Gardiner v New South Wales WorkCover Authority

[2003] NSWADT 184

CITATION:	Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Anne Gardiner RESPONDENT New South Wales WorkCover Authority
FILE NUMBER:	021126
HEARING DATES:	14/07/2003, 15/07/2003 & 16/07/2003
SUBMISSIONS CLOSED:	07/16/2003
DATE OF DECISION:	08/11/2003
BEFORE:	Hennessy N - Magistrate (Deputy President); Alt M - Member; Pun A - Member
APPLICATION:	Carers' Responsibility Discrimination - in work
MATTER FOR DECISION:	Principal
LEGISLATION CITED:	Anti-Discrimination Act 1977 Anti-Discrimination Admendment (Careres' Responsibilities) Bill 2000 Industrial Relations Act 1988 (Cth)
CASES CITED:	Langley v Niland [1981] 2 NSWLR 104 Commissioner of Police v Orr [2001] NSWADTAP 16 Briginshaw v Briginshaw (1938) 60 CLR 336 Dutt -v- Central Coast Area Health Service (EOD) [2003] NSWADTAP. Laz v Downer Group Limited [2000] FCA 1390 Wannberg v Alloa Holdings Pty Limited (unreported, Ritter JR, 31/7/96) Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Dietrich v The Queen (1992) 177 CLR 292 Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 Waters v Public Transport Corporation (1991) 173 CLR 349 Bonella v Wollongong City Council [2001] NSWADT 194 State of NSW v Amery [2003] NSWADTAP 16 Jeremiah v Minister of Defence [1979] 3 All ER 833. Leonard v Youth Hostels Association of Australia (1995) EOC 92-762 Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 Australian Iron and Steel v Banovic (1989) 168 CLR 165 McDonald v Puplick & Ors, unreported, Matter No 30090/97 [1998] NSWSC 428 Bradley -v- State of New South Wales (No.2) [2003] NSWADT 94 Styles v Secretary Department of Foreign Affairs and Trade (1988) EOC 92-239
REPRESENTATION:	APPLICANT K Eastman, barrister RESPONDENT K Nomchong, barrister
ORDERS:	1. The complaint is dismissed.; 2. Each party has 21 days from the date of this decision to make an application for costs.

REASONS FOR DECISION

1 This is the first time this Tribunal has made a decision in relation to an alleged breach of the carers’ responsibilities provisions of the Anti-Discrimination Act 1977 (AD Act) which came into effect on 1 March 2001.

2 Ms Gardiner, a senior manager with the WorkCover Authority of New South Wales, (WorkCover) alleges that her employer is in breach of the indirect discrimination provisions of the AD Act in relation to her carer’s responsibilities and her sex. She alleges that WorkCover imposed a requirement on her, and the majority of employees working at head office in Sydney, that they be based in Gosford from 21 October 2002. Ms Gardiner says that she cannot comply with that requirement because of the responsibilities she has to care for her two youngest children who are aged 6 and 8. The parties agreed that a substantially higher proportion of men compared with women and people without carer’s responsibilities compared with those with carer’s responsibilities, could comply with that requirement. The main issue in dispute is whether the requirement was reasonable in all the circumstances.

Preliminary issue

3 The applicant raised a preliminary issue as to whether the Tribunal has jurisdiction to hear the complaint because it was either out of time or made prematurely. Ms Gardiner lodged a complaint of discrimination with the President of the Anti-Discrimination Board (ADB) on 13 March 2002. On 14 July 2003, the Tribunal gave oral reasons for its conclusion that the complaint was within time because the requirement that the applicant be based in Gosford was a continuing requirement which existed during the six month period before the applicant lodged her complaint with ADB. We will not elaborate on the reasons for that conclusion in this decision.

Legislative provisions

4 Ms Gardiner alleged that WorkCover was in breach of s 49V(2)(a), (b) and (d) in relation to carer’s responsibilities and s 25(2)(a), (b) and (c) of the AD Act in relation to sex discrimination. The respondent submitted that since Ms Gardiner had not mentioned sex discrimination in her original complaint to the President of the ADB, the Tribunal should treat the claim as being based only on carer’s responsibilities. We do not accept that submission. It is has been clear since the decision in Langley v Niland [1981] 2 NSWLR 104 that while the initial complaint to the President of the ADB must allege a contravention of the Act by another person, "it need not allege the relevant facts with the particularity of an indictment or a pleading.” (at 107, per Hunt J). This Tribunal has taken a liberal view of what must be contained in a complaint to the President. There is certainly no requirement that the applicant identify particular grounds of discrimination or that an applicant can only rely on any ground or grounds that are identified. (See Commissioner of Police v Orr [2001] NSWADTAP 16 at paragraphs 14 to 16.)

5 Section 49V(2) is the substantive provision relating to carer’s responsibilities on which the applicant relies. It states that:

It is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer:

(a) in the terms or conditions of employment that the employer affords the employee, or

(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

(d) by subjecting the employee to any other detriment.

6 Section 25(2) is the substantive provision relating to sex discrimination on which the applicant relies. It states that:
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

7 The indirect discrimination provisions for carers’ responsibilities and sex are in similar terms. Section 49T(1)(b) states that:
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person’s responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator:

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case . . .

