Wollongong City Council v Bonella

[2002] NSWADTAP 26

Appeal Panel

CITATION:	Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26
PARTIES:	1. APPELLANT Wollongong City Council 1. RESPONDENTS Irene Bonella Rhonda Boxall Jan Keith Joan De Wet Shivani Tambyah 2. APELLANTS Irene Bonella Rhonda Boxall Jan Keith Joan De Wet Shivani Tambyah 2. RESPONDENT Wollongong City Council
FILE NUMBER:	019059; 029004
HEARING DATES:	18/04/02
SUBMISSIONS CLOSED:	04/18/2002
DATE OF DECISION:	08/15/2002
DECISION UNDER APPEAL:	Bonella & ors v Wollongong City Council
BEFORE:	Hennessy N (Deputy President); Rice S - Judicial Member; Silva A - Member
CATCHWORDS:	statutory interpretation - leave to extend to the merits
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	991026
DATE OF DECISION UNDER APPEAL:	11/29/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Race Relations Act 1976 (UK)
CASES CITED:	Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Waters v Public Transport Corporation (1991) 173 CLR 349 Styles v Secretary, Department of Foreign Affairs (1988) 84 ALR 408 Watches of Switzerland v Savell [1983] IRLR 141 Australian Iron and Steel v Banovic (1989) 168 CLR 1654 Kidd v DRG (UK) Ltd [1985] ICR 405 Orphanos v Queen Mary College [1985] IRLR 349 Greater Manchester Police authority v Lea [1990] IRLR 372 Commonwealth Bank v Human Rights and Equal Opportunity Commission ('Finance Sector Union Case') (1997) 150 ALR 1 Bogle v Metropolitan Health Service Board ( 2000) EOC 93-069 Financial Sector Union v Commonwealth Bank (1997) EOC 92-889 Greencroft Social Club and Institute v Mullen [1985] ICR 796 Perera v Civil Service Commission and the Department of Customs and Excise [1982] IRLR 147 Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 25 McPhee v Minister for Immigration, Local Government & Ethnic Affairs (1988) 16 ALD 77 Waters v Public Transport Corporation (1991) 173 CLR 349 Mohamed v Continental Ace Pty Ltd (1406/99 N Print S1324, 16 August 1999 JH Walker Ltd v Hussain [1996] IRLR 11 Elliott v Nanda(2001) 111 FCR 240 Clymo v Wandworth LBC [1989] ICR 250 BL Cars v Brown [1983] ICR 143 Day v T Pickles Farms Ltd [1999] IRLR 217 Strathclyde Regional Council v Porcelli [1986] IRLR 134 Jeremiah v Minister of Defence [1979] 3 All ER 833 French v Sydney Turf Club & Anor [1999] NSWCA 195 (18 June 1999 MacDonald v Puplick & Ors Matter No 30090/97 [1998] NSWSC 428 (12 June 1998) Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92 R v A & B [1999] NSWADTAP 2 Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Law Society of New South Wales v Young (No.2) (LSD) [2001] NSWADTAP 19
REPRESENTATION:	APPELLANTS C Ronalds, barrister RESPONDENTS K Eastman, barrister
ORDERS:	1. Leave is not granted to extend the Council’s appeal to the merits. ; 2. The appeal by Council is dismissed; 3. The appeal by the applicants is dismissed.

Introduction

1 These proceedings concern two appeals, the original appeal and a cross appeal, which have been joined and heard together. Both appeals relate to a decision of the Tribunal awarding damages of $7,500 each to five female librarians who worked for the Wollongong City Council (the Council). The five librarians, whom we will refer to collectively as “the applicants”, are Ms Irene Bonella, Ms Rhonda Boxall, Ms Jan Keith, Ms Joan de Wet and Ms Shivani Tambyah.

2 The applicants alleged that the Council unlawfully discriminated against them on the ground of sex when determining which employees should be permitted to have private use of motor vehicles owned by the Council. While some other Assistant Managers were given private use of motor vehicles, none of the applicants, all of whom were Assistant Managers, had access to motor vehicle with private use rights.

3 The original appeal, brought by the Council, related mainly to the Tribunal’s interpretation of the indirect sex discrimination provisions of the Anti-Discrimination Act 1977 (the Act). The cross appeal, brought by the applicants, related to the question of whether a complaint can be made of a continuing contravention of the Act, as opposed to a contravention involving an act which occurred on a particular date. A related appeal point was whether the Tribunal erred in failing to award the applicants damages for economic loss.

Jurisdiction

4 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. The Council applied to the Tribunal for the appeal to be extended to a review of the merits of the Tribunal's decision. That application is dealt with at the end of these reasons.

Preliminary Matter

5 Two unions, the Environmental Health and Building Surveyors Association of NSW and the Federated Municipal Shire Council Employees Union of Australia, NSW Division, were parties to the proceedings before the Tribunal. None of the appeal documents was served on either of those parties. At the hearing of the appeal, the Appeal Panel raised this issue and agreed that the hearing should proceed in the absence of those parties, but that the Registry would notify both parties of the appeal in writing. On 24 April 2002, the Registry wrote to each union asking them to advise the Tribunal within 14 days if they wanted to make any applications or submissions in relation to the appeal. Neither party advised the Tribunal of their intention to participate in the appeal. Consequently this appeal has been determined without any input from either union.

