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Facing religious discrimination at work? These are your options

Key Points
  • Discrimination based on religion alone is not unlawful under federal anti-discrimination law but can be unlawful under state or territory law.
  • The Fair Work Commission, the Australian Human Rights Commission and local anti-discrimination bodies are the forums for submitting a religious discrimination complaint outside court.
  • In some cases, there may also be legitimate grounds for restricting a worker’s freedom to practice their religion.
In Australia, there is no uniform law on religious protections, with processes underway over the last years for the establishment of a .
In the context of employment, there are nationwide protections against discrimination on the basis of religion under the but they are limited in their scope.
Karina Okotel is the Principal lawyer at the , a national community legal centre based in the Australian Capital Territory (ACT).
She advises that the first step for an employee who may have experienced religious discrimination is to contact the Fair Work Commission to determine if their case qualifies for a complaint under the Act.

“They can make a decision that is enforceable. But the scope of the types of complaints that can be made to the Fair Work Commission are well defined and there are limits around that.”

Australia Explained - workplace religious rights

Complaints about workplace religious discrimination includes discrimination because of the lack of a religious belief. Credit: SDI Productions/Getty Images

For example, it is unlawful for employers to take adverse action against a candidate because of their religion.

“Discrimination in hiring practices is happening. But it’s very hard to prove and it can be rooted in unconscious bias,” Ms Okotel says.
There may also be types of religious discrimination in the workplace, including that which occurs between co-workers, which are not covered by the Fair Work Act.
At the federal level, complaints can also be made to the , which has powers to guide a settlement process and issue non-binding recommendations.
Ms Okotel says, reputational damage and media exposure following a complaint often motivate employers to settle with complainants.
“So, it can be very beneficial for people to make a complaint directly to the Human Rights Commission, to seek that assistance to resolve the matter without going to a court.”
At state and territory level, religious belief or activity is a protected characteristic in anti-discrimination laws across most jurisdictions. However, protections in place vary depending on where you live.

Aimee Cooper, Head of Legal at the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), provides examples of workplace religious discrimination complaints.

Australia Explained - workplace religious rights

Some jurisdictions, including Queensland, Victoria and the ACT also have protections for freedom of religion in their respective Human Rights Acts. Credit: coldsnowstorm/Getty Images

“A Jewish woman was labelled difficult at work for letting her employer know that she was unavailable on Saturdays to observe Shabbat. A Sikh man […] felt hassled and unwelcome when his supervisor insisted that he removed his turban. And we heard from a Muslim woman about how her colleagues couldn’t help commenting on what they called her little rest breaks throughout the day, that being the few minutes that she’d take to say her prayers in accordance with their faith.”

State and territory anti-discrimination bodies like the VEOHRC assist complainants reach a mutually agreeable outcome, as an alternative to court.
“It might be an apology, a change to policies or practices, a commitment to provide training to staff through to reinstating someone’s job or financial compensation,” Ms Cooper explains.
In some cases, it’s not against the law to discriminate in an employment setting, including for religious grounds.

For instance, in Victoria, faith-based organisations can discriminate when employing staff under certain conditions.

Australia Explained - workplace religious rights

The kinds of mediation outcomes are “limitless, because it’s really what the two parties are willing to agree to”. Credit: CihatDeniz/Getty Images

“Provided that conforming with the religion is an essential part of the job, the person can’t meet the requirements because of their religion, and that the discrimination is reasonable and proportionate,” Ms Cooper adds.

Justin Carroll, commercial disputes partner at Blackbay Lawyers, explains that religious institutions are not discriminating unlawfully under the Fair Work Act when taking adverse action “in good faith” or to avoid “injury to the religious susceptibilities of adherents of that religion or creed”.
Avoiding litigation or complaints is in the hands of the employer, Mr Carroll says, by adhering to their obligations under the Fair Work Act and respective state and territory laws.
However, there are also proactive steps employers can take.

“Trying to accommodate people who are religiously observant to the extent that that doesn’t meaningfully impact upon the running of their business. And provided of course, it doesn’t interfere with others who are not religiously observant in that particular way or at all.

Australia Explained - workplace religious rights

“Health and safety issues are grounds on which employers can legitimately infringe upon religious practice or religious observance, in the form of religious dress for example,” Mr Carroll explains. (Getty) Credit: Maskot/Getty Images

“I think being transparent too, informing employees upfront as to what is required, helps to set expectations,” Mr Carroll suggests.

Ms Oktotel says, when it comes to infringement of religious rights at work, incidents are not always straightforward and may overlap with racial discrimination or other unlawful infringements.
“We had one client, for example, who wanted to take the matter to a court but there weren’t really grounds to do that. We were able to then identify that they might have a privacy complaint.
“So, it is really important for people to seek legal advice because the lawyer can step through the various options and look at what might be the best course of action to take, given the limitations in our laws,” Ms Okotel concludes.

For information about making a religious discrimination complaint at a state/territory level visit:

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