Amery v State of New South Wales

[2001] NSWADT 37

Set aside by Appeal: Set aside by appeal on 12/6/03

CITATION:	Amery & Ors -v- State of New South Wales [2001] NSWADT 37
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS 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 RESPONDENT State of New South Wales
FILE NUMBER:	74-87 of 1997
HEARING DATES:	16 August 1999, 17 August 1999, 19 August 1999, 20 August 1999, 24 August 1999
SUBMISSIONS CLOSED:	08/24/1999
DATE OF DECISION:	03/12/2001
BEFORE:	King P - Judicial Member; Edwards K - Member; McDonald O - Member
APPLICATION:	Sex Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Interpretation Act 1987 Anti-Discrimination Act 1977 Industrial Relations Act 1988 (Cth) Sex Discrimination Act 1984 (Cth)
CASES CITED:	Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Waters v Public Transport Corporation (1991) 173 CLR 349 R v Secretary of State for Employment; Ex parte Equal Opportunities Commission (1995) 1 AC1 10 Home Office v Homes (1994) ICR 678 Director General of Education v Suttling (1987) 162 CLR 427 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Waters and Others v Public Transport Corporation (1991-1992) 173 CLR 349
REPRESENTATION:	APPLICANTS Dr C Birch, barrister RESPONDENT P Menzies QC, barrister
ORDERS:	1. The parties to bring in orders to reflect these reasons for determination.; 2. Stand over to a date to be fixed by the Registrar for final orders.

1 In these matters fourteen complaints of discrimination on the grounds of sex in employment, were lodged by long serving women teachers in the New South Wales Teaching Service with the Anti-discrimination Board on the 27 November 1995 against the Department of School Education NSW. Attempts were made to resolve the complaints by conciliation. These proved unsuccessful, and the complaints were then referred to the Equal Opportunity Tribunal on 4 July 1997 under s 94 of the Anti-Discrimination Act 1977. Directions were made by consent for the matter to proceed by way of pleadings. One complainant, Mary Strong, subsequently withdrew her complaint. Following lodgment of the formal complaints, points of defence were filed by the respondent on 10 March 1998 and subsequently amended on 6 January 1999.

2 Paragraph 8 of the defence contended that each of the claims was frivolous, vexatious, misconceived, or lacking in substance. An application under s 111 of the Act was brought by the respondent but dismissed by the Senior Judicial Member on 5 June 1998. The principal ground of that application was that the complainants were bound by the Enterprise Agreement between themselves and the Department pursuant to the Industrial Relations Act s 120, which provided a complete defence to the claims. It was contended that even though an agreement may be discriminatory on the ground of sex, the proper remedy lay with the Industrial Court. On 8 August 1994, s 54 (1) of the Anti-Discrimination Act 1977 was amended to remove the provisions relating to the exemption of industrial agreements with effect from 8 August 1995, and to permit workers in NSW covered by awards and enterprise agreements to take complaints to the Anti-discrimination Board in relation to discriminatory provisions which appear in those awards and enterprise agreements. The Senior Judicial Member held that as from the commencement of the amending legislation, the complainants were entitled to complain of discriminatory provisions in both the Teachers and Related Employees Enterprise Agreement (TREEA) made pursuant to the Industrial Relations Act 1991 (NSW) and from 27 August 1996, the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award made under the Industrial Relations Act 1996. In this determination these industrial accords in the public education sector will be referred to as “the enterprise agreement” and “the award” respectively.

3 The 13 complaints were heard together in the one inquiry by agreement of the parties. Evidence in one was treated by the parties as evidence in the other with the qualification that in order to substantiate particular claims it was necessary to give consideration to the individual circumstances of each complainant. The complainants are teachers employed by the Government of NSW in the service of the Crown as casual teachers by the Department of School Education. It is accepted that from December 1993 to 27 August 1996 the conditions of employment of each of the complainants , with respect to salary and other entitlements were governed by the enterprise agreement. Since 27 August 1996, their conditions of employment with respect to salary and other entitlements, have been governed by the award. Under both the enterprise agreement and the award the salaries of permanent full-time, or permanent part-time teachers is determined by a salary scale with thirteen incremental steps. The respondent acknowledged that the salary paid to casual teachers is determined by a daily rate, being the proportionate share of the annual salary provided for in the scale for permanent full-time and part-time teachers. The top level of this five step casual scale equates in monetary value to level 8 of the 13 step permanent scale.

4 The complainants contend that they are longer term casual teachers engaged to perform teaching work and performing work in the public school system in excess of 8 weeks continuously at any one time. It is said that by reason of the policy and practice of the Department to restrict the casual pay scales to level 8 of the permanent scale, they are underpaid having regard to the duties which they perform and the seniority they have established as employees. It is further contended that the policy is discriminatory because it operates harshly in the case of women teachers because the complainants, prior to engaging in casual employment, were employed as permanent staff at the higher levels of remuneration and resigned in response to family responsibilities, and have effectively been precluded from achieving permanent status again because of the limitations on travel and career that those family responsibilities have entailed. It is said that this policy, found in the conditions of the enterprise agreement and the award, is discriminatory and unlawful in that it has the effect of discriminating against the complainants on the ground of their sex. In this regard it is put that as a proportion of casual teachers affected by the policy, women significantly outweigh men. It was suggested the policy was deliberately discriminatory against women teachers with families.

5 The respondent denies any discriminatory conduct and contends that if prima facie the enterprise agreement and the award have the effect contended for by the complainants, the policy is reasonable and the discrimination justified. The complainants and the respondent accept that the cut off date for the operation of the Anti-Discrimination Act 1977 is 8 August 1995. Schedules of the quantum of salary loss arising from a finding of discriminatory conduct have been prepared following directions from the Tribunal and to a large extent have narrowed the quantum issues between the parties.

6 The provisions on which the complainants rely, are sections 24 and 25 of the 1977 Act as amended. Section 24 (1) relevantly provides:
24.(1) A person ( “the perpetrator” ) discriminates against another person ( “the aggrieved person” ) on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(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 who does not have such a relative or associate of that 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, or who do not have such a relative or associate of that 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.
Section 25 relevantly provides:
25.(1) It is unlawful for an employer to discriminate against a person on the ground of sex:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms on which the employer offers employment.
(1A) Nothing in subsection (1) renders unlawful discrimination by an employer against a woman on the ground of sex if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman is pregnant.
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) in the terms or conditions of employment which the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee or subjecting the employee to any other detriment.

It is necessary also to note the following provisions. By s 4A, if an act is done for two or more reasons and one of the reasons, whether or not it was the dominant or substantial reason, consists of unlawful discrimination, then the Act is taken to be done for that reason. By s 5, the Act binds the Crown. Part Three of the Act is entitled “Sex Discrimination”. Although the points of claim erroneously referred to s 24 (3) as the basis of the complaint of indirect discrimination, that provision was repealed in1994 and substituted for s 24 (1)(b) which, as in the form set out above, the parties accept is the relevant text of the legislation for determination of the issues of indirect discrimination before us.

