Folau case will bring clarity to workplace laws
Most of you will have heard about the termination of Israel Folau’s $4 million contract with Rugby Australia, following Folau’s posts on social media, which proclaimed that hell waits “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”.
Folau’s termination was the result of a finding by an independent panel that Folau had committed a “high-level” breach of Rugby Australia’s code of conduct. The code of conduct provides, among other things, that players must treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. The code also provides that players must use social media appropriately and must not use social media as a means to breach any of the expectations and/or requirements of players.
Most employers have similar codes of conduct to Rugby Australia, particularly in circumstances where employees are public figures. These codes typically attempt to regulate the conduct of employees both during and outside of work and are commonly used as an attempt to prevent the employer being brought into disrepute as a result of an employee’s conduct. For example, employees of the Australian Public Service must, in accordance with the APS Code of Conduct, treat everyone with respect and courtesy, without harassment and must, at all times, behave in a manner that upholds the APS Values and Employment Principals.
Folau has commenced proceedings against Rugby Australia under section 772 of the Fair Work Act 2009 (Cth), which provides that an employer must not terminate an employee’s employment on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
In a statement to the press, Rugby Australia said that it would “defend… the right for all people to feel safe and welcome in our game regardless of their gender, race, background, religion or sexuality.”
Whether Israel Folau should have been terminated by Rugby Australia has divided opinion, with some arguing that Folau was merely expressing his religious views and others arguing that Folau was engaging in hate speech.
The broader question at stake, however, is whether Australians actually have the right to religious expression and/or a freedom of speech at work in the first place and, if they do, how far that freedom extends.
It is a common misconception that Australians have a broad freedom of speech/freedom of religious expression. Unlike the United States, Australia’s constitution does not protect freedom of speech or religious expression. Whilst the Australian Capital Territory and Victoria have enacted state-level human rights legislation, Australia does not have a bill of rights that purports to protect the human rights of Australians.
Notwithstanding this, the High Court has held that an implied freedom of “political communication” exists in Australia.  How far this freedom extends has been the subject of debate, however, the implied freedom relates only to a freedom of communication with respect to political matters and does not constitute a broader freedom of speech.
There is some statutory protection for religious expression/freedom of speech, as seen in the section of the Fair Work Act that Folau has commenced proceedings under, however, there is little case law, particularly with regard to religious expression, that considers how far these provisions extend.
Whether Australia should adopt a bill of rights to clarify the nature and extent of freedoms that Australian citizens have has been debated for years. Some argue that a bill of rights is necessary to clarify Australia’s position and to protect fundamental freedoms, whilst others argue that a framework protecting the rights of Australians already exists.
Until that debate is resolved, the position with respect to freedom of speech or religious expression is unclear. In my view, it is unlikely that the protection afforded by the Fair Work Act would extend to protecting Folau’s conduct. Nonetheless, how far freedom of speech and religious expression should extend in the workplace is a question that should be resolved by the courts.
 Rugby Australia Code of Conduct, Part 2, r 1.3 & 1.7 <https://australia.rugby/about/codes-and-policies/all-codes-and-policies>.
 Public Service Act 1999 (Cth), s 13.
 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; The Australian Capital Television v the Commonwealth (1992) 177 CLR 106.