Howe v Qantas Airways Ltd

[2004] FMCA 242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOWE v QANTAS AIRWAYS LIMITED [2004] FMCA 242

HUMAN RIGHTS – Sex discrimination in employment – long haul flight attendant required to cease flying due to pregnancy – offered and declined ground based work at a reduced salary – refused access to accumulated sick leave – placed on unpaid maternity leave – on return to work sought more flexible working hours – no part time work available at her level – applicant sought and received a demotion to a level at which more flexible working hours were available – whether the applicant was directly discriminated against because of her pregnancy considered – whether the applicant was constructively dismissed by being forced to seek a demotion after maternity leave considered – whether the applicant was indirectly discriminated against because of her sex by being denied part time work considered.

LAW REFORM – Observations on the background to s.7A of the Sex Discrimination Act and on the desirability of legislating comprehensively in respect of family responsibilities discrimination.

Anti-Discrimination Act 1977 (NSW), s.113
Disability Discrimination Act 1992 (Cth), s.5
Equal Opportunity Act 1984 (Vic), s.39
Evidence Act 1995 (Cth), s.144
Family Law Act 1975 (Cth), s.60B
Human Rights Commission Act 1993 (NZ), s.38
Human Rights and Equal Opportunity Legislation Amendment Act (No 2) 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PO, 46PV
Industrial Relations Act 1988 (Cth), s.170EA
Industrial Relations Act 1991 (NSW), s.246
Industrial Relations Act 1996 (NSW), s.70
Occupational Health and Safety Act 2000 (NSW)
Public Transport Act (Vic), s.31
Sex Discrimination Amendment Act 1995 (Cth)
Sex Discrimination Act 1984 (Cth), ss.3, 5, 7, 7A, 7B, 7C, 14, 18, 22, 40
Trade Practices Act 1974 (Cth), s.87
Workplace Relations Act 1966 (Cth), s.111A

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Applicant: LINDY HOWE

Respondent: QANTAS AIRWAYS LIMITED

File No: SZ1373 of 2002

Delivered on: 15 October 2004

Delivered at: Sydney

Hearing dates:

Date last submissions received:

19-21 April, 17 August 2004

31 August 2004

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Ms K Nomchong

Solicitors for the Applicant: Carroll & O’Dea Solicitors

Counsel for the Respondent: Ms K Eastman

Solicitors for the Respondent: Blake Dawson Waldron

Counsel for the
Sex Discrimination
Commissioner: Ms R Pepper

ORDERS

1. The Court declares that the respondent unlawfully discriminated against the applicant by refusing her access to accumulated sick leave between 26 February 2001 and 15 July 2001, contrary to ss.7(1) and 14(2)(b) of the Sex Discrimination Act 1984 (Cth).

2. The respondent is to pay special damages to the applicant, calculated on the basis of the applicant’s salary for sick leave purposes between 26 February 2001 and 15 July 2001, less the value in terms of the applicant’s salary of any sick leave which accrued to the applicant over that period.

3. The respondent is to pay general damages to the applicant in the sum of $3,000.

4. The respondent is to pay interest up to judgment in relation to orders 2 and 3 at the rate of 10.5 per cent, commencing on 26 February 2001.

5. The parties have liberty to apply for further directions and orders in relation to the above orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1373 of 2002

LINDY HOWE

Applicant

And

QANTAS AIRWAYS LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) claiming damages and ancillary relief for alleged unlawful discrimination on the grounds of the applicant’s family responsibilities, her sex and pregnancy. Ms Howe proceeds on the basis of a further amended application filed in court by leave on 19 April 2004. She asserts that Qantas unlawfully discriminated against her on the grounds of her pregnancy within the meaning of s.7(1) of the Sex Discrimination Act 1984 (Cth) (“the SDA”) by breaching the provisions of s.14(2)(a), (b) and/or (d) of the SDA in respect of the period 26 February 2001 to 20 July 2001.

2. Secondly, Ms Howe asserts that she was constructively dismissed by the respondent (by reason of demotion) on or about 13 March 2002 following her return to work after a period of maternity leave. She asserts that Qantas discriminated against her on the grounds of her family responsibilities within the meaning of s.7A of the SDA by breaching s.14(3A) of the SDA. Thirdly, or in the alternative, Ms Howe asserts that Qantas unlawfully discriminated against her on the grounds of her sex within the meaning s.5(2) of the SDA by breaching s.14(2)(a), (b), (c) and/or (d) of the SDA in respect of the period from 19 May 2002 to date, following her return from maternity leave.

3. Ms Howe provides particulars of her claims in a second further amended statement of particulars filed in court by leave on 19 April 2004. 

4. In short, Ms Howe asserts that pursuant to an enterprise agreement and the policy of Qantas in relation to pregnant “long haul” flight attendants (which in general terms equates to flight attendants on international flights) she was required, after falling pregnant, either to take unpaid maternity leave or to seek a ground based position.  She asserts that in February 2001 she was offered ground duties at a substantial reduction in salary.  She asserts that she was also refused access to accumulated sick leave in March 2001.  On 20 July 2001 Ms Howe commenced maternity leave.

5. On 19 May 2002 Ms Howe was due to return to work after her maternity leave.  She claims that she requested alternative and more flexible employment arrangements in order to meet her responsibilities for the care of her baby and another child born previously.  Ms Howe asserts that part time employment was not made available to her at her level of salary and responsibility and she was obliged to accept a demotion from Customer Service Manager (Long Haul) to Flight Attendant (Long Haul) in order to gain access to more flexible working arrangements.  Ms Howe asserts that in being required to cease flying and in being denied access to her accumulated sick leave she was treated less favourably than other employees who were not pregnant.  Ms Howe also asserts that the denial of part time employment on her return to work as a long haul customer service manager was either a constructive dismissal on the basis of family responsibilities or indirect discrimination on the basis of her sex.  Ms Howe seeks general damages as well as special damages for economic loss and/or orders requiring Qantas to institute more flexible working arrangements for her. 

6. The pregnancy in issue was Ms Howe’s second pregnancy.  She had earlier sought relief in relation to her first pregnancy and in relation to an alleged discriminatory industrial agreement.  I ruled that I had no jurisdiction in respect of either of those matters as they were not part of the terminated complaint. 

7. Qantas seeks the dismissal of the application with costs.  Qantas seeks a declaration that, to the extent that its conduct was done in compliance with an award or certified agreement made under the Workplace Relations Act 1966 (Cth), the conduct is not discriminatory by virtue of s.40 of the SDA. Qantas denies any differential treatment based on pregnancy in relation to payment of salary entitlements where the pregnant employee has not ceased flying in accordance with the enterprise agreement. Further, Qantas says that access to sick leave is dependent upon proof of illness or injury, which the applicant could not demonstrate.

8. Qantas denies any constructive dismissal of the applicant, whether by forced demotion or otherwise. Qantas denies that the care of young children is an attribute or characteristic particularly appertaining to women and asserts that if there was any indirect discrimination within the meaning of s.5(2) of the SDA this was a condition, requirement or practice that was reasonable in all the circumstances within the meaning of s.7B of the SDA.

9. On 14 April 2004 I gave leave to the Sex Discrimination Commissioner to appear as amicus curiae pursuant to s.46PV(2) of the HREOC Act.

The legislation

1. Section 5 of the SDA provides as follows:

   (1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

   a)the sex of the aggrieved person;

   b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or

   c)a characteristic that is generally imputed to persons of the sex of the aggrieved person;

   the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

   (1A)To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

   (2)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

   (3)This section has effect subject to sections 7B and 7D.

2. Section 7 of the SDA provides:

   (1)For the purposes of this Act, a person (the discriminator ) discriminates against a woman (the aggrieved woman ) on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of:

   (a)the aggrieved woman's pregnancy or potential pregnancy; or

   (b)a characteristic that appertains generally to women who are pregnant or potentially pregnant; or

   (c)a characteristic that is generally imputed to women who are pregnant or potentially pregnant;

   the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.

   (2)For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman's pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also pregnant or potentially pregnant.

   (3)This section has effect subject to sections 7B and 7D.

3. Section 7A of the SDA provides as follows:

   For the purposes of this Act, an employer discriminates against an employee on the ground of the employee's family responsibilities if:

   (a)the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and

   (b)the less favourable treatment is by reason of:

   (i)     the family responsibilities of the employee; or

   (ii)a characteristic that appertains generally to persons with family responsibilities; or

   (iii) a characteristic that is generally imputed to persons with family responsibilities.

4. Section 7B of the SDA provides as follows:

   (1)A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.

   (2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

   (a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

   (b) the feasibility of overcoming or mitigating the disadvantage; and

   (c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

5. Section 7C of the SDA provides as follows:

   In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.

1. Section 14 of the SDA provides as follows:

   (1)It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status, pregnancy or potential pregnancy:

   (a)in the arrangements made for the purpose of determining who should be offered employment;

   (b)    in determining who should be offered employment; or

   (c)in the terms or conditions on which employment is offered.

   (2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:

   (a)in the terms or conditions of employment that 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;

   (c)by dismissing the employee; or

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

   (3)Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's sex, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

   (3A)It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee.

   (4)Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex or marital status of the member or that other person.

   (5)Subsection (4) does not apply if section 41B applies to that member in respect of that fund.

   (6)In this section:

   "member", in relation to a superannuation fund, includes a person who has been a member of the fund at any time.

2. Section 40(1) of the SDA provides that:

   Nothing in Division 1 or 2 affects anything done by a person in direct compliance with:

   (c)    a determination or decision of the Commission;

   (d)   an order of a court; or

   (e) an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment; or

   (f) a certified agreement (within the meaning of the Workplace Relations Act 1996 ).

