Bonella v Wollongong City Council
[2001] NSWADT 194
•11/29/2001
CITATION: Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 DIVISION: Equal Opportunity Division PARTIES: APPLICANTS
Irene Bonella
Rhonda Boxall
Jan Keith
Joan De Wet
Shivani Tambyah
RESPONDENT
Wollongong City Council
JOINED PARTIES
Environmental Health and Building Surveyors Association of NSW
Federated Municipal and Shire Council Employees Union of Australia, NSW DivisionFILE NUMBER: 991026 HEARING DATES: 11/12/2000, 12/12/2000, 13/12/2000, 14/12/2000, 05/03/2001 SUBMISSIONS CLOSED: 03/05/2001 DATE OF DECISION:
11/29/2001BEFORE: Rees N - Judicial Member; Antonios Z - Member; Strickland J - Member APPLICATION: Sex Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Legislation Amendment Act 1997
Administrative Decisions Tribunal Act 1997
Anti-Discrimination (Amendment) Act 1994
Anti-Discrimination Act 1977
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Interpretation Act 1987CASES CITED: Australian Doctors Trained Overseas Association Inc v Director-General, NSW Department of Health [2000] NSWADT 115
Waters v Public Transport Corporation (1991) 173 CLR 349 at 395
Concut Pty Ltd v Worrell (2001) 75 ALJR 312 at 315)
Allders International Pty Limited v Anstee [1986] 5 NSWLR 47
Byrne v Australian Airlines Limited (1995) 185 CLR 410
Leonard v Youth Hostels Association of Australia (1995) EOC 92-763
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSWADT 44
Commissioner of Police v Orr [2001] NSWADTAP 16
Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165
Waters v Public Transport Corporation (1991) 173 CLR 349
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Bropho v State of Western Australia (1989) 171 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841
Australian Medical Council v Wilson (1996) 68 FCR 46
Griggs v Duke Power Co (1971) 401 US 424
McMonalge v Westminster City Council [1990] 2 AC 716
Kidd v D. R. G. (UK) Ltd [1985] ICR 405
Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Haines v Bendall (1991) 172 CLR 60
Alexander v Home Office [1998] 1 WLR 968 at 975REPRESENTATION: APPLICANTS
K Eastman, barrister
RESPONDENT
C Ronalds, barrister
JOINED PARTIES
Environmental Health and Building Surveyors Association of NSW
L McManus, barrister
Federated Municipal and Shire Council Employees Union of Australia, NSW Division
B Kruse, solicitorORDERS: 1. Within 28 days of the date of this order the Respondent is to pay to each of the Applicants damages in the sum of $7,500; 2. The Applicants are granted leave to approach the Tribunal for an order pursuant to section 113 (1) (b) (iii) of the Anti-Discrimination Act 1977 no later than 16 weeks after the date of this order.
Introduction
1 In this case the applicants (‘complainants’), Ms Irene Bonella, Ms Rhonda Boxall, Ms Jan Keith, Ms Joan de Wet and Ms Shivani Tambyah, have alleged that their employer, Wollongong City Council (the respondent), unlawfully discriminated against them on the ground of sex when determining which employees should be permitted to have private use of motor vehicles owned by the respondent.2 The case was heard by the Tribunal in Sydney on 11, 12, 13 and 14 December 2000, and on 5 March 2001. Both parties were represented by counsel: the complainants by Ms Eastman, and the respondent by Ms Ronalds. In response to their applications, the Tribunal ordered on 8 August 2000 that two trade unions, the Environmental Health and Building Surveyors Association of New South Wales (EHABSA), and the Federated Municipal and Shire Council Employees Union of Australia, NSW Division (the MEU), be joined as parties to these proceedings. Both trade unions were legally represented, at some stages, during the hearing. EHABSA was represented by Ms Ginters and Ms McManus, and the MEU was represented by Mr Kruse.
3 Mr Milton Luger, who was a member of the Tribunal panel which conducted the hearing, died between the conclusion of the hearing and the delivery of this decision. In accordance with section 79 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), the President of the Tribunal, with the consent of the parties, appointed Ms Zita Antonios to replace Mr Luger.
4 In the paragraphs which follow we have set out the history of the proceedings, our procedural determinations, and summaries of the evidence presented at the hearing and the submissions of the parties, as well as our reasons for deciding this matter in favour of the complainants and making consequential orders.
History of the Proceedings
5 On 5 September 1996 each of the complainants lodged a complaint of sex discrimination under the Anti-Discrimination Act 1977 (the Act) against her employer, the respondent, with the President of the Anti-Discrimination Board (the President). The complaints, which are in almost identical terms, alleged "indirect discrimination in the allocation of employment related benefits" by the respondent. The benefit was described as "the provision of private-use motor vehicle benefits to staff at the Assistant-Manager level across Council’s workforce". Following investigation, the President referred the complaints to the Tribunal, pursuant to section 94(1) of the Act, by letter dated 15 February 1999.6 The Tribunal subsequently made the ‘usual directions’, following which Points of Claim and Points of Defence were filed. On 12 May 2000 the complainants filed Amended Points of Claim. We consider the following portions of that document to be of particular relevance:
7 On 3 August 2000 the respondent filed Amended Points of Defence. We consider the following portions of that document to be of particular significance:
6. The Complainants are librarians employed by Wollongong City Council ("The Respondent") as assistant managers.
7. All the assistant managers employed in the Library Services Division of the Respondent are women.
8. The Complainants, as employees at the level of an assistant manager are and were entitled to be considered for or to apply for certain benefits arising from their employment with the Respondent.
9. Access to a motor vehicle for private use is and continues to be a benefit associated with employment with the Respondent at the level of assistant manager or above.
Particulars
(a) The provision of a motor vehicle for private use.10. Alternatively, the provision of a motor vehicle for private use is part of the overall remuneration of employees employed by the Respondent at the level of an assistant manager.
11. The Respondent required and continues to require the Complainants to comply with a requirement or condition before a motor vehicle is allocated to each of them for private use.
12. A substantially higher proportion of male assistant managers were and are able to comply with the requirement or condition.
Particulars of Requirement or Condition
(a) Terms of Wollongong City Council Motor Vehicle Policy adopted 26 March 1990 to 18 July 1999 and since 18 July 1999 to date the terms of Wollongong City Council Motor Vehicle Management Policy.(b) And or in the alternative, the allocation of a car for work use.
13. The Complainants have not had, and continue to be denied, access to a motor vehicle for private use.
Particulars
(a) There are presently 48 assistant managers of which 35 are male and 13 are female.(b) 29 of the 35 male assistant managers have a motor vehicle allocated to them for private use being approximately 83% of male assistant mangers having cars.
(c) 6 of the 13 female assistant mangers have a motor vehicle allocated to them for private use being approximately 46% of female assistant managers having cars.
14. The requirement and condition, imposed by the Respondent is not reasonable in all the circumstances.
15. The imposition of the requirement or condition results in indirect discrimination within the meaning of section 24(1)(b) of the Act.
19. In consequence of the Respondent’ conduct, and by reason for the conduct of the Respondent, the Complainants have suffered loss and damage.
Orders sought
Particulars
(a) Injury to feelings and dignity as employees of the Respondent.(b) Loss of access to the benefits enjoyed by assistant managers.
(c) Remuneration lost from being denied access to a motor vehicle for private use.
(d) Expenses incurred in purchasing a motor vehicle for private use.
20. The Complainants seek the following orders for relief:We should note, for the sake of completion, that with the consent of the respondent, and with the leave of the Tribunal, paragraph 15 of the Amended Points of Claim was amended by the complainants, on the first day of the hearing, to read as we have reproduced it above.
(1) Damages.
(2) The Respondent allocates a motor vehicle to each of the Complainants for private use.
(3) Alternate to order (2), the Respondent pay each of the Complainants a sum equal to the value of the allocation of a motor vehicle.
(4) Costs.
(5) Such other orders as the Tribunal considers appropriate.
8 A close reading of the extracted portions of the ‘pleadings’ reveals that the parties were in dispute in relation to numerous aspects of this case including the number of complaints before the Tribunal, the nature and effect of the policy of the respondent concerning private use rights of motor vehicles, whether the challenged policy fell within any of the substantive provisions of the Act, and what relief, if any, the complainants were legally and factually entitled to receive in the event that the Tribunal found the complaints substantiated.
3. The respondent denies paragraph 8 as the complainants as employees at the level of assistant manager were never and are still not "entitled" to the "benefit" nominated by them as a benefit. The respondent denies that the provision of a motor vehicle is necessarily a "benefit" as it involves making a financial payment from the user of the motor vehicle to the respondent which is linked to the private use of the motor vehicle as determined by the respondent’s policies.
Entitlements and benefits of employment are in accordance with the Enterprise Agreement. The allocation of motor vehicles is in accordance with the Motor Vehicle Policy.4. The respondent denies paragraph 9 and it is based on a factual inaccuracy as not all assistant managers have motor vehicle private use and the respondent denies that it is a benefit of employment. The complainants are not the only assistant managers without a motor vehicle with private use rights. There are 11 such assistant managers and some are male and some are female. The allocation of motor vehicles with private use rights is determined by the position and not by the person occupying the position or the gender of the person occupying the position.
5. The respondent denies paragraph 10 as a motor vehicle for private use is not part of the overall remuneration of any employee excepting employees who are designated senior officers in accordance with the LocalGovernment Act 1993. Further and in the alternative, it is not part of the overall remuneration of employees employed as an assistant manager.
6. The respondent denies paragraph 11.
7. Further and in reply to paragraph 11(b), the respondent does not understand the requirement or condition as alleged and the way it is alleged to relate to either the complainants or to the complaint and so reserves its right to respond when and if it becomes apparent.
8. In reply to paragraph 12, the respondent denies that the allocation of motor vehicles with private use rights is influenced by the gender of the assistant manager. The respondent contends that the allocations are based on the needs of the organisation and not on the level of management responsibilities or accountability indicated by the title of the position of “assistant manager”. Allocations are not correlated to salary levels.
The statistics presented by the complainants may have been accurate at 1995. They change every time there is an appointment to the position of assistant manger as the allocation of motor vehicles depends on the functions of the position and not on the gender of the person appointed to the position.
9. In reply to paragraph 13, the respondent denies that the complainants are "denied" access. The complainants have failed to comply and continue to fail to comply with the relevant policies.
10. In reply to paragraph 14, the respondent contends that the allocation of motor vehicles pursuant to the Council’s policies is reasonable in all the circumstances.
13. In reply to paragraph 19, the respondent denies that the complainants have suffered any loss or damage as a consequence of the respondent acting in breach of the Anti- Discrimination Act 1977.
14. In reply to paragraph 20(1), the respondent denies that there is any basis for any order for damages for the complainants or any one of them by the respondent. The respondent notes that it is unaware of the particulars of any claims for damages except as generalised in the particulars in paragraph 19.