Relevant Statutory Provisions

6 The applicants alleged that the allocation by the Council of motor vehicles with private use rights to some of its employees pursuant to the 1990 Motor Vehicle Policy, but not to the applicants, is unlawful pursuant to s 25(2) of the Act. That provision states that:

(2) 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,

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

7 The applicants alleged that the discrimination in this case was indirect sex discrimination, which is defined in s 24(1)(b) of the Act as follows:
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
BACKGROUND TO THE COMPLAINTS

Private use rights to motor vehicles

8 The five applicants alleged “indirect discrimination in the allocation of employment related benefits by the respondent.” The benefit was described as “the provision of private-use motor vehicle benefits to staff at Assistant Manager level across the council’s workforce.” Each of the applicants applied for private use rights of a motor vehicle and each was refused on 2 April 1996.

The 1990 motor vehicle policy

9 The Council maintains a large fleet of vehicles for work purposes. The fleet is divided between cars which are allocated to individuals and those which are part of the car pool. The 1990 Motor Vehicle Policy begins with the sentence: “Council cars shall be available as pool cars even though private use rights may be conferred.” The appendix to the 1990 Motor Vehicle Policy categorises employees into Group 1 (senior managers), Group 2 (named individuals who the evidence suggests were Assistant Managers) and Group 3 (employees without private use rights). Employees in group 1 have an automatic right to the allocation of private use rights. Others, including most Assistant Managers, had to apply to the General Manager, Mr Oxley, for consideration.

Grounds for refusal of private use rights

10 In the Tribunal proceedings, when referring to the 1990 Motor Vehicle Policy, Mr Oxley stated that:

The policy behind the allocation of motor vehicles was not set out in that policy as it was a management decision. The decision was based on the following factors:
(a) the seniority of the position such that the top three management levels of Council, including myself, were all allocated motor vehicles with private use rights,

(b) the operational needs arising from the duties undertaken to fulfil the duties of the position, or

(c) may be applied for recruitment and retention purposes ensuring that Council maintains suitable employee.

11 Mr Oxley agreed that the 1990 Motor Vehicle Policy was "silent on issues concerning allocation of motor vehicle[s] for private use" and that the policy was "operating on a mixture of custom and practice that had developed over the past 10 to 15 years or so".

12 The Tribunal agreed with the applicants’ submission that the issue at the centre of their complaints was the allocation of vehicles for private use rights. The question was whether the Policy, combined with management decision making, had a disparate impact on women. The alleged disparate impact was that female Assistant Managers received less remuneration in an overall sense, than their male counterparts.

Tribunal’s findings

13 We summarise the Tribunal’s findings, so far as they are relevant to this appeal, below:

1. The allocation of motor vehicles with private use rights by the Council to some of its employees pursuant to the 1990 Motor Vehicle Policy falls within all three of the substantive provision in s 25(2) of the Act.

2. There are four elements to a claim of indirect discrimination. In the context of a sex discrimination complaint they are:

(a) the respondent requires the complainant to comply with a requirement or condition;

(b) a substantially higher proportion of people of the opposite sex to the complainant comply, or are able to comply, with that requirement or condition;

(c) the requirement or condition is not reasonable having regard to the circumstances of the case; and

(d) the complainant does not comply, or is not able to comply, with the requirement or condition.

3. The requirement in this case was that: “In order to have private use rights of a Council vehicle, an Assistant Manager must apply under the 1990 Motor Vehicle Policy and the application be accepted by the General Manager.”

4. In relation to the second element of indirect discrimination, the base group or pool which is to be used to contrast gender compliance with the requirement is all the people to whom the requirement is applied. In this case the base group is Assistant Managers employed by the respondent.

5. Over the five year period spanned by the evidence the proportion of female Assistant Mangers with private use rights was around 50%, while the proportion of male Assistant Managers with private use rights was around 75%. A difference in private use rights of approximately 25% amounts to a “substantially higher proportion.”

6. The requirement is not reasonable in all the circumstances of the case.

7. The applicants could not comply with the requirement because none of them had private use rights of a motor vehicle owned by the Council.

8. The Council has unlawfully discriminated against the applicants on the ground of sex contrary to s 25(2) of the Act.

14 Each complainant was awarded general damages of $7,500 for humiliation and stress and for the loss of opportunity to be considered for a work related benefit in a non-discriminatory manner. No award of damages was made for economic loss because the Tribunal found that a non-discriminatory policy may not have resulted in the applicants being granted private use rights to a motor vehicle.

Council’s grounds of appeal

15 The grounds of appeal relied on by the Council were divided into four groups:

a) errors in the application of the indirect discrimination provisions of the Act: grounds 1, 2 & 4;
Ground 1 was that the Tribunal wrongly formulated the requirement or condition imposed by the Council.

Ground 2 was that the Tribunal wrongly formulated the base group on which the comparison set out in section 24(1)(b) of the Act is to be made.

Ground 4 was that the Tribunal wrongly found that a difference of 25% between the percentage of women and men complying with the requirement constituted a “substantially higher proportion.”

b) errors in the determination of what is reasonable for the purposes of s 24(1)(b): grounds of 5 – 7;
Ground 5 was that in determining whether the Council’s requirement was reasonable the Tribunal failed to take into account, or failed to give adequate weight to, the rationale for the policy.

Ground 6 was that the Tribunal placed undue weight on the effect of the requirement on employees as opposed to the benefit to the employer.

Ground 7 was that the Tribunal wrongly construed reasonableness in describing the Council’s views as subjective and not objective.

c) errors in the determination of factual matters before the ADT: grounds 8 – 10;
Ground 8 related to the Tribunal’s finding at [108] in relation to remuneration packages of Council employees.

Ground 9 related to the Tribunal’s finding at [109] that the Council “declined to directly confront the issue”.

Ground 10 related to the Tribunal’s finding at [111] that “a reasonable policy would not necessarily have resulted in increased costs for the respondent.”

d) errors in construing the three individual paragraphs of section 25(2)of the act: grounds 12- 15;
Ground 12 was that the Tribunal wrongly construed the words “terms and conditions in s 25(2)(a) of the Act.

Ground 13 was that the Tribunal erred in finding that a “benefit” under s 25(2)(b) of the Act is or includes an objective benefit to an employee.

Ground 14 was that the Tribunal wrongly construed the word “detriment” in s 25(2)(c) of the Act.

Ground 15 was the Tribunal erred by finding that the policy was a benefit, term or condition or a detriment within the meaning of those terms in s 25(2) of the Act.

16 The applicants did not press grounds 3 and 11 as set out in the Notice of Appeal.

Applicants’ grounds of appeal

17 The applicants identified the following alleged errors of law:

The Tribunal erred in concluding in paragraphs 54 and 55 that it was beyond its jurisdiction to consider any contravention of the Act other than that which occurred in the six-month period prior to 5 September 1996 and failed to characterise the applicants’ complaint as a single act of ongoing discrimination since April 1996.

The Tribunal erred in limiting its assessment of damages to the period six months prior to 5 September 1996 and in failing to consider the damage suffered by the applicants while the single act of ongoing discrimination endured after 5 September 1996.

Questions of Law

18 The applicants contended that many of the Council’s grounds of appeal did not raise a question of law. Section 113(2) of the ADT Act states that:

(2) 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.

19 The Council sought leave to appeal the merits of the decision. The applicants submitted that as a threshold question the Appeal Panel must be satisfied that the appeal raises questions of law before giving leave to extend the appeal to a review of the merits (or factual findings) of the decision.

20 The approach that the Tribunal has consistently adopted in relation to this issue was outlined by the Appeal Panel in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8. The Appeal Panel said, at [4] that:

It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established.
21 We have adopted this approach in the present case. Consequently, we do not intend to extend the appeal to the merits unless an error of law is established.

22 The Council’s and the applicants’ grounds of appeal will be considered in turn. We have not dealt with every single point raised by the parties in their written submissions. Some of the points made are not relevant or were repeated.

ALLEGED ERRORS IN THE APPLICATION OF THE INDIRECT DISCRIMINATION PROVISIONS

Formulation of the requirement or condition

23 Pursuant to s 24(1)(b) of the Act, there must be a “requirement or condition” with which the applicants have been required to comply. The Council submitted to the Tribunal that the requirement or condition in this case should be formulated as follows:

The Council will provide an employee, below the first three management levels, with private use rights to a motor vehicle if he or she can show a substantial need for the use of a motor vehicle as an integral part of his or her employment.
24 The Council submitted to the Appeal Panel that the Tribunal had erred in law by accepting the applicants’ formulation of the requirement as set out in paragraph 13 above. In particular, the Council stated that the Tribunal failed to include in its formulation of the requirement a crucial part of that requirement, namely whether an employee “can show a substantial need for the use of a car as an integral part of his or her employment.” Mr Oxley, the General Manager of the Council, gave evidence before the Tribunal that this was one of the factors on which he based a decision to allocate a motor vehicle for private use. The Council submitted that the Tribunal relied on the procedural parts of the requirement, but not the substantive matter of whether the applicants had a substantial need for a motor vehicle.

25 The applicants’ first submission was that the identification of the requirement or condition that is imposed is a question of fact. The Tribunal’s acceptance of the applicants’ formulation of the requirement was based on preferring the applicants’ evidence. The Council’s view, say the applicants, was not supported by any evidence either by way of a written policy or of practice that motor vehicles were allocated on the basis of need. Consequently, the Council has not identified any error of law in relation to this ground.

26 In relation to the Council’s submission that the Tribunal relied on the procedural parts of the requirement, but not the substantive matters, the applicants submitted that a fair reading of the Tribunal's reasons does not support this contention. In any event, it was said, nothing on the face of section 24(1)(b) of the Act excludes procedural requirements being a 'requirement' imposed and Council cited no authority to support such a limited construction of 'requirement' or 'condition'.

Appeal Panel’s reasoning and findings on the formulation of the requirement

27 The formulation of the requirement is a mixed question of fact and law. Firstly, the requirement must be formulated in a manner which is consistent with the Tribunal’s findings on the evidence. The Tribunal made a finding of fact at [74] of its decision that:

The evidence reveals that, at the relevant time, Assistant Managers were granted private use rights of a motor vehicle pursuant to the 1990 Motor Vehicle Policy. Under that policy it was up to the General Manager to determine whether a particular Assistant Manager was granted private use rights.
28 While Mr Oxley referred to the operational needs arising from the duties undertaken as a factor that he took into account in allocating private use rights, he conceded that the policy was "operating on a mixture of custom and practice.”

29 We are satisfied that the Tribunal formulated the requirement in a manner which was consistent with its findings of fact.

30 Some of the legal issues involved in formulating a requirement were set out in Waters v Public Transport Corporation (1991) 173 CLR 349 at 393 and 407 and Styles v Secretary, Department of Foreign Affairs (1988) 84 ALR 408 at 421-422. These cases are authority for the proposition that for the purposes of assessing whether indirect discrimination has been made out, the condition or requirement must be broadly construed. Even where the criteria and requirements are vague and unclear, the requirement to comply is still a requirement for the purposes of indirect sex discrimination: Watches of Switzerland v Savell [1983] IRLR 141 at 154-156. In Australian Iron and Steel v Banovic (1989) 168 CLR 1654 Dawson J said, at 185, that “Nevertheless it is necessary in each particular instance to formulate the actual requirement or condition with some precision.”

31 We do not accept the Council’s submission that a procedural requirement cannot be a legitimate requirement under the Act. Council has not identified any error of law. In our view, the Tribunal’s formulation of the requirement is consistent with the evidence and the legal authorities.

Formulation of base groups

32 The Council submitted that the Tribunal wrongly restricted the application of the requirement to Assistant Managers when it applied to other employees as well. It submitted that as the base group, or pool, is the group of people to whom the requirement or condition applies, this formulation of the requirement meant that the pool was wrongly confined to Assistant Managers. In the Council’s submission, there is no mention of the application of the 1990 Motor Vehicle Policy only to Assistant Managers. The Council says that once the Tribunal has determined to whom the requirement or condition is directed, it is not open to it to reduce the application of the requirement to a sub-set of those to whom the requirement applies. The Council submitted that the Tribunal had concluded that because those who fell within Group 2 were all Assistant Managers the requirement only applied to Assistant Managers.

33 The applicants submitted that the question of the composition of the base group is a question of fact. (Kidd vDRG (UK) Ltd [1985] ICR 405, Orphanos v Queen Mary College [1985] IRLR 349, Greater Manchester Police authority v Lea [1990] IRLR 372.) The Council's real objection to the Tribunal's findings on this issue is, they say, that the Tribunal did not accept Mr Oxley's evidence about the operation of the policy. In the applicants’ submission, this is not a proper ground for review.

34 The applicants submitted that even if a question of law is involved, the approach taken by the Tribunal in restricting the base group to Assistant Managers was legally correct. They say that in assessing remuneration, the relevant group to consider was the group of Assistant Managers whose remuneration in cash terms was set in a specific pay band. The claim of indirect discrimination that resulted in female Assistant Managers suffering an adverse impact could be tested by comparing overall remuneration rates for that particular group.

Appeal Panel’s reasoning and findings on base groups

35 The decision to select a particular base group involves a mixed question of fact and law. (Commonwealth Bank v Human Rights and Equal Opportunity Commission ('Finance Sector Union Case') (1997) 150 ALR 1 at 42.)

36 In relation to the factual matters, the Tribunal acknowledged that there was nothing in the 1990 Motor Vehicle Policy which suggested that it applied exclusively to Assistant Managers. The Tribunal concluded at [81] that:

It is clear on the face of the documents that the policy applied to employees with greater seniority than Assistant Managers. These are the people referred to under the heading "Group 1" in the appendix. It is the people referred to under the heading "Group 2" in the appendix with whom the applicants wish to be compared for the documents make it clear that the people listed under the heading "Group 3", the only other group, do not have private use rights.
At [78] of its decision, the Tribunal said that:
In this case there was dispute between the applicants and the respondent concerning the composition of the base group or pool. Ms Eastman identified the base group as the Assistant Managers employed by the respondent. She submitted that this is "a readily identifiable and discrete group of employees within the Council" and that "the group was identified by the Council in a job evaluation process undertaken in 1995 for the specific purpose of evaluating the skills, functions, responsibility and remuneration of Assistant Managers". Ms Ronalds criticised the correctness of this base group and effectively submitted that the appropriate base group was "all employees (apart from senior and certain contract employees) and not just Assistant Managers".
37 And later at [82]
The evidence suggests that all of the employees listed under the heading "Group 2" in the appendix to the 1990 Motor Vehicle Policy were Assistant Managers. The evidence also suggests that the respondent considered its Assistant Managers to be a distinct group of employees, for the Assistant Managers were selected for group consideration in the 1995 job evaluation exercise.

. . . on the basis of the evidence before us, and bearing in mind the need to compare like with like in a context appropriate to the case under review, we are satisfied, for the reasons given, that the appropriate base group is Assistant Managers employed by the respondent.

38 The Tribunal’s decision to restrict the base group to Assistant Managers is based on its findings of fact. Those finding are not “so irrationally inappropriate as to put it outside the range of selection for any reasonable tribunal.” (See the decision of the UK Employment Appeal Tribunal in Kidd v DRG (UK) Ltd [1985] ICR 504 at p 415.)

39 The Council was unable to provide any authority for the proposition that the base group must include the entire group to whom a requirement is directed. The Tribunal gave persuasive reasons for confining the group to Assistant Managers in this case and we can detect no error of law in its approach.