The evidence

1. Ms Howe relies upon her own affidavits filed on 24 December 2002 (an amended consecutively numbered version of the affidavit was filed in court on 19 April 2004), 13 June 2003 and 16 April 2004.  The applicant also relies upon the affidavit of Johanna Brem filed on 6 June 2003.

2. In her first affidavit Ms Howe deposes as to her personal and employment history and the enterprise agreement known as EBA IV.  These matters are adequately summarised in the parties’ written submissions and I need not reproduce them here.  Ms Howe deposes that on 23 January 2001, when she was 12 weeks pregnant, she completed a “ground duties prior to maternity leave application form” nominating the date of her confinement as 12 August 2001 and requesting ground duties from 26 February 2001.  Attached to the application form was a medical certificate from Dr Swaran L Nand dated 24 January 2001 certifying that Ms Howe was pregnant and due to deliver on or about 13 August 2001.  Ms Howe deposes that she was offered ground duties in the engineering department as an administration clerk, level 3, year 4, earning approximately $34,000 per annum on 20 February 2001.  The position involved predominantly filing and photocopying.

3. Ms Howe deposes that on 25 January 2001 in the Qantas “Cabin Crew News” a position was advertised for long haul cabin crew to join the service development team in Sydney as cabin crew on ground duties, reporting to the international service development manager.  This item forms annexure E to the affidavit.  Ms Howe deposes that in a conversation with a Mr Jamie Sinclair in training and development at Qantas and a Mr Mitchell, the performance development manager for Qantas, she was told that the only ground duties available to her was the clerical position in the engineering department.  Ms Howe subsequently entered into correspondence with Qantas regarding her treatment during this period of maternity leave, which is annexed to her affidavit.

4. Ms Howe deposes that on 21 March 2001 she wrote to the human resources manager for Qantas requesting the use of 142 days of her sick leave from her accrued bank of 174 days sick leave for the period from 24 February 2001 to 15 July 2001 (which was four weeks prior to her anticipated date of confinement).  This application forms annexure H to her affidavit.  Annexure I to the affidavit is the response from the human resources manager for Qantas denying access to the accumulated sick leave.  Further correspondence on the issue is also annexed.

5. Ms Howe also deposes as to her efforts to obtain more flexible working arrangements when she returned from maternity leave.  She deposes that she wanted to work part time due to her family responsibilities for her two young children.  She sought part time hours in respect of her client service manager position.  She was informed that there were no part time positions available for customer service managers in long haul.  Ms Howe completed a request for alternative employment arrangements on 21 January 2002 for permanent transfer from long haul to short haul flights with a base in Sydney.  She sought a full time position to start with.  This request forms annexure L to her affidavit.  This request was declined on 1 February 2002 (annexure M).  Subsequently, Ms Howe applied for a transfer from customer service manager, long haul to flight attendant, long haul (annexure N).  Ms Howe also deposes as to her non economic loss.

6. In her second affidavit Ms Howe augments her evidence.  She provides further details concerning the enterprise bargaining agreements covering flight attendants.  In paragraph 12 Ms Howe states that she was only seeking to be paid her base salary for the period after which she was prevented from flying by reason of her pregnancy.  Ms Howe deposes as to her understanding of Qantas policy concerning access to leave and part time employment.  Ms Howe responds in detail to the affidavit of Ms Anne Simic.  Ms Howe deposes as to the flexibility gained by working as a flight attendant rather than as a customer service manager.  She deposes that a typical flight to Sydney to Perth and return, which she is able to successfully bid for as a flight attendant, will take her away from her children for 45 hours and 45 minutes on average per fortnight, as opposed to an absence of 207 hours and 15 minutes as a customer service manager for roughly the same number of flight duty credits.  She deposes that having achieved the number of credits derived from such flights she would receive 28 days clear of duty as a flight attendant rather than 20 days clear of duty as a customer service manager.  Ms Howe also deposes that by reason of her seniority as a flight attendant she is able to avoid working on public holidays and weekends and will usually receive her first, second or third choice for holidays.  She deposes that she does not require part time hours of work in the flight attendant category because her seniority allows her to bid for trips in order to fulfil her family responsibilities.  Ms Howe deposes in detail as to her understanding of how the seniority bidding system and allocation of work for Qantas flights operates. 

7. At paragraph 97 of her second affidavit Ms Howe responds to the affidavit of Ms Simic and states again that her claim is for her base salary only from the sixteenth week of her second pregnancy until her confinement and for a job equal to her qualifications and experience on ground duty following the requirement that she cease flying, or compensation for denial of access to medical leave for the same period.

8. In her third affidavit Ms Howe deposes further as to her understanding of EBA IV and responds to the affidavit of Ms Hodby.  Ms Howe takes issue with various matters of detail deposed to by Ms Hodby.  Ms Howe also responds to the affidavit of Ms Cambulat, the affidavit of Ms Bussell, the affidavit of Mr Johnston and the affidavit of Mr Moras.  Ms Howe deposes as to her conversation with Mr Moras on 13 March 2002 when she advised of her decision to “demote herself” from customer service manager to flight attendant.  She deposes that Mr Moras required a request in writing which made clear that the transfer was a voluntary one.

9. I gave the applicant the opportunity to correct and augment her affidavit evidence by way of oral evidence.  Apart from making some minor corrections to her affidavits, which I marked, the applicant explained the basis of her knowledge of the employment practices of the respondent and the experience of other Qantas employees.  The knowledge of the applicant was drawn from conversations with other employees as well as from information memorandums circulated from time to time by Qantas and by the applicant’s union, the FAAA.  Her knowledge also came from her own experience as an employee over many years.

10. On the second day of the hearing I accepted as an exhibit documents in the possession of the applicant from which she drew her knowledge concerning the employment practices of the respondent: exhibit A1.

11. Under cross-examination the applicant confirmed her employment details and the manner in which she was selected to fly on particular flights as a flight attendant or client services manager.  She confirmed that there is a bidding process operating over three week blocks in which available flights are identified and staff bid for them.  More senior staff have preference over less senior staff.  Some flight attendants have a seniority date in the 1960s and the most senior staff get the first pick in the bidding process.  Ms Howe was asked whether she agreed that Qantas has very little flexibility in allocating flight preferences.  She stated that there is an alternative employment committee established within Qantas to deal with exceptional circumstances.  Ms Howe explained that bids from client service managers were dealt with separately from bids from ordinary flight attendants.

12. Ms Howe was asked about her qualifications apart from her qualifications as a flight attendant.  She stated that she had teaching qualification and she had worked as a teacher before joining Qantas.  She also stated that she has basic computer skills.

13. Ms Howe confirmed that her terms and conditions of employment were largely regulated by certified agreements and that the relevant terms and conditions were substantially contained in a certified agreement known as EBA IV.  She confirmed that EBA IV was negotiated between Qantas and the FAAA[1] of which she is a member. Ms Howe accepted that she was bound by clause 49.3.1 of EBA IV which required her to cease flying once she had reached the 28^th week of her pregnancy or had been flying for 16 weeks following becoming pregnant.  She agreed that she was offered alternative ground duties but declined the offer.  She elected to commence her maternity leave.

    [1] Flight Attendants Association of Australia

14. Ms Howe agreed that during her first pregnancy she had accepted ground based work at a reduced rate of pay prior to commencing her maternity leave.  However, she declined the same opportunity when she became pregnant for a second time.  She elected to commence unpaid maternity leave.  She agreed that she had a choice.  She agreed that EBA IV is silent on the question of alternative work being made available to a flight attendant who is required to cease flying by reason of pregnancy.  She also agreed that the EBA makes provision for unpaid maternity leave.  Ms Howe did not work while she was on unpaid maternity leave and did not consider doing so as she remained a Qantas employee.

15. Ms Howe confirmed that she sought access to her accumulated sick leave when she advised Qantas of her second pregnancy.  In response to a question from me she advised that she had consulted a medical practitioner about obtaining a medical certificate verifying that she was unfit for work by reason of the risk of ionising radiation but that medical practitioner was uncertain about the issue and did not issue the certificate. 

16. Ms Howe also accepted that when she was due to return from her first period of maternity leave she wrote to Qantas indicating an intention to return full time as a CSM.  At that time she did not seek part time work.  She returned to work full time as a CSM on 13 November 2000.  Ms Howe confirmed that she expected to return to her old job of client service manager after her second pregnancy.  However, on this occasion, she was interested in working part time.  She knew that she could seek consideration through the flexible employment committee but understood that there were no part time long haul CSM jobs available. 

17. Ms Howe was asked about how parenting burdens were shared between herself and her husband.  She stated that she was the dominant carer for their children.  Her husband is a building contractor with little employment flexibility.  Ms Howe stated that she wanted increased job flexibility in order to have more time available to care for her children.  She considered the options of part time work and seeking a demotion from client service manager to ordinary flight attendant.  She knew that there were few part time positions available and understood that there were none available for CSMs.  She explained that for that reason she did not put her name on the waiting list for part time work until after she accepted a demotion to ordinary flight attendant.  She stated that as a ordinary flight attendant she had a greater opportunity to bid for flights which provided her with more flexible hours as her relative seniority to other flight attendants was higher than her relative seniority to other CSMs.  She was thus able to pick more flights that suited her circumstances.  Ms Howe stated that she found that after accepting the demotion she had sufficient flexibility and no longer required part time work. 

18. Ms Howe was asked about her rate of pay as a CSM and as an ordinary flight attendant.  She was invited by Ms Eastman to agree that the salary of a full time flight attendant was greater than the salary of a part time CSM.  After undertaking calculations invited by Ms Eastman, Ms Howe agreed that this appeared to be the case in respect of base salary but did not take account of additional employment loadings which might make a difference. 

