Folau is Off to Court – the Legal Issues
The media appear to have run a fairly uninformed commentary on what is happening with Folau’s legal action against Rugby Australia. Consequently, I offer the following outline of the most likely legal scenario. I’ve also included the relevant sections of the Fair Work Act 2009 (Cth).
Folau’s Allegation
It would appear that Folau’s legal action alleges that his employment with Rugby Australia was terminated in breach of Fair Work Act 2009 (Cth). The relevant section of the Act is 772 (1)(f). It states that an employer must not terminate an employee’s employment for the reason of ‘religion’
Dismissal for Reason of Religion May be Permissible
However, a qualification that seems relevant, in view of the policy allegedly stipulated in Folau’s agreement, is set out in section 772(2)(a)). It provides that a termination for such a reason is not prohibited if ‘the reason is based on the inherent requirements of the particular position concerned’
Application to Fair Work Commission
Section 773 provides that Folau may apply to the ‘Fair Work Commission for the FWC to deal with the dispute’. Section 776 states that such an application must be dealt with other than by arbitration. Section 776 (2) requires that such a dispute may be dealt through a mediation or conciliation conference held behind closed doors. This according to what is known took place this morning (Friday 28 June 2019).
If FWC Conference Fails
Section 776 (2) sets out the consequence of such a conciliation failing.
It provides that in such an eventuality, if the FWC is satisfied that ‘all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, it issue a certificate to that effect.
In addition, if after taking into account all the materials before it, the FWC if of the view that arbitration under section 777, or an unlawful termination court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly’.
It would seem that the certificate has or will be issued.
Application to Federal Court
It has also been reported that Folau’s legal team have or will file an application to the Federal Court. Section 778 requires, that an applicant issued the appropriate certificate by the FWC must, within two weeks of the FWC certificate being issued, lodge an application with the Federal Court.
Likely Questions for Federal Court to Answer
At this stage, I see the Federal Court being asked to decide the following issues.
1. What is the Scope of ‘Religion’
The first being, whether Folau’s employment was terminated for the reason of his ‘religion’. Whether the term religion is held to include the expression of religious beliefs remains to be see.
That the relevant Division of the Act is specifically noted in section 771 to be giving effect to certain international rights may prove influential in the Court’s determination of the scope of ‘religion’, and
2. What Were the Inherent Requirements of Folau’s Position
Requirements A second question will arise, if the Court finds that the reason for Folau’s termination was ‘religion’, The question then would be whether the Court also finds that the reason was based on the inherent requirements of Folau’s position.
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Relevant Extracts from the Fair Work Act 2009 (Cth)
Division 2—Termination of employment
771 Object of this Division
The object of this Division is to give effect, or further effect, to:
(a)the ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation, done at Geneva on 25 June 1958 ([1974] ATS 12); and
(b)the ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, done at Geneva on 23 June 1981 ([1991] ATS 7); and
(c)the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and
(d)the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.
Note 1:In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Note 2:In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).
772 Employment not to be terminated on certain ground
(1)An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
(a)temporary absence from work because of illness or injury of a kind prescribed by the regulations;
(b)trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
(c)nonmembership of a trade union;
(d)seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e)the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f)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;
(g)absence from work during maternity leave or other parental leave;
(h)temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
Note:This subsection is a civil remedy provision (see Part 41).
(2)However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment if:
(a)the reason is based on the inherent requirements of the particular position concerned…
773 Application for the FWC to deal with a dispute
If:(a)an employer has terminated an employee’s employment; and
(b)the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee’s employment was terminated in contravention of subsection 772(1);
the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
……….
776 Dealing with a dispute (other than by arbitration)
(1)If an application is made under section 773, the FWC must deal with the dispute (other than by arbitration).
Note:The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(2)Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private…
(3)If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a)the FWC must issue a certificate to that effect; and
(b)if the FWC considers, taking into account all the materials before it, that arbitration under section 777, or an unlawful termination court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4)An unlawful termination court application is an application to a court under Division 2 of Part 41 for orders in relation to a contravention of subsection 772(1).
778 Taking a dispute to court
A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:
(a)both of the following apply:
(i)the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute;
(ii)the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days