State of New South Wales v Amery & Ors

[2005] HCATrans 932

[2005] HCATrans 932

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 TUESDAY, 15 NOVEMBER 2005, AT 10.20 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MS T.J. ANDERSON, for the appellant.  (instructed by Crown Solicitor for New South Wales)

MR C.J. BIRCH, SC:   May it please the Court, I appear with my learned friend, MS P.F. LOWSON, for the respondents.  (instructed by MacMahon Associates)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  As the Court will have seen, the claim made by the respondents was that as women casual teachers who had been employed by the appellant they had been discriminated against on the ground of sex because they were not paid as much as permanent teachers, male or female, for doing the same work.  Your Honours, the legislative provisions under which the claim was made are found in the Anti-Discrimination Act 1977. May I go to its provisions and in doing so indicate the matters arising from them that we seek to argue. That should be in a book of statutes we have given your Honours and it should be behind the second tab.

GUMMOW J:   It goes in force at ‑ ‑ ‑

MR JACKSON:   As in force of 22 August 1994, that is the one that your Honours should have.

KIRBY J:   What is the relevant statutory day?  Is it the day they brought their first claim?

MR JACKSON:   Well, your Honour, there are a number of days I suppose, but the position ‑ ‑ ‑

KIRBY J:   I see.  It would be the date of the discrimination presumably.

MR JACKSON: Yes, your Honour. Could I say there was a particular date selected as being the date from which the claims might be calculated, that being the date on which that amendment of the Act came into force which had the effect of taking out a provision that made compliance with the terms of industrial awards mandatory, to put it shortly. Your Honour, that puts it slightly inaccurately but that is the effect of it. Section 54, I think, was the relevant provision that was altered. I will give your Honours the exact date. It is referred to in the materials.

Your Honours, the relevant provisions are sections 24 and 25 of the Anti-Discrimination Act. May I go first to section 25(1). Your Honours will see that:

It is unlawful for an employer to discriminate against a person on the ground of sex:

. . . 

(c)      in the terms on which the employer offers employment.

Could I refer also, your Honours, to section 25(2)(a), which says:

It is unlawful for an employer to discriminate against an employee on the ground of sex:

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

Your Honours, those seem the most directly relevant provisions.  It is possible that others might or might not be otherwise thought to be applicable.

May I say that it is apparent from section 5 of the Act that it binds the Crown and says so specifically.  That is supported in a sense by section 4(7).  There is no point taken about any of those matters about binding the Crown but I mention them for completeness.

The meaning of the term used in section 25, “discriminate . . . on the ground of sex”, is to be found in section 24. The provision of immediate relevance is section 24(1)(b). Your Honours will see from the terms of section 24(1)(b) that it is said that:

A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of sex if . . . the perpetrator –

and your Honours will then see the terms of paragraph (b). May I say that there was some debate in the courts below, if one looks at the opening words of section 24(1), whether an additional requirement was imported by the words “on the ground of the aggrieved person’s sex”, et cetera, in the opening part of section 24(1). That was treated by the Court of Appeal as an error in effect, so that 24(1)(b) stands on its own, and we do not challenge that.

KIRBY J:   So that means there was an error in the Tribunal.

MR JACKSON:   No, I am sorry, your Honour, I do not think at any stage that argument had succeeded, so we do not seek to pursue it further.  It seems to have been a legislative error and the Court of Appeal found that.  We do not pursue the point and do not quarrel with it.  If one goes then to 24(1)(b), your Honours will ‑ ‑ ‑

KIRBY J:   Can I just get that clear in my mind.  Below you took a point as to the ground and you took that at various levels, you lost and you are not pursuing it before us, and that is all.

MR JACKSON:   Yes.  I will give your Honours a reference in a moment before I conclude to where you will find that in the Court of Appeal’s ‑ ‑ ‑

KIRBY J:   I think it is in the written submissions; I think I read it.

MR JACKSON:   Yes, I think it is, your Honour. Could I go to the words of section 24 (1)(b) and your Honours will see that there are essentially four requirements. One is that the perpetrator:

requires the aggrieved person to comply with a requirement or condition -

That is the first.  The second is that, the aggrieved persons in the present case being female, the requirement or condition must be one “with which a substantially higher proportion of” men comply or are able to comply.  The third is that the requirement must be “not reasonable” in the circumstances and the fourth is that it must be a requirement with which the women who are the aggrieved persons do not comply or are unable to comply.

May I return to those provisions in just a moment, your Honours.  May I mention first the provisions of the Act which provide a sanction for contravention of the provisions to which I have referred.  They commence relevantly with section 88 which provides for the lodging of complaints.  The complaint is to be investigated, section 89, and it is investigated by the president of the Anti-Discrimination Board.  Under section 92 there are to be attempts to conciliate or there may be attempts to conciliate and then your Honours will see in section 94 there is then a reference to the Tribunal, and the Tribunal’s function is set out in section 113.  Now, the Tribunal’s function and their powers appear in section 113 and particularly section 113 (1)(b)(i) allows the award of damages and that is what occurred in the present case.  If I might go back then, your Honours ‑ ‑ ‑

GUMMOW J:   Is that the only remedy involved here?

MR JACKSON:   Yes, I think that is so, your Honour, yes.

KIRBY J:   There was an injunction sought, was there not?

MR JACKSON:   Yes, that is so, your Honour. May I come back to it. The damages are the principal thing and, of course, the future is dealt with. Now, your Honours, could I come back to section 24. The case so far as section 24 is concerned was concerned with two aspects of it, namely, requirement or condition, on the one hand, and on the other hand, whether the position of the requirement or condition was not reasonable. May I come to the first of those matters. Your Honours will see if one goes back to section 24 ‑ ‑ ‑

KIRBY J:   First of all, what is the requirement or condition that is ultimately specified?  Is it the requirement to be a permanent teacher in order to get the benefit or is it the requirement in some way that you do certain work and the Department will not pay over‑award payments?

MR JACKSON:   Your Honour, I intend to come to that because that is an issue that, in our submission, was dealt with, with respect, somewhat curiously in both the Tribunal and in the Court of Appeal – when I say somewhat curiously what I mean by that insofar as the Tribunal is concerned is that whilst the Tribunal stated the matter ‑ probably correctly but with a qualification I will come to in a moment, your Honours – the view that it appeared to take as to its existence or as to its nature was that one had to be a permanent to get to the higher scales.  That was what it identified the condition as being.  What it went on to say, however, when dealing with the question of reasonableness was to apply that test to really a quite different matter, the different matter being solely the question whether the work performed by permanent and casual teachers was of the same value.  I need to take your Honours to particular passages to indicate that.

Then when one comes to the Court of Appeal the approach taken by the Court of Appeal was to say that the requirement or condition should have been differently phrased and should have been one which meant it was the Department or the appellant’s practice not to pay over-award sums to casual teachers.

GLEESON CJ:   This may be picked up somewhere else in the Act, but there is a kind of dangling comparison in 24(1)(b):

requires the aggrieved person to comply with a requirement or condition –

“requirement or condition” of what?

MR JACKSON:   Your Honour, one needs to pick up section 25 as well because section 24 is dealing with the concept of discrimination, the succeeding provisions apply that to a number of different situations so one would think the concept is then applicable in, for example, the circumstances referred to in section 25(1)(a).

GLEESON CJ:   So you relate it to 25(2)(a) in this case?

MR JACKSON:   Yes, 25(1)(c) or 25(2)(a).  If I might say so, your Honour, with respect, the way in which the Act deals with a number of types of discrimination tends to adopt a similar approach describing the relevant discrimination and then dealing with a number of circumstances in which it might occur. 

Your Honours, in dealing with the question of “requirement or condition”, what your Honours will see from section 24(1)(b) is that the discrimination occurs if the perpetrator requires the aggrieved person to comply with a requirement or condition thereafter described and your Honours will see that it is shortly thereafter described as “requirement” in I think the third-last line of that provision, but it seems to be the same thing.

Your Honours, may I just say something about the statutory position relating to teachers at relevant times.  Whether they were permanent or casual, their employment was employment pursuant to the Teaching Services Act 1980 and it recognised the existence of two classes of teachers. That Act should be behind the next tab in the materials that your Honours have. Now, your Honours will see that the Act makes – if one goes to section 4 first of all, may I refer to two of the definitions. Your Honours will see that in section 4 there is a definition of “officer” – and that is the top, I think, of page 4 – and paragraph (a) is the relevant part of it. It means:

a person employed in [the Education Teaching Service] other than a temporary employee –

so it is speaking of a permanent employee.  Your Honours will see the definition of “temporary employee” on the next page and, again, paragraph (a) is the relevant paragraph.  That takes one to section 50.  Section 50(1) at page 18 provides:

The Director-General of Education may, if of the opinion that it is necessary to do so, appoint temporarily, on a full-time, casual or part-time basis, to any position . . . a person who . . . has the appropriate qualifications.

Your Honours will also see subsection (5) of that provision, which says that:

A person appointed under subsection (1), (2) or (3):

(a)      shall not be employed for a period exceeding 12 months from the date of the appointment but the employment may be extended from time to time for a further period . . . and

(b)      may be dismissed at any time.

KIRBY J:   I was a little confused when I was reading the material.  Some of it seemed to suggest that a casual employee could be extended for only one interval.  Is it clear that the Act allows extension from interval to interval indefinitely?

MR JACKSON:   Well, the words “from time to time”, your Honour, in subsection (5)(a) would seem to suggest that.

KIRBY J:   In other words, it can only be for a maximum extension of 12 months, but that can go on indefinitely.

MR JACKSON:   That seems to be what the provision means, your Honour, yes.  Could I go back for a moment to section 38 at page 8.  Your Honours will see that the Director-General, under subsection (1), has a number of functions in relation to schools, classifying schools, determining staff establishments – that is paragraphs (b), (c) and (d).  Paragraph (e), determining “the method of classifying and grading officers”, and paragraph (f), preparing “lists of officers eligible for appointment or promotion to those positions”, determining qualifications and (h) determining “promotions and transfers of officers” – and “officers” of course means permanent employees – “and transfers of temporary employees”, and maintaining discipline.

KIRBY J:   Where is “officers” defined to mean ‑ ‑ ‑

MR JACKSON:   In the definition section, section 4, your Honour, and paragraph (a) of that is the relevant part of it.

KIRBY J:   It was accepted by the respondent in the written submissions that “officer” means a permanent employee.

MR JACKSON:   Yes.  “Temporary employee” is defined in the same provision, your Honour.  If I could go then to section 45, your Honours will see that it deals with the position on the coming into effect of the 1980 Act.  The relevant part of it is subsection (3) which continues as officers and temporary employees, persons who held similar positions before.  Section 47 is the provision which deals with appointment of permanent staff and section 48 provides in subsection (1) that appointment as a permanent is on probation for 12 months or longer.

KIRBY J:   Does this have a long history in the Teaching Service in New South Wales of statutory recognition of permanent and non-permanent staff?

MR JACKSON:   I say two things about it, your Honour.  Certainly so far as award provisions are concerned, if I could deal with that first, it dates from at least 1983.  So far as the Act is concerned, the concept was certainly there under the Teaching Services Act 1970.  I could not tell your Honour immediately how much earlier than that it was.  One suspects it has been there for quite some time.  I will endeavour to find out.

KIRBY J:   There is a bit of a complaint on the respondent’s part that this is a late development in your argument, referring to the statute.

MR JACKSON:   Your Honour, I will have to come to that, I think.  If one looks at paragraph 43 of the Tribunal’s reasons, one of our complaints is that they rejected our argument on the statute.  That is in volume 5, paragraph 43.  One of our complaints is that they rejected our argument and then the view taken of that by the Court of Appeal was, with great respect ‑ ‑ ‑

GUMMOW J:   Is that in volume 5?

MR JACKSON:   Yes, it is in volume 5 and you will find it at page 1601, paragraph 43.  It did not assist the Tribunal, it was said, the first five or six lines.

KIRBY J:   You won before the Tribunal, did you not?

MR JACKSON:   No, your Honour, we lost.  We won in the Appeal Tribunal.  We lost in the Tribunal, won in the Appeal Tribunal, lost in the Court of Appeal.

KIRBY J:   I see.  Do you use the statutory provision in any way other than as background to indicate that, quite apart from everything else, Parliament has recognised that there is a distinction between permanent and non‑permanent employees?

MR JACKSON:   That is the point I am coming to, your Honour, yes.  Your Honour, I was just going to the statute for a moment, and then I am going to make our submissions about it after that, but what we do seek to say about it is that simply to deal with the matter on the basis that it was just a question – I put it in two ways – that it was just a question whether over‑award payments might be made, on the one hand, or on the other hand, just to treat these requirements as if they were simply requirements imposed by the employer thus leaving out of account in both cases the fact that there was a statutory regime which was a relevant matter, was on either approach one which left out of account a matter which was really the, as we have said in our written submissions, starting point.  You had to look at the statute.  That is what they are employed under.

GUMMOW J:   The perpetrator is not a free agent, because the perpetrator is statutorily controlled?

MR JACKSON:   Yes, that is so, your Honour.  It is perfectly correct to say that the Industrial Relations Act provisions which lead to the award were ones which provided for an award which prescribes minimum conditions. That is dealt with, if I can just give your Honours a reference, in section 406(1) of the Industrial Relations Act 1996, so that prescribes minimum conditions. But could I just say in relation to it, your Honours, it is not just a question of what the salary was, and one had, importantly, provisions for filling of vacancies and transfers.

KIRBY J:   But presumably the respondents seek to meet this by saying, “Well, we do not demand to be permanent employees.  We just say that given the discrimination which we can establish we should be paid the larger amount which sounded in damages”.

MR JACKSON:   Your Honour, that is the case that they make.  Our submission is that that case is not – that describes the situation too narrowly.  That may well be – and it was, it is fair enough to say, the basis on which the case was sought to be made out, but to identify the case in that way and to select that as the compartment of it, in our submission, adopts too narrow a view.  It leaves out of account matters which are germane to it including the differences between permanent and temporary employees that are contemplated by the legislation pursuant to which the whole thing operates.

GUMMOW J:   What they would really need is an injunction.  That would crystallise people’s thinking.

MR JACKSON:   Yes.  Your Honour has referred to the injunctions before.  They can be seen, your Honours ‑ ‑ ‑

GUMMOW J:   Some sort of systemic injunction, what the Americans would call it.

MR JACKSON:   They can be seen in the orders at page 1627 and going through to 1629, and I think in particular paragraphs 5, 7, 9, 11 and 16.

GUMMOW J:   Otherwise, they are just a series of recurrent damages actions.

MR JACKSON:   Yes.

KIRBY J:   But presumably this being a Crown defendant a series of damages actions which would lead the Crown to draw inferences as to the interaction between the Teaching Services Act and the Anti‑Discrimination Act.  That is presumably how it is put.

MR JACKSON:   Your Honours, no doubt it is a case of some importance, and no doubt the attitude taken by the Crown would depend very much on the decisions of the courts.

GUMMOW J:   And on budgetary considerations.

MR JACKSON:   Indeed, your Honour. 

KIRBY J:   When they amended the Act to take away the provision relating to obedience to awards, was that amendment limited only to the awards made by the Industrial Commission or did it also relate to any other statutory provisions which were inconsistent with the Act?

MR JACKSON:   No, I will give your Honour a reference to it in just a moment. If one goes to section 54 of the Anti-Discrimination Act - your Honours will see the way in which section 54 of the Anti‑Discrimination Act - it is page 64 of the copy of it - is now framed and section 54(1)(d) says:

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 . . . 

(d)      an order of any court, not including an order or award of a court or tribunal –

et cetera. 

KIRBY J:   What about paragraph (a)?

MR JACKSON:   No, your Honour, that refers to Acts, enactments.  Paragraph (d) previously read, where it now says “not including an order or award of a court” it previously said “including an order or award of a court” so the “not” has been put in. 

GUMMOW J:   That change happened in the course of 1994.

MR JACKSON:   Yes, it is No 28 of 1994 and the relevant provision doing that is clause (23) of Schedule 4.

KIRBY J:   Was that explained by the Minister at the time on the basis that there are a lot of awards which had all sorts of provisions and ‑ ‑ ‑

MR JACKSON:   Your Honour, what the Minister said, and I think my learned friend’s material may contain this, was to the effect that the fact that something was in an award should not preclude the question whether it operated in a discriminatory way.

KIRBY J:   But paragraph (a) seems to preserve the requirement of any other Act and that would therefore preserve the requirement of the Teaching Services Act that there be some teachers with a special category as permanent staff.

MR JACKSON:   Yes, that is so, your Honour.  Could I just say, if I could go back for a moment and I have nearly concluded what I wanted to say about the Teaching Services Act.  If one goes to section 50 of that Act – I am sorry I have taken your Honours to that, the appointment of casual persons, but could I go to section 59, page 27.  You will see that section 59 is part of the subdivision which deals with appointments to positions in the Education Teaching Service for which there is a promotions list, and “promotions list” is defined to be a list which is kept pursuant to section 38(1), to which I have taken your Honours.  The relevant definition your Honours will see at page 4 in section 4.

GLEESON CJ:   What is the source of the requirement that to be permanent you have to be willing to go wherever you are posted?

MR JACKSON:   Section 71.

GLEESON CJ:   Thank you.

MR JACKSON:   Now, your Honours will see section 71 provides that an officer may be transferred.  “Officer” – I have taken your Honours to the definition of that before - it is page 37.  An officer may be transferred.  Then, your Honours, one sees that in section 73 an officer’s salary can be reduced if the officer is getting too much, or thought to be getting too much and ‑ ‑ ‑

KIRBY J:   What is section 73 addressed to?

MR JACKSON:   Well, section 73 ‑ ‑ ‑

KIRBY J:   Section 73 relating to excessive salaries.

MR JACKSON:   It refers to officers and it says, in effect, if the work they are doing is work that should not command a salary as high as that their salary can be reduced, to put it shortly and ‑ ‑ ‑

HAYNE J:   I assume it copes with the shrinking school.

MR JACKSON:   Yes, it may.  Well, it is the shrinking school, your Honour, but your Honour will see it is not limited to that.  It may well cover that case.

KIRBY J:   But if under the agreement and then the award an officer, being a permanent staff member, is being paid by reference to increments, how can a position where the officer is getting more than his incremental entitlement under the award ever arise?  I do not quite follow it.

MR JACKSON:   Well, it may be, your Honour, that in respect of some additional amounts that the officer would get if performing certain tasks, he does not get that salary.  I mean there may be some difficulty about reconciling the two but it is after all the statute.

KIRBY J:   How do you use section 73?

MR JACKSON:   I am just indicating, your Honour, that there are particular provisions that deal with the case of officers, one of them being, of course, section 71, which provides for transfers.

GLEESON CJ:   That is what I asked you about.  It is not self-evident but is it the case that “position” in 71 has or includes a geographical connotation?

MR JACKSON:   Yes, your Honour.  It is another position in the Teaching Service.

GLEESON CJ:   So you can be transferred from being a fifth form teacher at Kogarah to being a fifth form teacher at Wingham?

MR JACKSON:   There would have to be, if one went to attractive places of that kind, which so many people seem keen to leave sometimes, a position equivalent in classification and salary.  No doubt in an expanding coastal community that might easily be found.

GLEESON CJ:   Where would we see the designation of the positions that exist within the Teaching Service?