19. Ms Howe confirmed that she seeks general damages but agreed that she had not produced any evidence of any psychological injury.  She has not undertaken psychological counselling.

20. In re-examination Ms Howe stated that long haul flight attendants were commonly away from home base for nine or 10 days.  She stated that she declined to take ground based duties when she had to cease flying during her second pregnancy because of financial concerns and because the duties offered were not commensurate with her skills.  She stated that the job was a filing and photocopying job.  Ms Howe stated that given her teaching background she thought that she could have worked more effectively in training and development of other flight attendants or perhaps have undertaken some project development work.  She stated that she was told that no jobs other than the clerical job was available on the ground.

21. Ms Howe stated that following the completion of her maternity leave she was awarded six weeks pay in lieu of sick leave in accordance with clause 49.3.2 of certified agreement EBA IV without having to prove any illness or injury.

Johanna Brem

1. Ms Brem was formerly the Division Secretary, International, of the FAAA.  She now works for Qantas.  She did not seek re-election to her union position when her term expired in March 2004.  She deposes as to the history of certified agreements EBA IV, EBA V and EBA VI.  She deposes as to the negotiations between the FAAA and Qantas and responded to the affidavit of Anne Simic.  Ms Brem deposes that EBA IV provided for the limited introduction of part time employment and that in EBA V this was extended to first class cabin crew and 10 per cent of Australian based long haul cabin crew.  EBA VI provides for a general review of flexible work arrangements in all work categories.  Ms Brem deposes that it is open to Qantas to provide part time work in excess of that stipulated in the certified agreements should it so wish.  The policy of the FAAA is that part time work should be available to flight attendants with carer’s responsibilities over and above the agreed numbers in the certified agreement regardless of seniority, category or the date on which their application for part time work is lodged. 

2. Ms Brem augmented her affidavit evidence orally.  She provided evidence in response to the affidavits of Ms Hodby.  She confirmed that currently the applicable enterprise agreements do not make any provision for part time work for Customer Service Managers (CSMs) or Customer Service Supervisors (CSSs) but stated that the issue was subject to further negotiation with Qantas.  She stated that flexible working arrangements primarily related to part time work but extended generally to working hours.  Ms Brem stated that clause 30.5 of EBA IV provided for a general 50 per cent rule for ground based duty.  In other words, salary accrues to flight attendants at 50 per cent of their normal rate while they perform ground based work.

3. Under cross-examination Ms Brem was asked about the industrial negotiations between the FAAA and Qantas over the various certified agreements and about the attitudes of the union membership.  She denied suggestions that a majority of members were dissatisfied with EBA VI and stated that it was approved by 53 per cent of the membership. 

4. In response to a question from me Ms Brem said the certified agreements did not prevent Qantas from continuing to pay flight attendants grounded by reason of the prohibition on flying when pregnant in EBA IV. 

The respondent’s case

1. Qantas relies upon an affidavit by Naomi Hodby filed on 15 March 2004 to which there are substantial annexures, including the applicable certified agreements.  Qantas also relies upon affidavits by Sue Bussle and Michelle Cambulat (both filed on 15 March 2004), Paul Johnstone, filed 6 April 2004 and Richard Moras, filed on 8 April 2004.  Each were required for cross-examination.  Qantas also relies on an affidavit by Anne Simic, but she was not required for cross-examination.  Ms Simic provides basic details of the employment of Ms Howe and the terms and conditions of her employment under the certified agreements.

Naomi Hodby

1. Ms Hodby is a crew resource manager employed by Qantas.  In that position she has responsibility for managing the short and long term forecasting of demand and supply of cabin crew and associated logistics, as well as developing and implementing strategies to optimise the utilisation of cabin crew within the parameters of applicable work rules, Qantas policy and brand and marketing objectives.  Ms Hodby deposes as to the industrial environment applicable to flight attendants and also the operational environment.  She deposes as to the role of a long haul flight attendant.  Her affidavit contains detailed evidence on how flight planning and rostering is done.  She deposes as to the seniority bidding system operated by Qantas pursuant to its industrial agreements and how hours of work are calculated.  She deposes as to the pressures these complex arrangements place on Qantas as a commercial enterprise.  She deposes as to transfer arrangements between long haul and short haul employment.  She deposes as to the applicable industrial agreements concerning part time work.  She also deposes as to difficulties experienced by Qantas in implementing part time work arrangements because of the computer based rostering system which could not deal automatically with part time employment.  She deposes as to the negotiations between Qantas and the FAAA in relation to part time work for EBA VI.

1. Ms Hodby deposes in detail as to the operation of clause 49.3.1 of EBA IV. She also deposes as to the maternity leave arrangements under EBA IV. She deposes as to the arrangements made by Qantas to provide ground based duties to pregnant flight attendants unable to continue flying by reason of the operation of EBA IV. She deposes as to the negotiations between Qantas and the FAAA in relation to pregnant flight attendants and maternity leave for the purposes of EBA VI. She deposes that during those negotiations Qantas offered long haul and short haul flight attendants paid maternity leave provided that certain other conditions were traded off. Short haul flight attendants accepted the proposals but long haul flight attendants did not.

2. Ms Hodby augmented her affidavit evidence orally.  She stated that some New Zealand and Thai nationals were employed by Qantas as flight attendants under different terms and conditions than Australian staff.  These New Zealand and Thai nationals were employed under contracts with a labour hire company rather than directly with Qantas.  She also stated that pregnant flight attendants performing ground based duties who are entitled to paid leave receive their flight attendant salary when on that leave.  This is so even though they would be paid at the rate applicable to the ground based duties when working which would generally be less than the flight attendant rate.  Ms Hodby stated that clause 30 of EBA IV which provides for a 50 per cent credit rate of pay to flight attendants performing ground duties only applies to flight attendants performing ground duties as part of their flight attendant’s role (for example, training).  She stated that the rate at which flight attendants were paid when undertaking ground based duties depended on what those duties were and the circumstances under which they were being performed. 

3. Under cross-examination Ms Hodby stated that the inter-relationship between the certified agreements was quite complex.  For example, EBA IV does not stand alone but needs to be read in conjunction with other applicable certified agreements.  She agreed that clause 7.2.9(c) of EBA IV sets out circumstances in which Qantas may withhold payment from an employee.  She stated that clause 16.8 provided additional circumstances.  She agreed that pregnancy was not included but stated that the EBA operated in such a way that once a pregnant flight attendant was prevented from continuing flying they were deemed to be on unpaid maternity leave if no ground based duties were available to them. 

4. Ms Hodby agreed that other employees unable to continue flying by reason of illness or injury would continue to be paid, for example employees injured in a conflict (EBA IV clauses 52.4 and clause 53).  Ms Hodby was asked to agree that there was no industrial agreement requiring pregnant flight attendants performing ground duties to be paid at a lesser rate than their flight attendant rate.  Ms Hodby said that this practice was based on an agreement but she was not able to identify it.  She agreed that the prohibition on pregnant flight attendants continuing to fly in EBA IV was a rule based on the risk of radiation injury to the unborn foetus and that the prohibition had been introduced based on medical evidence.  There was no other reason for the prohibition.

5. Ms Hodby gave evidence as to the way in which sick leave accrues and the rate at which it is paid.  She agreed that sick leave is paid out to pregnant flight attendants on their return to work whether they are sick or not.  This is covered by clause 49.3.2 of EBA IV. She stated that more generous provision is made in EBA VI. 

6. Ms Hodby stated that under the presently applicable certified agreements only about 400 part time jobs are available, or 10 per cent of the total employment pool.  Part time employment is available to ordinary flight attendants but not to long haul CSMs.  She agreed that short haul CSMs can work part time.  She denied a suggestion that clause 15.2 of EBA VI permits additional part time jobs to be added.  Ms Hodby said that this clause provides for a complete renegotiation, not the addition of additional jobs. 

7. Ms Hodby was asked about IT difficulties experienced with the introduction of part time work.  She stated that the computer did not cope well with part time employment and it had to be manually overridden.  She also stated that it is not possible to have a proper audit trail for part time work.  The present system required false dummy entries to be made.  Ms Hodby stated that an entirely new computer system would cost about $30 million and that IT changes were on a “priority wait list”.  Preference is given to updating the IT system by reason of regulatory requirements. 

8. I asked Ms Hodby how clause 49.3.1 of EBA IV operates in practice. She stated that on becoming aware that they are pregnant flight attendants must produce a medical certificate which confirms the pregnancy and identifies the date of conception. It is the medical certificate which forms the basis of the operation of the clause. She stated that no further medical certificate was required from staff for the purposes of accessing maternity leave.

Paul Johnstone

1. Paul Johnstone is a senior financial analyst employed by Qantas.  His responsibilities are financial reporting, management reporting, budgeting and providing financial advice and support to the customer service business (including enterprise agreement costings) for short haul and long haul cabin crew.  He deposes as to the employment history of the applicant during her second period of maternity leave and her payment arrangements.  He has calculated the amounts that the applicant would have earned if she had performed a period of ground based duties prior to commencing her second period of maternity leave based upon various assumptions. He also deposes as to the value of the applicant’s accrued leave entitlements at various points.  He deposes that during the pay period 15 July 2002 to 28 July 2002 Ms Howe was paid a maternity sick leave payment in the gross amount of $7,387.14.  This was a “payout” of her six weeks sick leave entitlement following the resumption of work pursuant to EBA IV. 

