote the right of religious freedom in Australian public and private sectors
- make it generally unlawful to discriminate against a person on the basis of their religious belief or activity, or because they have or do not have a religious belief, or because they do or do not participate in a religious activity
- introduce a Freedom of Religion Commissioner at the Australian Human Rights Commission
- contain specific provisions relating to discrimination in the context of employment including ‘carve-outs’ such as the right to discriminate against a person on the grounds of religious belief or activity in employment if they are unable to carry out the inherent requirements of that employment or in order to preserve the ‘religious ethos’ of the employer
- extend exemptions beyond purely religious institutions so as to cover any entity with a religious affiliation such as educational institutions, charities, hospitals, aged care providers, and other public benevolent institutions, and protect them from discrimination claims whenever they take actions “to avoid injury to the religious susceptibilities of adherence of their faith”
- provide protection against direct and indirect discrimination, the latter making it unlawful to take notionally neutral actions which may nevertheless disadvantage a person because of their religious belief or activity – for example, it may be discriminatory to require a Jewish employee to only work on a Friday evening or on a Saturday
- prohibit employers from imposing rules or instituting policies that interfere with an employee’s religious beliefs and practices where the rule or policy applies “other than in the course of the employee’s employment”
Action Items:
Although changes may still be made to the Bill and it is yet to be passed, employers (especially those with religious affiliations) should review their policies and Codes of Conduct to ensure that they do not infringe on an employee’s religious freedoms outside of the context of the employee’s direct duties. If you require any assistance or advice, please contact our Employment & Workplace Law Team.