Particulars
(a) The respondent denies that any action or decision of the respondent is responsible for any injury to feelings and dignity of the complainants as employees of the respondent or in any other way.(b) The respondent denies that the complainants have had any loss of access to any benefits enjoyed by all other assistant managers except the complainants. Further and in the alternate, the respondent denies that the complainants have had any loss of access to any benefits enjoyed by any assistant manager because the complainants are women.
(c) The respondent denies that the complainants have lost any remuneration from being denied access to a motor vehicle for private use. The allocation of a motor vehicle with private use rights is not part of the remuneration package.
(d) The respondent denies that the purchase of a motor vehicle for private use is in any way connected with any of the complainants’ employment and hence denies that any of the complainants have suffered any loss or damage which in any way would be sustained by any sort of claim against the Council arising from any alleged breach of the Anti-Discrimination Act 1977.
15. Further, the respondent notes that there is only one complaint before the Tribunal and so there is a maximum of $40,000 of the damages which can be awarded to all five complainants together pursuant to section 113(1)(b)(i) of the A-D Act.
16. In reply to paragraph 20(2), the respondent contends that there is no power for the Tribunal to make such an order.
Additional Parties
9 On 9 June 2000 both Mr Ian Robertson, the Secretary of EHABSA and Mr B Harris, the General Secretary of the MEU, applied to the Tribunal, by way of letters to the Registrar, for orders that their respective unions be joined as parties to the proceedings. In his letter to the Registrar, Mr Robertson of EHABSA stated:10 The application from Mr Harris of the MEU was expressed in similar terms. Mr Harris described his union’s interest in the proceedings in the following extract from his letter to the Registrar:
I have been advised of these proceedings and have seen the Amended Points of Claim that has been filed by the five employees of Wollongong Council.
I understand that the claim is being made that the employees were not allocated cars because they were women and that they seek, in paragraph 20(2) of their Amended Points of Claim, that the Tribunal order the Council to provide them with cars.
I am the Secretary of the Environmental Health and Building Surveyors Association of New South Wales. This is the union operating in local government in New South Wales which covers employees of councils who provide a variety of environmental and public health and development and building control services. We have 1000 members employed by the New South Wales councils and 20 members, both men and women, employed by Wollongong City Council- virtually all of these members have private use rights of council cars.
If the Tribunal made the order sought it could have significant detrimental effects for our members at Wollongong- where cars have been provided because these employees need them to carry out their work for the Council. It could also have detrimental effects for our members at other councils in the State where cars are similarly provided because they are regarded as a "tool of the trade". Private use rights of these cars is a standard practice.
The issues to be considered by the Tribunal ought not be considered without the benefit of submissions from all parties with an interest.
11 The applications by EHABSA and the MEU to be joined as parties to the proceedings were heard and determined by the Tribunal on 8 August 2000. All parties were represented. Ms Eastman, for the complainants, opposed the applications and Ms Ronalds, for the respondent, supported the applications. We believe that it was common ground between the parties that both unions were “industrial organisations”, registered in accordance with Chapter 5 of the Industrial Relations Act 1996 (NSW). Consequently, they are legal persons with the capacity to participate in these proceedings.
I am the Secretary of the Municipal Employees’ Union. The Union has 27,000 members employed in Local Government in NSW across all occupations.
If the Tribunal made this order, it could have a significant detrimental impact on the members of my Union currently working at Wollongong City Council. Also, it could have an impact far beyond the two parties to these proceedings as it could involve all of Local Government in New South Wales and hence many members of my Union.
12 The Tribunal has the power to join parties to proceedings before it pursuant to both section 98 of the Act and section 67 of the Tribunal Act. This rather unusual state of affairs exists because even though section 98 of the Act is repealed by clause 2.1(5) of Schedule 2 to the Administrative Decisions Legislation Amendment Act 1997, that particular provision has not been proclaimed to commence operation. Hence, both of the identified grants of power to the Tribunal are still in operation. The effect of these two sections, and their capacity for harmonious co-existence, was discussed in Australian Doctors Trained Overseas Association Inc v Director-General, NSW Department of Health [2000] NSWADT 115 at paras. 20 to 28. We accept and adopt the statements of the law set out in those paragraphs. The Tribunal concluded in that case that in order to join a person as a party (as opposed to a respondent) to proceedings, it was necessary for it to be satisfied that the interests of the person are likely to be affected by any decision made by the Tribunal.
13 Whilst the Tribunal was mindful of the concerns raised by Ms Eastman that the participation of EHABSA and the MEU in the proceedings could lengthen the inquiry, and thereby increase costs, we were satisfied that both unions had a genuine interest in the proceedings as there was potential for any findings and orders which may be made if the complaints were substantiated to have an effect upon many members of both unions. Further, it was quite apparent from the ‘pleadings’ that the complainants had alleged that this was a case of indirect discrimination and that the reasonableness of the impugned condition or requirement was a live issue between the parties. As Dawson and Toohey JJ identified the maintenance of "good industrial relations" as a relevant consideration, in some cases, when the reasonableness of an employer’s practices were being evaluated as part of an indirect discrimination case (see Waters v Public Transport Corporation (1991) 173 CLR 349 at 395), it appeared to us to be highly beneficial to provide both unions with the opportunity to lead evidence and to make submissions. Accordingly, the Tribunal granted the applications of both unions and directed that EHABSA and the MEU be joined as parties to these proceedings.
The Number of Complaints Before the Tribunal
14 In paragraph 15 of its Points of Defence the respondent alleged that there was only one complaint before the Tribunal, which thereby limited the amount of damages which could be awarded to the complainants because of the statutory ceiling of $40,000, which is found in section 113(1)(b)(i) of the Act. This point was raised by Ms Ronalds on the first day of hearing and it was repeated in paragraph 119 of her written submissions.15 On the first day of the hearing (11 December 2000), the Tribunal concluded that the President of the Board had referred five separate complaints to the Tribunal, pursuant to section 94(1) of the Act, and, pursuant to section 97, the Tribunal directed that it would hold a single inquiry into the five complaints as those complaints arose out of substantially the same circumstances and involved substantially the same subject matter. The Tribunal indicated to the parties that the effect of its direction was that all of the complaints would be heard together and that the evidence in relation to one complaint was capable of being evidence in relation to any of the other complaints. The effect of the section 97 direction was similar to an order for the consolidation of proceedings pursuant to Part 31 rule 7 of the Supreme Court Rules 1970.
16 We should explain, briefly, why the Tribunal was satisfied that it had before it five separate complaints made by five individual complainants, pursuant to section 88(1)(a) of the Act, rather than one complaint made by five people. The President of the Board, in his letter to the Registrar of the Tribunal dated 15 February 1999, stated that, "I received five complaints under the NSW Anti-Discrimination Act 1977 from Ms Bonella and Others alleging discrimination on the ground of sex" and that "I am now referring these complaints to the Equal Opportunity Division of the Administrative Decisions Tribunal under section 94(1) of the Anti-Discrimination Act". Whilst the President’s characterisation of the complaint or complaints made to him cannot bind the Tribunal, there is no reason to depart from the President’s characterisation in this case. The President’s report discloses that each of the complainants lodged a separate letter of complaint with the President and attached to that letter the same document headed "Complaint of Discrimination-NSW Anti-Discrimination Act 1977". Whilst each letter bears the same date, 30 August 1996, and whilst each letter is the same save for identifying details, each letter is in our opinion a separate individual complaint made to the President pursuant to section 88(1)(a) of the Act.
The Evidence
17 There were seven witnesses for the complainants: each of the five complainants were called to give evidence, as was Ms Lisa Schofield, a former employee of the respondent who was a member of the MEU’s Salaried Staff Committee for the Wollongong City Council, and Mr Derek Wood, the Manager of the Vehicle Economics and Fleet Division for the NRMA Limited. The complainants also tendered a number of documents, including the report of the President (Exhibit 1).18 We consider the following parts of Ms Bonella’s written statement (Exhibit 2), and oral evidence, to be of significance:
19 The second complainant, Ms Rhonda Boxall, gave evidence. Key points made in her written statement (Exhibit 4) and oral evidence may be summarised as follows:
(a) Ms Bonella commenced work with the respondent in 1977 as a librarian. She now occupies the position of Assistant Manager, Central Lending. She has had the title of Assistant Manager since 1992. She is "classified in salary band 43 receiving approximately $1031 a week".
(b) From 1978 to 1989 Ms Bonella was permitted to use a Council car for travelling to and from work, but she had no other private use rights. From 1989 until 1990 Ms Bonella was permitted to have private use rights of one of the Council’s vehicles upon payment of a fee. These rights were withdrawn, without reason, from 1 January 1991.
(c) In late 1994, at a meeting with her immediate superior at the Council, Mr Graeme Deutscher, and others, Ms Bonella was advised of "the introduction of the job evaluation remuneration exercise the purpose of which was to introduce equity across all divisions for the same level of work". At that meeting Ms Bonella and others were advised that submissions could be made regarding the job evaluation of assistant managers and that private use rights of motor vehicles would be included in the remuneration evaluation.
(d) In February and March 1995 Ms Bonella, and her colleagues Ms Rhonda Boxall, Ms Jan Keith, Ms Joan De Wet and Ms Shivani Tambyah, participated collectively in the "job evaluation remuneration exercise". In April 1995 Ms Bonella was advised by Mr Deutscher that "allocation of cars to Assistant Managers was not being considered in the remuneration exercise".
(e) On 25 May 1995 Ms Bonella and her four colleagues wrote a joint memorandum to the Manager of Human Resources at the Council "requesting an explanation as to why cars were not considered as a fact in the job evaluation process ".
(f) On 11 June 1995 Ms Bonella and her four colleagues wrote a joint memorandum to the General Manager of the Council. In that memorandum Ms Bonella and her colleagues stated:
(g) According to Ms Bonella, she and her colleagues did not receive a substantive written response to this memorandum. On 15 June 1995 the General Manager, Mr Rod Oxley, wrote to Ms De Wet, who was the first signatory to the memorandum of 11 June 1995. In that letter Mr Oxley said that "I have forwarded your request to Assistant General Manager, Mr Bruce Cook, for investigation of the aspects raised in your submission” and that “I have requested that he attend to this matter as a priority and report back to me by no later than the end of July with his findings and recommendations".
..." [W]e wish to formally make an application for the provision of motor vehicles for the Assistant Managers within the Library and Cultural Services Division. This formal application follows those representations previously made by staff within the Division.
Those who have raised this issue have identified the apparent discrimination in the allocation of vehicles as its most troubling aspect. Following the provision of vehicles to each of the Assistant Managers within the Community Development and Services Division, the Library Division is now the only Division within Council where no Assistant Manager has a vehicle allocated...
The nature and location of the functions and responsibilities of the Assistant Managers within the library Division are no less or no more onerous than those of Assistant Managers in other Divisions...
