State of NSW v Amery

[2005] HCATrans 366

[2005] HCATrans 366

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S487 of 2004

B e t w e e n -

THE STATE OF NEW SOUTH WALES

Applicant

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

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 10.40 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court please, I appear with my learned friend, MS T.J. ANDERSON, for the applicant.  (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:   We thought it might be convenient to hear from the respondents.

MR BIRCH:   Your Honours, the fact that I am called upon first suggests to me that there may be at least something which attracts your Honours’ attention.

GLEESON CJ:   Well, we are not entirely blind to the fact that the case went one way in the Tribunal then another way in the appeal, and that the Court of Appeal was divided.

MR BIRCH:   Yes.  Your Honours, can I then approach it this way.  There are ‑ ‑ ‑

GLEESON CJ:   You would have to be pretty slow on the uptake for us to have missed that.

MR BIRCH:   I know, your Honour.  The application that has been made raises not just one or two issues but quite a number of issues, some of which, we would submit, really reflect little more than the case management of this matter as it is progressed from the Tribunal to the appeal panel of the Tribunal to the Court of Appeal and questions such, for example, as whether the applicant was given the opportunity of having its hearing on the merits properly accorded to it falls into that category.

GLEESON CJ:   It seems to raise quite an awkward question, does it not?  What the ultimate outcome might be is another matter, but it is a question with which the Court of Appeal had difficulty.

MR BIRCH:   The Court of Appeal had difficulty with this aspect of the case only, in our submission.  That is, when one turns to the question of whether the requirement was not reasonable, whether one should, reflecting upon the fact that there was an industrial award and prior to that an agreement in place, find that the way in which our case was put, which did oblige the applicant to depart from the terms of that award, resulted in something which was not reasonable in all the circumstances.

In fact, the only success that was enjoyed in the Court of Appeal by the applicant from his Honour Justice Hodgson was on this very narrow basis; namely, what his Honour Justice Hodgson said was even though there was an award in existence, and that of itself is not a complete defence because of the amendments that were made to the Act in 1995, the existence of the award constitutes such a substantial matter that it leads to, in effect, prima facie reasonableness where the perpetrator, for want of a better phrase, has followed the award.

If I could take your Honours to page 159 of the application book, paragraph 202.  This is the nub of his Honour Justice Hodgson’s reasoning.  He notes, firstly, that the existence of the award does not of itself bring about an immediate exemption from the Act, and that was the situation – it did bring about immediate exemption if you could show that your conduct was conduct pursuant to an award.  Then in 1995 the legislature amended the Act and removed from the exemption provisions in section 54 conduct pursuant to, or in conformity with, an industrial award or agreement.  His Honour then continued to say this:

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 –

If I could just stop there.  What the majority said in the Court of Appeal was this.  Given that the legislature has gone and specifically withdrawn the existence of an award or conduct under an award as a defence, one cannot, so to speak, put it back in by saying it is prima facie reasonable.  What one could certainly say is that the existence of the award is a factor which could be weighed up when one makes the general judgment concerning reasonableness.  In our submission, that is the correct approach.  What his Honour does in saying it is prima facie reasonable is give an inappropriate weight to the existence of the award.

GLEESON CJ:   It is the structure of the award, as I understand it, that was significant in his thinking.

MR BIRCH:   It was because – what happened here was that the original complainants were school teachers who were what were called “supply casuals”.  They were long-term casuals, not the sort of casual teachers who go in to relieve someone who has been sick for a day or a week, but who are teaching as part of the normal regular staff of the school.  They teach normal scheduled classes.  They can, as indeed was the case with one of the complainants, have taught in the same school for several years.  So the job they perform is in every respect identical to the job that is performed by the normal permanent staff.

Because their tenure is casual rather than permanent, the casual pay scale is calculated by taking the permanent pay scale, by dividing it by 203, which is the number of normal teaching days in a normal year, and producing thereby a daily rate, and the casual rate is the number of days you work by the daily rate.  But what is done is this.  When the permanent rate is taken and divided, the permanent rate has 13 steps, so that any properly qualified teacher with appropriate seniority progresses through to the 13^th level.  A casual teacher, no matter what her experience and seniority, can never progress on the casual scale to a rate which is higher than the eighth level of that 13‑step scale.

So a casual teacher, who is teaching as a supply casual for the whole school year, normal scheduled classes, with the appropriate qualification and seniority, would, on the facts that applied at the time of the Tribunal hearing, have received an annual income that was $10,000 less than the income of her permanent colleague teaching classes next door.  The rate on the 13^th step at the time of the Tribunal hearing was $50,000 approximately for a permanent teacher, and the eighth step, the maximum rate ‑ ‑ ‑

GUMMOW J:   I understand all this detail, Mr Birch, but how do you say the system should work?

MR BIRCH:   What we say is this, that where the casual ‑ ‑ ‑

GUMMOW J:   In order to comply with section 24 of the Act.

