State of New South Wales v Amery & Ors

[2005] HCATrans 933

[2005] HCATrans 933

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S288 of 2005

B e t w e e n -

THE STATE OF NEW SOUTH WALES

Appellant

and

JOYCE AMERY

First Respondent

LYN BOVARD

Second Respondent

MARGARET DOUGLAS

Third Respondent

JENNY DRURY

Fourth Respondent

LINDA FREEMAN

Fifth Respondent

LEONIE HANCOTT

Sixth Respondent

JACKI IRVINE

Seventh Respondent

DENISE McHUGH

Eighth Respondent

KAREN MORS

Ninth Respondent

CHERYL O’LOAN

Tenth Respondent

MARION PLATT

Eleventh Respondent

MEGAN PURSCHE

Twelfth Respondent

MARCIA SKELTON

Thirteenth Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 NOVEMBER 2005, AT 10.22 AM

(Continued from 15/11/05)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Dr Birch.

MR BIRCH:   Your Honours, if I could begin by handing up a document which sets out a formulation of the requirement or condition issue in answer to the question posed by Justice Hayne yesterday, and I have seven copies that I can hand up to the Bench if that will assist.

GLEESON CJ:   Thank you.

MR BIRCH:   I might also hand up a decision at the same time of Allders v Anstee.  Your Honours, what this attempts to do is this, in the three formulations.  The first form seeks to integrate into 25(2)(a) the definition in 24(1)(b), and I have done that in a compressed fashion by calling it a 24(1)(b) requirement.  The way it approaches the issue is to specify how it is unlawful for an employer to act, namely in requiring an employee to comply with a 24(1)(b) requirement, and then it follows the words of 25(2)(a) in referring to the terms or conditions it affords its employee.

It is a difficult task to integrate the two sections but that, in my submission, does accomplish that and shows how “requirement or condition”, where that is the basis of discrimination, fits into the 25(2)(a) provision.  Then I have identified the 24(1)(b) elements by reference to the facts of this case and similar formulations were touched upon yesterday in that regard, and I do not think that that issue alone is controversial.  Then the third formulation seeks to apply 25(2)(a) to the facts of this case. 

I have used the phrase “a teacher doing regular teaching” to describe the job which is being done.  There is the evidence and matters that I touched on yesterday which we rely upon to show that the job is the job of teaching, not the job of being a casual teacher per se or being a permanent teacher.  The job of teaching is the same whatever your status is.  So being casual or permanent is itself one of the terms or conditions afforded to a teacher. 

So if a teacher is doing regular teaching, we then integrate two concepts into the formulation.  One is the “requirement or condition”; the other is the terms and conditions that are afforded the teacher.  Being eligible for incremental pay rises above the eighth level of the common incremental scale is a part of the terms and conditions afforded a teacher and the requirement that is imposed in a discriminatory fashion is making that conditional upon obtaining a permanent appointment, the 24(1)(b) “requirement or condition”.  That is the manner in which we show the facts integrated into the legislative framework.

HAYNE J:   Were all of the individual teachers concerned teachers who wished to have a permanent appointment in the Department?

MR BIRCH:   Your Honour, the overwhelming number of them had pending applications for permanency.  It is my recollection that there could have been one or possibly two respondents who had not made an application for permanency.  The manner in which we conducted the case was that having a pending application for permanency was not a critical ingredient but obviously if it was, contrary to the submission we make, then those that did have that application succeed and those that did not would not.

HAYNE J:   Thus the sense in which you say in paragraph 1 that “The Department required the respondent to comply with” permanency in the sense in which you say in paragraph 4 that “The respondent does not comply with the requirement” is at least tailored to the particular facts in the cases where those teachers wished to become permanents but wished to become permanents on conditions which the Department could not then or would not then provide.

MR BIRCH:   If I could just use a different example and attempt to show how it would fit even those cases where the teachers did not have a pending application.  If one imagined, for instance, that the Department offered teachers a certain salary but an increased salary if they had acquired a higher degree, for example, then one could readily say having that higher degree was a requirement or condition of being eligible for the higher salary.  It could be the case that there are teachers who are studying for or wishing to and taking steps to attain that higher degree but there could be some who have simply chosen not to pursue it.

One could still say of those teachers, even though they are not actively attempting to fulfil the requirement, that in their position it is still a requirement or condition of them attaining the higher rate.  It is simply a requirement or condition which, as a matter of fact, they will never fulfil at any time whereas those who are taking steps will fulfil in due course and that is, we say, a perfect analogy with the present case.  Those with pending applications for permanency may well in due course fulfil the condition but they will suffer the discriminatory treatment until they do.  Those that do not have a pending application will suffer it indefinitely.

KIRBY J:   But they may never get permanency because the restriction on their availability may be just too severe.

MR BIRCH:   That is correct, that is a possibility.  Your Honours, that is my answer to the questions that were raised yesterday on how we integrate the requirement of permanency into our case in light of the way the Act is drawn. 

Can I then turn to the issues of reasonableness which I have largely dealt with in what I have said yesterday.  I wish to finish the submissions that I had to make on the question of statutory obligations with this point.  Yesterday I addressed the Court as to why, in our submission, the statutory obligations imposed upon permanents are, we say, minor incidents of their tenure as permanent teachers and that they are not matters that would, however viewed, weigh significantly and thus lead to a finding of reasonableness in the Department’s favour. 

Could I turn to the second question because the way in which this issue arose was that the Tribunal looked at the question of statutory obligations and the complaint that was made was that the Tribunal had committed an error by treating them as irrelevant when they should have treated them as relevant.  I wish to just refer to the Tribunal’s finding in order to show that that, in our submission, is not a correct characterisation.  If I could take your Honours to page 1061 in volume 5, at paragraph 43 - the existence of these various statutory obligations was touched upon by the Tribunal in paragraph 41 towards the top of the page as one of the matters the Department had raised.  In paragraph 43 they turned to them in somewhat more detail and said that:

we are of the view that reference to the differences . . . does not assist the Tribunal in determining the pivotal question of comparative work value –

Those words standing alone might suggest that they treated them as utterly irrelevant but, in our submission, that is not correct.  They continue that:

the resolution of the present question does not depend upon an assertion that the women have been discriminated against because their applications for permanency have been refused, but rather whether the work of casual staff equates with that of permanent staff.  The statutory requirements are incidents of permanency as are the vagaries of being a casual teacher.  The incidents of permanent and non-permanent staff appointments clearly differ under the Teaching Services Act 1980, but none of these incidents, in our view, on the evidence before us –

and if can I just pause there and say that shows the Tribunal has not dismissed them from their consideration but has taken them into its consideration in light of other evidence –

bear on the question, whether in the performance of their duties in the Teaching Service long term casual supply teachers do work of lesser value than of permanent staff.

I took your Honours yesterday to the passages in the oral submissions and the written submissions in which these matters were raised by the Department as bearing upon work value.  So that was the relevance that they were offered up to the Tribunal as having.  What the Tribunal did, in our submission, was make a finding of fact that was open to it that they were so slight as to have no weight on that issue.  That we say was a perfectly reasonable or permissible finding for the Tribunal to make on that question.

KIRBY J:   That might be right, but in economic terms if you, say, do work of lesser value than of the permanent staff, you do have to take into account the issue of availability, capacity to be deployed.  All of these things have an economic value.

MR BIRCH:   Your Honour, I acknowledge that.  What I examined yesterday was the practical differences in the operation between the statutory structure for permanents and the position of casuals with their short‑term tenure and that is being alluded to, in my submission, by the Tribunal when they refer to the statutory “incidents of permanency as are the vagaries of being a casual teacher”.  Furthermore, the Tribunal had before it the evidence of the director of personnel operations as to the way schools were staffed.  That was Heather Gray and I referred to her evidence briefly yesterday.  They had before them the Promotion and Transfer manual which I referred to briefly yesterday which showed how schools in out‑of‑the way places can be staffed by inducement system points accumulated and the like, none of which depend upon being compulsorily transferred.

KIRBY J:   Is it your submission that if we read the evidence, and specifically that of Ms Gray, the conclusion that we will arrive at is that although under the Teaching Services Act it looks to be a big thing to have the power to deploy, when the actual way in which staffing decisions are made by this Department, given the very large numbers who have to be deployed, that it really does not play a significant role?

MR BIRCH:   That is exactly our submission, your Honour.

CALLINAN J:   But that may be because teachers understand the inevitability of their having to submit to a transfer, even if it is one they prefer not to have to accept, because they know ultimately they will be bound to accept it if required, and there may not be controversy simply because the Act provides that ultimately they have to go.

MR BIRCH:   In our submission, the evidence before the Tribunal really went the other way.  The evidence shows that there was an agreement in place between the Teachers Federation and the Department which provided for a system whereby you could accumulate points if you went out to – let us assume that a distant small western town is in a less popular location than a seaside town like Coffs Harbour.  If you go to one of those places you can accumulate points which give you a higher priority in then relocating to a desirable school.  Now, what that does is it does not use coercive measures to achieve it.  It simply uses a reward system to achieve it.

Now, that was material before the Tribunal.  I acknowledge that if the evidence was, as your Honour says – it were the case that the threat of exercise of statutory power was permitting the Department to achieve valuable goals, then that would be a matter that would need to be given greater weight, and that was ‑ ‑ ‑

CALLINAN J:   But it is there.  The statutory power is there.  It can always be used, even if as a last resort.

MR BIRCH:   Well, your Honour, what we suggest is that if there is a statutory power – I do not want to suggest it is entirely a dead letter, but if it is close to being properly described as a dead letter, that is a matter that in a factual inquiry of reasonableness is a matter that can be fairly taken into account and the Tribunal could say there is a statutory power.  If the Department regularly exercised it and got benefit from having that statutory power that would be an important matter that might go to reasonableness, but if it does not exercise that power, if it achieves its goals by other means and it rarely, if ever, exercises it then it cannot be a reasonable justification for paying one class of teachers only 80 per cent of the remuneration of another class.

CALLINAN J:   But even a point system is a form of coercion.  “You won’t get the points unless you serve two years at Bourke” or wherever they are sent to ‑ ‑ ‑

MR BIRCH:   That simply means that what happens is you might suffer longer delay in obtaining an appointment to a desirable school.  So what happens is that if you are a person who is prepared to go anywhere you will speed up the process of – and that is something which, as I argued yesterday, touches both the permanent and the casual staff.  When you apply for a permanent appointment you do not have to indicate a willingness to go anywhere, in the same way that when you seek a casual appointment you might seek it just for the school near your home.

CALLINAN J:   If you are an applicant, you are seeking then to impose a condition or requirement upon your employment.  Is that not right?

MR BIRCH:   It is not a condition or requirement in the same way that the Department is stipulating that if you wish to enjoy higher rates you have to achieve permanency.

CALLINAN J:   Why is it not?  If I say to you, “I’m prepared to teach but only at Nowra High School” or, indeed, “only at Nowra High School two days a week”, why is that not a stipulation of a condition?

MR BIRCH:   It is a stipulation, and what your Honour says is, in a practical sense, right.  The teacher is imposing a requirement or condition, but do not forget the requirement or condition we are concerned with is one being imposed by the perpetrator.  So the fact that, for example, the teacher says, “I’ll teach English because that’s the only subject I feel comfortable and competent to teach” is a stipulation or condition likewise.

CALLINAN J:   You cannot confine the debate to the terms of your formulation, and that is what, it seems to me, your case seeks to do.  You really have to look at all of these other factors.  You cannot just view it through the prism that you want to view it through.  It might go to the question of reasonableness, but I think it probably goes beyond that.  It goes to the identification of the condition itself, and it is not nearly as narrow as you are submitting it to be.

MR BIRCH:   Your Honour, the argument has now reached the point where the focus is on one small aspect of the case that was conducted before the Tribunal.  In plucking out the way in which permanency operated in this context of being transferred to schools or the like, it may appear that one is taking a narrow slice through the terms and conditions afforded to teachers.  The Tribunal had before it extensive evidence about the general operation of the education system and the Tribunal looked at and makes findings about the need for flexibility using casuals, the use of casuals in specific ways, and it views it in that broad context.  With respect, we have not narrowed it that much in the way we have brought forward the whole case, but there is not brought forward before your Honours in this appeal the whole gamut of material that was being agitated before the Tribunal.

CALLINAN J:   Could you at some stage give me reference to that evidence about the points when it is convenient, Mr Birch.

MR BIRCH:   I do not want to forget.  If I could just take your Honours to volume 2 at page 541, that is the commencement of the document called “PROMOTION AND TRANSFER:  PROCEDURES FOR TEACHERS”.  That was part of the evidence that was before the Tribunal.  If I go to the Tribunal’s judgment itself ‑ ‑ ‑

KIRBY J:   So we are back to volume 5?

MR BIRCH:   Back to volume 5.  At page 1592 beginning at paragraph 19 towards the bottom of the page, the Tribunal commences a survey of the various issues that are being raised.  It looks at financial and economic considerations and says they were not part of the controversy.  So the possible greater expense to the government if we find in favour of the complainants is not a reason for finding that the conduct was reasonable.  Then over the page they look at continuity and staffing flexibility, then they look at the role of casuals and permanents in paragraph 20.  In paragraph 21 they identify the issue of providing against increase and decrease in student enrolments in particular schools and they refer there to the Promotion and Transfer Procedures Manual.  So that is this question that we have just been addressing.

Then over in paragraph 22 they looked at “changing curriculum patterns” and in paragraph 23 “the need for staff flexibility to address specialised programs”, in paragraph 24 “to provide for rehabilitation programs for teachers”.  Then in paragraph 25, “Another factor identified, was the annual allocation of what was described as unique teacher supplementation”.  It continues.  I will not address them all but what the Tribunal is there doing is picking out one after another of matters that were offered by the Department as important aspects of the staffing arrangements which it said justified its treatment of casuals in the way that it treated them.  In each instance there was a factual finding in favour of the respondent teachers.

CALLINAN J:   A fairly summary disposition of some of the matters.

MR BIRCH:   The summary disposition was in part because a lot of these issues were put forward on the basis that the existence of a pool of casual teachers is important and they are able to dismiss those arguments fairly briefly because the Tribunal concluded that the complainants’ case did not challenge or threaten the existence of the pool of casual teachers.

CALLINAN J:   Some of it seems to me to be on the summary side.  Does the Tribunal deal with the evidence of the point system?

MR BIRCH:   It does not deal with it by analysing it in depth.  What it does is it refers to the issue of – in paragraph 21 on page 1593 it said:

The second issue raised by the respondent concerned the need to provide against increases and decreases in student enrolments in particular schools.

But they then made this comment though:

The issue was not pursued in any detail in the evidence.

So the Department itself was not developing detailed arguments or submissions to flesh out these points itself.  They are being dealt with in a brief fashion in some instances by the Tribunal but that, in our respectful submission, reflects the relatively brief way the arguments were developed by the Department.

CALLINAN J:   How long did the case last before the Tribunal?

MR BIRCH:   I think there was approximately four or five hearing days in total.  About three of those days were taken up with the cross‑examination of witnesses.  There were very close to 20 witnesses called, nearly all of whom were cross‑examined.

CALLINAN J:   And a lot of written material was put in?

MR BIRCH:   There was.  Virtually all the material that was in is in the appeal books.

CALLINAN J:   What I am interested in, Mr Birch, is where I find the point system.

MR BIRCH:   The point system is in the Promotion and Transfer:  Procedures manual.

CALLINAN J:   In volume 2, is it?

MR BIRCH:   In volume 2, that is correct.

CALLINAN J:   If you would just give me that page again because I thought you were going to draw our attention to some part of the Tribunal’s judgment which dealt with it, but apparently the Tribunal did not.  If it is more convenient to do it later do, but you can do it ‑ ‑ ‑

MR BIRCH:   Your Honour, the point is a short one because the way the issue came up before the Tribunal was brief.  There was reference to ‑ ‑ ‑

CALLINAN J:   It may have been short but I am interested in it, Mr Birch.  If you do not want to give it to me, do not, but I am really interested in it.  I think it is relevant and I would really like to see the evidence on it, but if you do not want to do it, do not.

KIRBY J:   There is a reference to calculating transfer points on 553.

MR BIRCH:   Yes.

KIRBY J:   But is your apparent reluctance to enter this because either (a) there was not much evidence, save for the written statement at 553 or thereabouts, or (b) that the evidence suggested that this was a dead letter, that it was not really implemented?

MR BIRCH:   Your Honour, the dead letter argument really arose in the Court of Appeal.  Before the Tribunal there was no analysis of the promotion transfer point system.  The Tribunal were informed of the existence of the system but there was not an argument developed that the Department gains special value from its permanent staff because it can exercise a power or control over them to get them to go to remote places which it cannot exercise over casual staff, but this issue took off, if I can use that phrase, in the Court of Appeal.

CALLINAN J:   That may be, Mr Birch, but I am being completely frank with you to give you an opportunity of dealing with something that I think is relevant and possibly important and it is that the point system itself may have been a system of coercion, perhaps indirect coercion, which made implementation or application of the statutory requirements unnecessary.  It seems to me, with all due respect, that when the Tribunal says that points were not pursued or were not pursued vigorously, that may be to overlook, for example, quite extensive material which was before it in a written form including the points.  I mentioned to you that I thought that the disposition by the Tribunal that some of these matters relied upon by the Department seemed rather summary.  Perhaps matters did not appear to be pursued because they were not discussed at great length orally but they are here and they are here in writing.  I am just giving you an opportunity of dealing with that if you want to. 

MR BIRCH:   Your Honour, I do not want to give the impression I am reluctant to grapple with it and I would certainly be happy to put a note in including all the transcript references we can identify where the matter was raised in the Tribunal hearing.

CALLINAN J:   It may only be an example.  It is not the only one that it seems to me deserved perhaps more lengthy treatment by the Tribunal than it got. 

MR BIRCH:   Its treatment, in our submission, was commensurate with the level of development of that issue.  Can I just perhaps finish the discussion at this point by saying that the argument that there was a benefit for the Department in its permanent staff being able to be sent to, I think Wilcannia was the town picked on in the Court of Appeal which is perhaps unfair to the people of Wilcannia, but the point was put in argument, is there not a special benefit in being able to send permanent staff to Wilcannia and then this led to the discussion about how the Department staffs schools in towns like Wilcannia and whether it does that by exercising its powers under sections 71 and 75 or whether it is done in a different fashion. 

There was no argument before the Tribunal by the Department that it gets a special benefit from its permanent staff in being able to send them to places like Wilcannia and there is nothing I can refer to in the materials or transcript before the Tribunal because it simply did not appear in that fashion.  The material was before the Tribunal in regard to the points transfer system contained in the document but no argument was developed out of it and there was reference to the statutory obligations in sections 71 and 75 but nothing developed in the form of “And this is of value to the Department because this is the way we get teachers to go to Wilcannia”.

KIRBY J:   Could I put to you my concern which is not the same as Justice Callinan but not entirely different.  Would one not, if a statute provides for permanent staff who are officers and also provides elements of coercion in 71 and 75 and has a very large workforce which has to be deployed to a whole range of desirable and less desirable places, would one not infer that those provisions are in the statute for a purpose and are used and are of utility to the Department because it gives them either a large stick  that they may or may not always have to pull out but it is there in their relationship with permanent staff and the inference is almost inescapable that that is of economic and other value to a big employer like the appellant. 

MR BIRCH:   Your Honour, the response that we make to that is that obviously it could have such value but it is ‑ ‑ ‑

KIRBY J:   Would you not have the evidentiary onus to show that it is a dead letter?  It is like the laws of Hamlet’s Denmark.  Do not worry about it.  No one uses it.  It is virtually never used therefore you can forget it.  You would have to show that because on the face of things it is part of the statutory scheme.

MR BIRCH:   Well, with respect, your Honour, if one goes to the evidence that was before the Tribunal led from Heather Gray, that is effectively what the evidence revealed.  If one goes to about volume 4 of the appeal book, that includes at page 1093 the document called the “AGREEMENT BETWEEN THE NSW DEPARTMENT OF SCHOOL EDUCATION AND THE NEW SOUTH WALES TEACHERS FEDERATION ON STAFFING OF PUBLIC SCHOOLS” and that sets out the way in which it is to be achieved. 

At page 1097 there is reference to an incentive scheme and that is to encourage people to take certain appointments.  In paragraph 14 on 1097 there is reference to the transfer points system and the agreement of the Department and the Federation for the implementation, in effect, of an increased transfer point system, and then I have already referred your Honours to the Promotion and Transfer document earlier on and there was the full statement of Ms Gray, and Ms Gray’s statement itself did not suggest at any point that the way in which the Department effects its staffing function is by resort to the power we have over permanent staff.  It was there in absence in one sense but there was also the positive evidence of how that goal was achieved in another fashion. 

Now, your Honour has said to be me we bore the onus, and I accept that that is the case, but the onus is a very hard one in this sense, that there is no limit to the number of matters that could be raised in justification for a condition.  Our argument which we put before the Tribunal and in the Court of Appeal was that there has to be at least some notification of an issue which might be a justifying issue so that we can then fulfil that onus.

KIRBY J:   But is it not staring at you that the whole point of having permanent staff is deployability – unquestioning, obligatory, statutorily supported deployability – and therefore why does it have to be on notice?

MR BIRCH:   Well, to the contrary, your Honour.  When ‑ ‑ ‑

KIRBY J:   It is the very essence of the advantage to the Department on the face of the law.  That really is the essence of their case.  Why else have casuals and permanents anyway?  And the statute contemplates that you will.

MR BIRCH:   The focus on this issue in the Tribunal was the fact that the teacher complainants had restricted the schools to which they would go, so there was not a willingness on their part to go anywhere.

GUMMOW J:   Just picking up that point of Justice Kirby though, this distinction statutory based between permanent and casual, how do you fit that in 25(1)(c) “in the terms on which the employer offers employment”.  Employment as what, because it is upon that that 24 then hangs?

MR BIRCH:   Well, if I can answer it in two steps.  Firstly, I had meant to take your Honours to the decision in Allders International Pty Ltd v Anstee on this point and I omitted to do that.  If I could refer to a statement here in regard to what are the terms and conditions afforded an employee and then use that to answer your Honour’s question.  The passage I wanted to refer to is at page 55.  This was an age discrimination case.  A company had a policy of retiring its men at 65 and its female employees at 60 and the woman who complained had not been aware when she had accepted employment that she would be expected to retire at 60.  There was an issue as to whether retiring at 60 was a term or condition afforded her in her employment and so his Honour Justice Lee looked at that phrase, which is in 25, and at page 55B he said this, and I essentially adopt this as a view of the proper construction of the legislation:

In my view the Tribunal was correct in its finding, the expression “terms and conditions of employment which he affords him” being not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be.

GUMMOW J:   It does not answer this question though, does it?

MR BIRCH:   I can now answer your Honour’s question in this fashion.  What one does is undertake the job of being a teacher and one of the terms and conditions is that you will do it as a permanent or you will do it as a casual because those ‑ ‑ ‑

HAYNE J:   Thus you walk by the distinction drawn in the Teaching Service Act between officers and others?

MR BIRCH:   Yes.

HAYNE J:   And the engagement that is offered is not an engagement as an officer, it is an engagement as a teacher?

MR BIRCH:   What your Honour is suggesting to me is that you can say of this teacher a term and condition of their appointment is that they have been appointed an officer, a term and condition of the appointment of that teacher is that they have been appointed as a temporary teacher under section 50.  But what we say is that one must adopt a practical view of the job that they have been hired to perform.

GUMMOW J:   A practical view too of the statutory structure of this governmental organisation.  You cannot just offer employment at large.  It is meaningless in terms of the Act.  Do you see what I mean?

MR BIRCH:   I understand what your Honour is ‑ ‑ ‑

GUMMOW J:   It is quite different from this private enterprise operation in Allders, I can understand that.

MR BIRCH:   Your Honour, I understand that the Act divides the employees into these two separate categories and what is being put against me is that it involves some conceptual error to suggest that it can be a requirement for one category that they attain the status of another.  But when one looks ‑ ‑ ‑

GUMMOW J:   That seems to be what it all turns on in the end and how you fit that into 24 and 25.

MR BIRCH:   My answer, your Honour, is this ‑ ‑ ‑

GUMMOW J:   You have three pieces of legislation to juggle.  There is the industrial legislation, the Anti-Discrimination Act and the teaching legislation.

MR BIRCH:   Yes.  Your Honour, my answer is ‑ ‑ ‑

GUMMOW J:   And then they do not fit very well.

MR BIRCH:   They do not fit easily.  It requires a degree of argument to see how they can be melded together.  One has to look at the job that is being done, not entirely through the strict legal terms of the contract.  If, for example, one was comparing a teacher performing some function and an entirely different type of teacher performing a different function, the two separate categories point would have some bite, but it is the fact that they perform the same job, in our submission, which is why the argument is available here.

You are not hired to go to the school at whatever it might be and be a history teacher as a casual or a history teacher as a permanent.  You can be meaningfully said to have been hired to go the school to be a history teacher, but it will be a term afforded to you that you do it as a permanent teacher or, alternatively, a term afforded to you that you do it as a casual teacher.

GUMMOW J:   It seems to me in the end you are attacking – and you may be able to do so – but you are attacking through the Discrimination Act the statutory structure of the teaching legislation, and the attachment through the teaching legislation of different criteria.  You want one lot of criteria, which you like, attached to your category when they are otherwise not attached to it, and you never sought employment in what I might call the preferred category.

MR BIRCH:   Your Honour, our response to that would be this.  If what we were seeking to attack was a matter that was required by the legislation, then that would be an answer to our case.  But the Director-General has power, if he so wished, to pay casual teachers above the eighth level.  Why the eighth level?  Why not the seventh or the ninth or the 10^th or the 12^th?  He has chosen to pay them only up to the eighth level.  Now, that of course historically has to do with the existence of the award, but he is not obliged by any provision of the Act to restrict their payment in that fashion.

GLEESON CJ:   As between permanent teachers, what is it that gets them above the eighth level?

MR BIRCH:   It is increase in seniority, service.

GLEESON CJ:   Just seniority?  What about obtaining a higher degree?

MR BIRCH:   No, not as I understand it.  It is service.

GLEESON CJ:   Thank you.

MR BIRCH:   I am told that what happens is you start at a higher level if you have a higher degree; it is the same for casuals.  So you do not start on step one – I do not think anyone starts on step one any longer.  You might start on step three or four, depending on whether you have a four‑year degree or a three‑year degree or whatever.

KIRBY J:   Would not the Auditor-General or the Minister or somebody else be breathing down the Director-General’s neck if he started paying above‑award wages?  This is how it has always been.  The award has been hard fought because it is the true wage paid.

MR BIRCH:   Our submission is that while that might once have been the case, the existence of the Anti-Discrimination Act and the provisions I have taken your Honours to has changed that, and the Director-General would now be able to say to the Auditor, “I have to pay above the award so as not to engage in an act of discrimination”, indirect ‑ ‑ ‑

KIRBY J:   But he would have to do that step one for women, and then because of that outcome he would have to then do it for all men and thereby remove the distinction between casual supply teachers and permanent staff, which the statute contemplates.  I can understand pitching the Anti‑Discrimination Act against the award because the statute allows you to do that, but you cannot put the Anti-Discrimination Act, unless there is some element of inconsistency, against the Teaching Services Act because the latter is very specific.

MR BIRCH:   Your Honour, paying them equally would not abolish the distinction.  The key distinction would remain that a teacher with permanent appointment can expect a job until retirement or dismissal for cause.  A casual cannot expect employment beyond their current term.  They may be rolled over, they may not.  So it is the enjoyment of – I will not call it a job for life, but a job for an extended period as opposed to a short‑term job.  That is the key incident of permanency and all we are tinkering with is the rate of remuneration.  While it is a significant consequence that might be said to flow from the case, we simply say that is now the effect of the law.  That must be the case in many indirect discrimination cases.  Wherever you can find a condition or requirement and attack it under the provisions of 24(1)(b), then flow‑on effects of the sort described here could well be expected.

Your Honours, I think I have dealt as best I can with the point that was raised by Justice Callinan and our ultimate response to that in any event is that these were factual findings of the Tribunal.  The attack that was launched on those factual findings was on a relatively restricted front, at least in the Court of Appeal, and it is on a particularly restricted front in this Court and we say that the material before the Tribunal justified it. 

Could I just refer in that regard finally to the decision of Justice Beazley herself in volume 7 at page 2289.  The operation of section 75 was referred to by her Honour in paragraph 30 on that page and that is where she made reference to the Department’s explanation that it was not exercised in so draconian a fashion, but her Honour dealt with the legal issue at page 2322 commencing at paragraph 125.  She analysed the statutory provisions regarding transfer and the way they operated in light of the material.  Then over the page at paragraph 128 her Honour there said:

It is apparent that in reaching that finding –

and she set out immediately above the matter that I referred to earlier in the Tribunal decision –

the Tribunal did not treat the differences in statutory conditions as irrelevant.  Rather, it found that the transfer requirements placed upon permanent teachers were such that they did not assist in determining the work value issue.

We say this was just a relatively banal factual issue determined one way by the Tribunal and that her Honour was correct in finding that that was its nature and it was within the scope of the Tribunal’s power to make that finding.

Your Honours, the other key element in regard to the issue of reasonableness was the relationship between the conduct of the Department on the one hand and the award on the other.  I went in some length into this yesterday and what I was seeking to argue was that the existence of the award did not presumptively render the Department’s practice reasonable because of the history and nature of the award, the way it had come into existence and other factual matters.

But once again, the issue really has in fact come to this Court on a narrower basis and the way it has come to this Court has been formulated by Justice Hodgson in his dissenting judgment.  He identified the issue initially at page 2342.  What divided Justice Hodgson from the majority in the Court of Appeal was this question of whether in fact it had really been put in the Tribunal in a fashion that fairly obliged us to answer it.  The majority’s finding was that it had not and that is what the matter was that divided Justice Hodgson and the majority.  At page 2342, at the very bottom of the page, his Honour identified this issue of error, he said, on the Tribunal’s part:

Failing to give weight to the existence of the enterprise agreement and award, independently of the reasonableness of the enterprise agreement or award, as a factor bearing on reasonableness.

A lot of what I had to say yesterday was that the award itself had internal flaws if you viewed it from the perspective of the Anti‑Discrimination Act and its principles.  I will not recapitulate what I had to say about Justice Bauer’s judgment.  What Justice Hodgson suggested was whether the award is good, bad or indifferent, there could be an argument for an employer that if it relied on the existence of an award – and one can understand, at least at an intuitive level, if one did not have something like a government department but a small employer who said, “Well, look, I’ve paid my employees the award.  It is a bit tough to come along and now say ‘You’ve paid them the award and yet you engaged in an unlawful conduct.’”  Now, that might be a telling point for an employer with 10 employees running a small machine factory but the Department was in fact a party to the award.

GLEESON CJ:   Did the evidence show whether the Department paid anybody over‑award payments in any circumstances?

MR BIRCH:   Yes.  The evidence of Heather Gray – it is referred to in our written submissions, we have given the reference – was to the effect that they paid each and every employee only whatever the award specified.

GLEESON CJ:   Yes, because if they did not you could presumably have endless work value disputation as between permanent teachers, for example.

MR BIRCH:   Only if they were able to launch some form of action grounded in some law which entitled them to do it.  We do not suggest that this would be the one and only anti‑discrimination case ‑ ‑ ‑

GLEESON CJ:   No, I do not think that is right.  I am not talking about litigation.  If the Department adopted the practice or a policy under which it was willing to consider making over‑award payments in appropriate circumstances, why would the appropriate circumstances be limited only to cases of sex discrimination?  Why would not the way be open for some permanent teachers to say, “We ought to be paid more than those other permanent teachers for this or that reason”?

MR BIRCH:   Obviously, a teacher could write to the Department and say, “I’m a very highly qualified and exceptional teacher; pay me more” and the Department, on Ms Gray’s evidence, would write back – this was touched upon, and there was a question from the presiding judicial member.  The evidence was the Department would simply say, “No.”

GLEESON CJ:   It seems to me inherently unlikely – in fact, if I may say so, it seems to be inherently incredible – that the work value of all permanent teachers is the same.

MR BIRCH:   Your Honour, we would acknowledge that there would be differences in the skill and value of different teachers and we acknowledge the Department probably has to govern remuneration by a system of rules, but the fact that it has to be rule governed does not relieve them of the obligation of ensuring that they have non-discriminatory rules.

GLEESON CJ:   But it is not unusual.  I mean, the same might apply to judges.  They all get paid the same.

MR BIRCH:   Your Honour, it is possible that the implications of the anti‑discrimination laws just have not yet been fully felt.

GLEESON CJ:   My point is a different one and it is related to what Justice Hodgson said.  It is understandable that the Department would have a policy of paying nobody over the award because once the Department adopted a policy of being prepared to consider applications for over‑award payments as a matter of principle then there is no reason why you would limit the applications you would consider to applications on the ground of sex discrimination.

MR BIRCH:   There would be this reason, we would submit, that if you did not alter the rules to comply with the Anti-Discrimination Act you would run risk of engaging in unlawful behaviour, but if a group of teachers simply wrote and said, “We think all teachers with a higher degree should be paid more”, or whatever, and the Department wrote back and said, “No”, that is the end of the debate.  There is no foothold those teachers have to demand or insist upon a change of rules. 

So one can say this, that there are indeed two categories; there are alterations of rules to comply with anti-discrimination law and there are all the other possible alterations with the Department presumably will just reject because it is not obliged to entertain them and has a policy of not entertaining them.

GUMMOW J:   Do you have that reference to the non-payment of above‑award remuneration?  You said there was a reference in your submissions to it.

HAYNE J:   It is page 338.  It is referred to in your submissions at paragraph 29, I think.

MR BIRCH:   Yes, it appears in the transcript.

KIRBY J:   Apart from anything else, the bureaucratic convenience of just paying award would be enormous whereas if you start having individual assessment it would be a tremendously complicated thing in such a big workforce.

MR BIRCH:   Your Honour, we acknowledge that you could not assess all 75,000‑odd people individually but, on the other hand, the way we put our case with the eight-week limit was one which we say was amenable to a rule.  There has never be a single suggestion that the Department’s computer could not have coped with the rule modification that would have flowed from our case.  Indeed, the Department’s computer coped with the 100‑day principle introduced by Justice Bauer presumably without too much disruption.

KIRBY J:   Yes, but the suggestion is that once you open Pandora’s box then all sorts of problems arise.  You say, “Too bad.  There is the Anti‑Discrimination Act and we are not concerned with all the other problems; we are just concerned with problems that run into the Anti‑Discrimination Act”, and that is your foothold.  It is either good or it is bad, but that is what it comes down to.

MR BIRCH:   Indeed, it is a heavy onus.  A teacher would have to bring forward and succeed in establishing conduct in breach of the Anti‑Discrimination Act.  That is a heavy burden for a teacher to undertake.  At page 338, I think, Justice Hayne identified for me there is the passage where ‑ ‑ ‑

GUMMOW J:   Line 35.

MR BIRCH:   Yes, and at line 40 the judicial member asked why only the award was paid:

If somebody is worth more, why shouldn’t they be paid for it?

That is the point that was put to me in argument by the Chief Justice a moment ago.  Ms Gray said:

I suppose we have an industrial award that has set the pay rates, and we pay in accordance with the award.

Q.       That’s the Teachers Federation.  Why should they set the rates for particularly worthy people?
A.       Well, at the moment, we are not free-wheeling.  We have an industrial award that does set our rates for permanents and does set our rates for casuals.  We haven’t gone down the line like independent schools, where they are paying on performance, perhaps, or paying on qualifications.

Now, what that does is say this, “We have a policy, we follow inflexibly the award”, but it does not say, “and we do it because if we abandoned it then it would lead to some significant prejudice, inconvenience or the like”.

Your Honours, I just wanted to deal finally with the way in which Justice Hodgson had formulated that question and then just show the way the majority dealt with it.  At page 2345 at line 20 the question was crystallised in this fashion.  The Tribunal, Justice Hodgson said:

did not address the very existence of the enterprise agreement and award as a factor relevant to reasonableness, in that what had to be shown was that it was not reasonable for the Department to make over-award payments to supply casual teachers.  For reasons given above, in my opinion what then would have to be shown to not reasonable was failing to make over-award payments available to all supply casual teachers, not just to women or to teachers with commitments to children.

We accept that that is a correct way of posing the question and his Honour then answered it at page 2347 in paragraph 202, and I referred to this yesterday.  He uses the phrase “having regard to the various matters”:

it is prima facie reasonable for the Department not to make over‑award payments to one class of persons dealt with by an award -

I have said already what I want to say as to why his Honour should not have put it in that fashion, but his Honour puts it still more strongly again when he goes on to then add:

It may be that, if there are no reasonably arguable grounds for class differences, it would not be reasonable to maintain those differences -

Now, what we say is that was the factual finding we got, that there was no reasonably arguable basis for them.  His Honour then said:

but in my opinion there are here at least arguable grounds, in terms of work value, statutory requirements and degree of commitment.  I do not think a finding by a non-industrial tribunal that these arguable grounds do not, on the balance of probability, justify differences in payment, is sufficient to show that it is not reasonable for the Department to refrain from over-award payments -

What his Honour has done, we say, is this.  His Honour has essentially rejected the factual finding of the Tribunal, in part because it is a non‑industrial tribunal, that it has gone beyond its proper scope and I have said yesterday as to why, in our submission, that is wrong.  The majority dealt with this matter at page 2329 in paragraph 147.  Her Honour said:

I have now had the advantage of reading in draft the judgment of Hodgson JA.  In my opinion, the conclusion reached by his Honour is based on arguments and issues that either were not argued at all in the Tribunal or before the Appeal Panel, or were not sufficiently raised so as to be squarely in issue.

That was what divided the majority and the minority.  Justice Hodgson accepted that he had formulated it in a fashion different from that put by the Department but he contended that it was within the terms of the notice of contention.

We have traced through the history in our written submissions and I will not repeat that, but it comes down to this, that the appellant effectively undertook the task in this appeal of showing that the majority were wrong, that they had raised it in a fashion that made it fair for those findings to be made against us that were suggested by Justice Hodgson.

GLEESON CJ:   Does paragraph 147 mean that there was no disagreement between Justice Beazley and Justice Hodgson on the matters to which you have just been referring?  Justice Beazley simply said that for the reasons she gave in paragraph 147 she would not entertain those considerations.

MR BIRCH:   Well, your Honour, I would be speculating as to whether her Honour, had she considered them capable of being entertained, would have then made the same finding as Justice Hodgson.  I do not know.

GLEESON CJ:   I was not inviting speculation.  It is the case, is it, that we do not find any reasoning of Justice Beazley contradictory of the reasoning of Justice Hodgson?  We find on Justice Beazley’s part a refusal to entertain the additional condition – the considerations.

MR BIRCH:   We find the reference in her judgment to the statutory provisions and suggestions that they do not have as great a weight as other people may ‑ ‑ ‑

GUMMOW J:   That is paragraph 116, is it not?  Paragraph 116 and following?

MR BIRCH:   I am indebted to your Honour.

GLEESON CJ:   Let me put the question to you this way.  What were the considerations that Justice Beazley said she would not entertain?

MR BIRCH:   They were – I am interpolating - the matters that were contained in paragraph 202 of Justice Hodgson’s judgment, at least they included the matters in 202.  On the reasonableness issue that was the key matter upon which his Honour was prepared to substitute a finding in favour of the Department against a finding for the complainants.

GLEESON CJ:   So then in relation to those matters it all comes down to a question of whether or not Justice Beazley was right in refusing to consider them?

MR BIRCH:   Yes, and our submission is this, that if it is true that they were not properly raised and we were not given an opportunity of fairly answering them, then the appeal should not be upheld on that ground.  It was correct of her Honour to deny to the appellant the opportunity of developing a new argument effectively in the Court of Appeal or possibly in the Appeal Panel, depending on what you can glean out of it.  So it comes down to this.  Was it in truth the case that before the Tribunal the argument was put in a fashion that put it fairly before the Tribunal?  Now, what is the argument ‑ ‑ ‑

GUMMOW J:   The Court of Appeal was not hearing an appeal from anything.  The Court of Appeal was hearing an “appeal”.  The Court of Appeal was exercising original jurisdiction.  The question is what is the ambit of that jurisdiction?

MR BIRCH:   Well, it was ‑ ‑ ‑

GUMMOW J:   State courts are always straying to this idea - it is not a real appeal.  It is an exercise of original jurisdiction assigned to the Court of Appeal by the presence, it seems, of this described judicial member.

MR BIRCH:   Your Honour, even accepting that what Justice Hodgson was doing by the time one got to paragraph ‑ ‑ ‑

GUMMOW J:   Not a Suttor v Gundowda Case at all.

MR BIRCH:   Well, what his Honour was doing, if one assumes this was rehearing on the merits, was rehearing on the merits conducted with the agreement of the Department on the materials that were available, but without the opportunity of recalling witnesses and cross‑examining witnesses.  What we say is this, that if one picks out the matters that were identified by Justice Hodgson, they were matters that might have been dealt with either by fresh evidence or by cross‑examination of Ms Heather Gray as to the operation of the Department’s staffing operation and that might have been a full answer to why the award did not have to be followed.  After all, Heather Gray’s evidence was simply that we follow the award.  She had not gone on and said we follow the award because if we did not follow the award we would experience particular problems, and the Department had never identified one.

GUMMOW J:   I would have thought that is obvious.

MR BIRCH:   Well, we would have contended that far from being obvious, the Department could have easily accommodated a modification to its rule to pay eight‑week supply casuals up to the 13^th ‑ ‑ ‑

GUMMOW J:   Or, to be technical, it at least shifted the evidentiary burden back to you.

MR BIRCH:   What the Court of Appeal was concerned with was whether the evidentiary burden had shifted or not.

GLEESON CJ:   This is a case about pay relativity, is it not?

MR BIRCH:   In one sense it is, yes.

GLEESON CJ:   A view on which both sides of the relativity are likely to have sensitivities.

MR BIRCH:   Yes, we would accept that.  The difficulty is that the number of matters that might be brought to bear upon justification are almost infinite.  There is an unfairness in an argument being reconstituted in the Court of Appeal saying, “Well, it could be the case”.

GUMMOW J:   No, an argument being put for the first time to a court exercising this “appeal” function under the administrative legislation in New South Wales.  It all comes back to the nature of the proceeding in the Court of Appeal really.

MR BIRCH:   Well, I perhaps should deal with that ‑ ‑ ‑

GUMMOW J:   That is why we took you to those sections yesterday.

MR BIRCH:   I am about to deal with the question of merits appeal, but the answer then would be that the Department had itself accepted that there were limitations on the form of merits appeal it could have that really did not leave open to it the opportunity to raise an argument that could have been met by cross‑examination of witnesses, for example, had it been in play back before the Tribunal.

CALLINAN J:   Would not the industrial situation have necessarily been on the table though?  I do not see how you could conduct a case of this kind without at least having in your mind, and it being in the mind of the Tribunal, that industrial relations could be affected - the matter with which Justice Hodgson dealt.

MR BIRCH:   Your Honour, we would not deny that the industrial issue in the broader sense was on the table, but that having been said, there are a host of different ways it could have an impact.  For example, an employer might say, “Well, if I do what you’re suggesting I do, half my staff will go on strike, my business will be ruined and we’ll all be bankrupt and no one will have a job”, and that, if it were established, might be a terrifically good reason.

CALLINAN J:   But you do not know what the industrial consequences of industrial action are going to be.  All you know is that industrial disruption is what you want to avoid.

MR BIRCH:   You do, your Honour.

CALLINAN J:   You do not know where it would end up.

MR BIRCH:   Your Honour, you do want to avoid it but, on the other hand, that does not mean that a tribunal cannot make a finding that the likelihood of industrial disruption from a certain change is so slight that it does not render the conduct reasonable.  That was effectively what the Tribunal found ‑ ‑ ‑

CALLINAN J:   Where do I find that finding?

MR BIRCH:   I am paraphrasing the Tribunal, your Honour.

CALLINAN J:   Because I cannot find it.  I see there is a reference to what was considered in Waters which included good industrial relations in paragraph 18 at page 1592.  Are there other references to industrial relations?

MR BIRCH:   Your Honour, if one goes to Justice Hodgson’s findings in paragraph 202 he said, to do what we asked:

would appear to have the potential for disruption to good industrial relations.

There was no suggestion by the Department that industrial relations would be disrupted in any sense other than this, that if they paid women casuals, or women with families, only the higher rates, that would breed a new ground of unfairness.  That is an argument which we say was never a good one because that was not the implication of our case.  The implication of our case was to pay everyone.

His Honour Justice Hodgson accepted that that was the implication.  What his Honour is effectively saying, in our submission, there is paying all supply casuals, men, women and those with families, has the potential for disruption to good industrial relations.  We say that was not an issue that was ever in play.

CALLINAN J:   Even though he has used the word “potential”?

MR BIRCH:   Yes, because the potential disruptions are multifarious.  We cannot satisfy an onus of seeking to demonstrate that no possible type of industrial disruption can occur by calling affirmative evidence.  It would be an utterly impracticable onus to satisfy.  There has to be at least something to put us on notice as to what might be the disruption so that we can then go about fulfilling our onus of showing that that is not a realistic threat.

Your Honours, I can finish this point simply by saying this, that the question whether there was unfairness to us or not in allowing it to be raised depends on whether it really was in play.  The appellant says it was and its note that was referred to by Mr Jackson yesterday morning in paragraph 6(c) identifies those passages which it says put that issue in play.  My learned friend identified the pages which he said were the key ones. 

We simply say that, in our submission, they do not do that at all.  What they show was simply that the Bauer judgment and its virtue was a matter that was raised and also raised was the question that if the Department paid women casuals or women with families a higher rate, that could be disruptive, but that was a phoney issue, in our submission, in any event.  Therefore, we say in truth nothing is pointed to showing that this was in play.

KIRBY J:   You have said that now several times and we will just have to look at whether or not that is fair, but industrial reality rather suggests that once you remove the universal rule that people are paid according to the award or agreement, then you cannot really confine it to this particular class.  You are going to have people saying, “Well, I want to be paid above award for performance or for added qualifications or for my long service or because I’m brilliant”.  Every one of us will remember teachers who were brilliant and outstanding and should be paid twice or treble what others are, but the system cannot work that way.  Once you release the lid, then that is going to be on the table.  That is not really a matter for pleading, it seems to me.  It is just an inevitable consequence of moving away from the universal rule of the award.