8 Section 24(1)(b) and 24 (1A) state that:
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator:

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

(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

9 The definition of carers’ responsibilities is found in s 49S. That section sets out the relationships which are carer relationships including the relationship of a mother to her child. Section 49S(1)(a) states that:
(1) A reference in this Part to a person’s "responsibilities as a carer" is a reference to the person’s responsibilities to care for or support:

(a) any child or step-child of the person (whether or not under the age of 18 years) who is:

(i) wholly or substantially dependent on the person, or

(ii) in need of care or support . . .

10 As long as the child is wholly or substantially dependent on the mother or in need of care and support, the relationship will be covered by the AD Act.

Issues

11 Several issues arose in these proceedings. They include:

· whether Ms Gardiner has responsibilities as a carer as defined by the AD Act;

· if so, the precise nature of the requirement with which Ms Gardiner must comply and whether that requirement is a “requirement” for the purposes of the AD Act; and

· if so, whether that requirement was reasonable in all the circumstances.

Onus of proof

12 The applicant has the onus of proof. The principles in Briginshaw v Briginshaw (1938) 60 CLR 336 must be borne in mind, in the sense that the seriousness of the allegation and other relevant factors are to be taken into account before determining whether the Tribunal is satisfied that a contravention of the AD Act has occurred. (See Dutt -v- Central Coast Area Health Service (EOD) [2003] NSWADTAP.)

Evidence and findings

13 Employment history. The applicant commenced work with the respondent as a permanent Departmental Professional Officer in 1992. In March 1998 she secured a position as a temporary team leader of the Health and Community Services (HACS) Team in the Occupational Health and Safety Division for four months. In this role she and the leader of the Construction team, were given the task of setting up a multi disciplinary team structure based on an industry group, on a trial basis. As a result of this trial, an industry team structure was introduced into the Occupational Health and Safety Division and adopted by WorkCover in January 2000. Following the deletion of her substantive position, the applicant stayed on as Team Leader on a part-time basis and was appointed to the position on 4 December 1998.

14 Announcement of re-location to Gosford. On 2 February 1999 the Premier, the Honourable Bob Carr, announced that the head office of WorkCover, which was located at 400 Kent Street Sydney, would be relocating to Gosford over the next 2 ½ years. On the same day the then General Manager of WorkCover announced over the public address system that WorkCover would be relocating its head office to Gosford. The applicant was present when the General Manager made the announcement and says that she was aware at that time that the head office would be moving to Gosford in the future. WorkCover also produced a regular publication on the intranet called the “Gosford Bulletin” which recorded the number of weeks to go before the move and other relevant information. The applicant said that she knew the Gosford Bulletin existed but never read it because it did not seem relevant to her.

15 Identification of positions which would be moving. The 11 May 1999 minutes of the Joint Consultative Committee (JCC), a committee comprising union representatives and management, records that the exact numbers and Branches of the Occupational Health and Safety Division which would be relocating would be difficult to determine. Ms Patterson, Assistant General Manager, advised the JCC that certain District Offices would not be relocated but that the final decision in relation to the rest of the Occupational Health and Safety Division “would be dependent on the outcome and recommendations of the Industry Team trials.”

16 Recommendations of consultant. In May 1999 the recommendations in relation to the Industry Team Trials were published in a report by a consultant, Ms Jan Smith, entitled “WorkCover NSW: Draft Final Report of the evaluation of the Occupational Health and Safety Division Team Trial.” The relevant parts of the Report are set out below:

Findings

Some team members commented that in an ideal world all members of the team would be located in the same office. However, the general consensus seemed to be that provided a core group of a team was co-located the location of other team members in other offices did not diminish the effectiveness of the team. In fact, many commented that to ensure adequate response times and to address some staff members’ personal needs it was better for all team members not to be co-located.

Comments and Recommendations

The construction and HACS trial teams have determined for themselves different structures and administrative procedures. . .

It is recommended that should the team model be extended across the OHS Division consideration be given to matching as far as practicable, the location of the core group of each team with a geographical area of industry concentration.

17 Job advertisement . On 30 September 1999, following the advertisement of several Team Manager positions as permanent positions, Ms Gardiner applied for one of those positions. The advertisements in the Government Gazette and in the Sydney Morning Herald were headed, in capital letters, “WORKCOVER IS SCHEDULED TO RELOCATE TO GOSFORD BY 2002.” Ms Gardiner said that she was under the impression that the relocation did not apply to her because she was in a service delivery role but admitted that she knew that there was a remote possibility that her position would be moved before she applied for the job.

18 Contract of employment. Ms Gardiner was offered the position for which she had applied but neither the letter offering her the position, nor her letter of acceptance mentioned anything about relocating to Gosford. Ms Gardiner says that she expected to receive a letter telling her what was planned in relation to her position, but the first time she says she became aware that her position was being moved was in June 2001 when she met with Mr Philip Reid, the Assistant General Manager, Corporate Governance and two other people.

19 Survey of staff. Ms Gardiner completed a survey in July 2002 relating to the relocation to Gosford. The survey was accompanied by a covering email from the General Manager addressed “To all staff affected by WorkCover’s relocation to Gosford”. Ms Gardiner said that she couldn’t remember whether she was told when she was given the survey that it was for staff who were relocating to Gosford. The survey asked several questions, including the following: “Is your current intention to remain with WorkCover after the relocation of head office to Gosford?” Ms Gardiner answered “Yes” to that question and explained to the Tribunal that she intended to remain in Sydney. She said she believed that when she had the opportunity to explain the business and personal reasons for retaining her position in Sydney, management would agree to that course.