We are of the opinion that the discrimination in the allocation of vehicles places us at a considerable disadvantage, both generally and in comparison to other Assistant Managers, and consequently breaches general equal opportunity principles, and is contrary to the assumptions underpinning Council’s Equal Opportunity Management Plan...
We have already forwarded a memorandum to the Manager Human Resources and the Manager Library and Cultural Services, seeking clarification of the exact situation with respect to the allocation of vehicles to Assistant Managers...
Without advice to the contrary, we understand that there is no formally established policy dealing with the allocation of motor vehicles for private use. The report to the Library Liaison Committee states that determining the allocation of vehicles is the responsibility of the General Manager. We accordingly seek your assistance in redressing this obvious and needless discrimination."
(h) On 18 June 1995 Ms Bonella and her four colleagues had a meeting with Mr Cook at which they were asked to make submissions concerning the issue of the provision of Council motor vehicles for private use to Assistant Managers in the Library Division. On 6 July 1995 Ms Bonella and her colleagues provided Mr Cook with a 40 page written submission.
On 18 October 1995 Ms Bonella and her four colleagues attended a meeting with Mr Cook and Mr Deutscher at which they were informed by Mr Cook that "our submission had not been approved". On being advised that "we intended to pursue the matter outside the Council", Mr Cook replied, "I would be very careful about that".
(j) On 21 November 1995 Ms Bonella and her four colleagues wrote again to the General Manager, Mr Oxley. In that letter the complainants stated, amongst other things:
(k) During late 1995 and early 1996 Ms Bonella and her colleagues asked various trade unions and professional associations to make representations to the Council on their behalf concerning the allocation of Council vehicles for private use. On 2 April 1996 Ms Bonella and her colleagues again met Mr Oxley, who again rejected their claim.
"We are extremely disappointed that there appears to be no intention to review the existing Council car policy which does not address the allocation of Council vehicles therefore resulting in the discriminatory manner in which cars are allocated.
At the meeting on 18 June we requested Assistant General Manger Bruce Cook to follow up our memo dated 25 May 1995 to the Manager Human Resources (see attached), requesting an explanation regarding the failure of job evaluation to address the issue of the access to additional benefits available to Assistant Managers and others. To date no response had been forthcoming.
At our meeting with Assistant General Manager, Bruce Cook on 18 October 1995, we advised of our intention to pursue the matter. Although Assistant General Manager, Bruce Cook intimated that it would not be in our best interests we have nevertheless resolved, after serious consideration, to pursue all the necessary avenues available to us to address this inequity.
As a matter of courtesy, we feel you should be aware of our intentions to do so".
(l) Ms Bonella annexed to her statement a document titled "Wollongong City Council-Motor Vehicle Policy for the Purchase , Operation and Replacement of Council-Owned Motor Cars, adopted 26 March 1990" and a further document titled, "Motor Vehicle Classifications and Entitlements-Appendix to Motor Vehicle Policy". (The contents of these documents are described at paragraph 26(c) and (d), below).
(m) Ms Bonella stated that she felt "disappointed...that my employer should hold such a low view of my work and my profession" and that the experience of seeking private use rights of a Council vehicle had been "stressful".
(n) Whilst Ms Bonella did not give any information during evidence in chief about what private use she may have made of a Council vehicle had one been allocated to her at any time after 1 January 1991, she said during cross-examination that she guessed that her personal private use would have been 300 to 400 kilometres per week.
20 We consider the following portions of the evidence given by the third complainant, Ms Joan De Wet, in her written statement (Exhibit 5) and oral evidence to be significant:
(a) Ms Boxall first worked as a library assistant for the respondent in 1957. Between 1963 and 1980 Ms Boxall left the employ of the respondent on various occasions for family and other reasons. Since 1980 Ms Boxall has been continuously employed by the respondent and she has been the Assistant Manager, Technical Services since 1994.
(b) Ms Boxall is "currently classified in salary band Grade 43 receiving approximately $53,612 per annum"
(c) Ms Boxall said that she "felt quite humiliated by the process that we have had to go through to defend a principle on behalf of our librarian colleagues." She found it "very difficult" and "very stressful" and felt "quite upset about the fact that it has been implied" that she and her colleagues "may disadvantage some of the male members of our Council staff and of the union in particular and also, or otherwise, we may cause unnecessary financial burden to Council if the result was that they had to buy five additional cars...".
(d) In answer to a question from Ms Ronalds, Ms Boxall stated that she was unable to state with any certainty how many kilometres she would travel per year in private use of a motor vehicle.
21 The following key points are drawn from the written statement (Exhibit 6) and the oral evidence of the fourth complainant, Ms Jan Keith:
(a) Ms De Wet first worked as a librarian in South Africa in 1968. She commenced work with the respondent in 1979 as Lending Services Librarian. In 1991 Ms De Wet was promoted to the position of Assistant Manager, Branch and Mobile Libraries. Her current title is Assistant Manager, Branch Libraries.
(b) Ms De Wet is "currently classified on salary band Grade 44 receiving approximately $1058.90 per week".
(c) As part of her job Ms De Wet is required to regularly visit branch libraries throughout the City of Wollongong. In answer to a question from the Tribunal, Ms De Wet said that, on average, she would travel to branch libraries on two out of five days per working week. In order to travel to the branch libraries Ms De Wet used either a car from the Council’s car pool, or she drove her own car and claimed travelling expenses. During cross-examination by Ms Ronalds, Ms De Wet agreed that, according to her diary entries, she travelled to branch libraries on marginally less than one occasion per week over the past year.
(d) In answer to a question from Ms Ronalds, Ms De Wet said that she was unable to state how many kilometres she would travel per year in private use of a motor vehicle.
(e) When asked by her own counsel to describe the impact which pursuing the grievance with the respondent in relation to private use of a motor vehicle had had on her, Ms De Wet stated that it had been "extremely stressful, to put it mildly". She said she had been "depressed", "frustrated" and "angry". Ms De Wet stated that it was "very uncomfortable for me to be in a situation where I am in conflict with my superiors" and "to be in a position where I am in conflict with some of my male colleagues" She stated that she had been diagnosed with cardiac arrhythmia, an irregular heartbeat, which"in the absence of heart disease my specialist has attributed to stress and I am currently on medication for that".
22 The fifth complaint, Ms Shivani Tambyah, also gave evidence. Material parts of her evidence are as follows:
(a) Ms Keith first worked as a librarian for the respondent from 1959 to 1964. Since 1978 Ms Keith has been continuously employed by the respondent and, since 1994, she has held the position of Assistant Manager, Reference Services.
(b) Ms Keith’s current remuneration is at "Grade 44 band receiving about $1058.90 per week".
(c) Ms Keith stated that she felt "under-valued by Council" which "had caused me considerable stress". She stated that she was "concerned about possible recriminations" from the case and said, "I guess I resent in a way the fact that after job evaluation took place and [I] expected pay equity across Council, that in my position with all my experience and the things that I’ve accomplished that somebody else could come in another area in Council with much less experience and through remuneration achieve the same or even a higher salary then mine"
(d) In answer to a question from Ms Ronalds, Ms Keith said that she was unable to estimate her annual private use of a motor vehicle.
23 Mr Derek Wood, the Manager of the Vehicle Economics and Fleet Division for NRMA Limited, was called to give evidence by the complainants. Material parts of Mr Wood’s written statement (Exhibit 8) and oral evidence are as follow:
(a) Ms Tambyah first worked as a librarian in Singapore in 1980. She was first employed by the respondent as a Central Lending Librarian. In 1994 Ms Tambyah was appointed to the position of Assistant Manager, Central Lending Library. She held this position until November 1997, when she became Project Officer at Wollongong City Library. Ms Tambyah now works part-time (21 hours per week) and she holds the position of Systems Integration Officer at the library which means that she is, in her own words, "a technology trainer".
(b) Ms Tambyah stated that pursuing the claim for private use rights of a motor vehicle had "cost me personal angst for a number of reasons". She said that "I’ve lost out on time with my children in preparing for this case" and that she felt "awkward in the presence of other male colleagues" as this is "a potentially divisive case".
24 The final witness for the complainants was Ms Lisa Schofield. Material aspects of her written statement (Exhibit 14) and oral evidence are as follows:
(a) One of Mr Wood’s duties in his current position at the NRMA is the "calculation of vehicle operational costs for state and federal bodies, the Industrial Commission of New South Wales and the legal profession in all states of Australia". Mr Wood provided details of his qualifications and experience. It is unnecessary for us to set out these details as Mr Wood’s capacity to give expert evidence concerning vehicle operational costs was not challenged.
(b) Annexure B to Mr Wood’s statement was a document which contained calculations of "the entire annual cost to a person of a vehicle as described in that document, if they have not been provided with a vehicle by their employer". Annexure B contained calculations of vehicle operating costs based on one or two year ownership cycles of two types of vehicles, Ford Falcon Sedans and Holden Commodore Sedans, travelling 15,000 kilometres a year. The expenses taken into account in making these calculations were described as "Depreciation, Registration/CTP, Insurance, Membership, fuel and maintenance"
(c) In view of the conclusion we have reached in this case it is not necessary to refer to this evidence in great detail. A sample, however, should be noted. According to Mr Wood’s calculations, the operating cost, in 1995 and 1996, for a private individual (in NSW we presume) of maintaining a Holden Commodore Sedan was $8350 per annum, or 55.67 cents per kilometre, assuming that the vehicle was purchased and sold two years apart, and assuming that it was driven 15,000 kilometres per year.
(a) Ms Schofield was employed by the respondent as a community worker from February 1986 to August 2000. She resigned from her position with the respondent in August 2000, having been on leave without pay from August 1999. Ms Schofield is now employed as the Co-ordinator of the Illawarra Migrant Resource Centre.
(b) During her period of employment with the respondent Ms Schofield was a member of the MEU. From March 1994 until February 1996 Ms Schofield was the secretary of the MEU’s Salaried Staff Committee (SSC) for the respondent. From February 1996 until February 1998 Ms Schofield was a member, but not the secretary, of the SSC. She stated that "the SSC is an internal committee of the MEU whose role is to review the conditions of employment of salaried staff at Wollongong City Council".
(c) Ms Schofield gained knowledge of the management structure of the respondent as a result of being both an employee and secretary to the SSC. Employees of the respondent are divided "vertically into Divisions, such as the Library, Community Services, Property, Engineering and Finance" and "horizontally according to management classification", with each division having employees at the level of manager and assistant manager. Some divisions also had a co-ordinator.
(d) Between March 1994 and March 1996 Ms Schofield participated in the respondent’s job evaluation process. "The purpose of the Job Evaluation Process was to create a fair and equitable system of evaluating remuneration for all Council employees". In order to do this the respondent "purchased a program and methodology...from an organisation called OCR". Ms Schofield became a member of a body called the Job Evaluation Committee which was created by the respondent "to participate in the Job Evaluation Process for employees ranked at assistant management level". "The Job Evaluation Committee’s role was to assist in evaluating the work value of Council employees’ jobs in order to determine appropriate remuneration for their positions".