MR BIRCH:   Your Honour, the legislatures lifted the lid by amending section 54, in our submission, and, they having done it, whatever consequences flow are the natural effect of having given the Act the wide scope it now has.  I say of course that that scope is still limited by the terms of the Act itself, but that is exactly what the legislature has done.  It has ended the period in which the award constituted the principal or monopolistic way of governing these matters.

Your Honours, I come only now to the merits appeal and I will be brief with this because I can rest largely on ‑ ‑ ‑

Your Honours, might I turn from that to say just something about Justice Bauer’s decision and the references that were made to it.  At the time of his decision in 1983, I think, it was not then the question of eight compared to 13 salary levels.  There were eight salary levels for permanents and four for casuals.  Your Honours can see those set out – I do not think I need take your Honours to them – in volume 3 at page 869.  At the top of the page the levels are set out.  That was referred to also at the bottom of page 866.

KIRBY J:   What is the point you are making?

MR JACKSON:   Your Honour, I am simply seeking to say if your Honours to go Justice Bauer’s decision, you will see him talking about something that does not really match the current situation.  I am not suggesting that the effect of it is different; I am just saying it makes it intelligible if I may.  I am going to lead on from that to say, your Honours, that in dealing with the casual employees, one does need to bear in mind that the rates that the casual employees were to receive were ones that did involve some loading in their favour.  That that is so appears in his reasons at page 901.  That is because he was talking about dividing the salaries by 203 rather than a larger number of days.  You will see that referred to in paragraph 2 on page 901 and goes through to paragraph 3 as well.  It is not as if one simply is giving casuals entirely lower rates. 

That also was referred to by the Full Bench at page 968 in the same volume.  At page 968 when the matter went before it, about three‑quarters of the way down the page, line 40, they say:

The rate thus struck represents a loading of a fairly substantial sum in excess of the daily rate of a permanent teacher –

et cetera.  That is dealt with also at page 969, lines 25 to 45; 970, 38 to 43 and 971, lines 35 to 45.  The award presently in question, if I could just say this, it is referred to as being a 1983 award.  In fact it is a 1996 award, although it is right to say that there had not been a full examination of the issue at a point after 1983.

Your Honours, could I move to a different matter.  Some complaint has been made that we did not refer enough, as it were, to the statutory provisions.  If one goes to volume 6 at page 1742 – these submissions were both before the Tribunal and the Appeal Panel – you will see at the bottom of page 1742 at about line 40 the submission there made was:

The criterion of performance of the same work is not a proper basis for a claim that they should have access to the same incremental salary scale as that applicable to permanent teachers.  If it was, there would be no need for the two incremental salary scales that exist for casual teachers and permanent teachers . . . The valuation of work is a much more complex task than simply saying two people do the same work.

That is when you see the next paragraph on page 1743, to which I took your Honours earlier, dealing with the statutory requirements.  Perhaps it could have been said four or five times but the point is pretty clearly there.  The point we would make, and I took your Honours to it, is that paragraph 43 of the Tribunal’s reasons at page 1601 in volume 5 is premised on the wrong question.

Your Honours, could I deal with what was done by the Appeal Panel.  The argument on behalf of our learned friends – and your Honours will see it referred to in the transcript of yesterday at line 3270 – suggested the Appeal Panel took a very broad brush view and that because there had been a determination by an industrial tribunal it treated that as being the end of the matter.  Our submission is that that simply is not so. 

If I could just say, the Appeal Panel dealt with the factual issues in its reasons commencing at paragraph 51 in volume 6 at page 1915.  Your Honours will see paragraph 51 and then at paragraphs 53 through to 59 – I will not go through them again, but your Honours will see, in our submission, that whatever might be quite the ambit of the term, that that does seem to be that on the question of reasonableness a review of the matter on the merits.  Your Honours, there was no material error in it, in our submission, that should not have been set aside.

Your Honours, may I mention one matter too about the effect of the Tribunal’s order.  There is one provision of the Anti-Discrimination Act to which I should refer, and that is section 54(1)(c).  Section 54(1)(c) has the effect that to comply with the order of the Tribunal does not itself amount to unlawful discrimination.  So that it is possibly correct to say that there would not be discrimination against men because of compliance with the actual order of the Tribunal, but if one were to seek to avoid the issue arising by voluntarily paying women teachers an amount in excess of the award, that then would be discriminatory in respect of men.  I mention the point, your Honours, only because I have said at least in the course of things that if you do one thing for women it will be discriminatory against men, but I should mention that provision, but there is a slight qualification to that.

One of your Honours asked for what was the position in relation to the legislation earlier for permanents and casuals, or earlier versions of the legislation.  May I give your Honours a copy of a note which deals with the earlier legislation which goes back, I think, to 1895 and it simply indicates the relevant provisions.

GLEESON CJ:   Thank you.

MR JACKSON:   Your Honours, may I refer to our learned friends’ submission handed to your Honours this morning dealing with the way in which their case fits within the provisions.  Your Honours, could we just say in relation to that, that if one looks at the way in which the requirement is described under the heading “Section 24(1)(b) of the ADA applied to the facts”, if one really defines the issue in the way in which our learned friends seek to define it, then I suppose it is not difficult to define the requirement in that way. 

However, your Honours, our submission is that so to define it really unduly limits the issue because the requirement is really that the Department required the respondent to comply with the requirement of having a permanent appointment, to have the pay and other conditions

applicable to a permanent, and of course, your Honours, the way in which one defines the requirement or condition is something which affects critically what are all the circumstances of the case when one comes to dealing with the question of reasonableness in item 3.

Now, your Honours, may I, as a last matter, deal with something that was said concerning the various issues that were raised.  Your Honours have the document I think which is called Appellant’s Note concerning paragraphs 147 and 164 of the Court of Appeal’s reasons.  We refer, amongst other things, in that document in paragraphs 3 and 4 to the various grounds that had been raised and your Honours will see references to them.  Your Honours, when we come to paragraph 6 we set out where the various issues were dealt with.  I wonder if I might add, your Honours, in relation to paragraph 6(c), a reference to the decision of the Tribunal at page 1596 of volume 5, please.

KIRBY J:   Is this the Appeal Panel?

MR JACKSON:   I am sorry, your Honour.  I was dealing with the Tribunal, I think – page 1596 dealing with the Tribunal.  I simply wanted to refer, so far as the Industrial Commission’s judgment was concerned, to paragraphs 30 through to 38 which deal with this issue.  Your Honours, could we add a specific reference also to page 1469 in the written submissions. 

Your Honours, so far as the merits aspect of the case is concerned, could we just seek to say this, that what the Court of Appeal did was to say, “You have had a merits review before the Appeal Panel, therefore, you cannot have another now”.  What was left out of account was that we had succeeded before the Appeal Panel and that then seems to have gone by the board for no very good reason.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 12.45 PM THE MATTER WAS ADJOURNED