Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) - [2004] NSWCA 404

No judgment structure available for this case.

CITATION: AMERY & ORS. v. STATE OF NEW SOUTH WALES (DIRECTOR-GENERAL NSW DEPARTMENT OF EDUCATION AND TRAINING) [2004] NSWCA 404

HEARING DATE(S): 01/06/04, 02/06/04, 03/06/04

JUDGMENT DATE:
15 November 2004

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 159; Cripps AJA at 208

DECISION: 1. Appeal allowed.; 2. Set aside Orders made by the Appeal Panel.; 3. Refuse leave to the respondent to appeal on the merits.; 4. Reinstate Orders 1-18 made by the Tribunal.; 5. Set aside Orders 19 and 20 made by the Tribunal.; 6. Order that the appellants are each entitled to interest on the damages awarded provided that the total amount of damages with interest does not exceed $40,000.00; 7. The parties are to bring in Short Minutes or Order to reflect Order 5 within 7 days of the date of these Orders but are to have liberty to apply in respect thereof.; 8. Order that the respondent pay the appellants' costs in the Tribunal and before the Appeal Panel but the parties are to have liberty to apply in respect of same. If such liberty is to be exercised, then it is to be by way of written submissions served upon the opposing party by Thursday 18 November and delivered to the Associate of the Presiding Judge by Friday 19 November 2004 .; 9. The respondent is to pay the appellants' costs of the appeal.

CATCHWORDS: DISCRIMINATION - Indirect discrimination on grounds of sex - Motive for indirect discrimination is irrelevant. - DISCRIMINATION - Construction - Anti-Discrimination Act 1977, s.24(1)(b) - The words "on the ground of the aggrieved person's sex" in s.24(1) are mere surplusage in relation to s.24(1)(b) - The test of 'reasonableness' in s.24(1)(b) is less demanding than one of necessity, but more demanding than a test of convenience. - DISCRIMINATION - Tribunals - Industrial questions - Anti-Discrimination Act 1977, s.54 - Amendments - Existence of an award or industrial agreement is no longer a defence. - ERROR OF LAW - Onus - Relevant and irrelevant considerations - The question whether a consideration is relevant falls to be determined having regard to the matter in issue - Existence of specialist industrial tribunal - Role of court in relation to industrial disputes. - INTEREST - Administrative Decisions Tribunal Act 1997 - Whether claimants entitled to interest by way of compensation for the loss of the use of money that ought to have been paid to them by way of salary but for the discriminatory conduct - A claim for damages under the Act may include a claim for compensatory interest. - COSTS - Administrative Decisions Tribunal Act 1997, s.114(2) - Determination of the application for costs under this section was a question of fact not law.

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination (Amendment) Act 1981(No. 15)
Anti-Discrimination Amendment Act 1994 (No. 28)
Industrial Relations Act 1991
Public Finance and Audit Act 1983
Teaching Services Act 1980

CASES CITED: Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165
Australian Medical Council v. Wilson (1996) 68 FCR 46
Commonwealth Bank v HREOC (1997) 80 FCR 78
Hungerfords v. Walker (1989) 171 CLR 125
IW v. City of Perth (1997) 191 CLR 1
Saraswati v. The Queen (1991) 172 CLR 1
Secretary, Department of Foreign Affairs and Trade v. Styles (1989) 23 FCR 251

PARTIES :
Joyce Amery, Lyn Bovard, Margaret Douglas, Jenny Drury, Linda Freeman, Leonie Hancott, Jacki Irvine, Denise McHugh, Karen Mors, Cheryl O'Loan, Marian Platt, Megan Pursche, Marcia Skelton (Appellants)
State of New South Wales (Director-General NSW Department of Education and Training) (Respondent)

FILE NUMBER(S): CA 40548/03

COUNSEL: C. Birch SC/P. Lowson (Appellants)
P. Menzies QC/T. Anderson (Respondents)

SOLICITORS: MacMahon Associates Lawyers (Appellants)
The Crown Solicitor (Respondent)

LOWER COURTJURISDICTION: Appeal Panel of the Administrative Decisions Tribunal of New South Wales

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER :

- 71 -

CA 40548/2003

BEAZLEY JA
HODGSON JA
CRIPPS AJA
15 November 2004

AMERY & ORS. v. STATE OF NEW SOUTH WALES

(DIRECTOR-GENERAL NSW DEPARTMENT OF EDUCATION

AND TRAINING)

HEADNOTE

The NSW Department of Education (the Department) employs teachers on both a permanent and casual basis and pays them in accordance with pay scales determined by industrial awards or agreements in place from time to time. These scales differentiate between permanent and casual teachers. The highest increment on the scale for casual teachers is equivalent to the 8th of 13 increments of the pay scale applicable to permanent teachers. The appellant female teachers contend they have been discriminated against on the ground of sex under s.24 Anti-Discrimination Act 1977(NSW) because, as casual teachers, they cannot access the higher salary increments paid to permanent teachers, even though, on their case, they performed work of equal value.

The appellants each brought a claim for damages under the Anti-Discrimination Act in the amount of the difference in the salary they earned as casual teachers and the salary they say they should have been paid but for the discrimination.
The appellants’ claims were upheld by the Administrative Decisions Tribunal. The Department successfully appealed to the Appeal Panel. The appellants appealed to the Court of Appeal from the decision of the Appeal Panel.

(i) In its consideration of the appellants’ claim brought in relation to s.24(1)(b) of the Anti-Discrimination Act , the Tribunal did not err in law.
(ii) Accordingly, the decision of the Tribunal should be reinstated.
(iii) As the Department has had a determination on the merits, the application for leave to appeal on the merits should be refused. [144]

(iv) The motive or reason for the discriminatory conduct is irrelevant in a case of indirect discrimination under s.24(1)(b) of the Anti-Discrimination Act. [42]

(v) In s.24(1), the words “on the ground of the aggrieved person’s sex” are surplusage in relation to s.24(1)(b) and should be ignored. Saraswati v The Queen (1991) 172 CLR 1 . [49]
(vi) The test of ‘reasonableness’ in s.24(1)(b) is less demanding than one of necessity, but more demanding than a test of convenience; Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 . [77]

(vii) The question whether a substantially higher proportion of males than females comply with the condition is a question of fact; Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 . [136]

(viii) On the proper construction of s.24(1)(b), it is sufficient that the appellants do not comply with the condition regardless of whether their non-compliance flows from some immutable characteristic or from a different cause; Australian Medical Council v Wilson (1996) 68 FCR 46 . [133]
per Hodgson JA:

(ix) The “requirement or condition” referred to in s.24(1)(b) must be one having application to a substantial number of persons. Its application to the aggrieved person must be by reason of its terms rather than by reason of a specific act directed by the perpetrator against the particular aggrieved person as this would be a clear case of direct discrimination. [169]
(x) If the requirements of s.24(1)(b) were satisfied in circumstances where a particular aggrieved person was disadvantaged because of an unreasonable choice by that aggrieved person, relief could be refused. [177]

(xi) There was no error of law in the Tribunal’s decision.

(xii) Accordingly, subject to the Department’s application for leave to appeal on the merits, the Appeal Panel erred in law in determining the matter on the merits.
(xiii) The Appeal Panel erred in law in its determination on the merits in deciding the appellants’ claims on a different basis from that advanced and by failing to consider the claims on the basis in fact advanced.

Relevant/Irrelevant considerations:

(xiv) The question whether a consideration is relevant falls to be determined having regard to the matter in issue. In this case, the matter in issue was whether the requirement to have permanent status in order to have access to higher salary scales was not reasonable in all the circumstances of the case. [82]

(xv) A Tribunal or judicial body misdirects itself if it asks the wrong question. In focussing on the question of work value, the Tribunal did not misdirect itself. The question of work value was pivotal to the way the appellants defined their case. [106]

(xvi) The Tribunal did not act beyond jurisdiction as it did not determine pay scales and thereby did not infringe upon the jurisdiction of the Industrial Commission. [108]

Per Beazley JA (Cripps AJA agreeing)

(xvii) It is no answer to a discriminatory requirement to assert that a specialist tribunal established the parameters of the discrimination in an award or approval of an industrial agreement. That would have been an answer before the amendments to s.54 of the Anti-Discrimination Act in 1994. [109]

Teaching Services Act 1980 (NSW)

Teaching Services Act.

[124]

Interest/Costs:
(xix) As a matter of law, the appellants are entitled to interest by way of compensation for the loss of the use of money that ought to have been paid to them by way of salary but for the discriminatory conduct: Hungerfords v Walker (1989) 171 CLR 125 . In failing to consider whether, as a matter of law, a claim for damages under the Administrative Decisions Tribunal Act 1997 (NSW) could include a claim for compensatory interest, the judicial member of the Appeal Panel erred in law. [154]

Administrative Decisions Tribunal Act

[157]

[185]

[186]

(iii) In light of this, the fact that rates of pay are determined by an award arrived at after careful investigation by a specialist tribunal is a significant factor in determining whether the Department’s requirement is not reasonable. [186]

Relevant/Irrelevant considerations:

Teaching Services Act

[187]

(v) This Court is in as good a position as the Appeal Panel to determine the case on the merits and should do so. [200]

(vi) Where there has been an agreement and/or award, arrived at after proceedings involving the Department and the relevant union(s) and a specialist tribunal, itself bound to have regard to the Anti-Discrimination Act , it is prima facie reasonable for the Department not to make over-award payments to one class of persons dealt with by an award. To do so would have the potential for disruption of good industrial relations. [202]

(vii) A finding by a non-industrial tribunal that the arguable grounds referred to at (ii) – (iv) above do not, on the balance of probability, justify differences in payment, is not sufficient to show that it is not reasonable for the Department to refrain from over-award payments to a class or sub-class of persons. [202]

[204]

********

CA 40548/2003

BEAZLEY JA
HODGSON JA
CRIPPS AJA
15 November 2004

AMERY & ORS. v. STATE OF NEW SOUTH WALES

(DIRECTOR-GENERAL NSW DEPARTMENT OF EDUCATION

AND TRAINING)

Judgment

BEAZLEY JA :
Introduction

1 The appellants are female school teachers who are or have been employed on a casual basis by the State’s Department of Education (the Department) and have all reached the top of the pay scale for casual teachers.