20 Memorandum to General Manager. Following the June 2001 meeting at which she was told that her position would be based in Gosford, Ms Gardiner said she made up her mind that she would not move. She did not take any formal steps to negotiate with management for her position to remain in Sydney until 21 August 2001. On that date she wrote a memorandum to the then General Manager, Kate McKenzie, requesting that her position remain in the Sydney CBD. The reasons she gave in support of that request were that she was the only Team Manager with young children and the majority of the staff she manages will remain either in the CBD or within a short distance of the CBD. She says she did not receive a response to that memorandum until 25 March 2002 even though she had asked her assistant to deliver a second copy of the memo in early October 2001.

21 Response to memorandum. Ms Moira Heath, the Director of Human Resources for WorkCover, did not start working for WorkCover until 13 December 2001. She does not dispute that Ms Gardiner sent the 21 August memorandum to the General Manager but notes that WorkCover’s records do not show that the original or the second copy were ever received. We are satisfied that Ms Gardiner did send the memorandum on 21August 2001 and that her assistant delivered another copy in October. For whatever reason, the General Manager apparently overlooked, or did not deal with, her request until 25 March 2002.

22 Ms Heath gave evidence that in July or August 2002, the Public Service Association (PSA) requested a list of positions which were being transferred to Gosford and that list was provided. The applicant’s representative submitted that the inference could be drawn that there was no certainty about the positions which would finally be relocated.

23 Findings. The circumstances in which Ms Gardiner became aware that her position would be re-locating to Gosford are relevant to determining the reasonableness of that requirement. Ms Gardiner admits that she knew that there was a possibility that her position would be transferred. Statements from several other team managers reveal that, in general, they were aware of the move to Gosford from 1999. None of these managers said that they were unsure whether their job would be relocated. We find that, despite the fact that Ms Gardiner was not told expressly that her particular position would be moving until June 2001, she did realise as early as February 1999, that there was more than a mere possibility that her position would be transferred to Gosford. The Premier’s announcement, the heading on the advertisement and the survey were all strong indications that her position would be re-located. All employees whose positions were to be re-located were given other options such as special consideration for relocating their residence to an area closer to Gosford or help in finding another position within the public or private sector. Ms Gardiner did not take up any of these options as she was hoping that she would be able to convince management that she should remain in the City office. She waited until she was given specific advice that her position would be moving before attempting to do so.

24 Attempts to resolve Ms Gardiner’s concerns. In April 2002 Ms Gardiner met with Moira Heath who listened to her concerns about carer’s responsibilities. Ms Heath made it clear that the needs of carers can generally be accommodated but there would be no change to the decision that her position would be transferred to Gosford. Ms Gardiner attended several other meetings with various officers of the respondent including her supervisor Mr Watson in an attempt to resolve her concerns. Ms Gardiner agrees that during the course of those negotiations the respondent was making a serious attempt to come to some arrangement with her which would accommodate her carer’s responsibilities. After a meeting on 31 July 2002, attended by Mr Watson and Mr Clark, a document was produced entitled “Summary of issues for discussion with Anne Gardiner”. That document said, in part, that:

All Team Managers are required to be in Head Office for the following reasons:
· For effective service delivery, the team manager is recognised by WorkCover as a critical management link between executive management decision-making and team coordination and supervision.

· Coordinating and reviewing work organisation and workflows, ensuring team performance indicators and that ongoing improvements in productivity and quality are achieved.

· Contribute to the OHS Division Senior Management Team through constructive input and active participation.

· Recommend and influence training and development strategies for the Division.

The requirement that Ms Gardiner’s position be located in Head Office are as listed below:
· Regular planned Division Meetings (Monthly)

· Service Delivery Group Meetings (Monthly)

· Scheduled 2 monthly meeting with Director Service Delivery Group

· Regular ad hoc meetings with Director

· Various committee meetings and Industry Reference Group meetings and associated projects

· Informal meetings with other Team Managers

· Supervision of Head Office based staff . . .

· Opportunity to be easily rotated with Team Managers in other industry teams

· Interaction with other Team Managers.

Carer’s responsibilities

Ms Gardiner alleges that it is her carer’s responsibilities, which are fulfilled in part by preparing her children for school by 8.50 am Monday to Friday and, on occasion, by conveying them to school, that prevents her relocation to Gosford.

The following options are available to accommodate this responsibility:

· All staff employed under the Inspectors Award have access to flexible working hours as described in the award.

· Flexible working hours clause prescribes flexibility. This includes variation to bandwidth hours . . .

· The Director, Service Delivery Group has indicated that he is prepared to consider applications to change core time to accommodate any reasonable requests from staff. In the case of Ms Gardiner the Director would consider varying the current core time to accommodate a start time which would allow current arrangements for care for Ms Gardiner’s children.

· In regard to the need to attend the regular meetings at Head Office the Director has indicated he is prepared to make arrangements to accommodate Ms Gardiner’s need for a later start in time for these meetings or utilise her deputy to attend at the start of these meetings.