7 The critical questions for the determination of these complaints are largely agreed. They are firstly, whether at the material time the respondent stipulated a requirement or condition within the meaning of s 24 (1)(b); secondly, whether a substantially higher proportion of persons of the opposite sex, did comply or were able to comply with that requirement or condition; thirdly, whether the requirement or condition was “not reasonable having regard to the circumstances of the case”; fourthly, and more generally, assuming that the first three questions are answered in the affirmative, whether the requirement or condition is one with which each complainant “does not or is not able to comply”. Both parties accepted, although put in various ways, that these were the questions for determination before us. In particular, it was not suggested, perhaps because of s 4A, that the opening words of s 24 (1), “on the ground of the aggrieved persons sex”, added any additional requirement other than those encapsulated by the four questions to which we have referred.

8 Turning to the first question, it is convenient to refer to the award. Clause 12, entitled “Casual Teachers”, stipulates that the rates of pay and conditions of employment for casual teachers are set out in Schedules 6 and 7 of Part B of the award. In those schedules a “casual teacher” is defined as a teacher engaged on a daily or hourly rate of pay in the Education and Teaching Service. Under cl 3 of Schedule 7, upon completing 203 days of casual teaching service, the casual teacher shall progress to the next daily rate of pay pursuant to his or her classification in Schedule 6. Schedule 6 provides for 5 steps of salary progression. The award indicates that the fifth step, which comprises the highest rate of pay for casual teachers, equates to step 8 in the permanent teachers’ pay scale, also found in Part B. In short it is a prerequisite for winning access to the higher salary scales under the award and the enterprise agreement that a teacher have classification as a “permanent” member of the Teaching Service, as that is defined in the Teaching Services Act 1980 (NSW). It is obvious from a brief review of the history of industrial laws of New South Wales that the concept of permanency of employment, whatever its relevance to a more flexible and contemporary industrial environment, has become embedded in the collective psyches of the Teacher’s Federation of New South Wales, the employer the present respondent, and the rules as administered by the supervisory industrial body - the Industrial Commission of New South Wales - as a measure of salary and other entitlements. The desirability or otherwise of that approach is not our focus; the question for our consideration is whether that prerequisite in the form identified operates in a discriminatory manner with respect to each of the complainants on the ground of their sex.

9 In Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185, Deane and Gaudron JJ said that the words “requirement or condition” found in a similar context in the Sex Discrimination Act (Cth) “should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of employees”. At page 196 McHugh J referred to several decisions with approval, which have given a broad interpretation to the words “requirement or condition”. Generally see: Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 257; Waters v Public Transport Corporation (1991) 173 CLR 349 at 360, 378 and 393; R v Secretary of State for Employment; Ex parte Equal Opportunities Commission (1995) 1 AC1 at 21.

10 In Home Office v Homes (1994) ICR 678, the Employment Tribunal of England and Wales considered the meaning of the words “requirement or condition” in a similar statutory context to that in the Act under consideration. Of assistance to the resolution of the present question is what the Tribunal said at (pp 682-3):
Mr Goldsmith urges that full time work is not a matter which sounds in condition or requirement at all. It is the whole job. It is not a requirement of the job. It is the job. Part time work, he says, is not variant of full time work. It is a different job. “Requirement” or “condition” are terms which, properly regarded in their statutory context, denotes some hurdle, qualification or obstacle placed in the way of the employee. They are not apt to describe anything so fundamental as the duty of work in general or the duty of full time work in particular.
We have not felt able to accept that argument. It appears to us that words like “requirement” and “condition” are plain clear words of wide import fully capable of including any obligation of service whether for full time or for part time, and we see no basis for giving them a restrictive interpretation in the light of the policy underlying the Act, or in the light of public policy as reflected in a later submission of Mr Goldsmith’s to which we shall be referring shortly.”

11 The complainants have identified “permanent status” as the condition or requirement. The respondent contends that the award merely stipulates different pay scales for different classifications, reflecting differences in value of work, and that permanent status itself is not a requirement or condition. However, although it was acknowledged that the award contains a requirement or condition with respect to salary scales it was said that it was subject to a qualification, that for casuals to achieve permanent scale wages, they must perform the same work, in terms of value, as permanent teachers.

12 In our view, having regard to the authorities referred to, we conclude that cl. 12 in Part A and Schedules 6 and 7 in Part B of the award, when read against the award provisions as a whole, with respect to permanent employees, do contain a requirement or condition, with respect to salaries and other entitlements of teachers as employees within the Teaching Service. If they wish to achieve a higher rate of pay than that found in Schedule 6, entitled “Casual Teachers Rates” they cannot do so because of the prerequisite of permanency. The condition or requirement disclosed by the award and the enterprise agreement, which adopts a similar approach, is that in order to qualify for higher rates of pay and entitlements as a teacher in NSW, it is necessary to have permanent status.

13 It was contended by the complainants that, during the period commencing 8 August 1995 to the date of the hearing, in each case the condition or requirement of which each complained, whilst not imposed by the contract of employment, operated by virtue of a practice of the Director General with respect to offering employment to casual school teacher positions in the education and Teaching Service. Certainly, it appears that each complainant was employed by the Government of NSW in the service of the Crown from time to time as temporary staff, and some of the complainants have been appointed since they lodged their complaints with the Board as permanent staff.

14 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.

15 The second question is whether a substantially higher proportion of persons who are not female comply or able to comply with the requirement or condition. The evidence from Heather Gray’s statement is as follows:

Male Female
Permanent 18,125 32,692
Casual 4,828 23,182
Total 22,953 55,874

From these statistics it can be calculated that the percentage of male teachers with permanency was 79% while the percentage of female teachers with permanency was 59%.


16 This reveals that the percentage of male teachers who were permanent staff was 79% whilst the percentage of female teachers was 59%. The relevant percentages remained relatively static from 1994 to 1999. It follows that men in the Education and Teaching Service in NSW during the period are more likely to be made permanent staff than women, presumably because men are more able to move to take up permanent positions than women. In our view on the evidence before the Tribunal we consider that it is appropriate to find, as we do, that “ a substantially higher proportion” of men “comply or are able to comply” with the requirement or condition that we have identified in response to the first question than women. We accept the complainants’ submission that a proportion which is higher by 20% is substantially higher for the purposes of the Act. The discrepancy is not a mere anomaly or reflective of an underlying gender imbalance. In fact the gender imbalance with respect to the general population, if anything is the other way. Given that there were 78,827 teachers in 1997, the number of participants is very large and hence the conclusion is more likely to be reliable. We note that in every year for which statistics have been made available four fifths of the casual workforce were female, which tends to support the view that it is more difficult for women than men to obtain permanent status.

17 In Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165, the High Court considered the appropriate selection of a base group for the purpose of the application of the present provision in the form in which it then appeared in the Anti-Discrimination Act 1977 s 24. At p 192 ff McHugh J observed that it is the practical ability of the complainants to comply with the relevant requirement or condition that must be examined. At pp 202-203 his Honour further observed that, in order to promote the object of the elimination of indirect discrimination provided for by the section, it is necessary to take a comparison between the proportion of the sexes, not the numbers of each sex that comply or are able to comply with the requirement or condition. Adopting this approach in the present matter, we find that a substantially higher proportion of men over women comply, or are able to comply, with the condition of permanent status.

