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.
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  HCA 54 French CJ, Crennan, Kiefel and Bell JJ said:
 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:
 … 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”:
EQUAL OPPORTUNITY ACT 2010 – SECT 9
(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—
(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b) that is not reasonable.
(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.
(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following—
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;
(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;
(c) the cost of any alternative requirement, condition or practice;
(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;
(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.
(4) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.
To summarise, if a “requirement” is imposed on a person that will disadvantage persons who share an “attribute” with that person, this amounts to indirect discrimination unless the requirement can be shown to be “reasonable”. Here it seems that a “requirement” that (to take one view of the order here) “all employees express support for homosexual activity as morally acceptable”, would disadvantage all persons who have a genuine religious belief that such activity is forbidden by their religion. Would imposing such a requirement still be “reasonable”? Subsection 9(3) requires consideration of a number of factors. One of these factors, in para 9(3)(e), is “the availability of an alternative requirement, … that would achieve the result sought by the person imposing, or proposing to impose, the requirement, … but would result in less disadvantage“. The suggestion noted above, that employees simply be asked to affirm the value of all people and a commitment not to discriminate, would seem to be a suitable alternative requirement in these circumstances.
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:
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 – SECT 14
Freedom of thought, conscience, religion and belief
(1) Every person has the right to freedom of thought, conscience, religion and belief, including—
(a) the freedom to have or to adopt a religion or belief of his or her choice; and
(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.
(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.
In this context, a key provision of the Charter is s 38, which provides that it is unlawful for a “public authority” to “act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right”. The term “public authority” includes a local Council (see s 4(1)(e)). (The application of the Charter to non-government bodies is much more problematic.)
Arguably, then, it would be unlawful for a Council to coerce an employee in a way that limits his or her freedom to “have or adopt” a religious belief in “practice”. The operation of the Charter in relation to public authorities is still not entirely clear, however- for an examination of the issues and case-law see the “Charter of Human Rights Bench Book” produced by the Supreme Court of Victoria, section 3.2. It seems likely that in determining whether a direction to an employee was in breach of the right to freedom of religion under s 14, a court would have to also consider the “limits” on human rights set out in s 7 of the Charter (see para  of the Bench Book, citing Bare v IBAC (2015) 48 VR 129.) Since s 7 also requires consideration of “any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve”, the issues under the Charter may end up being very similar to those which would be relevant under the Equal Opportunity Act 2010.
Still, at the very least it seems that the affirmation of religious freedom under the Charter should provide further support for a local Council not to over-ride the sincerely held religious beliefs of its employees by requiring them to express support for views they cannot, in all conscience, support, especially where there are other ways to achieve the admirable and uncontroversial goal of opposing unlawful discrimination. (Section 39 of the Charter may provide assistance here, but its operation is also unclear- see section 3.3 of the Bench Book.)
In Victoria, at least, there seem to be a couple of ways that a Council directive to employees requiring that they express support for views contrary to their deeply-held religious beliefs might be challenged. (There might also be a remedy under the Commonwealth Fair Work Act 2009, section 351 , if some sort of disciplinary action was taken against employees who declined to obey the directive.) Hopefully, before such avenues are pursued, consideration of the impact of the directive on religious employees may lead to some flexibility being provided to allow those employees to exercise their rights of religious freedom, while still serving members of the local community in the important work of the Council.