· Ms Gardiner would have discretion in regard to requirements to attend formal and informal meetings in the City, Lindfield and Liverpool offices. To allow a number of days where attendance is already a requirement of her position and would not impose any extra burden than currently exists for attendance at these meetings.

25 Ms Gardiner said that these options did not address all her concerns. In particular, she is concerned that if she starts later, say at 10.30 am, then she has to finish later and that reduces the time she can spend with her children. Being based in Gosford means that in order for travel time to be counted as work time, the travel time must exceed the time it normally takes for her to travel from her home at Maroubra to Gosford. Previously it only had to exceed the time taken to travel from Maroubra to the City. This means that overall Ms Gardiner is spending more hours away from home for the same pay.

26 Direction to work at Gosford. At a further meeting on 8 August 2002 Ms Gardiner had another opportunity to express her concerns about the move to Gosford. On 11 October 2002 Mr Watson wrote to Ms Gardiner directing her to work in Gosford five days per fortnight. The days of the week on which she should attend at Gosford were nominated in that correspondence. Mr Watson said that he nominated the days on which Ms Gardiner should work because she had requested certainty in relation to the days of the week that she would be required to work at Gosford. Ms Gardiner says that she did not make such a request and that she was being bullied. Ms Gardiner says that the arrangements were not acceptable partly because it would still involve her travelling 10 to 15 hours per fortnight more than she had to when her job was based in Sydney.

27 Findings. It is not necessary for us to make a finding about whether Ms Gardiner had requested certainty in relation to the days she would be working at Gosford because the 11 October 2002 memorandum was written after Ms Gardiner’s second complaint was lodged and therefore cannot form part of her complaint before the Tribunal.

28 Structure and organisation of HACS team. The respondent’s evidence was that approximately 500 of its 882 staff are based in Gosford. As team manager, Ms Gardiner has the overall supervisory responsibility for 32 positions, including two line managers, or co-ordinators, who are responsible for the day-to-day supervision of staff. Four of those staff members are located in Gosford, 12 in Liverpool, 6 in Lindfield and 8 in the city. There are five other industry-based teams, the managers of which are based in Gosford, and two geographically based teams, namely Country North Team based in Newcastle and Country South Team based in Wollongong. Ms Gardiner answers to the acting Assistant General Manager of the Occupational Health and Safety Division, John Watson, who is based in Gosford.

29 Inherent requirements of Ms Gardiner’s position. Mr Watson was the Director, Service Delivery Group and Ms Gardiner’s immediate supervisor but is now acting Assistant General Manager. In his view the inherent requirements of Ms Gardiner’s job require that she attend at the Gosford office on “a regular, albeit flexible basis each week.” He maintains that due to the seniority of her position Ms Gardiner does not have to carry out the day-to-day supervision of the inspectors in the HACS team because there are two line managers in the Liverpool and City offices. Other Team Managers gave evidence that they do not have the day-to-day supervision of inspectors, professional officers, project officers or administration staff. Regular attendance at head office is required as that is where all members of Senior Management are based, including Mr Watson. The co-ordination of teams is carried out at head office with the team managers. A large number of ad hoc interactions occur at head office between Team Leaders and with Mr Watson and Team Leaders. Although issues can be discussed by phone or email, it is not as efficient or effective to manage the Teams in that way. Mr Watson distinguished the situation of the Country North and Country South Team Leaders by saying that because they are geographically, rather than industry, based the Team Leaders need to be in the same location as their staff and that they represent all Workcover’s services in these locations.

30 Applicant’s evidence about inherent requirements of her job. In response to this, the applicant said that from a service delivery perspective it was more efficient for her to be based in Sydney. Ms Gardiner says that her team is set up differently from other teams and she is required to supervise members of her team face to face. Basically Ms Gardiner’s argument is that she can meet all the needs of management by attending the Gosford office on an ad hoc basis for scheduled meetings when required. Ms Gardiner submitted that even on the basis of Mr Watson’s evidence, none of her other duties need to be performed in Gosford. She wants to attend Gosford for meetings as required, on the same basis as the Team Leaders of Country North and Country South.

31 Award conditions. Ms Gardiner is covered by the Crown Employees (Work Cover Authority – Inspectors) Award which requires her to work a 38-hour week from Monday to Friday during the hours of 7 am to 6 pm with flexibility in terms of starting and finishing times. An inspector can work during the extended bandwidth hours of 6 am to 10 pm with the agreement of his or her supervisor. Core hours are from 9.30 am to 3.30 pm. The award has various benefits including travelling compensation which entitles the applicant to treat any travel time (after 6 am and before 10 pm Monday to Friday) in excess of the time it takes to travel to her normal place of work as work time or accrual of flex time.

32 The award also provides for dependant care leave which entitles the applicant to leave to arrange or provide short-term care for dependants in the event of illness or other emergency. As part of Ms Gardiner’s package she is provided with a motor vehicle for both private and business use, for a nominal cost.

33 Current situation. Ms Gardiner attended at Gosford briefly in the week of 21 October 2002 before taking a combination of sick leave, recreation leave and extended leave until 20 January 2003. Since returning to work, she says that she has been unable to prepare her children for school on the days she has travelled to Gosford. She arrives home between 5.30 and 10 pm. She has stayed overnight in Gosford on two occasions. When working at Gosford she is only able to see her children either in the morning or the evening, but not both. As of May 2003, she was spending an average of one day per week in Gosford, two days in the City and one day in Liverpool. The remaining day has been spent in various locations.