18 The third question is whether the requirement or condition 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. The arguments put by the parties on this issue fell within a narrow compass. They need to be considered in the context of reasonableness in s 24 (1)(b). In Waters and Others v Public Transport Corporation (1991-1992) 173 CLR 349 at 395 ff, Dawson and Toohey JJ considered the concept of reasonableness in a similar statutory context, that is the Equal Opportunity Act 1984 (Vic). Their Honours stated that reasonableness is “a question of fact for the Board to determine but it can only do so by weighing all the relevant factors”. The relevant factors differ from case to case, but included considerations such as the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, and accommodating the needs of those adversely affected by the requirement or condition imposed. Other factors referred to by their Honours included the availability of alternative methods to achieve the objectives of the legislation in a less discriminatory way, the maintenance of good industrial relations, the observance of occupational health and safety requirements and the existence of competitors. In short, the criterion of reasonableness is a value judgment directing attention to questions of expediency, rather that necessity or mere convenience.

19 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. It was however submitted by the respondent that the Education Teaching Service in NSW would be adversely affected if the condition were removed because the State would be unable to provide “continuity of teaching services and staffing flexibility”. It was suggested that a ready supply of casual, including long term casual, relief teachers was vital to the continuation of the current standards and high levels of teaching in State public schools. 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. In short 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.

20 In her evidence Ms Gray, a highly experienced administrator in the Teaching Service, mentioned several other justifications to the difference in treatment. The first of these is the need to provide for relief from face to face (RFF) teaching for primary teachers. However, the evidence did not disclose how the rejection of the permanency condition would adversely affect this program. The complainants do not submit that the whole casual teaching system is discriminatory, but rather that it operates unfairly with respect to a limited number of casual teachers who perform work of equivalent value to teachers having permanent status. The respondent’s submissions proceeded on the assumption that an award in favour of the complainants would result in the abolition of the program of relief from face to face teaching, but in our view the evidence does not support this proposition as the continued existence of a large pool of casual teachers is not seriously threatened by the abolition of the condition.

21 The second issue raised by the respondent concerned the need to provide against increases and decreases in student enrolments in particular schools. The issue was not pursued in any detail in the evidence. We consider, having heard the evidence, that the casual relief supply system, together with appropriate management and planning for staff allocation fully meets this possible concern. There is no justification for a discriminatory management policy affecting some, but not all, women teachers. Indeed, the 1997 Promotion and Transfer Procedures Manual issued by the Personnel and Employee Relations Directorate of the Department notes at page 6, that casual supply teachers who have been in their current position for a period of two years or more, will be given preference for appointment to permanent status from 1998.

22 Another issue raised was the need to address changing curriculum patterns, such as the expansion of vocational education, and changes of emphasis to language studies other than English. However, the evidence did not suggest that the system of long term casual supply teachers with a lower pay scheme than those with permanent status working equivalent hours and performing equivalent work, served to address that problem. For example, Ms Adkins, in her evidence referred to this concern as a justification of the whole casual teacher system, but the detailed reasons given by her, when examined, indicates no nexus between this consideration and the system of long term casual supply teachers.

23 Another factor relied on by the respondent is the need for staff flexibility to address specialised programs. One of these was the Disadvantaged Schools Program (DSP). Another was special education programs. A very experienced and competent principal Deanna Hoermann gave evidence that supply casuals were of great assistance in providing an appropriate organisational structure to address new programs, directed government funding and for vocational courses. However, analysis of the casuals that were used to address these needs, show that the staff utilised to address this management imperative were short term relief casuals, (cf annexure H to her statement). This statement was consistent with the evidence of other principals that the existence of the long term casual supply pool of teachers was more an adjunct to the permanent service than a ready source of stop-gap staff to address unexpected needs or unplanned opportunities for improvement of the Teaching Service.

24 Another consideration was said to be the need to provide for rehabilitation programs for teachers. Little specific evidence was provided on this point other than to point to the need to provide for teachers on sick leave or recovering from longer term injuries and or illnesses. The evidence disclosed that, the system of short term casual relief teachers adequately addressed these concerns.

25 Another factor identified, was the annual allocation of what was described as unique teacher supplementation based on individual school submissions. However, the evidence suggested that sound management practice by principals in consultation with the Department adequately addressed this concern. Not all principals did, nor were required to, consult with the Department. This of itself has lead to the significant jump in the use of long term supply casuals, and illustrates an aspect of unreasonableness in the present system. That is, principals have made use of the present system to appoint preferred teachers as casuals, in order to avoid the system of seniority relating to permanent appointments.

26 Another consideration, it was submitted, was said to be the need to cover the classes of teachers on long term leave. However, long term leave extends over several months and the period of interruption is usually known well in advance by school principals. The evidence suggested that a well managed school addresses these problems by the appointment of permanent part-time and/or permanent part-time mobile teachers.

27 It was also submitted that the need to maintain staffing flexibility to address educational programs specific to individual schools when initiated by those school was another justification for the indirect discriminatory conduct complained of. The evidence suggested to the contrary. For example, Mr Ron White, Principal of Mullumbimby High School , who impressed the Tribunal with his commitment to, and detailed knowledge of, the Teaching Service, explained that to provide an outstanding Film and Video course in his school he applied for and did appoint two permanent part-time teachers. He explained that to get access to the level of expertise necessary for this course he needed to offer permanent status to his staff. It appears that Mr White went out of his way to obtain permission for an exception from the Department’s policy in favour of appointing these particular teachers as permanent part-time rather than casual supply. The system of priority based on seniority which related to permanent appointments was put in abeyance given the specialist expertise of the staff in question.

28 Another broad criticism of the case put forward by the complainants was that the work performed by long term supply casuals was not of equivalent value to that of permanent staff. Indeed, the respondent’s case rested on the general proposition that there did exist a condition or requirement imposed by it as contemplated by s 24 (1)(b) of the Anti-Discrimination Act 1977, which was entirely reasonable. That condition was specified as being the equal value test and called for a comparison of the performance of work by the complainants as long term casual supply teachers compared to permanent staff. It is of some significance in addressing this criticism that no provision in either the award or enterprise agreement specifies a requirement of this type. Rather the award and the enterprise agreement take a more absolute approach and prevent long term supply casuals from advancing past step 8 of the salary progression compared to permanent. The evidence was that women move in and out of the permanent and casual structure frequently and view the permanency criterion for higher salary increments as a real impediment to progress in the profession.

29 The issue of work value is spelt out in some detail in the respondent’s points of defence filed 10 March 1998, points 5 and 6. The complainants have alleged that as supply casuals, who are appointed to work in excess of 8 weeks continuous service within a term at any one time, they are required to undertake all the duties and responsibilities of permanent staff. The complainants’ case in this regard was amply supported by almost all the heads of schools called in the case. Indeed, two of the principals called for the complainants who asserted the fact of equal value, were not cross examined.

