Viney v Department for Education & Child Development - [2015] SAEOT 5

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
VINEY v DEPARTMENT FOR EDUCATION & CHILD DEVELOPMENT
[2015] SAEOT 5
Judgment of Her Honour Judge Cole
6 August 2015
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - DISCRIMINATION DUE TO STATUS
Complainant alleges discrimination on the grounds of the refusal of his wish to undertake more "parental reading" time than that stipulated in an order made under the Family Law Act 1975 (Cth).
Complainant alleged discrimination pursuant to s 85T relating to his marital status and s 85V as an unpaid worker.
Held: A parent presenting to his or her child’s classroom for the purpose of hearing children practise reading is not an unpaid worker – complaint dismissed.
Held: While the order under the Family Law Act 1975 (Cth) does not have the effect of confining the contact of the complainant with his children to the occasions set out in the order, the complaint of discrimination is not made out under the Equal Opportunity Act 1984 (SA) – complaint dismissed.
Equal Opportunity Act 1984 (SA) s 5, s 85T, s 85V, s 95B and s 96; Family Law Act 1975 (Cth); Equal Opportunity Act 2010 (Vic) s 94, referred to.
Belyea v Brodie [2012] VCAT 1978; FFF v ZJR [2014] VCAT 741, considered.

VINEY v DEPARTMENT FOR EDUCATION & CHILD DEVELOPMENT
[2015] SAEOT 5
THE COURT DELIVERED THE FOLLOWING JUDGMENT:

Mr Viney has made a complaint to the Commissioner for Equal Opportunity (“the Commissioner”) under the Equal Opportunity Act 1984 (SA) (“the Act”). Mr Viney claims that he has been the victim of unlawful discrimination, contrary to the Act. The Commissioner, pursuant to s 95B(c) of the Act, declined to recognise the complaint as one on which action should be taken. Mr Viney then requested that the matter be referred to this Tribunal, and the Commissioner accordingly referred it under s 95B of the Act.
The respondent applied for an order dismissing the proceedings under s 96(2)(b) on the basis that Mr Viney does not have an arguable case that he was the subject of discrimination under the Act. This is the decision in relation to that application.
Outline of the facts
No evidence was called upon the hearing of the application. I was asked to decide the application on the basis of the version of events most favourable to Mr Viney which can be ascertained from the documents provided to the Commissioner.
Mr Viney is the father of two children who, at the relevant time, which is mid-2013, attended the Naracoorte Primary School. Mr Viney is, and was then, divorced. The arrangements as between Mr Viney and his ex-wife concerning the children were set out in an order of the Federal Magistrates Court (as it then was) dated 16 June 2010, made under the Family Law Act 1975 (Cth). That order was submitted by Mr Viney with his complaint, and provided, among other things:
3.… the father shall spend time with the children as follows …:
(a) From the conclusion of school each alternate Thursday until the commencement of school the following Monday;
(b) On the Wednesday immediately preceding the father’s time at the school of the children for the purposes of parental reading or other involvement which involvement will remain wholly at the discretion of the school;
…
14.That the father be at liberty to attend at the school of the children as particularly related above herein and further at all usual times during which any parent ordinarily attends such as for assemblies, sports days, concerts, parent teacher interviews and the like.
“Parental reading” refers to the widespread practice in schools of having parents attend for a short time in the morning of a school day to hear children from their child’s class practise their reading. Mr Viney wished to hear reading at the school on other days of the week in addition to every second Wednesday. His efforts to do so were met with a letter dated 20 June 2013 from the Principal of the school in these terms:
It has been brought to my attention that you are coming in to the school to listen to reading on a number of occasions. Whilst we are appreciative of your willingness to do this I would like to remind you of the terms of your court order dated 16 June 2010 whereby you may spend time with the children on the alternative Wednesday morning preceding your contact with the children for the purposes of parental reading or other involvement at the discretion of the school.
I will advise my staff of the arrangements regarding your attendance for reading and appreciate your compliance in advance.