MR BIRCH:   Where the casual teacher is teaching a job which is equivalent in all appropriate respects to that of a permanent teacher, then there should not be a differential.

GUMMOW J:   I know, but the State has an interest in making sure teachers will go to places that they do not all think are desirable to teach at.

MR BIRCH:   Your Honour, that was an issue which emerged fully fledged only in the Court of Appeal with respect to the Department.  There was no suggestion in the hearing before the Tribunal that in striking the wages of casual and permanent teachers part of the equation had been a compensation to permanent teachers for their liability to be asked to go and teach in a remote location.  The concession that was made by counsel for the Department in the Court of Appeal as to the practical effect of those statutory incidents suggested that they were probably of very minor value to the Department in the organisation of its very large teaching staff.

That was a matter which, as it features in the judgment of Justice Hodgson, was something discussed and refined in the course of the Court of Appeal hearing.  It emerges in Justice Hodgson’s judgment in a way in which it had not featured at either the Tribunal hearing or the appeal panel hearing.

GUMMOW J:   You say that the distinction between permanent and non‑permanent simply should not be viable?

MR BIRCH:   No, your Honour, we do not put it that way.  What we say is this.  Crucially, the distinction between permanent and casual relates to tenure.  What is important about a permanent employee is that they have an expectation of continuing work subject to being dismissed because breach of disciplinary redundancy or the like.  A casual has no expectation of continuing work, and that is the essence of that distinction.  Now, that is an appropriate distinction to apply where tenure is the critical factor.  If, for instance, one was looking at the staff facilities – canteens, bathrooms and the like made available to the school – one would think that it was not appropriate to say, “They’ll only be made available to permanent staff.  Permanency will be a condition of being able to access those facilities”, because one would say, “Well, use of such facilities is not related to the tenure that you have when you come along here to teach.”

Now, where the teachers are doing the same jobs as the permanent staff in all respects - there were days of evidence about the question of equality at the Tribunal, and there was a factual finding in our favour that they were substantially identical – to then pay the permanent staff 25 per cent more than the long-term casual staff for doing the same job, and where the numbers of casual staff as opposed to permanent staff tracks a gender differential, has a higher proportion of women as casual than permanent, then one has satisfied the provisions of the Act, we say, subject to any overriding question of reasonableness.

GUMMOW J:   Was the Court of Appeal decision delivered after our decision in Purvis?

MR BIRCH:   It was, your Honour, yes.  Your Honour, if I can return to paragraph 202 of Justice Hodgson’s judgment at page 159 of the application book, and just deal further with the process of reasoning of his Honour there, because it is obviously an important factor.  He commenced by suggesting that where there was an award in existence, that would be prima facie reasonable or it would be:

prime facie reasonable for the Department not to make over‑award payments –

Even if one were to accept that portion of his Honour’s opinion ‑ ‑ ‑

GUMMOW J:   Well, the award is made under another piece of State legislation, is it not?

MR BIRCH:   It is, yes.

GUMMOW J:   Any consideration given as to how that measures, if at all, with section 24?

MR BIRCH:   Well, the obvious way that ‑ ‑ ‑

GUMMOW J:   There seem to be two statutory regimes in New South Wales.

MR BIRCH:   There are, your Honour.  That is exactly the situation.  The Anti-Discrimination Act provides firstly for certain sorts of conduct to be exempt.  It no longer provides for conduct under an industrial instrument to be exempt.  But the second point is this, that section 24 of the Anti‑Discrimination Act outlaws discrimination in the workplace, and that includes discrimination in the terms and conditions upon which work is performed, and the jurisdiction to hear and determine a claim made under the Act is conferred upon the Administrative Decisions Tribunal.

So the legislature has, on its face, opened up two tribunals – both with jurisdiction to hear complaints or matters concerning workplace circumstances, although ‑ ‑ ‑

GUMMOW J:   Is it an answer, when an award is proposed, that it should not have this, that or the other determine it because it would bring about the operation of section 24, or do they just sail on?

MR BIRCH:   No, the Industrial Commission has an obligation when it makes an award to ensure that it conforms as best it can with the laws under the Anti-Discrimination Act.  I am sorry, we did not include it in our materials, we did not have time.  The practice ‑ ‑ ‑

GUMMOW J:   I am just wondering if at bottom your complaint is not really about the award.

MR BIRCH:   Well, if the Department had gone back to the Commission and amended the award to dispose of the matter of which we complain, and then acted in accordance with that amended award, that would deprive our complaint of substance.  But one of the points that we made in the Court of Appeal was this.  The complainants, who are individual teachers, do not have standing to go to the Industrial Relations Commission and open an award which is negotiated between the government on the one side and the Teachers Federation on the other.  So the legislative system ‑ ‑ ‑

GLEESON CJ:   The Teachers Federation would have had standing to go to the Commission, would it?

MR BIRCH:   They would indeed, but the teachers ‑ ‑ ‑

GLEESON CJ:   And raise this issue.