Does the applicant have responsibilities as a carer?

34 Background. For the purposes of determining whether a substantially higher proportion of persons who do not have responsibilities as a carer (compared with those who do have such responsibilities) comply or are able to comply with a requirement, it is necessary that the applicant be a person who has responsibilities as a carer. The respondent submitted that Ms Gardiner is not a person with responsibilities as a carer as defined by the AD Act and therefore any requirement directed to her cannot be in breach of the Act on that ground.

35 No definition of “responsibilities”. The definition of responsibilities as a carer in s 49S, describes the relationship that must exist between two people in order for an aggrieved person to have carer’s responsibilities. According to the respondent the term “responsibilities” should be given its ordinary English meaning, namely “liable to be called to account, answerable.” (Oxford English Dictionary.) The respondent submitted that the applicant has failed to identify any specific needs or responsibilities that she has as a carer for her two children which have been affected by the requirement to be based in Gosford. The respondent submitted that it could never meet the demands of accommodating a parent who has 24-hour responsibility for the physical, emotional and psychological needs of her children. The applicant argued that carers’ responsibilities involve more than just specific tasks that carers may attend to such as collecting children from school. The term should be interpreted broadly to give effect to parliament’s intention, as expressed in the Second Reading Speech to the Anti-Discrimination Amendment (Carers’ Responsibilities) Bill 2000 to eliminate discrimination on the ground of carers’ responsibilities.

36 Nature of responsibilities. It was the applicant’s submission that Ms Gardiner has responsibilities as a carer, namely the day-to-day care of two of her children, one born on 16 January 1997 and the other born on 2 February 1995. She described those responsibilities as including the need to be available to prepare them for school in a relaxed environment knowing that they have a proper lunch, news for the day, their reading book and their hair done properly. She also said that her responsibilities included meeting the physical, emotional and psychological needs of her children. When giving evidence before the Tribunal, the applicant said that her role as a mother is much broader than tasks that can be outsourced and that she needs to ensure that her children have everything they need. She said that their physical and emotional needs are changing form day to day and that her children are a 24-hour a day responsibility.

37 Approach to determining the meaning of “responsibilities”. The respondent relied on the wording of the Family Responsibilities Recommendation 1981 that governments give attention to “the harmonisation of working hours and hours of schools and child-care services or facilities, and the provision at low cost of the facilities required to simplify and lighten household tasks (Art 11.2).” It was the respondent’s view that the reference to school hours and child care services gives the term its necessary flavour of being required to comply with an obligation such as picking up children at certain times. The respondent also cited decisions including Laz v Downer Group Limited [2000] FCA 1390, where the applicant had obligations to collect her child from child care two days per week and Wannberg v Alloa Holdings Pty Limited (unreported, Ritter JR, 31/7/96) where the Court decided that the need to remain at home in order to care for a terminally ill child constituted a "family responsibility” within the meaning of that term in s 170DF(1)(f) of the Industrial Relations Act 1988 (Cth). The respondent relied on passages in Wannberg v Alloa Holdings Pty Limited summarising parts of International Labour Organisation (ILO) Convention 156 in concluding that the term “carer responsibilities” must equate to some obligation or specific duty.

38 International human rights instruments. The applicant relied on the presumption that a statute is to be interpreted and applied, as far as the language admits, so as not to be inconsistent with the comity of nations and established rules of international law. (Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309). The Tribunal may have regard to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CROC) and International Labour Organisation (ILO) Convention 156, concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities. Where there is ambiguity, courts and tribunals should favour a construction of a statute that accords with the obligations of Australia under an international treaty. (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.) The High Court has said that a common sense approach suggests that Parliament intended to legislate in accordance with its international obligations. (Dietrich v The Queen (1992) 177 CLR 292 at 306-307 per Mason CJ and McHugh J; Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J.) The applicant submitted that it was clearly Parliament’s intention to provide the widest possible protection for people with relevant carer’s responsibilities.

39 Tribunal’s conclusion on definition of carer’s responsibilities. Section 49S defines the relationship which must exist between the aggrieved person and the person who is being cared for, but does not define what is meant by “the person’s responsibilities to care for or support” another person. Unless there is evidence of contrary legislative intention, words used in statutes should be given their ordinary meaning. There is no basis, either in the AD Act itself, or in any external materials, for confining the responsibilities to care for or support another person to particular categories of care or support such as dropping off, picking up or attending to a person who is sick. The phrase is a general one and should be given a broad interpretation in keeping with the human rights purpose of the provision. (See Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J.) We are satisfied that Ms Gardiner has responsibilities to care for or support her two youngest children. Even if she does not have such responsibilities she can rely on the sex discrimination provisions.

