State of Victoria v Schou
[2001] VSC 321
•31 August 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6377 of 2000
| THE STATE OF VICTORIA | Plaintiff |
| v. | |
| DEBORAH SCHOU | Defendant |
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JUDGE: | HARPER, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 JUNE 2001 | |
DATE OF JUDGMENT: | 31 AUGUST 2001 | |
CASE MAY BE CITED AS: | THE STATE OF VICTORIA v. SHOU | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 321 | |
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CATCHWORDS: Appeal from decision of Victorian Civil and Administrative Tribunal – Parliamentary sub-editor of Hansard – Whether Department of Victorian Parliamentary Debates discriminated against sub-editor on grounds of her status as a parent and carer – Whether requirement to attend at times when Parliament is sitting was reasonable – Whether Tribunal considered the relevant matters - Indirect discrimination – Equal Opportunity Act 1995, ss.6, 8, 9 and 14 – Waters v. Public Transport Corporation (1991) 173 C.L.R. 349 considered – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. P.J. Hanks QC with Ms. M. Young | Victorian Government Solicitors |
| For the Defendant | Ms. R.M. Doyle | Holding Redlich |
HIS HONOUR:
Before her resignation on 1 November 1996, Ms. Deborah Jean Schou, the respondent in the appeal presently before me, was a parliamentary "Hansard" reporter, and then (from June 1993) a parliamentary sub-editor of Hansard. Her employer (the present appellant) was the Department of Victorian Parliamentary Debates, which of course is a Department of the State of Victoria. It was a requirement, of general application to all sub-editors, that they work from Parliament House during those times when either House of Parliament was in session.
On its face, there seems to be nothing remarkable about that requirement. The reporting of parliamentary debates is a difficult, onerous and challenging task which requires considerable specialised skill for its proper execution. Much the same may doubtless be said of sub-editing. Reporters must be physically present during debates. The Department maintains that, if Hansard is to be published as quickly and efficiently as possible, the physical presence of sub-editors is, if not essential, at least highly desirable. But that is not a matter for me to determine.
Whether reasonable or not, the requirement was not one which Ms. Schou always found easy to meet. From 1996 onwards, it was increasingly difficult for her "to cope with the competing requirements of her employment during parliamentary sessions when either or both Houses were sitting, and the requirements of being a parent and a carer". That at least was the finding set out at p.22 of the reasons for decision dated 20 April 2000 of the Victorian Civil & Administrative Tribunal in a proceeding brought by Ms. Schou in which she alleged that the Department had discriminated against her on the grounds of her parental and carer status and (although this is not relevant for the purposes of this appeal) industrial activity.
Ms. Schou's concern about competing demands is entirely understandable. She had a young child "suffering from recurrent bouts of illness: chest infections and childhood asthma and separation anxiety": ibid. It was in these circumstances that Ms. Schou sought to persuade her employer to vary the requirement that she work from Parliament House and from nowhere else during parliamentary sessions. She wished to spend some of that time looking after her child at home. Negotiations followed. Several possibilities were discussed. Eventually, on or about 20 August 1996, it was "agreed that the best solution to the problem of Ms. Schou's difficulties in respect of the competing requirements of her employment and her status as a parent and a carer, was the installation of a modem line between her home and Parliament House and a fax machine; [this was] [t]o enable Ms. Schou to continue her full time employment with the respondent, consistent with her obligations as a parent and/or carer by allowing her to work from her home via a modem on Thursdays and Fridays when Parliament was sitting": ibid, pp.22-23.
The modem was never installed. According to the Department, Ms. Schou resigned before installation could be effected. The Tribunal, however, was "not satisfied that management's intentions to implement the modem proposal survived past September 1996": ibid, p.25.
Ms. Schou claims that these circumstances amount to an act or acts of indirect, as opposed to direct, discrimination against her. The latter term is defined by s.8 of the Equal Opportunity Act 1995. By that section, "[d]irect discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances." (Emphasis supplied.)