30 The respondent’s case on this point began with the decision of the Industrial Commission of New South Wales in 1983 in which the Commission concluded that the work value of casual teachers was of lesser value than that of permanent full-time and part-time teachers. That finding was the foundation, so it was said, of the different manner in which the enterprise agreement and the award treated casual and permanent staff salaries. It was further pointed out that in 1992, the NSW Teachers’ Federation lodged an application for an award with the then Industrial Relations Commission of NSW that sought to break the nexus that had been established between the pay rates of permanent and casual teachers but that the Union abandoned that case. It then entered into the enterprise agreement. Both parties, the Union and the Department assured the Commission that the award satisfied all statutory requirements, including, it was suggested, absence of discriminatory conduct.

31 The Teachers’ Federation did not apply to be a party to this inquiry to explain its apparent acceptance of the difference in treatment of the complainants or to maintain the contention which it supported in the various hearings before the Industrial Commission that supply casual teachers do not perform work of equal value to permanent staff. The only evidence we have in support of the Commission’s conclusion is the record of the Industrial Commission of NSW proceedings in 1983 and 1992. This includes the reasons for judgment of Bauer J, delivered on 14 September 1983, the decision of the Commission in Court Session dated 31 August 1984, and the transcript of proceedings before the Full Commission on 25 September 1996 in which counsel for both parties gave the assurance to which we have referred.

32 At pages 709 and 713 of the report of the first of these matters [see (1983) AR 672] Bauer J noted the difference between the duties and responsibilities of relief casuals and what was described in the case before us as supply or long term casuals. At p 711 his Honour noted that supply casuals working a similar number of teaching days each year as permanent staff were in a position which was “quite different from those of the casual called in for immediate relief in emergency circumstances and for a short period only”. Critically, for present purposes, at p 712, his Honour held that “the work of teachers who work a large number of days in the year, is more valuable and equates more to the work of permanent teachers than those who work fewer days”. His Honour was apparently attracted by the view that there was no real distinction in terms of work value between long term supply casuals and permanent staff, and thought that, for salary purposes, the “differentiation should be made between the high number days employees and the low number days employees”. Oddly enough this finding did not persuade his Honour to consider the position of supply casuals differently to other casuals. It appears Bauer J thought that he was bound by the conduct of the matter by the Union and the public employer and should ignore this situation. This consideration does not assist the respondent in the present determination.

33 With respect to relief casual teachers, at p 709, his Honour found that “ because of the intermittency of their employment and the casual nature of their attendances at various schools, they could not enter into such matters as curricula development and development of the social structure of the school”. As to these casuals his Honour was clearly of the view that their work was not of equal value to that of permanent staff (see p 712 paragraph 3).

34 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.

35 The appeal to the Commission in Court Session from the decision of Bauer J [reported at (1984) 11 IR 196] was dismissed. However, in the course of the judgment the Commission in Court Session noted that there were two broad types of casual employees, relief casuals and supply casuals, but that in submissions the parties did not draw a distinction between the two. Rather a common provision was sought. However, the Commission in Court Session noted with approval the comment of Bauer J that this approach, “did not attempt to grapple with the wider industrial and sociological problems inherent in [sic] part-time and casual employment”. It was noted that the material to address “these quite special problems” was not before the Commission. We think that the very questions there referred to were left in abeyance by both the parties and the Commission. They have been squarely raised in the proceedings before us. The issues raised in this case arise out of the anomalies in pay scales between permanent and casual supply employees which, the complainants have argued, map discriminatory gender divisions.

36 It is only since 1994 that industrial awards and agreements in New South Wales have been required to comply with the Anti-Discrimination Act 1977. It is in this context that the present inquiry occurs. The focus of our inquiry is not a specific industrial inquiry as to work value and continuity of employment, but raises the so-called “wide sociological problems” referred to above, such as patterns of work participation in relation to gender. The present matter does not relitigate old issues in a different forum but litigates discrete rights that have become available since August 1995 in the industrial context. Accordingly, and not withstanding assurances as to the absence of discriminatory impact given to the Industrial Commission, in our view the respondent’s work value point is without substance.

37 It was pointed out that in September 1996 the same issues again came before the Industrial Relations Commission in Court Session, and again the Teachers’ Federation and the Department of School Education were represented. By this time the 1977 Act applied to industrial disputes. The parties reached an agreement concerning an award applicable to permanent and casual staff (referred to in the Teaching Services Act 1980 as “temporary”). At p 584 of the transcript, the following is recorded:
Fisher P : There are one or two other things that trouble me.
Taylor (for the Federation): “Yes and Mr Murphy (for the Department) carefully ticked off a number of those things.

Fisher P: “Are the parties trying to assure us that this statement is in terms consistent with all statutory requirements. That is really what we need to do.”
Taylor: “I think that we could safely say we had.”
It is clear from the transcript that the Commission did not specifically address questions of the operation of the Anti-Discrimination Act 1977. Further it is also clear that whether or not the Commission itself was troubled regarding the operation of the Anti-Discrimination Act 1977, it took appropriate steps, by obtaining the assurance of counsel representing the interests of casual teachers, as to whether the Commission’s decision, represented by the consent award, complied with all statutory requirements. Unfortunately the assurance given the Commission may not have been accurate. That however, does not absolve the respondent in this inquiry, and cannot deter us from proceeding to decide the issues as presented.

38 There was a further opportunity in 1998 for the Industrial Commission to examine the issues raised by these complaints in the Pay Equity Inquiry conducted by Glynn J pursuant to Industrial Relations Act 1996 (NSW) s 146 (1)(d). As Glynn J pointed out at pp 78-79 in the voluminous report dated 14 December 1998 to the Minister, the focus of the inquiry was “what changes to existing work value tests and mechanisms need to be made to achieve equitable outcomes”. This somewhat theoretical exercise did not touch upon actual gender difference in treatment. It was noted however that in relation to casual employees serious questions arose as to pay inequities with respect to allowances, inadequate protection of females casuals and particularly that there were “deficiencies in the general education system”. However again the Commission made no findings, because it reached the view that it was not asked to, concerning discrimination on the ground of sex with respect to the operation of long term casual pay scales.

39 Turning now to the detail of the evidence of work value in the cases before us in this inquiry, it is necessary to consider the position of each claimant before any particular claim can be substantiated. At the outset however it is helpful to review the general nature of the case presented by each complainant. Each of the complainants have had families and several still manage families with young children. Each is a professional teacher who has dedicated her professional career to teaching in NSW schools, and preferably the State system. One of the complainants has now left the State system for the independent school system but has expressed the preference for permanent employment in the State system. Except for two of the complainants, all were permanent staff of the NSW Teaching Service before resigning in order to rear children or for family reasons. In each case, after attending to the family responsibilities, the complainants have sought to return to their profession in the NSW Teaching Service. To that end each has reapplied for employment, and some for permanent status. Each of the women was paid at the top of the casual pay scale as at 8 August 1994 when the Anti-Discrimination Act 1977 commenced to operate in the industrial arena. That is, they had graduated to level 5 in the casual scale; the equivalent of level 8 of the permanent scale. Of course, throughout the period from August 1994 to date, they have not progressed past the top of casual scale levels provided for in the enterprise agreement and the award.