Terms and conditions of employment, benefits and detriment

40 Ms Gardiner alleged that WorkCover was in breach of s 49V(2)(a), (b) and (d) in relation to carers’ responsibilities and s 25(2)(a), (b) and (c) of the AD Act in relation to sex discrimination. The applicant submitted that s 25(2) and s 49V(2) of the AD Act in relation to discrimination against an existing employee, should be interpreted in accordance with the approach taken by the Tribunal in Bonella v Wollongong City Council [2001] NSWADT 194 and the State of NSW v Amery [2003] NSWADTAP 16. That is, the Tribunal must ask itself what the relevant “terms and conditions” are for the purposes of those provisions. The applicant’s alternative submission was that if the requirement does not amount to a term or condition of employment, it does amount to subjecting Ms Gardiner to a detriment or disadvantage. (Jeremiah v Minister of Defence [1979] 3 All ER 833.) The requirement to travel to and from Gosford on the days she attends the office is allegedly a detriment. Finally, the requirement amounts to the denial of a benefit associated with employment. The applicant referred to the “benefit of flexible working hours provided by the Award and the flexibility of organising working arrangements as a Manager” as the benefits associated with employment to which Ms Gardiner had been denied or to which access had been limited.

41 According to the respondent, s 49V(1) deals with matters occurring at or before the time that an employment contract is made. Section 49V(2)(a) refers to the terms and conditions which are afforded to the employee after the employment contract has commenced. Consequently, to be a term or condition of employment, the requirement has to have been imposed after the contract came into effect.

42 In our view it is not necessary, in the circumstances of this case, to determine precisely when any requirement was imposed. It is sufficient if the requirement was in existence and part of the employees’ terms or conditions of employment (or a benefit or detriment of that employment) during the period of up to six months prior to a complaint being made to the President of the Anti-Discrimination Board. We give further consideration to this issue below at para 52.

43 In Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 at [39] and following, the Tribunal undertook a detailed analysis of the meaning of the words “terms and conditions of employment.” The Tribunal said, at [39] to [41] that:

. . . 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 Concut Pty 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).

. . .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 . . .

What is intended, we believe, by the words "the terms or conditions of employment which the employer affords the employee" is all of the legal rights given to an employee, and all of the legal obligations cast upon employer, by the various sources identified by Professors McCallum and Pittard in the quotation reproduced in paragraph 39.

44 Adopting this analysis, Ms Gardiner’s terms and conditions of employment can be found in the letters of offer and acceptance, the Crown Employees (WorkCover Authority - Inspectors) Award, the Memorandum for Inspectors and any directions given to Ms Gardiner with which she must comply. The requirement that Ms Gardiner be based in Gosford, as reflected in the memorandum following the meeting on 31 July 2002, is a term or condition of her employment which was in existence during the period of up to six months prior to a complaint being made to the President of the Anti-Discrimination Board. We also find that the requirement, which involved extra unremunerated travelling time, is a detriment within the meaning of that term in s 49V(2)(d) and s 25(2)(c) of the AD Act.

45 The applicant submitted that Ms Gardiner has been denied a benefit associated with employment. That term should be construed broadly as any advantage or opportunity generally provided by the employer (Leonard v Youth Hostels Association of Australia (1995) EOC 92-762 at 78,651). The applicant referred to the “benefit of flexible working hours provided by the Award and the flexibility of organising working arrangements as a Manager” as the benefits associated with employment to which Ms Gardiner had been denied or to which access had been limited. Ms Gardiner has not been denied the benefit of flexible working hours as provided by the Award. “The flexibility of organising working arrangements as a Manager” is not expressed specifically enough for us to determine whether it is a benefit as defined. We cannot identify any “benefit” generally provided by the employer to which Ms Gardiner has been denied access or to which access has been limited.

Elements of indirect discrimination

46 Based on the legislative provisions, the elements of indirect discrimination are:

· the existence of a requirement or condition;

· the aggrieved person is unable to comply with the requirement or condition;

· a substantially higher proportion of men or people without carer’s responsibilities can comply with the requirement or condition; and

· the requirement or condition is not reasonable in all the circumstances.

Requirement or condition

47 In the Amended Points of Claim, the applicant identified the requirement as:

From about 21 October 2002 the Respondent required that transferred staff including the Applicant, perform their duties on a permanent basis from Gosford and have Gosford as the base of their employment.
48 The respondent’s primary submission was that a requirement in relation to the relocation of head office cannot be a requirement for the purposes of the AD Act because the location of an enterprise or activity business it is a matter of managerial prerogative. According to the respondent, the word “requires” should be read restrictively in the light of the purposes of the AD Act, to regulate conditions within the workplace. The applicant’s response to this submission was that even managerial prerogative is fettered by the AD Act because that Act makes certain conduct unlawful.

49 There is no restriction on the kinds of requirement covered by the AD Act as suggested by the respondent. As long as the requirement relates to an area of activity, such as those set out in s 49V(2) and s 25(2) of the AD Act, and it is accurately and appropriately formulated, it will be a requirement for the purposes of the indirect discrimination provisions such as s 49T(1)(b) and s 24(1)(b).

50 The respondent’s second point was that the applicant’s formulation of the requirement suggested that the requirement was not imposed until 21 October 2002. In the course of submissions, the applicant clarified that the requirement was imposed earlier than 21 October 2002 and that it does not matter exactly when it came into effect. We found in our preliminary decision in relation to jurisdiction that the general requirement for head office positions to relocate to Gosford was initially communicated on 2 February 1999 and that it finally came to fruition on 21 October 2002. The respondent reiterated the submissions it made in relation to the preliminary application in relation to jurisdiction, that the requirement to be based in Gosford came into effect on 2 February 1999 which was before Ms Gardiner accepted the offer of the position as team leader for the Health and Community Services group. According to the respondent, there was no imposition of a requirement after the contract was made.