2 The Department pays its teachers in accordance with industrial awards or agreements in place from time to time. Relevantly for the purposes of this case, the pay scales were, between December 1993 and 27 August 1996, governed by the Teachers and Related Employees Enterprise Agreement made under the Industrial Relations Act 1991 (NSW). Since 27 August 1996, salary rates have been governed by the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award (the Award) made under the Industrial Relations Act 1996 (NSW).

3 At least since 1983, those awards and agreements have differentiated between permanent and casual teachers. Permanent teachers are paid according to a scale with 13 incremental components. A permanent teacher advances to the next increment every twelve months, until the teacher reaches the top or 13th increment. Thereafter, further salary advancement only occurs if the teacher is appointed to a position of Deputy Principal or Principal.

4 Casual teachers are paid according to a scale that is limited in its incremental increases to five, the highest increment of which is equivalent to the 8th increment of the permanent pay scale. A casual teacher advances to the next increment after having worked 203 teaching days which has been determined to be the equivalent of a one-year teaching period: see Crown Teachers (Casual) Award (1984) 11 IR 196 at 199. As there is no increment beyond the 5th step of the salary scale, the salary of casual teachers who have worked at that level for an equivalent one-year period, remains fixed at that increment. The consequence is that they are thereafter paid less than permanent teachers with equivalent teaching experience.

5 The pay scale for casual teachers includes a loading to take account of “the disabilities attendant upon casual employment” per Bauer J: In re Crown Teachers (Casual) Award [1983] AR (NSW) 672, including the fact that casual teachers do not receive various leave and other entitlements provided to permanent teachers. However, the appellants say that has no relevance to their basic complaint which relates to the fact that the casual teachers’ pay scale increments stop at a level equivalent to level 8 of the permanent teachers pay scale.

6 Most of the appellants have applied for appointments as permanent teachers. All appellants have placed geographical limitations on the teaching jobs they are prepared to accept, both, or either, on a permanent or casual basis. For the most part, family responsibilities have influenced the appellants’ decisions in this regard. At various times during these proceedings an argument emerged that the effect of placing geographical limitations on the teaching jobs they would accept has meant that those

appellants who have applied for permanent teaching appointments have been unable to obtain a permanent position. However, as discussed below, this is not the issue on the appeal, nor was it the issue in the proceedings before the Tribunal or Appeal Panel. Some of the appellants have also placed limitations on the subject areas in which they will teach if offered a position, although this factor has not featured as a significant matter on the appeal.

7 For the purposes of their claims, the appellants distinguish between appointments as casual teachers for periods of at least 8 consecutive weeks and appointments for lesser periods. The appellants have all taught for at least 8 consecutive weeks in the same school. Their case is that teaching for at least that length of time has the same work value as the work of a permanent teacher of equivalent teaching experience. They acknowledge that teaching appointments for periods of less than 8 consecutive weeks may involve work of a lesser value than that performed by permanent teachers.

8 The appellants claim that as casual teachers performing work of equal value in teaching for periods of at least 8 consecutive weeks they are paid less than permanent teachers of equivalent teaching experience because of the difference in pay scales for permanent and casual teachers. The difference is about 20%. The appellants claim that within the terms of s.24(1)(b) of the Anti-Discrimination Act 1977 (NSW) (the ADA) they have suffered discrimination on the grounds of sex. Section 25(2)(a) of the ADA provides that it is unlawful for an employer to discriminate against an employee on the ground of sex in the terms or conditions of employment which the employer affords the employee.

9 The appellants each brought a claim for damages in the Administrative Decisions Tribunal of New South Wales under s.113 of the ADA claiming the difference between the salary they earned as casual teachers and the salary they say they should have been paid but for the discriminatory conduct. The appellants’ claims are in respect of a period that commences on 8 August 1994, which was the date upon which s.54 of the ADA was amended to remove reliance upon an industrial award or agreement as a defence to a claim of unlawful discrimination. The appellants’ claims were heard together as the essential allegations were the same in each.

10 In order to establish discrimination under s.24(1)(b) of the ADA, the appellants had to establish that they were required to comply with a condition or requirement (the condition) which was not reasonable in all the circumstances and with which a substantially higher proportion of persons of the opposite sex (in this case male teachers) complied or were able to comply and with which they, being female teachers did not comply or were not able to comply. Each of the components of this claim is under challenge on the appeal. As the identification of the condition is a preliminary and fundamental step in understanding the appellants’ claim, I will refer to that immediately.

The condition

11 Because the Department pays its teachers in accordance with the provisions of the industrial award or agreement in force or effect from time to time, casual teachers are not entitled to the higher pay increments applicable to permanent teachers. The appellants contend that the requirement to hold a permanent appointment so as to be entitled to the higher pay scales is a requirement or condition within s.24(1)(b). I will refer to this condition as the requirement to have permanent status. They argue that the requirement to have permanent status is not reasonable given that they performed work of equal value (being teaching work in blocks of at least 8 weeks) during the period of their claims.

12 The Tribunal held that the award that governs teacher salaries contains a requirement or condition “that in order to qualify for higher rates of pay and entitlements as a teacher in NSW, it is necessary to have permanent status”. This is not correct because the award does not contain such a condition. Rather, it is the Department’s practice of not making over-award payments that imposes the requirement. However, it is apparent that this is the basis upon which the case was understood and conducted by the parties. It also appears that this is the way that it was understood and dealt with by the Appeal Panel, because at [AP.22] it says:

“In short, the Tribunal determined that classification as a permanent member of the teaching service was a prerequisite ‘for winning access to the higher salary scales under the award and enterprise agreement’.”

13 It will be important to keep in mind when reading these reasons that on the appellants’ case, the requirement to have permanent status relates, not to permanent appointment per se, but to the need to have a permanent appointment to be able to access the higher pay increments.

14 The Department did not agree that the condition could be defined in the manner identified by the appellants. It said that it was not possible to separate the condition from the circumstances in which it was imposed. It contended that there were two circumstances in particular that were relevant to understanding what the condition was. The first was that there are conditions imposed by the Teaching Services Act 1980 (NSW) with which permanently appointed teachers must comply but which do not apply to casual teachers. One such condition was said to be that permanent teachers cannot refuse to teach at a school because of its location: see Teaching Services Act ss. 71,75.

15 Secondly, in paying casual teachers differently, the Department was applying the terms and conditions set by the industrial awards or agreements made or approved by the Industrial Commission (later the Industrial Relations Commission) of New South Wales. Underpinning this argument, the Department pointed out that the Industrial Commission of New South Wales had, in 1983, determined that the work undertaken by casual teachers was not of equal value to the work performed by permanent teachers. However, it accepted that work performed by teachers who taught for 100 days in the year was “more valuable and equates more to the work of permanent teachers than those who work fewer days”: In re Crown Teachers (Casual) Award per Bauer J at 712. For that reason, his Honour differentiated in the award between casual teachers who worked the greater number of days and those who worked less. It was not part of his Honour’s finding that the former group worked consecutive days or weeks. On appeal the Commission in Court Session did not restrict the favourable award consequences that flowed from this finding to teachers who worked 100 days in a year but held that benefits accrued after 100 days of service: (Re Crown Teachers (Casual) Award). In subsequent pay claims the work value of teaching services provided by casual teachers has not been advanced as an issue.

The Tribunal decision

16 The Tribunal found that the work performed by the appellants was of equal value to that of permanent teachers and held that in all the circumstances the appellants had established that the requirement to have permanent status was not reasonable. The Tribunal made separate awards of damages in favour of each appellant.

The Appeal Panel decision

17 The Department appealed to the Appeal Panel under s.113(1) of the Administrative Decisions Tribunal Act 1997. An appeal to the Appeal Panel is on a question of law: s.113(2)(a). The Department also sought leave under s.113(2)(b) to appeal on the merits. The Appeal Panel upheld two aspects of the Department’s appeal on a question of law. The first was that the Tribunal had reversed the onus in determining whether the condition was not reasonable (the onus issue). The second was that the Tribunal had failed properly to weigh the nature and extent of the discriminatory conduct in determining that the condition was not reasonable (the weighing up issue).

18 Having found that the Tribunal erred in law, the Appeal Panel then itself determined the question whether the requirement to have permanent status was not reasonable. It found in favour of the Department on the basis that the appellants had not discharged the onus of demonstrating that the condition was not reasonable. The Appeal Panel thus allowed the Department’s appeal and dismissed the appellants’ complaints. Having determined the claims in that way, the Appeal Panel did not deal separately with or otherwise refer to the Department’s application for a review on the merits.

The Appeal to this Court

19 The appellants appeal to this Court from the Appeal Panel’s decision. The appeal to this Court is on a question of law only: Administrative Decisions Tribunal Act, s.119. The appellants contend that the Appeal Panel erred in law in finding against it on the onus and weighing up issues. If they satisfy the Court that there was such error, they submit that the Appeal Panel was not entitled to determine whether the appellants had established that the requirement to have permanent status was not reasonable and that the decision of the Tribunal should be reinstated. Alternatively, they contend that if the Appeal Panel correctly found that the Tribunal erred in law on the onus issue or on the weighing up issue, it erred in law in dismissing the appellants’ claims.

20 The Department seeks to uphold the findings of the Appeal Panel in its favour. It also challenges, by Notice of Amended Contention, the Appeal Panel’s determinations against it on the other challenges made to the Tribunal’s determination. The consequence is that all matters that were in issue before the Appeal Panel remain in issue on the appeal to this Court.

Issues on the Appeal

21 The specific issues in this Court as they emerge both from the appellants’ appeal and from the Department’s Amended Notice of Contention may be summarised as follows:

1. What is the proper construction of s.24(1)?

2. What was the correct characterisation of the condition with which the appellants were required to comply? (The permanent status issue to which I have already referred)

3. Whether the Tribunal had reversed the onus of proving whether the condition was not reasonable (the onus issue).

4. Whether the Tribunal had failed to properly weigh the nature and effect of the discriminatory conduct (the weighing up issue) This issue is best divided into the following sub-issues:

(a) Proper approach to the weighing up process

(b) Relevance of individual choice

(c) Whether the Tribunal had failed to have regard to the beneficial nature of the casual teaching arrangements

(d) Whether the Tribunal asked itself the wrong question in the weighing up process

(e) Wrong characterisation of evidence

(f) The flow-on effect

(g) Work value

(h) Significance of existence of a specialist industrial tribunal

(i) Whether the Tribunal considered work value in an impermissible context

Teaching Services Act 1980

5. Whether the appellants satisfied the statutory requirement that they did not or were not able to comply with the condition.