Substantially higher proportion

40 The Tribunal found that over the five year period spanned by the evidence, the proportion of female Assistant Mangers with private use rights was around 50%, while the proportion of male Assistant Managers with private use rights was around 75%. The Tribunal concluded that a difference in private use rights of approximately 25% amounts to a “substantially higher proportion.” The Council submitted that a difference of 25% did not constitute a “substantially higher proportion” because the number of people in the group was 50 (38 men and 12 women) and a 25% difference is too susceptible to change. Every time a male Assistant Manager could not comply, the percentage changes by 2.6% and every time a female Assistant Manager could not comply, the percentage changes by 8.3%. Accordingly it would only take three extra female Assistant Managers to close the gap. For the Tribunal to be certain of satisfying the legislative requirement, a difference of 50% or more is required when the total pool is small.

41 The applicants submitted that the evidence demonstrated that men were able to comply with the condition in substantially higher proportions to women. Notwithstanding the change in the overall numbers of Assistant Managers over a five years period, the proportions of women and men who comply with the policy has remained relatively constant.

42 The applicants pointed out that neither the Act nor any of its State, Territory or Commonwealth counterparts, define "substantial". That word, they say, should be given its ordinary meaning. The Macquarie Dictionary, 3rd ed 1990, defines “substantial” as "of a corporeal or material nature; real or actual . . . Of ample or considerable amount, quantity size . . . Of solid character or quality; firm, stout or strong . . . Of real worth or value." The applicants point to the following proportions which have been held to be substantial for the purpose of indirect sex discrimination: 23% in Bogle v Metropolitan Health Service Board ( 2000) EOC 93-069 where there were 335 women and 3 men in the base group and 8%-9% in Financial Sector Union v Commonwealth Bank (1997) EOC 92-889 at 77,240-241 where there were 1141 women and 921 men in the base group.

43 The applicants’ submission is that if the Council’s submission was accepted, indirect discrimination could only operate where the size of the pool was significant. That situation would undermine the protections that the indirect discrimination provisions afford. The applicants pointed out that in the United Kingdom, such an argument has been rejected (Greencroft Social Club and Institute v Mullen [1985] ICR 796 at 801H to 802D). The exercise does not require large numbers or elaborate statistical analysis or expertise in statistics. In Perera v Civil Service Commission and the Department of Customs and Excise [1982] IRLR 147 at 151 paragraph 29 Browne-Wilkinson J said that "it [was] most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved."

Appeal Panel’s reasoning and findings on substantially higher proportion

44 In our view the question of whether a difference of 25% constitutes a “substantially higher proportion” is a question of fact to be determined in each case. Even if the question of what constitutes a “substantially higher proportion” raises a question of law, or a mixed question of fact and law, in our view, the Tribunal has not erred in its conclusion that 25% is a substantially higher proportion in this case. The Tribunal held at para 84:

The leading cases have not laid down any tests for determining when a difference in gender compliance rates with a challenged requirement or condition is of such magnitude that it becomes reasonable to conclude that a substantially higher proportion of persons of one sex, as compared to the other, have complied. It is a question of fact in each case; sometimes the numbers will be so great that a difference in one or two percentage points may be sufficient, whilst in other cases the numbers will be so small that it will be important to determine whether any statistical disparity may be the result of nothing more than accident or chance. In this case, even though we are dealing with gender pools which are relatively small, we are satisfied that a difference in compliance of approximately 25% is significant and, in view of the five year period for which we have evidence, it is reasonable to conclude that the difference is not attributable to accident or mere chance.
45 There is no error evident in the Tribunal’s reasoning or conclusion.

Reasonableness of the requirement

46 Under s 24(1)(b) of the Act the complainant must establish that the requirement or condition with which he or she must comply is “not reasonable having regard to the circumstances of the case.”

47 Ground 5 of the Council’s grounds of appeal was that in determining whether the requirement was reasonable, the Tribunal failed to take into account, or failed to give adequate weight to the rationale for the policy. That rationale, according to the Council, was the need for employees to have a motor vehicle to carry out work related duties.

48 We have already dealt with and rejected the Council’s submission that the requirement should have been that an employee must show a substantial need for the use of a motor vehicle as an integral part of his or her employment. Consequently this ground of appeal has not been made out.

49 Ground 6 was that the Tribunal placed undue weight on the effect of the requirement on employees as opposed to the benefit to the employer. As the applicants pointed out, challenging the Tribunal’s decision on the ground of ‘inadequate weight’ or ‘undue weight’ is not a proper ground for review. Weight is only relevant where the weight given to the matters considered is so lopsided that no appropriate weighing process has been conducted and no proper exercise of a decision-making power has been carried out: Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 25 at 40 per Mason J and McPhee v Minister for Immigration, Local Government & Ethnic Affairs (1988) 16 ALD 77. This is not a case where there has been a total failure or lopsidedness in the Tribunal’s consideration of the 1990 Motor Vehicle Policy or the Council’s interests that it could be said that the Tribunal’s decision was unreasonable. Accordingly, this ground of appeal has not been made out.

