Balancing the Act: ADCQ newsletter -

Religion as a ground for discrimination

This article 'Religion as a ground for discrimination in the award review' by Jenny Hughey, Acting Deputy Commissioner, first appeared in Balancing the Act , Issue 11, March 2001, page 4.


As part of the Commission's participation in the Award Review Project the Acting Deputy Commissioner prepared the following for members of the tripartite working group (members include employers, unions and government).

Introduction

The issue of religious discrimination in the workplace is one of significance for members of the tripartite working group. In particular the issue of how parties might deal with discrimination on the ground of religion during the award review process and in practice is important.

Direct discrimination

Both direct and indirect discrimination on the ground of religion are unlawful under the Queensland Anti-Discrimination Act 1991 . Direct discrimination occurs when someone treats a person with a particular religious belief less favourably than they would treat another person without that religious belief.

Direct and indirect discrimination are prohibited on the grounds of religious belief and religious activity in employment and work, including partnerships, professional, trade or business organisations, qualifying bodies and employment agencies; education; provision of goods and services; buying and selling land; accommodation and club membership. Queensland has the widest coverage of all the Australian legislation, applying also to superannuation, insurance and the administration of State laws and programs.

Examples of discrimination

Amy had just left school and applied for work at a local supermarket. She had an interview and was asked when she would be able to work. She stated 'Anytime, except on Friday night and Saturday', her Sabbath. She heard later that the only reason she hadn't been successful was because she was unwilling to work on Saturday.

Jack worked at a mining operation that works 24 hours 7 days per week. He didn't want to work on the Sabbath (Saturday) but seeing he needed work he agreed to do so. After a period he couldn't live with his conscience and so he resigned. He also believed the administration would not have been willing to accommodate his convictions.

Indirect discrimination

In a case in Victoria ( Fox v Canberra Television Pty Ltd. VCAT, 26 Nov 1999 Tribunal No A328 of 1999 ) the hearing tribunal refused to issue an interim order to prevent a Manager being dismissed if he did not work on Saturdays. The man claimed that his religious convictions prevented him working on Saturdays. The employer claimed that due to financial difficulties it had reduced staff and employed only one person in each of its stores who were required to work on Saturday mornings. In this case the Tribunal ultimately found that indirect discrimination was not established. The requirement was that the man work on Saturdays, he could not comply because of his religious belief, genuinely held, that Saturday is the Sabbath day and that God commands that a person must not work on the Sabbath day. The holding of the religions belief was the attribute and a higher proportion of people without this religious belief would be able to work on Saturdays.

The Tribunal looked next at whether or not the requirement was reasonable. It was held that given the financial circumstances of the company it was impracticable for it to provide staff to relieve the manager every Saturday and that it would not be financially feasible for it to close the store on a Saturday. The company's difficulties were further illustrated by one of the Directors who as a Jew was unable to observe the Sabbath himself working on Saturday mornings because of the company's precarious position. While in this particular case it was found that the rule to work on Saturday was reasonable, it will not always be the case in all situations. It must be remembered that the onus is on the employer to show the rule or term to be reasonable.

Religious needs of employees

Religious needs of employees that may need to be considered include the following:

  • religious holidays, including non-Christian and Christian
  • bereavement leave which accords with requirements for mourning
  • religious rituals such as prayer times
  • prayer locations which provide the necessary quiet and privacy
  • religious aids such as prayer mats
  • religious dress such as head coverings

Exemptions

The Queensland legislation provides exemptions that permit discrimination on the grounds of religious beliefs and activities. For example under s109 it is not unlawful for religious bodies to discriminate between applicants for employment on the basis of their religious convictions to avoid injury to the religious susceptibilities of the adherents of that religion.

Action and issues in relation to awards and the workplace

Provisions in industrial awards which proclaim major Christian religious festivals as public holidays but remain silent on the provision of leave for non-Christian religious days of significance may result in indirect discrimination on ethno-religious or racial grounds.

Issues for the Parties in the Award Review to consider

The following suggestions are not meant to include every possible consideration in relation to religion and work issues, but rather provide the parties with some ideas that they might take into account in the award review process.

  • Take a common sense and flexible approach to the issue of religious discrimination.
  • Ensure an award allows the capacity to provide comparable leave for ethno-religious days of significance where it is reasonable in the circumstances.
  • Ensure that employees are encouraged to approach the employer about the need for such leave.
  • If an employee wants to practice their religion during working hours the employer should ask themselves: Is the religious practice of a kind recognised as necessary or desirable by persons of the same religious conviction as the employee? Is the performance of the practice reasonable having regard to the circumstance of employment? Will the practice cause any disruption in the workplace that may justify the employer in not allowing it, thereby indicating the rule to be reasonable?