Last week Israel Folau lodged his case in the Federal Circuit Court, alleging Rugby Australia broke the law when it sacked him.
Under the Fair Work Act, it is illegal to sack an employee by reason of the employee’s religion. There is scant case law about what this protection means.
Folau’s is a test case in which the court will need to determine whether the word “religion” should be interpreted to include protection for an employee’s religious expression and activities. If the court finds in Folau’s favour, the furious
debate about Folau’s contract will have been for nought. Employment contracts and codes of conduct can’t subvert anti-discrimination laws.
The sanctity of contract law
One of the striking features of the culture war that erupted after Folau took to Facebook to condemn many of us to hell is the
repeated appeals to the sanctity of the employment contract.
Progressives who prioritise human rights over commercial contracts have, in many cases, done an about-face. “But he breached his contract!” they chorus.
Conservatives, who cheer on the sacking of employees who express views they disapprove of, have a new-found respect for freedom of expression and anti-discrimination legislation.
Consider Frank Brennan, Jesuit priest, human rights lawyer and one time member of an expert panel on religious freedom. He has described the Folau debate as,
“a simple freedom-of-contract case regardless of Folau’s religious views”.
For Father Brennan, Folau had a simple choice: express his religious views or keep his job.
Simon Longstaff, executive director of The Ethics Centre, supports Rugby Australia’s right to manage its brand, counselling that Folau had a “choice”: to play professional rugby or find work with another organisation “better suited to his values”.
Dr Longstaff also argues Rugby Australia acted fairly in sacking Folau. That view was supported by former race discrimination commissioner Tim Soutphommasane.
The price of getting a job
The terms of employment contracts — millions of them — are all remarkably similar. Although they are signed by individuals, there is nothing individual about them because signing an employment contract is the price of getting a job. Their terms
heavily favour the interests of the employer.
It is now routine for employment contracts to require all employees abide by all workplace policies, company codes of conduct and company “values”. The employee signs the contract without even having seen any of these documents or obligations,
which are unilaterally promulgated by their employer.
The contracts require employees to adhere to similar values — typically couched in admirable language about integrity, decency, inclusiveness and respect. But they also seek to regulate employee behaviour, both at work and after hours. In this
era of gig work and Instagram, we have become unwitting brand ambassadors for our employers on a 24/7 basis.
If we say or do something controversial after hours, and it’s disseminated online, we can be fired.
Were noted controversialist Jesus Christ alive today, he would be unemployable.
While companies proudly trumpet their values, there’s another standard clause in their contracts advising that while the policies, codes and values are binding on the employee, they do not bind the company. These provisions ensure there are no
consequences for the company for breaching these obligations. The asymmetry is a stark expression of the employer’s absolute power.
While the culture war over Folau raises difficult issues about how to reconcile freedom of religious expression with the rights of the LGBTI community to live free from harassment and homophobia, the court case will not resolve the debate.
Free speech hypocrisy
The Folau case will focus on whether Rugby Australia’s employment contract illegally subverts the protection under the Fair Work Act against discrimination on the grounds of religion.
It is remarkable that liberal commentators debating what is fair, ethical and reasonable, including Father Brennan and Dr Longstaff, have completely ignored this important legal protection for employees. They now face the same charges of
hypocrisy that we usually see levelled at conservative proponents of free speech.
For many years, prominent Australian conservatives have campaigned to uphold “the tradition of free speech”. After Andrew Bolt was found to have breached racial vilification laws in 2011, that campaign intensified. And yet virtually all those who
loudly campaign in support of free speech jettison their principles at the first sign of views they disagree with.
They are the same pundits who called for the sacking of employees who expressed left-wing or otherwise controversial views: like Scott McIntyre, Catherine Deveny, Roz Ward and Angela Williamson, to name just a few. In each case, the employer
argued the employee’s expression brought it into disrepute. In doing so they capitulated to the loudest, angriest voices echoing throughout the coliseum.
Tim Wilson is another conservative who has forcefully brandished his commitment to “freedom” ever since he was recruited into the Institute of Public Affairs. But when SBS sacked soccer journalist Scott McIntyre over his controversial tweets
about Anzac Day, Mr Wilson resiled from his commitment to free speech.
Echoing the views recently expressed by Father Brennan, and Dr Longstaff, he argued McIntyre could choose between expressing his controversial views about Anzac Day or paid employment with SBS. Mr Wilson added that the, “idea that McIntyre’s free speech was compromised was rubbish”.
Tribalism trumps principle
Why do those who so loudly invoke principle so easily dispense with it? The answer is tribalism.
In the Folau case, many progressives instinctively disapprove of Folau’s views and want his employer to mete out severe punishment. This is understandable. There is a legitimate question about whether Folau’s pronouncements constitute a form of
anti-gay hate speech and whether such speech causes harm — particularly to younger members of the gay community.
There is also a legitimate question about whether we need a federal law that provides recourse to those harmed by anti-gay hate speech. With the Federal Government intent on introducing religious freedom legislation,
this issue may become even more relevant.
But those cheering on the loss of Folau’s livelihood and career have undermined the cause of countless other employees who espouse controversial progressive views and suffer the same fate.
Employment contracts and the dark arts of brand management are being selectively deployed to suppress participation in the democratic process. There should be no exception to the universality of human rights discourse for Folau.
When employees are fired in such circumstances, they are unlikely to find comparable employment. Folau is a professional rugby player. Where can he work now?
First, there’s the notoriety associated with the sacking, which will dog him for a long time. Second, if Rugby Australia’s position is upheld in court, he will surely be asked to sign a similar template employment contract that he can’t possibly
While Folau’s views are objectionable and arguably even hate speech, perpetual unemployment is a grossly disproportionate punishment. If he is to be punished for expressing such views, it should be because he has contravened laws promulgated by a
democratically elected government.
And he should still be able to go to work.
This article originally appeared on ABC Online.