The discrimination from which Ms. Schou suffered was, she submits, indirect. That expression is defined in s.9 of the Act. It should be set out in full:
"9(1)Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice –
(a)that someone with an attribute does not or cannot comply with; and
(b)that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and
(c)that is not reasonable.
(2)Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including –
(a)the consequences of failing to comply with the requirement, condition or practice;
(b)the cost of alternative requirements, conditions or practices;
(c)the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.
(3)In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination."
The Act provides, by s.6, that discrimination on the basis of certain enumerated attributes is prohibited in certain enumerated areas of activity. Among those attributes are two which Ms. Schou can rightly claim: "parental status or status as a carer"; and as an employee of the Department she is (or was) engaged in one of the specified areas of activity: that of employment. By s.14:
" An employer must not discriminate against an employee
(a)by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;
(b)by dismissing the employee or otherwise terminating his or her employment;
(c)by denying the employee access to a guidance program, and apprenticeship training program or other occupational training or re-training;
(d) by subjecting the employee to any other detriment."
(Emphasis supplied.)
The use in the legislation of the expressions "less favourably" (s.8) and "detriment" (s.14) is, I think, significant. Inherent in the concept of discrimination is behaviour by one person which impacts adversely on another where a third person, without the attributes of the victim, would not be victimised. According to the New Shorter Oxford Dictionary (1993) "discriminate" means, among other things, to "[m]ake a distinction in the treatment of different categories of people or things, especially unjustly or prejudicially against people on grounds of race, colour, sex, social status, age, etc." (Emphasis as in the original.)
Neither the expression "less favourably" nor the expression "detriment" nor any like expressions appear in s.9. It does not follow that the concepts which they embrace are absent from the section. The meaning of the term "indirect discrimination" in the context of the Equal Opportunity Act 1984 (the predecessor of the present (1995) Act) was the subject of consideration by Dawson and Toohey, JJ. in Waters v. Public Transport Corporation[1]. Their Honours there said:
"A distinction is often drawn between two forms of discrimination, namely 'direct' or 'disparate treatment' discrimination and 'indirect' or 'adverse impact' discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such 'equal' treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable." (Emphasis supplied.)
[1](1991) 173 C.L.R. 349 at 392
This passage immediately follows reference by their Honours to ss.17 and 29 of the Equal Opportunity Act 1984. The first of these sections is reflected in ss.8 and 9 of the Equal Opportunity Act 1995 (which, it will be remembered, define direct and indirect discrimination); the second, which (in the circumstances set out in the section) makes unlawful discrimination in the provision of goods or services, has as its equivalent s.42 of the 1995 Act. Section 21 of the former Act and s.14 of the latter deal in comparable terms with discrimination against employees. As their Honours point out, at p.392, what amounts to discrimination is to be derived in the first instance from s.17 of the 1984 Act (and therefore from ss.8 and 9 of the 1995 Act). It follows that s.29 (and s.21) of the former must be applied in conjunction with s.17, while s.14 of the latter must be applied in conjunction with ss.8 and 9. And s.14 provides that an employer must not discriminate (as that term is defined in the Act) against an employee by subjecting the employee to any relevant detriment. The section does not turn the denial by an employer of a favour to an employee into discrimination, although if the favour is generally available to other employees, its denial to one could conceivably, in the particular circumstances, amount to an offence against the Act.
This analysis, then, provides sustenance for the proposition that discrimination within the meaning of that expression in the Equal Opportunity Act involves treatment which impacts less favourably on some than it does on others; or which amounts to the unjust imposition of a detriment to which others are not subjected. It does not, at least in general, arise where an employer fails to favour an employee with a benefit not available to other employees.
