Australia: Adverse action – religious discrimination extended

Last Updated: 6 March 2011
Article by Stephen Marriott

One aspect of the Fair Work Act 2009 which has not received a great deal of attention are the provisions which protect employees from adverse action on the basis of religion. Section 351 provides that an employer must not take adverse action against a person who is an employee or prospective employee because of their religion.

Adverse action includes dismissing the employee, injuring the employee in some aspect of their employment, altering the employees position to the employee's detriment or discriminating in some way between that employee and other employees of the employer.

Discrimination law at the State and Federal level has previously not included such protections and religious beliefs and practice has never previously been a protected attribute.

The Anti-Discrimination Act 1977 in New South Wales

Discrimination purely on the basis of religion is explicitly not prohibited by the Anti- Discrimination Act 1977 (NSW) ('the ADA'). Instead, complainants must formulate their complaints on the basis of race discrimination.

The ADA makes it unlawful to discriminate against another person on the basis of race. The word 'race', under the Act, is defined to include 'colour, nationality, descent and ethnic, ethno-religious or national origin'.

As a result, those who complain that they have been discriminated against on the basis of religion, must establish that their ethnicity coincides or is strongly associated with their religion. This has led to a disparity of decisions, despite similar complaints.

'Ethno-religious': A definition

The ADA does not contain any definition of the term 'ethno-religious' with the consequence that the Administrative Decisions Tribunal has had to construct a meaning of the term.

In A obo V and A v NSW Department of Education EOD [2000] NSWADTAP 14, the father of two Jewish pupils complained that Easter and Christmas celebrations at their school amounted to ethno-religious discrimination.

The Tribunal was of the view that the phrase 'ethno-religious' was 'ambiguous or obscure' and turned to the Second Reading Speech of the Attorney General for some guidance. It stated:

'The proposed amendment to the definition of race will not allow members of ethno-religious groups such as Jews, Muslims and Sikhs to lodge complaints in respect of discrimination on the basis of their religion, but will protect such groups from discrimination based on their membership of a group which shares a historical identity in terms of their racial national or ethnic origin'.

Despite the illusive clarity of this statement, the tribunal made a very clear distinction that the amendments to the definition of race to include the term 'ethno-religious' were not designed to allow members of such groups to lodge complaints in respect of discrimination on the basis of their religion.

Consequently, the fact that an appellant may validly claim membership of one of these groups, does not of itself convert a discriminatory act into discrimination of the ground of race, as opposed to religion. The tribunal held that, while Judaism is an ethno-religion, the Act would not protect the plaintiff against actions offending specifically religious aspects of Judaism.

The verbal gymnastics involved in such a distinction, where religion is simply a characteristic appertaining to persons of a particular race, was not lost on the tribunal, who held that:

'Such an approach necessarily involves a degree of circularity, that is, a person who practices a particular religion qualifies under the Act as a person belonging to that ethno-religious group or race, a characteristic of which is the practice of that particular religion.'

The narrow interpretation of this term has resulted in further consideration of the term 'ethno-religious' over the last ten years. In Khan v Commissioner, Department of Corrective Services and Anor [2002] NSWADT 131 the Administrative Decisions Tribunal found that 'ethno-religious origin' should be given its ordinary meaning, namely '... a strong association between a person's or a group's nationality or ethnicity, culture, history and his, her or its religious beliefs and practices'.

In that case, a prisoner complained that he was denied Halal food in a privately run prison although Jewish inmates received Kosher food. At first, the Tribunal found that a Halal diet is a religious requirement and denial would only be religious discrimination which is not covered by the NSW Act. On appeal, the tribunal upheld the decision that, despite the specific inclusion of Muslims as an example in the Second Reading Speech, Muslims, generally, 'do not share common racial, national or ethnic origin' and are, therefore, not an ethno-religious group such as the definition embraces.