Mr Viney replied, by letter dated 15 July 2013. The relevant extract from that letter is as follows:
…
In your letter you state it has been brought to your attention that I am coming into school to listen to reading and that I am doing this more that the Parenting Orders allow. You refer to the wording in paragraph 3(b) of the Parenting Orders.
I trust after re-reading the Parenting Orders you will agree paragraph 3(b) relates to me reading to the children at school and other activities I am able to organise with the boys teachers. I have never read to the children at any school nor have I organised other special activities with their teachers since the Orders commenced. I trust you will also agree paragraph 14 of the Parenting Orders allows me to participate in any activity parents are normally invited to attend. Mrs Duncan invited parents to volunteer with listening to reading at the start of the year. [sic]
The Principal replied by letter dated 9 August 2013, the relevant part of which said:
Listening to reading
…
I note that your court order dated 16 June 2010 does state at paragraph 3(b) that “on the Wednesday immediately preceding the father’s time at the school of the children for the purposes of parental reading or other involvement which involvement will remain wholly at the discretion of the school” which would indicate that you may at the discretion of the school on that Wednesday be involved with the children at the school for a purpose other than parental reading.
I also note that your court order dated 16 June 2010 does state at paragraph 14 “that the father be at liberty to attend at the school of the children as particularly related above herein and further at all usual times during which any parent ordinarily attends such as for assemblies, sports days, concerts, parent teacher interview and the like.” To clarify, matters involving the management of volunteers and their entry and/or access to the school premises are at the complete discretion of the school. Paragraph 14 affords you the liberty of attending such events as stated therein but does not obligate the school to provide you unfettered access to the school premises.
As you would appreciate the school as a matter of good practice will endeavour to assist families to meet their various obligations pursuant to such court orders however, as the school is not a party to the order in question it is not bound by its terms but I can assure you that you will be welcome at such events as stated with paragraph 14 above.
In the course of the hearing, Mr Viney clarified that the school had been allowing him to hear reading every second Wednesday, but not otherwise.
Mr Viney’s argument
Mr Viney argued that the conduct of the Principal constituted discrimination pursuant to s 85T of the Act, which provides, relevantly:
(1)In this Part—
discriminate means—
(a)     discriminate on the ground of marital or domestic partnership status; or
(b)     discriminate on the ground of the identity of a spouse or domestic partner; or
…
(2)For the purposes of this Act, a person discriminates on the ground of marital or domestic partnership status—
(a)     if he or she treats another unfavourably because of the other's marital or domestic partnership status or past or proposed marital or domestic partnership status; or
(b)     if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons of a different marital or domestic partnership status comply, or are able to comply, with the requirement than of those of the other's marital or domestic partnership status; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of that marital or domestic partnership status, or on the basis of a presumed characteristic that is generally imputed to persons of that marital or domestic partnership status; or
(d)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
(3)For the purposes of this Act, a person discriminates on the ground of the identity of a spouse or domestic partner if he or she treats another unfavourably because of the identity of the other's spouse or domestic partner, or former or proposed spouse or domestic partner.
Mr Viney’s primary submission was that, if the Tribunal were to be persuaded that the interactions between him and the Principal came within one of the descriptions of discrimination in s 85T, then that discrimination was unlawful. I reject that submission. Section 85T does no more than provide a description of what constitutes discrimination to which Part 5B of the Act applies. The contexts in which that discrimination is made unlawful by the Act are then provided for in Divisions 2, 3, 4 and 5 of Part 5B of the Act.
Mr Viney then relied upon s 85V of the Act, which provides:
(1)It is unlawful for an employer to discriminate against a person—
(a)     in determining, or in the course of determining, who should be offered employment; or
(b)     in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee—
(a)     in the terms or conditions of employment; or
(b)     by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c)     by dismissing the employee; or
(d)     by subjecting the employee to other detriment.
Mr Viney relied particularly upon s 85V(2)(d).
The Act defines “employee” and “employer” and “employment” in s 5 as follows:
employee—
(a)     includes the holder of a public or statutory office (not being a judicial or magisterial office); and
(b)     includes an unpaid worker;
employer—
(a)     in relation to the holder of a public or statutory office—means the Crown;
(b)     in relation to an unpaid worker—means an organisation for which the unpaid worker performs services;
employment includes unpaid work;
“Unpaid worker” is also defined in s 5:
unpaid worker means a person who performs work for an employer for no remuneration.
Mr Viney submitted, in effect, that a parent who is listening to children from his or her child’s class reading at school is an unpaid worker and the school is their employer.
Unpaid worker
Mr White, counsel for the respondent, submitted that parental reading at one’s child’s school could not reasonably be considered to be “work” within the meaning of the Act. Mr White said it was a familial activity, like umpiring one’s child’s football match, which could not be equated to work.
The question of what constitutes work in the context of the Equal Opportunity Act 2010 (Vic) (“the Victorian Act”) was considered by the Victorian Civil and Administrative Tribunal in Belyea v Brodie[1] and in FFF v ZJR.[2]
[1] [2012] VCAT 1978.
[2] [2014] VCAT 741.
Belyea involved a complaint of sexual harassment by Ms Belyea against Mr Brodie. Mr Brodie invited 200 of his Facebook friends to an event described as “Dan Brodie & the Grieving Widows Film clip shoot”. Ms Belyea received the invitation and had a telephone conversation with Mr Brodie in which she ascertained that a video was to be shot at the event and that attendees were likely to be in the video. Her complaint of sexual harassment related to events that she alleged occurred when she attended the event. In determining her complaint, Member Grainger considered whether she was an unpaid worker. The definition of unpaid worker in the Victorian Act is “a person who performs work on a voluntary or unpaid basis”. Member Grainger said, in his decision:
[39]I am satisfied that Ms Belyea agreed to attend Mr Brodie’s event in order to be an extra in his film clip and that she did so because she had recently joined an agency that employed extras and wanted to build up her “portfolio” in order to get work in this area.
[40]However, I am not satisfied that Ms Belyea was working at the event on a voluntary or unpaid basis. Rather, I find that Ms Belyea, like the other guests at the event, had simply agreed to be filmed during a social event in the knowledge that the footage would be used by Mr Brodie to make a film clip. In other words, Ms Belyea and the other guests were doing their friend a favour, not working for him.
[41]In addition, there is nothing in the Facebook invitation or the subsequent emails between the parties to suggest that Mr Brodie was asking Ms Belyea to work for him. Rather, the wording of the invitation and the subsequent email exchange between Ms Belyea and Mr Brodie make it clear that Ms Belyea was attending a social event, albeit one at which a film clip was being made.
FFF was a complaint of sexual harassment by the mother of a schoolchild against the Principal of that child’s school. Part of the complainant’s case involved a submission that the complainant, when undertaking activities at the school as part of her role as a home maker, was in a “common workplace” because she was “carrying out functions in relation to her employment, occupation, business, trade or profession”.[3] Senior Member Megay rejected that submission, saying:
[35]There are various meanings attributed to “occupation” and the applicant submits it means “a person’s job or principal activity” and in this case, it is that of home maker. Macquarie calls occupation “one’s habitual employment, business trade or calling” and the Oxford describes it as “the being occupied with, or engaged in something; that in which one is engaged; employment, business” or “a particular action or course of action in which one is engaged, esp. habitually or statedly; and employment, business, calling”.
[36]To suggest that a “home maker” charged with the management of a home (with or without children, the latter not being an essential component of a home maker), might fit conformably within the specific definition of “workplace” is neither logical or reasonable given the aim and thrust of the legislation.
[37]“Employment” is, within the Act as a whole, a defined term. That definition is in no way excluded from the operation of s 94(3) and is not to be read down in any way. Similarly the extended definitions of “employer” and “employee” apply. When taken together, the common workplace in s 94 extends to include a place where a person attends for the purpose of carrying out functions in relation to his or her employment under a contract of service, employment under the Public Administration Act 2004 or under a statutory appointment, engagement under a contract for services, work that is remunerated wholly or partly on commission, work on a voluntary or unpaid basis, or in relation to occupation, business, trade or profession. The common denominator is that of “work”.
