Freedom of religion and a fair chance in the workplace are two issues Australians hold dear as fundamental values. In recent times these very values have been attacked by the Baillieu-Clark amendments to Victorian Equal Opportunity laws.[1]
Freedom of religion is part of the ethos guiding citizenship in Australia with the effect of law even in the wake of insignificant constitutional and legal safeguards.[2] Essentially in Australia, freedom of religion encompasses three central concepts:
(1) The State shall not institute a State religion;
(2) Freedom of religious choice; and
(3) Freedom from religion.
As Australians we also resent employers intruding into aspects of our lives which do not relate to our employment. Hard work and loyalty deserve privacy to keep the ethical standards of the employer away from any employee. That is, you cannot be sacked because you don’t meet the arbitrary ethical standards of the boss.
Pivotal to this author’s opinion is the clash between the religious order and the teacher through the interplay of the freedom of religious choice and freedom from religion. Pre-2011 this clash was resolved through the ‘inherent requirements’ test by assessing the relative duties of the employment role and deciding accordingly on the facts. If certain religious beliefs were inherent to a job, religious choice would be protected; if certain beliefs were not inherent to a job, freedom from religion was fostered.
If a woman or gay man sought employment as a Priest in a Catholic Church or institution, they could be refused employment protecting their institution’s choice of religion because it would otherwise force the church to employ someone who offended Catholic teachings.
However the same scenario would not hold true if a single mother was employed to teach English in a Catholic School. Freedom of religion would be fostered even if her child was born out of wedlock because she was not employed to teach religion but English. Despite contradicting Catholic teachings, her personal life would be free from discrimination as it had no bearing on her teaching.
The newly enacted Baillieu-Clarke amendments to Victorian Equal Opportunity law repealing the ‘inherent requirements’ test under the guise of balance now allow this kind of discrimination.[3] Without showing that employment discrimination is necessary to fulfill the requirements of the job, even when there is no direct religious link to the role the person is employed in, the arbitrary ethical standards of the boss now can determine your employment status. Thus, the single mother teaching English gets the sack.
It is now legally acceptable to deny someone a job on the basis of their gender, sexual orientation, religion, marital status, parental status or gender identity.
In schools, religiously motivated discrimination can now see single mothers sacked and even, at worst, LGBT students expelled or denied access extending beyond the specialist roles inherent to those organisations.
Support staffs of cooks, cleaners, carpenters, and gardeners are also vulnerable.
The relative questions we must ask are, how do religious values affect these people in the course of their employment, and can they do the job or not? Not the questions of who do you call God, and how do you worship?
What do you think?
Chris Edwards
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[1] Victorian Equal Opportunity Amendment Bill 2011 (Vic).
[2] s.116, Commonwealth of Australia Constitution Act 1900 (Imp); Racial and Religious Tolerance Act 2001 (Vic) cf. “The Constitution of the United States,” Amendment 1.
[3] Rebecca Devitt (2011) ‘Victorian Equal Opportunity Bill Passes Upper House’ Right Now: Human Rights in Australia, <online> at 9 August 2011.