It is against this background that, in Waters' case, Brennan, J. sounded a warning which seems to me to be pertinent here. That proceeding was instituted by a number of persons who suffered from disabilities of a kind which would significantly and adversely affect their continued use of public transport were the Government of Victoria to proceed with plans to introduce "scratch" tickets and to remove conductors from trams. His Honour said, at p.372:
"The provision of needed services and the protection against adverse and unjust discrimination are distinct but related means of securing the welfare and dignity of the disabled. This litigation seems to me to be largely misdirected, for it invokes the Equal Opportunity Act 1984 and alleges unlawful discrimination when the true remedy which is sought is an enhancement of the services available to the disabled. Anti-discrimination legislation cannot carry a traffic it was not designed to bear. The beneficial operation of such legislation is prejudiced by invoking its assistance to achieve remedies which can be achieved only by straining the legislative language. The provision of services for the disabled, a function properly and necessarily reposed in the Executive Government as the branch of Government with fiscal power and responsibility, might not receive due attention if the measure of the entitlements of the disabled is determined by litigation under anti-discrimination legislation. Anti-discrimination legislation should be liberally construed but not as though it were the only, or even the principal, means by which the disadvantages of the disabled or of other minority groups are to be alleviated."
Such alleviation is of course to be welcomed. Civilised conduct – conduct which respects the innate dignity of each individual – has its source in an imaginative and selfless concern for others, particularly the disadvantaged. It is thus the mark of a civilised community that it not merely eschews discrimination (that is, the making of unjust distinctions in the treatment of different individuals or categories of persons) but indeed takes positive action to minimise or eliminate the handicaps by which some of its members are constrained. Consistently with this approach, modern society has now recognised, albeit slowly and imperfectly, that women bear a disproportionate responsibility for the discharge of many necessary everyday tasks, and suffer particular handicaps in (for example) securing in the workplace positions which are commensurate with their abilities. With that increased recognition has come an increased willingness to encourage positive steps which, if taken, will tend to promote equality between the sexes.
It is no reflection on the desirability of these changes to point out, as did Brennan, J. in the passage quoted above, that they should nevertheless not be made by forcing the Equal Opportunity Act to do that which the democratically-elected Parliament did not intend that it do. That intention must be found in the words of the Act itself.
Ms. Schou, in an argument which the Tribunal found attractive, relied on s.9. She was a person with an attribute: she was a parent and a carer. Because she was such a person, she could not comply with the Department's requirement that she attend at Parliament House whenever Parliament was in session. Others, who did not have those attributes, could comply with that requirement; and those who could so comply constituted a higher proportion of the Department's employees (or, at least, of its Hansard sub-editors) than did she and those of her colleagues who could not. And the requirement was not reasonable because she could perform her duties from home on Thursdays and Fridays of each parliamentary week once the Department did what was reasonably open to it, and supplied her with a modem. The consequences of her failing to comply with the impugned requirement were, moreover, that she risked losing her job. Ms. Schou therefore fell squarely within the purview of s.9. She was also covered by s.14, since as a consequence of this indirect discrimination she suffered a detriment. At p.28 of its reasons, the Tribunal expressed the conclusion that, by requiring Ms. Schou to work on site at Parliament House during House sitting days the Department was "subjecting Ms. Schou, the employee, to a detriment, the detriment being that she has to unreasonably choose between the obligations of her full time employment and her obligations as a parent and/or carer."
The Tribunal, by this approach, concentrated upon the reasonableness of the modem proposal. The Tribunal was in my opinion wrong to do so. The modem proposal is only relevant at all if the "attendance" requirement is in its general operation (that is, as it operates generally on Hansard sub-editors) unreasonable. A much broader focus than one which concentrates upon the modem proposal is necessary. This case involves the rights and interests not only of employees but also of employers; of parents and carers as well as those who are neither. It necessitates the interpretation of important legislation in a field, that of employment law, already occupied by the law of contract and by industrial awards and agreements. The Equal Opportunity Act has its place in that field; but courts and tribunals should not, in defiance of its proper construction and without regard for other, long established, claimants, arrogate to it territory which the legislature never intended that it should occupy.
The Act contains within itself limitations upon its reach. I have already touched upon some of them; but it is necessary, even as one bears properly in mind the beneficial purposes of the legislation and the disadvantages from which certain members of society continue unjustly to suffer, to refer to them again. The Act is concerned (among other things) with direct discrimination properly so called: that is, with treatment of certain individual categories of people which is less favourable than that accorded to others. Likewise, it limits discrimination in employment to that which subjects the employee to a detriment. And it provides that the imposition of a requirement, condition or practice cannot amount to indirect discrimination unless it is not reasonable.
