This question has been raised by a report that a Victorian council has required its employees to add a graphic to their email addresses featuring a “rainbow flag”. One employee is reported as saying:

the rainbow flag can look like moral support for identity politics or sexualities prohibited by many religions in this multicultural area

This is an important issue which will present challenges to employees of organisations which are determined to make political statements on various causes. To what extent can an employee in such an organisation decline to provide their own support for the stance taken by their employer, where the “core business” of the organisation is not involved? In this post I want to consider religious freedom protections that might apply in the reported circumstances.

Employment obligations

Perhaps the first place to start is to ask: are employees always obliged to comply with orders from the boss? At first glance some may suppose that this is the start and end of the debate: if you work for an organisation, you take their orders, and if you don’t like those orders, you resign. But the legal situation is not so cut and dried.

At common law part of the bargain for being paid a wage, is that an employee will obey the orders of the employer. But the classic statement of the doctrine of ‘obedience’ in modern Australian law is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and O’Sullivan (1938) 60 CLR 601 at 621–2:

… the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.

So there will always be a question: does this order generally fall within the scope of my responsibilities, and is it “reasonable”? In particular, while other matters may arise, it will be relevant to ask whether the order will cut across other rights the employee has under discrimination law. The cases establish that a mere private contract will not act to immunise an employer from obligations they have not to discriminate.

There is a broad general principle that a contract which is contrary to public policy may be void. So, for example, in the High Court in Westfield Management Limited v AMP Capital Property Nominees Limited [2012] HCA 54 French CJ, Crennan, Kiefel and Bell JJ said:

[46] It is the policy of the law that contractual arrangements will not be enforced where they operate to defeat or circumvent a statutory purpose or policy according to which statutory rights are conferred in the public interest, rather than for the benefit of an individual alone. The courts will treat such arrangements as ineffective or void, even in the absence of a breach of a norm of conduct or other requirement expressed or necessarily implicit in the statutory text.

Later their Honours added:

[50] … Some statutes may, by their nature and purpose, more readily suggest inconsistency with an individual’s liberty to forego statutory rights. Some statutes which have a regulatory and protective purpose may fall into this category.

And earlier, Gleeson CJ and Handley JA in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 had said that

It is clear that persons affected by discriminatory practices prohibited by the Act are not free to bargain away in advance their rights to seek relief under the Act. The Act forbids those practices and seeks to eradicate them from the life of the State. The evident policy of the statute is that such practices should cease. Contracting out of the statute in advance would be directly contrary to this policy (at 31)

So a contractual obligation may be subject to a right enjoyed by an employee under a law aimed at protecting the employee’s human rights. An employee of a local council who had no specific role in relations with the LGBTQ community, might argue that it was neither part of their normal duties, nor “reasonable”, to require them to convey a message they find they cannot agree with.

Defining the message

Turning then to this example, what message is being conveyed by the inclusion of a rainbow flag symbol as part of an email signature? In general one can say this logo today expresses support for LGBTQ persons, and probably at least an assertion that they should not be detrimentally treated on account of their sexual orientation. But does it go further? As suggested by the employee comment noted above, it could be argued that inclusion of the logo implies a view that homosexual activity is no different to heterosexual activity and raises no moral issues. But such a view would run contrary to the doctrines of many religious groups- indeed, doctrines supported by most of the major world religions, at least until recently.

The article linked above records another comment by an employee:

They should just have a statement saying they value all people and don’t discriminate. No one would feel upset about that message.

Decoding the symbol of the “rainbow flag” may be tricky. But at least it can be said that there are some employees who would regard the inclusion of the flag on their emails as indicating their personal support for a view of sexual morality that they could not, for religious reasons, support. Are there any legal avenues that can be used to protect their employment while politely declining not to use the symbol?

Indirect religious discrimination

One possibility would be that imposition of a requirement of this sort amounts to “indirect religious discrimination”. The Victorian Equal Opportunity Act 2010 s 6(n) provides that discrimination on the basis of “religious belief or activity” is unlawful. In s 4(1) of the Act that phrase is defined as:

 (a)     holding or not holding a lawful religious belief or view; 

(b)     engaging in, not engaging in or refusing to engage in a lawful religious activity;

This would seem to clearly include “holding … a lawful religious belief” that homosexual activity is contrary to God’s will.

An employee disciplined for declining to include a rainbow flag in their emails would probably not be able to claim “direct” religious discrimination (as it could usually be said that this requirement was being imposed on all employees, not just the religious employees.) However, section 9 of the Act forbids “indirect discrimination”:

Remedy under the Victorian Charter?

As well as a law forbidding religious discrimination, Victoria has enacted the Charter of Human Rights and Responsibilities Act 2006. Under this legislation one of the human rights that Victorians enjoy is religious freedom: