Home » Law » Same-sex marriage and religious protections at work. Are we getting the full story?
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Same-sex marriage and religious protections at work. Are we getting the full story?

The topic of same-sex marriage has been hotly debated since the Government announced its plans for a postal plebiscite on the issue. Most in favour of change recognise this as a human rights issue, and most against change consider it an attack on religion, free speech, or other undefined ‘values’. But there has been very little discussion about workplace rights, which is typically a very complex and deeply personal area of our lives. The ‘freedom’ of the metaphorically devout cake decorators has once again been high on the agenda. But how does religious freedom currently affect the 99.99% of Australian workers that don’t bake?

One of the most out-spoken people on this topic has been former Prime Minister Tony Abbott who (in case you didn’t know) is a very vocal proponent of maintaining the current definition of marriage between a man and a woman. Amongst other reasons, Mr Abbott has claimed that since we haven’t seen the proposed legislation, voting yes will be signing a “blank cheque” and we cannot be sure of how this will affect freedom of speech and religious protections.

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However, this is simply not the case with respect to religious protections contained within the Fair Work Act. Under section 351 of the Fair Work Act, religious organisations such as churches enjoy wide-ranging exemptions which allows them to take adverse action against employees on the basis of sex, pregnancy, marital status, political opinion, sexual orientation and other characteristics. Adverse action can include dismissing an employee, altering an employee’s position to their disadvantage and injuring an employee in their employment. This discrimination is allowed provided it is in “good faith in order to avoid injury to the religious susceptibilities of adherents of that religion”. In other words, a church is allowed to fire someone if they are gay or if they are married if it goes against the teachings of that church. Changing the definition of marriage in the Marriage Act to include same-sex marriage will have no effect on the exemptions provided to churches since they can already discriminate on the grounds of sexual orientation and marital status.

Two recent examples relating to employer’s views on same-sex marriage highlight the special position that churches have compared to ordinary employers. The Australian Catholic Church announced in August that even if same-sex marriage was legalised, they would dismiss staff of the same sex who marry. The Archbishop of Melbourne, Denis Hart, indicated that the Catholic Church would still expect all its teachers, nurses and other employees to follow Catholic beliefs and teachings when it comes to marriage. The Archbishop of Perth, Timothy Costelloe is on record as saying that “like all other employers, the Catholic Church should be able to ensure its values are upheld by those who choose to work for the organisation”. Even if same-sex marriage was legalised, the Catholic Church would not face an adverse action claim on the grounds of discrimination if it did decide to fire staff because of their sexual orientation and/or marital status due to the religious exemptions provided to them under the Fair Work Act.

Whilst Archbishop Costelloe maintains the right of the Catholic Church to “ensure its values are upheld by those who choose to work for the organisation”, this is not something enjoyed by ordinary employers who cannot just fire someone based on protected attributes, such as sexual orientation, marital status, political opinion, etc. Madlin Sims the owner of the business Capital Kids Parties dismissed a worker Madeline because she had added a Coalition for Marriage “It’s OK to vote No’ Facebook filter to her profile picture. Ms Sims justified the dismissal on the grounds that, amongst other things, “homophobic views being made public are detrimental to the business”. The Fair Work Ombudsman has announced they are seeking to interview both Madeline and Ms Sims to determine if there has been a breach of the Fair Work Act. It is likely Madeline was an independent contractor (and not protected by the adverse action provisions in section 351) but if it turns out she was an employee, then Ms Sims could potentially be facing an adverse action claim on the grounds of discrimination. Madeline’s views on same-sex marriage likely constitute a political opinion and under section 351, Ms Sims is prevented from taking adverse action (which includes dismissing someone) because of their political opinion.

Rightly or wrongly, religious organisations are currently exempt from adverse action claims on the grounds of discrimination and can freely hire and fire people on the basis of their sexual orientation, marital status, sex, etc. Despite Mr Abbott’s comments to the contrary, changing the definition of marriage will have no effect on the religious protections enjoyed by churches under the Fair Work Act.

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