Gladdish v State of Queensland
[2012] QCAT 721
| CITATION: | Gladdish V State of Queensland [2012] QCAT 721 |
| PARTIES: | Mr Peter Gladdish (Applicant) |
| v | |
| State of Queensland (Respondent) |
| APPLICATION NUMBER: | ADL029-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 29 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr B Cullen, Member |
| DELIVERED ON: | 31 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Application is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – age – complaint that fire services officer compulsorily retired was discriminated against in being denied back pay following certification of agreement post retirement –indirect discrimination– where it was alleged that term imposed was not reasonable – direct discrimination – respondent found not to have imposed a term – application dismissed. Anti-Discrimination Act 1991 (Qld), ss 10, 11, 15, 106, 106A(1)(h); Fire and Rescue Service Act 1990, s28; Industrial Relations Act 1999 (Qld), ss 164(1) and 166(1)(b); New South Wales v Amery [2006] HCA 14; Waters v Public Transport Corporation [1991] HCA 49. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr John Merrill, Counsel, instructed by Hall Payne Lawyers |
| RESPONDENT: | Mr Max Spry, instructed by Crown Law |
REASONS FOR DECISION
Background
Helpfully, the parties in this matter have filed an agreed statement of facts.[1]
[1] Agreed Statement of Facts, filed on 1 February 2012.
The applicant, Peter Gladdish, was employed for just shy of 35-years as a fire services officer when he was required to compulsorily retire pursuant to s 28 of the Fire and Rescue Service Act 1990, as he had reached the age of 65. This dispute relates to back pay that Mr Gladdish claims entitlement to, and which he would have been eligible for, were it not for his compulsory retirement.
Mr Gladdish retired on 27 October 2009, just 3-weeks prior to the Queensland Industrial Relations Commission’s certification of the Queensland Fire and Rescue Service - Certified Agreement 2009, on 16 November 2009. The Certified Agreement provided for a first wage increase of 4.5% or $34 per week (whichever is greater) for fire service officers, amongst other employees, from 1 July 2009.
Clause 1.2.3 of the Certified Agreement provided that the agreement applied from the date of certification – 16 November 2009. The Respondent employer, the Department of Community Safety, provided back payment of increased wages to fire services officers for work they performed from 1 July 2009. Mr Gladdish did not receive this back payment for the work he performed between 1 July 2009 and his retirement on 27 October 2009, as the Respondent determined that he was not covered by the certified agreement.
Mr Gladdish alleges that he has been indirectly discriminated against by the Respondent, on the basis of his age, and asks the Tribunal to compensate him for the losses he has sustained as a result of the alleged treatment, including the sum of $38,545.71 in past economic loss.
Position of the Respondent Employer
In response to Mr Gladdish’s claim of indirect discrimination, the Respondent says that:
a)It has not imposed a term or condition;
b)The requirement that a fire service officer retire at the age of 65 is a legislative requirement;
c)Pursuant to s 164(1) of the Industrial Relations Act 1999 (Qld) a certified agreement commences operation when it is certified and, pursuant to s 166(1)(b) of the IR Act, a certified agreement binds the employer and ‘all persons who are, while the agreement operates, a relevant employee’;
d)Mr Gladdish was not employed by the Respondent at the time the Certified Agreement took effect; and
e)The term, if any is found to be imposed, was reasonable.
The Respondent submitted that Mr Gladdish’s matter is analogous to New South Wales v Amery [2006] HCA 14, and is contrary to the authority established by the High Court majority in Amery and accordingly should be dismissed.
The law relating to indirect discrimination
Section 11 of the Anti-Discrimination Act 1991 (Qld) provides that:
(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section—
term includes condition, requirement or practice, whether or not written.
Example 1—
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.
Example 2—
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.
I have addressed the requirements of s11, along with the parties’ submissions, below.
Has the Respondent imposed or proposed to impose a term?
Is there a “term”?
Mr Gladdish submits that the Respondent imposed a term, which he referred to as ‘the attendance at work requirement’, that in order to receive the pay increase under the Certified Agreement, he had to be employed as at the certification date of 16 November 2009.