6. Whether the appellants had established that a substantially higher proportion of men than women complied or were able to comply with the condition or requirement.

7. Whether the Appeal Panel erred in law in finding that the appellants had failed to establish that the condition was not reasonable.

8. Whether the condition was not reasonable in all the circumstances.

22 The last of these issues will only arise if the decision of the Appeal Panel is set aside and this Court decides that it is appropriate for it to enter upon the determination of that question.

23 There is also outstanding the status of the Department’s application to the Appeal Panel for leave to appeal on the merits. I will deal with that separately. Leaving that aside however, as the appeal and the contention grounds involve questions of law only, the Court is not concerned with a detailed assessment of the factual aspects of the case. Accordingly, I will only refer to the facts by way of overview and as might be necessary to deal with a particular issue.

24 Finally, if the appellants are successful, they claim an entitlement to interest on the amount of damages awarded. They also claim costs of the hearing before the Tribunal.

Factual overview

25 The appointment of teachers as either permanent or casual is authorised by the Teaching Services Act: ss.8(1),47, 48 and 50.

26 Within the Department’s internal structure, casual teachers are categorised either as short-term relief casuals or supply casuals. Short-term relief casuals are employed to fill short-term vacancies, generally of less than 10 days duration and which may be as short as an hour. Supply casuals encompass two groups. The first consists of supply casuals who are employed to teach in a full-time or part-time vacant position that is part of a school’s formula-based teacher entitlement. The second group is made up of teachers appointed to fill the position of a permanent teacher who is on a period of extended leave e.g. sick leave, maternity leave or long service leave, or of a teacher who is on secondment. This group may also be appointed to fill a specially-funded or school-funded position. A supply casual may be appointed for a period in excess of a year.

27 The availability of casual teaching staff is important, and probably essential, to the conduct of the teaching service. It assists the Department to maintain both the continuity and flexibility of teaching services. Thus, by way of example, the Department can, by the use of casual teaching staff provide relief for permanent teachers from face to face teaching; to properly take account of fluctuations in enrolments; to provide teaching resources for specialised programmes and to deal with changing curriculum patterns, and, as indicated, facilitates the taking of various types of leave by permanent teachers.

28 For the most part, the appellants had stopped teaching on a permanent basis because of family responsibilities. All but two of the appellants had reapplied to the Department for permanent positions but, mostly because of family reasons, had placed a limitation on the areas in which they were prepared to work. The details of the geographical limits are not relevant to the issues raised on the appeal. They are referred to by the Appeal Panel at [AP.55]. It is worth observing however, that the limits requested by the individual appellants varied markedly. For example, Ms. Hancott had limited her availability for permanent employment to one school whereas Ms. Platt had limited her availability to schools within a 50 kilometre radius of Tenterfield and subsequently to various schools located on the north coast. Ms. Amery and Ms. Irvine had not sought permanent positions but had placed limitations on the schools at which they were prepared to teach on a casual basis. Unlike the other appellants for whom family reasons was the major consideration in limiting the geographical region in which they work teaching, Ms. Amery, who was a pastor, had limited her geographical area to Kogarah to enable her to attend to her pastoral duties.

29 Section 38 of the Teaching Services Act empowers the Director-General of Education inter alia to determine transfers of officers: s.38(1)(h). A permanently appointed teacher who refused to comply with a direction given under s. 71 of the Teaching Services Act, as to the school at which he/she was to teach would, under s.75 of the Act, be dismissed, unless any reason the teacher advanced for not complying with the direction was accepted as a “valid and sufficient reason”.

30 In the course of the appeal, senior counsel for the Department explained that these provisions were not so draconian in their practical operation as the terms of the section might indicate. He accepted that family commitments could, but would not necessarily, be accepted as a valid and sufficient reason for the purposes of s.75. He also said that in submitting an application, a teacher must specify (among other things) where the teacher is prepared to teach. A teacher need not, of course, specify any limitations. The teacher’s name, together with the information required to be provided, is then placed on a computer-generated list. Teachers on the list may be appointed as soon as positions become vacant that correspond to their qualifications and any restrictions they may have placed on the subjects or the schools/locations at which they are prepared to teach. Senior counsel had also explained this to the Tribunal in these terms:

“My point about being able to be willing to work anywhere is not that that is a condition of permanency at all, but that it means that persons who are prepared to put up with the discomfort of going to where they are sent are more likely to obtain permanent employment earlier.

…

That is the only but important effect of broadening the places where you will say you will work. There is no condition on it. You can say, as these people do, I will work on the northern beaches. That’s fine, and the answer to that then is this: you will get a job at a school on the northern beaches when such a job becomes available and you are at the top of the list …”

31 Teachers employed on a casual basis are not subject to the direction of the Director-General under ss.38,71 and 75 in relation to transfers and, it follows, to the locations at which they are required to teach. The practical effect of this is that the Department respects any geographical limitation that a casual teacher requests, with the result that teaching positions offered to a particular teacher become correspondingly limited to available positions in the nominated location.

32 Against that background, I will proceed to deal with each of the issues that arises on the appeal and in the Amended Notice of Contention.

First Issue: Proper construction of s. 24(1)(b)

33 The Department contended that the appellants were not discriminated against on the ground of sex because the requirement to have permanent status was not imposed on the ground of the sex of the appellants as needed to be established on the plain reading of s.24(1)(b). To understand this argument, it is necessary to go directly to the terms of the section. It provides:

“24 What constitutes discrimination on the ground of sex

the perpetrator

the aggrieved person

on the ground of the aggrieved person’s sex

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex … or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, … comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

…”

34 Para. (a) of sub-s.(1) relates to what is typically described as direct discrimination and para. (b) to circumstances of indirect discrimination. The appellants’ claim was one of indirect discrimination under para. (b).

35 The Department contended that upon a reading of the express words of s.24(1)(b) the motive or reason for the discriminatory conduct determines whether or not the conduct is unlawful. This was so because of the placement of the words “on the ground of the aggrieved person’s sex” after the word “if” in the second line of sub-s.(1). When regard was had to those words, the section was plain and unambiguous and was to be read, (omitting unnecessary parts) as follows:

discriminates

if, on the ground of the aggrieved person’s sex

36 The Department submitted that if that meaning was not given to s.24(1)(b) then the words “on the ground of the aggrieved person’s sex” would have to be treated as mere surplusage insofar as para. (b) is concerned. There was no warrant, on the Department’s argument, to give those words no work to do in relation to that paragraph. It followed, on this construction, that the appellants must fail as there was no evidence to establish that permanent status was, as senior counsel for the Department put it:

“imposed as a condition of salary progression (beyond the equivalent of level 8 of the permanent teachers’ pay scale), because the [appellants] were female”.

37 In my opinion, there are three considerations that tell against the Department’s argument. The first derives from the statutory history of the section. The second relates to the purpose of indirect discrimination provisions. The third is the operation of s. 24(1A).

38 Section 24(1), as originally enacted, provided:

“24(1) A person discriminates against another person on the ground of his sex if, on the ground of -

(a) his sex;

(b) a characteristic that appertains generally to persons of his sex; or

(c) a characteristic that is generally imputed to persons of his sex,

he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of the opposite sex.

39 The provision in these terms related only to direct discrimination: Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165; Commonwealth Bank v HREOC (1997) 80 FCR 78 at 97.

40 The section was amended by the Anti-Discrimination (Amendment) Act 1981 (No. 15) so as to add a new sub-s.(3) which provided:

“(3) A person discriminates against another person on the ground of his sex if he requires the other person to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons of the opposite sex to the sex of the other person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the other person does not or is not able to comply.”

41 New sub-s. (3) introduced the notion of indirect discrimination into the Act. In Banovic, Deane and Gaudron JJ at p.175 described the subsection as: “usually [being] understood to refer to indirect discrimination or acts having a disparate impact on men and women.” Their Honours further observed that the equivalent American and Canadian decisions:

“…have been applied to acts or decisions made by reference to criteria or standards which are apparently non-discriminatory (sometimes referred to as ‘facially neutral’) but which have a discriminatory effect.”

42 It is clear from Banovic that it is irrelevant for the purposes of indirect discrimination how or why a condition came into effect. Rather, such provisions are concerned with the existence of a circumstance, that is with the existence of a condition or requirement, which, within the statutory prescription, have a discriminatory effect. As Sackville J pointed out in Commonwealth Bank v HREOC, at p.97, direct discrimination is unlawful regardless of its reasonableness, whereas to be unlawful, a condition or requirement that is neutral in its terms but has a disparate impact on men and women must be “not reasonable having regard to the circumstances of the case.” His Honour added:

Waters v Public Transport Corporation

43 Section 24(1) in its present form was inserted by the amendments introduced by the Anti-Discrimination Amendment Act 1994 (No. 28). That Act introduced provisions relating to HIV/AIDS vilification and made other amendments to bring some conformity of application to the various forms of discrimination outlawed by the legislation.

44 By the amendments, ss.24 (1) and (3) were omitted but were re-enacted in the form the section now bears, so that, the provisions of sub-s.1(b) are in virtually identical terms as sub-s.(3), save that the introductory provision to the section is framed as an introduction to both paragraphs of sub-s.(1). As the Appeal Panel observed at [AP.17], the amendments collapsed “two discrete sub-sections into one”. The amendments were described as “minor” in the Second Reading Speech.

45 If sub-s.(1)(b) is to be given the interpretation for which the Department contends, it would mean that the effect of the 1994 amendments was to remove the concept of indirect discrimination on the ground of sex from the Act and to replace it with two forms of direct discrimination. In the case of direct discrimination under para. (a) motive, or purpose or intention would need to be proved. But if a party relied on para. (b), not only would a gender discriminatory purpose or intention have to be proved, the person aggrieved would also need to prove each element of para. (b). Further, the paragraph, on this construction, would have no application to systemic discrimination where there may be inadvertent discriminatory consequences of particular requirements or conditions. As the Appeal Panel correctly observed at [AP.12], on such a construction “every act of indirect discrimination becomes an act of direct discrimination”.