25 Three witnesses were called by the respondent: Mr Rod Oxley, the General Manager of the respondent, Mr Erminio (Frank) Mattesich, the former Manager of Human Resources for the respondent and Mr Shaun Martin, the respondent’s Assistant Manager of Human Resources.
(e) During cross examination by Ms Ronalds, Ms Schofield stated that the job evaluation process was designed to determine relativities of the respondent’s employees by looking at functions and responsibilities. Following this exercise employees were assigned points, thereby resulting in parity in remuneration. She distinguished "remuneration" from salary, or cash payment, and described it as "the total sum of all benefits that an employee enjoys..as a return for their work".
(f) Ms Schofield participated in the Job Evaluation Process for Assistant Managers on the understanding that private use rights of motor vehicles would be included in that process. She was present at a meeting with the complainants and Mr Deutscher, on 28 February 1995, when Mr Shaun Martin (a member of the respondent’s Human Resources Division) stated that "cars will be considered by management when they’re deciding the results of the job evaluation". At a meeting with the complainants on 23 May 1995 Ms Schofield was advised by them that they had been informed that private use rights of motor vehicles was not to be considered as remuneration in the job evaluation process.
(g) Over the next few months Ms Schofield engaged in various activities on behalf of the complainants to pursue their concerns about private use rights of motor vehicles. On 7 November 1995 she wrote to Mr Oxley, the General Manager of the respondent, to enquire about this matter. In that letter she stated:
(h) Mr Oxley responded to this letter on 30 November 1995. In that response he stated:
"It is the understanding of the Staff Committee that the impact of provision of a Council car on the relative value of positions would be considered by Executive Management when reviewing the outcomes of the Assistant Manager job evaluations. Given the financial benefit of the provision of a Council car within a salary package, the necessity to consider this issue when allocating dollar values to positions seems obvious".
Motor vehicle allocation is primarily on the basis of work needs first. However, in some circumstances motor vehicles have been added as a further means of attracting or maintaining employees.
"In reply, the following comments are made in respect of these positions:
(1) The initial approach was to consider the allocation of motor vehicles as part of the remuneration of assistant managers.
(2) In surveying the allocation of motor vehicles, it became apparent that the variation is not an easy matter to address.
(3) The variation differs from full private use with no contribution to no allocation.
(4) The job evaluation system does not take into account benefits.
(5) On receipt of the results reached on evaluated positions, it was determined that motor vehicles should not be considered as part of the salary for the position.
A close examination of motor vehicle allocations at the assistant manager level indicates that there is no evident discrimination. However, the provision of motor vehicles to all employees by the same token does not address the problem.
To rectify the problem of equity, it may require salary sacrificing in package terms. However, this I feel may disadvantage the majority of employees.
Taking all these matters into account, it is not my intention to provide more motor vehicles at this stage. However the issue of equity certainly needs to be addressed and further discussions will be required."
(i) On 19 December 1995 Ms Schofield wrote again to Mr Oxley. In that letter, when referring to the private use of motor vehicles, she stated:
(j) Mr Oxley responded to this letter on 20 December 1995. He stated:
"If such benefits are not considered in the application of job evaluation results then the outcomes of the process, i.e. salary packages offered to Council staff, will not be consistent with the relative value of positions as evaluated. Not only does this make the whole job evaluation process meaningless, but it also allows the continuation of past inequalities between relative value of work and remuneration packages. As you may surmise, the Union cannot support such a situation"..
As inferred in your correspondence, the Committee is not suggesting that "all employees" be provided with a motor vehicle. We are suggesting that the allocation of a Council car to one employee, additional to a cash salary paid, where the cash salary rate has been established through job evaluation, will result in that employee receiving a greater reward than another employee who has been evaluated at the same level and has not been allocated a vehicle additional to their cash salary paid. This includes cases where the charge for the car is less than the benefit gained by the employee from the car. This result destroys the entire worth of Council’s job evaluation system and facilitates the continuation of past inequalities in salary packages.
It is the opinion of the Union that non-cash salary benefits must be taken into account when applying the results of job evaluation and we would urge you to reconsider the matter in light of our comments."
(k) On 16 February 1996, Mr J Merchant, the Branch Secretary of the NSW branch of the MEU, wrote to Mr Oxley with a log of claims. Mr Merchant stated in that letter:
"It should be pointed out that the provision of a Council motor vehicle is generally on the basis to satisfy and to meet, in the first instance, a Council need, and that the availability of such motor vehicle for private use is a secondary consideration in providing such cars. The exception to this of course is where people are employed on the basis of a fixed term contract, and a total remuneration package is offered which incorporates the cost of the car. This applies to Divisional Managers, Assistant General Managers and myself.
Generally all other motor vehicles provide for a component of private use for which an employee makes a contribution. The contribution level is reviewed on an annual basis. In evaluating jobs within the organisation there has been an attempt to ensure that the evaluation of these jobs occurs based wholly and solely on the nature, responsibilities, accountabilities and functions of the job, and does not take into account other factors such as the provision of a motor vehicle. The reason that this is the case is that it is obvious that motor vehicles will have different values to different individuals. I should also point out that in the case of those positions below Divisional Managers the concept of salary packaging does not apply and that the remuneration for each position is purely on the basis of salary.
I cannot agree with your comments that by excluding benefits from the job evaluation process the process becomes meaningless. The job evaluation system is designed to establish appropriate salary ranges for various job classifications within the organisation. As you are aware, it takes into account a range of factors and generally provided for an entry point to a particular job classification, together with an upper limit. As such the system does establish a fair measure of relativity between various jobs within Council.
Accordingly the job evaluation system has been put in place in an endeavour to bring about fairness and equity, and the issue of the provision of private use rights for motor vehicles is something that is outside the scope of that process.”
(l) Mr Oxley responded to this log of claims on 29 May 1996. He stated in his letter of that date:
"Following a number of discussions and various correspondence that took place between Council and the Union last year on this issue, the Union submits the following log of claims:
- That cars be allocated on the basis of one of three criteria: rank, work need or market forces,
- That the allocation of cars on the criteria of rank occur at or above the rank of Assistant Manager, i.e. to all incumbents above that level,
- That future allocation of cars below Assistant Manager rank on the basis of work need must occur through assessment of proper objective criteria. This objective criteria must be developed in conjunction with the Union,
- That the organisation must agree to implement the results of job evaluation within the context of a position’s total remuneration, not just cash salary,
- That no staff person currently allocated a Council car shall have that car withdrawn as a result of this log of claims, nor will any arrangement regarding the allocation of cars in existence prior to the log of claims be altered as a result of this claim, i.e. any new provision of cars arising from this log of claims shall be vehicles newly acquired by Council,
- That a review be conducted into the negotiation that took place between Managers and Assistant Managers, regarding placement of incumbents within the salary band determined by job evaluation. The purpose of this review is to achieve equity between Divisions in relation to the effect of the provision of a Council car on total remuneration as determined by job evaluation."
As outlined to you during the discussions, there is only one way to introduce equity into the system for motor vehicles and that is that motor vehicle payment is a cost which is deducted from the salary of the position. As you would be aware, positions are evaluated and a dollar value is placed on those positions and no consideration of motor vehicle or other benefits is taken into account. For this system to operate in your terms in an equitable manner, this would force Council into re-evaluating its current charges for value of motor vehicles to individuals and this would vary according to use. The amount would need to be packaged in the current value of positions. As outlined to you, this would be, in our opinion, detrimental to a large number of employees.
"In reply, I wish to advise that the matters raised in your letter and subsequent discussions have been carefully considered, however I advise that we cannot accede to your demands on the following basis:
(1) The motor vehicle fleet is based on organisation needs and the size of the fleet is dictated by the operational needs of the organisation from time to time.
(2) The primary allocation of private use is normally to those employees who have motor vehicles as part of the day to day requirements for work.
(3) It is not denied that motor vehicles are offered on occasions as an inducement for recruitment purposes.
(4) The claim that you make for the allocation of motor vehicles to those who did not have them would incur this organisation not only a financial impost but a provision of motor vehicles for which Council does not have any need.
(5) The claim that you make is one based on equity however as pointed out to you your claim only concentrates on assistant managers and therefore the equity argument is not consistent with the rest of the organisation.
It is noted in your claim that there be no change to the current status of motor vehicles to any employee however by the fact that you raise this issue perpetrates the inequity of your argument.
Lastly, it should be pointed out that the pay and conditions of employment are dictated by a registered Enterprise Agreement operative to 31 December 1997. Any variation to this Agreement would require agreement by all parties."
(m) As a result of her membership of the Job Evaluation Committee (see sub-paragraph (d), above), Ms Schofield "acquired information regarding salaries and car allocation". Ms Schofield stated that in April or May 1995 she received from Mr Shaun Martin a chart (Exhibit 15) which contained "basically the results of the job evaluation on the assistant managers". It was also recorded on the chart whether an employee was allocated a car by the respondent.
(n) On the basis of the information contained in Exhibit 15 Ms Schofield made the following calculations:
(o) None of the Assistant Managers employed in the Library Division, the five complainants, had been allocated a car at the time these calculations were pertinent (April or May 1995).
(i) across all Divisions of the respondent there were 50 assistant managers; 38 were male and 12 were female.
(ii) 36 of the 50 assistant managers were allocated a car; 30 of the males and 6 of the females.
(iii) this meant that 78.9% of male assistant managers and 50% of female assistant managers were allocated a car.
(p) Ms Schofield stated that "the Council allocated Council cars to its employees upon certain bases, these included:
(q) Ms Schofield attached to her statement a copy of a memorandum, dated 27 November 1997, which was sent by Mr Oxley by email to Mr Joe Scimone, Manager of Engineering Services. That memorandum, which was headed, "Review of Motor Vehicle Policy" stated, in part:
(i) for private use by employees with no charge;
(ii) for private use with a weekly charge, which was $45 per week in about February 1995; or
(iii) for driving to and from work only and no private use allowed".
"I would appreciate it if you could undertake a review of the current motor vehicle policy, particularly as it relates to the allocation of motor vehicles for private use.
The current policy is somewhat silent on this matter, and custom and practice over the last 10-15 years has been on the basis of an individual assessment of each case, based on arguments that have been advanced by Divisional Managers to support the allocation of a Council motor vehicle to employees for private use.
The review should be premised on the basis that motor vehicles are only acquired by Council to meet the immediate business needs of Council, or in accordance with the terms and conditions of the contract of employment of certain classes of employees. Any private use rights offered to employees should be over and above the specific needs and requirements of the Council. Hence the review should give consideration to the establishment of criteria that can be applied when giving consideration to the allocation of motor vehicles for private use…..