MR BIRCH:   The Teachers Federation represents a very large number of teachers.  If a group of – a subset, if you like, of all the teachers represented by the Federation believe that they are not being given a fair deal then they are able to exercise their rights as individuals to bring a complaint before the Tribunal, which is precisely what happened here, and if in doing that they uncover a form of discrimination which was not adverted to or which the Industrial Relations Commission simply overlooked, there is no reason why one then deprives them of a remedy.

GUMMOW J:   Do we know whether there are more male than female members of the Federation?

MR BIRCH:   I do not, your Honour, but the Federation has a substantial membership ‑ ‑ ‑

GUMMOW J:   Of course it does.

MR BIRCH:   And the teaching workforce has a preponderantly female structure but, with respect, that still would not be, in my submission, a relevant matter.  It is not a question of whether the Federation itself has a substantial number of women members ‑ ‑ ‑

GUMMOW J:   Anyhow, the real question is whether there is a special leave question.  We cannot get too far into the merits of what would happen if you are granted leave.

MR BIRCH:   Indeed, your Honour.  If one grants leave and has an appeal on this matter, what we submit is that what you are essentially doing is going to investigate the factual questions about the operation of this particular award.  There is nothing, as we understand it, raised by the case which invites the Court to depart from the generally orthodox principles on the application of the Act that have been laid out in cases such as Banovic and Waters.  What this involves is the application of orthodox legal principles to what is possibly a novel factual circumstance.

GLEESON CJ:   What was the full extent of the powers of the anti‑discrimination body assuming discrimination?  I notice that what you achieved in the Court of Appeal was an award of damages in a particular sum to particular people.

MR BIRCH:   Yes.

GLEESON CJ:   Did their powers go beyond that?

MR BIRCH:   They do.  They include injunctive powers, and they made orders that those of the complainants who were still casual ‑ ‑ ‑

GUMMOW J:   Injunctive orders including disruption of the award?

MR BIRCH:   Well, not disruption of the award because there is never any legal impediment to the Department paying some group of people more than their entitlement under the award.  The award always and only sets minimum standards.  The evidence from a senior administrator called by the Department was that it is their custom to only ever pay the minimum amount set by the award, but it is permissible for the Department ‑ ‑ ‑

GLEESON CJ:   It is not illegal to make over‑award payments.

MR BIRCH:   Not illegal, and of course in parts of commerce it is commonly done.

GLEESON CJ:   As to its industrial consequences, that is another matter.

MR BIRCH:   Indeed.  In any event, what was obtained were orders restricted to the payments for the complainants, damages for past underpayment and orders requiring them to be paid appropriately in the future.

GLEESON CJ:   So the practical effect of the orders was to order over‑award payments to these particular claimants?

MR BIRCH:   It was.  Can I say this, though.  There was no secret before the Court of Appeal that this could have some implication for the teaching force at large.  We recognised when the case was brought before the Tribunal that it was not possible to put forward a claim that 13 people be treated separately from a teaching force which extends to 75,000 people.  The case was put on this basis, that there would be no impediment to a common rule which identified casual teachers whose work had achieved identity with permanent teachers, and that is where the origin of the eight‑week period comes from.

The eight‑week period was that period which, on the evidence that we led, was we said the cut-off point where there could no longer be doubt that identity had been achieved.  There was therefore, we said, no impediment to the Department adopting an eight‑week rule and applying it across the board.  In regard to that, two things were never raised.  One, that there would be any administrative difficulty in applying an eight‑week rule of that sort.  Secondly, that there would be a budgetary constraint about applying an eight‑week rule of that sort.  Of course, before the Tribunal the central issue was really the identity of work rather than anything else.

So we have always acknowledged that the case had that potential effect on the general workforce.  But, indeed, in suggesting that there were two categories of teacher that deserved differential treatment, what we did was not much more than what had been recognised by Justice Bauer.  Your Honours may have seen reference to the fact that the origin of the current – not today, but at the time of the Tribunal hearing – then industrial regime, was a work value case that had been heard in 1983 by Justice Bauer in the then Industrial Commission, and he had identified the fact that long‑term supply casuals did quite different work from short‑term supply casuals.  However, he said both the parties, the Federation and the Department, asked him to decide the case on an average basis and he expressed his own doubts about the fairness of that, but because that was the way it was presented to him by the parties in 1983 he proceeded to produce an averaged rule.

The consequence was then that that averaged rule remained the underlying basis for the two awards as the award rolled over, either as a consent award or as an agreement, in the years right up to the hearing in the Tribunal.  When we came to the Tribunal, although that award was relied upon by the Department, what we said was simply, “Look, there’d always been an implicit recognition in the Justice Bauer judgment, but there was a difference.  There is a difference, we will now prove it, and the result of that is that you should accordingly recognise it.”

GLEESON CJ:   Thank you, Mr Birch.  In this matter there will be a grant of special leave to appeal.

We will adjourn for a short time to reconstitute.

AT 11.02 AM THE MATTER WAS CONCLUDED