Folau Has Set A Minefield For Bosses

Written by:
5 July 2019
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Originally Appeared In

Israel Folau versus Rugby Australia is the court case everyone, except our politicians, wants to talk about. The suggestion that it’s merely a contractual dispute that has nothing to do with broader questions about the right to freedom of speech or freedom of religion is misconceived.

The precise nature of Folau’s contract and what it allows Rugby Australia to do or not do is for the court to decide. But as so often happens in such situations, the matters at stake go beyond the narrow issues of the courtroom arguments.

Tim Soutphommasane, a former commissioner at the Human Rights Commission, has dismissed the issues the case raises with the claim,  “Here we go again with our tedious culture war.” Nothing could be further from the truth than to believe what’s happening is merely “tedious”. The fact that Soutphommasane could say something like that is yet another argument for abolishing the organisation he once worked for.

Central issues

One of the central issues the case raises is the question whether an individual entering into an employment contract can give up their right to practise their faith, or in Folau’s situation quote the Bible on social media. Or, to put it another way, can an individual agree to a contract, the terms of which discriminates against them?

If the answer is “yes” then there’s  a number of consequences.

The first is that under current Australian law such contracts are unenforceable. Employees and employers can’t agree to a contract that avoids federal legislation. In this case Section 351 of the Fair Work Act prevents an employer from discriminating against an employee or prospective employee on the basis of “the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibility, pregnancy, religion, political opinion, national extraction or social origin”. Admittedly, it gets more complicated because the Fair Work Act does allow employers to discriminate in some circumstances such as when discrimination is “taken because of the inherent requirements of the particular position concerned”.

A second conclusion is that if employees and employers do have “freedom of contract” to agree between themselves on what’s in an employment contract, then presumably if the two parties can agree on matters such as the employees not quoting the Bible, they should also be able to agree to things like the rate of pay, which they can’t do at the moment.

Another conclusion, which has been appreciated by some of the more thoughtful commentators on the left, is that if a court finds that under the terms of his contract Folau can be sacked for his social media posts about his religion because either Rugby Australia or one of its sponsors found those posts offensive, there’s not much, assuming the contract is appropriately drafted, from stopping another employer from sacking an employee for expressing their opinions about politics.

Good arguments on both sides

If the answer to that is “no” – and if you believe that this is a case that goes beyond what’s in Folau’s contract and that employees should be free to express religious viewpoints, even if they are hurtful and offensive, you’ll be coming down in favour of freedom of speech and freedom of religion. But you’ll be making it difficult for employers to manage their brand and their staff. Eventually employers will end up only employing employees who’ve never had an opinion on anything.

These are not easy questions, on which there are good arguments on both sides. And they’re important questions that go to the heart of how we live and work and play together. It’s no wonder Scott Morrison, when he was initially asked about Folau, refused to answer and said only ‘I think the issue has had enough oxygen’.

The very worst way to overcome the challenges posed by this intersection between the rights of employers to enforce the terms of a contract and an employee to exercise their freedom of speech and religion is to automatically rush to a legal or legislative solution. In the long term we’re far more likely to be able to live together in a community, if whatever sanctions of Folau or Rugby Australia we deem appropriate are enforced not by the courts or the Parliament – but by public opinion.

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