50 Ground 7 was that the Tribunal wrongly construed reasonableness in describing the Council’s views as subjective and not objective. At [106] of its decision, the Tribunal stated that:

The respondent has chosen to ignore or deny the effect of the operation of the motor vehicle policy. Ms Ronalds stated in her written submissions that "the policy has never been seen as nor is it to be regarded by the Council as part of a package of remuneration of an employee of the Council", except in relation to senior executives. That may have been the subjective view of the respondent, but we believe that any reasonable person would have seen that an effect of an employee being provided with private use rights of a motor vehicle was to receive a benefit associated with employment.
51 We agree with applicants’ submission that a fair reading of this paragraph does not support the Council’s contention that the Tribunal dismissed the Council’s policy as subjective. The passage merely notes that the Council has chosen to ignore or deny the effect of the operation of the 1990 Motor Vehicle Policy. That finding was reasonably open to the Tribunal on the evidence.

ERRORS IN THE DETERMINATION OF FACTUAL MATTERS: GROUNDS 8-10

52 The applicants submitted, and we accept, that the matters set out in grounds 8, 9, 10 do not raise any question of law. (See paragraph 18 above.)

ALLEGED ERRORS IN CONSTRUING SECTION 25(2)

Council’s submission on terms and conditions

53 The Council contended that the words “terms and conditions” apply only to people in an employment relationship. The agreements between the Council and its employees for the use of motor vehicles (including private use rights) are separate contracts in the nature of licences for the use of Council property by certain employees. They are not part of the primary employment contractual relationship either as an express or implied condition, nor are the licences there as part of any industrial agreement or enterprise.

Applicants’ submission on terms and conditions

54 The applicants submitted that the words “terms and conditions” should not be construed narrowly as contended by the Council. They said that it is well established that beneficial legislation such as the Act should be interpreted broadly to give effect to its objects and purposes. (Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ and Gaudron J at 359 (with whom Deane J agreed) and also per Brennan J at 372, per Dawson and Toohey JJ at 394 and per McHugh J at 406-407.)

55 The applicants submitted that the condition of employment in this case was concerned ultimately with remuneration. The value of a car for private use is part of an employee's total remuneration. (Mohamed v Continental Ace Pty Ltd (1406/99 N Print S1324, 16 August 1999.) As such, the denial of private use rights to a motor vehicle was a term or condition of employment.

Appeal Panel’s findings and reasons on terms and conditions

56 We agree with the applicants’ submissions and with the Tribunal’s analysis of this issue at paragraph 39 and 41 of its decision:

As Professors McCallum and Pittard indicate: "The sources of legal obligation in an employment relationship in Australia can include express and implied terms under a contract of employment, collective agreements, statutes, industrial awards and even custom and practice" (R McCallum and M Pittard, Australian Labour Law: Cases and materials 3rd ed, Sydney: Butterworths, 1995 at page 15).

What is intended, we believe, by the words "the terms or conditions of employment which the employer affords the employee" is all of the legal rights given to an employee, and all of the legal obligations cast upon employer, by the various sources identified by Professors McCallum and Pittard in the quotation reproduced in paragraph 39.

57 Characterising the private use rights as separate contracts in the nature of licences for the use of Council property by certain employees, does not change the fact that private use rights were part of an employee’s overall remuneration package.

Any other benefit

58 Section 25(2)(b) states that it is unlawful for an employer to discriminate against an employee on the ground of sex by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment.

59 The Council submitted that the Tribunal should have construed the words "any other benefits" as limited to benefits of a kind that includes transfers, promotion or training. The Tribunal indicated at [48] that it was not persuaded by this submission and that “The task for the Tribunal is to determine whether it is, objectively, a benefit for employees to have private use rights of a motor vehicle owned by the respondent.”

Applicants’ submissions on “any other benefit”

60 The applicants submitted that there was no error in the way in which the Tribunal construed the meaning of 'benefit', or in the factual finding that access to motor vehicles for private use constituted a benefit associated with employment. They submitted that it was open to the Tribunal to make a factual finding that access to a motor vehicle for private use as part of employment is a ‘benefit’.

61 They said that the phrase ‘any other benefit’ is a phrase of generality rather than a phrase that limits the operation of the section. In similarly styled legislation ‘benefit’ has been construed to be no more than an advantage and covers a wide range of matters such as mortgage subsidies, loans, season tickets, club memberships, free parking and the right to attend meetings. (JH Walker Ltd v Hussain [1996] IRLR 11.)

Appeal Panel’s findings and decision

62 We agree with the Tribunal’s findings and the applicants’ submissions on this issue. There is nothing on the face of the Act to support the Council’s contention that ‘any other benefit’ should be construed narrowly. The Council was unable to support such a narrow construction by reference to any authority.

Detriment

63 The Tribunal found, at [51], that:

Whilst we have concluded that the applicants have been denied a "benefit" because of the failure of the respondent to allocate them motor vehicles with private use rights, it was also a "detriment" to them to have their applications refused when other employees working at the level of Assistant Manager were successful in their applications for private use rights.
64 Council submitted that the denial of a benefit is not a detriment. The private use of a motor vehicle is properly construed as a benefit which has been denied to the applicants rather than a detriment suffered by them.

65 According to the Council, it is unduly stretching the meaning of the word detriment to include the denial of a benefit which the employee never had. Conversely, if an employee’s right to use a motor vehicle was removed, that would constitute a detriment.

