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:
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:
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.
Implications
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.