46 The construction for which the Department contends is also denied, in my opinion, by the provisions of sub-s.(1A), introduced as part of the 1994 amendments, which provides:

“For the purposes of subsection (1)(a),

47 By its terms, sub-s.1(A) is confined to para. (a) of s.24(1). If the legislature intended the phrase “on the ground of the person’s sex”, to apply to both paras. (a) and (b) then there would, or at least should, have been an express provision to that effect. To construe s.24 in a way to give effect to the Department’s construction of s.24(1)(b) requires a finding that sub-s.1(A) contains a drafting omission.

48 However, when regard is had to the legislative history of the section, the purpose of the legislation and the terms of sub-s.(1A), I consider that there has been a drafting error in the introductory words of s.24(1), rather than a drafting omission in sub-s.(1A). If that subsection was intended to apply to para. (b) as well as para. (a), the indirect discrimination provisions would be nullified.

49 When an error occurs such that words are used which have no meaning or which negative the statutory purpose, it is both permissible and necessary for the court to omit the words from the section under consideration: Saraswati v. The Queen (1991) 172 CLR 1 especially per McHugh J at p.22. Accordingly, in, my opinion s.24, is properly construed so that the words “on the ground of the aggrieved person’s sex” after the word “if” in the opening paragraph of sub-s.(1) have no work to do or are mere surplusage in relation to para. (b). They should be ignored.

Second Issue: Characterisation of the condition:
The requirement to have permanent status

50 I have already referred to the condition that the appellants contend had the discriminatory effect of which they complain. That condition was that if they were to be entitled to the higher increments in the salary scale available to permanent teachers they were required to hold appointments as permanent teachers notwithstanding that as casual teachers they did work of equal value.

51 The Department said that the appellants’ case did not fully reflect the relevant conditions under which teachers, whether permanent or casual, were employed and that the condition that the appellants claimed was not reasonable could not be identified without regard to all the surrounding circumstances. This approach, however, collapses the identification of the condition into the question whether the condition was not reasonable in all the circumstances. It is necessary first to identify the condition alleged to be discriminatory and to then determine whether that condition is not reasonable provided that the aggrieved person also establishes the other statutory precepts in s.24(1)(b).

52 The Department also advanced an argument that the requirement to have permanent status was not a condition with which the appellants had to comply. Rather it was a term of employment that arose out of a statutorily regulated system of classification, reinforced by a series of industrial awards and determinations, the genesis of which could be found in the decision of Bauer J in the Industrial Commission in 1983: In re Crown Teachers (Casual) Award. As there are other issues that relate to the existence of industrial awards and agreements, this argument is more conveniently dealt with in conjunction with those issues.

53 However, the dispute between the parties did not only revolve around the definition of the condition. The appellants submitted that the Appeal Panel misunderstood their case in finding that it was part of their claim that they should have been given permanent positions within their nominated geographical and subject areas. They contend that that argument was never advanced and misapprehends the essential nature of their complaint. A review of the appellants’ submissions before the Tribunal and the Appeal Panel confirm that this was never the issue.

54 The circumstances in which the Appeal Panel decision is reviewable the ultimate conclusion needs to be understood. If the Appeal Panel was correct in finding that the Tribunal erred in law on either or both the onus issue or the weighing up issue, then it was entitled to determine (as it did) whether the appellants had made out their case under s.24(1)(b). If the Appeal Panel was incorrect in finding error of law on those issues but should have found that the Tribunal erred in law in any of the other respects alleged by the Department, then likewise, it was entitled to consider whether the appellants had established their claims. In either of those circumstances, its decision was liable to challenge in this Court on a question of law. The appellants’ primary contention before this Court is that there was no error of law in the Tribunal’s decision so that no power was enlivened in the Appeal Panel to determine their claims. However, if the Tribunal did err in law, and the Appeal Panel was entitled to determine their claims, they say that the Appeal Panel itself erred in law in that it misunderstood its case in the way explained above.

55 Strictly, therefore, the question whether the Appeal Panel misunderstood the appellants’ case does not arise at this point. However, as it is closely connected to a consideration of the “condition” that the appellants’ allege was discriminatory, this is a convenient place to deal with it.

56 The relevant passages in the Appeal Panel’s reasons are these:

“57. … there is much force in the [Department’s] submission that the nature and extent of the discriminatory effect upon the [appellants] is the denial of permanency at locations and, in some cases, in subject areas, of their choosing. A consequence of that denial is that they remain on a pay scale which limits their remuneration, compared with permanent teachers, but that consequence has a rational and understandable basis, namely the relevant enterprise agreement and award.

Waters & Ors. v. Public Transport Corporation

57 It is apparent from the passages that follow that the Appeal Panel accepted the Department’s submission. In my opinion these passages do reveal a misunderstanding of the appellants’ case. The Appeal Panel had already accepted the appellants’ definition of the condition. The error in the Appeal Panel accepting the Department’s submission would seem to be that the Appeal Panel then failed to keep at the forefront of its consideration the condition that the appellants alleged was not reasonable. The two passages quoted above can only be correct if the discrimination alleged was a failure to be given permanent status. That was never an issue. If it was, the limitation of the case to teachers who work in blocks of 8 consecutive weeks or more and the evidence in respect of equal work value would have been irrelevant.

58 The Appeal Panel’s misunderstanding was, unsurprisingly, critical to the favourable outcome of the Department’s appeal. The Appeal Panel, having accepted that the nature and extent of the discriminatory effect was the denial of permanency, used that as the basis to determine that the discriminatory effect did not outweigh the reasons why the Department needed to maintain a sufficiently large pool of casual teachers. Having made that finding, the Appeal Panel held at [AP.59] that “the appellants did not discharge the onus upon them to demonstrate the unreasonableness of the requirement in all the circumstances of the matter.”

59 It is an error of law to determine a case on a basis never advanced and to fail to determine it on the basis which was advanced. The Appeal Panel approached the determination of whether the condition was not reasonable on the basis of a condition that was never part of the appellants’ case and it failed to consider the appellants’ claims on the basis of the condition they identified. In doing so, the Appeal Panel erred in law.

Third Issue: Onus

60 The appellants at all times accepted that they bore both the legal and the ultimate evidentiary onus in respect of each component of s.24(1)(b). This is correct. The Department, in turn, bore the initial evidentiary onus on the issue of the Department’s need to maintain a system of casual staffing arrangements. The appellants then bore the ultimate onus of satisfying the Tribunal that when the evidence advanced in support of that issue was considered, in conjunction with all the circumstances of which evidence was adduced, the condition was not reasonable. The appellants contend that they satisfied both aspects of the onus they bore.

61 The Appeal Panel, in finding that the Tribunal had misapplied the onus in determining whether the condition was not reasonable, said at:

“48. …At no stage does the Tribunal articulate that the onus to establish the unreasonableness of the requirement of permanency lay upon the [appellants]. The language of the discussion implies that the Tribunal was unpersuaded of the reasonableness of the requirement by the evidence in the respondent’s case. For example, after referring to the relevant factors to be weighed, the Tribunal says ‘there was no evidence before the Tribunal to indicate that financial or economic considerations, such as might be relevant to budgetary appropriation by the Parliament explained the difference in treatment of men and women teachers or that the budget would be adversely affected by a conclusion that the condition or requirement is unlawful.’ (para 19) Further in the same paragraph the Tribunal states that ‘if there is no sensible factor to explain the difference in treatment other than the policy itself then a significant question must arise as to its reasonableness if left unexplained.

62 If the Tribunal did not reverse the onus as the Appeal Panel found, the Appeal Panel’s finding itself will involve error of law. In order to determine whether that is so, it is necessary to consider whether the Tribunal erred as the Appeal Panel found. This requires a detailed examination of the Tribunal’s reasons. I pause however, to observe that there is no error in an administrative or judicial body not stating where the onus lies. The question is always whether the onus has been properly applied. Accordingly, there is little, if any, relevance in the Appeal Panel’s opening criticism of the Tribunal’s reasoning on this issue. This is more particularly so when the appellants’ written submissions to the Tribunal expressly stated that they bore the onus. It was never a matter about which there was debate or confusion.

63 Having made those remarks, it is necessary to move to a consideration of the Tribunal’s reasons. In approaching its determination as to whether the condition was not reasonable, the Tribunal first referred to Waters. In that case, which dealt with similar Victorian legislation, the High Court commented at p.395 that “reasonableness is a question of fact”, that could only be determined by a “weighing of all the relevant factors”. The Tribunal noted the factors in Waters that were considered to be relevant in that case. Those factors included the financial and efficiency cost to the respondent of accommodating the claim; the availability of alternative methods to achieve a non-discriminatory regime; and the maintenance of good industrial relations. The Tribunal then said at [T.19], in relation to the appellants’ case here:

“There was no evidence before the Tribunal to indicate that financial or economic considerations, such as might be relevant to budgetary appropriation by the Parliament explained the difference in treatment of men and women teachers or that the budget would be adversely affected by a conclusion that the condition or requirement is unlawful. Nor was it submitted that the condition was reasonable because it might discriminate against some men, or that it was desirable because it might tend to attract men to the Teaching Service.”

64 I see no problem with this paragraph. Nor do I see that it in any way indicates a wrong understanding of the onus that the appellants bore. The Tribunal was saying no more than, unlike Waters where such matters were in issue, they were not put in issue by the Department in this case. The appellants’ claim proceeded upon the issues raised by the parties in their Points of Claim and Points of Defence. If such matters were to be in issue, only the Department could have raised them and should have done so in the Points of Defence. Failing that, the Department might have been permitted to raise issues in the course of the hearing. It did not, however, at any time, raise these issues. Senior counsel for the Department accepted during the course of argument before this Court that the Department had not raised funding or budgetary considerations. It was not for the appellants, in satisfying the onus they bore to anticipate, with evidence, the matters that the Department might raise. Had the Department raised such matters, the appellants would have borne the ultimate burden to establish that, despite such factors, the requirement to have permanent status was not reasonable.

65 Accordingly, the Appeal Panel’s comment, that the Tribunal appears to have been unpersuaded of the reasonableness of the condition by the evidence in the Department’s case, misunderstands this part of the Tribunal’s reasoning process. The Tribunal was not, at that point, dealing with any matter in issue between the parties. It was observing that the issues that had been raised in Waters were not in issue in this case.

66 The Tribunal, in the next part of [T.19], dealt with a submission by the Department as follows:

67 This submission articulated the essential plank in the Department’s case in response to the appellants’ case that the requirement to have permanent status was discriminatory. The Department had disputed the appellants’ claim that they did work of equal value. Subject to the determination of that issue, however, the factual contest as to whether the condition was not reasonable, was, therefore, between the appellants’ claim that they performed work of equal value and the Department’s claim that casual teachers were essential to its functioning.