MR JACKSON:   Your Honours will see in section 38, to which I referred earlier, that there have to be determinations of teaching staff establishments for schools and so on by the Director-General, so those determinations have to be made.  No doubt they are published in appropriate communications to the teachers and it may be that they are dealt with by the regulations from time to time.  I will endeavour to find a more specific answer for your Honour, but the ‑ ‑ ‑

KIRBY J:   Section 38(1)(d) involves determination of staff establishment for positions, so that is the statutory word.

MR JACKSON:   Yes.  Also, could I just say I had passed over of Division 4, Subdivision 1 which commences at section 59.  I referred to section 59, the “promotions list”, which is a list made under section 38(1).  You will then see provisions in section 59C and that has positions of a class in subsection (1):

declared by the Minister by order published in the Education Gazette to be a class of positions –

Then sections 59C and 59D provide for there to be eligibility for those positions on the basis of fitness and other matters.  That requires in those cases an order to be published in the Education Gazette.  Your Honours will see, if I could go to section 75 of the Act:

Where an officer of a Teaching Service refuses to comply with a direction of the appropriate Director-General for the officer’s removal from one position in the Teaching Service to another, the Director‑General shall, unless satisfied that the officer had a valid and sufficient reason for so refusing, dismiss that officer from the Teaching Service.

That provides a kind of sanction.

KIRBY J:   There appears to be some submission that at the hearing there was a concession that this is not applied in a “draconian” way but what appears on the face of 75 does not necessarily reflect current practice in the Department of Education.

MR JACKSON:   Your Honour, what was said was in effect that it is not applied in a draconian way.  One would hope it was not really, but the fact that the velvet glove may be used does not mean that the hand inside might not be of steel in the end.  It is a power that exists.  It is the sanction if there is not a valid and sufficient reason for refusing.

Your Honours, the actual pay scales were provided for by an enterprise agreement and then by an award.  Your Honours will see that referred to in our written submissions in paragraph 15.  Could I say that the enterprise agreement does not appear to be in the appeal books.  It is not at all clear that the actual document was ever before the Tribunal, but it was accepted that it was to the same effect as the award, and that does not seem to be a matter that is in issue.

KIRBY J:   It is part of the law, is it not?  It was made by a member of the Commission under power given by the Industrial Relations Act.

MR JACKSON:   Yes.

KIRBY J:   So it is part of the law.  We can look at it.  It is not a factual matter ‑ ‑ ‑

MR JACKSON:   Your Honour, it is not here.  I do not think anyone suggests it has an effect different from that of the award in any respect and it does not seem to have been suggested elsewhere.  The actual award, your Honours, is in volume 2 of the appeal books at page 487.

KIRBY J:   Is Justice Powers’ reasons for his work assessment in the application in the appeal books?

MR JACKSON:   Yes, your Honour.  The awards are at page 487.  The rates of pay for permanents were set out in schedule 1 of Part B at page 509.  Your Honours will see 13 steps set out there.

KIRBY J:   Was the theory beyond that that after a certain period of time many permanent staff would qualify to become deputy principals or principals after 13 years?  Is that the sort of theory behind it?

MR JACKSON:   Well, it has a number of aspects, your Honour, in the sense that every year – you will see provision for annual salaries for principals and so on at page 511, but what one sees is it is a yearly step.  You go up an increment every year.  That is referred to in clause 7 in the text at page 487.

CALLINAN J:   Thirteen levels for permanents and then afterwards promotion on merit, was it not?

MR JACKSON:   Yes, your Honour.  You reach that level, and you may get further, you may not.

CALLINAN J:   It is like the military.  Everybody gets to major, do they not?

MR JACKSON:   I cannot tell your Honour the position now.  It certainly was the position years ago, and they had equivalent ranks in other services I think.  After that it depended on how one went.  Page 497, your Honours, has clause 7 which deals with salary progression for permanents.  The position for casual teachers was dealt with by clause 12 at page 503.

KIRBY J:   Do they start off at the same level and go up for the first eight years in tandem?

MR JACKSON:   No, your Honour.  There is a difference in percentages – could I just say, your Honour, page 503, clause 12 says the rates of pay and conditions for employment are in those two schedules.  If one goes to the position for casuals, page 514, your Honours will see rates set out there, and the rates, although it is not entirely clear to the uninstructed person, in fact involve five steps, the highest of which is level 8 of the permanent’s rates.  It is a little difficult to compare them just from the book because one is in terms of payments per day and the other is the total pay per annum.  It is comparing pages 509 and 514 but, your Honours, it is not in doubt, and accepted by everyone, I think, that there were five steps, the highest of which was level 8 of the permanent’s rates, and could I refer your Honours to our written submissions in paragraph 21 of those submissions.

GLEESON CJ:   If casuals are only employed on an annual basis from year to year, does that produce the practical consequence that unless they are prepared to go where they are wanted they will not be employed?

MR JACKSON:   Yes, your Honour, it does.

GLEESON CJ:   What is the practical difference between saying to an officer, if the Department wants you to move from Sydney to a rural area, you will go from Sydney to a rural area, and saying to a casual teacher, next year we are only prepared to employ you in a rural area?

MR JACKSON:   There may be in the instant case no practical difference except that, your Honour, if we are talking about the position of someone who is an officer ‑ a permanent ‑ in that regard before the officer – I am sorry, the officer can be given the direction, the officer has the ability under section 75 to seek to defend that direction, and can be dismissed if the officer does not.  But the position is, of course, that the officer’s undertaking is subject to being able to show proper cause, is to do that and to serve wherever sent.

So far as the casual is concerned, the casual’s position is different in this sense that the casual can just say, “No, I do not want to do it”, or, as has been said in the present cases, “I only want to work in this area”, or in some cases, teaching this subject, or in a particular school, and the casual is in a position of, in a sense, offering work whereas the permanent is required to work.  Your Honour, whilst in a particular case what your Honour puts to me may be right, there may be in fact no difference, but underlying it there is a difference in the obligations one to the other, because they are, in the case of the casual, parties who are, in effect, bargaining.

KIRBY J:   In the respondent’s submission they pick up the point that the Chief Justice has just made and say that as to them there was no difference because they work from year to year and they could be terminated as at the end of the year if they did not go where the Department wanted them.

MR JACKSON:   Well, your Honour, it may be right that in the case of particular persons there is no difference in particular circumstances, but so far as the permanent employees were concerned, not only did we have certain rights under the statute in relation to them, we also had some obligations in relation to those persons who are permanents in relation to their continued employment.  Your Honours, could I turn then to the requirement or condition as found by the Tribunal.  That appears in volume 5 at page 1589 in paragraph 12.  Your Honours will see at page 1589 they conclude that the provisions:

of the award, when read against the award provisions as a whole, with respect to permanent employees, do contain a requirement or condition, with respect to salaries and other entitlements of teachers as employees within the Teaching Service.  If they wish to achieve a higher rate of pay than that found in Schedule 6, entitled “Casual Teachers Rates” they cannot do so because of the prerequisite of permanency.  The condition or requirement disclosed by the award and the enterprise agreement, which adopts a similar approach, is that in order to qualify for higher rates of pay and entitlements as a teacher in NSW, it is necessary to have permanent status.

That is the condition that they found.  The Court of Appeal took the view that the relevant requirement was imposed by the appellant not making over‑award payments.  Your Honours will see that referred to in volume 7 at page 2282 in paragraph 12 in Justice Beazley where her Honour referred to the Tribunal at the bottom of the first four lines and then said:

This is not correct because the award does not contain such a condition.  Rather, it is the Department’s practice of not making over‑award payments that imposes the requirement.

Your Honours, the characterisation of the requirement or condition in that way brings about, in our submission, a rather curious result.  We would accept that there may well be in one sense of the term a requirement or condition that a teacher must be a permanent teacher in order to obtain the conditions of employment of a permanent teacher, but if I could take your Honours for a moment to our written submissions, paragraph 37, at the bottom of the page 8, the position is that section 38(1)(b) of the Teaching Services Act provides for the determination of staff establishment and the distinction is created by the Teaching Services Act itself.

The classification as such does not, in our submission, arise from a requirement or condition which we impose, at least in the sense, we would submit, contemplated by the provision.  As we say, your Honours, in that submission, classification is a consequence of the teacher’s offer of employment and our obligation ‑ ‑ ‑

KIRBY J:   You lost this point at every level, did you not?

MR JACKSON:   Your Honour is right.  What we say about it though is that we should not have lost, of course, and what I am seeking to say about it is that one does have to look at the picture which is contemplated by both the Anti-Discrimination Act provision and also by the Teaching Services Act.  What you have, we would submit, is a situation where the provisions of the Act have not been taken into account in determining what is the relevant condition.

KIRBY J:   But that seems to be against the point because the anchor of your argument is that the Act contemplates this distinction so it would not be odd for you to lay down a requirement that there be such a distinction and that it has different consequences.

MR JACKSON:   I am sorry, your Honour, perhaps I am not making myself clear. What I am seeking to say is this, it is one thing to say that there is a requirement or condition, using the term generally for the moment, that a person must be a permanent to have access to, to use the phrase that has been used in some of the decisions below, the higher scales of pay. But the question is whether that is a requirement or condition in terms of section 24(1)(b) which is imposed by the perpetrator, that is namely by the State. What we say about it is that the concept of there being permanent and temporary teachers is one which is provided for by the statute and is not a requirement or condition in that sense. Could I move your Honours to the second aspect of it and that is the question of reasonableness.

KIRBY J:   The point of distinction is whether or not it is imposed by you or whether or not they have simply offered to take conditions on a different basis.  Is that the distinction you are drawing?

MR JACKSON:   Yes.  Your Honour, it is simply a situation where ‑ ‑ ‑

KIRBY J:   It just seems a rather thin point given that your argument really starts from the statute and it would not be unusual for you to, on that argument, lay down a condition that was relevant to the statutory framework of employment in the Department.

MR JACKSON:   Your Honour, what I am seeking to say is that the statute itself provides for there to be some different classes of employees.  One is permanent, one is casual or temporary.  The position in relation to permanent employees is that their conditions of employment have a significant statutory aspect, they have some disabilities because of it, but they have some pluses as well.

In relation to persons who are casual employees or temporary employees, to use the words of the statute, their situation is different.  They are one of a different class of employees contemplated by the statute.  The simple point we make, your Honours, is that in relation to each class of employees the statutory provisions are different and simply because they may, from time to time, perform work which has the same work value considered in that light, it does not follow that it is a requirement or condition that is imposed by the employer.

GLEESON CJ:   Is there underlying this a problem of mobility?  There is nothing that you have shown us so far in relation to the statute or the award that in terms distinguishes between male and female teachers.

MR JACKSON:   No, that is so.

GLEESON CJ:   But, as I understand it, the problem when it comes to – I will not use the word “complying” with the requirement because that would beg the question – satisfying a standard necessary to achieve permanency or satisfying a condition of permanency is that the male members of the Teaching Service are, as a class, likely to be more mobile than the female members.

MR JACKSON:   Well, your Honour, could I put it this way.  First of all, that is probably correct in terms of ‑ ‑ ‑

GLEESON CJ:   Would you have the same problem in a commercial enterprise which adopted a promotions policy or practice under which people who were willing to accept transfers to anywhere in the world were much better placed to achieve promotion than people who were not?

MR JACKSON:   Well, the same issue would seem to arise, leaving aside any statutory aspect of it and that would seem to give rise to the same issue, your Honour.

GLEESON CJ:   If you worked for a large accounting firm that had a global practice and you were a single man, or for that matter a single woman, who could at a moment’s notice take up a posting in London or Beijing or Paris, you might be better placed in terms of prospects and promotion than somebody who says for a particular reason, “I cannot leave Perth”.

MR JACKSON:   Your Honour, that is so.  The position in the present case, the position which appeared was that there were significantly more women who were casual teachers than there were men and I suppose that is fundamentally what in the ordinary course of events one would expect to be the case, but the point your Honour puts to me is right, that is what can happen.  Your Honours will see the reasons – I think it is referred to in paragraph 40 of our written submissions, where the Tribunal held that a substantially higher number of men than women complied or were able to comply with the requirement.  It is referred to.  It is not an issue which we pursue here.

HAYNE J:   And what is the requirement that there is referred to?  How is that requirement defined?

MR JACKSON:   Your Honour, the requirement to which we are seeking to refer there is the requirement that one has to be a permanent teacher to access the higher scales.

KIRBY J:   As I understand it, the respondents gained a finding in their favour that it was in the nature of this condition that it fell more heavily upon women than it did on men because of cultural and other factors.  It would fall heavily on some men but as a class it fell more heavily on women because of cultural and other factors that bind women into the household and childrearing and make them less mobile than men, is that not so?  That finding was made against you and you do not now challenge that.

MR JACKSON:   No, your Honour.  I was going to say that one sees in the decision of the Appeal Panel a summary of the reasons in respect of each of the respondents.  I think that summary can be found in paragraph 55 at page 1916 of volume 6.  It is dealt with more fully in the reasons of the Tribunal.  We have given your Honours the references to that in respect of each of those persons, each person who is a respondent, in our written submissions at paragraph 71.

KIRBY J:   One of the problems raised by the first respondent, Ms Amery, was that she was a pastor in her church, but that does not seem to have anything to do with sex.  That could fall equally on a male as a female.  What is said, as I understand it, is that it falls more heavily on females because of the fact that they are more homebound by their sex and family responsibilities.

MR JACKSON:   Yes.  Your Honour, it is a proposition we accept.

GLEESON CJ:   Mr Jackson, I am still just attempting to understand the boundaries of the issue.  Whoever is right or wrong, whether you are right or whether your opponent is right, I am a little puzzled as to why this issue is limited to questions of pay rates.  Does not exactly the same problem arise in respect of promotions above a certain level?

MR JACKSON:   Yes, it does.

GLEESON CJ:   Is it not the case, for example, that if you want to be the principal of a school, you have to be an officer.  So, just as the respondents are complaining that they do not have access to higher wage rates, they could equally complain, could they not, validly or not, as we will find out in due course, that they do not have access to higher positions in the Teaching Service?

MR JACKSON:   To a number of things, your Honour, to any of the circumstances which might work to their disadvantage by comparison with the position of permanent teachers.

KIRBY J:   This is the battle of the Nile.  They are just fighting the entitlement to money at this stage.  Trafalgar lies ahead.  Promotion may be the next step.

MR JACKSON:   Your Honour, I suppose it depends whether one examines that with one eye or two really in a way.

KIRBY J:   You take these things in steps.

CALLINAN J:   It is difficult to imagine how you could be a principal of a school for intermittent periods if one is talking about promotion.

MR JACKSON:   Yes, for a year. 

KIRBY J:   There would be some schools where that would be entirely possible.  I have known principals who have moved in and out of schools in less than a year.  I had my entire education at public schools.

MR JACKSON: Your Honour, it can happen, no doubt about that, but it is not what one would hope would happen in the majority of cases. Your Honours, could I move to the question of reasonableness. That question arises because of section 24. Section 24(1)(b) provides, of course relevantly, that the requirement be one “which is not reasonable having regard to the circumstances of the case”.

HAYNE J:   Now, is the hypothesis that the requirement is the requirement of permanency?

MR JACKSON:   That is the hypothesis on which I am making submissions.

HAYNE J:   You are proceeding.

MR JACKSON:   Yes.

HAYNE J:   Yes.

MR JACKSON:   Your Honours, as I submitted earlier, our learned friends’ case seems to offer a different way of putting it.  Our submission is that the true analysis of it is it is a case where they cannot have access to the higher scale because they are not permanents.  The approach taken by the Tribunal on this issue, your Honours – and by majority, in our submission, in the Court of Appeal was to focus simply on what I might describe for brevity as work value – and I will come to explain what that meant.

One can see that, your Honours, if I could go first to the Tribunal, in volume 5 at page 1592.  I need to refer your Honours to a number of passages, but I will do so as briefly as I can - page 1592 paragraph 18.  Your Honours will see there in the first few lines of the paragraph they set out the third question, being the question of reasonableness, to put it shortly.  If one goes then to page 1593 at the top of the page, about line 10, they say:

However, the question before us in our view is not whether the whole system of casual staffing arrangements is beneficial for the Teaching Service, but whether it is unreasonable to pay female teachers at a lower salary scale if they perform work of equivalent standard and value to permanent staff with access to permanent pay scales.

Again, your Honours, on the same page, paragraph 20, about line 28:

The complainants do not submit that the whole casual teaching system is discriminatory, but rather that it operates unfairly with respect to a limited number of casual teachers who perform work of equivalent value –

et cetera.  If I could move from there to page 1600, in particular to paragraph 40, the last few lines on the page:

The gravamen of the case is an assertion that the work performed by the women is of no less equal value than the work they had performed as permanent staff (in most cases), and of no less equal value than the work of comparable professionals in the same service who have throughout the period of the claim been permanent staff.

In the next paragraph, paragraph 41, they refer to an argument advanced by our side, and the third line, recounting the argument, says:

The considerations bearing on the complexity of this task include:  permanent teachers being subject to statutory requirements –

et cetera, and then they refer back to that again in paragraph 43, in the passage to which I took the Court earlier, where they said the differences do:

not assist the Tribunal in determining the pivotal question of comparative work value of casual and permanent staff –

and then they emphasise that in the part of the paragraph that commences at about line 47:

The incidents of permanent and non-permanent staff appointments clearly differ –

Your Honours, I will not read it out but it goes for the remainder of that paragraph.

Finally, at paragraph 49 on page 1604, your Honours will see there is reference made to reformulation of the point, and then if one goes to about line 34, your Honours will see it is said:

Geographical and professional limitations upon employment in the Teaching Service will no doubt impact upon the decision of the Department to appoint teachers as permanent staff.  However, in our view, such limitations have no relevance to the question whether a casual supply teacher –

and your Honours will see again the remainder of that paragraph.  Now, your Honours, that was the approach taken by the Tribunal.  They then went on to apply that in the remainder of the reasons ‑ ‑ ‑

HAYNE J:   Is there any amplification in their reasons of what is meant by the expression “work of equal value” – value to whom, assessed how or the like?

MR JACKSON:   Your Honour, it seems apparent enough, if I can say this, from the tone, first of all, and the discussion of the various teachers involved that they – and I should say they make a finding that the work was of equal value.  So, your Honour, we accept that finding whatever it means.  What it seems to mean, your Honours, is that they were doing the same work as might have been done by a permanent teacher and that they were doing work as well as ‑ in the sense, of the quality of the work ‑ a permanent teacher might have been expected to do it.  I do not make any adverse comment about it in saying that.

KIRBY J:   What are the professional limitations?  I understand the geographic limitations, but you mentioned earlier subjects, but that would not apply in primary school, would it, and in secondary schools you do not normally get a French teacher teaching Latin or teaching a subject outside their particular discipline.

MR JACKSON:   One hopes not, these days, your Honour.  I have certainly encountered it in the past and sometimes professional limitations in the subjects with which they are familiar.

KIRBY J:   It did not happen in any of the schools I went to.

MR JACKSON:   Well, your Honour, with respect, had a sheltered life.

KIRBY J:   That may well be right.

MR JACKSON:   However, your Honours, can I give a reference to which of the teachers it was who had placed the limitations.

KIRBY J:   This was subject matter, was it?