The Respondent argues that it has not imposed a term, and submits that the Tribunal’s focus should be upon the terms and condition of Mr Gladdish’s appointment and, in particular, the compulsory retirement provision contained in s 28 of the Fire and Rescue Service Act 1990.
The “term” that is the subject of this dispute is contained in a Letter from the Respondent to Mr Gladdish’s Union, the United Firefighters’ Union, and not in the Certified Agreement itself.[2] There were some musings made by the Respondent to the effect that if the “term” was not located within the Certified Agreement itself, that the Tribunal could not find that the Respondent had imposed a “term”. I do not agree with this proposition, and instead consider that I am entitled to look broadly at the Certified Agreement and the conduct of the Respondent in determining whether it has imposed a term. The letter from the Respondent to the Union reads, relevantly:
“The Department’s position is that employees who resign or retire their employment from a department prior to the certification of an enterprise agreement are ineligible for any wage increase that is provided under that agreement. This position is consistent with sections 164(1) and 166 of the Industrial Relations Act 1999, and I understand has been on previous occasions articulated by the Government to unions during enterprise bargaining negotiations.”
[2] Document 2 of the Agreed Bundle of Documents, dated 1 February 2012.
Although the High Court’s decision in Waters v Public Transport Corporation [1991] HCA 49 was made in relation to discrimination in the goods and services area, and the matter before me relates to employment, a parallel can be drawn between the treatment of the requirement to “impose” a term in both contexts. In Waters[3], the High Court determined that:
“a person should be regarded as imposing a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed.”
[3] Waters v Public Transport Corporation (1991) 173 CLR 349, McHugh, J. at para 21.
In other words, in Waters the condition imposed preceded the provision of the service (in that case, public transportation). Here, the imposition of a requirement to be employed as at the certification date preceded the entitlement to receive back pay.
Section 11(4) of the Act defines the word ‘term’ under the Act as including ‘condition, requirement or practice, whether or not written’. This definition is broad enough to encompass my election to consider the Respondent’s letter, which expressly stipulates that employees who resign or retire their employment prior to the certification of an enterprise agreement are ineligible for any wage increase under the Certified Agreement, as potentially imposing a term when viewed alongside the corresponding Certified Agreement. This approach is consistent with the broad approach of the High Court majority in Waters. This is not, however, the end of the matter and further attention must be given to whether, if there is a “term”, was the Respondent in a position to “impose” it upon Mr Gladdish. This requires careful consideration of the Amery case.
The impact of New South Wales v Amery
The Respondent submits that Mr Gladdish’s matter is analogous to Amery, and as such, is contrary to the authority established by the High Court majority therein and should be dismissed. In Amery, the complainants (a group of casual teachers) alleged that the New South Wales Department of Education had indirectly discriminated against them on the basis of their sex in breach of the Anti-Discrimination Act 1977 (NSW). In short compass, the complainants’ argument was that as the burden of family responsibilities falls disproportionately upon women, they had placed geographic limitations on the teaching positions that they would accept. As a result of the Teaching Services Act 1980 (NSW), which establishes a system of priority for the filling of permanent teaching positions, prospective teachers who had placed limitations on their willingness to relocate were likely to wait longer to be offered permanent, as opposed to casual, teaching positions. The complainants in Amery were not complaining about this system, and did not dispute their casual status. Rather, they argued that because of this system, they were being underpaid in relation to permanent teachers performing the same work, as permanent teachers enjoyed a higher pay scale. The pay scales for both casual and permanent teachers were set by industrial agreements made under the banner of the New South Wales Industrial Relations Act. Under the industrial agreements, it was possible for a casual teacher to be paid less than a permanent teacher with equivalent teaching experience.
In Amery, there were two issues before the High Court:
1.Did the Department impose a “requirement or condition” for the purposes of s.24(1)(b) of the Anti-Discrimination Act 1977 (NSW); and
2.If it did, was the Department’s requirement or condition “reasonable”?