40 For all of the complainants who had, before ceasing work for family reasons, been permanents, payment at this level meant a decrease from that which they received when they were in permanent employment in the Teaching Service. Each of the women has throughout the period of the claim (8 August 1994 to date) worked continuously for periods of eight weeks or more at the schools to which they have been appointed, by the Teaching Service. It is important to note that the resolution of the present matter does not depend upon an assertion that the women have been discriminated against because their applications for permanency have been refused. Were that the position, it would be relevant, as Mr Menzies for the respondent submitted, that many of the complainants in seeking to review their professional careers, placed territorial limits upon their place of work for family reasons. The gravamen of the case is an assertion that the work performed by the women is of no less equal value that the work they had performed as permanent staff (in most cases), and of no less equal value than the work of comparable professionals in the same service who have throughout the period of the claim been permanent staff.

41 It is however, argued further by the respondent that valuation of work is a more complex task than simply saying that two people do the same work. The considerations bearing on the complexity of this task include: permanent teachers being subject to statutory requirements that casuals are not; the cumulative effect of performing duties of a permanent teacher over a whole year; and the level of preparation expected of permanent staff both in the delivery and development of school curriculum and participation in other school activities such as parent teacher interviews, camps, sports carnivals and so on.

42 In considering the evidence on these issues, we are of the view that it is relevant to admit the evidence of other casual supply teachers in like circumstances to the complainants. We do however, acknowledge the importance, in each particular case, in making a finding regarding the complaint of any complainant, to examine the evidence lead about their own experience, before a finding in favour of a particular claimant can be made (cf transcript at page 89 line 49). However, on the general question of reasonableness of the requirement, in our view, it is appropriate to have regard to circumstances other than that of the particular claimant, where those circumstances are relevant to the arguments advanced by the parties.

43 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.

44 As to the second point, namely that the cumulative effect of performing duties of a permanent teacher over a whole year distinguishes the work of permanent teachers from that of casual teachers, in our view, it is inappropriate to compare the totality of responsibilities and tasks carried out over a whole year with that of a teacher working an eight week block. The appropriate comparison is between permanent teachers and casuals who have reached an equivalent stage and value of work performance. In this case, it is contended by the complainants that an appropriate approach is to adopt a period of eight weeks as the threshold for performance of work of equal value by casual teachers. On the evidence we agree with this contention. That is, it is clear that after working such a period continuously, there is little or no discernible difference in the tasks or responsibilities of teachers in the Service. Indeed, there is room for argument in some cases that work of equivalent value is performed prior to that period, particularly by teachers who are engaged to fill the roles of permanent staff for extended periods, a fact known on engagement of casual staff.

45 The third point raised by the respondent in this issue concerns the amount of preparation and other work done by those in the Teaching Service. Reference was made to the evidence of Ms Douglas, who in cross-examination acknowledged that there was “a vast difference” between doing the work of a teacher for a term and doing the work of a teacher for a whole year, such as programming, writing reports and joining committees. However, Ms Douglas made it clear, both in her statement and in other evidence, that the duties she undertook as a casual supply teacher at Karonga School and at Roland Hassall School were “identical” to those undertaken by permanent staff, including, welfare meetings, organisation of school camps, school concerts, sporting events at the school, regional level and such community activities as sausage sizzles. In our view this evidence was consistent with the evidence of each of the other complainants and the school principals who were called by both side. There was a suggestion from Ms Irvine, that casual teachers who take up work at the beginning of term walk into the classroom unprepared. However, an examination of her evidence, in our view, leads us to a different conclusion. It is quite correct to suggest that a casual relief teacher engaged without warning at the beginning of a term will have done no preparation. However, where a casual supply teacher is engaged for periods of eight weeks or more, with due warning, that teacher will prepare in the same way as a member of permanent staff. It was clear that casual supply teachers and permanent staff are in precisely the same position so far as preparation is concerned where they are appointed without reasonable notice to a particular school, or to conduct particular classes or courses.

46 Although the point was not argued by the respondent we consider that there is one other consideration to be taken into account in determining the question whether the condition or requirement of permanency was unreasonable in all the circumstances. The issue was raised by the complainants’ case. It concerns the circumstances in which the complainants have been denied access to the higher salary increments because of their family responsibilities. All but two gave evidence that they abandoned their permanent status, and hence their right to the higher increments, to bring up children. All but one have resumed work in the Teaching Service and have worked in recent years as supply casuals; the exception commenced work after bringing up her family. Each has worked as a supply casual and most have applied for reappointment as permanent staff. They have been denied that status primarily it was put by the respondent because they have limited their availability to schools in the area of residence. The fact that limitation has been self-imposed it is argued means they have been denied what they seek as a matter of choice even though it is acknowledged that choice was obviated by the laudable motivation of acting in the best interests of the household in order to bring up a family. In our view, on the question of reasonableness of the operation of the condition or requirement of permanency this misses the point. It is because they are women that the complainants cannot effectively access the status of permanency. It is the rigid operation of the odd, perhaps dated, condition of permanency with respect to female casual supply teachers forced to give up their “permanent” status for family reasons that has served to bring about the discrimination against the complainants in the special circumstances of the complainants before us. The evidence suggests that it is women rather than men, or more precisely the complainants rather than their husbands or partners, who have had to break their career path for family reasons. This in our view is a significant contributor to the unreasonableness of the requirement in the present statutory context.

47 The fourth question for determination in this matter is whether the requirement or condition is one with which each complainant “does not or is not able to comply”. It was submitted by the respondent that the word “or” in this phrase in s 24 (1)(b) means “and”. It was then argued that because each of the complainants had resigned from permanent employment to raise families, that they had a choice about whether to comply with the condition or requirement of permanency as the touchstone of higher salary scales. It was then put that by reason of that choice it should not be concluded by us that the women had satisfied the fourth requirement.

48 The Tribunal rejects this argument on two bases. In our view, the word “or” in the phrase “does not or is not able to comply”, is used in its ordinary sense, that is, disjunctively to signify true alternatives. This construction promotes the purpose or object underlying the Anti-Discrimination Act 1977 and should be preferred (see Interpretation Act 1987 (NSW) s 33). The very circumstances of this case illustrate the point. In our view, the purpose of prohibiting discriminatory conduct on the ground of sex is not furthered by a construction which would have the result of permitting discriminatory conduct where the aggrieved person has no effective choice but to submit to the discriminatory regime or requirement. That is the case where for family reasons, a female teacher chooses to be at home to raise her children and support her partner.