MR JACKSON:   Yes, subject matter.  What I was going to say, your Honours, was this.  I referred to the Tribunal.  In the Court of Appeal a similar approach appears to have been taken.  May I take your Honours to three passages in Justice Beazley’s reasons in volume 7, commencing at page 2281.  Now, your Honours will see at page 2281, paragraph 7 where her Honour sets out their case at about line 25:

Their case is that teaching for at least that length of time has the same work value as the work of a permanent teacher of equivalent teaching experience.

Secondly, your Honours, page 2307, paragraph 83 where her Honour sets out the discriminatory effect of the condition.  I will not read it out, but your Honours will see it at the bottom of that page.  Thirdly, your Honours, page 2310, paragraph 92 where, in the last five lines, it is said:

Rather, the issue with which the Tribunal was required to engage was whether, given that there was a system of casual teaching staff, “it was unreasonable –

Your Honours will see the remainder of that paragraph quoting from the Tribunal.

Importantly, in relation to Justice Beazley’s reasons, if I could go to, a little further on, page 2322, it is the passage to be found in paragraphs 125 through to 128.  Your Honours will see that particularly paragraphs 127 and 128 seek to, if I may say so with respect, explain away the view taken by the Tribunal in paragraph 43 of its reasons which I have taken your Honours to already, but it can be seen at page 1601 in volume 5 where the Tribunal treated the statutory provisions as irrelevant.  Your Honours will see if I could go for a moment to our written submissions, we deal with this issue in paragraphs 47 through to 50 and our submission is that it is really quite plain, with respect, if one goes to the decision of the Tribunal that the Tribunal regarded these matters as irrelevant.

HEYDON J:   Mr Jackson, you adhere to the arguments which are summarised in paragraph 41 on page 1601 of the Tribunal’s reasons of which I think one is this statutory requirement argument which you have just drawn attention to in your written submissions.  Do you adhere to the other arguments?

MR JACKSON:   I am sorry, your Honour is reading paragraph 41?

HEYDON J:   Paragraph 41, do you adhere to the arguments there recorded and attributed to you?

MR JACKSON:   Yes, we do, your Honour.

HEYDON J:   Thank you.

GLEESON CJ:   Does this bring it down to the issue whether, absent any difference in work value of the kind being considered by Justice Beazley, it is unreasonable to pay casual teachers lower rates than permanent teachers?

MR JACKSON:   Yes, your Honour, it does.  That is the issue which arises in a sense, if I can put it that way, because to put it in that way does rather reduce the ambit of matters to be considered.  I would accept, your Honour, that is how the issue arises but to put it in that way simply does involve one simply looking at the matter as the Tribunal did, in our submission, on a pure work value basis, that is, were they doing similar work at the same time.  It leaves out of account the fact that one group of persons is employed on a permanent basis, the other employed on a casual basis and each has different conditions applicable to that employment.

KIRBY J:   There would be no doubt that, looked at from the point of view of an employer, there would be an economic value in having an employee who is disposable at short notice to any place according to the needs of the employer.

MR JACKSON:   Your Honour, having a pool of persons who would be available to do that and it is also no doubt valuable to have a group of persons who are able to take part‑time employment.

KIRBY J:   That would have economic value and presumably that is why in the Industrial Commission Justice Bauer determined that there was a differential applicable to those cases, but I thought I saw a suggestion that Justice Bauer had a reservation about this but did what he did because of the agreement of the parties, that is to say the Teachers Federation and the Department, that there should be this differentiation.

MR JACKSON:   I am not sure if your Honour is speaking of Justice Bauer or Justice Fisher.

KIRBY J:   I was referring to Justice Bauer because that is the only reference that I remember.

MR JACKSON:   Yes, there are some references to a Justice Fisher when President of the body asking whether this was all in accordance with the law and being assured it was.  Your Honour may not be thinking of that, but I will endeavour to find the reference your Honour is making to Justice Bauer.

KIRBY J:   It is not at all unusual in industrial awards to see differential rates of pay and benefits for casual and non‑casual employees.  It was quite a common provision.  It might be worth looking at why there was this differentiation, but I assume it was because of what appears to be the economic sense that an employee who can be deployed at the wish of the employer at relatively short notice has an economic value in the market which is translatable into money terms.

MR JACKSON:   Well, your Honour, there is a core of employees.  I mean, it is providing a public service and there has to be a core of teachers.  There have to be additional teachers and permanent teachers who are able to go from place to place if required and also, no doubt, there need to be persons who can fill vacancies for either short periods or relatively lengthy periods.

KIRBY J:   It may be that the respondents do not challenge that, but say, “Well, that is all very well but we now have the Anti‑Discrimination Act which falls upon such awards, the awards have been taken out of exclusion and it falls, as we can show by our evidence, and it has been accepted, more heavily upon women than it does on men”.

MR JACKSON:   Well, your Honour, one can say that some of those things are matters with which one would not disagree, but at the same time it is a question of what one is looking at.  If one is simply looking at something that is circumscribed by saying you look at it within this box or within these boundaries, should it be equal pay for equal work, then you get one answer I suppose.  But if you say you are looking at the whole of the conditions of employment as a basis for the differential, then you get another.

GLEESON CJ:   Has anybody ever explained or sought to explain how the amount of the differential is worked out?

MR JACKSON:   Yes, it is, your Honour.  Can I give your Honour a reference to that.  It has a historical aspect, I think, to it.

GLEESON CJ:   It is based on relativities, no doubt.

MR JACKSON:   Yes.  You will see part of it referred to in the award itself, volume 2.  When I say, “You will see part of it”, your Honour will see at page 515 of volume 2 that in dealing with casual teachers that the rates of pay in schedule 7, page 515 are set out in clause 6.  There is a reference in clause 3 to:

On completing 203 days of casual teacher service . . . a casual teacher shall progress to the next daily rate of pay –

Now, 203 days, if one took a five‑day week, is 40 weeks of course, plus a little.  No doubt the school holidays are taken into account.  You will see also in clause 4:

Less than 100 day –

which is defined in clause 1.1 –

supply and relief casual teachers may be paid an annual leave loading –

and, your Honour, I do not think that it is further explained in the paragraphs that go over to 517, but some of the relativities can be seen there.  I will endeavour to find a direct answer to your Honour’s question.

GLEESON CJ:   I imagine exactly the same issue arises in the legal profession amongst firms of solicitors.

MR JACKSON:   Well, your Honour, in courts that are not federal courts the issue arises in a sense in relation to the appointment of acting judges.  You will see one has judges, presumably the acting judges, doing work of the same value as a permanent judge.  If you take the case of a judge of a Supreme Court who retired at the age of, say, 62 and is appointed an acting judge for a period of three months or six months perhaps, then one could say that the acting judge should be paid on the same basis as someone who is a permanent judge, perhaps vice versa, whichever might be the higher rate, but the same type of issue could arise, not of ‑ ‑ ‑

KIRBY J:   But the respondents say that does not discriminate between acting judges who are male and acting judges who are female, whereas their condition does fall more heavily on teachers who are female than male.  They have a finding supporting them in that respect.  That is the anchor of their argument.

MR JACKSON:   Well, the point I am seeking to make, your Honour, is really slightly different from that.  The point I was seeking to make was simply that the desirability of having a permanent staff of people available can arise in a large number of contexts and that one can see the need to have throughout the courts and many other bodies that have permanent staff.

CALLINAN J:   There are part-time magistrates in Queensland now, Mr Jackson, I think also perhaps in Victoria, but I know the Queensland ones have quite different conditions from the full-time ones.  I also know that most of the part-time ones do seem to be women.

MR JACKSON:   Maybe the male case is the next one, your Honour.  It is not surprising; it is part of the way the world works, I fear.

CALLINAN J:   I do not think you can say “biology”, can you?  I think that is verboten, is it not?

MR JACKSON:   I am sorry, your Honour, I did not ‑ ‑ ‑

CALLINAN J:   It is forbidden, is it not, to mention the word “biology”?  I would not dare to do it; I am just referring to it as a forbidden topic.

MR JACKSON:   Your Honour, the ‑ ‑ ‑

KIRBY J:   But it is not forbidden to mention the biology if in fact a condition of employment falls more burdensomely on women than men.  Indeed, it is required to mention it because that is what the Act is all about, or one of the matters about which it is concerned.

HAYNE J:   In considering this question of “which is not reasonable”, one assumedly has first identified the “requirement or condition”.  I understand the premise for this aspect of your argument to be that the requirement or condition in issue is best identified as permanency.  Is it permissible to look to the question of reasonableness by subdividing the consequences of the condition of permanency into the consequences for pay as distinct from the consequences for transferability?

MR JACKSON: In our submission, no, your Honour. If one identifies – and I am assuming correctly for the moment – the condition in the way in which I have sought to describe it, then one does need to look at, if I could use the words of section 24(1)(b), what are “the circumstances of the case”. The circumstances of the case, I suppose, are capable of being described narrowly or broadly but, in our submission, the better view of the application of the expression is to ask, “What are the circumstances which are applicable and result in there being the differential?” The circumstances that bring that about include the fact that persons are employed on different bases. So, your Honour, our submission is that one would need to look at the large picture.

If I could go on in relation to this aspect of the matter, could we make this point, and it is the point which we have sought to make in our written submissions at paragraphs 60 through to 63.  Our submission is that the question ultimately was whether it was unreasonable for the teachers in all the circumstances I referred to a moment ago to be paid on the basis of the scales provided for in the award.  Could we refer to what was said in that regard ‑ ‑ ‑

KIRBY J:   Have you moved to the question of reasonableness now?

MR JACKSON:   I have, your Honour, yes.  I was seeking to say two things about it.  The first was that the Tribunal and the Court of Appeal had focused unduly on the question of work value, and I have made some submissions about that.  The second point I was going to make, your Honours, was that whilst the Tribunal was not bound by what was in the award - your Honours will see a reference in paragraph 62 of our written submissions – it was appropriate, in our submission, for the Tribunal to have reference to it as a potentially relevant factor.  Could I in that regard, your Honours, give a reference to the appeal Tribunal in volume 6.  At page 1918, paragraph 58 your Honours will see, if I could go to about line 25:

a limited number of permanent positions are available at any given time in any given place, and the Director General has an obligation to apply an objectively fair procedure for all persons wishing to acquire permanency.  It is not difficult to envisage the industrial unrest which would flow from the application of a differential procedure which benefited a particular category of applicant.  Nor is it difficult to recognise the practical impossibility of designing an alternative procedure which takes account of the myriad reasons why individual applicants may prefer permanent appointment to a narrow geographical area.

KIRBY J:   Can I ask about that?  I understand the point being made, but is it fair to say there would be industrial unrest if it were pointed out that the Department has to deploy a very large number of people – I think it is 57,000 – and there are advantages in having a pool that can be deployed anywhere, but there are also advantages of having somebody in situ who is a good teacher, who works from year to year and is re-engaged every time, and if it is pointed out that having this somewhat rigid approach to the increments falls more heavily on women and therefore it is necessary under anti‑discrimination law to adjust that more rigid approach, is that really going to lead to industrial unrest, or is that just going to lead to an acceptance that, “Well, some conditions of employment fall more heavily on women and that’s now forbidden.  Therefore, we’ve got to adjust to that fact”.

MR JACKSON:   Your Honour, if you have a situation where the salary – I suppose what one would have to do would be to say that all women who are casual teachers, of whom there are very many, are to be paid at the same rates as permanent teachers.  That then would, unless one did something about it, seem to have the result that all men who are casual teachers would themselves have to be paid at that same higher rate because that would itself seem to be potentially then the contravention of the anti‑discrimination law.

The point I am seeking to make about it is that what one sees is a situation where to remove the discrimination against women will itself create further discrimination and one would have to then remove that as well.

GLEESON CJ:   But the question you have been talking about is an industrial question.  Did the Teachers Federation have any input into the evidence in this matter?

MR JACKSON:   Not in the evidence, no.

GLEESON CJ:   Did they have any input into - did they intervene?  Does the Teachers Federation have a declared attitude on this issue?

MR JACKSON:   Your Honour would be better asking my learned friend, I think, than me in that regard.

GLEESON CJ:   I see.  A possible point of view is that everybody has taken too narrow an issue to the question of reasonableness.  I imagine that when these structural arrangements to which you have referred were set up in the first place and as a matter of history when the differential between permanents and casuals was fixed on in the first place, it is unlikely that anybody gave any consideration at all to how this would impact on the position of women.

I understand the criticisms you make of a process of reasoning based exclusively upon asking whether the permanent person teaching in classroom No 7 has a higher work value than the casual person teaching in classroom No 8, but if you wanted to look at the question of the reasonableness of the entire system by which teachers are divided into permanents and casuals, including terms and conditions in relation to mobility, in the light of anti-discrimination legislation, you would have to re-open the whole thing, would you not?  I am not saying that should not be done, I am just saying that the criticism of the focus has been too narrow might be a criticism that would apply to both sides of the argument.

MR JACKSON:   What your Honour puts to me may be right in relation to applying to both sides of the argument if one were looking at it from the point of view of a legislator or a law reform body but one does not have that position.  I have used the expression before I think that one should really start, in effect, with the statute pursuant to which a Teaching Service exists and that does itself contemplate that there will be teachers who fall into a number of categories.

GLEESON CJ:   There is nothing in the statute, is there, that says they will be paid differently?

MR JACKSON:   No, that is quite so, your Honour, but at the same time that is a possible consequence of it and a very likely one, in our submission.  They necessarily, one would think, have to be paid on some different basis because they are persons who are employed for different terms and matters of that kind.  Your Honours, I referred to paragraph 58 I think of the appeal ‑ ‑ ‑

KIRBY J:   Your argument is really a very simple one, that in focusing only on work value of what they are doing in the classroom, they did not take the broad spectrum that reasonableness requires which also imports issues such as amenability to be deployed in a remote and maybe undesirable – or undesired country town as against somebody who can just stay where they want.

MR JACKSON:   Yes, that is so, your Honour.

HAYNE J:   Proceeds from the assumption that you can subdivide the requirement or condition and its consequences.

MR JACKSON:   Yes, that is so, your Honour.  Your Honours, could I just say in relation to the question of the award, the respondents have suggested, I think, that this issue was not raised below.  We have given your Honours a document which is headed “Appellant’s note concerning paragraphs 147 and 164 of the Court of Appeal’s reasons”.

KIRBY J:   Is this addressed only to the statutory argument?

MR JACKSON:   No, it goes beyond that, your Honour.  I am going to refer particularly to paragraph 6 of it and to the item 6(c) on the last page.  Your Honours, without going to the detail of it may I refer particularly to volume 5, page 1469 and pages 1481 to 1482 and to the Appeal Panel’s observations in volume 6 at page 1917, paragraph 57.  Your Honours, may I move then to the final issue with which I wish to deal and that is the question of a merits review.

KIRBY J:   Can I just ask you, on the question of the non‑alleged non‑referral to the statute, does that ultimately matter?  I mean, the statute is part of the law of the land and it is the duty of the tribunals and the Court to have regard to it for whatever implication it may have for the case.  I do not quite see the point.

MR JACKSON:   Your Honour, it does not, in our submission, matter, but it is, in our submission, with respect, erroneous.  Your Honour will recall I referred three or four times now to paragraph 43 of the Tribunal’s reasons where it rejected the argument.  I mean, it is manifest the argument was advanced.  They refer to it in paragraph 41, then they reject it.  The Appeal Panel thought it was important and the Court of Appeal dismissed it in, I think it is about paragraph 185.

KIRBY J:   As I understand the respondents’ argument on this, it is that if you had only raised it clearly, they would have wished to cross‑examine the principal witness of the Department to suggest that this did not really play a part in considerations?

MR JACKSON:   Well, your Honour, it is difficult to see – I have given your Honour the reference to I think already the two passages in the decision, but it is manifest, if one looks at paragraphs 41 and 43 of the Tribunal’s reasons, that this was a matter in issue.

They refer to it and, your Honours, no doubt it might have been put perhaps at much more length and repetitiously, as I am doing today but, with respect, the issue was put and we have referred to the passages.

Your Honours, the last matter I wish to deal with is the question of merits review, and may I seek to explain what I mean by that.  Under – I think it is the first of the statutes in the book of statutes that your Honours have, but under the Administrative Decisions Tribunal Act section 113 your Honours will see in subsection (2) that:

An appeal:

(a)      may be made on any question of law, and

(b)with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

The Court of Appeal – and if I could take your Honours to volume 7 at page 2328, held that the Appeal Panel had conducted a merits review.  It is in paragraph 144 on page 2328, and your Honours will see that it said:

However, if the outcome of the appeal would otherwise be to reinstate the Tribunal’s determination, the Department seeks to maintain its application for leave to appeal on the merits contending that the Appeal Panel failed to deal with that application.  The Appeal Panel did not expressly state that it dealt with the application.  However, having found error in the Tribunal’s reasons, the Appeal Panel then considered whether the requirement to have permanent status was not reasonable.  That involved a merits review -

So the Court of Appeal held that the Appeal Panel had done so.  In the Court of Appeal our side sought an order that the matter be remitted to the Appeal Tribunal to deal with an appeal on the merits or dealt with by the Court of Appeal itself on the merits.  In the end, your Honours – and our learned friends make some submissions about what course was or was not urged – but in the end what we urged on the Court of Appeal was that they adopt the latter course, that is, to determine the issue themselves.  Your Honours will see that proposition being put by Mr Menzies who was then appearing in volume 7 at page 2239 between lines 15 to 35, and I accept that is the submission that he put to the Court of Appeal.

GLEESON CJ:   Could you repeat that reference, please, Mr Jackson?

MR JACKSON:   Page 2239, lines 15 to about 35, I think, your Honour.

KIRBY J:   Could you just enlighten me as to what the merits are, save for the sort of matters that you have been dealing with?

MR JACKSON:   Your Honour, the merits review would be to consider the matter on the whole of the evidence that was before the Tribunal, which is a considerable amount as your Honours will have seen.

KIRBY J:   It already took three days in the Court of Appeal so presumably they went to quite a bit of the evidence?

MR JACKSON:   Well, your Honour, the point I am going to is that they did not then deal with it, in effect.  So it is a question of the merits.  It involves a consideration of various factors including the ones to which I have referred.  When I say various factors I mean the evidence of the witnesses and they went into some detail about the desirability or non‑desirability of having the system.

GUMMOW J:   The footing for the Court of Appeal was section 119 was it, of the Administrative Decisions Tribunal Act?

MR JACKSON:   Yes, that is so, your Honour, 119, 119(1) and then the powers of the Supreme Court of section 120.  This matter I suspect was before the Court of Appeal because the judge was a member of the Tribunal that was appealed from, to put it shortly.

GLEESON CJ:   Well, Judge Latham was presiding of the Tribunal.

MR JACKSON:   Yes, her Honour then was.  Your Honours, the course adopted by the Court of Appeal appears in paragraph 144 ‑ ‑ ‑

GUMMOW J:   I am sorry, Mr Jackson.  How do 119 and 120 work?  One has in mind the old tax provisions.  The appeal is on a question of law.

MR JACKSON:   The appeal is on a question of law.  The Supreme Court is to hear and determine the appeal and make the orders it thinks appropriate in the light of its decision, section 120.  They could make - 120(2)

an order affirming or setting aside the decision of the Appeal Panel ‑ ‑ ‑

GUMMOW J:   Or send it back.

MR JACKSON:   Or send it back, yes.  Now, the possibilities were ‑ ‑ ‑

GUMMOW J:   Our concern is whether the Court of Appeal somehow misapplied 119 and 120.

MR JACKSON:   Yes, your Honour, and what I was going to say about it is this, if I may.  If one goes then to see what the Court of Appeal did, one can see that from ‑ ‑ ‑

GUMMOW J:   Before one leaves 119 and 120, are these sections picked up in one of the general provisions in the Supreme Court Act dealing with the Court of Appeal, 75, 76 and 68?

MR JACKSON:   The answer, I think, is yes, whether specifically or not, I am not sure.  I will check on that, your Honour.

GUMMOW J:   Yes, thank you.

MR JACKSON:   The answer is yes, they are picked up, if not by specific reference then by reference to ‑ ‑ ‑

GUMMOW J:   There may be some supplementation of the sections 119 and 120 as a result of that.

MR JACKSON:   Yes, your Honour.  I will check on that.

KIRBY J:   Could I just ask, your complaint, as I understand it, is that you did not have any review – you lost on the merits before the original Tribunal and you never thereafter had exercised one of the two streams of rights which you have which is to have an appeal on the merits.  Even if you lost all your legal complaints you still had by leave an entitlement to have the whole matter reconsidered on the merits of the determination.  Is that ‑ ‑ ‑

MR JACKSON:   Well, your Honour, if one assumes for the moment what appears at page 2328 about line 35, the majority in the Court of Appeal held that we had had a merits review in the Appeal Panel.  Now, we had succeeded on that but the course that the Court of Appeal adopted, one can see in the same paragraph that a little further down it said:

The Department did not satisfactorily explain to this Court what issues it wanted to ventilate in its merits review application that were not ventilated before the Appeal Panel on its consideration of the question whether the condition was not reasonable.

Now we had succeeded in the Appeal Panel and her Honour then says:

In these circumstances, where I consider that the Department has had a merits review I would not entertain an application by the Department either that this Court determine the application for leave to appeal on the merits or that the matter be remitted to the Appeal Panel ‑ ‑ ‑

KIRBY J:   I am just trying to understand what is behind Justice Beazley’s thinking.  Is it that you had had a hearing on the merits but you contest that you had had a hearing on the merits because you won on a point of law?

MR JACKSON:   Your Honour, I am prepared to accept that we have had a hearing on the merits, that what her Honour says is right.

KIRBY J:   Not a determination on the merits?  Is that ‑ ‑ ‑

MR JACKSON:   But we succeeded on the merits in the Appeal Panel.  I am sorry, your Honour, I did not want to be ‑ ‑ ‑

KIRBY J:   Well, does that not mean the premise is correct that her Honour is acting on?

MR JACKSON:   Your Honour, I accept for present purposes that she was perfectly entitled to say that the Appeal Panel had conducted a merits review.  Now, they had.  We won, but the decision of the Court of Appeal was to set aside the decision of the Appeal Panel, but then to say, “Because you’ve had one go there you can’t have another one” but the decision was being set aside.

GLEESON CJ:   Justice Beazley is possibly responding to what Justice Hodgson said in paragraph 199 on page 2346, but Justice Hodgson was talking about the Tribunal, not the Appeal Panel.

MR JACKSON:   Yes.  Well, he was saying “an error of law by the Tribunal” in that paragraph yes, your Honour.

KIRBY J:   But is not the scheme of the Act that you do not get an appeal on the merits as of right, you only get that by leave, and Justice Beazley, by the time it got to the Court of Appeal, has said, “Well look, you’ve had one bite of the cherry.  You won, but you won on the wrong basis and you didn’t make it clear that you wanted to have another further appeal on the merits.  In any case, it has to be in effect by leave, and we’re not giving you leave.  Enough is enough.  This has gone on too long.”

MR JACKSON:   Your Honour, the provider of the cherry is relevantly the Appeal Panel, with respect, because under section 113(2)(b) it is “the leave of the Appeal Panel”.  If the situation which emerges is that it is said, “You had your appeal on the merits before the Appeal Panel and you succeed, but we think there was an error of law on the part of the Appeal Panel and that decision’s set aside”, it seems difficult, with respect, to see a principled reason why the right answer would not be to remit the matter to the Appeal Panel for it to reconsider the merits.

GLEESON CJ:   It is the opening sentences of paragraph 144 that lead into the rest, is it not?  There was a submission made on behalf of the Department before the Court of Appeal.

MR JACKSON:   Yes, your Honour, saying that “the Appeal Panel failed to deal with that application.”  That is how one is led into it, your Honour.  But in the end it is – I am sorry, your Honour, I am putting it badly.  If one adopts that as how one gets to the issue, the resolution of the issue seems remote from the introductory part.  What I mean by that is it is one thing to say, “You are wrong in saying that the Appeal Panel didn’t deal with the merits review.  It’s another thing to say you can’t have a merits review even though we set aside that decision, and the merits review is in your favour”.  Your Honour, I think I would be repeating myself if I said more about it.

KIRBY J:   This is a discretionary matter, is it not, in disposing of the – I do realise the complaint you are making but one would have a bit of sympathy for an appeal court saying, “We’re not going to do it and, as to sending it back for them to do it again, enough is enough, it’s gone on too long and we’re not going to do that”.

MR JACKSON:   Your Honour, if one assumes that it is an appeal from the exercise of a discretion, could I say that if one left aside the first three criteria for setting aside an exercise of discretion, error of law or failing to take into account relevant or take into account irrelevant matters, it remains the last of those criteria, namely that the result arrived at is so remote from the facts giving rise to the issue, that the decision should be set aside.  That is this case.  Your Honours, those are our submissions.  I rely of course on our written submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Dr Birch.

MR BIRCH:   Your Honours, if I could adopt this course.  I would like to go back and draw attention to a couple of aspects of the award and then to look at the matters that were touched upon in the decision of Justice Bauer.  That decision had a great role to play in the decision at the Tribunal level, although it became less significant as the matter progressed up the course. 

If I could start by just highlighting - Mr Jackson has already taken your Honours to the award, but if I could just emphasise one matter from the scales themselves.  It is important to our argument concerning “requirement or condition”.  If I take your Honours to page 509 in volume 2 of the appeal book, the common incremental scale which applies to permanent teachers as it then was is there set out with the 13 steps.  If one just takes for convenience the last column, although there are different rates because the increases were brought in in a staggered fashion, if one takes step 8 of that scale, that shows an employee there obtained an annual salary of $40,000-odd and for step 13 an annual salary of $50,000. 

If one then goes forward to page 514 which sets out the casual teacher rates, Mr Jackson has already pointed out what one has here is a daily rate and that is obtained by taking the annual rate in the common incremental scale and dividing it by 203, which was the accepted number of school teaching days in a full school year.  So if one takes again the last column on the right‑hand side and takes four year step 4, that is the highest level for a four year – that means four-year trained and that refers to the nature of the qualification.  For a four‑year trained teacher on the top level, the daily rate as at 1 January 1999 was $199.88.  If one multiplies that by 203, that gives you the $40,576 figure that is back in the common incremental scale for a step 8 teacher.

The other columns prior to that, 3, 2 and 1, correspond to the prior steps in the common scale, step 7, step 6 and the like.  So the point simply is that when one looks at the way casual teachers were remunerated it was not a formula which stood on its own and was calculated without regard to the work of permanent teachers but was one derived from the permanent scale.  Indeed, the way it operated was that when you commenced, if you had a permanent and a casual teacher who were starting below step 8, they actually had a common rate of remuneration until step 8 was reached and then after step 8 was reached the permanent teacher could keep on going on, the casual teacher stayed where they were.

KIRBY J:   What was the theory, do you know, of the 13 steps?

MR BIRCH:   Your Honour, there were some documents before the Tribunal.  I do not think they ultimately found their way into the record.  They showed that the general structure had a very long history.  It went back well before the 1980s.  I am about to take your Honours to ‑ ‑ ‑

KIRBY J:   It probably went back to the 19^th century.  Many things in the Department did.

MR BIRCH:   I certainly cannot suggest there was any document showing it went back that far.  If your Honours go to volume 3 of the appeal book, the decision of Justice Bauer is set out there commencing at page 861. 

HAYNE J:   We should read this as in aid of what proposition?

MR BIRCH:   It provides some of the historical background which answers certain of the questions that were asked by Justice Kirby a moment ago, but it also does this, that it gives some explanation of the form of the award as it existed at the time of the hearing.  This decision of Justice Bauer was a matter of some significance to the Department before the Tribunal.  Before the Tribunal the Department argued that there had been a determination that work value of casual teachers had been examined and, therefore, at least one argument put was that the Tribunal should not seek to review or go behind or redetermine the question of casual teacher work value which had been considered by Justice Bauer.  It had been considered by Justice Bauer, of course, some 17 years before the hearing in the Tribunal.

KIRBY J:   Is that a different argument to the argument that it was reasonable for the employer to conform to Justice Bauer’s award?

MR BIRCH:   The argument undergoes a transformation between the Tribunal and the Court of Appeal.  In the Tribunal the Department said that Justice Bauer had looked at the question of casual teacher work value, he had made a determination, it was a good one and the Tribunal should not come to a different one.  The Tribunal judgment itself speaks of the award sometimes.  It also speaks of the practice of the Department in paying as something distinct from the terms of the award. 

This became important in the Court of Appeal where it was highlighted that what was really being spoken about was not the award simpliciter, but the Department’s practice of following the award.  We accept that that is a correct description of what it was that was being complained about.  In other words, this was not a case where we were inviting the Tribunal to directly, so to speak, review or alter the award.  What the complaint was was that in following the award in regard to all casual teachers in all circumstances the consequence for what were called supply casuals was indirectly discriminatory.

GLEESON CJ:   Does “reasonable”, having regard to the circumstances of the case within the meaning of 24(1)(b), include reasonableness having regard to the general industrial settlement that is involved in the award system and the particular award?  I have in mind a question whether reasonableness might include a desire not to upset the industrial applecart.

MR BIRCH:   Your Honour, we would accept that the award could bear upon the reasonableness issue in a number of ways and one could at least envisage how a departure from the award in a particular fashion could have some adverse industrial consequences. 

Now, we say that was never part of the controversy before the Tribunal, but Justice Hodgson in his judgment says, and summarises it rather neatly, that one can look at the reasonableness of the award itself as one question and that, he suggested, was the way the Tribunal had approached the question.  Then he also says there can be another issue.  That is the reasonableness of a practice of always following the award in all circumstances independently of the intrinsic reasonableness of the award.  They are not precisely his Honour’s words but they are close to it.  I have got the citation in our submissions.

GLEESON CJ:   Well, I suppose he had in mind that in an industrial context, once one issue is raised for renegotiation or reconsideration, there may be no way in which you can limit the ensuing reconsideration or renegotiation to that issue.  Why would you only look at this question?

MR BIRCH:   Your Honour, one could well imagine, if one sought to pull out the brick that held up the industrial structure, that one might risk bringing the whole thing tumbling down and that would be a good reason for finding it was not reasonable in all the circumstances.

GLEESON CJ:   That was why I was curious to know what, if any, input the Teachers Federation had into these proceedings.

MR BIRCH:   Well, your Honour, the Teachers Federation did not appear in the proceedings.  There is a passage in the Tribunal judgment where the President of the Tribunal, Mr Peter King, asks whether the Federation have been invited to intervene and he was told by both sides that, as they understand it, the Federation would not be appearing or taking any part in the proceedings.

GLEESON CJ:   I see.

KIRBY J:   You make a point that your clients might not have standing in the Industrial Commission to pursue entitlements to have the award changed and thereby to solve the problem there and that your clients are asserting their rights under the anti‑discrimination law to pursue their entitlements along that stream, because sometimes federal unions attend to the majority and may not always be attentive to minority interests?  That is at least the inference I drew.

MR BIRCH:   Yes, we made those points in our submissions and we say that they are important ones because each of the 13 respondents had standing as of right to go to the Tribunal to make a complaint about the wages they were paid, whether or not those wages were being paid at the rate set by an award, and to, under the machinery of the Anti‑Discrimination Act, complain about being paid what in a practical sense was an award wage. 

We did not ever step back from the consequence or the possibility that there could be a further implication from our case for the conduct of the respondent.  In fact, ironically at the Tribunal the Department on several occasions said that it was a just a case about 13 teachers and it was strictly speaking, but we acknowledge that when one looked at the question of reasonableness, one had to look at the practices of the Department in a more general fashion because the Department hired over 50,000 permanent teachers and over 20,000 casual teachers.  We acknowledge that there was not a practical possibility of the Department making some sort of work value judgment for each of the 75,000‑odd teachers, so we always embraced the point that we had to show that the way the case was conducted did not pull the brick out, so to speak, that held up the industrial foundations for the Department.

We could only anticipate, as best we could, what matters might be relevant to the question of reasonableness.  We bore the onus of showing that the conduct was not reasonable, but we would not be privy to every administrative consideration that might bear upon the Department’s industrial and administrative operation, and to some degree we were in the Department’s hands to raise an issue, we would ultimately bear the onus of it, but to raise an issue and put into the controversy the question of whether there was a justification for what happened deriving from some industrial administrative question or the like.

Now, there was not before the Tribunal any argument put that if there was a payment of casuals who were supply casuals up to the 13th level, that that was going to have an industrially disruptive effect other than in this regard.  It was said, “If we do it for your clients, it would be discriminatory unless we did it for anyone in a comparable position”, and our argument has always been – we acknowledged this before the Tribunal – you might have to do it for anyone in a comparable position.  But there was then no further argument from the Department if we did it for everyone in a comparable position then that would play havoc with some unspecified aspect of our industrial relations or administrative structure.

GLEESON CJ:   Why would all casuals not be in a comparable position?

MR BIRCH:   Because the background to this is set out in Justice Bauer’s report, if your Honours look for a description of the history, but what he there records is that the casual teaching core has in the last 25‑odd years been accepted to divide into roughly two categories.  There are what are sometimes called relief casuals or short-term casuals – these are the casuals who are hired for a day or a week when a teacher is sick with the flu or something like that – and then there are what are called supply casuals or long‑term casuals.  It might be that a teacher has taken extended leave, leave without pay, maternity leave or the like.  This is usually known in advance and a casual teacher is hired to work at the school for a significant block of time.  It might be a term, two terms; it might be a full year.

The complainants were all supply casual teachers.  They were teachers who were working for periods usually of a term, in some cases several terms.  One of the respondents, Marcia Skelton, had taught in the same school for five years on a casual appointment, it being rolled over at the end of each year.  The evidence contained in her statement and cross‑examination shows that she taught side by side with the permanent staff in what was effectively a fashion that could not be – there was no difference in the way she taught or the way she acted as a teacher in the school.  Her participation in committees, in extracurricular activities, in everything else was identical.  So if you were a fly on the wall, so to speak, observing these teachers, you could not have picked whether people like that were permanents or casuals unless you had access to the file which showed the nature of their appointment.

KIRBY J:   But going back to the line of questions the Chief Justice was asking you, unless you have systemic solutions or remedies, the net result of this is that certain casual supply teachers are given a higher rate of salary because they are women than the male teachers would get.  I could well understand that that could lead to a very severe feeling of injustice on the part of the male casual teachers, because many of them on an individual basis might be in the same position, that they could not move because their wife has a job, or their partner has a job, and they cannot go to another town.

MR BIRCH:   Your Honour is right that we effectively embraced the point that there had to be a systemic or general approach and we made that part of the case ‑ ‑ ‑

HAYNE J:   So much followed from 24(1)(a), did it not?

MR BIRCH:   Yes.

HAYNE J:   If 24(1)(b) was infringed in the case of the female teacher and that was to be remedied by alteration of the pay, the inevitable consequence would be, would it not, that 24(1)(a) would be engaged in respect of the equivalent male?

MR BIRCH:   Indeed, we ourselves made that point in the Appeal Panel in the Court of Appeal when it was said that a consequence of our case was that men would be paid less and it would cause discrimination.  Our response was, “Well, no.  You could not pay the men less.  That would be discriminatory.  You have to pay everyone in the same fashion”, but the ‑ ‑ ‑

KIRBY J:   But the actual remedies you finally sought and received were just damages to these 13 applicants.

MR BIRCH:   They were.  This was not a class action.  There was not relief sought in the form of a general audit that would apply to all teachers but the fact was that once the decision was brought down and the matter was determined, there was the potential for the decision to have an effect upon the way the Department treated other teachers and we accepted that that would be a matter that would bear unreasonableness because it would be peculiar in a profession like this to come along and say, “We want you to treat these 13 respondents one way and put out of your mind the way you will treat the other 75,000 of your staff”.  The way it was dealt with in the respondent’s case was this, and your Honours may have seen in the materials reference occasionally to eight weeks as a critical period.  That was the respondent’s answer to the general or systemic question.

The evidence that was led on work value was led from the 13 respondents and by the teachers’ side for other teachers who were principals of schools and that was to the effect that by the time one had reached eight weeks of an appointment at a single school the work value of a teacher over that period had reached equality, in all practical terms, with that of a permanent member of staff so our answer to the general systemic question was this.  You ought to treat these 13 respondents as entitled to being paid the same rates as permanents where as supply casuals they have undertaken an appointment at a particular school that has been for eight weeks or longer because they will have achieved equal work value.

There was a lot of time taken at the Tribunal level about whether it should have been eight weeks or six weeks or four weeks or two months or six months.  We did not press a claim for treatment for supply casuals comparable with permanents for anyone whose appointment was less than eight weeks.

HAYNE J:   How does the specification of a period, be it eight or some other period of weeks, fit with the reference in 24(1)(b) to “requirement or condition”?  How do you articulate the relevant requirement or condition in a way that builds in the eight-week period which you now say is the appropriate period?

MR BIRCH:   It was argued this way before the Tribunal and it has been argued this way all the way through.  What we put was that if you were a supply casual teacher, you were required to comply with the requirement or condition of obtaining permanency before you could access the higher rates of pay.  What we have to do for convenience is to write into the term “supply casual”, if you like, the meaning of the term “supply casual” in the case.  A supply casual was a long-term casual or a casual who had an appointment greater than eight weeks.

The point is this, that one would say if you were sent into a school for a day to relieve a teacher who was sick, then the job is a very, very different one from what a normal permanent teacher does.  If you go to a school and you perform a whole school year’s work alongside the permanent staff, it is hard to argue that there is any practical difference.  Even the Department’s witnesses seem to struggle with the suggestion there was a practical difference in what happened in the school, so there had to be a line drawn.

KIRBY J:   Is not the flaw in this argument that we are not in the Industrial Commission, nor are we the Full Bench of the Industrial Commission, nor are we in the Industrial Tribunal.  We are looking at a statute that talks of “reasonable in all the circumstances” and that at least on one view that phrase imports, as well as work value in the classroom, the reasonableness of having a pool of teachers who can be deployed as needed in this very large bureaucracy, and that that is imported into the notion of reasonableness and that the error of the court and of the Tribunal at first instance was in focusing too narrowly on work value, which is a sort of industrial relations issue, as distinct from more widely on all the questions of reasonableness, which include deployability.

MR BIRCH:   Your Honour, we would submit that we dealt with that issue in this fashion.  The Department’s witness, Heather Gray, gave evidence about the value of a large pool of casual teachers to the system and we integrated that into our own argument.  Our argument was that what our complaint was was that where long-term casuals came to perform the same tasks as permanents they should be paid accordingly but we were not asking to merge the category of casual, or long-term casual, into permanent.  The 13 respondents do not come to court and say, “As part of our relief we should have been made permanents” or “The Department should have been ordered to give us permanent appointments”.

GUMMOW J:   That is the point.

HAYNE J:   Does that not take you to the point?  After the adjournment I would be grateful if you would articulate a final position about how 24(1)(b) is to be read to accommodate the case you make against the background posed by this question.  It seems that you read it as the Department requiring the aggrieved person, the 13, to comply with a requirement that eight-week supply casuals be permanent teachers and that that requirement was not reasonable.  That, at the moment, is the only way in which I can accommodate the submissions that you have thus far made with the words of 24(1)(b) and it is an accommodation that seems not to address the complaint you make which is a complaint about money.  As I say, you may wish to think about it over the adjournment and have it in a final form but at some point you have to make that accommodation, I think.

MR BIRCH:   Your Honour, could I perhaps attempt to grapple with it now.

GUMMOW J:   Before you do that, looking at 113(1)(b)(i), what is the rationale for not having damages in a representative complaint?

MR BIRCH:   I am sorry, your Honour, what I meant was that we had not brought ‑ ‑ ‑

GUMMOW J:   No, I am just looking at the construction of the section.  What is the rationale on the construction of 113(1)(b)(i) for no damages in the representative complaint and should not this case have been a representative complaint?

MR BIRCH:   Well, your Honour, I suppose one point would be that usually with the assessment of damages it is going to depend upon the individual characteristics and even in class actions it is common to then proceed to sever the representative part of the proceeding and deal with each individual on their merits when it comes to assessment of damages.  I cannot, I am afraid, tell your Honour as to the logic behind that section.

GUMMOW J:   What is the provision for representative complaints?

MR BIRCH:   The provision for representative complaints is set out in section 88(1A).

GUMMOW J:   Thank you.

MR BIRCH:   Your Honour, actually I should be careful here because – yes, I am using a reprint that is not quite – your Honour probably needs to go to the one in the binder.

GUMMOW J:   Yes.

KIRBY J:   Which Act is this?

MR BIRCH:   This is the Anti-Discrimination Act, your Honour.

GUMMOW J:   There was a power of the Tribunal, was there not, to require the joinder of the union under section 98 of its own motion?

MR BIRCH:   I think that is right, your Honour.

GUMMOW J:   If one is getting into these industrial issues, which this application seems to be doing, it just seems to be an odd use of the Act that 13 people walk away with some damages, the system remains as it is, a player with an enormous interest in the system, namely the union, is not joined and there is no structural relief under 113(1)(b)(ii) ‑ ‑ ‑

MR BIRCH:   Well, your Honour, in fact there are some points we wanted to make ‑ ‑ ‑

GUMMOW J:   ‑ ‑ ‑ and the product is inequality, fresh inequality, between the lucky 13 and the rest.

KIRBY J:   But this is not entirely unusual.  I remember in the Qantas older cabin staff there was a group, I think, of 13 Qantas cabin staff and they brought their objection to the fact that at the time Qantas was only employing young cabin staff – Gubbins I think the case was – and they won in the Court of Appeal and the result of that was that Qantas changed its employment policy.

MR BIRCH:   Yes.

KIRBY J:   These things are brought by people who have commitment and the result follows further down the track.

MR BIRCH:   If I could just say in response to Justice Gummow’s question, there are some provisions in the Industrial Relations Act which I would like to take your Honours to immediately after lunch.

GUMMOW J:   Yes, that is why I raised it now.

MR BIRCH:   But can I just make one point in regard to this case.  This was an award, and prior to the award an enterprise agreement, that was – and I hope I am getting all the terminology correct – what is called an enterprise award.  In other words, it deals with one employer and their employees.  In fact the award was between the Department on the one side and the Federation on the other.  Now, while the Federation was not present in the proceedings, one party to the award was, the Department ‑ ‑ ‑

GUMMOW J:   The only one.  That is the problem.

MR BIRCH:   Only one, but the teachers were asked some questions about their relationship to the Federation and I think one or two of them actually gave evidence that they were members.  I think that was clear from a question asked by Mr Menzies of at least one or two of them.  There has been no suggestion that the Federation was unaware of the proceedings and if they had known they were on would have scurried up to the Tribunal and sought to intervene ‑ ‑ ‑

GUMMOW J:   They wanted to keep their head below the parapet, but a question is whether the Tribunal should have let them keep their head below the parapet or, alternatively, simply declined to grant damages as the remedy for the lucky 13.

MR BIRCH:   Your Honour, if the Department had considered that the teachers were gaining some illegitimate advantage by the Federation not being joined, then it really behove the Department as a party to the proceedings with an interest in the outcome to at least urge the chairman of the Tribunal – and he raised that matter ‑ ‑ ‑

GLEESON CJ:   He was called the judicial member.

MR BIRCH:   He was, yes.  It was Mr Peter King.

GLEESON CJ:   It was Peter King, the barrister.

MR BIRCH:   Yes, that is correct.  He was a barrister in private practice at the time, not of course when he was a parliamentarian.  He asked this question and there was no move or suggestion by the Department that the Federation should be brought into the proceedings, but there are some other provisions in the Industrial Relations Act which, in our submission, we say show that the way the matter went was contemplated by the legislative structures in place.  There was no reason in particular why one should have had the Federation there.

GLEESON CJ:   Is that a convenient time, Dr Birch?

MR BIRCH:   It is, your Honour, yes.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT’

UPON RESUMING AT 2.19 PM:

GLEESON CJ:   Yes, Dr Birch.

MR BIRCH:   Your Honours, if I could just complete a response to a matter raised by Justice Gummow before the break and then answer Justice Hayne’s question, then I can return to where I was.  We have been looking during the lunch hour but I cannot locate some of the passages I had in mind regarding the question of whether the respondents belong with the Federation or not, so the position is I do not have something to offer one way or the other.  The only issue is that I walk a fine line because I do not want to give the Court the false impression that there was no connection or association or have the Court draw that inference because that would be a wrong inference.  I do not know that it is relevant or bears on the issues now before the Court in any event.  If the Court thought it did then I can seek to offer further clarity on it.

The real matter that was raised by Justice Gummow was whether the Federation should have been a party and can I deal with it in this way?  As I have said already the Department, one of the parties to the award, was before the tribunal in any event.  The Federation ‑ ‑ ‑

GUMMOW J:   The real point was whether relief of this sort should be given in the absence of a representative action.  The net result is that this situation produces no common rule.

MR BIRCH:   It does not ‑ ‑ ‑

GUMMOW J:   All it produces is “a windfall”, to use that expression, not pejoratively, for a particular collection of people of a very large class.

MR BIRCH:   It produces immediate relief for those who have come along as the complainants.

GUMMOW J:   There is no right to relief under this Act.  It is not a cause of action.  The section says “may”.

MR BIRCH:   There is an inquiry and the Tribunal can then proceed to give discretionary relief under section 113.  Perhaps I could put it this way, your Honour.  If it had been a point raised in defence that the Tribunal, in exercising its discretion to give relief as opposed to determining whether or not conduct was discriminatory, should have refused relief on the ground that it did not have before it all of the parties to the award, then we would say that that was not a point that was raised before the Tribunal.

GUMMOW J:   That is undoubtedly so.

MR BIRCH:   If it had been raised, one possibility is that the judicial member could have ordered that the Federation be joined as a further respondent.  The Federation might have come along and said, “We simply submit to any order” or “We support the complainants’ action but we don’t have anything to add”, and then the Tribunal would still be back in precisely the position that it was in in any event at the end of the hearing.

It is not the case that someone can point to a matter where there was, for example, prejudice to the Federation as a party to the award and that that prejudice to the Federation ought not to have been permitted by the Tribunal; it should have given the Federation an opportunity to be heard or something of that sort.  We would say that there is no basis for suggesting that there was some operative problem in consequence of the Federation not being a party, and the Department itself as the other side, so to speak, was there with all the opportunities available to it as a party.  Your Honours, I will return a little later to deal with the way the two jurisdictions interact within the statutory framework. 

Could I just turn to Justice Hayne’s question. I think when I was answering it before the luncheon break, I was trying to compress my definition of issues into section 24(1)(b) and that might not be the correct way to do it.

Section 24(1) effectively expands out the phrase, “discriminates against another person . . . on the ground of sex” which is part of the opening of section 25(1) itself so the requirements of 25(1)(b) requires the aggrieved person to comply with a requirement, terms which need to be read into 25(1), so the answer that I would give to Justice Hayne would be that the way we would put the case would be that it was unlawful for the employer to require one or other of the teachers to comply with the requirement or condition of permanency. We then go further into the words of 25(1)(a) or 25(2)(a) in the arrangements that the employer made for offering remuneration where they performed work as casual supply teachers meaning thereby casual supply appointments of greater than eight weeks.

GUMMOW J:   Offers remuneration or offers employment?

MR BIRCH:   It would be the offer that they make to remunerate them which is what brings 25(1)(a) in and 25(2) is the continuing terms.  We really say it could be fitted into either 25(1)(a) or 25(2)(a).

KIRBY J:   Does this Act follow or precede the adoption of the Convention for the Elimination of All Forms of Discrimination against Women, do you know?  Does it give effect to that Convention on a State level or not?

MR BIRCH:   It does not expressly purport to but your Honour has caught me as to whether the international convention preceded or not.  This Act, of course, is older than the Commonwealth Act.

KIRBY J:   I think this Act preceded the adoption of the Convention, this is 1977.

MR BIRCH:   Yes, and certainly there is not, for the State, a constitutional need to point to an international convention.

KIRBY J:   I realise that but sometimes, in other States, we have seen laws that are designed to give effect to international conventions and then you pick up the baggage of the convention and you interpret the law in accordance with the purposes of the convention, so far as you can.

GUMMOW J:   The origins of this are in the United States and British legislation, are they not?

MR BIRCH:   Yes.  In the judgments in both Banovic and Waters there is reference to the existing discrimination jurisprudence that had been developed in the United States.

GUMMOW J:   Particularly respecting indirect discrimination.

MR BIRCH:   Yes, that is probably the most direct ‑ ‑ ‑

GUMMOW J:   Which in turn inspired to some fairly significant degree in the British legislation in the 70s, did it not?

MR BIRCH:   The British legislation did precede this Act and some of the wording of it appears to have come from that.  So the point that we have made in our written submissions is that when one looks at the question of requirement or condition it is very important to not just look at this issue of permanency as if it floats around on its own, but the fact that permanency is used as a way of deciding whether certain incidents of employment will be made available to certain members of the staff where there are certain rates of remuneration.

HAYNE J:   The formula you gave to me included in its middle the expression “in the arrangements made”.

MR BIRCH:   Yes.

HAYNE J:   Where in the statute do you hang those words?

MR BIRCH:   Your Honour, what I was doing then was I was picking up the words of 25(1)(a), which refer to, “in the arrangements the employer makes”.

HAYNE J:  

for the purpose of determining who should be ‑ ‑ ‑

MR BIRCH:   Sorry, it should have been 25(1)(c).

HAYNE J:   Just so.

MR BIRCH:   Yes, “in the terms on which the employer offers” and, indeed, your Honour is right, I would need to rephrase it.  It would be a requirement or condition imposed – the requirement or condition of permanency to access the higher rates of remuneration, being a term on which the Department offered its employment as a long-term casual supply teacher.

KIRBY J:   Is your complaint there, the term that you complain about, is the term that limited the 13‑year progression to permanent employees or the term that limited the casual employees to a certain level without any chance of over‑award payments or both?

MR BIRCH:   They are, in effect, alternative ways of putting it.  What we say is this, that the Department effectively was saying if you wish to be remunerated beyond level 8 you have to acquire permanency.  Now, that, of course, is not the direct consequence of the award, it is the consequence of the Department following the award.  So I could have rewritten the issue without reference to the award at all if I had simply filled in the rates at which the Department in practice paid its teachers.  If you wish to be paid at a daily rate higher than the 40,000-odd sum, which is the maximum rate we presently pay you, then you have to get permanency and if you get permanency you will then be able to progress to the daily rate that is the equivalent of $50,000-odd in ‑ ‑ ‑

HAYNE J:   The point I want you to grapple with is that putting the argument at that level of generality is to put the argument without a sufficient statutory base.  Now, if you wished to revise the way in which you put the proposition by reference to the statute, then by all means.  So far as I am concerned, I would be much assisted by that reformulation perhaps after the conclusion of the hearing, but much of this argument proceeds by reference to articulation of propositions at a level of abstraction divorced from the statutory language.  What I am anxious to have you do is to put your best foot forward, rooting it entirely in the language of the statute.  Now, I do not wish to delay the progression of your argument further, but that is the basic problem that I am anxious that you should have an opportunity to consider and address.

MR BIRCH:   Thank you, your Honour.  Your Honour, I might take up that offer and see if I can reduce it to writing in a fashion which crystallises it, but what we would be arguing is that one can fit the practice the Department engaged in in the rates that it specified for its employees within the statutory language by viewing it in this fashion, that what the Department was saying to a teacher - one imagines a teacher who is working the whole school year, for example, and therefore is being paid an annualised equivalent of the eighth step – well, in fact, to use a practical example, the teacher, the respondent, Marcia Skelton, obtained permanency in the course of the hearing and so her claim became one for damages for a closed period. 

The day after she attained her permanent appointment her salary increased but everything else that she was engaged in remained exactly the same.  In a practical sense, one can say what happened here was that for this teacher the requirement or condition that had to be met in order to obtain the rate of remuneration above the eighth level was that she attain a permanent appointment.  Once she had fulfilled that condition, which in fact she did, then she proceeded to rise up again in salary but everything else remained the same.  I take your Honour’s point that I will need to match it with ‑ ‑ ‑

GLEESON CJ:   If that is so, if everything else just remained the same, why had she not attained a permanency in the first place?

MR BIRCH:   Because this is the issue of geographical limitation.  There are about, the evidence revealed, approximately 15,000 teachers on a waiting list at any one time for a permanent position.  If you say, “I will go anywhere in New South Wales” you will get offered a permanent appointment fairly briskly because you can be sent to whatever the school is in the State with the highest demand for teachers.  If you say, “I will only take an appointment within 20 kilometres of my home”, then you will only get an appointment when a permanent position comes up within that area, so you will wait a lot longer, and so the position of most of the respondents was that for various reasons, principally family‑related reasons, they had young children, they had a working husband and an established home, they had specified schools within a certain radius of their home and that meant that in some cases there was a wait for them of many years before they attained a permanent appointment, but once a vacancy came up and they were the next name on the list they got it.

KIRBY J:   Why does that affect women more than men, given that men also have homes and mortgages and children and so on?  What did the evidence show?

MR BIRCH:   The evidence so far as the respondents were concerned showed that the husbands had – to just use an example, I do not suggest that there was comprehensive sociological evidence that dealt with 25,000‑odd casual teachers, but there was a woman who had a job in Tamworth, her husband had a job in Tamworth, and she had young children.  She was prepared to take a permanent appointment in the Tamworth area but she did not want to take a permanent appointment in another town which involved long daily travel from Tamworth.  Had she done so, then her husband would have had to leave his job and they would have had to move their household to whatever the new town was that she was sent to.  That would have been the practical reason why she had – that was her evidence.

KIRBY J:   But why would that not also affect the male partner?

MR BIRCH:   The evidence so far as the respondents were concerned was that it was the women in their families who had in effect subjugated their careers to their male partners.  We do not suggest that in the case that there was detailed sociological empirical evidence to show that generally women are more likely to subjugate their careers to their male partners rather than the other way round, but we certainly suggested that that was a matter that the Tribunal could make an assumption about as a notorious fact of normal life.

GLEESON CJ:   I must have misunderstood something Mr Jackson said.  I thought that once you became permanent you were exposed to the possibility of being sent anywhere.

MR BIRCH:   You are in the sense that a direction can be made under section 71, but the differences between permanent and casual in that regard are, we say, insignificant.  You do not have to take a permanent appointment to a school anywhere in the State.  You can say, “I only want to be permanently appointed to North Sydney Girls High School and I’m happy to wait until an appointment at that school comes up”, and that is the permanent appointment you get.  Having been appointed to that school, the Director‑General could make an order under section 71 transferring you to Wilcannia High School.

The point that we make is that the prospect of that happening is unlikely, and in fact the evidence showed that the schools that were in places where it was hard to attract teachers were staffed not by the exercise of the section 71 direction but pursuant to a points transfer system that was part of an agreement made between the Department and the Federation.  That agreement was in evidence and the Tribunal had before it the material which showed that the remote schools, schools in the bush and the like, get their teachers usually in that fashion.  We cannot say that section 71 is not there or that it would never be exercised, but the evidence was that there were other ways of doing it and the concession in the Court of Appeal was that it was not done in a draconian fashion.  I think it was a broader concession than that.  I will refer your Honours to that page shortly. 

There is a passage in the oral argument before the Tribunal at page 1541 in volume 5 commencing at line 29.  The judicial member said:

Mr Menzies, is it a condition of permanency that the applicant must be prepared to work at any school?

MR MENZIES:   No, not at all.  My point about being able to be willing to work anywhere is not that that is a condition of permanency at all, but that it means that persons who are prepared to put up with the discomfort of going where they are sent are more likely to obtain permanent employment earlier.

Then he went on to discuss the waiting list and the way in which you move up the waiting list more quickly.

KIRBY J:   But does that not reflect – and this goes back to my question about reasonableness – that this is just a feature of market economics that that has a value, to have certain employees who can be deployed anywhere.  In economic terms that has an economic value and that when you are looking at what is reasonable overall you do not just look at the work people do in the classroom; you have to look at every feature of their employment and employability which includes – it is not the only factor, but it does include this deployability factor.

MR BIRCH:   We would not argue with that in a general sense, your Honour, but the Department’s case never rested on the notion that they were exercising their power under section 71 and it was allowing them to staff schools in difficult areas and this was giving ‑ ‑ ‑

KIRBY J:   But that is a different factor.  That is a different consideration.  I mean, as Mr Jackson said, one would hope in this modern age of enlightenment that you would not, as it were, pull out the draconian provision at the first instance.  Maybe when you get into a real pickle, getting somebody to go to Goondiwindi or somewhere, you might have to, but in the first instance you try to accommodate people’s family and domestic arrangements, but that is a different consideration to the conceptual question of whether when you are looking at what is reasonable in all the circumstances you are entitled to take into account an economically valuable aspect that one employee offers that another does not.

MR BIRCH:   Well, we would dispute, your Honour, that it really is an economically valuable aspect.  There are two points to it.  Firstly, in terms of taking a permanent appointment, Mr Menzies was explaining there to the judicial member the initial permanent appointments go to the places that the applicants have sought.  So they choose in the first instance.  If they only wish to be appointed to an attractive seaside village, then that is where they make an application for a permanent appointment to and that is where they go.

The question then is whether there is a real economic value to the Department in having section 71 and exercising it.  Can I put it this way?  Section 71 was there on the books but was a dead letter and yet the Department was to seek to justify an otherwise indiscriminatory practice by saying there is at least the potential for that section 71 power to be exercised, but the Tribunal ought to be careful not to permit an indirectly discriminatory practice just because someone can point to a statutory difference if that statutory difference is not in practice generating value for the Department.