I would also ask that the review give consideration to the terms and conditions which apply to employees who have been afforded private use of motor vehicles, i.e. what are the conditions that apply and what are the responsibilities that employees have when such private use rights are offered to them.
I know this is a vexed issue and I would expect that as part of this review you would undertake appropriate research of other similar organisations and provide advice as to the customs and practices and/or policies that prevail in those councils.”
26 We consider the following portions of Mr Oxley’s written statement (Exhibit I) and oral evidence to be significant:
(a) Mr Oxley has been the General Manager of the respondent since 19 July 1988.
(b) On 26 March 1990 Wollongong City Council adopted a ‘Motor Vehicle Policy’. That policy, and a further document titled ‘Motor Vehicle Entitlements and Contributions, Appendix to Motor Vehicle Policy’, were annexures to Mr Oxley’s statement.
(c) The following paragraphs are found within the ‘Motor Vehicle Policy’:
(d) The ‘Appendix to Motor Vehicle Policy’ refers to three categories of employees of the respondent described as ‘Group 1’, ‘Group 2’ and ‘Group 3’. It is not clear on the face of the document which categories of employees fall within the three groups. The document records that people in Group 1 are “permitted private use at no charge”. Some of the people within Group 1 are identified by position (e.g. Divisional Managers), whereas others are identified by name. The people in Group 2 may have “private use paid for at the rate as determined by the General Manager and Town Clerk”. All of the people in Group 2 are identified by name. Under the heading ‘Group 3’ the following entries are found: “Garages vehicle at home in order to facilitate call-out or starting in the field. Is not permitted private use or employee has elected not to have private use”. All of the people in Group 3 are identified by name.
“1. Allocation and Replacement
1.1 Council cars shall be available as pool cars even though private use rights may be conferred. Council needs have first priority. They shall be regarded as available for pool use by the Car Pool Attendant without further reference to the driver. Department Heads’ cars, however, will only be issued when all other cars are in use.
1.2 All cars are to be replaced at 40,000 km or two (2) years of age (which ever occurs earlier).
2. Entitlements
2.1 Staff who have been allocated Council vehicles (other than Group 1) are to be charged for mileage as determined by the General Manager and Town Clerk.
2.2 (i) Members of an employee’s family are permitted to drive the Council car, provided that the employee is a passenger in the vehicle at the time.
10. Interpreter
(ii) Employees’ spouses are permitted to drive the Council car in the absence of the employee, notwithstanding (i) above, but are subject to the conditions of this Policy.
……
10.1 The General Manager and Town Clerk is the interpreter of Council policy and may apply or vary the Motor Vehicle Policy in respect of all matters including: allocation of vehicles to individual servants; provision of a vehicle in lieu of salary; or to settle an industrial dispute.”
(e) When referring to the 1990 Motor Vehicle Policy, Mr Oxley stated:
(f) Mr Oxley agreed with suggestions put to him by Ms Eastman during cross-examination that the 1990 Motor Vehicle Policy was “silent on issues concerning allocation of motor vehicle[s] for private use” and that the policy was “operating on a mixture of custom and practice that had developed over the past 10 to 15 years or so”.
“The policy behind the allocation of motor vehicles was not set out in that policy as it was a management decision. The decision was based on the following factors:
(a) the seniority of the position such that the top three management levels of Council, including myself, were all allocated motor vehicles with private use rights,(b) the operational needs arising from the duties undertaken to fulfil the duties of the position, or
(c) may be applied for recruitment and retention purposes ensuring that Council maintains suitable employee.
The assessment of allocation of motor vehicles primarily arises out of the locality of work and it needs to ensure maximum productivity. The needs of the organisation from time to time is a prime factor. The assessments that are made are totally based on the duties of the position and not on the gender of the person in the position.”
(g) Mr Oxley stated that in 1994 and 1995 the respondent “undertook a rigorous program of job evaluation” which was “designed in part to ensure fairness and equity in relation to job designation and salary level”. He stated that not all people with the title “Assistant Manager” were, or are, paid the same salary. Salary is “based on work value”, which is determined by measuring “authority and accountability, judgement and problem solving, specialist knowledge and skills, management skills, interpersonal skills and qualifications and experience”.
(h) Mr Oxley explained why private use rights of motor vehicles was not included in the job evaluation process:
(i) Mr Oxley stated that following contact from the Anti-Discrimination Board he decided to review the motor vehicle policy. In November 1997 he asked Mr Scimone, the Manager of Engineering Services, to conduct that review. Following the review a new Motor Vehicle Policy, dated 19 July 1999, was adopted. According to Mr Oxley “this policy had no requirement to go to Council as I have the delegated authority to approve it. This policy continues the same principles of allocation and now they are written into the policy for clarity. At the Assistant Manager level, allocation of motor vehicles is primarily assessed on the needs of the position. The gender of the occupant of the position is not a factor taken into account.”
“When the job evaluation process commenced, it was intended to include motor vehicles in the assessment of the positions of assistant managers. This was not possible given that the use of motor vehicles for private purposes included a fee for which employees paid. Our system of salary payments had no provision for salary sacrificing. It was subsequently decided that work value would only result on weekly earnings and no other factors of remuneration would be taken into account including sick leave, long service leave and superannuation entitlements.”
27 The following portions of Mr Martin’s evidence are significant:
(j) Mr Oxley stated that “the people who are allocated cars with private use rights have them primarily because of their job functions “ and that “the Council does not consider that it has discriminated on the ground of sex against each or any of the complainants and has reviewed the allocation policy to ensure that there is no such impact”.
Mr Oxley agreed with the proposition put to him by Ms Eastman that “the 1999 policy, in effect, just continues to apply the same principles of allocation that existed in the 1990 policy”.
28 The final witness for the respondent was Mr Frank Mattesich. Important portions of his two written statements (Exhibits K and L) and oral evidence are as follows:
(a) Mr Martin has worked in the Human Resources Division of the respondent since June 1994. He has been Assistant Manager since May 1996.
(b) In February 1995 Mr Martin was appointed “the project co-ordinator for the job evaluation of the positions of Assistant Managers”. The project was requested by the executive management group, which comprised the general manager and the two assistant general managers. Mr Martin agreed with the proposition put to him by Ms Eastman that “the purpose of the job evaluation was to equate as far as possible the range of jobs and functions for the purpose of determining salary”. According to Mr Martin “the pay rates that existed were a result of history and resulted in a number of anomalies”.
(c) Mr Martin said that his “brief was to establish a salary structure, which at that stage included the review and impact of allocation of motor vehicles.” Ultimately, at the direction of the executive management group, the private use of motor vehicles was excluded from the job evaluation process because “a system could not be put into place to allow for the salary sacrificing of the payment of private use by employees”. In answer to questions by Ms Eastman, Mr Martin stated that it was his understanding that motor vehicles were withdrawn from the job evaluation process because it was “too difficult” as there were “different arrangements in terms of what people paid for [a] motor vehicle”. According to Mr Martin “there were some people who were paying nothing, some of whom were paying this amount, and some people who were paying that amount”.
29 One witness was called by EHABSA, one of the two unions joined as a party to the proceedings. Mr Ian Robertson, the secretary of EHABSA produced a written statement (Exhibit A1) and gave oral evidence. Material portions of Mr Robertson’s evidence are as follows:
(a) Mr Mattesich was the Director of Human Resources for the respondent from 1979 to 7 July 2000 when he retired. Mr Mattesich now works for the respondent on a part-time basis.
(b) The main basis for the allocation of motor vehicles with private use rights is “the duties of the position”. This means that “the gender balance alters any time a new person is appointed to the position of assistant manager who has the opposite gender from the previous occupant”. Since September 1996 there have been 14 appointments to the position of assistant manager.
(c) Mr Mattesich attached to his first statement (Exhibit K) various tables and charts which set out, at various dates, the names and number of Assistant Managers, their gender and whether each person was allocated a car with private use rights.
(d) Mr Mattesich stated that this evidence demonstrates that “allocation of motor vehicles varies from division to division depending on the functional need of the individuals”.
(e) The weekly salary paid to Assistant Managers is not the same. Mr Mattesich stated that the title of Assistant Manager is “a demonstration of a management level and a level of accountability within the organisation” but “the actual job value may vary”. Four of the five complainants are still Assistant Managers; two are paid at one salary level, whilst the other two are paid at a lower level.
(f) Mr Mattesich stated that “as the total number of assistant managers is relatively small, a change in the statistical analysis can be achieved by just one change in the gender of the person in the position…”
(g) Employees of the respondent with private use rights of motor vehicles pay for the use of the vehicle. Mr Mattesich stated that there are some exceptions to this policy where as part of the employment contract employees are not charged for private use rights. No details of the exceptions were provided.
(h) The 1999 Motor Vehicle Policy altered the way in which employees pay for private use rights “because the previous charges were inequitable in relation to distance travelled to and from work”. Payment is now based on “the location of the residence of the employee and its distance from the Council’s main offices or where they are based”. According to Mr Mattesich this formula is based on a 1997 ruling by the NSW Industrial Relations Commission in a dispute involving the Local Government Engineers' Association of NSW and the Bega Valley Shire.
(i) Mr Mattesich stated that “the total remuneration package for each assistant manager with a car does not vary because they have that car”. He supported this assertion by stating that it is “based on the fact that the employees are required to pay for private use rights based on the formula as contained in the policy”.
(j) Mr Mattesich challenged the evidence of Mr Wood on the basis that it “does not contain any relevant material to the method used by the Council in assessing either the cost of the car itself or the cost to the individual employee”. He stated that a costs per kilometre valuation of use of a motor vehicle “is a figure which is given different values in many organisations”. He cited figures ranging from 63.2 cents per kilometre for employees in the NSW Premier’s Department, to 52.07 cents per kilometre for employees of the Royal Automobile Club in Queensland.
(k) Mr Mattesich stated that “some employees have refused the private use right as it is not considered by them to be of any or any sufficient financial or other benefit”.
(l) During cross-examination Mr Mattesich agreed that the payment made by employees for private use rights was not based on the use of the vehicle and that employees with private use rights were permitted to use vehicles for unlimited kilometres. He also agreed that family members of employees with private use rights of vehicles were permitted to use the vehicle.
(m) Mr Mattesich stated that there had not been “a large variation” in the overall number of Assistant Managers employed by the respondent between 1995 and 2000. He agreed with the proposition put to him by Ms Eastman that during these years there had been a decrease in the number of Assistant Managers.
(n) Mr Mattesich was asked by Ms Eastman to undertake calculations, based on the data that he had supplied, which revealed the proportions of male and female Assistant Managers with private use rights of a motor vehicle. As at 26 August 1999 there were 42 Assistant Manager positions; 28 were filled by men, 12 by women and 2 positions were vacant. Of the 28 males, 22 had private use rights, whilst 7 of 12 females had this right. The calculations undertaken by Mr Mattesich revealed that 78.59% of male Assistant Managers and 58.33% of female Assistant Managers had private use rights.