51 As we said in our oral reasons, relying on Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26, even though a requirement will be imposed at a particular point in time, it will often be continuing or ongoing. The indirect discrimination provisions state that one element of indirect discrimination is that the respondent “requires the aggrieved person to comply with a requirement or condition.” There is no need to decide when the requirement was imposed as long as it was in existence within 6 months prior to the applicant lodging a complaint with the President of the ADB.

52 The identification of “the requirement” is a question of fact. (Waters v Public Transport Corporation (1991) 173 CLR 349.) In Australian Iron and Steel v Banovic (1989) 168 CLR 165 Dawson J said, at 185, that "Nevertheless it is necessary in each particular instance to formulate the actual requirement or condition with some precision." In order to precisely identify the requirement, the Tribunal must look at the evidence of what the respondent “required” Ms Gardiner and other Team Leaders to do in relation to relocating to Gosford, during the period from September 2001, six months before the lodging of her complaint, until the date the complaint was lodged on 13 March 2002. The complainant also lodged a second complaint on 25 September 2002 which identified conduct which occurred on 25 March 2002 (response to her memorandum to the General Manager), April 2002 (meeting with Ms Heath) and 16 September 2002 (request to move temporarily into a spare office in Sydney on an interim basis) as forming part of her complaint. Consequently, the relevant period for the Tribunal to identify the requirement is 13 September 2001 to 25 September 2002. Any modification to that requirement which occurred after 25 September 2002 when the applicant lodged her second complaint, cannot be considered. (Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 at [55]; McDonald v Puplick & Ors, unreported, Matter No 30090/97 [1998] NSWSC 428 (12 June 1998).

53 Based on the evidence it is apparent that the requirement for the applicant to be based in Gosford was a general requirement in September 2001. All employees whose position was to be re-located were given other options such as special consideration for relocating their residence to an area closer to Gosford or help in finding another position within the public or private sector. Ms Gardiner met with officers from WorkCover on 11 April 2002, 19 June 2002, 31 July 2002 and 8 August 2002. In its letter to Ms Gardiner dated 15 August 2002 responding to her complaint, WorkCover said that it was “of the sincere view that the suggested arrangements outlined in the document provided to you on 31 July 2002 and which were discussed with you on 8 August 2002 . . . will accommodate your responsibilities as a carer, whilst nevertheless enabling you to perform the inherent requirements of the position.”

54 It is the requirement as expressed in that document which, in our view, constitutes the relevant requirement or condition. We find that the relevant requirement can be summarised as follows:

All Team Industry Managers who wish to continue being employed by WorkCover, be based in Head Office at Gosford and attend at that office for an estimated time of 5 days a fortnight from 21 October 2002.
55 The requirement was qualified by the comment that: “Consideration will be given to varying current core time to allow a later start time when attending the Gosford Office.”

Inability to comply

56 The applicant alleges that she is unable to comply with the requirement to be based in Gosford because it involves an additional 3 to 4 hours travelling time per day. That time is time that she would otherwise be with her children. The additional travelling time also limits her ability to organise her work commitments flexibly.

57 The applicant relied on The State of New South Wales -v- Amery & Ors (EOD) [2003] NSWADTAP 16 at [39] in relation to the interpretation of the words “does not or is not able to comply”:

39 . . . In reply to the submission that the phrase "does not comply" refers to "some immutable characteristic of the individual that prevents him or her ever complying with the relevant condition", Sackville J pointed out that the words "cannot comply" would appear to support that construction, but that the former phrase did not. Relevantly for present purposes, Sackville J said :-
A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement. ... [The] purpose [of the indirect discrimination provision] is satisfied if the relevant individual in fact does not comply with the condition or requirement, regardless of whether the non-compliance flows from some immutable characteristic or from a different cause.
58 The respondent submitted that Ms Gardiner could comply with the requirement to be based in Gosford because she would only have three hours travelling time 2 or 3 days a week and she would be able to see her children off to school because she could apply to modify her core hours so that she was not required to start work until 10.30 am. The respondent also submitted that since 20 January 2003 Ms Gardiner has been attending work at Gosford so she is complying with the requirement. That is not strictly correct. The evidence of the applicant was that she is spending an average of one day per week in Gosford. The applicant maintains that she is not able to comply with the requirement to spend 5 days per fortnight at the Gosford office.

59 The Tribunal considered the meaning of the phrase “does not or is not able to comply” in Bradley -v- State of New South Wales (No.2) [2003] NSWADT 94 at [45]:

45 . . . Courts in the United Kingdom and in Australia have interpreted compliance with a requirement as the ability to comply in a practical sense, rather than a theoretical ability to comply. For example, the fact that a woman could theoretically work full-time, rather than part-time, does not mean that she can comply with a requirement to work full-time, if that does not suit her situation. ( Price v The Civil Service Commission (1977) IRLR 291). This approach has been followed in Australia by Einfeld J in The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228, at p 77,1672, by Wilcox J in Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 at 77, 238 and by the Western Australian Equal Opportunity Tribunal in Speering v Minister of Education (1993) EOC 92-513 at 79,621.)
60 Even if it is accepted that Ms Gardiner can theoretically comply with the requirement, the result or effect of compliance is that she will have less time to spend with her children. Since the purpose of the indirect discrimination provisions is to ensure, as far as possible, that equality of result is achieved, it is those results which must be the focus when interpreting the provision. Based on this analysis, it is our view that the applicant is not able to comply with the requirement.

