Australian workplaces reflect the cultural diversity of our nation. Within your practice, you may have employees of varying religious and cultural beliefs all working together. Sometimes it may not be clear what is acceptable regarding the practice or assertion of someone’s religious belief while they are at work. You can minimise the risk of an adverse action claim based on religious discrimination by understanding the discrimination laws that apply to your practice. What is the law? The Fair Work Act states that it is unlawful for employers to discriminate against an employee based on religion. Religious discrimination refers to any adverse action taken against an employee because of his/her religion, and can include not hiring someone, treating an employee less favorably than other employees, or terminating an employment contract.
When is discrimination based on an employee’s religion? A word of caution for employers
The Fair Work Act does not provide a definition of what is meant by ‘religion’. Does it mean someone’s beliefs? attitude? religious attire? It is left for the anti-discrimination and equal opportunity laws in each state and territory to detail what constitutes discrimination based on someone’s religion. Employers should educate themselves on how the laws of their state and territory define religious discrimination in the workplace as this definition varies depending on which state their practice is based.
To assist, here are a couple of examples:
In Victoria ‘religion’ refers to both religious practise and belief
In Victoria, employers cannot discriminate, both directly and indirectly, against an employee based on either their religious belief or practise. For example, it would be discrimination for an employer to decide not to hire someone because they are a Muslim.
An employer in Victoria also cannot discriminate against an employee who chooses to participate, or not participate, in a lawful religious practise while they are at work. For example, an employee may wish to take time off for prayer breaks during the day. If the employer made a rule for all employees that they could not take more than one scheduled break during their working day, this may have a far greater negative impact on that employee. The law indicates that the employer would be required to allow the employee prayer breaks, unless the employer can show that doing so would create an unreasonable negative impact on the practice.
Tip: You could allow an employee to take a scheduled work break in order to have a prayer break and negotiate altered work hours if necessary. As an employer, you may also wish to consider having a ‘quiet room’ for employees to be used as either a reflection, meditation, or prayer room, that can be accessed by all employees.
In New South Wales ‘religion’ must be connected with an ethno-religious group
Practices in New South Wales should be aware that the Anti-Discrimination Act does not include ‘religion’ as a distinct ground for discrimination in the workplace. Rather, an employer cannot discriminate, both directly and indirectly, against an employee based on their ethno-religious background (as part of racial discrimination). Religious discrimination in New South Wales requires that the religion of the employee be an important aspect of their ethnicity. This is more likely if the ethnic group has a particular religion that is exclusive to them, such as Sikhs. South Australia Equal Opportunity laws in South Australian specifically prohibit discrimination against an employee for wearing religious clothing or adornment. This could include asking an employee to alter their appearance or remove their religious dress. The exception to this would be in cases where the religious clothing or adornment would create a safety hazard in the workplace. For example, a female employee in the practice may wear a head scarf as part of her religion. The employee would be entitled to wear the head scarf unless doing so posed a safety risk. This may occur if the employee was required to operate machinery in the practice where any loose clothing could become caught in the machinery and the By Rebecca Hyde, Workplace Compliance Advisor at ClinLegal. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).
RELIGION IN THE WORKPLACE: What can employers do? © ClinLegal 2014 headscarf could not be pinned to prevent it from becoming loose.
Tip: Ensure that your workplace policies in regards to workplace attire are flexible enough to allow for accommodation of religious practises, beliefs, and associated clothing. What can you do? Varying laws can be confusing for employers. If in doubt, employers should aim to take a common sense approach: • When considering filing employment vacanices in the practice, place merit and suitability for a position based on professional conduct and experience, rather than appearance or personal beliefs. • Ensure that all workplace rules apply equally to all employees and ensure that rules do not indirectly discriminate against certain employees. • Promote a healthy and inclusive work place culture and consider being flexible in workplace arrangements when appropriate.
For further information or advice, contact us at firstname.lastname@example.org or visit www.clinlegal.com.au