68 Assuming that each established the factual basis to support their respective positions, the Tribunal was then required to balance the competing factors to determine whether, in all the circumstances, the condition was not reasonable. It was not sufficient for the Department to succeed (or the appellants to fail) merely for the Department to establish that casuals were essential to the operation of the teaching service. The Tribunal recognised this, correctly, in that portion of [T.19] where it said:

“However, the question before us in our view is not whether the whole system of casual staffing arrangements is beneficial for the Teaching Service, but whether it is unreasonable to pay female teachers at a lower salary scale if they perform work of equivalent standard and value to permanent staff with access to permanent pay scales.”

69 The Appeal Panel next referred to the passage in [T.19] where the Tribunal said:

70 Presumably the Appeal Panel made reference to this passage so as to indicate error, although it did not specify what the error was. The Department contends that the error is that the Tribunal asked itself the wrong question and in doing so made an assumption that the requirement to have permanent status was discriminatory. This argument moves beyond the onus issue and was not specifically raised in the Department’s written submissions. It is, however, appropriate to deal with it and convenient to do so at this point.

71 Senior Counsel for the Department submitted that it is erroneous in law to assume that a difference in treatment is per se discriminatory: Commonwealth Bank v. HREOC per Sackville J at 111, and that the Tribunal in this passage had made an assumption that the casual teachers’ pay scale was discriminatory. Having made that assumption it was submitted that the Tribunal then reformulated the question in issue and did so erroneously. I do not agree. The Tribunal in my opinion was saying that, having considered the appellants’ case that they performed work of equal value but were paid less because they were casuals, there was a question to be decided as to whether the requirement to have permanent status was not reasonable. It also indicated that it doubted whether the mere fact of existence of a policy to have casual teaching staff would be sufficient to answer that question in the Department’s favour. The reasons for the policy would need to be examined.

72 There was no error in that approach. The Tribunal was neither making an assumption nor asking the wrong question. It was expressing one part of its reasoning in the weighing up process in which it was required to engage. It was doing so in a context where it considered that unless sensible factors could be advanced to explain why teachers performing work of the same value were paid differently, there was a real question to be determined as to whether it was reasonable to do so. There was no error in reaching that position as part of its reasoning process, expressing its assessment at that point and then moving on to assess the factors advanced to justify the policy. The Tribunal did not, as the Department alleged, thereafter engage in the process of determining whether the Department was correct to impose the condition of “permanency”.

73 It must be also remembered that the appellants were required to prove a negative. It is not easy to state with principled simplicity how to prove a negative in law. It is usually easier to recognise in the result that the negative has been proved or not proved. What can be said is that the concept is contextual. In this case, the appellants advanced a case that it was “not reasonable” for teachers performing work of equal value to be paid differential salaries depending upon whether they were classified as permanent or casual. The appellants had to prove as a fact that they were performing work of equal value. The Department advanced a case to establish the reasonableness of the salary differentiation. The Department’s case also had to be evaluated. In evaluating that case, the Tribunal was required to make findings on the evidence presented. In the succeeding paragraphs of its reasons the Tribunal moved to review the evidence adduced by the Department to support its claim that the condition or requirement was reasonable. As the Appeal Panel observed, the matters to which the Tribunal turned its attention in [T.21-27] were matters in respect of which the Department called evidence. That much was obvious. What the Appeal Panel did not advert to was that at this point the Tribunal was dealing with that part of the case in respect of which the Department bore the evidential burden.

74 In evaluating that evidence, the Tribunal found that there was no evidence or the evidence was insufficient or unpersuasive to establish the various matters it put forward to explain its policy. A finding that there was “no evidence” or “insufficient” or “unpersuasive” evidence to make good a particular point advanced by the party who bears an evidentiary onus, even if it does not bear the ultimate onus, does not involve a reversal of the onus. It involves no more than a finding in respect of the case or particular aspects of the case so advanced. That is precisely what the Tribunal was required to do. It was not required to merely accept the case advanced without evaluating the evidence that was adduced to support it. Nor was it required to accept that the case advanced was established by the evidence. It was required to consider and evaluate the evidence as part of the weighing up process to determine whether the condition was not reasonable.

75 There was therefore no “fundamental flaw” as found by the Appeal Panel in the Tribunal making a finding such as “the evidence does not support the proposition”; or “the issue was not pursued in any detail in the evidence.” To the contrary, it was part of its function as a fact finding Tribunal to determine whether the evidence, assessed in its totality, established the ultimate fact that had to be proved. As senior counsel for the appellants submitted, “the Tribunal is entitled to view the onus borne by the plaintiff within the context of a controversy as it had been developed and presented by the parties”. In approaching the matter as it did, the Tribunal did not, as was asserted by the Department, approach the determination of whether the condition was not reasonable on the basis that the Department had failed to prove that the condition was reasonable.

76 Once the Tribunal’s reasons are properly analysed, it is apparent that it did not misapply the onus and thus made no error of law. The Appeal Panel’s finding that it did so was itself an error of law by the Appeal Panel.

Fourth Issue: The weighing up issue

4(a) Proper approach to the weighing up process

77 This issue overlaps in part with what I have said in relation to the onus issue. However, in dealing with the specific ground of appeal that the Appeal Panel erred in law in finding that the Tribunal had not properly engaged in the weighing up process, it is necessary to return to the question of how to determine whether conduct is discriminatory in contravention of s.24. The proper approach to the determination of that question was considered by the Full Federal Court in Secretary, Department of Foreign Affairs and Trade v. Styles (1989) 23 FCR 251. Bowen CJ and Gummow J, in expressing their agreement with Wilcox J at first instance, said at p.263:

“…the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience…The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.”

Commonwealth Bank v. HREOC

Dopking

(No. 2)

.

78 Both the Tribunal and the Appeal Panel correctly acknowledged that this was the approach to be adopted. The Appeal Panel held however at [AP.50] that the Tribunal had not engaged in that process except for a reference to the “general nature of the case” presented by the appellants “in the context of the debate about work value”. It noted that the Tribunal had referred to the circumstances in which the teachers had given up their permanent status and then said:

“Otherwise, the Tribunal is preoccupied with the rejection of the reasons advanced in favour of the …condition.”

79 It is not clear whether the Appeal Panel considered that this preoccupation involved an error of law, being the only relevant inquiry for the Appeal Panel at this stage of its reasoning process. If it did mean to indicate there was, thereby, error of law, it was wrong. If it was a criticism of the Tribunal’s reasoning, it was an irrelevant criticism. It was also a misplaced criticism. The Tribunal was required to consider, in the weighing up process, the reasons advanced by the Department in favour of the requirement of permanent status. It was entitled, in that process, to reject the matters upon which the Department relied to support its case.

80 The Appeal Panel then found at [AP.51] that the Tribunal’s obligation “to examine the nature and extent of the discriminatory effect” of the condition on the appellants called for an assessment of “how and to what extent the requirement impacted upon [them]”. It held that the Tribunal in failing to take into account the appellants’ subjective preferences, erred in law in the weighing up process. It is thus necessary to consider whether that was a relevant consideration.

4(b) Relevance of individual choice

81 The Appeal Panel found at [AP.50] that the Tribunal had erroneously treated as irrelevant the fact that “many of the [appellants] in seeking to review their professional careers, placed territorial limits upon their place of work for family reasons”. It then said at [AP.51]:

“The obligation upon the Tribunal to examine the nature and extent of the discriminatory effect of the requirement on the [appellants] called for an assessment of how and to what extent the requirement impacted upon the [appellants]. The subjective preferences of each of the [appellants] was a relevant factor in this exercise. As the Tribunal itself recognised, it was not a case of the [appellants] being denied permanency; they could have permanency and thereby have access to the applicable pay scale, if they were prepared to accept teaching positions outside their nominated geographical areas.”

82 The question whether a consideration is relevant falls to be determined having regard to the matter in issue. The matter in issue here was whether the requirement to have permanent status was not reasonable in all the circumstances of the case. As I have explained, the determination of that issue required the Tribunal to weigh the “nature and extent of the discriminatory effect of the condition against the reasons advanced for it”.

83 The discriminatory effect of the condition was that when the appellants were given appointments as temporary teachers involving at least 8 consecutive weeks of teaching, they performed work of equal value to that of permanent teachers but were paid less. That discriminatory effect had nothing to do with the reasons the appellants had been refused permanent positions. I should perhaps emphasise that to say there was a discriminatory effect does not mean that there was a breach of s.24. Further considerations are involved in the determination of that question.

84 The appellants did not assert that they should have been given permanent appointments or that they should have had greater priority in obtaining such appointments notwithstanding the geographical limitations they had imposed on their acceptance of a position. Had that been the issue, personal preferences may have been relevant to that part of the weighing up process that involves a consideration of the discriminatory effect of the condition.

85 The Tribunal recognised this at [T.40] when it said:

86 The Tribunal then, at [T.46], considered the circumstances in which the appellants had been denied access to the higher salary increments. In doing so, it looked at the reasons why the appellants had placed geographical restrictions on their acceptance of permanent appointments, noting that except in two instances, the restrictions were related to family responsibilities. The Tribunal acknowledged the Department’s argument about “choice” but concluded:

“In our view, on the question of reasonableness of the operation of the condition or requirement of permanency this misses the point.” (emphasis added)

87 For the reasons I have stated, I consider that the Tribunal’s understanding of the matter is correct. The Appeal Panel, in finding that the appellants’ subjective choices was a relevant matter when considering the discriminatory effect of the condition, confused the different parts of the weighing up process.

88 That is not to say that the question of personal preference was irrelevant. Rather, it was an issue that arose in relation to one of the considerations advanced by the Department to support the condition, namely that there are other conditions, imposed by statute, with which permanent teachers are required to comply in relation to the location of teaching positions with which temporary teachers are not required to comply. I deal with that below.

89 The Tribunal also stated at [T.46] that

“It is because they are women [with for the most part, family responsibilities] that the [appellants] cannot effectively access the status of permanency.”