(o) Similar calculations were undertaken for 8 December 1999, 28 February 2000, and 7 December 2000, based on the data supplied by Mr Mattesich. As at 8 December 1999 there were 42 Assistant Manager positions; 28 positions were occupied by men, 10 by women and 4 were vacant. Of the 28 males, 22 had private use rights, whilst 5 of the 10 women had this right. The calculations agreed to by Mr Mattesich were that 78.5% of male Assistant Managers and 50% of female Assistant Managers had private use rights. Mr Mattesich agreed with the figures put to him by Ms Eastman concerning the relevant proportions on 28 February 2000. At that date, 22 of the 28 male Assistant Managers and 5 of the 10 female Assistant Managers, being 78.57% of the men and 50% of the women, had cars. He also agreed with the figures put to him concerning 7 December 2000. At that date 23 of the 30 male Assistant Managers and 5 of the 10 female Assistant Managers, being 76.66% and 50% respectively, had private use rights of a motor vehicle.
(p) Mr Mattesich was also asked by Ms Eastman to undertake the same exercise in relation to the data in the President’s report (Exhibit 1), which was annexed to a letter which Mr Mattesich had sent to the Anti-Discrimination Board on 21 July 1997. Whilst there was some dispute concerning the actual date upon which this data was prepared, Mr Mattesich agreed with the proposition put to him by Ms Eastman that it related to a date between August 1996 and 21 July 1997. This information supplied to the Anti-Discrimination Board by the respondent revealed that there were 48 Assistant Managers; 31 were men, 12 were women and 5 positions were vacant. Twenty-two of the 31 males and 6 of the 12 women had private use rights, which meant that the relevant proportions were 70.96% and 50% respectively.
(q) Mr Mattesich was also taken to the calculations made by Ms Schofield concerning the data supplied to her in April or May 1995. On the basis of that data, Mr Mattesich agreed that 50% of female Assistant Managers and either 78.9% or 81.57% of male Assistant Managers had private use rights of a motor vehicle. The uncertainty about the precise proportion of male Assistant Managers with private use rights was caused by lack of information concerning one position.
30 No witnesses were called by the other union joined as a party, the MEU.
(a) Mr Robertson has been the secretary of EHABSA since 1984. EHABSA is a trade union in the area of local government. It covers “people historically known as health and building inspectors” who are “involved now in a range of building development control, planning, public and environmental health responsibilities in councils”.
(b) Virtually all EHABSA members, who are qualified, have access to Council cars for private purposes. EHABSA has 18 members in qualified health and building surveying positions employed by the respondent. None of these people are women.
(c) When speaking about EHABSA members across NSW, Mr Robertson said that “some members would have cars as part of salary packaging arrangements – usually managers and directors” and “everyone else would have access to the council car they use for work under a ‘leaseback’ arrangement”.
(d) Mr Robertson stated that:
(e) Mr Robertson agreed with the suggestion put to him by Ms Eastman that if his members lost their cars “they would lose a benefit of their employment”. Mr Robertson also agreed with the suggestion put to him by Ms Eastman that “remuneration is any sort of payment to an employee, be it direct or indirect”. In his own words, remuneration was “everything that you get at the end of the week”.
“[A]ny decision by this Tribunal to award cars as sought by the Applicants would, in my opinion, lead to a situation where all private use motor vehicles enjoyed by workers at Wollongong City Council would be placed at risk. This is because of the expense that would be involved, not only providing cars or the financial equivalent to the Applicants but also to other groups of workers who do not currently enjoy such motor vehicle access but who would then press for them industrially. Such an outcome would certainly lead Wollongong City Council to review the entire policy of motor vehicle access and could well see a return to pool cars only. Of even greater concern is that is if this were to happen at Wollongong then it would inevitably lead to it happening across NSW and put at risk the historic conditions of private use of motor cars enjoyed by EHABSA members”.
The Submissions of the Parties
31 Both the complainants and the respondent filed lengthy written submissions. On 5 March 2001 Ms Eastman and Ms Ronalds spoke to their own submissions, and responded to each other’s submissions. Written submissions were presented on behalf of EHABSA by Ms McManus. In effect, EHABSA submitted that the complaints should be dismissed. Mr Kruse filed written submissions on behalf of the MEU. The MEU made no submissions concerning the final outcome of these complaints. It referred the Tribunal to a recent decision of the NSW Industrial Relations Commission (see discussion below at paragraphs 103 and 104) and it stated that if the complaints were substantiated the MEU would “consult with all local members affected by the decision and ensure that the decision is implemented equitably at the local level”.32 The complainants submitted that the respondent had indirectly discriminated against them on the ground of sex in contravention of all three paragraphs in section 25(2) of the Act. It was argued that the respondent imposed a condition or requirement upon its employees in relation to private use rights of motor vehicles, that a substantially higher proportion of men rather than women could comply with that condition or requirement, that none of the complainants did in fact comply with it, and that the condition or requirement was not reasonable. The complainants sought damages and an order enjoining the respondent from continuing to allocate motor vehicles for private use pursuant to its 1999 Motor Vehicle Policy.
33 The respondent denied that it had discriminated against the complainants on the ground of sex in any facets of the employment relationship which fell within section 25(2) of the Act. The respondents submitted that it was an error to characterise its 1990 and 1999 Motor Vehicle Policies as being concerned with private use rights of motor vehicles. These policies, according to Ms Ronalds, were not about private use rights; they were policies concerning the allocation of motor vehicles by the respondent to its employees for the benefit of the respondent. The respondents also submitted that the complainants had not proven that, at the relevant time, the 1990 Motor Vehicle Policy constituted a condition or requirement which was, or could be, complied with by a substantially higher proportion of men than women. The respondents further submitted that the complainants had not satisfied the burden which fell upon them of proving that any condition or requirement which the respondent imposed upon its employees was not reasonable in all circumstances of the case. Finally, the respondent submitted that in the event the complaints were found to be substantiated, there was no evidence led by the complainants which would support an order for damages for economic loss.
34 The details of the submissions made by all of the parties are considered in paragraphs 35 to 127 below, where we have recorded our reasons for concluding that the complaints should be substantiated, and for making consequential orders for relief.
Conclusions
35 In every complaint of unlawful discrimination the Tribunal must first determine whether the impugned conduct of the respondent falls within a substantive provision of the Act, and then, if that question is answered in the affirmative, determine whether the respondent’s conduct amounted to unlawful discrimination within the meaning of the Act. In this case the complainants have identified the relevant substantive provisions as being paragraphs (a), (b) and (c) of section 25(2) of the Act. As the case put by the complainants is one of indirect discrimination, the relevant definition of discrimination on the ground of sex is found in section 24(1)(b).36 Whether the circumstances of this case fall within any, or all, of the paragraphs in section 25(2) is a point in dispute between the complainants and the respondent. It is the complainants’ contention that all three paragraphs of section 25(2) are satisfied. The respondent has submitted that none of the paragraphs in section 25(2) are satisfied. Consequently, according to the respondent, there is no need to consider whether there has been any indirect discrimination on the ground of sex for this investigation becomes necessary only when the facts of the case fall within one of the substantive provisions of the Act.
37 Section 25(2) of the Act states:
38 Ms Eastman submitted that private use rights of a motor vehicle supplied by an employer constitutes part of the total remuneration payable to an employee and is therefore a condition of employment. Ms Ronalds submitted that the words “terms and conditions of employment”, found in section 25(2)(a), “clearly contemplate the elements of the contractual relationship”, which includes matters such as the period of employment and remuneration. She submitted that on the facts of this case the 1990 Motor Vehicle Policy operated for the benefit of the respondent as it was a means of supplying transport for its employees. The fact that a motor vehicle may also be used for private purposes did not convert it into an emolument, or remuneration. Ms Ronalds also submitted that the allocation of motor vehicles for private use did not form part of any formal or informal contractual relationship between the respondent and those of its employees with private use rights.
It is unlawful for an employer to discriminate against an employee on the ground of sex:
This sub-section is concerned with relations between employers and employees. It is not in dispute that, at all relevant times, the complainants and the respondent were in the relationship of employer and employees. It was also not in dispute that it was necessary for the complainants to prove that the facts of the case fell within only one of the three paragraphs in section 25(2).
(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.
39 It is necessary to determine what is meant by the words “terms or conditions of employment” in section 25(2)(a). Employment relationships are legally complex. Whilst the core of every employment relationship is a contract of employment, it is rare for that contract alone to be the source of all legal rights and obligations possessed by an employer and an employee (see ConcutPty Ltd v Worrell (2001) 75 ALJR 312 at 315). As Professors McCallum and Pittard indicate: “The sources of legal obligation in an employment relationship in Australia can include express and implied terms under a contract of employment, collective agreements, statutes, industrial awards and even custom and practice” (R McCallum and M Pittard, Australian Labour Law: Cases and materials 3rd ed, Sydney: Butterworths, 1995 at page 15).
40 At common law, the terms of a contract are “the components of obligation assumed by the parties” under, and to, the contract (N Sneddon and M Ellinghaus, Cheshire and Fifoot’s law of contract, 7th Australian ed, Sydney: Butterworths 1997 at page 324). There can, of course, be express and implied terms. There are two sub-categories of terms: conditions and warranties. A condition is an essential term (a breach of which justifies termination), whereas a warranty is a non-essential or subsidiary term (see Sneddon and Ellinghaus at page 743). Thus, it appears that the phrase “terms or conditions of employment”, as used in section 25(2)(a), should be given its everyday meaning, rather than its technical meaning in contract law, for if these words are to be given their technical legal meaning it does not appear to make a lot of sense to refer, in the alternative, to all of the components of obligation under a contract (the terms), and then only to those components of obligation which are essential (the conditions). This construction is supported by observations made by Lee J in Allders International Pty Limited v Anstee [1986] 5 NSWLR 47 at 55 when considering the breadth of an earlier, and slightly differently worded, form of section 25(2)(a). He stated:
97 The following comments made by Sackville J in the Finance Sector Union Case (at page 34) are of particular relevance in this case:
It is not possible to determine reasonableness in the abstract; it must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects of this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s. 17(5) would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.
98 Ms Eastman advanced a number of reasons why we should conclude that the challenged requirement or condition was not reasonable in the circumstances of this case. We summarise those reasons as follows:
The fact that a distinction has a “logical and understandable basis” will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor – perhaps a very important factor – in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement (in the sense in which the authorities interpret that concept) and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision. Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case…
99 Ms Ronalds referred to the statements made by Brennan J in Waters , which we have reproduced at paragraph 96, and stated that it is necessary to conceptualise the activity or transaction in question. This she described as follows:
(a) the respondent stated that it granted private use rights of a motor vehicles to Assistant Managers who needed to use a car in order to do their job. There is no nexus between work and personal use of a car; “just because an employee uses a car for work, does not mean that person requires a car for personal purposes”.
