Tung v State of Queensland

Luke Tung brought a complaint against Queensland Health, an agency of the State of Queensland, alleging that it had discriminated against him on the basis of sex in contravention of the Anti-Discrimination Act 1991 (Qld) (“the Act”). Mr Tung, a male nurse employed by Queensland Health, had applied for and been refused maternity leave to care for his newborn child. He was also refused special leave. He argued that the refusals amounted to direct and indirect discrimination in contravention of the Act. The State of Queensland argued that the refusals were not discriminatory because the leave was only available to pregnant female employees, and not to male employees such as Mr Tung. The Queensland Court of Administrative Appeals dismissed Mr Tung’s complaints. The court found that the refusal of maternity leave was not discriminatory because Mr Tung was not entitled to it as a matter of law. The court also found that the refusal of special leave was not discriminatory because the leave was only available to pregnant female employees and that this was a reasonable and necessary requirement.