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Folau test case expected to set a precedent for workplaces
By Anna Patty
A senior Sydney Anglican Bishop wants Wallaby Israel Folau's unlawful dismissal test case to challenge whether workplace code of conduct agreements impinge on employees' expression of religious beliefs.
Bishop of South Sydney Michael Stead, said religious leaders were closely watching the Folau case in the Fair Work Commission which he said had implications for workplaces nationally.
Israel Folau will turn to the Fair Work Act to argue his sacking by Rugby Australia was unlawful on religious grounds.Credit: Louise Kennerley
Bishop Stead said workplace contracts should not be used to shut down legitimate conversations between people with starkly different opinions.
"If it turns out that Rugby Australia was within its rights to enforce the code of conduct, it sets the precedent that any employer could impose a restrictive code of conduct that impinges on the religious belief of its employees," he said.
"In the same way that we would not want to deny people a right to express their fundamental identity, religious faith is fundamental to the identity of people of faith. It is not as though you can partition that and leave it at home when you come to work."
Kamal Weerakoon, moderator of the NSW Presbyterian Church said: "I am keeping tabs on it and am interested in the outcome because religion is central to our identity. Therefore if an employer tries to restrict or regulate the way that express our Christianity, that may give us problems."
Folau will argue RA's decision to sack him for paraphrasing a Bible passage on social media was unlawfully based on his religion and unenforceable under section 772 of the Fair Work Act.
RA has argued it sacked Folau for breaching its code of conduct and will now need to show his religion was not among the reasons for his dismissal.
The Folau controversy erupted after he posted on social media: "hell awaits" drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators unless they repent.
Bishop Stead, Sydney Anglican spokesman for religious freedom, said Folau had paraphrased the Apostle Paul from the Bible in 1 Corinthians 6, which lists various groups of sinners who will not "inherit the kingdom of God" without redemption by Jesus.
"He has issued it as a warning rather than an act of condemnation," he said.
"It's clear that his motivation is not hate, it is actually love. I accept that some people may not perceive it as loving. But certainly his objective intention was not to incite hatred."
In his application to the commission, Folau says that as a "manifestation" of his religion, he is "compelled to communicate the word of God and the message contained within the Bible.... which he considers to be a loving gesture to others".
In a statement he said: “No Australian of any faith should be fired for practising their religion”.
RA said the issue was one of "an employee and his obligations to his employers within the contract that he signed. He was bound by a code of conduct for all professional players in Australia that spells out clear guidelines and obligations regarding player behaviour, including respectful use of social media".
RA has previously said Folau could not share material that "condemns, vilifies or discriminates against people on the basis of their sexuality".
The game's code of conduct says players are expected to "treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability". The organisation says any form of bullying, harassment or discrimination "has no place in rugby".
Josh Bornstein, national head of employment law at Maurice Blackburn Lawyers said the Fair Work Act overrides a contract or code of conduct, meaning RA cannot "contract out" of employment law which makes it unlawful to terminate employment on the basis of religion under section 772.
"It is going to be a question whether, notwithstanding what Rugby Australia says that this is all about a breach of social media or a company code or company values, the underlying reality of the situation was he was expressing his religious identity ... that was what drove his sacking," he said.
Employment lawyer and partner at K&L Gates Steven Amendola agreed Rugby Australia could not contract out of the Fair Work statute.
"I'm not commenting on whether I agree with Folau's religious beliefs, but I can see the argument he has put and I can see the force of it," Mr Amendola said.
Liberal Party Senator Eric Abetz said the case will be a "vitally important test case to determine the rights of individuals to express their religious views without being unceremoniously sacked".
It could also have consequences for codes of conduct that discriminate against employees on the basis of their political opinions, sexual preference, race and other attributes protected under the act.
Labor Party Senator Deborah O'Neill said there have been "terrible casualties" in the personal lives of LGBTQI activists and a "demonising of the Christian voice" during the same sex debate.
"We have to be much more sophisticated about how we react to this complex religious reality of a cosmopolitan democracy in 2019," she said.
Mark Fowler, an adjunct associate professor of law at the University of Notre Dame, said a similar matter arose in the UK in 2012 when an employee was demoted and lost 40 per cent of his wages after he questioned on his Facebook page about whether churches should be required to perform same-sex weddings. The High Court held that the workplace code of conduct could not restrict the employee’s free speech.
John Steenhof a commercial/contract lawyer who runs a not-for profit practice called the Human Rights Law Alliance that defends people against religious discrimination said the protections within the act were broad.
"We field about three inquiries a week from people who have questions about their ability to share their religion or practise their religion in employment particularly," he said.