49 The respondent’s reformulation of its point on this issue was that several of the complainants unreasonably limited their availability for permanent employment geographically or professionally. However, whilst it is correct that most of the complainants did limit their availability in the way contended by the respondent, this did not impact upon the question whether each in fact complied or was able to comply with the requirement or condition about which the complain. Geographical and professional limitations upon employment in the Teaching Service will no doubt impact upon the decision of the Department to appoint teachers as permanent staff. However, in our view, such limitations have no relevance to the question whether a casual supply teacher in fact performs work of equal value to that of a permanent staff member at a particular school and in fact does not comply with the requirement which limits their access to the same pay levels.

50 Turning now to the particular circumstances of each complainant in the light of the general considerations already addressed, it is convenient to consider them in the order in which they gave evidence. Ms Pursche was first employed as a permanent teacher in 1979. She resigned in 1987 to look after a young family. She reapplied to join the Teaching Service and sought permanent employment again in 1989. She was not offered permanent employment. In 1997 she left her then position of teacher of business studies at Asquith High to take up a permanent position in an independent school. She gave evidence that between 1994 and 1997 she worked as a casual supply teacher, often performing duties, more burdensome work but certainly no less equivalent work in terms of its value than those who comprised the school’s permanent staff. She gave evidence that as a casual supply teacher her employment status was vulnerable to all of the incidents of casual teaching and that if she did not perform extra tasks she would not be employed again. She acknowledged that by limiting her application to an area within 10 kilometres of her home in Hornsby which she did for family reasons she limited her prospects of being appointed to permanent staff. However, her evidence was that she performed work of equivalent value to permanent staff in periods of casual supply, when appointed for periods of eight weeks or more, but was no paid higher than the top casual scale.

51 In our view she has been discriminated against by the respondent on the ground of sex contrary to Anti-Discrimination Act s 24(1)(b). We find that on the ground of her sex, in order to qualify for salary scales higher than the casual scale the respondent has required her to comply with the requirement or condition of permanency with which a substantially higher proportion of male teachers comply. The requirement that unless having a permanent appointment salary scales higher than step 5 in the casual scale which equates with step eight of the permanent scale, shall not be available to her is we find not reasonable in all the circumstances of the case. It is a requirement with which Ms Pursche did not and could not in her circumstances comply.

52 The parties have agreed the relative difference in pay scales in the event of a finding in favour of the complainant in a document prepared by Ms Anderson and Dr Birch. The respondent’s records indicate that the appropriate arrears in her case from 8 August 1995 until 30 June 1997, when the complainant left the NSW Teaching Service are $8,569.72. It is necessary however before entering judgment in her favour for the parties to check that this measure of the difference in treatment throughout the period of her claim contained in MFI 1 and 2 relates only to work as a long term supply casual for periods in respect of which she was engaged to work, or did work periods of 8 weeks or more at a time. In her case, the Tribunal finds the complaint substantiated and on the assumption as to quantification to which the Tribunal has referred will order the respondent to pay to Ms Pursche the sum of $8,569.72. We will however if the parties wish after reading this determination hear argument on the precise amount to be awarded, interest and costs.

53 The next complaint was that of Ms Drury. She was first employed as a permanent teacher from 1978 and resigned in 1992 to look after her children. She rejoined the Teaching Service and applied for permanency. She has been unable to achieve the parity she formerly had effectively for family reasons. Between 1994 and 1998, she taught regular time-tabled classes between 2 and 4 days per week. On the evidence she performed work of equivalent value to that of a permanent staff member. Indeed in her case weekends and evenings work was performed suggesting she performed work that had a value greater than that of permanent staff, or at least at a superior level based on any comparison with a permanent teacher.

54 In our view in her case the complaint under s 24(1)(b) of the 1977 Act has been substantiated. We find that on the ground of her sex she has been denied the salary increments above level 5 on the casual scale unreasonably since at least August 1995. The respondent’s calculations, which we accept, in relation to the measure of the just compensation for the discrimination in her case, subject to the qualification already mentioned in relation to Ms Pursche’s case indicate that the appropriate sum in her case is $13,794.82.

55 The next complainant is Ms Platt. She was first employed as a permanent teacher in 1976 and resigned in 1981 to look after her family. She applied for a permanent position in 1987. From 1981 to the present day she has taught as a casual supply and in blocks of casual relief. In 1994 she taught the class of a head teacher who was on leave for the entire year. She undertook a wide range of extra-curricular activities after school and on weekends. In our view as a supply casual she performed work of equivalent value and greater from at least 1994 to date compared to that of permanent staff. Her performance and work value to the respondent during blocks of work as a supply casual was indistinguishable from the work of a permanent teacher.

56 In our view the complaint in respect of s 24(1)(b) of the Act in her case has been substantiated. We find that on the ground of her sex Ms Platt has been discriminated against. We accept the respondent’s figures as to the correct calculation of her loss. Accordingly we propose, subject to the earlier qualifications, to order the respondent to pay to Ms Platt the sum of $21,202.80.

57 The next complainant is Ms McHugh. She was first engaged by the NSW Teaching Service in 1978 as a casual teacher and so worked until 1984, both as a casual relief and supply teacher. From 1994 she taught full-time as a casual relief teacher. She has never worked as a permanent teacher in the public school system. In 1997 she obtained a full-time permanent position in a private school with permanent status and higher pay scales referable to step 13 in the Teaching Service award scales. She applied for permanent status in the Teaching Service in June 1988 before she married but limited to Sydney and later to the Tamworth area where she lived for family and personal reasons. If her application for permanent status is successful she proposes to return to the public Teaching Service. In our view she did work of equivalent or greater value to that of permanent staff whilst engaged as a supply casual throughout the claim period. She was not paid at scales higher than step 8 for permanent teachers under the award. She did not comply with the permanency criterion.

58 In this case, on factual issues, the majority took a different view to the presiding member after consideration of the legal questions to be resolved. In the view of the majority Ms McHugh has been discriminated against on the ground of her sex by reason of the unequal operation of the permanency standard. Although all members agree that the requirement of permanency has operated unfairly in her case the presiding member is of the view that it has been shown sufficiently clearly that the criterion has operated particularly with respect to her sex in a way that is unreasonable having regard to the fact that she has never lost permanency because of her family responsibilities or otherwise. It is true that she has been denied permanency since returning to the Teaching Service but she then left for greener pastures. In her case by majority the Tribunal finds that the complaint has been substantiated and awards the complainant the sum of $13,114.04.

59 The next complainant is Ms Hancott. She was first engaged by the respondent in 1970 as a permanent teacher and resigned in 1986 having reached the position of head teacher for family reasons, when her husband purchased a business at Blaxland NSW. From 1986 to 1993 she taught as a casual relief teacher and taught blocks of casual supply. In 1994 she returned to the Queenbeyan area and worked 2 to 5 days per week with the Kurabur High School as a supply casual to date. In 1995 she reapplied for permanency. On the evidence before us she performed work of equivalent value as a casual supply teacher throughout the period of her claim to that of a permanent teacher, and of no less value than when she had been a permanent teacher.

60 In her case we find the complaint pursuant to s 24(1)(b) of the Act substantiated . We accept the respondent’s figures in her case and award her the sum of $19,938.47.