2. Mr Johnstone also deposes as to the applicant’s superannuation entitlements.

3. Under cross-examination Mr Johnstone accepted that his calculations on what Ms Howe would have earned had she undertaken ground based duties did not encompass all possibilities.  In particular, he accepted that she would have earned more than he had calculated if Ms Howe had been undertaking ground based duties at the rate applicable to flight attendants performing ground based duties as part of their flight attendants role pursuant to the EBA.

Richard Moras

1. Richard Moras was formerly a performance development manager with Qantas and is now an induction officer.  In his former role he had the responsibility for giving, confirming and correcting feedback to long haul cabin crew regarding their performance, providing support to crew and answering their questions, case management of investigations into employee grievances and customer complaints, and providing HR information to crew about their conditions of employment.  He deposes as to several conversations he had with the applicant in 2002 about her circumstances.  He deposes that Ms Howe expressed to him her intention to downgrade from CSM to flight attendant.  He deposes that Ms Howe was unhappy that she could not work as a part time CSM.  He deposes that the downgrade was Ms Howe’s choice and that Qantas required notice in writing of it.  He deposes that at Ms Howe’s request he arranged for the downgrade to be “fast tracked”.

2. Under cross-examination, Mr Moras stated that he could not recall the detail of his conversations with Ms Howe.  However, he confirmed the contents of his affidavit.  He accepted that a person downgrading from a CSM to flight attendant position lost supervisory responsibilities and hence lost some status.

Michelle Cambulat

1. Michelle Cambulat is a human resources officer with Qantas.  She provides general human resources advice and assistance to cabin crew and managers in relation to issues including wages and entitlements, Qantas employment policies and parental leave.  She has no personal knowledge of Ms Howe or her circumstances.  She deposes as to the number of flight attendants commonly pregnant at one time and the practical arrangements made when flight attendants become pregnant and are required to cease flying.  She deposes as to the arrangements made to attempt to place grounded pregnant flight attendants in ground based jobs prior to their commencement of unpaid maternity leave.  She deposes as to the disincentive that would arise in obtaining ground based positions if Qantas were required to maintain flight attendants at their flight attendants rate of pay while performing unrelated ground based duties.  She also deposes as to the potential industrial complexities given that staff would be paid different rates for doing the same work.

2. Under cross-examination Ms Cambulat confirmed that it is the policy of Qantas not to grant access to sick leave to grounded pregnant flight attendants prior to their commencement of maternity leave.  She went on to say that under EBA V (clause 19), which became operative on 18 July 2002, a payment of six weeks maternity leave can be claimed by pregnant flight attendants at any time while on unpaid maternity leave.  However, that benefit was not available to the applicant at the time she was on maternity leave.  Pursuant to EBA IV the applicant claimed and received a six week sick leave payment following the completion of her second period of maternity leave

Sue Bussle

1. Ms Bussle is General Manager, Industrial Relations of Qantas.  In that role her key responsibilities include the development of industrial relations strategy for the Qantas group and the management of a team of industrial relations managers who are responsible for providing industrial relations advice and expertise to various Qantas business units.  She has no direct knowledge of Ms Howe or her circumstances.  She deposes as to the business structure of Qantas and the industrial representation of its staff.  She also deposes as to the various collective industrial arrangements, the various categories of flight attendants employed by Qantas and the industrial agreements applicable to them.  She deposes as to the different industrial rules applicable to long haul and short haul flight attendants.  She deposes that if, during the term of EBA VI, long haul flight attendants were to become entitled to ground duties paid at the long haul flight attendant base salary rate and continue to accrue all leave entitlements during maternity leave, this would lead to a far more favourable outcome for long haul flight attendants than that set by community standards or that provided to other Qantas flight attendant groups and ground crew employees.  She deposes that this would lead to significant industrial pressure and potential flow on effects to other employee groups. 

2. Under cross-examination Ms Bussle stated that she was not intimately familiar with the detailed provisions of the various certified agreements.  However, she confirmed that long haul flight attendants have no entitlement to paid maternity leave although they continue to accrue leave entitlements while on unpaid maternity leave.  They also now have access to a payout of six weeks sick leave while on maternity leave.  She stated that the history of this condition can be traced back to an industrial agreement entered into in the 1980s and has no medical basis.  She explained the different conditions available to short haul flight attendants who do not accrue leave entitlements while on maternity leave but do receive six weeks paid maternity leave and may receive an additional six weeks paid leave if no ground based duties can be found for them after they are required to cease flying.  She explained that the distinction between short and long haul flight attendants’ access to paid maternity leave arose from the different outcome of industrial negotiations over EBA VI with the two employment groups. 

3. The respondent’s evidence was completed by the presentation of the Qantas parental leave policy as an exhibit: exhibit R1 .

4. Following the conclusion of the presentation of evidence I called for written submissions.  The following written submissions were filed on behalf of the applicant on 28 May 2004:

   Jurisdiction

   1.1This is an application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) claiming orders and damages for unlawful discrimination on the grounds of the Applicant’s sex, pregnancy and family responsibilities in breach of various provisions of the Sex Discrimination Act, 1984 (Cth)(“SDA”).

   1.2Pursuant to leave granted by the Court, the Applicant relies upon the Second Further Amended Statement of Particulars filed on 19 April 2004 as to the facts and matters upon which it is said that the Respondent discriminated against Applicant in breach of the SDA.

   1.3The orders sought by the Applicant are contained in the Further Amended Application filed in Court on 19 April 2004.

   1.4The Respondent’s Response to the Further Amended Statement of Particulars dated 16 April 2004 contains admissions as to some (but not all) of the factual matters. It denies all allegations of discrimination but says, in the alternative, that if there was discriminatory conduct in respect of the claims of direct discrimination, a complete defence pursuant to section 40(1)(f) of the SDA applies. Similarly, the Respondent denies the claim of indirect discrimination, and says if there was such discriminatory conduct, the Respondent is protected by the provisions of section 7B of the Act.

   Burden and standard of proof

   1.5The Applicant bears the burden of proof, on the civil standard, as to the essential elements of the alleged breaches of the SDA.

   1.6The Respondent has the burden of proving any defences available under ss. 7B and 40 of the SDA.

   Relevant facts

   2.1The Applicant is a female who was born on 11 December 1964 and is currently 39 years of age.

   2.2The Applicant is married and her husband is self employed on a fulltime basis as a building contractor. 

   2.3The Applicant has two children, Zac (aged 4 years) and Phoebe (aged 2 years).

   2.4The Respondent, Qantas, operates Australia’s major airline.  It employs approximately 36,000 employees in a variety of occupations.  Its domestic flight operations are referred to as Short Haul and its international operations are referred to as Long Haul.

   2.5The Applicant was employed by the Respondent on 22 August 1988 as a Long Haul Flight Attendant[2] (“LHFA”).

   [2]Applicant’s affidavit sworn 23 December 2002, para 6

   2.6In 1996, the Applicant was promoted (on merit) to the position of Customer Service Supervisor (“CSS”). 

   2.7On 7 December 1998, the Applicant was promoted (on merit) to the position of Customer Service Manager[3] (“CSM”).  The CSM is the most senior category of flight attendant with actual flying duties. The CSM position is QANTAS’ manager on the aircraft and carries considerable supervisory duties.

   [3]Applicant’s affidavit sworn 23 December 2002, para 7

   2.8The Applicant became pregnant with her first child in 1999 and was required to cease flying duties (in accordance with the relevant provisions of the then prevailing Enterprise Bargaining Agreement (“EBA”)) on 2 July 1999 after 16 weeks of flying whilst pregnant[4].

   [4]Applicant’s affidavit sworn 23 December 2002, paras 14, 15 & 16

   2.9Pursuant to the practice of the Respondent, the Applicant was then required to apply for a ground duties position by registering that interest with the Performance Development Manager Administration Desk[5].

   [5]Applicant’s affidavit sworn 23 December 2002, Annexure B: Qantas Cabin Crew Manual, p.160;  see also Affidavit of Johanna Brem sworn 6 June 2003, Annexure D, p. 18

   2.10The Applicant was offered and accepted a position in the Engineering Department as from 5 July 1999 undertaking clerical duties involving mainly photocopying and filing[6].

   [6]Applicant’s affidavit sworn 23 December 2002, para 17

   2.11The Applicant was paid approximately $33,000 per annum, being the wage rate applicable to the clerical position associated with the duties she was undertaking.  The Applicant supplemented her income by using 5 months’ accrued long service leave and annual leave[7].

   [7]Applicant’s affidavit sworn 23 December 2002, paras 18 - 21

   2.12Prior to ceasing flying duties, the Applicant’s annual remuneration as a Customer Service Manager was approximately $90,000 per annum[8].  This represented a base salary of approximately $56,000 per annum plus overtime and allowances.

   [8]Applicant’s affidavit sworn 23 December 2002, para 19

   2.13The Applicant ceased working in the clerical position approximately 4 weeks prior to the birth of her child and proceeded on to maternity leave.  Following the birth of her child, the Applicant remained on maternity leave until 30 November 2000.  At that time, the Applicant returned to duties as a CSM and was paid accordingly[9].

   [9]Applicant’s affidavit sworn 23 December 2002, paras 22-24

   2.14The Applicant made child care arrangements for her child utilising a combination of long day care, a nanny and the assistance of her mother-in-law.  The Applicant’s husband provided some assistance but this was limited by his work commitments[10].

   [10]T48/22-30 (20/4/04)

   2.15The Applicant fell pregnant in late 2000 with her second child, Phoebe, with a due date of confinement of 13 August 2001[11].

   [11]T43/5-8 (20/4/04)

   2.16Pursuant to the abovementioned terms of the prevailing EBA (which was known as EBA IV), the Applicant was required to cease flying duties on 26 February 2001, after completing 16 weeks flying duties whilst pregnant[12].

