A proposed ethos clause in an enterprise agreement for teachers employed by Catholic schools in NSW (as reported in the Daily Telegraph), has reignited debate on finding the balance between a faith-based employer’s legitimate rights and the employee’s private life.

The debate has arisen in the context of broader enterprise agreement re-negotiation, which, we understand, is part of a plan to consolidate multiple enterpise agreements into one central agreement to cover multiple dioceses in NSW (one would assume to provide a simpler and consistent framework of rights and entitlements across dioceses in the State).

An ethos clause usually sets out the employer’s values and the expectation that employee's values be aligned with those. An example of a broadly drafted ethos clause is included in The University of Notre Dame's Enterprise Agreement which states that 'all Staff Members agree to support the ethos of the University and respect the values and teachings of the Catholic Church'.

The inclusion of such a clause is common where an employer is a religious institution. Religious bodies and faith-based educational institutions come under the exemptions from the requirements of the Sex Discrimination Act 1984 (Cth) relating to sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with their employees.  Provisions under the Fair Work Act 2009 (Cth) allow religious bodies and faith based-educational institutions to discriminate on various other grounds, including religion.

The Fair Work Commission has consistently held that employers may protect their legitimate interests through their actions and in their employment contracts. In the case of Not-For-Profits, legitimate interests are often related to the reputation of the organisation, and can extend to the way an employee's behaviour reflects on the organisation. In the context of a not-for-profit employer, legitimate interests can extend to protecting the reputation and interests of the Church and its teachings, including via the inclusion of ethos clauses in employment contracts.

The Fair Work Commission has also recognised that an employee's obligations to their employer don't stop after they leave work, so compliance with ethos clauses can extend to actions outside of school, including social media use. The Independent Education Union in its guide to staff in independent schools 'Social media and work – what not to do', warns that 'for employees in faith-based schools, posts on your personal Facebook page which conflict with the values or ethos of the school may be sufficient grounds for a warning'.

A spokesperson for the Catholic Commission for Employment Relations commented that 'our ethos provisions are a clear expression of identity and expectations that are made clear to staff. It is not a change; we are putting it upfront and in the agreement'.

As enterprise agreements are, by definition, an agreement between two or more parties (and require ratification by the Fair Work Commission) finding a comfortable balance between the interests and rights of employer and employees will vary by organisation and circumstances.  And as always, a successful enterprise agreement means that all parties can live with the outcome.