It follows that the requirement that Hansard sub-editors attend at Parliament House when either chamber is in session is only discriminatory of Ms. Schou if it not only subjects her to a detriment but is also not reasonable. Since, however, it impacts not only upon Ms. Schou but also upon all sub-editors, and indeed the Department itself, its reasonableness must be assessed with each of those interests in mind. It is not sufficient to concentrate only on Ms. Schou to the exclusion of the others. This, nevertheless, is what (as it seems to me) the Tribunal did.
The requirement, condition or practice about which this case revolves forms an element in Ms. Schou's contract of employment with the Department. This is a contract which is of great importance to both parties. Just as an employee is entitled to certain defined benefits in return for the provision of his or her services to the employer, so is the latter entitled to demand from the former that level of service which he or she is paid to provide. There should, of course, be an appropriate match between the job specification of the employee, the need of the employer for the service thus provided, and the remuneration given in return.
This match, once realised, may be a thing of some delicacy. Ms. Schou sought to have it altered to better enable her to meet the demands placed upon her in her capacity as a parent and carer. When the Department failed to deliver on what she considered to be a reasonable adjustment (albeit one which on any view brought no benefit to the Department) she sought a remedy from the Tribunal. In doing so, she placed upon it an onerous burden. An appreciation of the delicacy of its task, and of all the ramifications involved, was necessary if the Tribunal were to promote the best possible outcome according to law.
A term of a contract of employment, compliance with which is reasonably adapted to ensure that the employee provide to the employer that standard of service which the employer reasonably requires and the employee is paid to provide, will not be caught by s.9 of the Act. It is not the aim of the legislation to deny employers the rights given to them by a lawful and reasonable contract of employment. If workers who are disabled, or who are parents or carers, or who carry some other relevant attribute, cannot do the job, the Equal Opportunity Act does not require their employment in spite of their inability to fulfil those terms of their contract of employment which govern the performance of the very tasks which they are employed to carry out.
The requirement that Hansard sub-editors attend Parliament when Parliament is in session may not be appropriate and adapted to ensure that those employees provide to Parliament that standard of service which parliamentarians are entitled to expect and for which the sub-editors are paid. If not, it will be "not reasonable". If the Department were in those circumstances to insist upon Ms. Schou's attendance on pain of her losing her job if she did not, then she would suffer a detriment; and the Department would be guilty of a breach of s.14 of the Act. On this hypothesis, the requirement impacts adversely and unreasonably on all Hansard sub-editors. Its impact on Ms. Schou, because she is a parent and carer with a recurrently ill child, is even more adverse than its impact on her colleagues.
If, on the other hand, the "attendance" requirement is appropriate and adapted to ensure that Parliament receives the benefit of the timely provision of accurate and properly edited Hansard reports, then by applying to be relieved of it Ms. Schou sought a favour; one which (it would seem) had not been granted by her employer to any other employee. Her application for that favour was granted, but not realised: the modem failed to materialise before her resignation on 1 November 1996. That is not discrimination. No detriment was, on this hypothesis, involved. Ms. Schou was simply treated as all other sub-editors were and are treated: not better, but certainly not worse. Even if, by the beginning of October 1996, the Department had killed the modem idea, the result would simply have been the abandonment of a proposal to confer upon Ms. Schou a benefit unavailable to others. That abandonment may have been "not reasonable". It may be that, had the modem proposal been put into effect, the adverse impact upon the Department's ability properly to service Parliament would have been negligible. The financial cost of the installation, too, might have been small, at least in relation to the Department's budget. And the benefit to Ms. Schou and her child might have been very considerable. But the Act forbids discrimination. It does not compel the bestowing of special advantage. The unreasonable refusal to extend a benefit to an individual or individuals where that benefit is, with good reason, not available to others, is not discrimination.