What was the ‘requirement or condition’?
The complainants in Amery argued that the Department imposed a condition upon them to “have permanent status” as teachers, with permanent status being a pre-requisite to access the higher pay scales.
In Mr Gladdish’s matter now before QCAT, as was the case in Amery, it is the conduct of the relevant Department only that is alleged to be discriminatory. It was for this reason that Chief Justice Gleeson, in Amery, took the approach of differentiating the Department’s conduct from that of the New South Wales parliament in creating the system of priority that led to permanent positions being filled, and the conduct of the New South Wales Industrial Relations Commission in imposing differential permanent and casual pay scales.
Chief Justice Gleeson considered that the relevant conduct of the Department was in not paying casually employed teachers engaged in the same work as permanently employed teachers what would amount to over-award payments. In this sense, his Honour considered that the Department in “required” the respondents to comply with a condition of having permanent employment status in order to access the higher pay scales. In Mr Gladdish’s matter before QCAT, the Respondent similarly argues that paying Mr Gladdish back pay would amount to an over-award payment on the basis that he is not entitled to receive the back pay as he was not employed on the certification date.
Justices Gummow, Hayne and Crennan JJ (Callinan J agreeing) took a different approach from Chief Justice Gleeson (although with the same net result), and rejected the complainants’ characterisation of the requirement or condition they claimed the Department had imposed upon them. Their Honours held that the complainants in Amery did not properly identify the relevant “employment” for the purposes of s.25(2)(a) of the New South Wales Anti-Discrimination Act, which provides (in material part):
(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.
Their Honours held that “employment” in s.25(2)(a) referred to the “actual employment” engaged in by a complainant, not employment in a general sense, stating that:
“The term ‘employment’ may, in certain situations, denote more than the mere engagement by one person of another in what is described as an employer-employee relationship. Often the notion of employment takes its content from the identification of the position to which a person has been appointed. In short, the presence of the word ‘employment’ in s.25(2)(a) prompts the question, ‘employment as what?’”[4]
[4] [2006] HCA 14 at para 68.
As such, their Honours held that, considering the different employment conditions applicable to casual vs. permanent teachers, the complainants in Amery could not be regarded as teachers in a general sense, but must be regarded as “casual teachers”. The result is that the alleged requirement is incongruous with the complainants’ actual employment, as that term was defined.
I am inclined to a similar view in Mr Gladdish’s matter. Mr Gladdish’s Counsel has observed that, when consideration is had to the circumstances in Amery, no term or condition for casual teachers was imposed which required the casuals to cease their employment as casual teachers. Whilst this observation is correct, it is not, in my view, the correct question to pose. Rather, I think that the point made by Justices Gummow, Hayne and Crennan in Amery was that in considering allegations of indirect discrimination in an employment context, it is necessary to consider the nature of the actual employment.
The nature of Mr Gladdish’s employment – was he a “worker”?
Section 11 of the Queensland Anti-Discrimination Act does not make reference to “employment; the relevant term under the Queensland legislation is “work” and is contained within s 15 of the Act:
15 Discrimination in work area
(1) A person must not discriminate—
(a) in any variation of the terms of work; or
(b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
(c) in dismissing a worker; or
(d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
(e) in developing the scope or range of such a program; or
(f) by treating a worker unfavourably in any way in connection with work.
(2) In this section—
dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.“Work” is defined in the “Dictionary” contained in the Schedule to the Act to mean:
work includes—
(a) work in a relationship of employment (including full-time, part-time, casual, permanent and temporary employment); and
(b) work under a contract for services; and
(c) work remunerated in whole or in part on a commission basis; and
(d) work under a statutory appointment; and
(e) work under a work experience arrangement within the meaning of the Education (Work Experience) Act 1996, section 4; and
(ea) work under a vocational placement under the Vocational Education, Training and Employment Act 2000; and
(f) work on a voluntary or unpaid basis; and
(g) work by a person with an impairment in a sheltered workshop, whether on a paid basis (including a token remuneration or allowance) or an unpaid basis; and
(h) work under a guidance program, an apprenticeship training program or other occupational training or retraining program.