The second point we would make is that we would say that in reality the position of the permanent and the casual is the same anyway.  A casual’s appointment will be for the period they are required, so it might be a term or it might be a full year, but they all expire on the 31 December and then they can be renewed over and over, but a casual is not going to be retained, or not going to be hired in the first place, if there is no work for them.

Permanents, on the other hand, because their tenure goes on indefinitely, could once they have an appointment to the best school in the State stay there until they retire so there has to be some way you can shuffle around some permanent staff.  But casuals are always in that position because the Department simply does not hire them for the term or the year unless there is work and if there is no work in a desirable location they will be told, if they want casual work, they have to go to an undesirable location just the way a permanent could be.

GLEESON CJ:   Mr Menzies appeared for the Department, did he not?

MR BIRCH:   Yes, he was.

GLEESON CJ:   He is reported as having said it simply works this way:

The more places that one is willing to teach at the more vacancies for which one can be considered. 

I am still puzzled about how this works in practice.  Let me assume, and it is probably not an unreasonable assumption, that Coffs Harbour is regarded as an attractive place at which to work and let us suppose there is a vacancy at the school at Coffs Harbour and there is a permanent teacher somewhere else and a casual teacher somewhere else, both of whom would like to go to Coffs Harbour on a permanent basis.  Will preference be given to the permanent teacher?

MR BIRCH:   Yes, preference would be given to the permanent teacher.  Indeed, casual teachers are only hired at all to the extent that there are leftover positions, so to speak, at that school that need to be filled.

GLEESON CJ:   But what about a casual teacher like Ms Skelton who says, “I’m willing to become a permanent teacher at Coffs Harbour.  I’m not willing to become a permanent teacher at X but I would dearly love to become a permanent teacher at Coffs Harbour” but there is another permanent teacher somewhere who says, “So would I”.

MR BIRCH:   Your Honour, I understand that the permanent teacher has priority and what happens is you fill that position with a new person if you do not have a permanent teacher already on establishment to fill it with but I would have to check that that is definitely the case.  Do not forget though that the casual teacher who says, “I’d like that job” and gets it because they are on the permanent list is getting it not because they are a casual, they are getting it because they are on the list of 15,000-odd applicants, some of whom are teaching casually, some of whom are not, who have waited until their number has finally risen to the top of the list for that particular school, for a vacancy there.

KIRBY J:   Presumably, there is a bidding system whereby people bid for positions.

MR BIRCH:   No, as I understand it you put in an application and say, “I want permanency and I’m prepared to take it anywhere along, say, the coast” and you get a priority number and everyone is just in a long queue dependent upon their priority numbers and when your number gets to the top, if a school comes up and that is not in your area then they ignore you and they keep on going until they find a person that is.  You have to wait until a school comes up and you are at the top of the priority list for that school.

GLEESON CJ:   Is the essence of the discrimination that this system of permanents and casuals that you have been describing to us is such that it is easier for men, who are comparatively more mobile, to advance in the system than it is for women because of their ties?

MR BIRCH:   That is a very large part of it, your Honour.  The evidence shows that, in fact, of the 13 respondents I think nearly 10 were all in the same category, they had attained permanent appointments and so they were being paid at a permanent rate, then when they had children they resigned their permanent positions, took some time out of teaching altogether, and when they come back they have to reapply for permanency.  By this stage they have a husband who is a breadwinner with a job in a particular town or place and they have small children and they have responsibilities for them and so they say, “I’ll only take a permanent appointment within 20 kilometres of home”.  They might have to wait five, seven years or more before a permanent position comes up for them and in that period they work as casuals in order to be able to get back into the teaching profession.

So because, in a family where there are two workers, you either have to break the family up or both work in the same town, you cannot say, “I’m going to work anywhere in New South Wales”.

GLEESON CJ:   It is a bit like the difficulty in making yourself available for conferences of a weekend.

MR BIRCH:   It is.  Your Honour, there is no doubt that it could have other implications in other professions, but in the teaching occupation here it has a particular effect because the use of casual teachers is, where there are supply casuals, to do exactly the same job as permanents.  It is not like other occupations where casual staff may be brought in to do something which is in some fashion different qualitatively from what is done by the normal full-time staff.  Because you have these long-term casuals doing the very same job, we say it becomes definitely indirectly discriminatory.  I appreciate I have to fit it into the statutory context, but that is part of the factual explanation as to why we say it is discriminatory.

We say that is an important matter though to weigh up because the way the statute operates, if you can find requirement and condition and appropriate ratios you might be able to show that something is indirectly discriminatory in a fashion which is just a statistical quirk – not the result of some underlying reason that attaches to people’s gender or family obligations.  We say there is a good reason to think that this is not a statistical quirk but does reflect different functions performed by men and women, and that is a matter that goes to weighing up reasonableness. 

If one says, “I can point to a distinction”, there might be a distinction like section 71 applying to permanents but not casuals.  That distinction still has to be weighed against the general discriminatory effect.  So it is perfectly proper to say there are some differences but because the discriminatory effect is a substantial one and it does seem to track gender rather than simply represent a quirk of statistics, there has to be a weightier reason to justify the discrimination than just the fact that section 71 is on the books.

GLEESON CJ:   Now, bearing in mind the test of reasonableness, does that mean that it is always a legitimate question for somebody, some alleged perpetrator in the position of the Department, to say, “What is it exactly that we are supposed to do about this?”  What did the Tribunal say the Department was supposed to do about this, apart from paying damages?

MR BIRCH:   The form of the relief does not issue in a general order.  I think that is a point that Justice Gummow was raising with me a short while ago.  But the reasoning that lay behind the Tribunal’s finding, the eight week finding, we say, reflected their attitude towards what should be done generally.  In other words, there has to be a way in which the Department could act in a fashion that would not be discriminatory.  That way is by acknowledging that where casuals have long-term appointments, eight weeks plus, they ought to be paid equally to permanents.  Now, it is only these 13 respondents that have brought their cases forward at this point, but the Tribunal, we say, took that into account.  It recognised the eight week point.

GLEESON CJ:   That is still not going to put them on the same footing as permanents though, is it, except in relation to salary?  It does not give them the tenure that permanents have, does it?

MR BIRCH:   It does not give them the tenure, no.

GLEESON CJ:   Why are they not entitled to that too?

MR BIRCH:   Well, that would be a perfect example, perhaps.  I have to speculate as to where the Department might have a stronger reasonableness case.  After all, a casual teacher is hired in a school only because there is a need for a short‑term teacher in that school.  If my clients had said, “We want to be made permanents immediately”, the Department could have reasonably said, “We do not have the need for you on our staff establishment on an indefinite basis, so why should we be forced to hire you for longer than we want you?”  Now, I am not here to run that case, but I could appreciate why that could be a potentially good response.  But what my client said was, “Look, we acknowledge the Department only wants us for a year or whatever it is and we are happy to turn up and work for that year, but if we are doing the same job as the permanents, then it is unfair, indirectly discriminatory not to pay us the same”. 

So the remuneration matter is one which probably sounds in damages, sounds in discrimination, but that does not mean that you can pick off every aspect of employment.  It might be that this is not a Trojan horse to work our way through the entire system of award conditions.  I mean, I cannot say what teachers might complain about in the future, of course.  All I can say is that one imagines there would be a good response on some aspects of their job, but not on pay.  Nor would we say is there anything unusual about the idea that one picks remuneration rather than picks the whole job.  After all, it is not, as I said earlier, an attempt to simply abolish the distinction between casuals and permanents.

Your Honours, there were, I think before I embarked on this, a couple of points I wanted to refer to in the Bauer judgment because that had been of some significance to the Tribunal and it does have some significance to the issue of reasonableness in a way I will expand on.  If I took your Honours to volume 3 – I will just mention without saying more that at page 866 his Honour Justice Bauer refers to the way in which the casual rates derive from the permanent rate by the factor of 203.  At page 870 and over the page his Honour there refers to the general distinction between relief casuals and supply casuals, which is the terminology that I have been using.  But at page 900 is an important passage from our perspective.  This followed the analysis by Justice Bauer of the evidence that had been led on the work value plain and at almost halfway down the line, the paragraph commencing, just beside line 30:

It was reasonable to argue that the casual teacher who was engaged for and worked for a full year in any one school was called upon, and, in fact, did supply, most, perhaps all, of the services over and above actual teaching obligations which would be provided by permanent teachers.

I will not read all of that paragraph.  Then two paragraphs down his Honour then continued:

Although invited by the Industrial Commission to attempt to grapple with the problem of these divergent situations, neither of the parties wished to do so.  That is so, notwithstanding the fact that it is quite clear that the circumstances of the supply casual performing duties for a whole year quite different from those of the casual called in for immediate relief in emergency circumstances and for a short period only.  Both parties called for what can only be called an “averaged” approach.

Now, what we say is this was a claim before an industrial tribunal between the Department and the Federation and the parties there did precisely what Justice Bauer observed.  He went on in the next paragraph to say that:

So wide is the divergence between these two circumstances that it does not seem to me that any rational judgment could be given which would do reasonable justice to employees and the employer in these circumstances.

I will not read it all but what his Honour goes on to do is to say, “I will in fact recognise two categories”, and he introduced what became known as the 100‑day rule, so that if you worked 100 days a year as a casual you got some extra benefits that were not accorded those that did not, but that really was an unhappy compromise, we would say, because it did not look to a 100 days in a single appointment.  It could have been 100 days of short‑term relief.

GUMMOW J:   Where do we see the 100 days treatment by his Honour?

MR BIRCH:   At page 901 I think is where ‑ ‑ ‑

HAYNE J:   Is it not 902, paragraph 8 at line 15?

MR BIRCH:   Yes, and ‑ ‑ ‑

CRENNAN J:   I think the source of it is 861 around line 40, Mr Birch.

MR BIRCH:   Yes, I think that is right, your Honour, I am indebted.  Your Honours, the award that was made by Justice Bauer, there was an appeal ‑ ‑ ‑

GLEESON CJ:   Just before you go to that, what about what appears on page 900 at line 15 under the heading “Conclusion”?

MR BIRCH:   Yes, that was the conclusion that followed from the fact that the parties had sought an averaged approach.  In other words, the Federation had sought to argue, as I understood it, that all casual teachers had, in effect, attained equal value with permanent teachers and that was rejected by Justice Bauer because essentially he says only those who perform long‑term appointments fall into that category and attain that form of parity.

GLEESON CJ:   You get the impression that the Federation did not then, and perhaps does not now, want to find itself in the position of having to distinguish between some classes of casuals and other classes of casuals?

MR BIRCH:   It certainly did not then.  There have been hearings since the Tribunal hearing and, indeed, I understand the Amery decision has been mention down at the Commission, but I am obviously not in a position to say precisely what the Federation presently holds as a view, if it has an official view on the matter.

KIRBY J:   This is in renegotiation of the award, is it?

MR BIRCH:   Yes, but the fact is that the award at the time of the hearing before the Tribunal had – well, we would say a flaw in it, in effect, that derived from the way it had been conducted.  There had never been another fresh determination because after the decision of Justice Bauer and the appeal against it which resulted in no change, the matter was then dealt with by consent awards or enterprise agreements right up until the date of the Tribunal hearing, so this was the last time the Commission looked at casual employment in the context of an arbitrated dispute.

I will come back to it a little later.  It also demonstrates, in our submission, one of the limitations of the Industrial Tribunal in order to deal with all of these matters and the importance of individuals being able to go to a body like the Equal Opportunity Tribunal, as it then was, in order to agitate a complaint of indirect discrimination.

HAYNE J:   But the consequence of your argument is, is it not, that those negotiations that may be taking place in other places cannot lawfully reach a result other than that casual teachers employed for more than eight‑week periods must be given the same rate of pay as permanent teachers?

MR BIRCH:   Your Honour, we say that is exactly what the Anti‑Discrimination Act is there to do, to in effect circumscribe limits to what might be negotiated or arrived at in other contexts.  If the effect of an arrangement would be an indirectly discriminatory effect, then it is unlawful and it would be prohibited.

GLEESON CJ:   I do not understand the point of the comment made by Justice Bauer on page 900 at line 36.

MR BIRCH:   Your Honour is referring to the ‑ ‑ ‑

GLEESON CJ:   “It is, however, a comment”, et cetera.  Is it the case that there are some obligations upon permanent teachers outside the actual face‑to‑face teaching hours that do not apply to (a) any casual teachers; or (b) some casual teachers?

MR BIRCH:   It is certainly the case that there are outside obligations that do not apply to some casual teachers, that is, short-term casual teachers.  When the case was run before the Tribunal there was extensive evidence led about not only classroom teaching – there is no real dispute that the in‑class teaching is the same.  The Department would no more wish to suggest than we that if you are taught history by a casual you get taught anything different from someone who is taught history by a permanent.

GLEESON CJ:   Yes, but is the casual expected to turn up at the netball game on Saturday morning?

MR BIRCH:   They are if they are a long-term casual.  That was what our evidence addressed in significant detail before the Tribunal.  Not only that, they participate in the school committees and they participate in ‑ ‑ ‑

GLEESON CJ:   Does that cut in at the discrimen you are talking about, that is the eight – in other words, is that aspect of the difference between permanent and casuals eliminated at the point of eight week supply casuals?

MR BIRCH:   It is.  Your Honour might think it would be odd if it occurred just at eight weeks.  The evidence from some teachers was that in their experience it occurred much sooner than eight weeks.  The case was conducted on this basis, that while the evidence showed periods below eight weeks, the evidence was strong that by eight weeks that parity had been achieved and therefore the case was put on eight weeks as a reasonable basis for making the distinction between supply casual and relief casual.  Obviously with any two classes or categories of people where the categories merge you will not find a bright line, but the evidence showed eight weeks brought that about.

CRENNAN J:   Was the Federation’s argument, which I thought it was – I might be wrong – that once it is eight weeks or post eight weeks a casual teacher is closer in terms of the equality of the work than a casual teacher who does less, but at the same time I thought the Federation was arguing that casual teachers, even those who worked for a long time, did not necessarily have work of equal value precisely to permanent teachers; it was just closer to being equal the longer they worked.

MR BIRCH:   The Federation never raised the eight‑week issue before Justice Bauer.  That was raised only by my clients before the Tribunal.  It was the first time the eight‑week principle arises in this dispute is before the Tribunal in our case.  Before Justice Bauer the Federation had argued that all casuals, even less than eight weeks, had equality and they really took the high road and they failed to persuade Justice Bauer that there was such equality because he found that if you were a short‑term casual then you just simply did not do all these other matters, hence the point that I think the Chief Justice just referred me to on page 900, the inevitable conclusion from the evidence presented.  But when one looks at that conclusion and that evidence that is in the light of a case run by both the Federation and the Department that was seeking an averaged approach, neither party before Justice Bauer was seeking to find a cut‑off point and argue that all the casuals beyond that cut‑off point had equivalence with permanency, but that was the burden that we undertook before the Tribunal and one we succeeded on at first instance.

CRENNAN J:   So 901, at about line 35, there is a reference there to allowance having to be made “for the lesser value of the work being performed by the casuals” in the Teaching Service.

MR BIRCH:   That is made in the context in which his Honour there has not been asked to distinguish between long term and short term.  He has made some distinction himself, but the evidence before him has not been directed to dividing the people into those categories, although there was the passage I did refer to where he said if a teacher who was engaged for the full year they “in fact, did supply, most, perhaps all, of the services”.  So his Honour said a year might be the cut‑off point, but that was without anyone ever having sought to run a case for some specific period in the way that the respondent’s case was before the Tribunal.

CALLINAN J:   Mr Birch, if you win, does that mean that necessarily the award or industrial instrument is unreasonable to the extent that it provides for the differential rates of pay?

MR BIRCH:   Well, there are two answers in a practical sense.  The award now has moved on and there are some new categories and there are some distinctions, so that it would not be possible to simply lay the Amery decision down on the current award and say all these people now must ‑ ‑ ‑

CALLINAN J:   As it was at the relevant time; that is what I am really asking.

MR BIRCH:   Your Honour, we would accept that if the finding had been undisturbed then the implication would be that one would imagine if the Department treated all of its other supply casuals in the old way, without regard to the orders that had been made in Amery, each and every one of them would have had a good chance of bringing forward a case just like the 13 respondents in Amery.  To that extent one, I suppose, could say as a general proposition, yes, it meant that the ‑ ‑ ‑

CALLINAN J:   So the matter is fully debated in an appropriate tribunal and this tribunal second guesses it by saying that the first tribunal after the full debate was unreasonable in reaching its conclusions.

MR BIRCH:   Your Honour, no, we would not accept that that is what happened in the Amery Case because the decision of Justice Bauer was 17 years before the Tribunal, brought by the parties in the fashion I have just described.  So, in other words, they were seeking the average approach.  They had not turned their minds to questions of indirect discrimination.

This decision was looked at carefully by the Tribunal, who in their reasons say it is old.  It was looking at the matter in a very different fashion from the way we have to look at it.  Had the Industrial Relations Commission been deciding an award matter six months before a complaint to the Tribunal had been warned of the possibility of indirect discrimination and looked carefully at that issue and say, “Well, this doesn’t look indirectly discriminatory to us”, then that is a matter that, we say, would have been able to be weighed in the question of reasonableness.  The Tribunal would be able to say, “Look, all these matters were ventilated only six months ago, in the very way that you have brought them before us today and clear and unequivocal findings were made”.  It might well be that Amery‑type people would lose.  But this was a very different situation.

It would be, we say, extraordinary if the Tribunal could have found against my clients by deferring to an award like this, 17 years old, made when the Anti-Discrimination Act did not apply to the making of industrial awards and when Justice Bauer was not required to consider the discrimination matters the way the Industrial Relations Commission is today.  So I am saying to your Honour I guess it might, but it would not do so in a fashion that would offend one’s sense of fairness.

GLEESON CJ:   But there was a merits review of the Tribunal’s decision by the Appeal Tribunal.

MR BIRCH:   Yes, there was an availability of that under the ‑ ‑ ‑

GLEESON CJ:   According to the majority in the Court of Appeal there was a merits review made by the Appeal Tribunal and the Appeal Tribunal reversed the decision of the Tribunal.

MR BIRCH:   Yes.

GLEESON CJ:   What was the point of departure between the reasoning of the Appeal Tribunal and the reasoning of the Tribunal?  Was it the question of reasonableness?

MR BIRCH:   It was on the question of reasonableness, but it was not on the issue of reasonableness at large.  What the Appeal Panel did was firstly hold that there had been an error of law.  Because there was an error of law, it then proceeded to determine the whole issue.  Because the error of law related to the question of reasonableness, it said, “We will then proceed to determine the question of reasonableness”.

GLEESON CJ:   In all events, they had power by leave to have a merits review.  I am just interested to know why we are concerned so much with the reasoning of the Tribunal on the merits of reasonableness if that decision was overturned on the merits by the Appeal Tribunal.

MR BIRCH:   Because the Court of Appeal itself rejected largely the reasoning of the Appeal Panel.

GLEESON CJ:   What was the point of departure between the Appeal Panel and the Tribunal?

MR BIRCH:   What the Appeal Panel did was that it said, for example, that the Tribunal ought not to have exercised jurisdiction when there was an award in existence and that the existence of the specialist tribunal was essentially an end to the question of matters of this nature.  The majority in the Court of Appeal said that really ignores the fact that the legislature plainly permits the Tribunal to examine conduct which is award covered.

