Collectively, the Australian Industry Group, the Australian Chamber of Commerce and Industry, and Employsure have labelled the Morrison government’s draft religious freedom laws as , ‘unworkable’, and ‘unfair.’
The draft Federal Government religious discrimination laws would make it discriminatory for a large employer with a turnover of over $50 million or more to stop their employees expressing their personal beliefs – unless they can prove it would cause financial damage to their brand. The issue has been thrust into the spotlight with the ongoing case between controversial rugby player Israel Folau and Rugby Australia.
Attorney-General Christian Porter released the draft legislation last month after consultation with religious groups, following an election pledge to protect Australians from religious discrimination. Mr Porter said the rationale for this provision on larger businesses is that it halts businesses trying to dictate what their employees say outside work hours, which he argues is a restriction on free speech.
However, business group representatives have expressed strong concerns over the application of the proposed law, it’s interpretation, and its wider implications.
The AIG group has prepared a written submission to remind the government of the legal obligations for business to prevent bullying and other behaviour which could affect mental health. “Employers also need policies to address out of hours conduct that has a sufficient connection with the workplace,” the group argued.
The draft bill was “unbalanced, unworkable and unfair upon employers”, as well as being inconsistent with existing workplace laws, the AIG said.
Senior Employment Relations Adviser at Employsure, Michael Wilkinson, echoed Mr Willox’s sentiment saying the laws would be challenging, arguing, “It will be near impossible for large businesses to satisfy the proposed exemption relating to financial hardship. Most businesses of that scale would be extremely reluctant to argue financial hardship due to the practical market and PR consequences of doing so.”
Mr Wilkinson further raised concerns about the implications and applications of the proposed religious freedom laws. For example, “If a large business implements a code of conduct restricting workers’ statements of belief, their dress, appearance or behaviour it must show that the restrictive code is necessary to prevent financial adversity. This provision does not apply to small businesses and raises questions about whether the legislation could result in such businesses being held to the same standard over time.”
Also problematic according to Mr Wilkinson is the ambiguity on key elements such as, “What is meant by religious belief or activities, but it is intended to provide protection for all expressions of religious beliefs and activities such as prayers and fasting, the commitment to wear certain garments such as head-coverings, and evangelising or seeking to persuade others to follow creed.”
The Australian Chamber of Commerce and Industry has put forth views that the definition of “religious belief or activity” is required to be clarified. The clarification comes forth from concerns that Indigenous spirituality may not be afforded the same legal protection as “esoteric or emerging religion, the bona fides of which are yet to be established”.
Equally, Mr Wilkinson suggested it would be necessary to have a “reasonableness” test in cases of indirect discrimination on religious grounds which should ensure complaints are not frivolous.
Expressing strong concerns that the legislation would over-ride existing state anti-discrimination laws, Mr Wilkinson said, “In effect, the proposed laws are flawed and impractical. This is just another case of unnecessary red tape – various protections exist protect employees from discrimination in the workplace and outside the workplace. Is another law really needed?” he asked.
Mr Willox also appeared to prefer ditching the laws all together, saying: “There are already comprehensive protections in place to protect religious freedoms.”
According to the Sydney Morning Herald, the government hopes to pass the laws through Parliament by the end of the year.
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