   [12]Clause 49.3.1 of EBA IV: Affidavit of Naomi Hodby filed 15 March 2004, Exhibit NH3, p. 96

   2.17Thereafter, in accordance with the practice of the Respondent in relation to pregnant long-haul flight attendants, completed an application for ground duties prior to maternity leave nominating the date of her confinement as 12 August 2001 and requesting ground duties as from 26 February 2001[13].

   [13]Applicant’s affidavit sworn 23 December 2002, para 27

   2.18Attached to the application was a medical certificate nominating the due date of confinement[14].

   [14]Applicant’s affidavit sworn 23 December 2002, para 28 -30, annexure D.

   2.19Following that application, the Respondent allegedly undertook a review of available positions within the Respondent’s undertaking to which the Applicant could be allocated for the remainder of her pregnancy or until such time as the Applicant commenced maternity leave.

   2.20As at January 2001 (immediately prior to ceasing flying duties) the Applicant’s total remuneration as a CSM was approximately $95,000 per annum.  The base salary at that level was $64,116[15]. 

   [15]Clause 49.3.1 of EBA IV: Affidavit of Naomi Hodby filed 15 March 2004, Exhibit NH3, p. 120-122

   2.21On 20 February 2001 the Applicant was offered ground duties in the Engineering Department to be paid as an Administration Clerk, Level 3, Year 4 earning approximately $34,000 per annum.  That clerk’s position involved predominantly filing and photocopying.

   2.22This was the only position which was offered to the Applicant who was told “It is engineering or nothing.”[16]

   [16]Applicant’s affidavit sworn 23 December 2002, para 31

   2.23In order to take that position the Applicant would have needed to continue with the paid child care arrangements for her first child, the costs of which would have exceeded the wages from the clerical job[17].

   [17]T72/25-30 (20/4/04)

   2.24On 21 March 2001 the Applicant wrote to the Human Resources Manager for the Respondent requesting the use of 105 days of the Applicant’s accumulated sick leave, on the grounds that she was entitled to such paid leave since the reason that she was precluded from performing her job was because of a health risk[18].  That request was refused on the basis that she did not qualify for sick leave[19].  The curt letters from Ms. Tippett of the Respondent are indicative of the attitude that the Respondent took to the Applicant’s request: see annexures H, I, J and K to the Applicant’s Affidavit filed 23 December 2002.

   [18]Applicant’s affidavit sworn 23 December 2002, para 41, annexure H

   [19]Applicant’s affidavit sworn 23 December 2002, para 42, Annexure I

   2.25The Applicant was later (after returning to work) paid out 6 weeks sick leave in accordance with the Respondent’s policy. Due to the fact that the Applicant had been forced to demote herself to the rank of Flight Attendant on her return to work, that sick leave was calculated on the Flight Attendant rate of pay, not the CSM rate of pay. [20]

   [20]T78/10-17 (20/4/04); Applicant’s affidavit filed 13 June 2003, para 18-21

   2.26The Applicant took maternity leave which was leave without pay.  The Applicant took out a loan to meet the mortgage[21].  The Applicant returned to work on 19 May 2002.

   [21]Applicant’s affidavit sworn 23 December 2002, para 37-8

   2.27Following the birth of her second child, the Applicant had and continues to have family responsibilities in relation to the physical and emotional care of her children.

   2.28According to the Applicant she undertakes 90-95% of the family responsibilities for her children and her husband undertakes the balance[22].

   [22]T80/27-30 (20/4/04)

   2.29The Applicant’s position as a CSM in Long Haul working full time, required her to be absent from home for long periods of time – sometimes up to 10 days at a time[23].  Whilst shorter trips were available, the Applicant was rarely allocated such rosters since the allocation of work was (and is) based on seniority and, amongst CSMs, the Applicant was relatively junior[24].

   [23]T70/17-23 (20/4/04)

   [24]Applicant’s affidavit filed 13 June 2003, paras 43-68, esp paras 44, 63-65

   2.30The Applicant was unable to meet her family responsibilities whilst working full time as a CSM in Long Haul[25].

   [25]Applicant’s affidavit filed 13 June 2003, para 68, 96

   2.31In January 2002, well prior to her proposed return to work, the Applicant approached the Respondent seeking flexible work arrangements to accommodate her family responsibilities.  This request included a number of options being a permanent transfer from Long Haul to Short Haul with the specific base being Sydney[26] or that rosters as a Customer Service Manager at Long Haul be restricted to short trips or that she be provided with part-time hours[27].

   [26]The Applicant was in fact offered a transfer to Short haul but the time frame in which she was required to commence meant the Applicant had to wean her baby and organise child care in two weeks.  The Applicant developed mastitis and withdrew the application.

   [27]Applicant’s affidavit filed 23 December 2002, Annexure L

   2.32At that time, the Respondent advised the Applicant that the only flexible work arrangement available was part-time work.  However, it was not available to CSMs in Long Haul – only Flight Attendants, and, in any event, there was a significant waiting list for part time positions.  No other effort was made by the Respondent to accommodate the Applicant’s family responsibilities.

   2.33The only method by which the Applicant could accommodate her family responsibilities was by downgrading to a position as a Flight Attendant.  By reason of her seniority relative to other Flight Attendants and the fact that work rosters were allocated on the basis of seniority, the Applicant would be allocated rosters which provided for a minimum amount of time away from Sydney[28]. 

   [28]Applicant’s affidavit filed 13 June 2003, paras 69-85

   2.34With her request for flexible work arrangements as a CSM having been denied, the Applicant had no option but to demote herself from Customer Service Manager, Long Haul to Flight Attendant, Long Haul due to her family responsibilities[29].  She did so on 13 March 2002.

   [29]Applicant’s affidavit filed 13 June 2003, para 96

   2.35The downgrade to Flight Attendant meant not only giving up the higher salary but also the status, responsibility, job satisfaction and kudos attached to that position.  There is no guarantee that if the Applicant re-applied for promotion to CSM that she would be successful.  Her application would be considered on merit and only allocated if such positions were available.

   2.36The Applicant returned to work on 19 May 2002 as a Flight Attendant and continues in that position. 

   Relevant legislative provisions

   3.1The relevant provisions applicable to this application are set out below.

   3.2         Sex Discrimination Act 1984 – Sect 5

   Sex discrimination

   (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

   (a)     the sex of the aggrieved person;

   (b)     a characteristic that appertains generally to persons of the sex of the aggrieved person; or

   (c)     a characteristic that is generally imputed to persons of the sex of the aggrieved person;

   the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

   …

   (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved sex as the aggrieved person.

   (3) This section has effect subject to sections 7B and 7D.

   3.3Sex Discrimination Act 1984 – Sect 7

   Discrimination on the ground of pregnancy or potential pregnancy

   (1) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of:

   (a) the aggrieved woman’s pregnancy or potential pregnancy; or

   (b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or

   (c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;

   the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant. 

   (2) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also pregnant or potentially pregnant.

   (3) This section has effect subject to sections 7B and 7D.

3.4        Sex Discrimination Act 1984 – Sect 7B

Indirect discrimination: reasonableness test

(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(c), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.

(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

(b) the feasibility of overcoming or mitigating the disadvantage; and

(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

3.5        Sex Discrimination Act 1984 – Sect 7C

Burden of proof

In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.

3.6        Sex Discrimination Act 1984 – Sect 14

Discrimination in employment or in superannuation

………

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:

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

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

(c) by dismissing the employee; or

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

(3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.

Direct discrimination on the grounds of pregnancy

4.1The Applicant alleges that the Respondent unlawfully discriminated against the Applicant on the grounds of her pregnancy within the meaning of 7(1) of the SDA.

4.2The claim is only made in relation to the events surrounding the Applicant’s second pregnancy.

4.3As at the date of the Applicant’s second pregnancy, the prevailing enterprise bargaining agreement was EBA IV[30].   

[30]Affidavit of Naomi Hodby filed 15 March 2004, Exhibit NH3

4.4Clause 49.3.1(a) of EBA IV provides that pregnant flight attendants must cease flying after 16 weeks flying or no later than the 26th week of pregnancy. On this point the EBA reflects the Award[31].

[31]see clause 27.3.1(b) of Award: Affidavit of Naomi Hodby filed 15 March 2004, Exhibit NH1, p. 48

4.5The basis for the provision is expressed to be by reference to medical evidence and it is common ground that the basis for the provision is because of the danger of radiation exposure to the foetus: see QANTAS Cabin Crew Administration Manual– Long Haul Division (“the Administration Manual”)[32].

[32]Affidavit of Applicant sworn 23 December 2002, Annexure B,  pp.137 – 146]

4.6It is the Applicant’s submission that the increased vulnerability of women and their unborn babies to ionising radiation is a characteristic that appertains generally to pregnant women within the meaning of s 7(1)(b) of the SDA. In HREOC v Mt Isa Mines (1993) 46 FCR 301, Black CJ and Lockhart J accepted that having the characteristic of being susceptible to harm to one’s reproductive function and one’s foetus was a characteristic generally appertaining or generally imputed to females or pregnant females.

4.7The EBA and the Award are silent in relation to what is to occur in relation to the ongoing employment after the pregnant flight attendant ceases flying.  However, cl. 49.3.1 (c) provides that a flight attendant may commence maternity leave at any stage of her pregnancy and is entitled to 52 weeks maternity leave or 40 weeks post birth, whichever is the longer.  There is no provision which allows the Respondent to force a flight attendant to take maternity leave but that is exactly what happens.  If no election is made or no ground duties job can be found, the Respondent simply deems the flight attendant as being on unpaid maternity leave[33].