(b) the effect of the challenged requirement or condition offends “a fundamental right to equal pay for work of equal value” because it results in some similarly placed employees receiving more benefits, or remuneration, than others.
(c) the allocation of vehicles for private use might reasonably be achieved in other ways which do not have a discriminatory impact upon women by “adopting fair and transparent procedures” which “treat the value of the benefit as part of overall remuneration”.
(d) the lack of transparency in the process for allocating motor vehicles with private use rights “gives rise to an inference that the policy or criteria operates unfairly for women” and it is not reasonable to say that is was simply too difficult to include private use rights as part of remuneration once the work value of each relevant position had been determined.
(e) a motor vehicle allocation policy which did not have a discriminatory impact upon women “would not impose an unjustifiable cost” on the respondent.
100 According to Ms Ronalds, the respondent’s motor vehicle policy existed in order to provide employees with transport to carry out their work. Provision of motor vehicles to employees meant that transport was immediately available to permit them to promptly attend to their duties throughout the municipality. She stated that “the limit placed on allocation of cars is essentially budget related” and that this was necessary in order to comply with the demands for responsible management imposed by the Local Government Act 1993 . Ms Ronalds submitted that it was incorrect to focus upon that part of the motor vehicle policy which dealt with private use rights, for these rights applied “only as an adjunct to general allocation of a car to an employee for work purposes”. The evidence revealed, according to Ms Ronalds, that some employees had declined private use rights, whilst others “only drive the car to and from work”. In her submission, it would be “unworkable” for the respondent to have a policy which permitted employees to take vehicles home in order to render them effective employees, but which did not permit private use.
In this case the Motor Vehicle Policy is aimed at providing access to motor vehicles to the staff of the Council who require the use of a motor vehicle as part of their employment. The need requirement is aimed at limiting the provision of access to motor vehicles to only or predominantly work related reasons. Vehicles allocated to individuals (as opposed to those in the car pool) are able to be used for private purposes but only as an adjunct to their use for work purposes.
101 Ms Ronalds identified four alternatives to the former (and we believe by implication, the present) motor vehicle policy. They were:
Ms Ronalds advanced reasons why all four of these alternatives were “unworkable or detrimental and ultimately unreasonable”. In brief, those reasons related to cost and to impaired capacity to respond quickly to work related need.
(1) allocation of a car to every staff member (or at least those above a certain level);
(2) placement of all cars in a car pool with no individual allocation;
(3) prohibiting private use of vehicles; and
(4) use of hire cars, taxis and buses on an “as needs” basis.
102 In the circumstances of this case we believe it appropriate to take into account the evidence and submissions of the two unions when determining the issue of the reasonableness of the challenged requirement or condition. In Waters, Dawson and Toohey JJ (at page 395) described “the maintenance of good industrial relations” as a factor which may be relevant when determining reasonableness. In Banovic, Deane and Gaudron JJ (at page 181) referred to “the maintenance of a stable workforce and one not subject to industrial disputation which otherwise might result if established patterns of industrial regulation and representation were put at risk” as matters which could be considered when assessing reasonableness.
103 As we understood the submissions made by the MEU, that Union did not clearly support a finding in favour of either the complainants or the respondent. The MEU did, however, refer us to a recent decision of the NSW Industrial Relations Commission known as Re Equal Remuneration Principle [2000] NSWIR Comm 113. In that case a majority of the Full Bench of the Commission determined that an “Equal Remuneration and other conditions” principle should be inserted into the Commission’s Wage Fixing Principles. Whilst that decision contains matters of general interest, it has no direct bearing on this case for it was made pursuant to the Commission’s jurisdiction under sections 50 and 51 of the Industrial Relations Act 1996 to set principles which govern awards. Section 23 of that Act requires the Commission to ensure that awards provide “equal remuneration and other conditions of employment for men and women doing work of equal or comparable value”. The conditions of employment, and the alleged inequality in remuneration about which the complainants have fought this case, do not arise under an award, or any other industrial instrument.
104 In setting Equal Remuneration Principles the Commission made an observation which the MEU has asked us to take into account. The majority of the Full Bench stated (at para 137):
The Commission went on to include as part of its new principle that, “Equal Remuneration shall not be achieved by reducing any current wage rates or other conditions of employment”.
Claims that there may be negative employment effects cannot, however, provide a proper basis for refusal of pay equity adjustments where it has been established that men and women are not being equally remunerated for work of equal or comparable value.
105 According to the MEU, the Commission’s observations and principle are at odds with the evidence given by Mr Robertson of EHABSA concerning the possible negative effects upon its members in the event that the complainants are successful in this case. Mr Robertson gave evidence that in his opinion “any decision by this Tribunal to award cars as sought by the Applicants” would place at risk all private use rights enjoyed by employees of the respondent and EHABSA members across NSW. Counsel for EHABSA submitted that the respondent had not unlawfully discriminated against the complainants on the ground of sex. As counsel for EHABSA was present only fleetingly throughout the hearing, and as no attempt was made to analyse the evidence or to present detailed legal argument, we find it difficult to attach much weight to this submission.
106 There are many factors to assess when determining whether the complainants have satisfied us that the 1990 Motor Vehicle Policy, and its application in so far as it conferred private use rights on Assistant Managers, was not reasonable. This determination must be made objectively. The activity in question, the provision of motor vehicles by an employer to some of its employees, for both business and private use, is clearly legitimate. It is widespread in the community. An employer is clearly entitled to devise and operate a motor vehicle allocation policy which is for its benefit and convenience. An employer, whether public or private, must have regard to financial consequences when determining how many motor vehicles it will purchase and allocate to its employees for private as well as business use.
107 However, to use and combine the language of Brennan J in Waters (at page 378) and Sackville J in the Finance Sector Union Case (at page 34), we do not believe that the challenged operation of the respondent’s motor vehicle policy was “appropriate and adapted to the performance of the activity”. Even though the policy may have been logical and understandable to the respondent, it was based upon assumptions which ignored or discounted the discriminatory impact of that policy. From the moment the complainants drew attention to what they perceived to be an unfair application of the policy, the respondent has maintained that the motor vehicle policy operated for its benefit, rather than for the benefit of its employees. The respondent has chosen to ignore or deny the effect of the operation of the motor vehicle policy. Ms Ronalds stated in her written submissions that “the policy has never been seen as nor is it to be regarded by the Council as part of a package of remuneration of an employee of the Council”, except in relation to senior executives. That may have been the subjective view of the respondent, but we believe that any reasonable person would have seen that an effect of an employee being provided with private use rights of a motor vehicle was to receive a benefit associated with employment.
108 Private use rights of a motor vehicle formed part of the remuneration of some Assistant Managers, but not others. The respondent has consistently shown itself to be unwilling, or unable, to confront this fact. If an employer chooses to determine that some of its employees are doing work of equal or similar value, and that those employees should receive equal or similar remuneration, it is not reasonable to deal with the issue of what constitutes remuneration by failing to consider that matter from the perspective of the ordinary, reasonable observer. If, as Ms Ronalds has submitted, the respondent did regard the provision of motor vehicles with private use rights as part of a package of remuneration for its senior executives, it is neither logical nor understandable to take a different view of private use rights for Assistant Managers.
109 The respondent had an opportunity to confront and resolve this matter in 1995 when the Job Evaluation Process was undertaken. No doubt it would not have been easy to resolve the issue of private use rights of motor vehicles, for practices appear to have developed over the years in an unplanned and unstructured way. The policy, and its application, lacked transparency. Given the significant nature of the benefit in question, and that lack of transparency, it is reasonable to expect that prudent managers would have anticipated a challenge to the policy. That challenge was launched by the complainants many years ago, but the respondent has declined to directly confront the issue. The 1995 Job Evaluation Process takes on an air of artificiality when we consider Mr Oxley’s statement that a decision was taken that “work value would only result on weekly earnings and no other factors of remuneration would be taken into account”. We acknowledge that impediments to change existed. Salary sacrificing arrangements are legally and administratively complex. Nonetheless, it does not seem to us to be reasonable for a large public sector employer to turn its back on these matters because they are perceived to be too difficult.
110 The second aspect of the criterion of reasonableness advanced by Brennan J in Waters (at page 378) was “whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory…or that is as discriminatory as the requirement or condition imposed”. Effectiveness, efficiency, convenience and cost are matters which Brennan J identified as relevant considerations when determining this issue. We are mindful of the fact that it is not our task to devise a motor vehicle policy which is better than the one under challenge in this case. There were, however, numerous avenues open to the respondent to devise and implement a policy which was more reasonable than the one it employed.
111 We believe it appropriate to take notice of the fact that salary packaging is widespread in the community. The respondent could have examined the many models used in public and private enterprise and chosen one which best suited its needs, and those of its employees. The respondent could have sought to have included salary packaging arrangements in an enterprise agreement reached pursuant to the Industrial Relations Act 1991 (which was in force until 2 September 1996), or the Industrial Relations Act 1996. The evidence in this case reveals that the arrangements concerning private use rights for Assistant Managers operated outside of the industrial instruments which governed the respondent’s workplace. Inclusion of this matter within an enterprise agreement would have attracted the supervision of the Commissioner for Enterprise Agreements and the Industrial Court under the Industrial Relations Act 1991, and the supervision of the Industrial Relations Commission under the Industrial Relations Act 1996. The use of these formal structures could have been of benefit to all of the parties to this case. A reasonable policy would not necessarily have resulted in increased costs for the respondent. We have not concluded that all Assistant Managers should be allocated a motor vehicle with private use rights, and nor have we concluded that all Assistant Managers with private use rights should now be denied those rights. What we have concluded is that the challenged policy operated in such a way that it disadvantaged women and that it was not reasonable.
112 The fourth matter to consider is whether the complainants complied, or could comply, with the challenged requirement or condition. It was not in dispute that none of the complainants had private use rights of a motor vehicle owned by the respondent at any relevant time. It was also not in dispute that the complainants had actively sought this benefit from the respondent and had been denied it.
113 In conclusion, we are satisfied, on the balance of probabilities, that between 5 March 1996 and 5 September 1996 the respondent required a group of its employees, Assistant Managers, to comply with a requirement or condition, the 1990 Motor Vehicle Policy and its operation, in order to enjoy a benefit associated with employment, namely private use rights of a motor vehicle owned by the respondent. We are also satisfied that a substantially higher proportion of men than women were able to comply with this requirement or condition, and that the requirement or condition was not reasonable in all of the circumstances of the case. We are satisfied that none of the complainants complied with the requirement or condition concerning private use rights of a motor vehicle. It follows that we are satisfied that the respondent unlawfully discriminated against the complainants on the ground of sex contrary to section 25 (2)(b) of the Act. As we earlier determined that private use rights constituted a condition of employment, and that the failure to grant those rights to the complainants when they were given to similarly placed employees constituted a detriment, we are also satisfied that the respondent contravened paragraphs (a) and (c) of section 25 (2) of the Act. The complaints are substantiated.
