Legal expert weighs in with tips for employers on how to handle cultural practice
It has become an almost compulsory ritual in government departments and at major sporting events to hear a “Welcome to Country” performed by an identified Aboriginal group.
But should these be compulsory for employees?
Total Shape practices the Welcome to Country greeting, according to Isaac Robertson, founder — but employees have a choice.
“We firmly believe in the autonomy and freedom of our employees,” he said. “It is crucial for us to respect their individual choices and preferences. Therefore, we allow our employees to opt out of any cultural practices, including the ‘Welcome to Country’ greeting, if they have personal objections or religious beliefs that prevent them from participating.”
The company values open communication and encourages employees to express their concerns or seek accommodations that align with their personal convictions, Robertson said.
“It is essential to distinguish between ‘forcing’ employees and encouraging cultural understanding and respect. While some companies may require employees to participate in cultural rituals, we do not enforce participation in practices that employees do not believe in.
“We understand that cultural rituals and practices hold different meanings and significance to individuals, and it is not our intention to impose beliefs on our employees.”
Employee rights around Acknowledgements
“There is not presently, nor unlikely to be in the future, a legally compellable basis to say a Welcome to County or Acknowledgement of Country,” Robin Young, partner, Holman Webb Lawyers workplace relations group.
“The only imaginable basis for such a compulsion would be under contract, which also seems highly unlikely. It would be tantamount to a legal compulsion to sing the national anthem.”
The Welcome and the Acknowledgement are opportunities to acknowledge, show awareness and pay respect to the traditional owners of the land, their laws, and customs, he said.
“One cannot legally compel such respect and acknowledgement. Where a Welcome or Acknowledgement is given, there are specific protocols which should be observed.”
To unilaterally impose a mandatory requirement, “without consultation and due consideration for the sensibilities and circumstances of the employees would be to invite controversy and probably disputes and disharmony,” Young said.
Imposing a requirement “under duress or undue influence” may breach the Fair Work Act 2009 (Cth) or constitute harassment, bullying or intimidation, he said.
And an employer may enforce lawful and reasonable directions or requests, but what is reasonable will vary according to the circumstances.
“An employee may have a number of reasons to refuse or decline to give a Welcome or Acknowledgement,” Young said.
Guidelines, work protocols
However, employers can put in place guidelines around work protocols that ensure respect to such rituals, which would fall under the Fair Work Act.
“If an employer wishes to recognise and pay respects to the traditional owners of the land, the laws and customs, it may reasonably encourage incorporate an Acknowledgement into a standing agenda,” he said.
“It could encourage the workforce to endorse its policy through participation in respectful ceremonies and customs such as acknowledgements. Those unwilling to deliver such acknowledgements and the like may reasonably decline, stand aside, or absent themselves. It would be an unlawful to subject objectors to any form of victimisation or retaliation.”
Employers could simply send an email around to employees asking if they want to participate beforehand — though that may impact or cause division within a small company.