It follows that the reasonableness of the "attendance" requirement was and is central to this case. In other words, it was necessary for the Tribunal to examine whether the attendance of Hansard sub-editors at Spring Street during parliamentary sessions was, with the inevitable exceptions for sick leave, emergencies and the like, appropriate and adapted to ensure that those employees provided to Parliament the service which the Department was established to deliver and for the provision of which sub-editors are paid. The Tribunal, however, failed to give proper consideration to that question. Indeed, it examined this aspect of the case only through the prism of the modem proposal, a proposal that the Tribunal found to be reasonable. It also found, at p.27 of its reasons, "that Ms. Schou as a parent and/or as a carer, did not and could not comply with the requirement or condition that to engage in full-time work as a sub-editor of Hansard she had to work on site at Parliament House during sitting days, pursuant to sub-s.9(1) of the Act." Of the reasonableness of that requirement, the Tribunal merely said, at 26-27:
"I find that the [Department's] insistence that Ms. Schou attend work full time on site at Parliament House on sitting days was the imposition of a requirement or condition of employment for the purposes of sub-s.9(1) of the Act. I am satisfied on all of the evidence before me, that a modem could have been installed to allow Ms. Schou to satisfy full-time work requirements by working part-time at her home and part-time on site at Parliament House at a modest cost, estimated to be $2,000-$2,500 and that the financial circumstances of the Department … were such [it] could, without difficulty, afford to remove the requirement or condition, and that the consequence of Ms. Schou failing to comply with the requirement or condition was that she would risk losing her job.
Taking these factors into account and in all of the circumstances, I am satisfied that the requirement or condition imposed on the employment by the [Department] was not reasonable."
Other issues, however, must necessarily be brought into account. "Reasonableness", in the context of s.9 of the Act, can only be determined by weighing all relevant factors. These include the matters which an employer should properly take into account when deciding whether or not to impose a requirement, condition or practice on an employee or employees.
A host of such considerations come readily to mind. I mention but a few. In its reasons, the Tribunal referred to none. Yet much relevant evidence was before it. There was, for example, evidence before the Tribunal that during sitting times close interaction between all staff members is necessary in order that Hansard reports are both prompt and accurate: not as a verbatim record of what was said in Parliament, but as a record which – while not necessarily reproducing the errors of grammar or syntax or the like which inevitably appear in the cut and thrust of oral debate – accurately captures the meaning and sense of its contribution to that debate. If this is so, the importance of the work of the sub-editors, and of their ability to work closely and co-operatively with the reporters, with parliamentary officers and others, is clear. Moreover, according to evidence before the Tribunal, inexperienced reporters need much sub-editorial assistance when Parliament is in session. Each sub-editor has assigned to him or her reporters with whom constant liaison is necessary if quality standards are to be maintained. These standards are high. It may be that such liaison is less satisfactory, or even less than satisfactory, when that communication is not face to face.
Corroboration for this proposition might be found in the evidence, adduced by the Department during the course of the hearing before the Tribunal, that no leave was granted to reporters or sub-editors when both Houses are sitting. Nothing except an emergency would serve as an excuse for non-attendance. The absence of one meant a significant increase in the already very considerable workload of those who remained.
This evidence (if accepted), together with one's experience of the way people, including work colleagues, interact (experience upon which a Tribunal member is entitled, as is a jury in a criminal trial, to draw) point to the conclusion that the "attendance" requirement, as a "requirement, condition or practice" generally applicable to Hansard sub-editors, is by no means inherently unreasonable. The burden is upon Ms. Schou to prove otherwise: Vines v. Djordjevitch[2]; Waters v. Public Transport Corporation[3]; and Commonwealth Bank of Australia v. Human Rights and Equal Opportunity Commission[4]
[2](1995) 91 C.L.R. 512 at 519-520 per Dixon, C.J. and McTiernan, Webb, Fullagar and Kitto, JJ.
[3](1991) 173 C.L.R. 349 at 411 per McHugh, J.