Remedies
114 The remedies sought by the complainants have changed over time. They have, however, always maintained a claim for damages. In the Amended Points of Claim the complainants also sought an order from the Tribunal that “the respondent allocate a motor vehicle to each of the complainants for private use”. This claim for relief was withdrawn by Ms Eastman during her closing submissions, when another claim for relief became apparent. The complainants asked the Tribunal to make an order enjoining the respondent from continuing to operate its 1999 Motor Vehicle Policy. In paragraph 20(5) of the Amended Points of Claim the complainants had sought “such other orders as the Tribunal considers appropriate”. Ms Eastman relied upon this broadly phrased claim as providing sufficient notice of the order that the respondent be enjoined from continuing to operate its 1999 Motor Vehicle Policy.115 There were two components to the complainants’ claim for damages: special damages for economic loss and general damages for humiliation and stress. It was claimed that the economic loss was the monetary value of the benefit of having private use rights of a motor vehicle. We were referred to a recent decision of the Full Bench of the Australian Industrial Relations Commission for a method of calculating this loss. It was submitted that this method was used by Mr Wood in his calculations. The evidence of Mr Wood was also relied upon to calculate the complainants’ actual loss. Ms Eastman submitted that this should be done by referring to Mr Wood’s evidence concerning “national average use of motor vehicles of the type provided by Council to employees for private use”. If this means of determining the actual use which the complainants would have made of a car is employed, together with the suggested method for calculating monetary loss, the result, according to Ms Eastman, is economic loss in excess of $40,000 (the statutory limit) for all of the complainants other than Ms Tambyah, who ceased being an Assistant Manager in November 1997.
116 Ms Ronalds resisted any award of damages for economic loss. She submitted that “the complainants have not discharged their evidentiary burden to show that they actually suffered a loss”. According to Ms Ronalds, the only thing that can be drawn from Mr Wood’s evidence is “to put a value to an established loss or damage”. She also referred to the evidence of Mr Mattesich concerning different monetary values given to the use of a car by different organisations. Ms Ronalds submitted that this evidence differed from that given by Mr Wood.
117 There are two reasons why we believe damages for economic loss should not be awarded in this case. First, we cannot be satisfied that if the respondent had not discriminated against the complainants on the ground of sex that the complainants would have been allocated a motor vehicle with private use rights. The contravention of the Act committed by the respondent was to provide a benefit of employment to some of its Assistant Managers by the use of an apparently neutral practice, which operated to the disadvantage of women, and which was not reasonable. Not all men, but only a substantially greater proportion of them, received this benefit. A reasonable practice for the allocation of this benefit, which did not substantially favour either sex, may not have resulted in the complainants being granted private use rights of a motor vehicle.
118 Section 113(1)(b)(i) of the Act provides that damages may be awarded “by way of compensation for any loss or damage suffered by reason of the respondent’s conduct”. There are numerous authorities for the proposition that in discrimination cases loss is to be assessed according to ordinary tortious principles (see, most recently, the decision of Sully J in Commissioner of Police, NSW Police Service v Estate ofRussell [2001] NSWSC 745 at paragraph 33). Despite the fact that the actual heads of damage may not be confined to those available in an action in tort (see eg Lockhart and French JJ in Hall v A& A Sheiban Pty Ltd (1989) 20 FCR 217), it seems axiomatic, as the majority of the High Court observed in Haines v Bendall (1991) 172 CLR 60 at 63, that “a plaintiff cannot recover more than he or she has lost”. For the reasons we have given, we are not satisfied that the complainants lost private use rights of a motor vehicle by reason of the respondent’s conduct. What they lost was the opportunity to be considered for a work related benefit in a non-discriminatory manner.
119 Our second reason for declining to award damages for economic loss is an alternative to the first reason. If the first reason is incorrect, and if the complainants have in fact suffered loss of private use rights as a result of the respondent’s contravention of the Act, we believe that, except in the case of Ms Bonella, there is no evidence of actual quantifiable loss. It is not sufficient to rely upon the evidence of Mr Wood concerning the number of kilometres the average motorist may have driven in a year. We do not know, except in relation to Ms Bonella, what private use the complainants may have made of any vehicle allocated to them. No doubt it was difficult to amass this evidence, but difficulty does not obviate the need for evidence of actual loss. As Professor Tilbury points out in Civil Remedies, Volume One: Principles of Civil Remedies, Sydney: Butterworths, 1990 at pages 150-151:
120 During cross-examination Ms Bonella estimated that her personal private use rights of a motor vehicle would have been 300 to 400 kilometres per week during the period in question. Had we considered it appropriate to award Ms Bonella damages for economic loss, the mid point of this estimate, together with Mr Wood’s evidence concerning the cost per kilometre of operating a car, could have been used to calculate that loss. For the other complainants there was no evidence of actual loss. We consider it unreasonable to use a measure such as the number of kilometres driven by the average motorist each year. Mr Wood employed average usage figures in order to calculate the costs per kilometre of maintaining a car. He did not purport to have carried out extensive surveys of the average number of kilometres driven each year by the average motorist. Consequently, there was insufficient evidence to award the complainants, other then Ms Bonella, any damages for economic loss.
…[I]t is usually said that the law requires that damages be proved with reasonable certainty. The function of the concept of certainty of damages is thus to prescribe the degree of definiteness with which any alleged loss or losses need, for the purposes of the law of damages, to be established and quantified.
The requirement that loss be proved with reasonable certainty means that the concept of certainty is a relative one, for what is ‘reasonable’ must obviously vary from case to case. This was recognised by Bowen LJ in Ratcliffe v Evans…..
It follows from Bowen LJ’s dictum in Ratcliffe v Evans that the court will expect to have such evidence of loss as is available.
If the plaintiff fails to lead such evidence then, except in the case of a breach of an absolute right, he may fail to obtain any damages or where the Court is nevertheless satisfied that some loss has been suffered, he runs the risk of an award of damages which does not reflect his actual loss. [references omitted].
121 The complainants also sought general damages for humiliation and stress. All of the complainants gave evidence about the negative impact which the operation of the motor vehicle policy had had upon them. The respondent submitted that if there was to be any award of general damages the sum should be minimal. Damages for non-economic loss are always difficult to quantify. The English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975 warned that in discrimination cases damages for non-economic loss should “not be minimal, because this would tend to trivialise or diminish respect for public policy.” Any award of general damages in this case should include a component for the complainants’ loss of opportunity, or chance, to be considered for a work related benefit in a non-discriminatory matter. In the circumstances of this case we believe that each complainant is entitled to an award of $7500 for general damages. The damages should be paid at the expiry of the statutory appeal period.
122 Section 113(1)(b)(ii) of the Act gives the Tribunal the power to “make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by the Act…”. This provision is relied upon as the source of our power to make the order sought by the complainants that the respondent cease allocating motor vehicles for private use pursuant to its 1999 Motor Vehicle Policy. There are two reasons why we believe we should not make this order at this stage. First, we hold concerns about our power to make the order which has been sought. We have found the operation of the 1990 Motor Vehicle Policy to be unlawful. We have not been asked to order that the respondent stop using that policy for it is no longer used. We question whether section 113(1)(b)(ii) is of sufficient breadth to permit us to direct the respondent to cease the operation of its 1999 Motor Vehicle Policy for we have not found its operation to be unlawful. We have found that a contravention of the Act took place between March and September 1996. The current motor vehicle policy was not formulated until 1999. There is, however, evidence from Mr Oxley that, in terms of the allocation of motor vehicles, the 1999 policy contains the same principles as the 1990 policy. In view of the uncertainties about our power to make the order sought, coupled with the fact that we have not heard full argument from counsel because this proposed order was only raised by Ms Eastman in her closing submission, we believe that it is not appropriate to make the order sought at this stage.
123 Secondly, an order of the nature sought would have significant consequences for a number of people. Its extent may be unclear. For example, would it operate only prospectively, or would it operate retrospectively as well, thereby requiring all motor vehicles allocated pursuant to the policy to be returned? We believe that the respondent should be given an opportunity to consider the impact of this decision and to set about devising and implementing a non-discriminatory policy. This could be done by including that part of its motor vehicle allocation policy which concerns private use rights within an industrial instrument. As a public authority the respondent can be reasonably expected to avail itself of the mechanisms set up by law for determining and regulating conditions of employment. Two of the objects set out in section 3 of the Industrial Relations Act 1996 are pertinent:
124 If the provisions of the Industrial Relations Act 1996 are invoked by the respondent it may be possible to devise a non-discriminatory policy which takes into account the legitimate interests of employees with existing private use rights and which results in financial consequences for the respondent which are not unreasonable. If the matter can be dealt with in an enterprise agreement, concerns about equal remuneration for women are catered for by section 35(1)(a) of the Industrial Relations Act 1996 which directs the Commission not to approve an agreement unless satisfied that it complies with the Anti-Discrimination Act 1977 . If agreement cannot be reached, and an award becomes necessary, section 23 of the Industrial Relations Act 1996 will ensure that men and women doing comparable work will receive equal remuneration and other conditions of employment.
(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments.
(f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value.
125 Consequently, for the reasons given, we decline to make the order sought at this stage. The complainants, however, should not be denied the opportunity to pursue this remedy in the event that the respondent does not take any steps within a reasonable time to ensure that its current policy is non-discriminatory. The complainants should be granted leave to approach the Tribunal for an order pursuant to section 113(1)(b)(ii). The complainants will need to address the concerns we have raised concerning our power to make the order sought. In order to ensure that there is some finality to this litigation, the leave granted to the complainants should not be indefinite. That leave should remain open until 16 weeks after the date of this decision. This grant of leave may be exercised by the complainants writing to the Registrar, within the designated period, with the request that the matter be re-listed on a convenient date to be determined by the Registrar. The Registrar will ensure that the respondent, and the MEU and EHABSA, are given proper notice of any such application.
Costs
126 The complainant sought an order for costs against the respondent generally, and against EHABSA for the additional costs associated with its involvement in the case. The combined operation of section 88 of the ADT Act, and the practices which have built up when exercising the costs power under section 114 of the Act, means that it is necessary to demonstrate special circumstances before a costs order will be made. None have been demonstrated in this case. Consequently there will be no order as to costs.Decision and Orders
127 The complaints lodged by each of the five complainants are substantiated. The Tribunal make the following orders:
1. Within 28 days of the date of this order the respondent is to pay each of the complainants damages in the sum of $7500.
2. The complainants are granted leave to approach the Tribunal for an order pursuant to section 113(1)(b)(ii) of the Anti-Discrimination Act 1977 no later than 16 weeks after the date of this order.
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