[33]evidence of Ms. Hodby T76/27-30 (21/4/04); evidence of Ms. Bussell T114/3-5 (21/4/04); T118/22-40 (21/4/04)

4.8The maternity leave is unpaid but counts as service: cl. 49.3.3.  Accordingly, the flight attendant accrues seniority and leave entitlements during her maternity leave.

4.9In practice, what occurs after a pregnant flight attendant ceases flying duties because of her pregnancy, is that the flight attendant may apply for non-flying or ground duties.  Qantas processes that application by allegedly conducting an investigation as to available ground duties and if such duties can be found, they are offered to the flight attendant.  If accepted, the flight attendant undertakes those duties but is only paid the rates of pay applicable to that job.  The flight attendant then undertakes those duties until such time as she commences maternity leave.

4.10If Qantas does not offer or is unable to provide any alternative ground duties, the flight attendant is automatically treated as having commenced unpaid maternity leave.  There was (and remains) no paid maternity leave for flight attendants at the relevant time[34].

[34]evidence of Ms. Bussell T199/1-5 (21/4/04)

4.11In this matter, the Applicant does not make any claim of unlawful discrimination in relation to the direction to cease flying duties after 16 weeks of flying.

4.12In Mayer v A.N.S.T.O. [2003] FMCA 209; (2003) EOC 93-285, this court (at para. 58) divided the question of direct discrimination into a series of components:

(a) Did the Applicant suffer a detriment?

(b) Who was the hypothetical comparator?

(c) Was the Applicant treated less favourably than the comparator?

(d) Was the less favourable treatment on the ground of her pregnancy or a characteristic generally appertaining to women who are pregnant? 

These submissions shall adopt the same approach

Did the applicant suffer a detriment?

4.13The Applicant suffered a detriment when after ceasing flying duties on 26 February 2001, the Respondent failed to pay her wages under her contract of employment during the period up to the date where she would have reasonably be expected to have commenced maternity leave, being 20 July 2001.  For ease of reference in these submissions, I shall refer to that period as “the second pregnancy period”.

4.14This latter date was 3 weeks prior to the due date of confinement but the Applicant’s daughter was born prematurely.  Nonetheless, the Applicant submits that she would not have commenced maternity leave until 20 July 2001 – not being able to know in advance of the premature birth of her daughter.

4.15The question of whether the Applicant has suffered a detriment depends on a positive answer to the question - was the Respondent under an obligation to pay the Applicant during the relevant time period?

4.16The Applicant is employed by the Respondent as a long haul flight attendant based in Sydney.

2.37At all relevant times, the terms and conditions of the Applicant’s employment has been governed by:

(a)the contract of employment between the Applicant and the Respondent;

(b)the relevant industrial instruments being The Airlines Operations – Flight Attendants’ Long Haul – QANTAS – Award 2000 (“the Award”),. and the prevailing Flight Attendants’ Association of Australia – Long Haul Division (QANTAS) Enterprise Bargaining Agreement (“the EBA”).  The Award is made and the EBA’s are certified under the Workplace Relations Act 1996 (Cth);

(c)the common law of employment; and

(d)the relevant legislative provisions such as those included in the Sex Discrimination Act, 1984 or the Occupational Health and Safety Act.

4.17In Byrne and Frew v Australian Airlines Ltd (1995) 131 ALR 422, the High Court confirmed the discrete nature of award provisions as an independent source of rights enforceable by statute and not as implied terms in an employment contract. So it is necessary to consider both the obligations imposed on the Respondent by the contract of employment and under the award and EBA.

The contractual obligation

4.18There is a long line of English authority derived from Hanley v Pease & Partners Ltd [1915] 1 KB 698 at 705 supporting the proposition that where an employer does not provide work, for instance when no work is available, a failure to pay wages in such circumstances constitutes a wrongful suspension of the contract which gives rise to an action for damages for breach of contract. This line of authorities has been affirmed by a number of Australian decisions, notably in Re Application by Building Workers’ Industrial Union of Australia (1979) 41 FLR 192 at 194 and Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 472.

4.19It is accepted that the Respondent was under no obligation to provide work to the Applicant:  Turner v Sawdon [1901] 2 KB 653 at 657; Marbe v George Edwardes (Daly's Theatre) Limited [1928] 1 KB 269 at 288; Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647 at 650 in which Asquith J held:

"It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wages regularly she cannot complain if I choose to take any or all of my meals out. In some exceptional cases there is an obligation to provide work. For instance, where the servant is remunerated by commission, or where (as in the case of an actor or singer) the servant bargains, among other things, for publicity, and the master, by withholding work, also withholds the stipulated publicity."

4.20That principle was more recently upheld by the Full Court of the Federal Court in Ramsey Butchering Services Pty Ltd v Blackadder [2003] FCAFC 20 (21 February 2003).

4.21The Respondent contends that it was not obliged to pay the Applicant since it could not find work for her to do.  Such a proposition is in direct contravention of all established principles. 

4.22It is an established principle of the law of contract that, in the absence of an express term permitting suspension, one party may not suspend his, her or its obligations to the other party”: per Gray J in The Australian Bank Employee’s Union v The National Australia Bank Ltd (1989) 31 IR 436.

4.23In this matter, the contract of employment was continuing and the Respondent was under an obligation to continue to pay the Applicant her wages at the level of remuneration under her contract.

4.24It is not open for the Respondent to assert that wages were not payable since because by reason of her pregnancy she was not ready, willing and able to perform her own obligations under the contract.

4.25In Csomore v Public Service Board of New South Wales (1986) 10 NSWLR 587 New South Wales Court of Appeal, in stating the position at common law, Rogers J (at 596), cited with approval the views of Walton J in Cresswell v Board of Inland Revenue [1984] 2 All ER 713 (at 522; 723-4):

“so far as an employer and an employee are concerned, the promises of pay and work are mutually dependent. No work (or, at any rate, readiness to perform whatever work it is the employee ought to be willing to perform if physically able to do so) –no pay” [emphasis added]

4.26In this matter, it is significant that the duties available to the Applicant under the terms of her contract (and the terms of the EBA) were not restricted to flying duties.  The definition of “duty” in EBA IV specifically refers to ground duty:

“6.23 Duty means flight duty, ground duty, standby duty…”[35]

[35]Clause 6.23 of EBA  IV: Affidavit of Naomi Hodby filed 15 March 2004, Exhibit NH3, p. 9

4.27During the course of her employment, the Applicant had been directed on various occasions to undertake ground duties.  Moreover, there is ample evidence before the Court of ground duties available for cabin crew in customer services, the service desk and in training and development.  In this latter area, ground duties include receiving training and providing training to other cabin crew, a duty for which the Applicant was particularly skilled given her teaching qualifications.  In addition, the Applicant having been fully trained as a CSM would have been able to undertake acting Professional Development Manager roles.

4.28The Award/EBA specifically contemplates the performance of ground duties (see cl. 34.1.1) and the definition given in EBA IV is not exhaustive: cl. 6.37:

“6.37 Ground duty means duty which relates to the employment of a flight attendant and may include but is not restricted to training, lectures, training of others, luncheons and publicity work for the company, but shall exclude standby duty.”[36]

[36]Clause 6.37. of EBA  IV: Affidavit of Naomi Hodby filed 15 March 2004, Exhibit NH3, p. 10

4.29There are specific clauses in the EBA for single day training (cl. 30.5.2) and longer approved training courses (cl. 30.6). 

4.30The Applicant gave evidence as to her knowledge of ground duties that would have been suitable to her skills and qualifications and given her 15½ years experience as a flight attendant.[37].  Ms. Brem also gave evidence of long term ground duties arrangements and payment rates where flight attendants could work for extended periods on the ground[38].  The advertisement for project work in Service Development is a further example[39]..

[37]T74/28-75/9 (20/4/04)

[38]T90/5 -94/25 (20/4/04)

[39]Applicant’s Affidavit sworn 23 December 2002 , Annexure E : p. 178 – both sides

4.31The evidence of the Applicant was that she was ready, willing and able to perform any of those duties and indeed, any other duties for which she was qualified in the second pregnancy period[40].  Accordingly, there was a positive obligation on the Respondent to continue to pay the Applicant at the relevant ground duties rate.

[40]T77/28-31 (20/4/04)

The operation of the Award/ EBA

4.32For some time, there was an uncertainty about the relationship between the contract of employment, collective agreements and awards and their roles as sources of legal obligations. Previously Gregory v Philip Morris Ltd (1987) 77 ALR 79 stood for the proposition that award provisions operated as implied terms in contracts of employment. But since the decision of the Full Court of the Federal Court confirmed by the High Court in Byrne and Frew v Australian Airlines Ltd (1995) 131 ALR 422 the terms of awards have been recognized as an independent source of rights enforceable by statute.

4.33As Brennan CJ, Dawson and Toohey JJ stated in Byrne and Frew (at 427):

“In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide for additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations”.

4.34The contract of employment and the award/EBA co-exist in the employment relationship.   The unilateral alteration of rates of pay or the cessation of wages is not permissible unless by express provision in the contract or award/EBA or by reason of frustration of the contract.

4.35It is common ground that there is no specific provision in the Award or EBA IV which directed the Respondent not to pay the Applicant wages following the cessation of flying duties[41].  The EBA is simply silent as to what occurs.

[41]see evidence of Ms. Hodby T55/17-21 (21/4/04); evidence of Mr. Johnston T80/33-39 (21/4/04);

4.36There are however, specific provisions ensuring that flight attendants receive their minimum base rate of pay.  These provisions are contained in various clauses of the award.  Most notably, clause 30.1 speaks of minimum guaranteed hours in each 56 day bid period.  The EBA contains a definition of Company minimum hours (cl. 6.16). 

