This is now the third exposure draft of the RDB. Significant concerns about the first and second exposure drafts were raised by a wide range of stakeholders. While we welcome the removal of provisions that would have expressly prevented employers from taking action to create safe workplaces, and provisions allowing health practitioners to refuse to provide health services, the ACTU remains deeply concerned about a number of provisions of the RDB, as well as the government’s approach to these important matters. We are concerned that despite the changes made, the RDB will still hamper the ability of employers to create safe and healthy workplaces, as well as enabling and encouraging further unreasonable discrimination against workers by religious employers.
These are complex and important matters. The intersection of religious freedom and anti-discrimination laws is a point of ongoing tension, and legislatures and courts must find a way to strike an appropriate balance between these rights when they come into conflict. We are concerned the government has failed to engage in timely or genuine consultation with key stakeholders in the development of these reforms. The consultation process and timeframe for submissions to this Inquiry is wholly inadequate, particularly in light of the complexity and significance of these changes, and the interruption of the holiday period.
Our analysis and consultation with affiliates suggests that a number of provisions of this Bill will have significant negative implications in the area of work. The RDB departs from the usual framework of anti-discrimination laws and introduces a series of untested concepts into discrimination law which are of uncertain effect. This will create a risk of increased confusion, conflict and harm in Australian workplaces. The RDB will increase, not decrease, the prospect of discrimination against workers on the grounds of their religious beliefs; it will increase job insecurity in religious organisations, and undermine workers’ health and safety at work. We are extremely concerned that the RDB will impact negatively on employers’ ability to meet existing duties to create safe, healthy, respectful and inclusive workplaces for all workers.
Existing religious exemptions in the Sex Discrimination Act and Fair Work Act which already allow religious employers to unfairly discriminate against workers on the grounds of sex, sexual orientation, gender identity, marital status or pregnancy are not addressed by this Bill. Our 3 affiliates in sectors already impacted by these exemptions, including education, are deeply concerned that this Bill will only enable and encourage further unfair discrimination against workers. The RDB will add a third level of religious exemptions for employers and workers to navigate, increasing unfairness, complexity and regulatory burden.
Human rights belong to all people equally, and governments cannot pick and choose which rights to respect. No right can ‘trump’ any another right. Unacceptably, the RDB explicitly and deliberately overrides hard fought and won human rights protections under State and Territory anti-discrimination laws. It is contrary to the basic principles of human rights law to privilege one category of rights over another: in this case, the right to make religious ‘statements of belief’ over the right to equality and non-discrimination, particularly for women, LGBTIQ+ people, people with disability, single mothers, and other groups susceptible to condemnation or discrimination on religious grounds. The RDB allows religious employers to discriminate against individual workers who have differing (or no) religious beliefs to their employer – even where religion is not relevant to the role – privileging the rights of religious employers over their workers.