Substantially higher proportion

61 The respondent conceded that this element of indirect discrimination had been made out. In summary the applicant submitted that the relevant base pool is the nine Team Managers. The correct approach is to compare the proportions of the relevant men or those without carer’s responsibilities who can comply with the requirement with the proportion of women or those with carer’s responsibilities who can comply with the requirement. In this case, of the nine positions, 7 out of 7 (100%) of the managers without carer’s responsibilities could comply with the requirement, while none of the 2 people with carer’s responsibilities (0%) could comply. Similarly 7 out of 7 (100%) of men could comply while none of the two women (0%) could comply. There was no dispute that these figures constitute a substantially higher proportion.

62 Because this matter does not deal with direct sex discrimination, there is no need to make any finding, as to whether having responsibility to care for children is a “characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex” as required by s 24(1A).

Reasonableness

63 Meaning of “not reasonable having regard to the circumstances of the case.” Two helpful decisions on the meaning of reasonableness are Styles v Secretary Department of Foreign Affairs and Trade (1988) EOC 92-239 and Waters & Ors v Public Transport Corporation (1991) 173 CLR 349. In Styles, at 77,240 Wilcox J said that:

A requirement or condition is not to be regarded as “reasonable” merely because it is convenient . . . On the other hand, it seems to me to go too far to say that a requirement or condition is reasonable only where it is shown to be necessary or essential for the proper conduct of the respondent’s business or affairs. . . It appears to me that the proper course . . . is to ascertain the reasons underlying a respondent’s insistence upon the relevant requirement or condition and to ask whether, having regard to such discriminatory effects as it is shown to have and considering the question in a practical and not merely theoretical way, it is, under all the circumstances, objectively justified.
64 In Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 Brennan J at 378, said that reasonableness:
. . . must be determined by reference to the activity ... in which the putative discriminator is engaged. Provided the purpose of the activity ... 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 .... There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity ... ; secondly, whether the activity could be performed .... without imposing a requirement or condition that is discriminatory ... 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 ... 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.
65 The Tribunal is required to balance the nature and extent of the discriminatory effect of the requirement against:
The reasons for the requirement including any commercial considerations;

Whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; and

Whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory.

66 There was no dispute that the onus is on the applicant to show that the requirement is not reasonable. The applicant listed thirteen considerations relevant to the reasonableness of the requirement.

67 Extent of discriminatory effect. The extent of the discriminatory effect on Ms Gardiner is that she will probably not be able to see her children in the mornings and the evenings on the days she travels to Gosford and she will have less time overall with her children because of the extra travelling time. On the basis of working five days per fortnight in Gosford, this would amount to at least 10 hours less per fortnight when the travelling time from Maroubra to the City is deducted. Ms Gardiner did not say that there would be no-one available to care for the children during the time that she was absent, or that she would have to employ someone to do so.

68 Reasons for the requirement. The reasons for the requirement are set out in the Summary of Issues document and in Mr Watson’s oral and written evidence. We accept Mr Watson’s evidence that there were genuine management reasons for relocating Ms Gardiner. Ms Gardiner did not agree with all of those reasons, but that does not make the requirement unreasonable. Based on all the evidence, it is more efficient and effective, from a management point of view, for Ms Gardiner to be based in Gosford. The requirement, which ensures that all industry team managers are based in Gosford and regularly attend at that site, is logical and understandable from a management point of view.

69 Accommodation of needs and less discriminatory option. The respondent made considerable efforts to accommodate Ms Gardiner’s carer’s responsibilities. Ms Gardiner had the option of seeking assistance from WorkCover to find another position either in the public or the private sector if she was unable to re-locate. She was also on notice from February 1999 that it was likely that her position would be re-located. The fact that the advertisement for her position was headed “WORKCOVER IS SCHEDULED TO RELOCATE TO GOSFORD BY 2002” is strong evidence that she knew that it was likely that her position would be moving. It also suggests that in applying for the position she was prepared for a future move to Gosford.

70 A less discriminatory option, according to the applicant, would be for Ms Gardiner to have an office in Sydney and go to Gosford whenever there was a scheduled meeting which she needed to attend. According to the applicant, that would not involve the respondent in any undue expense. While this is a less discriminatory option, it does not achieve the same purpose as being based in Gosford. The opportunity for Ms Gardiner to meet and interact with her staff, colleagues and supervisors at Gosford on a regular and predictable basis is a legitimate management requirement. As we have found, it would result in the more efficient and effective management of WorkCover’s operations than if Ms Gardiner only attended Gosford for scheduled meetings. Balancing the impact that being based in Gosford has on Ms Gardiner’s responsibilities as a carer, we consider that, in all the circumstances, the requirement is reasonable.

Costs

71 Both parties requested that they be given an opportunity to apply for costs after the decision has been handed down. Each party has 21 days from the date of this decision to make such an application. If one or both parties apply for costs, then a directions hearing will be held (preferably by phone) to set down a timetable for the filing of submissions and to decide whether the matter can be determined on the papers.