The Department challenges this finding on the basis that there was no evidence to support it. A “no evidence” argument invokes a question of law but only in a way that impugns the decision if the finding is relevant to the determination of a matter in issue. Here the Tribunal made its comment by way of an observation that choice, motivated by family reasons, was a factor that underscored the unreasonableness of the requirement in the statutory context of s.24(1)(b). Strictly, therefore, I do not consider that a “no evidence” challenge ought to be entertained.

90 But in any event, contrary to the Department’s submission, there was ample evidence upon which such a finding could be made. I will not deal with it all. It is referred to in overview in the appellants’ written submissions and two examples are sufficient to demonstrate the point. Linda Freeman gave evidence that she had limited the areas in which she would take a permanent appointment to those within a reasonable travelling time from Narellan where she had lived since 1985, because of her obligation to care for her 5 children, the youngest of whom was 8 years old at the time of the hearing. Denise McHugh gave evidence that she lived in Tamworth with her husband and 3 children, the eldest of whom was 5 years old at the time of the hearing and it was impracticable for her to move to another town in New South Wales to take a permanent appointment as it would have involved major disruption and expense. She had been prepared to take an appointment at a school in the Tamworth Area.

4(c) Beneficial nature of the casual teaching arrangements

91 The Department’s next argument related to the Tribunal’s statement that it was not concerned with the question whether the system of casual teaching arrangements was beneficial for the teaching service [T.19]. The Department contended that this statement indicated that the Tribunal failed to properly engage in the weighing up process. With respect, I consider this submission misunderstands what the Tribunal was saying.

92 The weighing up process involves a consideration of relevant matters. The teachers had never put in issue the fact that having a pool of casual teachers available was beneficial to the teaching service. It was recognised as being beneficial and necessary. It was therefore unnecessary for the Tribunal to enter into a consideration of, let alone determine, that matter. Rather, the issue with which the Tribunal was required to engage was whether, given that there was a system of casual teaching staff, “it was unreasonable to pay female teachers (employed as casuals) at a lower salary scale if they perform work of equivalent standard and value to permanent staff …” [T.20].

93 The Tribunal recognised that this was the question and approached its consideration by evaluating the various reasons put forward in support of the casual staffing system. One of the reasons advanced was the need to provide for relief from face to face teaching. The Tribunal found that the evidence did not demonstrate that that programme would be adversely affected by rejecting the requirement to have permanent status. That was a finding of fact made in the weighing up or evaluation process.

94 The Department also submitted that by failing to answer the question about the Department’s need for casual teaching service the Tribunal had omitted a relevant consideration from the weighing up process, constructively refused to exercise jurisdiction, failed to address the right question and failed to have regard to all the circumstances of the case. This submission is, in my opinion, merely a restatement of the last and I have already dealt with it.

4(d) Whether the Tribunal asked itself the wrong question in the weighing up process

95 The Department next submitted that it was apparent that the Tribunal incorrectly regarded its task as being to determine whether the decision to impose the requirement to have permanent status was the correct one. It said this was apparent from the reference to “no sensible factor” in [T.19]. This submission reventilates the matters that I have dealt with at [70] –[72]. It is not necessary to repeat them.

4(e) Wrong characterisation of evidence

96 The Department’s next submission was that the Tribunal, when dealing with the evidence of Ms. Gray in [T.20], wrongly characterised it. Ms. Gray gave evidence, that amongst other things, casual staff were important to provide relief from face to face teaching for primary teachers. The Tribunal dealt with this, correctly, as one of the justifications advanced for the difference in treatment.

97 The Department also raised a different point on this issue, namely that there were financial consequences that would follow and affect programmes such as relief from face to face teaching if casual staff were paid the same as permanent staff. This is considered more fully in the next section. I merely re-iterate at this point that the Department did not advance such a case before the Tribunal. There was no evidence that paying comparable salaries would affect the provision of casual staff to perform this work nor was there evidence to support a case that there were budgetary considerations involved. As I have said earlier, the Department consistently disavowed such a case. Rather, the Department’s case was that it has and needs casual teaching staff. The Department’s submission seemed to be that because it had a system of permanent and casual teaching staff, the appellants had not established that it was not reasonable to pay them less even though they were doing the same work as permanent staff. In putting the matter that way I have not overlooked the fact that the Department contested that the work was of equal value. Nor have I overlooked that there is an industrial agreement in relation to salaries in place that the Department observes. However, as work value was found against it, the Department’s case is, I believe, properly characterised as one that relies on the status quo, including its reliance on an industrial agreement.

Costs

155 That leaves the question of costs. The appellants applied to the Tribunal for an order for costs. The power to award costs in the claim under the Act is provided for in s.114 of the ADA. It provides:

“(1) Except as provided by section 111(1) and sub-section (2) each party to an inquiry shall pay his or her own costs.

(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise as it thinks fit.”

156 The Tribunal was divided in its determination of this application. The judicial member refused the claim for costs. The non-judicial members would have made an order for costs in the appellants’ favour. However, in the introductory paragraph of the reasons for decision, the Tribunal stated that when the Tribunal was divided in opinion on a question of law, that question was to be decided by the judicial member: see s.78(2) of the Administrative Decisions Tribunal Act. Accordingly, the decision of the Tribunal on costs was that of the judicial member.

157 The appellants contend that the determination of an application for costs under s.114(2) does not, per se, involve a question of law. It is a finding of fact and accordingly, the decision of the majority should have been the decision of the Tribunal. I agree with this submission. In my opinion, a decision as to whether or not to award costs under s.114(2) does not raise a question of law. Accordingly, the order that should have been made was the order proposed by the majority.

158 Accordingly I would propose the following formal Orders:

1. Appeal allowed.

2. Set aside Orders made by the Appeal Panel.

3. Refuse leave to the respondent to appeal on the merits.

4. Reinstate Orders 1-18 made by the Tribunal.

5. Set aside Orders 19 and 20 made by the Tribunal.

6. Order that the appellants are each entitled to interest on the damages awarded provided that the total amount of damages with interest does not exceed $40,000.00

7. The parties are to bring in Short Minutes or Order to reflect Order 5 within 7 days of the date of these Orders but are to have liberty to apply in respect thereof.

8. Order that the respondent pay the appellants’ costs in the Tribunal and before the Appeal Panel but the parties are to have liberty to apply in respect of same. If such liberty is to be exercised, then it is to be by way of written submissions served upon the opposing party by Thursday 18 November and delivered to the Associate of the Presiding Judge by Friday 19 November 2004 .

9. The respondent is to pay the appellants’ costs of the appeal.

159 HODGSON JA: On 12 June 2003, the Appeal Panel of the Administrative Decisions Tribunal of New South Wales (the Panel) allowed an appeal by the State of New South Wales against a decision of the Administrative Decisions Tribunal (the Tribunal) in which the Tribunal granted relief to a number of teachers (the complainants) arising from complaints made by them against the Department of Education and Training (the Department) in which the complainants had sought damages under the Anti-Discrimination Act 1977 (the ADA). The Panel also made orders dismissing the complaints, and dismissing a cross-appeal. The complainants appeal from this decision.

160 The circumstances giving rise to the complaints and the appeals are set out in the judgment of Beazley JA, and I will not repeat them.

161 In substance, the Panel identified four errors of law by the Tribunal:

162 The Panel considered that, because of these errors, it should itself determine the complainants’ case: see Administration Decisions Tribunal Act (ADTA) s.114(2)(c). It held that the complainants did not discharge the onus to demonstrate the unreasonableness of the requirement in all the circumstances, having regard to the following considerations:

163 The complainants appealed to this Court on grounds that in substance alleged that these reasons of the Panel involved errors of law; and also sought to pursue in this Court appeals in respect of interest and costs, which the Panel did not deal with because of its view that the complaints should be dismissed.

164 The Department raised a number of issues by Notice of Contention. The most substantial of them are as follows:

165 It also contended that, if the appeal was granted, the case should be remitted to the Panel so that the Panel could deal with the Department’s application for leave to appeal to the Panel on the merits (ADTA s.113(2)(a)).

166 I propose to deal in turn with the following issues: the significance to s.24(1)(b) of the words “on the ground of the aggrieved person’s sex”; whether there was a relevant requirement in this case; the question of “substantially higher proportion”; the question whether the requirement was one with which each complainant “does not or is not able to comply”; the question whether the Tribunal made the errors identified by the Panel; the question whether the Tribunal made any other error of law; the question whether the Panel decided the merits correctly; the question of how the case should now be resolved; and the questions of interest and costs.

167 I think it is convenient to deal with the issues in this order, because the first four issues deal with the construction of the most relevant statutory provision, namely s.24 of the ADA, which provision is of central importance in the remaining issues. That provision is in the following terms:

24 What constitutes discrimination on the ground of sex

the perpetrator

the aggrieved person

ON THE GROUND OF SEX

168 Subject to what I say below, I agree substantially with pars.[33]-[49] of the judgment of Beazley JA.

169 In my opinion, there is a further reason why s.24(1) should not be read in such a way as to make it a condition of breach of s.24(1)(b) that the imposition of the requirement by the perpetrator be on the ground of the aggrieved person’s sex (or the sex of some relative or associate). The “requirement or condition” referred to in s.24(1)(b) must be one having application to a substantial number of persons, as the reference to “substantially higher proportion of persons” indicates. It is hard to see how the establishment of such a general requirement or condition could ever be on the ground of the sex of a particular person; and its application to the aggrieved person would generally be by reason of the terms of the requirement or condition itself, rather than a particular act directed by the perpetrator against the particular person. If it were by reason of such a particular act, which selects out the aggrieved person to be subject to a requirement that would not otherwise apply, that would be a clear case of direct discrimination within s.24(1)(a).

170 There is a possibility that the words could have some application to s.24(1)(b) in the following way: what must be “on the ground of the aggrieved person’s sex” is the imbalance in satisfaction of the requirement, and/or the aggrieved person’s non-satisfaction of it. However, I think the preferable view is the contrary. As a matter of grammar, the words “on the ground of the aggrieved person’s sex” refer to what the perpetrator does; and are appropriate to refer to a motive or reason for conduct, rather than a cause or explanation for a circumstance of non-satisfaction of the requirement. The approach would give a completely different meaning to the words in their application to par.(b) of s.24(1) than they have in their application to s.24(1)(a).

REQUIREMENT

171 It was argued in effect by the Department that the various provisions for remuneration in the relevant enterprise agreement and award do not impose any requirement or condition, but simply provide for remuneration of different categories, in a way sanctioned by statute and award determinations.