As the Respondent points out, Mr Gladdish was not “working” as at the certification date; he was retired. There is no scope within the definition of “work” contained in the Act to include someone who is retired; indeed s15 of the Act in making reference to “forced retirement” surely must be taken to mean retirement where it is forced upon an employee for a discriminatory reason, and not where it is forced because the legislature has seen fit to enact laws that force the retirement. The reason I say this is that there is a general exemption under s 106 of the Act for discriminatory acts done in compliance with other legislation. Section 106 provides as follows:
(1) A person may do an act that is necessary to comply with, or is specifically authorised by—
(a) an existing provision of another Act; or
(b) an order of a court; or
(c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
(d) an existing provision of an industrial agreement; or
(e) an order of the Anti-Discrimination Tribunal.
(2) In this section—
existing provision means a provision in existence at the commencement of this section.The Certified Agreement was not “existing” at the time of the commencement of the Act on 30 June 1992 and therefore not caught by the definition contained in s106. However, s106A(1)(h) specifies that the Act does not prevent compulsory retirement of fire officers within the meaning of the Fire and Rescue Service Act 1990. Read together then, the effect of ss15, 106 and 106A(1)(h) of the Act is that the term “forced retirement” contained in s15 cannot be seen to include retirement which is in compliance with other legislation.
The flow on effect of this is that as Mr Gladdish ceased to be a “worker” on 27 October 2009, there is no “area” of discrimination applicable to him. The Act requires the conduct complained of to happen within particular “areas” of life, and there is not, in my view, scope to extend the “work area” defined in s 15 nor the definition of “worker” to include former workers or retirees for this purpose. That does not, of course, mean that a former worker cannot bring a complaint against their former employer; but it does in my view mean that any relevant complaint must arise while the complainant is a “worker” and not a former worker, as Mr Gladdish is here.
The Respondent has not “imposed” a term
With regard to the argument that the Respondent has imposed a term upon Mr Gladdish, I do not consider that this was possible in circumstances where Mr Gladdish was no longer a “worker”. As at the time of his retirement, the parties ceased to have a relationship whereby it was possible for the Respondent to impose any terms upon Mr Gladdish, as there no longer existed an employer-employee context within which such an imposition could take place. I think consideration of Mr Gladdish’s status as a retiree to be consistent with the direction provided by the High Court in Amery, and also consistent with the legislative intent to permit compulsory retirement and in failing to include “former worker” within the definitional schedule to the Act.
I do note that Mr Gladdish referred to the minority decision of Kirby J at [193]-[195] in support for the assertion that his situation should be distinguished from that in Amery. In Amery, Justice Kirby noted that:
The fact that this “requirement” would cause disturbance of present relatives and might propel a fresh consideration of the award, in light of the Tribunal’s decision under the ADA Act, afforded no reason for denying relief under that Act, where such relief was otherwise warranted.
His Honour went further to note at [194] that ‘laws such as the AD Act are designedly disruptive to some extent’ and ‘challenge settled ways because those ways are all too often infused by inequalities and stereotypes wither expressly provided for or implicitly having that effect’. Mr Gladdish urged the Tribunal that in considering his case, it should not look just at the settled “Industrial Relations” view of the world, and should consider the remedial and beneficial intent of anti-discrimination legislation.
The difficulty I face in accepting that I could find indirect discrimination in Mr Gladdish’s case is one of legislative creation. It has never been the case that anti-discrimination legislation is intended to avoid all perceived inequities; rather the legislature has intended to prevent discrimination on the basis of defined attributes within defined areas of life. The legislature has not extended the definition of “work area” to include retirement, which if it chose to do so, would be a reasonably simple modification to the definitional provisions within the Act.
As I have not found that a term was imposed by the Respondent, it is not necessary for me to consider the “reasonableness” requirement applicable to indirect discrimination.
Order
Mr Gladdish’s complaint of indirect discrimination against the Respondent is dismissed.
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