4.37The EBA specifically provides that if minimum hours of work are not available, the flight attendant is required to make themselves available for other duties which may arise, but they still get paid the minimum base rate (cl. 37.14). 

4.38Further, the evidence of Ms. Brem was even though payment arrangements for flight attendants on longer term ground duties were not dealt with in the EBA, the practice was that those employees would be paid 5.05 duty hour credits for each 8 hour day for the very purpose of achieving the minimum base salary.  In addition, the practice was to pay flight attendants performing longer term ground duties the 20% skills allowance[42].

[42]T90/5 -94/25 (20/4/04)

4.39It is also trite law that in the absence of a specific stand down or suspension without pay provision in an award or contract, there is no common law right for an employer to do so.

4.40The joint judgment of Deane, Smithers and Evatt JJ, in Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27; 37 ALR 20, (Full Federal Court) supports the proposition that so long as a relevant state of employment exists under an award (at 29; 22):

“…The obligations created therein with respect to payment of salary do not depend upon actual performance of particular duties. Accordingly there being a state of employment to which this award is applicable the obligation to pay salary as and when provided therein is not conditional on work performance. The obligation exists while the relevant state of employment exists.”

4.41It is (or should be) uncontroversial that the relevant state of employment existed between the Applicant and the Respondent during the Applicant’s second pregnancy.  The evidence of Ms. Canbulat, Human Resources Officer for the Respondent was as follows[43]:

[43]T103/15-24 (21/4/04)

“But the flight attendant who ceases duty of flying, their employment
continues.  Is that correct? --- That is correct.
They are still bound by their contract of employment with Qantas in relation
to all the other obligations under the manual and the EBA? --- That is correct.
Indeed, the company Qantas, continues to have obligations towards them
under their contract of employment and their EBA.  That is correct, isn't
it? --- Yes, it is.”

4.42All of the hallmarks of an ongoing employment relationship were evident. Accordingly the Respondent continued to be under an obligation to pay the Applicant at the rate prescribed by the EBA. 

4.43In Csomore v Public Service Board of New South Wales (1986) 10 NSWLR 587 (New South Wales Court of Appeal), Rogers J at 598 acknowledged that the “logical conclusion” of the Full Federal Court’s judgment in Gapes supported the position that an employee was entitled to his full salary even if he completely failed to work.

4.44On this analysis it is clear that the Respondent’s practice of not paying flight attendants who cease flying duties because of their pregnancy at least their base salary was a clear detriment.

Refusal to pay sick leave

4.45The Applicant also alleges that the refusal of the Respondent to pay the Applicant accumulated sick leave for part or all of the second pregnancy period during the second pregnancy period (after the request was made by the Applicant) was a detriment within the meaning of s. 14(2)(c).

1. I find the material referred to by the Sex Discrimination Commissioner and the additional material I have referred to compelling.  Whatever social changes may have taken place in Australia over the past 25 years, women remain the dominant care givers of young children.  I so find.

2. I reject Ms Eastman’s submission, at paragraph 257 of her written submissions, that a construction of s.5(2) of the SDA which leads to a conclusion of indirect discrimination against women by the refusal of part time employment entrenches a stereotypical view that women should be the primary caregivers of young children and is inconsistent with the gender neutral operation of the subsection. Rather, this construction is consistent with the intention of Parliament when s.5(2) was introduced. In that regard, I note paragraph 7.24 of Ms Nomchong’s first written submissions quoting the Attorney‑General on the introduction of the legislation amending s.5(2). The Attorney-General said:

   Tackling indirect discrimination is essential because barriers to equality are often the result of the application of practices, conditions or requirements which appear to be neutral but which in fact impact adversely on members of a particular group … the Bill sets out a simpler definition of indirect discrimination … the focus is on broad patterns of behaviour which adversely affect people who are members of a particular group.[166]

   [166] Hansard, 28 June 1995, page 2460

3. As I said in Mayer v ANSTO at [71]:

   Discrimination under s.5(2) is either established or not by reference to its own terms, not by reference to s.5(1).  …  The issue of family responsibilities is only relevant insofar as it establishes that women tend to be disadvantaged by such a requirement. 

4. Family responsibilities is not necessarily a characteristic appertaining generally to women. The point is that the present state of Australian society shows that women are the dominant caregivers to young children. While that position remains (and it may well change over time) s.5(2) of the SDA operates to protect women against indirect sex discrimination in the performance of that care giving role.

5. In Kelly v TPG Internet Pty Ltd[167] Federal Magistrate Raphael dealt with the issues of pregnancy and indirect sex discrimination. His Honour found that the respondent in that case treated the applicant less favourably than it treated or would have treated an employee who was not pregnant when it promoted her to manager in an “acting position” rather than permanently. This constituted direct discrimination in breach of s.7(1) and s.14(2)(a) and (b) of the SDA. The applicant had also claimed that the refusal of her employer to make available part time work upon her return from maternity leave amounted to indirect sex discrimination. However, she was unsuccessful in this part of her claim. Raphael FM discussed, in particular, the decisions in Hickie and Mayer and distinguished them from the case before him.  His Honour noted that in both of those cases the applicants had been refused benefits that had either been made available to them (as in Hickie) or that were generally available (as in Mayer).   Raphael FM found that there were no part time employees in managerial positions employed with the respondent in the case before him.  In those circumstances His Honour held that the behaviour of the respondent constituted a refusal to provide the applicant with a benefit, rather than the imposition of a condition or requirement that was a detriment.  He accordingly held that the respondent did not unlawfully discriminate against the applicant in relation to the refusal to offer her part time employment on her return from maternity leave.

   [167] [2003] FMCA 584

6. At paragraph 72 of his judgment in Kelly Raphael FM said:

   I accept that family responsibilities can only form a constituent of an act of discrimination in employment in the very limited area of dismissal under s.14(3A), so that there is no unlawful conduct in discriminating against a person by reason of family responsibilities in some other way. For example, by holding a training seminar at a time when it could be clearly established that persons with family responsibilities could not attend. That might be discriminatory in that it subjected such persons to a disadvantage contrary to s.7A(b)(i) but not unlawful because it did not amount to dismissal.

7. If His Honour was intending by that statement simply to explain the operation of s.14(3A) of the SDA then I agree with him. If, on the other hand, he was intending to state that family responsibilities are irrelevant to the consideration of a claim based upon ss.5(2) and 14(2) of the SDA then I disagree with him for the reasons expressed above.

8. At paragraphs 78-79 of his decision in Kelly Raphael FM said:

   As has been recorded, Ms Ronalds argues that there is no discrimination under s.5(2) for two reasons. The first is that the demand to work part time constitutes a form of request for positive discrimination and is therefore not within the compass of the SDA as presently drafted.  The second argument rests on the fact that there is no proof of the requisite type that women are disadvantaged in this particular workplace or that the requirement or condition affects persons of their sex generally. 

   I have come to the view that there is much force in Ms Ronalds’ first argument which is supported by the dicta in Waters and Schou that what is being sought in this case (and was being sought in Mayer) was the provision of a benefit and not the imposition of a detriment.[168]  In my view Hickie was not such a case. The Hunt & Hunt partnership had accepted the continued employment of Ms Hickie on a part time basis but then subjected her to the detriment of taking away her plaintiff practice and not renewing her contract because she would not work full time. Section 5(2) makes it unlawful for a discriminator to impose or propose to impose a condition requirement or practice but that condition requirement or practice must surely relate to the existing situation between the parties when it is imposed or sought to be imposed. The existing situation between the parties in this case is one of full time employment. No additional requirement was being placed upon Ms Kelly. She was being asked to carry out her contract in accordance with its terms. As Harper J said in Schou at [658]:

   “The section does not turn the denial by an employer of a favour to the employee into discrimination, although if the favour is generally available to other employees, its denial to one could conceivably, in the particular circumstances, amount to an offence against the Act.”

   [168] note, however that the proposition that a claim of indirect discrimination is limited to the removal of disadvantage, rather than the securing of an advantage was rejected by the Full Federal Court in Catholic Education Office v Clarke [2004] FCAFC 197 at [93]

9. At paragraph 80 of his decision Raphael FM concluded:

   I would suggest, with respect, that this is what Driver FM was really considering in Mayer.  The evidence in that case was all one way.  There was a refusal of a benefit generally available.  But that is not the evidence here.  The evidence in this case is that there were a number of what is described as “part time positions” in the call room.  On closer examination these positions turned out to be not part time at all but casual.  There is a wealth of distinction between casual employment and part time employment.  Casual employment carries with it no right of continual employment past the regular call ins.  A casual employee is, generally speaking, not entitled to such benefits of employment as holiday pay, sick pay or long service leave.  A part time employee has, generally speaking, fixed hours, her employment is of an ongoing nature and she has the statutory entitlements.  No evidence was called that established that there were any part time employees in any managerial position.  This case is therefore distinguishable from Mayer on that ground. 

10. As Ms Pepper notes in paragraph 29 of her first written submissions the approach of Raphael FM in Kelly presents some difficulties. The first is that it fails to address the role of the term “practice” in s.5(2). The second is that if the refusal of a benefit does not constitute the imposition of a condition, practice or requirement then there could never be a case of indirect sex discrimination based upon the refusal of a benefit. This would leave s.14(2)(b) with very little work to do, if any, in the case of indirect discrimination. Thirdly, Ms Pepper notes that when read together, the decisions in Mayer and Kelly appear to stand for the proposition that an employer who inconsistently provides part time work may be liable under the SDA but an employer who consistently refuses part time work can escape liability. Finally, Ms Pepper submits that by characterising the refusal of the employer to allow Ms Kelly to work part time is a refusal to confer a benefit or an advantage, His Honour conflated the notion of “disadvantage” with the imposition of a condition, requirement or practice. She submits that the two are separate elements of s.5(2) and must remain so if the provision is to operate effectively. Were it otherwise, the section could be potentially left with very little work to do as employers sought to define the act the subject of the complaint in a way that resulted in the conferral of a benefit, thereby escaping the purview of the SDA.

