Speaking with My Business sister brand Lawyers Weekly, Swaab employment law partner Michael Byrnes said that even if the second exposure draft of the Religious Discrimination Bill is ultimately enacted, religious employees “should be circumspect”.
“There will still be scope for employers to address workplace proselytising that is disruptive or harasses or bullies other employees. The provisions do not give employees of faith carte blanche in relation to religious expression, particularly during working hours,” he explained.
“Much like the way in which terms such as ‘harassment’, ‘bullying’ or ‘WHS issue’ are sometimes wrongly cited by employees in bad faith to pursue a particular agenda or collateral purpose, the same will undoubtedly occur from time to time with ‘religious discrimination’.”
On the question of whether the second draft of the bill gives rise to any new powers or freedoms for employers, or religious persons within workplaces, to express their views without consequence, Mr Byrnes said this draft is “not materially different from the first draft” in this regard.
“For [employers], there might be concern about indirect discrimination arising from the imposition of a condition that disproportionately disadvantages religious employees. This could include restrictions on expression (such as social media posts) designed to promote diversity and respect in the workplace and protect the reputation or brand of the employer. The employer will need to show that the imposition of such a restriction on an employee is reasonable,” he said.
“For some larger ... employers (with a turnover of over $50 million), the specific restriction on imposing an employee conduct rule which would have the effect of restricting or preventing employees from making a ‘statement of belief’ will almost certainly lead to a review of social media policies and codes of conduct to ensure they don’t breach the restriction.
“Such employers will not be able to rely upon the reasonableness test for an employee conduct rule, instead needing to rely on a very narrow, hard to prove ‘unjustifiable financial headship’ exception. If the bill is enacted that exception will likely become a dead letter; it should be revisited.”
As a general proposition, Mr Byrnes continued, many employers’ social media policies are “too broad”, purporting to regulate private expression of employees even when there isn’t a clear nexus between that expression and the legitimate interests of the employer.
“If enacted, the restrictions in the bill might serve as a catalyst for a closer examination of the terms of social media policies and the circumstances in which they are applied.”
When asked how employers can ensure that the beliefs (or otherwise) of all employees are adequately accommodated for, Mr Byrnes said employers will “likely need to revisit relevant policies and codes of conduct and, even more significantly, provide training and constructive practical guidance to employees on the effect of the religious discrimination protections, much like training is presently conducted on anti-discrimination and sexual harassment”.
Moreover, they maintain a broader duty to ensure that all employees are safe in the workplace, he added.
“[This can be done] by reinforcing the importance of collegiate conduct and mutual respect and understanding, as has happened with managing issues relating to discrimination on the basis of other currently protected attributes such as gender, age, disability and sexual orientation,” he concluded.