61 The next complainant is Ms Douglas. In 1960 she joined the Teaching Service as a permanent teacher. She resigned in 1965 to raise 3 children. In 1995 she applied for permanent status in the Teaching Service, although from 1975 she taught on a casual basis at 3 schools within half an hour from her home. From 1995 she taught full-time for the year as a supply casual. She described the work that she did and we accept that she performed work of equivalent value to permanent staff. For the first term of 1998 she did work as a relief casual. Later she obtained work as a supply casual. She applied for permanent status on several occasions prior to 1997 and was finally accorded that status in January 1999.

62 In her statement, Ms Douglas said that the duties she undertook as a long term casual were identical to those of a permanent teacher. However, in cross-examination she said there was a vast difference between an appointment for a term and an appointment for a year. She referred to the requirements to timetable, to program, to write reports and to participate in joint committees as not imposed upon a teacher who worked at the school for a term only. This evidence does not expand upon and, on one view contended for by the respondent, appeared to be inconsistent with her statements. However, having regard to her evidence as a whole and in particular the repetition by her in the earlier part of the cross-examination of the evidence that working for a term was the same as the work of a permanent teacher, we are of the view that her later comment was merely descriptive of the fact that the responsibilities of permanent staff are cyclical and change from term to term, rather than pointing to a conclusion that the work of supply casuals does not involve the same extent of responsibilities as the work of a permanent teacher or is not work of equivalent value once the appropriate comparison is made.

63 We find the complaint substantiated with respect to those periods in which she was employed for periods of 8 weeks or more as a supply casual after 1994. We accept the respondent’s calculations as to the appropriate level of payment to redress the disadvantage. Accordingly we award her the sum of $24,505.79.

64 The next complainant is Ms Mors. She was first appointed as a permanent teacher in 1979. She resigned in 1985 to look after her young family. She said she little choice but to do so as permanent part-time work did not exist in 1985. Her husband worked in the meat industry which required him to move to different towns with abattoirs from time to time. In April 1994 she taught at Cootamundra High School relieving a teacher on maternity leave until 1995. She then taught 3 days per week until the last day of the year, being the same class she had previously taught. She applied for permanent appointment in May 1988, and was accorded permanency in 1997. She taught as a supply casual between August 1995 and 1997 in the Cootamundra area, sharing ancillary tasks with permanent staff. She performed work of equivalent value to permanent staff during the period.

65 We find the complaint substantiated. We accept the respondent’s figures and award her the sum of $1,940.

66 The next complainant is Ms O’Loan. She began teaching as a full-time teacher at Kambala Church of England Girls’ School in 1981, and between 1982 and 1990 was a full-time mother at home raising children. In 1991 she commenced work as a day-to-day casual teacher at the Model Farms High School . In 1992 she commenced full-time casual teaching, filling in a maternity leave vacancy at the Model Farms High School and by 1993 was appointed a casual teacher at that school. Throughout 1994 and 1995, she performed teaching services full-time, filling firstly a sick-leave vacancy and then an unfilled vacancy on the school staff. In her evidence she gave a detailed explanation of the work she did during 1994 and 1995 whilst teaching. From a comparison of that work, such as the preparation of course outlines, the preparation of all units of work, of booklets of information for the units, and the preparation of assessment examinations and reports as well as extra-curricular activity, it appears that the duties she performed at the Model Farms High School in 1994 and 1995 were in essence the same as those duties that were performed by teachers holding permanent appointments at the school or, to put it another way, would have been no different had she held a permanent appointment.

67 Her husband and Ms O’Loan have four children, and due to her parental and family obligations she was not able to take an appointment to a school in the Teaching Service outside of a reasonable distance from her home at Baulkham Hills. However, she says she would have taken such an appointment if offered one, and assuming one was available within a reasonable travelling distance from her home. Her claim relates to 18 days in 1995 and 66 days in 1996 and the increment between their actual and notional permanent scales. We accept the calculations of the respondent and find the complaint substantiated. We award her the sum of $3,196.44.

68 The next complainant is Ms Irvine. Her employment history is that prior to 1994 she worked as a casual teacher for several years both on a relief and a supply basis at Blaxland High School and later at Katoomba High School . For several years between 1986 and 1993, she appears to have worked almost as a full-time teacher but on a casual basis. In 1994, she taught approximately 4 days out of 5 on average throughout the teaching year. However, she was retained on a day-to-day basis, sometimes being informed the day before when she was required at Katoomba High School . The teaching covered several departments and different classes. In the final term, two weeks into the term, she commenced teaching to replace a teacher who had gone on leave, and remained in that position until the end of the term teaching English, including the preparation of annual reports in substitution for the teacher on leave.

69 In 1995 she commenced teaching as a day-to-day casual for the first nine weeks at Katoomba High School and then subsequently at Hawkesbury High School. She taught as a supply casual at that school for a term and thereafter as a relief casual. In 1997 she taught as a casual relief teacher for short periods in the first two terms and in term 3 commenced a supply causal position teaching History at Winmalee High School , teaching there ‘till the end of the year in place of a teacher on leave. A similar position prevailed at Jamison High School in 1998. However it does not appear that she ever worked as a permanent teacher prior to the commencement of these proceedings and did not apply for permanency at any time prior to the commencement of the proceedings. Indeed her application for employment in the Teaching Service is for a temporary position. Ms Irvine is married with a daughter aged 14 years and a husband employed as a permanent teacher at Blaxland High School. She wishes to retain a teaching job within a reasonable travelling distance of Wentworth Falls where the family live, and contends somewhat inconsistently with her omission to seek permanency that it would be impracticable for her to take an appointment to a permanent position involving travelling at a substantial distance from the home address.

70 In this case there are divergent views between the majority and the presiding member. In all the circumstances, the majority find the complaint substantiated in Ms Irvine’s case. The basis of the presiding member’s dissenting view is that the complainant did not work as a permanent teacher prior to starting a family and there is insufficient evidence that she ever reached the top of the casual teacher pay scale and equivalent to step 8 in the permanent teacher pay scale. In other words there is insufficient evidence to satisfy the presiding member that, in her case, a detriment has been suffered by reason of the discriminatory conduct. The majority take a different view of the facts on this point and find that a relevant detriment has been suffered. By majority therefor the Tribunal finds in her favour and awards her the difference in the current maximum casual scale as against the maximum common incremental scale for the period 1 July 1997 to 30 June 1998, 1 July 1998 to 31 December 1998 and 1 January 1998 to 3 September 1999, being a total of $14,119.

71 The next complainant is Ms Marcia Skelton. Ms Skelton taught for five years between 1974 and 1978 as a permanent teacher for the Victorian Department of Education and became head teacher at a small school at Licola. She later taught as a casual teacher. She has two children, who at the time of giving evidence were aged 17 and 15. For family reasons, presumably the stability of her marriage, it was not practical for her except in the area in which she resided, having raised a young family and wishing to resume full-time teaching to take a permanent appointment as she applied to do because of problems of travel and the lack of availability of such an appointment. In 1992 she was offered a position as casual teacher at Dobroyd Point Public School teaching five days a week. She taught for that period throughout the entire school year. She continued to be retained as a casual teacher from 1993 to the date of giving her evidence, teaching five days a week full-time throughout the entire teaching year. In each year she has taught a single class. Mostly these were infants classes. In 1998 she taught a composite class of Year 2 and Year 3 students. In April 1999 she was awarded the status of permanent teacher at the Dobroyd Point Public School . In the period prior to that appointment, and in particular from August 1995, the work that she undertook as a casual teacher was in all respects identical to that work undertaken by other teachers in the school holding permanent appointments. This included completing lesson programs, doing assessment reports, taking playground duty, conducting parent interviews, devising specialist literacy programs for children with learning difficulties, doing homework, organising special morning teas with parents and helping out in other extra-curricular activities. In our view she performed work of equivalent value during the several periods specified in the claim.

72 The Tribunal finds the complaint substantiated and awards her the sum of $30,542.98.

73 The next complainant is Joyce Amery. She fulfilled the requirements of a Teachers’ Certificate in 1977 and taught English as a Second Language in High Schools for several years after 1992. Between 1975 and 1979 she was a permanent teacher with the Department of Education. Later, she served as head teacher at the Calvary Chapel Christian School between 1980 and 1984. She returned to the public school system in 1985. In 1994 and since that time she has been closely involved in community work through the church at which she is a pastor and which associates her with the parish in which she serves. She is unable to take a permanent appointment away from that area of Sydney where she resides, as it would involve severing all connections with her pastoral duties. In 1994, she was teaching at the Kogarah Intensive English Centre 5 days a week for the first 3 terms of the year and 4 days a week in the fourth term of the year. Classes were timetabled as at a normal high school. In 1995, she taught full-time in the first term and four days a week in the remaining three terms. Again, she taught normal timetable classes. In 1996, she taught four days a week in the first three terms and the full term in the fourth term. In 1997 she taught full-time for the entire teaching year. In 1998, she taught full-time. She has been extensively involved in extra-curricular activities such as training and preparation of teaching programs for literacy at the beginner level used at the Kogarah Centre . She developed the full curricular program in Geography and computer studies at three levels of study. She helped produce the school magazine. She has undertaken several courses, both in and outside the school to ensure that she has an up to date skills base. She has participated in all extra-curricular activities of the school. As from 1994, in view of her experience, she was paid at step 8 equivalent of the permanent scale as a supply casual.

74 In the deliberations of the Tribunal on this complaint the presiding member differed from the majority on an issue of fact. The presiding member is of the view that there is insufficient evidence to substantiate the view that for family reasons the complainant was unable to take up permanent status within the Teaching Service, and that there is insufficient evidence to satisfy him that female pastors are discriminated against in comparison to male pastors by the respondent or for that matter by anyone else. On these grounds he was inclined to refuse the complaint. The majority take a different view of the facts of the case as presented. In their view all of the elements of the complaint have been sufficiently substantiated to warrant an award. In these circumstances by majority the Tribunal finds the complaint substantiated awards the complainant the sum of $32,287.05.

75 The next complainant is Ms Lyn Bovard. Ms Bovard worked as a permanent teacher from 1975 to 1984, but took extensive periods of leave without pay and maternity leave to accommodate her family during that time. In 1986, she resumed teaching as a casual, teaching one or two days a week until second term in 1994, when she began teaching full-time but still on a casual basis. In the first half of 1995, she reverted to work as a casual relief teacher in schools near her home at Bilgola Plateau, and in the second half of that year taught full-time, which appointment extended to the end of 1996. She worked full-time at the time of giving evidence. She claimed to have taught classes and performed extra-curricular activities to the same extent and having the same value as that of a permanent teacher at the school. She listed a range of activities that she performed including work as the Visual Arts Coordinator for the school and operating the Gifted Program for students in art. She administered the distribution, purchase and budget for all of the art resources for her school. She also ran a computer club two afternoons a week after school for the pupils, as an extension of her work as computer coordinator, in the second half of 1995. She was a member of a number of school committees and undertook the customary parent teacher interviews. She related that when teaching remedial mathematics, her parent interviews were particularly time-consuming. She listed certain courses of professional development that she had completed, and others that she had commenced but not completed. Since 1987, she has been seeking a permanent appointment to a school in the Northern Beaches area, but has not been offered such an appointment. She acknowledged that by limiting the locality of school that she had restricted her prospects under the present system of obtaining permanent status. She gave evidence that the Principal of her school informed her that the job she did carried the same workload as the permanent staff members.
76 In her case we find the complaint substantiated and award her the figure acknowledged by the respondent, namely the sum of $29,571.89.

77 The next complainant is Ms Linda Freeman. She commenced employment following graduation as an art teacher from the Alexander Mackey College in 1975 at Campbelltown High School. Between 1985 and 1997, she took casual appointments on a relief basis and maternity and long service leave whilst working at several Western Sydney schools, during which period she raised her young family. In 1994, she was offered a casual teaching appointment at the Eagle Vale High School , which she accepted. In 1995, she undertook a casual appointment at Eagle Vale High School teaching in the Art Faculty, following the permanent head teacher in Art taking maternity leave. This appointment involved her teaching five days a week throughout the whole of the year. In 1996, she performed further casual work as the Applied Science teacher, teaching five days a week throughout the year. The same position prevailed in 1997. In 1998, she obtained a permanent appointment at Casula High School . In the years 1995 to 1998, she undertook the same responsibilities and services as a teacher with permanent status. She undertook consultations with students and parents, was involved in the school welfare committee, and she developed particular art programs of some creativity at the Eagle Vale High School . She also organised art camps for students and visiting art galleries by the students from time to time. She was involved in other school excursions to museums, to exhibitions, to the Taronga Zoo, to the theatre and movies as part of the regular student curriculum. She reached the top salary for casuals at the commencement of the period. She has five children, but because of her obligation to care for her children it would have been impractical for her to have accepted the permanent appointment in the Teaching Service except within a reasonable travel distance of her home due to her commitments to the family and her husband.

78 In all the circumstances we find the complaint of discrimination on the ground of sex substantiated in her case, and award her the sum of $29,571.89.

Conclusion

79 We make determinations in favour of the complainants Pursche, Bovard, Douglas, Drury, Freeman, Hancott, Mors, O’Loan, Platt and Skelton and by majority in favour of the complaints of Amery, McHugh and Irvine. We would ask Counsel for the complainants and the respondent to prepare Short Minutes of Orders reflecting the determination that we have made in each of the various cases. Consideration should be given, if appropriate, to the questions of interests and costs. We would ask counsel to agree Short Minutes of Orders and we will re-list the matter on a date to be fixed for the purpose of making final orders in the various complaints.

80 As regards the decision of the Tribunal in the three complaints in which the presiding judicial member has dissented, the presiding member is of the view that his dissent concerns questions of fact not law. That being so the views of the majority prevail.