GLEESON CJ:   Where do we find the key passage in the reasoning of the Appeal Panel?

MR BIRCH:   If one goes to page 1915 in volume 6, paragraph 52, the panel there said, “These errors on the part of the Tribunal”.  It is not entirely clear but they appear to have been adverting to legal errors because the panel itself does not examine the question of leave separately but once there has been legal error identified the panel is empowered to go on and decide the whole matter.  So one presumes that, having found legal error, and some of them plainly were legal errors, they said there was a misconstruction or a misapplication of the onus of proof by the Tribunal.  There is a call for a reappraisal of this element of the complainants’ case, that being the reasonableness element.  Then the following paragraphs, which occupy the next three and a half-odd pages, represent the reappraisal by the panel of the merits issue.

GLEESON CJ:   Of the issue of reasonableness.

MR BIRCH:   Of the issue of reasonableness.  For example, one of the matters that was referred by Mr Jackson was paragraph 58 which deals with reasons for the requirement and then I think Mr Jackson referred to the passage at about close to line 27:

the Director General has an obligation to apply an objectively fair procedure for all persons wishing to acquire permanency.  It is not difficult to envisage the industrial unrest which would flow from the application ‑ ‑ ‑

GLEESON CJ:   Paragraph 59 is the essence of their reasoning, is it not?

MR BIRCH:   It is, that is right.  We said before the Court of Appeal and we persuaded them that that whole passage rested upon a complete misconception of our case.  It rests on the assumption that we were in some fashion asking for permanency or asking to be appointed to the permanent staff because the case that we brought had no bearing upon the existence of a pool of people except casual appointments.  The panel appeared to be under the misapprehension that we were asking for permanency and that if our claim was answered it would mean we were getting special treatment and if it was applied generally it would eliminate the pool of casual staff and the Court of Appeal said that was indeed an erroneous understanding of our case, which we say it is. 

KIRBY J:   Dr Birch, Mr Jackson’s arguments in a very pure Cartesian manner divided the world into three.  He dealt with the condition requirement, he dealt with reasonableness and then he dealt with merits review.  I know you are responding to questions from the Court but I am losing your battle plan.  You are at Trafalgar now and there are lots of gun circling around you and you have to deal with the matter in the same pure Cartesian manner at some stage.

MR BIRCH:   I have been responding at length to questions but it has also been of assistance to me in understanding which parts of the case might not have been clear but can I then return to the battle plan.  I am able to now do that and I am happy with the order in which Mr Jackson did it.

The first issue is the “requirement or condition” issue.  The matter that has been put against the respondents by the Department throughout the litigation is that the permanent staff, on the one hand, and the casual staff on the other, represent two independent categories or classes of people each statutorily defined with different statutory incidence and, therefore, to say that permanency is a requirement or condition is, as I apprehend it, put against us on the basis that we are engaged in some kind of conceptual error because we are simply treating the distinction between two classes as being a requirement or condition.

KIRBY J:   Is this relevant to the issues of reasonableness?

MR BIRCH:   No, this is definitely going back to the battle plan into the very first point which is the question of requirement or condition.  Perhaps I should lay it out even more carefully ‑ ‑ ‑

KIRBY J:   Why is that relevant?  Will you explain why that is relevant to a requirement or condition?

MR BIRCH:   Your Honour, perhaps if I could approach it in the way in which we identified the issues to the Tribunal when we broke up section 24(1)(b). If your Honours were to go to volume 5 of the appeal book at page 1440, the complaint is of “discrimination” in regard to the way we are remunerated for the work we do, and that is what brings it under 25. We then broke up section 24(1)(b) into the four elements which Mr Jackson referred to this morning, and in regard to our case we needed to show that:

The Department required the complainants to comply with a requirement or condition -

so that is the first element, and that is still a live matter in the appeal.  The second one was that it was a requirement or condition with which a substantially higher proportion of men comply or are able to comply than women.

Now, we identify the requirement as permanency and there is no dispute that so far as substantially higher proportions of men having permanency than women are concerned, that is the case, and that is not, as I understand it, a live issue.  The third one was that:

The requirement or condition is not reasonable having regard to the circumstances of the case -

and in that regard there are the three aspects which the appellant raises, the statutory incidence, the relationship with the industrial award and the geographical limitation question.  Then the fourth one is:

The requirement or condition is one with which the complainants do not or are not able to comply.

That likewise is not one which we understand is any longer alive.  It is accepted that we did not comply at the relevant time in that we did not have permanency and so that is the end of that element.  So that there are two elements still in play, the requirement or condition question, whether we properly characterised permanency as that, and then the reasonableness issue with its three aspects, statutory incidence, industrial award and geographical limitation.

Your Honours, if I could take you to our written outline perhaps and just highlight the way we deal with the requirement or condition aspect.  At page 5, commencing at paragraph 21 we deal with the issue.  The first matter that we deal with is the way in which the requirement of permanency is properly described.  To simply say that the award requires permanency or that permanency simpliciter is a requirement or condition is a mischaracterisation.  In the Tribunal they refer to the permanency being a condition of the award, and there was the point taken in the Court of Appeal that it is not the award that is being attacked directly but the Department’s practice.

Now, in our submission, the Tribunal was not seriously in error there because the Tribunal was live to this matter.  If I take your Honours back to volume 5 and to the Tribunal judgment at page 1590, in paragraph 14 they refer to the distinction between the award on the one hand and the contract of employment of each of the teacher complainants on the other and they refer to the distinction made in Byrne v Australian Airlines Ltd at about line 37:

that neither the enterprise agreement nor the award formed part of the contract of employment in the present inquiry.  In our view, the complainants are correct in contending that it is sufficient if the condition or requirement operates as a matter of practice with respect to payment of salary.  We find that both the enterprise agreement and the award stipulate conditions upon the payment of salary to staff within the NSW Teaching Service under Teaching Services Act 1980 s 58 and do impose a condition or requirement –

Now, I have to concede that there is a certain exquisite ambiguity in the way they have worded it because they do speak, in that last sentence, of the award imposing the conditional requirement but immediately above that they make clear that what they understand the case to be is not the award itself, but the departmental practice of paying people whatever the rate is that is stipulated in the award.

HAYNE J:   How does any of that fit with the expression, “if . . . the perpetrator . . . requires the aggrieved person to comply with a requirement”?  What is the perpetrator requiring of the aggrieved person?

MR BIRCH:   The perpetrator is not obliged to pay in accordance with the award, so we could leave the award out of it and simply put numbers in.  We could say the Department is paying a permanent teacher 50,000 or the daily equivalent and a casual 40.  If a casual says, “What requirement or condition must I fulfil to now be paid at the 50 rate rather than” ‑ ‑ ‑

HAYNE J:   It is not what the statute says.  What I am asking you to do is to look to the words:  “if . . . the perpetrator . . . requires the aggrieved person to comply with a requirement”.  What requirement were your clients required to comply with by the Department?

MR BIRCH: Well, the requirement still has to be viewed in relation to some aspect that is raised by section 25. So if one says, “I have a complaint regarding the rate at which I am being remunerated or the terms upon which I am being remunerated and I wish to be paid at the $50,000 rate”, and if one keeps in mind one is there complaining about conduct under section 25, then it is appropriate to say, “Well, I am discriminating against you because I am imposing a condition or requirement in relation to terms on which you are being paid”.

GUMMOW J:   “Terms on which I offer employment.”

MR BIRCH:   “Terms on which I am offering employment.”

GUMMOW J:   How does it then link in?

MR BIRCH:   And the condition or requirement is one which more men than women comply with.

GUMMOW J:   What is the requirement?

MR BIRCH:   It is a requirement to be paid above the eighth level, using the eighth level as a shorthand for the higher rate.

HAYNE J:   But you have just inverted it.

GUMMOW J:   It is the other way round, is it not?

HAYNE J:   You have inverted it.  The focus is on the perpetrator.  What has the perpetrator done?

MR BIRCH:   The perpetrator is hiring the people, offering them work, setting the rates at which it will remunerate them for that work.  If you have a teacher who is doing work who says, “I wish to now be remunerated at this higher level”, it is the perpetrator who is saying, “I have a requirement or condition that you have to satisfy before you can attain those higher rates”.

KIRBY J:   And that requirement is that you have to be permanent.

MR BIRCH:   Correct, yes.

KIRBY J:   But you have disclaimed a complaint that you were not made permanent.

MR BIRCH:   Yes.  There is no reason why the Department cannot withdraw the need for that requirement or condition, so the Department is saying permanency is a requirement or condition here of enjoying the higher rates of pay.  It is not something that you have to have for every other purpose as well.  There is nothing to prevent the Department paying its casual staff up to the 13^th level.  We have made the point in our written submissions that one can use something like permanency as inappropriate criteria depending on context. 

So if, for instance, there were staff facilities that were considered necessary for the health and welfare of staff but they were made available only to permanent and not to casual staff, then it would be quite a legitimate use of the terminology to say that it had been made a condition of access to or use of those facilities that one hold a permanent appointment.  That would be quite possibly wrong and discriminatory in circumstances where there was no appropriate nexus between the condition in that context and what it was that you were being deprived of access to.

GUMMOW J:   I still do not understand how you read your case into 24 and 25 of the Act.  The State, that is the party - the Departments do not have legal personality - the State is offering employment in terms.  What requirement is it including in those terms?

MR BIRCH:   The requirements – obviously there is a very long list about the duties that you have to perform, the way you get paid.  It says, for example, that we will pay you at higher rates as you attain seniority up a certain scale and it has such a set of terms for both the casual and the permanent staff.  They both are able to progress as they acquire seniority.  That is part of the offer that is made, part of the terms on which they are hired.  However, with this distinction though, that the casuals enjoy only a limited opportunity to progress.  We say that is a clear way of dealing with that to say that is because when they reach a threshold there is now a condition or requirement before they can continue to progress.  Your Honours, I will have to perhaps see if I can write something down.

GUMMOW J:   You will, and I think you should have done it in your written submissions, if I might say so.

GLEESON CJ:   You may have an opportunity to do it overnight.

MR BIRCH:   Yes.

GLEESON CJ:   It would be unfortunate if we had to leave this until the end of argument so that we did not have a proper opportunity to test both it and the reply.

MR BIRCH:   Yes.  Your Honours, in the written outline we have summarised briefly in paragraph 37 the state of the law on requirement or condition.  We say that the way the test has been applied has been a particularly flexible one.  If one reads, for example, the judgments in Waters where the question was whether the abolition of conductors imposed a condition or requirement of being able to access trams without the assistance of conductors or whether the need to take out and use a scratch ticket was going to be a requirement or condition.  Those judgments there demonstrated how one can take something even as ‑ ‑ ‑

GUMMOW J:   This is discrimination in work that is the problem.

MR BIRCH:   Yes.

GUMMOW J:   So you are talking the language of contract, to put it loosely.

MR BIRCH:   Indeed, your Honour, but the ‑ ‑ ‑

GUMMOW J:   And the language of often acceptance and terms, and so on.

MR BIRCH:   That is true, your Honour, but one can still identify those portions of the contract which have the effect ‑ ‑ ‑

GUMMOW J:   You may well be right.  All I am saying is it has to be done fairly carefully.

MR BIRCH:   Yes.  Your Honours, I will move onto the topic of ‑ ‑ ‑

GUMMOW J:   You will not get much help from Melbourne trams I do not think.

MR BIRCH:   I will move onto the reasonableness aspect where ‑ ‑ ‑

HAYNE J:   You certainly do not.

GUMMOW J:   If you can manage to buy a ticket on one.

MR BIRCH:   ‑ ‑ ‑ we have summarised our submissions from paragraph 38 of the written submissions.  The argument in this regard that was put before the Tribunal was put on a very limited basis.  There was a brief written submission that was put forward which appears only in volume 6.  The document was also provided before the Appeal Panel.  It is in volume 6 at page 1743.

KIRBY J:   Could you just remind me?  You won the first matter, the requirement or condition unanimously before the Court of Appeal.  Is that correct?

MR BIRCH:   Yes.

KIRBY J:   Did you win the merits review point, that is to say, what should be done in the event of a decision?  Did Justice Hodgson agree with the majority on that or did he take – I suppose it followed from his dissenting view on reasonableness that he would affirm the decision of the Appeal Panel so he did not have to consider the question of the third issue, the merits review.

MR BIRCH:   He considered, as I read his judgment, that he was engaged in a limited merits review and that was restricted to the issues that he concerned himself with and the Department was successful on it so, so far as he was concerned, that disposed of the issue of merits review.

KIRBY J:   I think just to help me, what is the extra issue or issues that would arise in a merits review beyond the issues of reasonableness which are debated quite thoroughly in the Court of Appeal decision?

MR BIRCH:   Well, the merits review application before the ‑ ‑ ‑

GUMMOW J:   What does that phrase mean, by the way, in this rather particular statutory setting?

KIRBY J:   It is in the AAT Act.

MR BIRCH:   It is in the Administrative Decisions Tribunal Act and there are not a lot of ‑ ‑ ‑

GUMMOW J:   I realise that but it has to be hitched to a lot of other statutes.

MR BIRCH:   Yes, I think that ‑ ‑ ‑

GUMMOW J:   What does it mean when it is hitched to this one?

MR BIRCH:   I think the common acceptance of it is that it would permit one to have a rehearing which involved revisiting factual questions and issues of credit.  There was some debate in the Court of Appeal as to whether it would go so far as to permit a rehearing de novo and all that was offered to the Court of Appeal was the experience of the counsel which was that the Tribunal usually proceeds by rehearing on transcript but that it would open up issues of fact, and of course without the leave and in entry onto the merits, one is restricted to just the question of law.  I think the assumption is though, that it is everything on top or in addition to ‑ ‑ ‑

KIRBY J:   That leave is confined to the leave of the Tribunal so how can the Court of Appeal give the leave of the Tribunal?

MR BIRCH:   It is.  Well, it is a question that we asked but we were prepared to acknowledge this, that if there was legal error detected by the Court of Appeal, the Court of Appeal could then proceed to decide the whole case if it wished to, and so the Court of Appeal could decide any merits issues that had to be decided consequent upon having detected legal error and that was the course, as I understand it, that Justice Hodgson took.

KIRBY J:   Anyway, I have taken you into the third issue, so we go back to reasonableness.

MR BIRCH:   Yes.  The issue of the statutory incidence is the matter I wanted to briefly touch on and I think I was taking your Honours to volume 6 of the appeal book at 1743, and paragraph 4 identifies some statutory provisions which it says affect permanent teachers but not casual teachers and describes them as:

relevant features of the work of the permanent teachers and, accordingly, are additional factors to be taken into account when valuing their work ‑ ‑ ‑

GLEESON CJ:   When you ask the question of reasonableness, you have to identify reasonableness of what, and it is the reasonableness of a requirement, is that right?

MR BIRCH:   That is indeed correct, yes.

GLEESON CJ:   Reasonableness of the requirement that you be permanent if you want to get this extra amount of pay?

MR BIRCH:   Yes, that is right, yes, and so while the Tribunal emphasised work value issues, that reflected in part the way it ran before the Tribunal but there is a logical connection between getting more money and supplying more value.

GLEESON CJ:   That requirement has its origin in the award.

MR BIRCH:   In a practical sense.

GLEESON CJ:   So what is in issue is the reasonableness or the unreasonableness of not ignoring the award to that extent?

MR BIRCH:   That is close to the way it was formulated by Justice Hodgson and what his Honour said, as we understand it, was that whether or not the award itself is reasonable, there is still a further question of whether it is reasonable to have a practice of award following independently of the virtues of the award.

GLEESON CJ:   That sounds like a fairly large industrial issue.

GUMMOW J:   That is what his Honour said.  He said to do so would appear to have the potential disruption to good industrial relations.

MR BIRCH:   Yes, that is what his Honour said.  What we say is that it might have that potential in some contexts but that the limited scope of the issue here and the nature of the issue did not have that potential at all.  There was no suggestion that there was in practical terms any problem about allowing long‑term casuals to be paid for the 9^th, 10^th, up to the 13^th levels.

GLEESON CJ:   Is that not also the point of departure between the Appeal Panel and the Tribunal?

MR BIRCH:   We would not submit that that was the point at all.  The Appeal Panel took a very broad brush approach and they suggested that because there had been a determination by an industrial tribunal that that really was sufficient and they did not elaborate much beyond that as a proposition.

GLEESON CJ:   But the practice of not discriminating between casual staff that causes offence to your clients.  The essence of your clients’ case was that there is an indiscriminate following of the award by the Department and the Department should be a bit more discriminating.

MR BIRCH:   Yes, indeed.

GLEESON CJ:   They should discriminate between certain kinds of casuals.

MR BIRCH:   An award which represents a broad rule to cover a very large number of people if applied without any flexibility at all can work a discriminatory effect when there is a special class – a special subclass, if you wish – whose work and position is distinct from the other segment of that particular class.  That is indeed the way we would put the case.

Your Honours, if I just concentrate on the statutory incidence point.  The questions of ability to order transfers under section 71 and the like were put on this basis before the Tribunal, that there are some statutory provisions, they apply to permanents, they do not apply to casuals, they could have an effect on value and that was as far as the argument progressed.  In the oral submissions they received a similarly brief treatment at page 1539 when, at line 43, Mr Menzies said:

When you come to consider work value you have to take into account some other aspects of permanent teaching which casuals are not subjected to.  We deal with those.  They can, for example, be transferred to a place they don’t want to go –

and he continues that over the page.  It is put on the basis of an issue pertinent to work value in the oral explanation.  The document that I took you to had been handed up by Mr Menzies at the time that he made that oral submission.

GLEESON CJ:   What about those further matters on the bottom of 1539:

Permanents cannot undertake other employment without permission . . . Permanent teachers are at risk of being dealt with in disciplinary proceedings.

MR BIRCH:   We have dealt with each of those in turn, your Honours, in paragraphs 41 through to 46 and, in effect, we say that in regard to all of those the practical effect is that permanent teachers were not in much of a different position or any different position from casuals because casuals, by virtue of their short-term tenure, could simply not be re-employed if they were engaged in inappropriate outside commercial activity.

GLEESON CJ:   Forget the inappropriate, is it the case that a casual teacher could take a job as a taxi driver at the weekend but a permanent teacher cannot?

MR BIRCH:   It could not be posed in quite so dramatic a fashion.  There would be the potential for the Director-General not to approve a permanent teacher being a taxi driver.  There is not the same provision in regard to a casual teacher but if a casual teacher was engaged in conduct which the Department did not want its staff engaged in then it would not hire you.  That would be the practical solution.

GLEESON CJ:   As I understand it, if a casual teacher wants to get a job at the weekend that is nobody else’s business.

MR BIRCH:   Yes.  It has this much significance that if, whatever that casual teacher’s outside occupations were, it made them unattractive to the Department then the Department would not have to hire them.

GLEESON CJ:   If the Department ever knew about it and they would not be obliged to tell anybody.  It is just nobody else’s business, is it?

MR BIRCH:   It would be someone else’s business if it was an activity that was inconsistent with the proper conduct of a casual teacher.

GLEESON CJ:   I can understand that if it went to the question of fitness.

