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Religious employees in law firms ‘should be circumspect’ about new bill
The revamped Religious Discrimination Bill and its provisions will not give employees of faith carte blanche in relation to religious expression, particularly during working hours, argues one partner.
Jerome Doraisamy
In conversation with Lawyers Weekly, Swaab employment law partner Michael Byrnes said that even if the second exposure draft of the Religious Discrimination Bill is ultimately enacted, religious employees “should be circumspect”.
“Much like the way in which terms such as ‘harassment’, ‘bullying’ or ‘WHS issue’ are sometimes wrongly cited by employees in bad faith to pursue a particular agenda or collateral purpose, the same will undoubtedly occur from time to time with ‘religious discrimination.’”
On the question of whether the second draft of the bill gives rise to any new powers or freedoms for law firms, or religious persons within legal workplaces, to express their views without consequence, Mr Byrnes said this draft is “not materially different from the first draft” in this regard.
“For law firms or legal employers generally, there might be concern about indirect discrimination arising from the imposition of a condition that disproportionately disadvantages religious employees. This could include restrictions on expression (such as social media posts) designed to promote diversity and respect in the workplace and protect the reputation or brand of the employer. The employer will need to show that the imposition of such a restriction on an employee is reasonable,” he mused.
“For some larger law firms or legal employers (with a turnover of over $50 million), the specific restriction on imposing an employee conduct rule which would have the effect of restricting or preventing employees from making a ‘statement of belief’ will almost certainly lead to a review of social media policies and codes of conduct to ensure they don’t breach the restriction.
“Such employers will not be able to rely upon the reasonableness test for an employee conduct rule, instead needing to rely on a very narrow, hard to prove ‘unjustifiable financial headship’ exception. If the bill is enacted that exception will likely become a dead letter; it should be revisited.”
As a general proposition, Mr Byrnes continued, many employers’ social media policies are “too broad”, purporting to regulate private expression of employees even when there isn’t a clear nexus between that expression and the legitimate interests of the employer.
“If enacted, the restrictions in the bill might serve as a catalyst for a closer examination of the terms of social media policies and the circumstances in which they are applied.”
When asked how law firms and legal employers can ensure that the beliefs (or otherwise) of all employees are adequately accommodated for, Mr Byrnes said employers will “likely need to revisit relevant policies and codes of conduct and, even more significantly, provide training and constructive practical guidance to employees on the effect of the religious discrimination protections, much like training is presently conducted on anti-discrimination and sexual harassment”.
Moreover, they maintain a broader duty to ensure that all employees are safe in the workplace, he added.
“[This can be done] by reinforcing the importance of collegiate conduct and mutual respect and understanding, as has happened with managing issues relating to discrimination on the basis of other currently protected attributes such as gender, age, disability and sexual orientation,” he concluded.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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