In Toll Pty Limited t/as Toll Express v Abdulrahman [2007] NSWADTAP 70 the Tribunal adopted the definition expressed in A obo V and A in concluding that name calling was ethno-religious as it related to both Mr Abdulrahman's middle eastern background and his religion as a Muslim. The tribunal held that there is a qualitative difference between race discrimination and ethno-religious discrimination, giving the example that 'wog' is different from 'bomb chucker'.

The tribunal noted that such nicknames, like 'bomb chucker' and 'Osama Bin Laden', were based on the fact that Osama Bin Laden is a Muslim who was reputedly involved in terrorist acts and that, 'because of the link Al-Qaeda makes between Islam and the use of violence... the link has been made in the minds of many non-Muslims between Muslims from Middle Eastern countries and violence'. It is the connotation from comments that are indistinguishable on the point of race and religion, or racial comments that rely upon religion to form their meaning, which will constitute 'ethnoreligious' discrimination. Interestingly, the tribunal in Toll held that there is no need for any additional expert or other evidence in relation to the association or link between nationality or ethnicity, culture, history and religious beliefs and practices, stating that the term 'ethno-religious origin' does not have a technical or special meaning.

As the term 'ethno-religious' neared the point of prohibiting religious discrimination, Kunhi v University of New England [2008] NSWADT 333 definitively stated 'even if a reason for the treatment was Ms Kunhi's religion, such conduct is not unlawful under the Anti-Discrimination Act.'

Trad v Jones and Anor (No 3) [2009] NSWADT 318 reinforced this statement, making a distinction between comments made about Muslims generally and comments made about Lebanese Muslims. While the former were not found to be within the scope of the Act, the latter were held to be an 'ethno-religious' group. The plaintiff in this case failed however, because he was not of Lebanese origin and therefore, the discrimination against the plaintiff was not on the basis of race, but rather, of religion.

In the most recent case, Ekermawi v Harbour Radio Pty Limited & Ekermawi v Nine Network Television Pty Limited (No. 2) [2010] NSWADT 198, the tribunal addressed some of the confusion created by the Second Reading Speech.

The tribunal rejected two reasons put to it by Ekermawi, which were (a) that Jews had been held to have a common ethnic origin under Commonwealth racial discrimination legislation, and (b) that in the aforementioned Second Reading Speech the Attorney General had referred to Muslims, as well as Jews and Sikhs, as instances of ethno-religious groups under the Act.

The tribunal reiterated Khan, stating that Muslims are not an ethno-religious group, but specified that if the discrimination was against 'Muslim's of Palestinian origin' they may come within the scope of the term, 'ethno-religious'. However, in this case, the only 'ethno-religious group' that was targeted were Pakastani Muslims, of which the appellant was not one.

Commonwealth Legislation

The Racial Discrimination Act 1975 (Cth) ('RDA') does not provide any specific protection against discrimination on the basis of religion either. The scope of the Act only prohibits discrimination on the grounds of 'race, colour, national or ethnic origin'. Despite this, the term 'ethnic origin' has previously been interpreted broadly to include Jewish and Sikh people. However, the interpretation of 'ethnic origin' has been decided in much the same way as the term 'ethno-religious'.

In King-Ansell v Police [1979] 2 NZLR 531, the court recognised Jewish people as a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ). This finding was cited with approval by the Full Federal Court in Miller v Wertheim [2002] FCAFC 156. However, it is unclear whether, at a Federal level, other groups like Muslims would be protected under discrimination laws. Cases considering this issue in other jurisdictions suggest that Muslims may not constitute a group with a common ethnic origin, as required by the legislation, because the Muslim faith was widespread, covering many nations, colours and languages.

While both state and federal discrimination legislation do not provide explicit protection against discrimination on the grounds of religion, complaints about religious discrimination in employment may be made to the Australian Human Rights Commission.

Although this legislation expressly prohibits discrimination on the grounds of religion, it does not give rise to enforceable remedies.


Employers will now have to examine their policies and procedures to ensure that they comply with the adverse action provisions with respect to religious discrimination. In all cases, it is important for complainants to make the right choice of forum. Where employees have been discriminated against on the basis of religion, there are legal protections, but those protections do not come under discrimination laws at the State or Federal level.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.