MR BIRCH:   Yes, that is right.  The Director‑General could approve a permanent teacher engaging in outside activity but they would have to seek permission.  What we would say is this.  It is a distinction which does not have a dramatic difference when it is boiled down.  The permanent teacher would have to seek permission, the casual would not have to seek it but would not be hired if what they were engaged in made them unattractive or unfit, and that is a distinction.

GLEESON CJ:   Are all these things that are referred to on the bottom of 1539 various consequences of the fact that a permanent is an officer of the Department and a casual is not?

MR BIRCH:   In my submission, they are consequences of the fact that once you have permanency you usually remain hired by the Department until you retire or can be fired for good cause, but a casual does not have to be hired beyond the end of the year or beyond the end of their appointment.  So you do not need to worry about these things with casuals.  If you do not have work for them or you do not like the way they are conducting themselves, you do not hire them.  If you have a permanent who has taken up outside activities or who is no longer needed on the school’s establishment where they are stationed, then you have to be able to shuffle them around in some way or do something.

GLEESON CJ:   But if there are some advantages and some disadvantages about being casual, how can you fasten onto one of the disadvantages and say, “I want that eliminated”?

MR BIRCH:   In practical terms the position that the casual is in is not much different from the permanent.  So, while there is a section 71 for permanents, there is no equivalent for casuals.  You get the same practical result as a result of short-term tenure.  If your Honour says to me there is ultimately some difference – I cannot deny there is some difference.  One then has to ask, is that difference one which is reasonable in all the circumstances of the case? 

In that regard we say if the conduct of the Department is extracting equal value in all other senses of the word but paying more than 20 per cent less than a permanent staff member and if because of the distribution of men and women in the permanent and casual workforces it is a prima facie indirectly discriminatory practice, then that is a serious matter which requires for a finding of reasonableness more than a slight statutory distinction which nobody suggests has any weighty implication in the conduct of teaching in New South Wales.  There is no suggestion that permanent teachers find onerous the limitation on outside duties or that it assists the Department in any practical fashion. 

The ability to transfer in section 71 is not the principal way in which teachers are allocated to schools.  The director of staffing in New South Wales was a woman called Heather Gray, who was a witness for the Department, and her statement set out in some detail matters relating to the administration and staffing of schools.  At paragraph 48 of our written submissions we deal with that.  She referred to the fact that the recruitment and staffing procedures in accordance with the staffing agreement with the Teachers Federation, which is a protocol that does not depend on the use of section 71 at all – if your Honours go to volume 3, your Honours will see on page 748 the description of the Department’s staffing operation which sets out the way in which the Department staffs its schools.  Paragraph 10 at the bottom refers to:

The procedures contained in the Promotion and Transfer:  Procedures for Teachers booklet –

which was in evidence before the Tribunal.  That booklet is in volume 2 and it starts at page 541.  It is a lengthy document which shows how, in effect, the Department seeks to solve its problems about transfer by an inducements system by points rather than by exercising its statutory powers.  Your Honours, the way we deal with it summed up is this, that these are minor matters and they could not justify the extent of indirect discrimination that was identified, and that is the way in which the Tribunal dealt with it.  The Tribunal did not treat them as irrelevant.  It obviously looked at it, and it refers to it in its reasons and says that they are not able to bear upon the question of work value.

KIRBY J:   But we were taken by Mr Jackson to three passages where the focus for reasonableness did appear to be on the question of the actual work they are doing in the different classrooms.  I can understand how forensically that would be an important part of your case, but it does seem to narrow the focus too sharply on that rather than looking at the whole picture, which is what reasonableness would seem to require.

MR BIRCH:   Your Honour, the passages that Mr Jackson took you to of the Tribunal’s judgment did relate in some instances to classroom work, but the evidence was much broader than that and the Tribunal’s findings related to the breadth of the evidence.  So, in our submission, it was not the case that the Tribunal simply limited itself to what happened in the classroom.  In the Court of Appeal ‑ ‑ ‑

KIRBY J:   Maybe you will not get time to do it today, but if tomorrow you could direct me to the other places where the Tribunal looked more broadly, because the statute talks of reasonable in all the circumstances and therefore you have to look at all the circumstances.  You cannot just look at the fact that they are doing very similar work in adjoining classrooms.

MR BIRCH:   If your Honour goes to page 1593 of volume 5, the Tribunal deals with Ms Gray’s evidence and the fact that she mentioned ‑ ‑ ‑

KIRBY J:   This is at paragraph 20?

MR BIRCH:   At paragraph 20:

Ms Gray . . . mentioned several other justifications to the difference in treatment.  The first of these is the need to provide for relief from face to face –

et cetera.  They deal with all these points one by one and they conclude that that was absolutely no obstacle at all to the case.

GUMMOW J:   Now, is not the nub of your complaint that indicated by Justice Beazley at paragraph 122 in her reasons?  It is page 2321 in volume 7, paragraph 122:

there has been no work value determination by the Industrial Relations Commission on the issue raised in these claims, and the appellants themselves have no standing in the Industrial Relations Commission.

Therefore, it is reasonable to ignore the award.

MR BIRCH:   Well, your Honour, with respect, I would say that overstates it.

GUMMOW J:   Even though that is the sort of thing the Commission is meant to do when it makes awards.

MR BIRCH:   That is true, but then the Equal Opportunity Tribunal is equally empowered to then tackle them if it finds them to be discriminatory.

GUMMOW J:   No, we are construing this word “reasonable”, are we not?  Is not her Honour’s reasoning at paragraph 118 erroneous as well?  It assumes the discriminatory nature – 118 on page 2319:

The first is that it potentially entrenches the discriminatory nature of the condition.

That is the question to be answered by analysing the statute, which we are doing, which includes this word “reasonable”.

MR BIRCH:   Well, your Honour, with respect, I would suggest that what her Honour is doing there ‑ ‑ ‑

GUMMOW J:   So what I then want to put to you is, what is the answer then, those answers not being satisfactory it seems to me, to what was said by the dissenting judge at paragraph 202 at 2347?  Why are we not looking at that instead of trudging around in the ruminations of this Tribunal?

MR BIRCH:   I think your Honour was referring to Justice Hodgson at 2342, is that correct?

GUMMOW J:   Yes, paragraph 202.

MR BIRCH:   Yes.

GLEESON CJ:   Page 2347.

MR BIRCH:   Yes, your Honours, I should I think go to the ‑ ‑ ‑

GUMMOW J:   They are the opposed views, are they not?

MR BIRCH:   They are, yes.

GUMMOW J:   Well, it seems to me that is the battleground.

MR BIRCH:   Yes, your Honours, if I could go to the Industrial Relations Act.  We had the Act on our list.  I was not sure whether your Honours had copies of the whole legislation or only specific portions.

KIRBY J:   Could I just get it clear in my mind what I understand to be your answer to Justice Hodgson which is that the Industrial Relations Commission has its job to do.  It makes awards and when an award was made, in ancient times in this case, but it does not necessarily have the same people before it and does not necessarily address discrimination questions and is sometimes blind to discrimination questions and they are sometimes overlooked in what are sometimes rudely called the Industrial Relations Club of the employer and the union, but they are very important to individuals and individuals are given rights under the anti-discrimination law to go to another tribunal and to activate that tribunal to do its job and that is what the present respondents did and that you then have to have an interrelationship between the two Acts, but because Parliament has said that an award does not ultimately stand in the way of the application of the anti‑discrimination law, that the fact that there is an award is a factor but it cannot be a conclusive factor because Parliament has said it is not.

MR BIRCH:   Indeed, your Honour, we do say that.  We say that the anti‑discrimination law marks out limits on what can be done in the industrial arena and when one reads both Acts the Tribunal is the forum that has been given the principal power to decide what those limits are and how they will operate, even though in doing that it is, in effect, giving the Tribunal power in some circumstances to effectively review what might have been decided in the industrial arena in a broader sense.  Your Honours, I was going to take you to some passages in the Industrial Relations Act.

GUMMOW J:   You do not have a notice of contention on, have you?

MR BIRCH:   No, we do not.

GUMMOW J:   You stand or fall by Justice Beazley.  I am not saying that that is a bad thing but that is it, is it not?

MR BIRCH:   Well, we say that Justice Beazley is right.  I mean if your Honour is going suggest that I cannot add a submission then I might be forced to see clearly.

GUMMOW J:   No, I am not saying that.

GLEESON CJ:   And the Tribunal in this context includes the Appeal Panel of the Tribunal.

MR BIRCH: Yes, it does. If I could take your Honours to section 17, initially, of the Industrial Relations Act, that provides that the Commission may vary or rescind an award and in subsection (3):

(a)      at any time with the mutual consent of all the parties ‑ ‑ ‑

GUMMOW J:   Wait a minute.  This is the 1996 Act?

MR BIRCH:   Yes, that is correct.  Of course, I accept that what happened was that there was a change of industrial relations legislation during the period of discrimination although the Act that I am now referring to is the Act that was in force at the time of the hearing before the Tribunal.  It was only a brief period at the beginning of the period of relevant discrimination that the other Act applied.

KIRBY J:   But the old Act had a very similar provision if I remember rightly.

MR BIRCH: It did, as I understand it, and section 17(3)(c) provided that:

during its nominal term if the Commission considers that it is not contrary to the public interest to do so and there is substantial reason -

and then if I could take your Honours to section 169, which is noted at the bottom of that provision, and 169 obliges the Commission in the exercise of its functions to:

take into account the principles contained in the Anti-Discrimination Act 1997.

Section 169(2) is important because it provides that it –

An issue that is the subject of proceedings before the Administrative Decisions Tribunal in relation to a matter arising under the Anti‑Discrimination Act 1997 may not be the subject of proceedings before the Commission without the leave of the Commission.

Now, we say two things, firstly, that plainly contemplates that there can be an issue that can be before each of the two tribunals.  There is no limitation as to what that type of issue would be and in fact it appears to give precedence to the Equal Opportunity Division of the ADT in dealing with the matter.  So to the extent that there is a priority dispute in dealing with an issue which is a common issue the Industrial Relations Act at least gives this much priority to the ADT that the Commission will only deal with it with leave and then 169(4) provides that:

An industrial instrument may be varied at any time by the Commission in order to remove any unlawful discrimination arising from the instrument.  An application for such a variation:

(a)      may be made by a party to the instrument, and

(b)      may be made by the President –

Now, this is my answer to a question I have been asked several times.  What happens if the ADT makes a finding which appears to suggest that the award is operating in a discriminatory fashion?  I think Justice Callinan might have posed that one to me.  One practical solution is this, that the president of the Anti‑Discrimination Board would then have standing to appear before the Commission and make application to the Commission for the award to be varied so as to eliminate the discriminatory provisions.

KIRBY J:   What is that section that gives that ‑ ‑ ‑

MR BIRCH:   It is section 169(4).

KIRBY J:   I have never heard of that being done.  Has it ever been done that you know of?

MR BIRCH:   I am told the president has intervened in proceedings.  I am not aware of him ever having made an original application.

GUMMOW J:   Anyhow, it is not a party to the proceeding before the Equal Opportunity Tribunal?

MR BIRCH:   No.  The Anti‑Discrimination Act now, not in the form it was in earlier, has a new section 109.  I am not sure whether the section in its most current form is available to your Honours.  We have copies we can hand up of it in its newest form.

GLEESON CJ:   Thank you.

MR BIRCH:   Now, your Honours, this is a provision that has only been inserted in about the last 12 or 18 months so obviously it has limited usefulness to me in seeking to construe the Act as it was in 1999 but it represents, in our submission ‑ ‑ ‑

GUMMOW J:   Do you have details of the Act that put it in?  We need to know precisely.

HAYNE J:   Substituted by Act No 79 of 2004, item 3 in Schedule 1, it seems.

MR BIRCH:   Yes, thank you, your Honour, I am indebted to Justice Hayne.  That is correct.  It represents what we say is another practical solution to the issue of potential conflict, that is that if the Tribunal has made a finding of a sort such as the one in the present case, which has implications or effect on an industrial instrument, then the Industrial Relations Commission is informed about it and that information to the Industrial Relations Commission obviously is then capable of triggering the machinery in section 169 which can bring about a variation of an award so as to eliminate the difference.  The point of these provisions is this, your Honour.  They are not provisions which suggest that the Tribunal ought not to be engaged in litigation of the sort that has taken place here and that it should be engaging in deference to the findings of the Commission on awards.

The final piece that we would add to that would be section 54 itself, which was inserted by the 1994 amendment. Your Honours, we have enclosed the second reading speech for that amendment in the small bundle of additional documents that we have provided. If one goes to the second reading speech in the Legislative Council ‑ ‑ ‑

KIRBY J:   Which tab is this?

MR BIRCH: This is the last tab, tab 6, green 6 and the pages are numbered with stamped numbers on the bottom. If one turns to page 64 of the bundle. My learned friend, Mr Jackson, took your Honours earlier to the fact that section 54 was amended so that an order of a tribunal that could determine wages was not a defence to the Act. The matter was dealt with by the Attorney‑General in the first column, just after halfway down, commencing with the words:

Section 54 of the Act is to be amended to remove the current exemption relating to discriminatory provisions in industrial agreements. Section 54 of the Act currently exempts industrial agreements from the operations of the Act.

He then records the background to the amendment in the final paragraph:

It is both illogical and unjust for workers in New South Wales who are covered by awards and enterprise agreements to be unable to take complaints to the Anti-Discrimination Board in relation to discriminatory provisions which appear in awards and enterprise agreements.  The removal of the exemption is governed by clause 7 of the savings and transitional provisions in the bill, which provides a one-year period of grace within which discriminatory practices in existing awards and agreements will have to be rectified.

In light of that, we say there is just no scope to suggest that the Tribunal has to see itself as the junior member of the jurisdictions that can deal with conditions governing workplace arrangements.   If they are discriminatory provisions, people like my complainants can as of right invoke the Act.  It was amended specifically to permit them to do that and if they do that, and by so doing they affect the award that would otherwise apply to them, then the legislation contemplates applications being made to vary the award.  It is not that one reads the award as definitive of the question of reasonableness. 

It is for those reasons that we suggest that Justice Beazley was correct and that the approach that was taken by Justice Hodgson was erroneous because it did assume that there was some presumptive reasonableness in award following which is not countenanced by the legislation.

GLEESON CJ:   All he actually said was it is prima facie reasonable to follow the award.

MR BIRCH:   I meant to say no more than that, your Honour, but if one imagines a case where all other factors have been ruled out or are irrelevant, for whatever reason, so the award is the critical determinant, does the award by virtue of its existence alone give one a presumptive argument in favour of reasonableness.  His Honour Justice Hodgson went that far, in our respectful submission, in volume 7, page 2347 at paragraph 202, about line 10:

In my opinion, where there has been an agreement and/or award, arrived at after proceedings involving the Department and the relevant union or unions, and particularly where there have been decisions by the specialist tribunal, itself bound to have regard to the ADA, it is prima facie reasonable for the Department not to make over‑award payments to one class of persons dealt with by an award –

The point we make is this.  When one looks at the statutory provisions to which I have just referred, they plainly contemplate the entitlement of the person to come along to the Tribunal and say, “There is an award there, but it is discriminatory and it does not matter that it has been made by a specialist tribunal.  I have identified in what way it is discriminatory.”  And the award can be altered by the Commission or the President of the ADT going back there and making an application.

HAYNE J:   Does this not reveal a fundamental tension in your argument because the chain seems to be this:  (1) it is indirectly discriminatory to pay according to the award; (2) to avoid that indirect discrimination it is necessary that the employer make over‑award payments to female employees; (3) to do that would itself be discriminatory against male employees; (4) therefore, it is necessary to pay all employees, male and female, over‑award payments if they are in the requisite class of over eight week casual teachers.

MR BIRCH:   I am not sure that I dispute the ultimate point we arrive at, but I do not accept the second premise in your Honour’s argument.

HAYNE J:   What, to avoid that indirect discrimination would require the making of over‑award payments?

MR BIRCH:   To female teachers only, was I think the way your Honour put it, and my response would be ‑ ‑ ‑

HAYNE J:   Because the indirect discrimination that is identified is an indirect discrimination against female teachers?

MR BIRCH:   That is true, but on the other hand the way in which one avoids that indirect discrimination is simply by treating all supply casuals in a fashion that is equivalent to permanent.  So that one does not cure it by simply singling out the group ‑ ‑ ‑

HAYNE J:   Who are indirectly discriminated against.  You cure it by reaching a different industrial arrangement.

MR BIRCH:   That is, in effect, what the legislation in practice drives one to, in our submission. While that might seem a surprising conclusion in some respects, we say that is no more nor less than the effect of sections 24 and 25 of the Anti‑Discrimination Act read with the other provisions of that Act and of the Industrial Relations Act.

GUMMOW J:   But one of them was section 121, referred to by the Attorney in that speech in the Legislative Council.  Section 121 of the Anti‑Discrimination Act he referred to, I think.  He talked about a review of awards that took place and so on at page 64 of the additional material which you gave us.

MR BIRCH:   You Honour might be ‑ ‑ ‑

GUMMOW J:   Maybe I have missed something.

MR BIRCH:   Yes.  If your Honour is going to ask me whether there was a review of this particular award, I have to say the ‑ ‑ ‑

GUMMOW J:   No, it says “by virtue of section 121 of the Act”.  Where does section 121 of the Act talk about reviewing awards?  Did it do so in some former state?

MR BIRCH:   If your Honour goes to the form it was – which is set out in the blue binder – 121 then did just that.

GUMMOW J:   When was that taken out?

MR BIRCH:   Your Honour is perhaps assuming that the review, referred to in the second reading speech – sorry, the second reading speech refers to 120.

GUMMOW J:   Exactly.

MR BIRCH:   Yes.

GUMMOW J:   I cannot find the text of 121 of the Act which supports what the Attorney says as at 1994.  Anyhow, it can be looked at overnight.

MR BIRCH:   It has been repealed since – you have to have exactly the right reprint unfortunately, your Honour.  But the savings and transitional provisions ‑ ‑ ‑

GUMMOW J:   Well, I have it printed as 3 March 1994, and what we have been given is August 1994.

MR BIRCH:   I have a provision of 121, that says:

The Board shall, as soon as possible after the day appointed . . . undertake a review of:

(a)      the legislation of the State;

(b)      governmental policies and practices . . . 

with a view to identifying ‑ ‑ ‑

GUMMOW J:   Yes, well we have not reached the stage yet where the Industrial Commission makes the legislation for the State, have we?

MR BIRCH:   Yes.  Your Honour ‑ ‑ ‑

HAYNE J:   Section 121 is not noted in the table of amendments to the Reprint 12 as ever having been amended, so the 121 we see before us seems to be as passed.

MR BIRCH:   Yes.  But, your Honours, what was contemplated was that there was going to be a 12‑month period within which the Commission could review any awards, and that is referred to in clause 7 of Schedule 1, the savings and transitional provisions, and the amendments, although passed, did not have effect for a further 12 months after the commencement of the remainder of the amendments so that that review process could occur.

The way in which the legislature approached it was this, not to afford the Industrial Relations Commission presumptive priority indefinitely, but to provide a 12‑month period in which awards could be checked and then once that 12 months was up then awards would be vulnerable to the sorts of action that were taken by the complainants in this case.

GLEESON CJ:   Is that a convenient time?

MR BIRCH:   It is, your Honour, yes.

GLEESON CJ:   We will adjourn until 10.15 tomorrow.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 16 NOVEMBER 2005