11. The same problem arises in relation to disability discrimination as I recently observed in Hinchliffe v University of Sydney[169].  As I said in paragraph 103 of that decision, it is hard to imagine how a condition or requirement imposed could also constitute a benefit.  It may of course be a detriment.  On the other hand, it is possible that the imposition of a condition or requirement (or a practice) may, by its operation) deny or limit access to a benefit provided by a respondent.  For example, an employer may hold open to employees the option of varying, by negotiation and agreement, the terms and conditions of their employment.  The consensual variation of an employment agreement is in my view a “benefit associated with employment”.  Indeed, the implied term of trust and confidence may require that the parties to an employment contract negotiate in good faith on a variation to the terms and conditions of employment sought by one of the parties to the contract.  If an employer imposes a condition, requirement or practice that such a benefit cannot extend to the introduction of part-time employment, the effect may be discriminatory. 

    [169] [2004] FMCA 85

12. It follows that I disagree with Raphael FM, to the extent that he was saying in Kelly that a consistent refusal of part time work could never be discriminatory for the purposes of s.5(2) of the SDA.

13. An additional argument against a restrictive interpretation of s.5(2) is that it increases the role of direct at the expense of indirect discrimination, with potential adverse consequences. If, as Raphael FM thought was the case in Mayer, an employer grants access to part time work inconsistently in a fashion that discriminates on the grounds of family responsibilities or sex, one might characterise it as a case of direct discrimination.  However, direct family responsibilities discrimination only arises if the inconsistency came about because of the applicant’s family responsibilities.  Direct sex discrimination only arises if the inconsistency came about because of the applicant’s sex. Alternatively, where the inconsistency is not directly family responsibilities or sex based, it might be characterised as a case of indirect discrimination on the grounds of sex that was unreasonable by reference to the practice of providing part time work to some employees.  That is how I characterised it in Mayer.  It cannot be both, direct and indirect.  It has to be one thing or the other. 

14. The issue is complicated by the enactment of s.7A of the SDA which relates to direct discrimination in employment on the grounds of family responsibilities. However, as I have already noted, s.7A, unlike s.7(1) does not cover the field. It is a section with limited operation in relation to dismissal from employment. What is unclear is whether, in the face of s.7A, s.5(1) has any continuing operation where the issue is one of family responsibilities and direct discrimination in employment. If s.5(1) has no continuing operation in those circumstances, then there could be no direct sex discrimination in employment by reason of family responsibilities unless the employee is dismissed. Even then, if s.5(1) has no continuing operation, a refusal of flexible employment, sought in order to meet family responsibilities, that was based on gender rather than on the family responsibilities, would not be unlawful. If there could be no indirect discrimination either, a substantial gap would be left in the operation of the SDA. I have attempted to resolve the issues raised by this case but more issues await resolution. Although it is not necessary to decide the issue in this case, in my view it is likely that s.7A displaces s.5(1) only within the area of the operation of s.7A. In other words, if a refusal of part time employment was made on the basis of gender rather than family responsibilities, s.5(1) would be the operative provision, even though the reason part time work was sought may have been to meet family responsibilities. It would be a very odd result if sex discrimination which had previously been unlawful were rendered lawful by the enactment of s.7A of the SDA. I cannot believe that that is was Parliament intended. These are issues that could be resolved by Parliament. The Government foreshadowed further legislation in 1992. That was 12 years ago.

15. In the case of indirect sex discrimination, an employer may be held liable for refusing access to part time employment upon the basis that it has the effect of disadvantaging women. It does not matter if the employer refuses part time employment to all employees regardless of sex. If an employer adopts a practice of refusing all requests for part time work the consequence may be indirectly discriminatory. This might be characterised as the refusal of a benefit or as the imposition of a detriment for the purposes of s.14(2). It does not follow, as was asserted on behalf of the respondent in Kelly, that an employee would in consequence be able to demand part time employment from an employer. Any employer is entitled to refuse part time employment without breaching the SDA if the refusal is reasonable. In the case of an alleged breach of s.14(2) the applicant would also have to establish that there was, relevantly, the imposition of a discriminatory term or condition of employment, a denial of a benefit associated with employment or that the applicant was subjected to a detriment.

16. In many circumstances, an employer will be able to demonstrate that a refusal of part time work is reasonable.  It was the issue of reasonableness that was dealt with in State of Victoria v Schou[170].  That is all that decision stands for. 

    [170] [2004] VCSA 71

17. In the present case the applicant is unable to prove a case of indirect sex discrimination.  In her first written submissions at paragraph 7.5, Ms Nomchong submits that, when Ms Howe returned to work on 19 May 2003, she was either subjected to the imposition of a discriminatory term or condition of employment or a discriminatory refusal to vary conditions of employment.  I reject that submission.  As I have already noted, in relation to the asserted constructive dismissal, the respondent held open the option of the applicant obtaining part time employment.  The number of part time places available was limited, but that was a consequence of EBA IV[171].  It was not Qantas which imposed any condition, requirement or practice in relation to the number of part time positions available at any time.  Indeed, Qantas did not impose any condition of full time work at all.  The respondent was unable to accommodate the applicant’s request for part time employment at the time it was made because no positions were at that time available.  However, the applicant was invited to apply again when she returned to work.  Secondly, Qantas did not refuse to renegotiate Ms Howe’s conditions of employment.  She sought more flexible working hours.  Qantas could not immediately accommodate the request for part time work but the respondent readily agreed to a subsequent request from the applicant that she be permitted to transfer from her position of client service manager to an ordinary flight attendant position.  The applicant has chosen to characterise that transfer as a “demotion” but, if it was, it was a demotion that the applicant sought and was granted in order to give her the flexibility she needed to provide care for her young second child.  The applicant has failed to satisfy me that she suffered any financial detriment by transferring to a flight attendant position rather than to a part time client service manager position.  The transfer she selected and obtained gave her substantially improved flexibility in terms of her working hours.  The applicant got what she wanted.  More generally, I agree with and adopt paragraphs 272-282 of Ms Eastman’s written submissions.

    [171] clause 8

18. It is unnecessary in the circumstances to consider whether any condition, requirement or practice imposed by the respondent was reasonable.  However, in my view, there is considerable force in Ms Eastman’s submissions at paragraphs 283-348 of her written submissions.

Damages

1. Ms Howe seeks both general and special damages. She has established a breach of s.14(2)(b) of the SDA based upon the refusal by the respondent to grant the applicant sick leave in accordance with her request. In her affidavit evidence, Ms Howe stated that she only ever sought payment of her base salary, however, in written submissions, a greater amount was sought. A claim for that greater amount can only be justified by reference to clause 47.4.7 of the EBA. The applicant is entitled to receive damages calculated by reference to the applicant’s salary for the period of sick leave sought that was denied. As appears in annexure H to Ms Howe’s first affidavit, that was a period of 142 days sick leave from Saturday, 24 February 2001 to Sunday, 15 July 2001. However, Ms Howe did not cease flying duties until Monday, 26 February 2001. That is when she became unfit to fly. She is entitled to receive damages for 140 days until 15 July 2001 at the rate of pay that would have applied to sick leave if clause 47.4.7 of EBA IV had applied in the circumstances. I will leave the calculation of the required amount to the parties. For the whole of that period the applicant was actually on unpaid maternity leave. I accept the evidence before me that, pursuant to EBA IV, the applicant accrued sick leave whilst on maternity leave. The applicant is not entitled to have the benefit of the sick leave she accrued during that period of unpaid maternity leave as she is receiving damages to compensate her for not being granted sick leave for that period. Accordingly, the respondent is entitled to set off in the calculation of the damages payable, an amount equal to the applicant’s salary for each day of sick leave accrued during the period.

2. As to general damages, Ms Howe impressed me as a resilient and composed woman.  Nevertheless, as her correspondence with the respondent shows, the refusal of sick leave was a matter of considerable anguish to her.  Coming of top of the requirement that she cease flying and the unavailability of the ground based work that she sought, the refusal of sick leave caused her considerable distress.  In Mayer I awarded general damages of $5,000.  As is effectively conceded in paragraph 11.6 of Ms Nomchong’s first submissions, in the present case, the respondent’s conduct was not as bad as in Mayer.  I have concluded that an award of $3,000 as general damages is sufficient to compensate the applicant for her non economic loss.  I will so order.

1. Apart from granting declaratory relief I do not need to make any of the other remedial orders sought in the further amended application.  The issue of access to sick leave by flight attendants after they are required to cease flying is now dealt with more comprehensively in EBA V[172]. It is arguable that the clause now covers the field. It follows that the respondent may be able to rely upon s.40(1) of the SDA in the future in relation to that issue. On the other hand, an issue may remain if an applicant seeks more than six weeks sick leave after ceasing to fly when pregnant, in circumstances where a flight attendant who must cease flying due to a different medical condition can access more sick leave. It is not necessary to resolve that issue in these proceedings. No other remedial orders are required.

   [172] clause 19

2. The applicant has sought and should receive interest up to judgment. As in Mayer I will apply a rate of interest up to judgment of 10.5 per cent.

3. I will hear the parties and the Sex Discrimination Commissioner as to costs.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date: 

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,
(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,
(c) an order of the Tribunal,
(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or
(e) -

[NH1]I think it was actually 32 in the copy of the letter I gave you.