172 This argument may have had force if the distinction was between two classes with different qualifications or other attributes, such as between electricians and plumbers; but in this case, both relevant classes (permanent teachers and supply casual teachers) are open to the same candidates with the same qualifications, and there is extensive interchange between them. In my opinion, permanency can be regarded as a requirement or condition for access by teachers to higher pay scales.

173 However, the question of whether there is a requirement or condition, and precisely what that requirement or condition is and who it is imposed by, is a question relevant to an issue in the case which I consider later. In my opinion, the requirement which must be shown not to be reasonable within s.24(1)(b) is not the requirement or condition considered generally, but rather the requirement or condition considered as being required of the aggrieved person by the perpetrator. This is made clear by the requirement that the reasonableness is to be judged “having regard to the circumstances of the case”, and that must mean the circumstances in which the perpetrator requires the aggrieved person to comply.

SUBSTANTIALLY HIGHER PROPORTION

174 Although the Notice of Contention put forward a ground that challenged the finding that the relevant requirement or condition was one with which a “substantially higher proportion” of persons of the opposite sex comply or are able to comply, no significant submission was put in favour of that contention; and in my opinion it is untenable.

DOES NOT OR IS NOT ABLE

175 It was argued by the Department that these words should not be read in such a way that an unreasonable refusal by a prospective employee to comply with the condition or requirement in question would have the consequence that an employer would be put in breach of s.25, which makes it unlawful for an employer to discriminate against the person on the ground of sex, inter alia in the terms on which the employer offers employment. Accordingly, in effect, “or” should be read as “and”.

176 In my opinion, this contention is answered by the consideration that the requirement in question could be reasonable, having regard to the circumstances of the case, on either of two bases: first, the general basis that it was reasonable to have such requirement or condition for all persons of a relevant class to which the aggrieved person belonged; and second, the particular basis of the requirement or condition was one which could readily be complied with by the aggrieved person if she or he chose, or (perhaps) that the only reason for not complying with it had nothing to do with gender and therefore nothing to do with the question of proportionality of compliance. Subject to that second basis of reasonableness, in my opinion it is sufficient for the aggrieved person to prove that he or she does not comply with the condition, and it is not necessary to prove that he or she is not able to comply.

177 I would note also that, if the requirements of s.24(1)(b) were satisfied in circumstances where a particular aggrieved person was disadvantaged because of an unreasonable choice by that aggrieved person, relief could be refused. Under s.113(1)(b)(v) of the ADA, the Tribunal can decline to take any further action; and damages are only awarded under s.113(1)(b)(i) if they occur “by reason of” the respondent’s conduct, and that may not be the case if they occur because of unreasonable conduct by the aggrieved person.

TRIBUNAL ERRORS IDENTIFIED BY PANEL

178 In my opinion, the Tribunal did not make any of the errors of law identified by the Panel.

179 In my opinion, the Tribunal did not reverse the onus of proof. It correctly stated the question in the first sentence of par.[18] of its judgment; and the first and last sentences of par.[46] of the judgment also indicate that it correctly addressed the onus of proof. The issue of onus was not explicitly debated before the Tribunal. In circumstances where there was some evidentiary onus on the Department, the passages referred to by the Panel in its judgment do not justify the conclusion that the Tribunal reversed the legal onus.

180 As regards failure to weigh the nature and extent of the discriminatory effect against the reasons advanced in favour of the requirement or condition, the Tribunal found each of the reasons advanced to be of no weight or merit; and in my opinion, there was no error in then not engaging in an explicit weighing process.

181 As regards failure to assess the extent to which the requirement impacted on the claimants, in my opinion the Tribunal did make such assessment in dealing with the individual cases.

182 As regards the fourth error of law, I have some difficulty in understanding the error as identified by the Panel. I do not understand that the Tribunal found that the terms of the relevant award were “premised on gender”, or that such a finding would be either necessary or relevant. In so far as the Panel considered that it was irrelevant to address the question of work value in considering the matter of reasonableness, in my opinion that is an error by the Panel: absence of any relevant difference in the value of the work would be a factor supporting a finding that the condition was not reasonable.

OTHER ERROR BY THE TRIBUNAL

183 I have now dealt with the errors by the Tribunal identified by the Panel, and those contended for by the Department under the first four of the issues that I identified as raised by the Notice of Contention. It remains to be considered the fifth issue I have identified as raised by the Department’s Notice of Contention. If an error of law is indicated by that issue, it may then be that the Panel was not in error in embarking on its own consideration of the case, so that it would then be necessary for this Court to consider whether that consideration was vitiated in some way. On the other hand, if no error of law by the Tribunal is shown, there would remain the question of the Department’s application for leave to appeal to the Tribunal on the merits.

184 Although the argument was not put in precisely this way by the Department, the following is what I consider to be the best argument, within the scope of the Notice of Contention and arguments put by the Department, supporting the other error of law by the Tribunal.

185 In discussing the question of requirement, I indicated that in my opinion the relevant requirement is that of the perpetrator, that is, the Department. Neither the enterprise agreement nor the award is itself a requirement made by the Department; so the question is not whether any discrimination contained in the enterprise agreement or the award is not reasonable, but whether the Department’s following of the enterprise agreement and the award in paying teachers is not reasonable. The only basis on which it can be said that the Department requires satisfaction of the condition of permanency is that the Department could if it chose give casual teachers access to higher scales despite the terms of the enterprise agreement or the award. It could do so either by applying to vary the award, or by making over-award payments.

186 The argument then is that it would not be reasonable to make over-award payments available only to women (that would directly discriminate against men) or only to teachers with commitments to children (that would probably be unworkable and also probably indirectly discriminate against men); so what must be shown to be not reasonable is the Department’s failure to make over-award payments available to all supply casual teachers. Having regard to those considerations, the circumstance that rates of pay are determined by an award arrived at after careful investigation by a specialist tribunal, which is itself bound to have regard to the ADA, is a significant factor in determining whether the Department’s requirement is not reasonable, quite independently of whether the award itself is considered altogether reasonable. The award is not conclusive (ADA s.54(1)(d)), but this does not mean that the existence of the award is not an important factor to be taken into account.

187 In addition, it could be argued that the control given to the Department over permanent teachers by ss.71 and 75 of the TSA potentially made their services more valuable, quite apart from the value of the actual teaching work performed. The Tribunal did not assess this matter, but simply dismissed it as of no relevance. And the Tribunal did not have regard to the circumstance that this was an issue that could have been taken into account by the specialist tribunal given the responsibility of determining rates of pay.

188 On that basis, it could be submitted that the Tribunal made three errors of law:

189 It could be said that the first error is illustrated by par.[14] of the Tribunal’s judgment, which is as follows:

In Director General of Education v Suttling (1987) 162 CLR 427 at 437 ff Brennan J described the nature of the employment relationship between members of the Teaching Service of NSW and the Crown under the Education Commission Act 1980, now entitled the Teaching Services Act 1980. It is apparent from this and later cases, in particular Byrne v Australian Airlines Ltd (1995) 185 CLR 410 especially at 421 ff, that neither the enterprise agreement nor the award formed part of the contracts of employment in the present inquiry. In our view, the complainants are correct in contending that it is sufficient if the condition or requirement operates as a matter of practice with respect to payment of salary. We find that both the enterprise agreement and the award stipulate conditions upon the payment of salary to staff within the NSW Teaching Service under Teaching Services Act 1980 s.58 and do impose a condition or requirement for the purposes of the Anti-Discrimination Act 1977 s.24(1)(b) which limit the payment of salary to the complainants.

190 As regards the second error, it could be said that this is illustrated by par.[43] of the Tribunal judgment, which is as follows:

Turning to the first question referred to in paragraph 41, we are of the view that reference to the differences in statutory obligations between permanent and casual staff does not assist the Tribunal in determining the pivotal question of comparative work value of casual and permanent staff employed in the Teaching Service. As noted above, the resolution of the present question does not depend upon an assertion that the women have been discriminated against because their applications for permanency have been refused, but rather whether the work of casual staff equates with that of permanent staff. The statutory requirements are incidents of permanency as are the vagaries of being a casual teachers. The incidents of permanent and non-permanent staff appointments clearly differ under the Teaching Services Act 1980, but none of these incidents, in our view, on the evidence before us, bear on the question, whether in the performance of their duties in the Teaching Service long term casual supply teachers do work of lesser value than of permanent staff. For example, the statutory requirements imposed on permanent part-time staff do not make their work of greater value as teachers than that of a casual supply teacher.

191 As regards the third error, it could be said that this is demonstrated by par.[34] of the judgment, in which the Tribunal considered the effect of the decision of Bauer J giving rise to one of the relevant awards:

In our view it was only because of the manner in which the case was conducted before him, and in particular the submission of both the Teachers Federation and the Education Commission that the position of casuals should be "averaged", that his Honour made no clear finding on the question which pertains to the issue we have to decide, and led the Commission to ignore the discriminatory treatment of female supply casuals in the Teaching Service. No issue estoppel in our view arises. We do not therefore consider that the Industrial Commission's views as expressed in that case are of any assistance in determining whether the award or the enterprise agreement are discriminatory. Further, we are of the view that Bauer J did not determine adversely to the complainants' case in this inquiry that the work of supply casuals is not work of equal value to permanent staff. The tenor of the factual conclusions are to a contrary effect and tend to support the present complainants. Even if this is an erroneous reading of his Honour's judgment, it is necessary for us to consider the evidence before us which relates to work performance in the 1990s in the NSW Teaching Service. In our view the evidence before us leads us to conclude that the work of supply casuals in general, is of equal value to permanent staff, at least with respect to claimants in the category of teachers who are engaged to work continuous periods of eight week blocks or more per term and who do that work. Of course it is still necessary to look at the individual circumstances of each case.

192 Dr. Birch SC for the complainants submitted that par.[14] of the Tribunal’s judgment did not indicate error by the Tribunal in its characterisation of the requirement or posing of the question of what was to be shown to be not reasonable. He submitted that par.[43] represented a conclusion, to which the Tribunal was entitled to come, that the different statutory obligations did not carry weight in opposition to the contention that the requirement was not reasonable. He submitted that the Tribunal gave reasons for not considering the determination of the Industrial Commission as carrying weight, including the consideration that factors which were relevant to individual cases were not matters considered by the Industrial Commission, in particular because the issues dealt with by the Commission were the issues as presented by the employer and the Teachers’ Federation, not issues affecting particular categories of teachers.