66 The Council conceded that ground 15 was merely a restatement of the proposition that the applicants have been unable to bring their claim within any of the paragraphs in s 25(2) of the Act. We do not propose to deal with this ground separately.

67 The applicants submitted that the Tribunal said ‘detriment’ should be given its common meaning of "loss, damage or injury" without reference to the meaning of benefit. At paragraph 51 of its decision, the Tribunal was simply noting that it was possible for the applicants to have been denied a benefit for the purpose of section 25(2)(b) of the Act and also to have been subjected to a detriment for the purpose of section 25(2)(c) in relation to the Council’s conduct. The applicants submitted that the Tribunal’s construction of the term ‘detriment’ in accordance with its common and ordinary meaning is the proper approach and there was no legal error.

68 The applicants pointed out that in the context of the meaning of ‘detriment’ in employment matters, the approach of courts and tribunals has been to consider a range of activities or treatment of employees that may constitute a detriment: see Elliott v Nanda(2001) 111 FCR 240, Clymo v Wandworth LBC [1989] ICR 250, BL Cars v Brown [1983] ICR 143, Day v T Pickles Farms Ltd [1999] IRLR 217, Strathclyde Regional Council v Porcelli [1986] IRLR 134. In Jeremiah v Minister of Defence [1979] 3 All ER 833, the UK Court of Appeal held that it simply means being placed at a disadvantage.

Appeal Panel’s findings

69 We agree with the Tribunal’s findings and the applicants’ submissions in relation to this ground of appeal.

APPLICANTS’ GROUNDS OF APPEAL

70 The applicants’ first ground of appeal was that:

The Tribunal erred in concluding in paragraphs 54 and 55 that it was beyond its jurisdiction to consider any contravention of the Act other than that which occurred in the six-month period prior to 5 September 1996 and failed to characterise the applicants’ complaint as a single act of ongoing discrimination since April 1996.

The Tribunal erred in limiting its assessment of damages to the period six months prior to 5 September 1996 and in failing to consider the damage suffered by the applicants while the single act of ongoing discrimination endured after 5 September 1996.

71 The Tribunal limited its consideration of the discrimination evidenced from 2 April 1996 to 5 September 1996 on the basis that s 88(3) of the Act requires complaints of discrimination to be lodged within 6 months of the discrimination occurring. The applicants submitted that the Tribunal had failed to distinguish between:
a) circumstances where all the facts which establish the alleged discrimination occur within 6 months before the complaint is lodged and are the cause of the discrimination continuing after the complaint is lodged (ongoing discrimination) and

b) circumstance where after the date of the complaint facts arise that establish discrimination of a similar nature to the discrimination which occurred within the six month period prior to the complaint being lodged (ongoing acts of discrimination.

Appeal Panel’s finding and reasons

72 The applicants’ grounds of appeal raise important question of statutory interpretation in relation to the nature of a complaint and the time limit within which it must be lodged. Section 88(1) states that:

Except as provided by this section, a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person (other than a contravention in respect of which a specific penalty is imposed) may be lodged with the President by:

(a) a person on the person's own behalf (etc)

73 Section 88(3) provides that:
A complaint shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed.
74 Section 88(4) gives the President the power to accept a complaint which is lodged more than 6 months after the date of the alleged contravention of the Act. The Act is drafted in a way which contemplates that a contravention will occur by means of discrete acts. It does not expressly address the situation where a contravention of the Act is continuing. For example s 88(3) refers to “the date on which the contravention of this Act . . . is alleged to have been committed.”

75 In cases dealing with discrete acts which constitute a contravention of the Act, the following propositions can be extracted:

· a complaint cannot include acts which occurred more than 6 months before the date of the complaint, unless the President accepts the complaint out of time under s 88(4); French v Sydney Turf Club & Anor [1999] NSWCA 195 (18 June 1999) Priestley JA Meagher JA Giles JA:
However, a complaint had to be lodged within six months after the date on which the contravention of the Act the subject of the complaint was alleged to have been committed (s 88(3) of the Act), so incidents of discrimination prior to 15 November 1994 were excluded unless the President, on good cause being shown, accepted the complaint (s 88(4) of the Act).
· a complaint cannot include acts which occurred after the complaint was lodged ( MacDonald v Puplick & Ors Matter No 30090/97 [1998] NSWSC 428 (12 June 1998) where Simpson J stated, that:
The complaint that initiated the proceedings was made on 21 February 1995. It was concerned solely with the events of January 1995. Plainly, since it pre-dated them, it could not have concerned the events of March.
76 The question then arises as to whether a complaint can be made in relation to a continuing contravention of the Act, and if so, whether the same principles apply. The questions to be answered are:
1. Can a complaint be a complaint of a continuing contravention of the Act, as distinct from a complaint of discrete acts constituting a contravention?

2. If so:

a) when must a complaint of continuing contravention be lodged to be within time?

b) can any continuing contravention earlier than 6 months before a complaint has been lodged form part of the complaint?

c) can any continuing contravention after a complaint has been lodged, form part of the complaint?

77 Continuing contravention . Section 88(3) provides that “a complaint shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed.” This provision contemplates a date of contravention, but not expressly a continuing period of contravention. Some other anti-discrimination legislation makes specific provision for a continuing contravention. For example, s 68(7)(b) of the Race Relation Act 1976 (UK) states that for the purposes of deciding when the act complained of was done “any act extending over a period shall be treated as done at the end of that period.”