[4](1997) 80 F.C.R. 78 at 111 per Sackville, J
When considering in any particular case whether the burden has been discharged, courts and tribunals must act with an appropriate degree of diffidence. The expertise of judges and tribunal members does not generally extend to the management of a business enterprise or the reporting of parliamentary debates; and just as the courts, in proper recognition of their lack of relevant expertise, will not in general issue to company directors instructions about how they should manage the businesses under their control, so courts and tribunals concerned with equal opportunity legislation should resist the temptation unnecessarily to dictate to persons who manage, and work on, the shop floor. At the same time, anti-discrimination legislation should be liberally construed. Getting the balance right will often be difficult.
Assistance will of course be gained by reference to the authorities, provided that general statements are not applied unthinkingly to particular circumstances. In this context, it is important that reasonableness can only be determined by weighing all relevant factors; and these will differ from case to case: Commonwealth Bank v. H.R.E.O.C.[5] It is also important to bear in mind that "the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience": Secretary, Department of Foreign Affairs and Trade v. Styles and Another[6]; Waters v. Public Transport Corporation[7].
[5](1997) 80 F.C.R. 78 at 111
[6](1989) 23 F.C.R. 251 at 263 per Bowen, C.J. and Gummow, J.
[7]((1991) 173 C.L.R. 349 at 395 per Dawson and Toohey, JJ.
By a notice of appeal dated 1 November 2001, the State of Victoria appealed from the Tribunal's decision of 20 April 2000. One of the questions of law raised by the appellant is whether the Tribunal erred in law in reaching the conclusion that the requirement or condition imposed on Ms. Schou by the appellant (namely, that she attend work on site at Parliament House on House sitting days) was not reasonable because the Tribunal failed to consider the rationale behind its imposition on all employees. Ground (c) of the grounds of appeal reflects this. It is that the Tribunal erred in law in reaching the conclusion that the impugned requirement or condition was not reasonable in that the Tribunal failed to consider the reasons supporting that imposition.
In my opinion, the Tribunal did fall into an error of law. The reasonableness of the "attendance" requirement, as a condition of employment arguably going to the core of the relationship between the Department and its sub-editors, was at the heart of the matters which the Tribunal was bound to decide. The Tribunal failed to consider the requirement in that context.
The matter must therefore go back to the Tribunal to be dealt with according to law. The Tribunal may find that the "attendance" requirement is not reasonable. If so, the modem proposal becomes relevant. Had it been given effect it might have transformed an "attendance" requirement which was not reasonable into one which, albeit (on this hypothesis) only in the case of Ms. Schou, was reasonable. Indeed, the Tribunal was satisfied that that would have been the result. This is the only possible conclusion to draw from the opinion, expressed by the Tribunal at p.28 of its reasons, that it was reasonable for the Department to provide the modem and unreasonable not to. Had it been provided, Ms. Schou would not have resigned; and the subsequent proceedings would not have been brought.
But the modem proposal was not given effect. The appellant submits that (in the words of the notice of appeal):
"The Tribunal erred in law by failing to consider logically probative evidence, and thereby failed to give genuine consideration to a relevant matter, when the Tribunal found that 'there was no evidence before me to explain why approximately 11 weeks after it [i.e., the installation of a modem] was proposed and accepted, it had not been installed'."
The Tribunal did, at p.25 of its reasons, say what the appellant says it said. But that is not what it meant. There was evidence to explain at least some of the delay; and the Tribunal proceeded, immediately after the quoted passage, to refer to it: Parliament was sitting again, and the information technology people charged with the responsibility for installing the modem were busy with tasks of a higher priority. Given its recognition that this evidence did exist, it is inexplicable that the Tribunal referred to "no evidence" – unless it had in mind only the last portion of the 11 weeks.
A more important passage occurs on the same page. The Tribunal went on to say that it was "not satisfied that management's intentions to implement the modem proposal survived past September 1996": reasons, p.25. Hence it held that the Department could not rely on the modem proposal as an appropriate reaction to what would otherwise have been discriminatory conduct.
In my opinion, the state of the evidence was such that the Tribunal's position on this point was one which, in law, was justified. We are here concerned only with a question of fact. Another Tribunal, differently constituted, might have come to a different conclusion. Questions of fact, however, are for the Tribunal to determine. It is not for this Court to interfere simply on the ground that another tribunal might have been convinced that management fully intended throughout to put the proposal into effect. In any event, the appellant has not in its notice of appeal sought to re-agitate this point.
