From an article:
One of the stated objectives of Part 6-4, Division 2 of the Fair Work Act is to give effect to International Labour Organisation Conventions 111 and 158, which were adopted in 1958 and 1982 respectively, then and ratified by Australia in 1973 and 1993.
The ILO is an agency of the United Nations. Under these two instruments of international law, Australia agreed that it would enact laws eliminating religious and other discrimination in employment AND that it would legislate so that employment can't be terminated on invalid grounds, including because of an employee's religion.
According to the ILO, such religious discrimination includes discrimination based on a person's expression of their religious beliefs.
Accordingly, section 772(1) of the Fair Work Act makes it unlawful (subject to some irrelevant exceptions) for an employer to terminate an employee's employment because of, or for reasons including an employee's religion. And if an employee's religion includes a person's expression of their religious beliefs - "believers" hardly worship in a vacuum - then was Folau terminated for reasons including his religion, or not?
If an employee's employment is nonetheless terminated because of reasons including those which are statutorily unlawful under section 772(1), the employee has 21 days after the termination, to apply to the Fair Work Commission, asking it to deal with the matter.
Usually, the FWC deals with such matters by way of mediation or conciliation. Those methods of touchy-feely dispute resolution won't cut the mustard though, in resolving the dispute to the satisfaction of either RA and Folau. So once the FWC agrees, the Act requires it to issue a certificate to that effect. Thereafter, Folau is free to take his unlawful termination case to the Federal Court of Australia.
Remember, we're dealing with "unlawful" termination, not a guillotining which is merely unfair or harsh. Once unlawful termination is alleged, it's up to RA to prove the termination wasn't anything to do with any unlawful reason, or for reasons INCLUDING that unlawful reason.
And if RA can't prove the termination had nothing at all to do with religion, then the Federal Court has the full jurisdiction to order that RA reinstate Folau; pay him full compensation; pay his (no doubt significant) legal bills; and pay a civil penalty of $A50,000 or more.
It's fair to say that an immense amount hinges on RA being able to absolutely delineate between it having terminated Folau's employment because he breached RA's applicable code of conduct by reason of expressing his religious beliefs; but NOT because of his religion, religious beliefs or the expression of those beliefs.
Moreover it's a dangerous division to say that a professional athlete's right to genuinely express their religious beliefs is mutually exclusive with his or her right to work.