Israel Folau
Israel Folau (Image: AAP/Peter Rae)

After a series of failed attempts, the Morrison government plans to reintroduce legislation with the stated aim of protecting religious freedom. This appears to be, in large part, to pay off the Australian Christian Lobby (ACL), which campaigned effectively on behalf of the Coalition in the last election.

The most recent round of the debate was ignited by footballer Israel Folau, who posted a screed threatening a wide variety of sinners, most notably gay people, with eternal damnation. As a result, Rugby Australia terminated his contract as a player and public representative.

On the other side of the coin, a Baptist church school fired a gay teacher, initially stating that this was done on the basis of her support for equal marriage, although this admission was subsequently withdrawn. In both cases, the employer relied on a contractual code of conduct.

Many people have defended the dismissed worker in one of these cases, while supporting the employer, or staying silent, in the other. Unsurprisingly, the debate is commonly framed as a conflict between religious freedom and the personal freedoms of LGBTIQ people.

But it is more accurate to see the conflict as one between the rights of workers and those of employers. This conflict is at the heart of the government’s failure to develop a policy on religious freedom.

An example will help to illustrate. Suppose Folau was employed as a physical education teacher at a Catholic school when he published his social media posts, threatening a wide variety of sinners with eternal damnation. As well as homosexuals and atheists, Folau’s list included “heretics” and “idolaters”, descriptions that evangelicals like Folau routinely apply to Catholics.

Assuming Folau didn’t express his religious beliefs on school time, should the school be allowed to dismiss him? What if he made no public statements but remained a member of a church that held, as a matter of doctrine, that Catholics cannot be saved? If this fact became known to his employers, could they sack him?

Opinions will differ about where the lines should be drawn here. What the example makes clear is that, in relation to employment, religious freedom is a zero-sum good. The more freedom for employers, the less for workers, and vice versa.

The idea of workplace flexibility provides a useful basis for thinking about this. During the era of microeconomic reform, which ended (for the most part) with the global financial crisis, increased workplace flexibility was discussed as if it was an obviously good thing, beneficial to workers and employers.

It soon became clear, however, that workplace flexibility meant more freedom for employers and correspondingly less for workers. The ultimate expression of workplace flexibility is the “zero-hours contract”, widely adopted in the UK. Under a zero-hours contract, the employer is not obliged to provide a minimum number of working hours to the worker, but the worker is prohibited from working for anyone else at the same time.

On the other side of the coin, a system providing more flexibility for workers would allow them to quit at short notice while being protected from unfair dismissal, guarantee rights to sick leave and parental leave, and allow options such as remote work where it can be done without reducing productivity. Workers would have clear job descriptions and could not be required to do work outside that description.

The workplace reforms that began in the 1980s and continued until the GFC gradually shifted the balance of flexibility in favour of employers. As well as enjoying more flexibility with respect to permanent full-time workers, employers relied more heavily on part-time and casual workers, and on nominally independent contractors.

This trend continued until the Howard government overstepped the mark with WorkChoices, which made clear the shift towards giving employers power over workers’ lives. The Australian Council of Trade Unions’ response, represented by the Your Rights at Work campaign, helped to bring about Howard’s defeat and the repeal of the worst elements of WorkChoices.

When it comes to the crunch, Australians don’t want employers telling them what to do or think, or how to live their lives.

As a study by the right-wing Centre for Independent Studies mournfully concluded, Australians appear to be tolerant and respectful of the individual expression of religious commitments of their neighbours, but far less so of religious institutions and communities: “To maintain their distinctiveness, such institutions and communities need to have the freedom to select their members and employees on religiously grounded criteria … The survey suggests the public does not understand this point, or does not consider it significant in the face of other moral claims to protection against discrimination.”

A religious freedom law that protected workers against discrimination on the grounds of their religious belief, or non-belief, and guaranteed their freedom to live their own lives, would have widespread support. But this is the last thing the religious institutions calling for such a law want to see.

Does Australia need a religious freedom bill? Will the government push through with one anyway? Send your thoughts to letters@crikey.com.au, and don’t forget to include your full name if you’d like to be considered for publication.