193 In my opinion, there was error by the Tribunal. In my opinion, par.[14], read with the rest of the judgment, indicates that the Tribunal treated the condition or requirement as being imposed by the enterprise agreement and award; and proceeded to consider whether the condition or requirement as imposed by the enterprise agreement and award were shown not to be reasonable. This is confirmed by the approach taken by the Tribunal to the decisions of the Industrial Commission: the Tribunal considered those decisions for the light they shed on whether the terms of the award or enterprise agreement were discriminatory, as shown inter alia by par.[34]. It did not address the very existence of the enterprise agreement and award as a factor relevant to reasonableness, in that what had to be shown was that it was not reasonable for the Department to make over-award payments to supply casual teachers. For reasons given above, in my opinion what then would have to be shown to be not reasonable was failing to make over-award payments available to all supply casual teachers, not just to women or to teachers with commitments to children.

194 For those reasons, in my opinion there was an error of law by the Tribunal, which would have justified the Panel considering the matter on the merits.

DID THE PANEL DETERMINE THE CASE CORRECTLY?

195 It is possible that the Panel’s determination on the merits was vitiated by what I have held to be its erroneous views as to whether the Tribunal made errors of law. Whether or not that is so, in my opinion the reasons given by the Panel for its determination of the case on the merits themselves indicate error.

196 The first reason stated, namely that any discriminatory effect on the complainants was due to denial of permanency at locations and/or subject matters of their choosing, places too high a barrier on satisfaction of the “does not comply” requirement. If a requirement is not reasonable in its application to the relevant class of persons to which a complainant belongs, in my opinion a complainant who does not in fact comply satisfies the “does not comply” element of the claim unless it can be said that, because of the ease with which the complainant could comply, the requirement which is not reasonable generally can be considered reasonable in its application to the complainant.

197 The next stated ground, that consequent limits on the remuneration of the complainants had a “rational and understandable basis, namely the relevant enterprise agreement and award” could be part of a ground for declining to find the requirement was not reasonable; but it would be necessary to address the question whether it was shown to be not reasonable for the Department to refrain from making over-award payments or applying to amend the award.

198 The next ground, namely that the imposition of the requirement was appropriate and adapted to the performance of the teaching service, and the teaching service could not function satisfactorily without the requirement, was in its context directed only to the establishment and maintenance of the different classes of teachers, namely permanent and casual, including supply casual; and was not directed to the reasonableness of having discriminatory rates of pay applied to these different classes.

HOW SHOULD THE CASE BE RESOLVED?

199 In my opinion, there are now two alternatives available to this Court: either to decide the case on the merits itself (ADT Act, ss.114(1) and 120(1)), or to remit to the Panel to decide the case on its merits. Since I have found an error of law by the Tribunal, the Department would not need leave to have the merits considered by the Panel, or indeed by this Court.

200 In my opinion, this Court is in as good a position as the Panel to determine the case on the merits, and should do so.

201 The onus was on the complainants to show that it was not reasonable for the Department not to make over-award payments to supply casual teachers.

202 Although the existence of an award does not preclude the ADA rendering unlawful payments made in accordance with it (ADA s.54(1)(d)), the existence of the award is a factor to be taken into account. In my opinion, where there has been an agreement and/or award, arrived at after proceedings involving the Department and the relevant union or unions, and particularly where there have been decisions by the specialist tribunal, itself bound to have regard to the ADA, it is prima facie reasonable for the Department not to make over-award payments to one class of persons dealt with by an award, or to a sub-class of a class of persons dealt with by an award. To do so would appear to have the potential for disruption to good industrial relations. It may be that, if there are no reasonably arguable grounds for class differences, it would not be reasonable to maintain those differences; but in my opinion there are here at least arguable grounds, in terms of work value, statutory requirements and degree of commitment. I do not think a finding by a non-industrial tribunal that these arguable grounds do not, on the balance of probability, justify differences in payment, is sufficient to show that it is not reasonable for the Department to refrain from over-award payments to a class or sub-class of persons.

203 For those reasons, in my view the complainants should not succeed.

OTHER ISSUES

204 Having regard to that decision, the questions of interest and costs dealt with by Beazley JA do not arise. However, if I am wrong in my view and if it be the case that the complainants should succeed, I would agree with the way Beazley JA has disposed of the questions of interest and costs. However, again assuming I am wrong in finding that the Tribunal erred in law, I respectfully disagree with the way Beazley JA has dealt with the question of the Department’s application for leave to appeal on the merits. In my opinion, it is not necessary to identify any error of law by the Panel to justify remitting that question to the Panel. The position would simply be, in my opinion, that there is an outstanding application for leave to appeal on the merits that has not been dealt with by the Panel or by this Court, and which should be dealt with by the Panel.

205 One final comment, in relation to the position if I am wrong on the question of error of law by the Tribunal, or my disposal of the matter on the merits. Having regard to my view that what must be shown to be not reasonable is the Department’s failure to make over-award payments available to all supply casual teachers, it seems that there would be available to the Department in support of reasonableness an argument based on budgetary considerations, and the consequence to the provision of services by the Department of over-award payments being made to substantial numbers of people. That argument was not relied on in this case, and no evidence or submissions on it were made. This would mean, I think, that if this case were decided in favour of the complainants, it would not necessarily mean that, in another case, where the Department did rely on these considerations, the decision would necessarily be the same.

CONCLUSION

206 For these reasons, in my opinion the complainants’ appeal should be dismissed.

207 However, the decision is based on an argument that, although broadly within the grounds of appeal and submissions brought by the Department, was never clearly articulated by the Department. There is in my opinion a real question as to the proper order for costs to be made, both before this Court and before the Panel and the Tribunal. I would direct the Department to provide submissions on that within seven days, and the complainants to respond with written submissions within a further seven days.

208 CRIPPS AJA: I agree with Beazley JA.

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Last Modified: 11/18/2004

Citations

Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404

Most Recent Citation

Cases Citing This Decision

28

Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93

A v Director-General, Department Education and Training [2008] NSWSC 1091

The Craftsmen Restoration and Renovations v Thomas Boland, Thomas Boland v The Craftsmen Restoration and Renovations [2008] NSWSC 660

Cases Cited

9

Statutory Material Cited

7

Ferdinands v Commissioner for Public Employment [2006] HCA 5

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56

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CITATION:	AMERY & ORS. v. STATE OF NEW SOUTH WALES (DIRECTOR-GENERAL NSW DEPARTMENT OF EDUCATION AND TRAINING) [2004] NSWCA 404
HEARING DATE(S):	01/06/04, 02/06/04, 03/06/04
JUDGMENT DATE:	15 November 2004
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 159; Cripps AJA at 208
DECISION:	1. Appeal allowed.; 2. Set aside Orders made by the Appeal Panel.; 3. Refuse leave to the respondent to appeal on the merits.; 4. Reinstate Orders 1-18 made by the Tribunal.; 5. Set aside Orders 19 and 20 made by the Tribunal.; 6. Order that the appellants are each entitled to interest on the damages awarded provided that the total amount of damages with interest does not exceed $40,000.00; 7. The parties are to bring in Short Minutes or Order to reflect Order 5 within 7 days of the date of these Orders but are to have liberty to apply in respect thereof.; 8. Order that the respondent pay the appellants' costs in the Tribunal and before the Appeal Panel but the parties are to have liberty to apply in respect of same. If such liberty is to be exercised, then it is to be by way of written submissions served upon the opposing party by Thursday 18 November and delivered to the Associate of the Presiding Judge by Friday 19 November 2004 .; 9. The respondent is to pay the appellants' costs of the appeal.
CATCHWORDS:	DISCRIMINATION - Indirect discrimination on grounds of sex - Motive for indirect discrimination is irrelevant. - DISCRIMINATION - Construction - Anti-Discrimination Act 1977, s.24(1)(b) - The words "on the ground of the aggrieved person's sex" in s.24(1) are mere surplusage in relation to s.24(1)(b) - The test of 'reasonableness' in s.24(1)(b) is less demanding than one of necessity, but more demanding than a test of convenience. - DISCRIMINATION - Tribunals - Industrial questions - Anti-Discrimination Act 1977, s.54 - Amendments - Existence of an award or industrial agreement is no longer a defence. - ERROR OF LAW - Onus - Relevant and irrelevant considerations - The question whether a consideration is relevant falls to be determined having regard to the matter in issue - Existence of specialist industrial tribunal - Role of court in relation to industrial disputes. - INTEREST - Administrative Decisions Tribunal Act 1997 - Whether claimants entitled to interest by way of compensation for the loss of the use of money that ought to have been paid to them by way of salary but for the discriminatory conduct - A claim for damages under the Act may include a claim for compensatory interest. - COSTS - Administrative Decisions Tribunal Act 1997, s.114(2) - Determination of the application for costs under this section was a question of fact not law.
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Anti-Discrimination (Amendment) Act 1981(No. 15) Anti-Discrimination Amendment Act 1994 (No. 28) Industrial Relations Act 1991 Public Finance and Audit Act 1983 Teaching Services Act 1980
CASES CITED:	Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 Australian Medical Council v. Wilson (1996) 68 FCR 46 Commonwealth Bank v HREOC (1997) 80 FCR 78 Hungerfords v. Walker (1989) 171 CLR 125 IW v. City of Perth (1997) 191 CLR 1 Saraswati v. The Queen (1991) 172 CLR 1 Secretary, Department of Foreign Affairs and Trade v. Styles (1989) 23 FCR 251
PARTIES :	Joyce Amery, Lyn Bovard, Margaret Douglas, Jenny Drury, Linda Freeman, Leonie Hancott, Jacki Irvine, Denise McHugh, Karen Mors, Cheryl O'Loan, Marian Platt, Megan Pursche, Marcia Skelton (Appellants) State of New South Wales (Director-General NSW Department of Education and Training) (Respondent)
FILE NUMBER(S):	CA 40548/03
COUNSEL:	C. Birch SC/P. Lowson (Appellants) P. Menzies QC/T. Anderson (Respondents)
SOLICITORS:	MacMahon Associates Lawyers (Appellants) The Crown Solicitor (Respondent)

LOWER COURTJURISDICTION:	Appeal Panel of the Administrative Decisions Tribunal of New South Wales
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :