Australian Iron & Steel Pty Limited v Banovic

[1989] HCATrans 97

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl43 of 1988

B e t w e e n -

AUSTRALIAN IRON & STEEL PTY

LIMITED

Appella.nt

and

J. BANOVIC

E. ESPINOZA

K. GORGIEVSKA

L. MARTINOSKA

B. SIMONOVSKA

G. TAHERE

H. TRENESKA

F. VOULGARIS

First Respondents

PRESIDENT OF THE ANTI-DISCRIMINATION

BOARD

AIS(2)

Second Respondent

BRENNAN ACJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 MAY 1989, AT 10.17 AM

Copyright in the High Court of Australia

C2T 1/ 1/VH 1 3/5/89

MRS. D. ROBB:  May it please the Court, I appear with my

learned friend, MR R.F. CROW, for the appellant.

(instructed by Blake Dawson Waldron)

MR J. BASTEN: Your Honours, I appear with my learned friend, MR J.R. YOUNG, for

the first respondents. (instructed by Public Interest Advocacy Centre)

BRENNAN ACJ:  The Registrar has been advised by Mr Roberts,

Crown Solicitor for the State of New South Wales, he has

been instructed by the Acting President of the

Anti-Discrimination Board, the second respondent, the Board do not wish to be represented at the hearing of

this matter. They will abide by any order of the Court,

save as to costs. Yes, Mr Robb.

MR ROBB:  Your Honour, may I have leave to hand up to Your Honours

copies of the outline of the appellant's submission
in this matter? Could I just say before Your Honours
consider the document that these proceedings raise for

consideration section 24 of the ANTI-DISCRIMINATION ACT

and, in particular, subsections (1) and (3).	The appeal
really relates to the proper interpretation of

subsection (3) because the appellant was successful in

relation to subsection (1) below. Subsection (1) is
raised in the notice for contention. These outlined

submissions deal really only with the appellant's case

and there will be some short oral submissions I will out

in relation to the notice for contention. ·

Your Honours will also see that, apart from the

appellant's outlined submissions, there is a single-page

document called Example A. That has simply been. produced

by us in the hope that it may be of use to the Court in

considering our submissions at a later point. There is

also a document headed, "United Kingdom Cases."

(Continued on page 3)

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AIS(2)

MR ROBB (continuing):  Your Honours, in reading Mr Justice Priestley

judgment, will have seen that His Honour relied upon

English cases for a somewhat narrow proposition. We

are a little bit hopeful that we will not have to

take Your Honours to all of those cases - they being
essentially cases of the English Employment Appeals

Tribunal which we understand do not even purport to lay down any principles of general application. So

if I may simply say tha~ I can deal with that when

the time comes.

Do Your Honours wish to consider the outlined

submissions?

BRENNAN AJC:  Give us a moment to have a look at that outline,

Mr Robb. Yes, Mr Robb.

MR ROBB:  May it please Your Honours. Your Honours will have

noted the provisions of section 24 of the

ANTI-i>ISCRIMINATION ACT in various places in the

judgment under appeal and, of course, will appreciate
that the purpose of that section is to define sex
discrimination. The purpose of section 25 is to
make it unlawful for an employer to discriminate

against a person on the grounds of his sex.

As I understand the appeal, the only section

that requires close consideration is section 24.

Your Honours: will see that section 24(1) provides:

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.

Your Honours may know that that subsection provides

for what is sometimes called direct discrimination

and, as appears on its face, it is concerned with

situations where, if I may put it this way, the

reason for the action is grounded on sex or some

characteristic that appertains, or is imputed,to

sex. Your Honours will also note that subsection (2)
says:

For the purposes of subsection (1), the circumstances

in which a persontreats or would treat another

person of the opposite sex are not materially

different by reason of-

certain facts, which are not relevant here.

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MR ROBB (continuing):  Your Honours, as, in particular

the judgment of Mr Justice Priestley makes

plain in relation to the facts broadly which

are not in issue, the original complainants

were 34 women who applied for work at AIS

at various times. The tribunal found, and it

has now determined once and for all, that AIS

discriminated against those ladies on the

ground of their sex, perhaps that was on a

number of grounds but, essentially because AIS
had two systems of employing ironworkers ..

Male ironw.orker.s were employed on the basis

that, if they applied for work and there was a

job and they were otherwise suitable, they

would be employed; if not then and there, then

shortly thereafter because many men would

apply and there would not be work so they would

not be employed. But, on the other hand, AIS

had a system for the employment of women which

involved a waiting list and in a complicated way

that was agitated greatly at the hearing of the

liability question, AIS confined the jobs that it

regarded as being available to women to a small

proportion of the ironworker work-force. That
had the result that AIS accumulated a waiting

list of women and the tribunal found that those

women were employed considerably after men who
were employed in comparable circumstances.

Now, as I say, AIS was found to have contravened section 24(1) in its hiring practi~8S

and within the framework of section 113

compensation has been ordered to be paid by AIS

in relation to that contravention. Now, those

damages included damages for failure to hire and,

in a nutshell, what the tribunal did was to

assess the likely date of employment of each

woman had she been employed by the adoption of

a system that was the same for men as for women;

that has been called a notional employment date.

And, thereafter, because all of the ladies were

ultimately employed, a calculation was undertaken

as to the wages that were not paid and they were

damages for failure to hire.

(Continued on page 5)

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MR ROBB (continuing):  What happened was that unfortunately

some years after these events, following an

economic downturn, it became necessary to

retrench ironworkers and the company adopted

a principle of last on first off. This had

the result that of the ladies who had been

employed, they had a seniority which was later

than they would have had had they been employed

on their notional employment date.

McHUGH J: You do not push the point that troubled

Mr Justice Priestley, namely that subsection (3)

has got nothing to do with this case at all?

MR ROBB:  No, we do not. The cases, both American and

English, seem to strongly suggest that you can

have a condition or requirement which is not,

as it were, an attribute of humanity generally.

May I say that it is much easier, in my humble

perspective, to understand what section 24(3)

says when you are talking about height or

weight, or universally applicable characteristics.

McHUGH J:	It is not easy to work section 24(3) in with
dismissal at all, is it? I mean, it might be
said here in your favour that they were dismissed for a particular motive, or on a
particular principle, but was it a requirement
of the women that they should comply with a
requirement or condition? They were just dismissed.

MR ROBB:  Yes. I think the position is that is an argument

that was put before the tribunal and lost.

Rightly or wrongly, it was not agitated by

the present appellant before the Court of Appeal.

I suspect that may - - -

GAUDRON J:  Even if that were so, though, would the

last on first off principle not have have something

to do with the terms on which employment was

offered thereafter under section 25(l)(c)?

(Continued on page 6)

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AIS(2)

MR ROBB:	Yes.
McHUGH J:	In this case it is necessary for each of the respondents to find a second act of discrimination,
is it, because of the statutory ceiling?
MR ROBB:	That is right. That is the issue because AIS

accepts that a head of damages of the first

contravention is the retrenchment damages.

McHUGH J:	And it is the $40,000 cap?
MR ROBB:	Yes.
McHUGH J.	So for the respondents to obtain the maximum

compensation for which they have been damaged,
they have to find a second act of discrimination

to justify it?

MR ROBB:	That is so, Your Honour.
BRENNAN ACJ:	Mr Robb, the three paragraphs of subsection (3)

all seem to qualify requirement or condition?

MR ROBB:  That is so.

BRENNAN ACJ: If we are to address the problems of

section 24(3), perhaps you could identify for

us with some precision whether it was agitated

or not? What is the relevant requirement or condition

on which we should fasten our minds?

MR ROBB:  It may be best, because that has not been approached

in precisely the same way by the tribunal, the Court of Appeal and the parties, could I take

Your Honours - - -

BRENNAN ACJ:  Are you not able to articulate what is the

relevant requirement or condition?

MR ROBB:  I can but I did not want to paraphrase or risk

paraphrasing it.	The principle that was applied
was "last on first off". As I understand the

tribunal it accepted that that principle was relevantly

a condition or requirement.

(Continued on page 7)

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AIS(2)

MR ROBB (continuing):  We do not and never have accepted that

something in that form could be a condition or requirement.

However, it is possible to start from that principle and

work out a test which is relevant only to persons who are

employed by AI and Sand it is not an attribute relevant

to the whole of the population. What happened is - - -

BRENNAN ACJ:  Can we come back again for a moment? I do not

wish to press you unduly, but you say this was a principle

from which something can be derived. Well, what is

derived from the principle? What is the requirement or

condition which you say we must look to?

MR ROBB:  I will be more direct. It was the appellant's

proposition that, if what existed was a requirement or

condition, it was that to avoid retrenchment, an ironworker

had to be employed before 6 January 1981, because that is

how the working out of the last on first off principle

led to people being serially retrenched.

McHUGH J:  The Act says you must not discriminate against

somebody in dismissing her.

MR ROBB:	Yes.
Mc HUGH J:	25 (2) is the relevant clause, and you ask, "Well,

how did you discrminate ?" And you can rely on 24 (1)

which you have succeeded on, or 24(3), if it is applicable.

MR ROBB:	That is right.
McHUGH J:	But in dismissing her - just take any one of the respondents - how did AI and S discriminate against her?

M~ ROBB: Well, that is the question. If I could just say -

I avoided answering a question that Justice Gaudron asked me earlier - it flows from the proposition Your Honour

has just put.

(Continued on page 8)

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MR ROBB (continuing): If I may, Your Honour, the question

was whether the last on first off principle was

part of the terms upon which he offered employment.

It has always been the appellant's contention

that on any reasonable basis the last on first

off principle was not a term of the contract

or a basis of taking on the employee to begin

with and it never became a term of the employment,

it was simply a principle that was applied ex

post facto. But, with respect, Your Honour

Justice McHugh, if there is discrimination it

is under 25(2)(c).	But apart from that
Your Honour is right.

If I could return to the question of the Acting Chief Justice, Mr Justice Priestley

formulated the condition a different way.	He
said it was - and I am paraphrasing him - to be retained in employment the ironworker had
to be employed before the date of employment
of earlier retrenched persons.	And that is the
way it is now.	I do not know how much of a difference

flows from the various formulations of this

condition, if it is a relevant condition or

requirement in the first place.

BRENNAN ACJ:  Yes, well, you proceed to develop your argument.

GAUDRON J: Perhaps I could ask, at thi~ stage, would you

dissent from this statement: it is a condition

or requirement of your not being dismissed that

you should have been employed prior to 6 January

1981.

MR_ROBB:	I do not dissent from that in the sense that
that is true. It was a condition. Whether that
is a relevant condition or requirement for the
purpose of the ANTI-DISCRIMINATION ACT is a separate
matter but, with respect, that is a true statement
of what happened.  My learned friend, Mr Hely,
effectively put that proposition in the Court
of Appeal.  (Continued on page 9)

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AIS(2)

MR ROBB (continuing): If I may, Your Honours, I would

take Your Honours to that part of the tribunal's

judgment - it is only a couple of pages where

it actually deals with this matter; thankfully

there is little of the appeal book that, as I

understand it, needs to be looked at in depth.

The tribunal dealt with the matter first at

page 37 of the appeal book at line 20. The

reason I take Your Honours to the tribunal is

that, as I apprehend it, the membersof the

Court of Appeal treated the matter on a

different basis than the tribunal and my friend

will still urge that the tribunal was right

in this appeal. Your Honours will see that it

is made clear that the tribunal will deal first

with indirect discrimination and then the terms

of paragraph 24(3) are set out in paraphrase.

Then, at the top of page 38, it said:

The complaints do not rely on the

fact that a disproportionately high

number of women was actually retrenched.

As Mr Spigelman says in his Written

Submissions at page 18 women actually

constituted a lower proportion of

persons retrenched than they did of the

total workforce, and accordingly he

says that the complainants have failed

to satisfy the test.

Now, if I could interpolate, Your Honours,

as a matter of fact, it is unarguable that when

this so called requirement or condition was

applied to the existing ironworker work-force,

something like 6.23 per cent of men were

retrenched - sorry, I withdraw that -

6.23 per cent of women were retrenched and

6.67 per cent of men were retrenched.

GAUDRON J: What is the divisor that gives you that

6.23 and the 6.67?

MR ROBB:  The numerator in each case is the number of

men or women who were retrenched and the

denominator is the total nuniJer of IIEI1 or warren, as the

case may be, in the ironworker work-force.

And, if it is not already clear, may I say - - -

GAUDRON J:  Again, I do not understand that. The total

number of men or women, not the total number

of men and women? It is a total number of men

for one and the total number of women for the

other?

MR ROBB:  May it please Your Honour, that is quite

correct.

GAUDRON J:  Yes.

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MR ROBB:  So that, as this test was actually applied,

looking at either the number who avoided

retrenchment or the number who were

retrenched, a higher proportion of all ironworker

women avoided retrenchment than men and, on

the other side of the coin, a higher proportion

of all men ironworkers were retrenched.

So, at the heart of the appellant's claim is

what it sees to be a relatively simple

position but, if one looks at 24(3)(a), one

cannot detect that a substantially higher

proportion of men than women avoided

retrenchment. And, if that be so, then that

is the end of the consideration of section 24(3)

and indirect discrimination.

And, while it will be necessary for me to develop this because it is perhaps a position

put against us of some subtlety, it is

essentially the appellant's contention that it

having been found to have contravened in

relation to hiring and it having, within the

limits of the statute, been obliged to pay

damages for retrenchment, that what has in

fact happened in this case, in the light of the

percentages that I have just given to

Your Honours, is that the proper interpretation

and application of section 24(3) is being

contrived to make a new contravention which

we respectfully submit is perhaps a none too

subtle form of double jeopardy.

(Continued on page 11)

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AIS(2)

MR ROBB· (continuing): But, if I may for the moment go

on, at page 38 Your Honours will see it said:

The complainants point to the statistical

material supplied by the company itself,

which indicates a surge in the employment

of women in the second half of 1980 and

early 1981 ..... Between June 1977 and

April 1980, A.I.S. employed a total of

4289 ironworkers; of that number only 58

or 1.35% were women ..... On 10 September 1980

the General Manager informed the Counsellor
that the company had hired 468 employees

between 1st July 1980 and 22 August 1980.

Seventy-one, or 15.2%, were female. The

quarterly figures in Exhibit N shows that

the total number of female iron workers

employed which had been steady between 530

and 540 since September 1978 jumped from

531 in June 1980 to 611 in September and

again rose to 649 in December 1980 and to

a peak of 660 in March 1981. The total

number of men employed went up from 9889

to 10,123 between June and September 1980

then to 10,146 in December 1980 after which

it fell back to 10,094 for March 1981.

The question is, for the moment, what does that mean? As we will be seeing, what it shows is

that historically there was a little bit of a

hump in the proportionate employment of women

and it cannot be gainsaid that some proportion

of that hump was made up of people who were employed

later than they should have been.

A point which we submit must be kept very

much to the forefront is this, however: I do

not want to confuse the matter with figures but
what one sees, comparing men and women, is that -

sorry, I should withdraw that. September 1980

is in one way an important date because when the

company was obliged to announce that there may

be retrenchments, it was then thought that

retrenchments might include all people employed

after September 1980. As it turned out, things

were not so bad and only people employed on or

after 6 January 1981 were retrenched. But, between

September 1980 and December 1980, the total female

population increased by 38 and then, to March 1981,

it increased by a further 11. Over that same

period the male ironworker population first increased

by 23 and then diminished by 50.

Your Honours will wonder what is the relevance

of that, and it is this. I gave Your Honours

earlier the proportions of the workforce that

were retrenched. That represented, for men, 521
men out of 7698 and 32 women out of 510. What

follows from that, may it please Your Honours,

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AIS(2)

is this: these reasons of the tribunal do not take

into account in any way workforce turnover. The

very fact that 521 men were retrenched because
they were employed after 6 January demonstrates,

in the light of these totals, that, in fact, there

is a workforce turnover. I will not belabour

that point now, if I may, but it will become apparent

when one looks just a little bit later at the

reasoning of the tribunal.

The tribunal says, at the paragraph at the

bottom of the page.

Given what Mr Basten calls the "staggering"

increase in the number of women hired from June 1980 to February 1981 as a percentage

of the workforce, the complainants say that

when the company imposed the requirement

or condition on each employee that it would

retrench on the basis of "last on, first

off" it was clearly one with which significantly

less women than men could comply. It was

one with which the complainants who were

retrenched could not comply.

It appears to us to be undeniable that

the selection of gate seniority as the criterion,
while facially neutral, operated to the
disadvantage of women who had to wait years

to get jobs as compared with men who were

employed immediately or without significant

delay. All the complainants were in the

position that because of the continuing

effect of past discrimination at the point

of hiring they had very much less "gate"

seniority than men who applied for jobs

at or about the same time.

We are satisfied that whether measured

against -

certain dates -	the reverse gate seniority principle was
a requirement or condition for continuing
employment at the steelworks which answers
the test in s.24(3)(a), namely that a substantial
higher proportion of men than women complied or were able to comply with it.

With respect to the tribunal, that is a very opaque

statement and I have to confess that I find difficulty

in assisting Your Honours by elaborating the process

of reasoning involved there. But one must remember

that this statement is in the face of the proportions

that I have mentioned and it seems, doing the

best I can, to be a statement that it is appropriate

C2T29/2/SDL	12	3/5/89
AIS(2)

to take as the condition what I have called the

principle of "last on first off" and, somehow

in a generalized way, not actually see how it

applies when people are retrenched but to consider

it in what may be called an ambulatory way to

how it may apply over the whole of the workforce

if (which has not happened) the whole of the workforce

were progressively retrenched.

Now, it is our respectful submission that that is not a condition or requirement and that

is not a way to test whether a substantially higher

proportion of one sex than another can comply.

We respectfully also submit that - and this is

at the heart of our submissions, if I may say so - to come to this result in order to avoid the continuing effect of past discrimination when

that past discrimination is a contravention for

which, under the Act, recompense can be had and

has been had is a misdirection in law.

(Continued on page 14)

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MR ROBB (continuing): And really, what it comes down to,

and one need put no finer point on it that this,

than it is so interpreting the indirect

discrimination provision to cause there to be

a contravention simply because there was an earlier

contravention. But apart from that, and any

questions Your Honours might have on that question,

I do not propose to dwell because of a difficulty

I have - I am sorry to say - in appreciating

precisely what the reasoning is there.

The one thing that I would say, if I could perhaps burden Your Honours to move at this point

to page 112 of the appeal book, this was a document

that was handed up by my learned leader to the

Court of Appeal and no issue was taken with it.

In short compass, what it was was this: the

appellant went to the various schedules that

were in evidence and calculated what the proportions
would have been had the retrenchment requirement

been more serious and, as it were, eaten further

into the work-force and Your Honours will see

the table at the bottom. As at 6/1/81, the

proportion of males retrenched was slightly more

than females; as at 31/12/80, again, the proportion

of males would have been bigger; when you get

to 30/9/80, you find there is a slight imbalance

by slightly more than a percentage point.

Your Honours will see that, if you keep

going on, there is a point that was never reached

where you would have had a 10 per cent imbalance

in the sense that - just to take one example,

there would have been 36 per cent of women

ironworkers retrenched and only 26 per cent

of men. Your Honours might wonder what is to

be made of that. All we say is that those figures

cast very serious doubt on the legitimacy in

fact of this process of reasoning that the tribunal

engaged in and perhaps makes one wonder why such

a principle as last on first off should ever be
a condition or requirement for these purposes

because it tends to throw up somewhat accidental

results.

If I may, Your Honours, if I could just,

because of the convenience of dealing with it here, take Your Honours to page 41 where the

tribunal dealt with the question of direct

discrimination, that is, section 24(1), and

Your Honours will find that the treatment starts at page 41, line 23:

Having made a finding of indirect

discrimination under s. 24(3) it would perhaps

be unnecessary to give consideration as

C2Tl0/l/ND	14	3/5/89
AIS(2)

to whether the case could properly be put

on the basis of direct discrimination.

It is then noted that:

The question of direct discrimination was

not argued as fully as perhaps it might

have been. As I understand it both classes

of complaints -

complainants, it must be -

contend thats. 25(2)(a) has been breached
in that there has been discrimination of

the ground of sex in the terms or conditions

of employment which were "afforded" by A.I.S.

to the relevant complainants. In addition

those actually retrenched would come within

s. 25(2)(c) -

There is then a discussion of Mr SpigElman my

predecEssor's submissions as to whether there

was relevant treatment and just above point 10,

after that question had been concluded against

AIS:

Sparse as the evidentiary materials are

in this area of the case the Tribunal has

no difficulty in holding -

one might have thought that was strange with

respect of the tribunal -

that the company's announcement that it

would retrench workers hired after

30th September, 1981 clearly constituted

a threat and indeed ..... We have had more

difficulty with the question of whether

it amounted to less favourable treatment
but the Tribunal is persuaded to the view
that it is open to us to regard it in that

light and we should do so.

(Continued on page 16)

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AIS(2)

MR ROBB (continuing):  If it is convenient to the

Court, may I just put at this point what we

say on this question of direct discrimination,

leaving it for my friend to develop his

position in his argument and, if there be some short need for reply, then the Court

might indulge us? If I could direct

Your Honours to the terms of section 24(1),

at the risk of repeating myself, it says:

A person discriminates against another

person on the ground of his sex if, on

the ground of -

(a) his sex;

(b) a characteristic -

et cetera -

he treats him less favourable than in the

same circumstances -

et cetera, he -

would treat a person of the opposite

sex.

The provision does not say:

A person discriminates against another

person on the ground of his sex if .....

he treats him less favourable than

in the same circumstances

et cetera. Now, at the heart of our submission,

may it please Your Honours, is this. Nobody

can seriously say, and I am not sure anybody

really has seriously said, that the selection

and imposition of the last on- first off

principle was, in fact, based upon, as a matter

of motive or intent or any other basis, the sex

of any person. It was what is called "facially

neutral" - I would, with respect, prefer

"superficially neutral" - but, be that as it may,

what appears from this decision is the

tribunal seems to have thought that 24(1) is

satisfied if less favourable treatment is found.

But, what the section makes absolutely clear

is that if there is less favourable treatment,

which the appellant does not condede anyway, that

it must be on the ground of sex and I, with

respect, would not say anything more about that

subject-matter because, we respectfully submit,

it is quite clear that the imposition of the

test that led to retrenchment or otherwise was

not on the ground of sex nor on the basis of

C2Tll/l/JH	16	3/5/89
AIS(2)

what could sensibly be called, a characteristic

that appertains generally to persons of his

sex. The fact that somebody happens to be employed on a certain date, we respectfully

submit, does not have that nature.

Now, the tribunal having held that, may

I, if it assists Your Honours, direct

Your Honours to what the then Chief Justice

Sir Laurence Street had to say on this

subject-matter and that is important because,

as we understand it, His Honour took a quite

different course to what the tribunal took.

Now, we also understand it, it is a different

course to what the majority of the judges

found. His Honour's treatment of the

indirect discrimination point commences at

page 125. At point 25, His Honour first

states his opinion that section 24(3) is

available and then he says:

For the purposes of the present case, however, the availability of that

section appears to me to be a

comparatively straight-forward matter.

At page 26, just under point 15, he says:

The Tribunal, in holding that this

ground was made out, identified the

requirement or condition as being

that the employee had to have been

hired on or before 6 February 1981. Then, His Honour goes to deal with two matters

which, as we understand it, are at the heart

of the issues before the Court which relate

to the proper interpretation of section 24(3).

It may, if this assists, be appropriate before I

actually say what Their Honours concluded on

these points, to revert to the terms of

paragraph 24(3) to shew what,. as we understand it,

the issue is. But, before I do that, for the

sake of putting matters in context, could I

trouble Your Honours to go to page 149 of the

appeal book because that sets out the

comparable English provision? Your Honours

will see that the Australian provision is
significantly more compact in its drafting

style and, as we understand it, ·)es raise a

question of what is to be implieu but,

understanding what the English have to say, as

we see it, assists.

C2Tll/2/JH	17	3/5/89
AIS(2)

MR ROBB (continuing):  Your Honours will see that, at page 149

point 5, it said:

A person discriminates against a woman in any

circumstances relevant for the purposes of

any provision of this Act if -

(b) he applied to her a requirement or

condition which he applies or would apply

equally to a man but -

(i) which is such that the proportion of

women who can comply with it is considerably

smaller than the proportion of men who can

comply with it,

Now, this word "proportion" is at the heart of the

issue. On the basis that it may assist Your Honours,

we prepared copies of extracts from the Macquarie

Dictionary and the Shorter Oxford Dictionary in

relation to this word "proportion". We have not gone

to the Full Oxford English Dictionary for certain
practical reasons, but, as we understand it, it does

not add much.

I do not propose to take Your Honours to those

as a matter of English usage,

extracts, but we give them to you because it may help. or "proportion", sorry,

appears readily from the dictionary definitions to have

a number of meanings, and the issue is this, whether

section 24(3)(a) actually requires a comparison

between the number of men who succeed over all men,

as opposed to the number of women who succeed over

all women, or whether it just requires a comparison

or a ratio between successful men and successful

women. One might put it this way, "a proportion of

men to women".

If one returns to the English section, one

can see that the word "proportion" is actually used

twice. It is the proportion of women who can

comply and the proportion of men who can comply.

The New South Wales Act uses the word "proportion" once. It says:

with which a substantially higher proportion of

persons of the opposite sex to the sex of the

other person comply -

Now, as we understand it, what the learned Chief

Justice did is that he read those words as "proportion

of men to women". He then noted the fact that the

ratio of men who avoided retrenchment to women was

15:1 and that led him to conclude that, as an obvious

matter, section 24(3)(a) was satisfied, because once

C2Tl2/l/FK	18	3/5/89
AIS(2)

you compared the number of men who succeeded to

the number of women, and you got a great disparity,

then that was sufficient, and then you would move

on to consider whether the requirement was

reasonable.

We, with respect to His Honour, submit that

His Honour was wrong. As we read the judgment of

Mr Justice Priestley, with whom Mr Justice Mahoney

agreed, Mr Justice Priestley accepted that what

had to be compared is "proportions", two separate proportions, not just proportion of men to women.

As we understand it, that is what the tribunal did although their reasoning is a little bit obscure.

That is what the English section seems to require,

and we respectfully submit that that is the

appropriate way to construe the provision.

At the risk, if I may, of being a little

obscure, but I hope brief, if one returns to the

New South Wales provision, one sees in paragraph (a)

the expression "persons of the opposite sex to the

sex of the other person'', now, if the other person

is "women", the expression - - -

BRENNAN ACJ:  That is one thing that it is not, is it not?

It is a person - - -

MR ROBB:  I beg your pardon?

BRENNAN ACJ:  We are dealing in this section, not with a

class, but with an individual.

MR ROBB:  Yes. I accept Your Honour's injunction in that

respect. In so far as one determines whether an

individual has a right to compensation, subsection (iii)

where it refers to the "other person" clearly refers

to an individual woman.	I accept that, with respect,
Your Honour.

(Continued on page 20)

C2Tl2/2/FK	19	3/5/89
AIS(2)

MR ROBB (continuing):  So, it says:

If he requires the -

woman -

to comply with a requirement or condition -

(a) with which a substantially higher

proportion of -

the expression of "persons of the opposite sex to

the sex of the other person" could just mean "men"

but it seems that there is no way that it can be

taken to mean that because it would be meaningless

if it just said "with which a substantially higher

proportion of men" comply, because that is giving

no denominator to any numerator.

The way Mr Justice Priestley took that - and we

respectfully agree with him - that the words "of the

opposite sex to the sex of the other person" must

mean "of men to women" which is an available meaning.

The word "to" can do a little bit of mischief, we

respectfully submit, in that expression but it must

mean at least:

With which a substantially higher proportion

of persons of -

men to women -

comply or are able to comply.-

because, if it does not mean that, you do not have a
proportion in the first place or you have a provision

which is silent on what the comparison should be.

GAUDRON J:  Why does not one just read "a substantially

higher proportion of men" and then, sub silentio,

"than women"? "Higher" always suggests that there

is a "than".

MR ROBB:	Yes. Well, that is what we are saying, Your Honour. Whether the wording we put is the wording that is found most favourable, one way or another, as a matter of
ordinary,albeit perhaps a tiny bit strained English
implication, the sub silentio point, it means "men than women" in this particular context but, even if it mean that, there is another step which we suggest
respectfully that the Court should take because, if
it just reads - - -

GAUDRON J: But, if you do it that way, if I can interrupt you - - -

MR ROBB:  Yes.

C2Tl3/l/SH	20	3/5/89
AIS(2)

GAUDRON J:	- - - is not your question - your mathematics of the proportion of men and women retrenched useless?
Your question, then, is: the proportion of men who were not retrenched?
MR ROBB:	I am not sure I am answering this question in the
direct way it perhaps deserves but - - -
GAUDRON J: But, I mean, maybe what I put to you is wrong.	I

ask that.

MR ROBB:	Because the subsection talks about the proportion who
comply, I have always taken it, you look at the numbers who jurrp the hurdle and then compare the number that
complies with - between men and women, whatever that
comparison may be - rather than look to the number
who fail and that is only because -

GAUDRON J: But, I think when you have looked at the numbers

retrenched as a percentage of the persons of, firstly - - -

MR ROBB:	Yes, Your Honour is right.
GAUDRON J:	- - - you have looked at, who has failed.

MR ROBB:  Yes, Your Honour is quite right. That was the way

it was put before the tribunal but one, strictly

speaking, should look to the 94 point something

per cent of men who passed as opposed to what we

say is the slightly larger but still 94 per cent of

women who passed.

GAUDRON J: Well is it?

MR -ROBB: Well, that is the issue.

GAUDRON J:  I mean, is it a straight take-away even on your view?

MR ROBB: Well, if I do not succeed in convincing the Court that

it is appropriate to compare the proportion of

successful men to all men and the proportion of

successful women to all women; that is, there are

two proportions which is the way I put in in

paragraph 1 of the outline of submissions, then,
in relation to paragraph 24(3)(a), I fail because I

cannot, I would not try to say precisely what the

Chief Judge's reasoning was because he does not but

what he did seems to suggest that he read'proportion of men to women"as just the number of men who passed

over the number of women and got 15: 1,.:

GAUDRON J:  A straight ratio.

MR ROBB:  A straight ratio. The main reason - there are two

reasons why we say that is not appropriate. One

depends upon the interpretation of the section though

I have to accept is a little bit obscure and that is

C2Tl3/2/SH	21	3/5/89
AIS(2)

this: the .word "proportion" as one sees from the

dictionaries, can mean ratio but it also can mean

what is, we understand, a more mathematical concept

of "proportion".

(Continued on page 23)

C2Tl3/3/SH	22	3/5/89
AIS(2)

MR ROBB (continuing): If you were comparing proportions of

men to women, you would use the word "proportion"

twice. It says:

a substantially higher proportion of - men to women. It may appear like a mathematical

trick, but we respectfully submit it is not.

GAUDRON J:  But it does not say that at all. It does not

say "a higher proportion of men to women" on

the construction you have advanced. It says

"a higher proportion of m8n than women". If

you read the expression:

persons of the opposite sex to the sex

of the other person -

as a composite phrase, that is how you get

your men.

MR ROBB:	Yes.
GAUDRON J:	And then you read in, "than women".
MR ROBB:	You imply "than women".

GAUDRON J: Yes.

MR ROBB:  I may be obtuse, but I do not know the difference

between using "to" as opposed to "than", except

as a matter of English.	I cannot see a
mathematical difference.

GAUDRON J: Perhaps that is right. The "to" does suggest

a necessary mathematical relationship, which

is not necessarily suggested by "than".

MR ROBB:	Yes.	It is difficult to imply in that circumstance, "than" rather than "to", if that gets the
non-mathematical result when the word "to" is
used, if I could respectfully suggest.

May I simply say that, as I was saying, if it

did mean, as we think the Chief Justice thought

it meant, proportion of men to women, that would

be a fraction, say, 15 over one, and it is not

really misleading mathematics to say that a
ratio of that nature will always mean a single

number. It will always be able to be written

as a single number because a ratio is 15 over one,

or some figure over another, and that would lead

to the section saying a substantially higher

proportion of 15 in this case. I do not want

to belabour the point, because I accept that -

we submit that the drafting style is very compact,

so there is a limit to the extent you can actually

C2Tl4/l/JM	23.	3/5/89
AIS(2)

try and compel a conclusion by relying upon

the words themselves. But, if I may say so,

we respectfully submit that the l.Be of the

words "a substantially higher proportion" is

suggesting that you are comparing two quantities

because the "higher" suggests that you have two.

DAWSON J:	How would that work with,say, height or weight
requirements?
MR ROBB:	If my floor of barristers advertised for a

receptionist, but - if I could use the old

measures - all applicants had to be over

six foot tall, then you would find that the

proportion of men who were over six feet tall

was substantially higher than the proportion of

women who were over six feet tall and you would

have a perfect and proper case for the application

of section 24(3).

DAWSON J:	But you are comparing all men with all women
in that?

MR ROBB:  Yes. And when I come to it - clearly there are

situations where it is absolutely proper to

compare all men and all women and when I come

to deal with the majority judgment, it will

be necessary for me to deal with that point and

say why,in some circumstances, and as we urge,

this one, it is not appropriate to take all men

and all women.

DAWSON J:	I do not see that for the moment; if it is a simple ratio why it cannot be a ratio I make
in that comparison?
MR ROBB:	To address myself to Your Honour's question,

one of the things we say is that where - and

it is in our outline of submissions - if it

is a proper case to take as the denominator

of the proportions the whole of the men and

the whole of the women in a population, on

the assumption that they would be for all

intents and purposes the same number, you have,

taking this case, 15 over two million - assuming
there are two million men in New South Wales -

and you compare that to one over two million

and one finds that is mathematically invariably

the same process as comparing 15 to one.

DAWSON J: That is right.

MR ROBB:  And that is true, and I accept that. The point

we put is that it is not appropriate in all cases

to take the whole of the population, but if it

were there would be no point in arguing whether

what this section required was a ratio of men

C2Tl4/2/JM 24 3/5/89

AIS(2) (Continued on page 24A)

succeeders as to women succeeders as opposed

to the proportions that I am urging. It is

important for my case to be able to persuade

Your Honours that in some cases the denominators

should not be the whole of the population, and

that is when it becomes important to consider

this issue of what this word means.

(Continued on page 25)

C2Tl4/3/JM	24A	3/5/89
AIS(2)

DAWSON J:	Do I understand you rightly to say that you do not really have to look at the whole of the
legislation because the result will be the same
if you just take the whole of this workforce and
look at the ratio?

MR ROBB:  Yes. In fact there is a decision of

Mr Justice Wilcox to which I will refer Your Honours.

DAWSON J: It seems to follow logically.

MR ROBB: It does. It is inescapable, logically, and

Mr Justice Wilcox has actually held as much.

DAWSON J:  So you simply say "what proportion of the workforce

here", and look at the ratios.

MR ROBB:	Yes.
GAUDRON J:	Do yo say that?

MR ROBB:  No. We say - - -

DAWSON J:  You do not say that?

MR ROBB:  No. We say that if it is required as a matter

of statutory interpretation or for whatever other

reasons that all of the population of New South Wales,

whether or not ever employed by AIS, is to be

the denominator, then it follows ineluctably that

you compare 15 to 1 and you get the same answer

whether you do it Mr Justice Street's way or

Mr Justice Priestley's way. But if, as we urge,

there are circumstances where it is quite inappropriate
to take the whole of the population of the State,

then you will get different denominators which

will depend upon how many women there are and

how many men there are, and you will get quite

different answers on that approach and that is

why we submit that the proper interpretation of

paragraph (a) requires the use of the proportion

twice.

DAWSON J:  I do not want to labour it but you would concede

that there are some circumstances, indeed the

most obvious circumstances would be ones in which

you take the whole of the population: height,

weight, and so on?

MR ROBB:  Yes. I concede that absolutely. The strange

thing, if I may say, that the cases that are thrown

up tend not to factually concern the obvious conditions

or requirements that are attributes of men and

women generally throughout the community. If

one looks at the English cases, one after another,

one finds that they tend to have conditions and

requirements that are comparable to the one at

present.

C2Tl5/l/SDL	25	3/5/89
AIS(2)
DAWSON J: Facially neutral?

MR ROBB:  Yes, but somehow limited in their possible application

to the whole of the population. But, to make

it clear, in the example I gave of advertising

for a receptionist and having a height requirement,

then it would seem completely proper - well, on

one view of it it is completely proper to take
the whole of the population and you will then

find that the comparison is the same whether you

do it Mr Justice Street's way or the Chief Justice's

way or Mr Justice Priestley's.

BRENNAN ACJ:  Does not all this come back to the necessity

to identify what the requirement or condition

is?

MR ROBB:	Yes.
BRENNAN ACJ:	Your argument must be that the requirement

is not simply that somebody was employed but that

somebody was employed by an ironworker, by AIS,

before a certain day?

MR ROBB:	Yes.
BRENNAN ACJ:	In the case of the secretary, if, for example,

you said, "Those over six feet who have qualified

from the June Dally-Watkins school of modelling'',

you would have a different answer.

MR ROBB:	Yes, I agree with that, Your Honour.
BRENNAN ACJ:	Then how do we identify what the requirement or condition is to which we should direct our
attention under paragraph (a)? Will that not
give us the answer of what proportions or figures
we are looking at?
MR ROBB:	We say it does because however you actually formulate

the particular requirement or condition, it is

inescapable that one of the attributes that the

class to whom it is applied must have is employment

by AIS.

McHUGH J: But, accept that, is not the case that is put

against you this: AI and S discriminated against the

first respondent, just to take her as an
illustration, on the ground of her sex in dismissing
her by requiring her to comply with the condition

that she be employed before 6 January - whatever

the year was, a condition with which a higher

proportion of men to women at AI and S were ~ble to

comply?

C2Tl5/2/SDL	26	3/5/89
AIS(2)

MR ROBB:  That is part of the case against me and it is the

Chief Justice's position.

McHUGH J:  What is the flaw?

MR ROBB:  The flaw with that is the following: it depends upon

bare numbers and not proportions and sometimes it

will cause the Court - sorry, I will put it another

way. To be more practical about it, take, for instance,

a group being office secretaries or hospital nurses.

Historically, I would submit, the Court could accept

that that initial group would start off with a great

preponderance of women as opposed to men. Say hospital

nurses were to be given promotions and somebody had
the bright idea that it was better to have strong

nurses rather than weaker nurses and the test that

was applied for promotion was being able to lift a

certain weight,. in that circumstance, I respectfully

submit, one can readily see it to be likely that,

because there is such a predominance of women in the

first place, if you just count the successful ones

afterwards, you will still have a much greater number

of successful women than successful men -

GAUDRON J:  Maybe that is because women always could lift those

weights.

MR ROBB:  Yes. I have to confess one of the great difficulties

in picking examples in this area is to avoid the

situation - - -

GAUDRON J:  And why the wage requirement was never transposed into

nursing, I have never understood.

MR ROBB:	Yes.
DEANE J:	On that approach, of course, if they had had a fair

raffle of the remaining jobs to avoid any problems

it would have been caught by section 24(3)(a). Even

if they had said to all the employees, "We will give

you all the absolutely equal chance by having a

raffle of the remaining jobs."

MR ROBB:  If that were the case, if one started off with a preponderance

of women and assumed that the law of averages

worked you would find the same proportion of existing

women promoted to the same proportion of men. If

you compared the numbers you would find the number

of men to women was greatly in the women's favour.

The point is that, in the example I gave, the

interpretation of section 24(3) which just compared

the numbers of men to women who happened to succeed

would actually miss what would be a proper candidate

for indirect discrimination.

On the other hand, if you took the proportion of

women who succeeded - one has to get the figures right -

but if you take the proportion of women who succeeded

from all women to the proportion of men who succeeded

C2Tl6/l/VH	27	3/5/89
AIS(2)

to all men, you are likely to find that the proportion

of men that succeed is substantially greater than women

because it happens that it is an indirectly discriminatory

test.

McHUGH J:  But you inject this word "succeeded".

MR ROBB:	Yes.
McHUGH J:	But is not the answer to the problems that you are
pointing to in subparagraph (b)? There is not only
going to be this higher proportion, a substantially higher proportion, but the condition, or requirements not to be reasonable.

MR ROBB:  Yes. Could I answer that in this way: if you have

an initial population or group with a preponderance

of men, interpreting paragraph (a) as simply comparing

the number of men who can comply with the nurrber of worren will

almost always lead to a result that the ratio of

men to women is great; (a) will be satisfied and,

with respect, Your Honour is right in saying there will

be a safety net of paragraph (b). It then will not be

bad unless it is unreasonable.

McHUGH J:	On the illustration that Mr Justice Deane gave, it might be sai
well, it was quite reasonable having regard to the
circumstances of the case that you did it by lot.
MR ROBB: Yes. That is	right. If a man complained that after

the ballot the number of women naturally was much

greater than the number of men that promoted, and he

said, "Look, you do it Mr Justice Street's way and you get a lot of female nurses over a small number

of men, therefore subparagraph (a) is satisfied," then

it would be open to the hospital, or whatever, to

demonstrate that was a reasonable way of doing it.

So there would be a safety net in that sense.

Accepting that for the moment, we submit that it is still important to get paragraph(a) right because,

as a matter of ordinary commerce, it is at least a

significant thing that the question whether the first

hurdle for indirect discrimination is passed or not,

should relate to whether there is likely to be

indirect discrimination in the work-force or not.

(Continued on page 29)

C2Tl6/2/VH	28	3/5/89
AIS(2)

MR ROBB (continuing):  Because, if you have a

preponderance of men to begin with, then
perhaps nearly everything that is done will

pass paragraph (a). True, it is, that if the employer is attacked he can then say, "Well, this is reasonable"and go to the

tribunal and there would be a ·proceeding which

the employer might succeed but, it is our

submission, that if you compare proportions

of successful men or complying men to all
relevant men and complying women to all

relevant women, paragraph (a) will actually

detect whether you have got an imbalance.

GAUDRON J:  But, why do you make your denominators sex specific? Why are they not the general

population in issue? I do not mean the

State population but the relevant population?

MR ROBB:  With respect, that is a good question. I am

not sure whether mathematically - I do not

know the answer to that question, that might

seem a strange thing to say - but, I am not

sure what the mathematical consequences are.

It may make no difference at all. The only

direct answer I can give to that is that if

one is right in coming to the conclusion that

indirect discrimination is best detected by

comparing proportions, it is best detected by

comparing the proportions of men who succeed

to all men; otherwise by mixing the denominator
in together, I suspect mathetmatically, one

reduces the risk of detecting a superficially

neutral test which bave differential results.

But, I am afraid that is the best answer I can

give. It is a difficult thing to do without

I mean, one does not have a computer - but

working out what the difference makes.

GAUDRON J:  Oh, a little calculator would do, Mr Robb.

MR ROBB:	Yes.
DEANE J:	But, is not the relevance of what I put to

you about what they did was more favourable to

the women than the probabilities would have

been if they had done it by lot that, unless

your approach to (3)(a) is accepted you could

have the most blatant discrimination which

could never come within 24(3) if the number of
women, for example, were 10:1 in relation

to the number of men?

MR ROBB:  Yes, with respect that is - - -

C2Tl7/l/JH	29	3/5/89
AIS(2)

DEANE J:  Where by lot the women whould have a

91 per cent chance; their chance could be
reduced to a 51 per cent and they still
could not take advantage of (3)(a). It seems

to me to be the real force of your argument.

MR ROBB:  Yes, with respect, I agree with that. If I

may put it in very short compass, what we say is, where there is, in fact, a discrimination,

albeit lndirectly against women, and there

is a preponderance of men, the test will work;

where there is a preponderance of men, but the

test is not indiscriminatory against women,

the test will still appear to work because you

will end up with a greater number of men than

women and then the employer must go to the

reasonableness. However, if you have a

preponderance of women to men to start off with

and what is a discriminatory practiee is

imposed - weight or height or some such thing -

the likelihood is that (a) will be failed when

you do have discrimination. And that comes, with respect, from comparing he.re numbers in

the population that you happen to have rather

than a true equivalence.

BRENNAN ACJ:	The reality is that if you have a gender imbalance in a work-force, any requirement
which is imposed upon that work-force of a
non-discriminatory work related kind by the
employer will, on the argument against you,
fail (3(a).
tiR ROBB:	Yes.

BRENNAN ACJ:  The only way in which it will not is if

there is reverse discrimination in what is

applied by the employer.

MR ROBB:	Yes, I think I understand what Your Honour says
and agree with it. In AIS' case, the only way
it could have avoided satisfying (a) is to just
keep retrenching men until it had an equality
in the work-force and then it might be able to
retrench women and men together.  I think that is
right.
BRENNAN ACJ:	Was there any industrial award which

covered the question of retrenchment?

MR ROBB:  On the evidence, no. The evidence, as I

understand it, is quite sparse on that.

C2Tl7/2/JH	30	3/5/89
AIS(2)

MR ROBB (continuing):  I think the direct answer to that is

no. I think it is fair to say that the appellant's

case was that last on first off was immemorial and
heaven help an employer who tried to change it but

I suspect the evidence was not entirely as full as it could have been on those issues.

McHUGH J:  They are employed under a New South Wales award,

the AIS, are they not?

MR ROBB:  I think so, yes. I am told that there definitely was

not and it was not a term of the award that retrenchments

would be on that basis. Perhaps we would not have been

today if that had been the case.

Now, if I may, passing to Mr Justice Priestley

with whom Mr Justice Mahoney agreed, I perhaps overly boldly do not propose to take Your Honours to each of the English cases that Mr Justice Priestley refers to

though, naturally, I am happy to do so if that were

thought profitable. The reason why I say that is that,

on no view do those cases, all of which are cases of

the Employment Appeal Tribunal which, in my understanding,

is presided over by a High Court Judge with lay members.

One, I think, is the SCHAFFTER case, a Queens Bench decision but, as I say, the main reason I do not go

to them at length is because, as I apprehend it - ~y

friend will correct me if I am wrong - they do not

lay down any general principle in any case.

The purpose that Mr Justice Priestley went to

them for was that he tested them to see whether they

supported the view that the population was always the

whole population of the country. Now, what we have

done in the material that I have handed to

Your Honours, the last few pages of which there are

suggests most strongly that the definition of sex

discrimination, section 24, is meant to be the operative

definition but, even putting aside that which is our

primary submission, as we apprehend it, in going to

the word "discriminate" in section 25 and suggesting

that it may have a wider meaning than the definition

of 24, my friend wishes to say that there may be
discrimination simply if there is less favourable

treatment between the sexes.

If I am right in that and it depends upon my

understanding of what he said, we submit there is

an extra reason why that is not an available submission. (Continued on page 92)

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MR ROBB (continuing): Whether or not section 24 is exhaustive,

as we submit it is, it says that sex discrimination

will exist, if, on the ground of his sex, et cetera,

there is less favourable treatment. And it would

indeed, in our respectful submission, be an

extraordinary thing if it were available to go to a

general word, "discriminate" in section 24 and conclude

that it allowed there to be sex discrimination in

circumstances that came within 24 but excluded what

is clearly the most important requirement of that

section.

The next thing is the question of intention was

raised. I will not repeat myself; I made my submission

on the proposition that, to come within 24, there

must be discrimination on the ground of sex. My friend

referred the Court to the BIRMINGHAM CITY COUNCIL V

EQUAL OPPORTUNITIES TRIBUNAL case. All I need say

is this: that was a case where the council clearly

discriminated against young girls on the grounds of

their sex. It said if you are a little girl you go

into these schools and if you are a little boy you

go into those schools, and it happened there were more

boys' schools that girls' schools. It is quite clear

from the decision at page 525, but what the council

tried to argue was that it was not sufficient for
sex discrimination to be established for the prosecuting
party to establish that sex was the actuating ground

or reason, but. there had to be some actual intention

to discriminate. The council tried to run a case

which got properly short shrift, that while they had

actually done this there was not an intention to

discriminate in the sense of motivation.	Now, we
accept that.

But that does not answer this case where, in our submission, there is no basis for saying that the last on

first off principle was adopted or applied to anybody

because they were women or men.	It was applied to
the work-fiorce generally.	I think this may well have
been covered earlier: there was some discussion

during the course of my friend's submissions about

the relevance of section 25(2)(a), that is:

It is unlawful for an employer to discriminate against an employee on the ground of his sex -

(a) in the terms or conditions of employment
which he affords him.

And my friend put to the Court that, as he understood it, that had never been an issue and it has somehow been accepted by the present appellant. All they should say is that when the appellant retrenched or

dismisses employees by application of this principle

the appellant accepts that it dismissed the employer

and as section (2) (c) is satisfied, there is no joy

in the appellant in saying anything more about (2) (a).

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But it has never been the case that the appellant

has accepted that the retrenchment of an ironworker

on the basis of the last on first off principle

somehow came to be a term or condition of employment.

I am doing this in the order my friend did it so

perhaps I am a little bit out of order.

My friend referred to the UMINA BEACH case and

I respectfully submit that when Your Honours look

to the extract that my friend took the Court to,

the Court will find that the Court of Appeal was there

talking about there being a necessity that the act

be done on the ground of sex in the circumstances
that we submit is proper. That is, it be an actual
actuating cause; it be in the mind, as it were, of

the perpetrator that the course is taken because of

the sex of the people in the work-force.

If I may now pass to this question of indirect

discrimination and section 24(3). My friend, as we

understand it, seeks to call in aid the American

provisions. Put shortly, the American provisions

prohibit discrimination and the American courts have

worked out doctrines which apply to both what is

loosely called direct and indirect discrimination.

It is our prime submission that while those cases may

be of some interest, ultimately this Court must

construe the present Act in its own context. In

particular, our submission is this: it is said that

cases like TEAMSTERS, in the United States, enact
a doctrine or apply a doctrine that it can be unlawfully

discriminatory to perpetuate in the present the

consequences of past discrimination. That may be so, but

it, with respe~t, has to be considered in this light.

(Continued on page 94)

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MR ROBB (continuing):  In America there is not an equivalent

of subsection (3) and so if - I might say seniority

is a bad example because in America there is a special

protection of seniority systems - but putting that aside

for the moment, if at a later time in America an

employer retrenches and finds that he has retrenched

40 per cent of negroes and 10 per cent of his white

staff, then what TEAMSTERS says is that sort of

disparate conduct may be a contravention of title 7,

and so be it, but it is predicated upon the factual

result that there was that disproportion. What we

say is that in New South Wales law it is

subsection (3) that performs that role. In our case

there was not the disproportion, and if I may put it

this way it is at the heart of the appeal.

If in the present case 30 per cent of female

ironworkers had been retrenched and 5 per cent of male

ironworkers, we accept that something comparable to

the American TEAMSTERS doctrine, ie an ordinary

application of subsection (3)(a) would catch us.

In essence the submission on that point is this, that

the way TEAMSTERS is reflected in New South Wales law

is in subsection (3). Accepting that, there is no

warrant to try to use TEAMSTERS to go further, as we
understand my friend and the tribunal did in once you
apply subsection (3) to go beyond or behind the
natural population of the base group because really
that is to use TEAMSTERS twice when it is the use,

speaking very loosely, of TEAMSTERS once that is the

gensis of subsection (3) in the first place.

If I could add to that the proposition that this

and any other court, with respect, must take into

account the fact that while a statute designed to

achieve the public good must be given a liberal

interpretation, one must keep in mind the fact that

so far as possible it must be something that an

employer, conscientiously trying to understand its

effect on an employer,	has some moderate prospects
of doing so.	We submit that when one considers the
subgroup of the group of ironworkers that my friend

contends should be adopted to achieve the proportions

that have been talked about, that is artificial and

really on the evidence, as a completely practical

matter, one just cannot know what the result would be.
As we submit at the beginning of our address,

the effect of turnover seems to have been ignored by the tribunal, though it is quite clear that the reason why 500 men where retrenched is that they must

have all been employed after 6 January 1981 and it is

only by ignoring that fact, the whole question of

turnover, and by directing one's mind to the gross

number of employees from time to time, that one can

even be attracted, with respect, to the mistake to
think that somehow when people are employed they stay

employed so that it is fair to say, "Well, a man got

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employed two months after his application some time

in 1978 and he is still there, so he is advantaged

over women"; that just may not or may not happen.

No doubt some people who get a job stay there

for life, many do not, but the very fact that even

the facts in the tribunal's judgment show that there

were a total of 500 men retrenched who must have been

employed in a time when the total number of men was

decreasing shows that this proposition of turnover

is not some artificial trick that is raised by the

appellant, but the reality of the situation.

If it please the Court, I have nothing more in reply.

BRENNAN ACJ:  Thank you, Mr Robb. The Court will consider

its judgment in this matter.

AT 3.52 PM THE MATTER WAS ADJOURNED SINE DIE

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