Once it is accepted that the Department killed the modem proposal, then the sting of a finding that the "attendance" requirement was not reasonable cannot be removed by the proposition that the implementation of that proposal saved the Department. Nevertheless, much time was spent, during the course of the hearing of the appeal before me, in debating the appellant's assertion (as set out in the notice of appeal) that the Tribunal erred in law by failing "to consider the practicability, cost and effect on achievement of the appellant's objectives of the … modem … [proposal] in the context of all the appellant's employees".
No responsible Departmental manager, it was submitted, could properly assess the reasonableness of the modem proposal by having regard only to the cost of installation of the modem and whether or not, when installed, Ms. Schou would be in a position "to satisfy full-time work requirements by working part-time at her home". The Department would have been in dereliction of its duty to Parliament had it not, before approving or declining to approve the modem proposal, considered other factors – such as the maintenance of good industrial relations – which are relevant. And any consideration properly to be taken into account by the Department in assessing the modem proposal would also be relevant to the Tribunal's assessment of Ms. Schou's complaint.
What if Ms. Schou's colleagues also had sick children who needed extra care at home? How many sub-editors could the Department afford to have at home during sitting hours, even with a modem? How many modems would the Department be required to install for how many carers? Which other employees/carers would seek what other favours? A reasonable request made by one employee may place quite unreasonable burdens upon an employer when made by a number of employees. In such circumstances, the determination of what is reasonable in the particular case could generate problems which are very difficult, if not impossible, of solution. And even if "a modem could have been installed to allow Ms. Schou to satisfy full-time work requirements by working part-time at her home", would the service provided by Ms. Schou from home be relevantly comparable to the service which she was able to provide when working at Parliament House?
An additional complication enters the equation if one turns to s.13 of the Act, which forbids discrimination against job applicants. Suppose the submissions put on behalf of Ms. Schou, and accepted by the Tribunal, are correct. It would follow that the Department, if faced by an applicant for a vacant sub-editor's position, could not refuse to employ him or her simply because that employment would require the Department to confer on the applicant favours which were not enjoyed by present employees and which other comparably well-credentialled applicants did not seek and for which they had no need. The industrial relations implications of all these issues are obvious. They were ignored by the Tribunal.
It might be said that the Department answered some or all of those questions in Ms. Schou's favour when it agreed to the modem proposal. It might, in the light of the Tribunal's findings, be said in reply that the Department later realised its mistake and hence refused to consummate the arrangement. Another response, in my opinion unanswerable, is that the Department's agreement to the modem proposal does not necessarily say anything about the reasonableness of the "attendance" requirement as a term generally applicable to the contracts under which Hansard sub-editors are employed.
I resurrect the debate about the modem proposal for one purpose only. It demonstrates how hard it often is so to tailor a general requirement which goes to the heart of the employees' duty that the special requirements of employees with an "attribute" who are also (for example) parents with chronically sick children are met. It would be an unusual case in which one could properly conclude that a requirement, condition or practice was not reasonable simply because it failed to incorporate provisions with that degree of particularity.
If this is correct, then a requirement, condition or practice which reasonably governs the provision by employees in general of the services which they are paid to provide will not, at least in the majority of cases, be discriminatory of an employee with a relevant attribute. Of course that requirement, condition or practice will have to comply with industrial law and the law of contract (and all other applicable laws). It will necessarily incorporate a degree of flexibility, including such flexibility as is reasonable to cover those employees who are also (for example) parents and carers.
The very special needs of people who have recurrently sick dependents will often be beyond the scope of such reasonable requirement, condition or practice. This is not to say that the reasonable employer should not endeavour to accommodate those employees. Generally speaking, however, such accommodation would be beyond the purview of the Equal Opportunity Act.
For these reasons, the orders of the Victorian Civil and Administrative Tribunal dated 20 July 2000 must be set aside. The proceeding must be remitted to the Tribunal to be dealt with according to law.
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