[38]Attendances by a mother to collect her child, to sign a form in the school office or to take phone call from the principal regarding school property are clearly not attendances of the type contemplated by the legislation. They do not involve work of the kind discussed.[4]
[3] Equal Opportunity Act 2010 (Vic) s 94.
[4] FFF v ZJR [2014] VCAT 741 at [35]-[38].
Both of these cases dealt with the question of what is to be considered as “work” in the context of equal opportunity legislation. In Belyea, the intention of Ms Belyea in attending the event (ie to do Mr Brodie a favour) and the characterisation of the event by Mr Brodie (ie as a social event) were the decisive factors leading to the conclusion that Ms Belyea was not an unpaid worker at the event. In FFF, the context of the term in the legislation and the overall intention of the legislation was important to the final determination.
Typically, the parent of a child attending primary school will have the opportunity to participate in events and perform tasks which are not generally available to people who do not have a child at primary school. Listening to a few of one’s child’s classmates read at the beginning of a school day is an example of this. Other examples include watching sport, umpiring sport, coaching sport, attending functions, providing food for functions, cooking food at functions, fundraising in numerous ways, attending school plays, making costumes, painting sets, and attending concerts and assemblies for various purposes. Typically, these activities are not compulsory. A parent may choose the extent of his or her involvement. The opportunity for involvement arises as a component of the parent’s parenting functions. Any benefit to the school generally is incidental to that primary focus. For this reason, such involvement has not traditionally been considered to be “work” in relation to which the school (or, as in the case here, of a public school, the Crown) is the “employer” and the parent is an “unpaid worker”. Such involvement is considered to be part and parcel of parenting, and to relate primarily to the relationship between the parent and the child rather than the relationship between the parent and the school.
I do not consider that a parent who, in response to an invitation to the parents of children in a particular class, is presenting himself or herself to his or her child’s classroom to hear a few children practise reading is an “unpaid worker” undertaking “employment” by the school (or the Crown) as “employer”. I do not think the Act intended to capture such involvement as “work”.
In undertaking parental reading, Mr Viney was not performing work and was not, therefore, an “unpaid worker”. Whilst undertaking parental reading, Mr Viney did not come within s 85V of the Act because the school (or the Crown) was not his employer.
Mr Viney’s complaint must therefore be dismissed. I will, however, consider whether the conduct alleged against the Principal could constitute discrimination under s 85T for the purpose of s 85V were it to apply in case I am in error about whether Mr Viney is an unpaid worker.
Discrimination
Mr Viney complained that he had been treated unfavourably by the school Principal because of his “marital or domestic partnership status” within the meaning of s 85T(2)(a) of the Act. He argued that the order under the Family Law Act 1975 (Cth) was an element of his status as a divorced person, and that he was treated unfavourably on account of the order, and that this constituted discrimination under s 85T(2)(a) of the Act.
I reject Mr Viney’s argument. The Principal’s letters to him make it clear that she is attempting to comply with the Federal Magistrates Court order. It is not his status as a divorced person, or as a person whose parenting is subject to a Federal Magistrates Court order, which motivated the Principal’s decisions; it is her interpretation of the words of the order. The Principal has not discriminated against Mr Viney within the meaning of s 85T(2)(a) of the Act. She is, however, mistaken about the effect of the order. The order, among other things, sets out occasions upon which Mr Viney is entitled to see his children subject, in the case of parental reading (order 3(b)), to the discretion of the school. The order is not restrictive; it does not have the effect of confining the contact of Mr Viney with his children to the occasions set out in the order. Contact may occur at other times. The fact that the Principal has applied a mistaken interpretation of the order is unfortunate, but it does not render her behaviour discriminatory or actionable for the purposes of the Act.
Conclusion

The conduct of the Principal was not discriminatory within the meaning of the Act. Also, Mr Viney was not an unpaid worker within the meaning of the Act, and the school was not his employer when he was undertaking parental reading (or at any other time).
Mr Viney’s complaint is dismissed.