78 Despite the absence of such a provision in the Act, there is no restriction which arises expressly or by necessary implication from the Act to the lodging of a complaint alleging that a contravention of the Act has continued over a period of time.

79 Previous cases have acknowledged that circumstances may exist where a contravention of the Act continues for a period of time. (See for example, Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140.) A continuing contravention of the Act is said to occur when, following an initial discrete act, a state of affairs continues. The current case provides an example. The applicants were refused private use rights of a motor vehicle on 2 April 1996. The Tribunal has found that the refusal constituted indirect sex discrimination. Following that refusal the Council continued to discriminate against the applicants, not by any further discrete act, but by continuing to adhere to the 1990 Motor Vehicle Policy and the management decision making which was the basis for the initial refusal.

80 In our view a contravention of the Act can continue over a period of time and the answer to the first question is ‘yes’.

81 When must a complaint of continuing contravention be lodged to be within time. A critical question (which did not arise specifically in this case) is, where a contravention is continuing, what is the date on which the contravention occurred, for the purpose of calculating the 6 month time period?

82 In Najdovska & Ors v Australian Iron And Steel Pty Ltd (1985) EOC 92-140 Barbour J came to the view that a complaint involved a continuing contravention of the Act and that the complaint should not be limited to the 6 months prior to the complaint being lodged. His Honour concluded that the complaint could be accepted any time within 6 months after the conduct has terminated. His Honour said, at p 76,385, that:

The submission is that each of the 1980 complaints in groups 1, 3, 5 and 7 must be treated as a complaint about failure to hire for the six months immediately before it was lodged. We cannot agree. Whereas in the present case the contravention alleged is a continuing contravention a complaint can be lodged under s 88(1) and accepted without resort to s 88(4), at any time within six months after the conduct has terminated. If so, there is no warrant in the Act for imposing any limitation on the extent of the conduct constituting the contravention which may be investigated. We accept Mr Basten’s submission on this point and we decline to rule that the complaints should be limited to the six months before their dates.
83 At [54], the Tribunal in the present case expressed a view contrary to that of Barbour J’s on the question of whether a complaint of a continuing contravention can extend to the period prior to the 6 months before the complaint was lodged. The Tribunal concluded that conduct which occurred prior to 6 months before the complaint is lodged cannot form part of the complaint.

84 The Tribunal acknowledged that a contravention of the Act could be continuing for the period of six months prior to the complaint being lodged. This is apparent from the words in italics in the previous paragraph and a later comment at [122], that “a contravention of the Act took place between March and September 1996”.

85 The applicants submitted that the Tribunal erred in coming to the conclusion that the period which is relevant in determining whether there has been any contravention of the Act is the six months prior to the date in which the complaints were lodged.

86 We agree with Barbour J’s conclusion in Najdovska (supra), that a complaint can be lodged at any time as long as the contravention was continuing on a date which is 6 months before the complaint was lodged. In terms of s 88(3), that date is the “date on which the contravention . . . is alleged to have been committed.”

87 However, in accordance with the Tribunal’s view at first instance, unless the President extends time under s 88(4), any continuing contravention occurring earlier than 6 months before the complaint was lodged cannot form part of the complaint. Consequently, the answer to 2 (b) is ‘no’, unless the President has exercised his discretion to accept that part of the complaint out of time.

88 Can any continuing contravention after a complaint has been lodged, form part of the complaint. The applicants submitted that once a complaint is accepted by the President, then there is nothing in the Act that would prevent the Tribunal taking into account that the contravention was continuing after the date of the complaint. They say that the relevant facts on which a complainant relies to establish the continuing contravention are all contained in the complaint lodged with the Anti-Discrimination Board and referred to the Tribunal for hearing.

89 We agree with the reasoning of the Tribunal at first instance that “Any complaint lodged with the President can only encompass conduct which occurred prior to the actual date of the complaint.” A complaint must be of a contravention of the Act which has already occurred. It cannot logically encompass a contravention, even of a continuing nature, which is yet to occur. (See also McDonald v Puplick & Ors (unreported, Matter No 30090/97 [1998] NSWSC 428 (12 June 1998) in relation to discrete acts of discrimination after the complaint has been lodged.) On the basis of that reasoning the answer to the question 2 (c) above is ‘no’.

90 In summary, a complaint can be made of a continuing contravention of the Act. The date for determining the 6 month time period is the date of the discrete act which triggered the continuing contravention or, if that date is more than 6 months before the date of the complaint, any date on which the contravention against the complainant continued. However, unless the President exercises his discretion to accept a complaint out of time under s 88(4), the maximum period of time a complaint can relate to is the 6 months prior to the complaint being lodged. A complaint cannot be made that the contravention is continuing after the date of the complaint.

Economic Loss

91 The Council submitted that even if there was some concept of a continuing contravention to be found in the Act, it is a concept that does not provide any basis for a finding or order for relief from the Tribunal in this case. We agree that the issue of whether a contravention can be continuing did not affect the Tribunal’s reasoning in relation to economic loss. The Tribunal carefully and accurately explained the reason that economic loss could not be awarded at paras 117, 118 and 119 of its decision. In summary, the Tribunal gave two reasons for its decision:

First, we cannot be satisfied that if the respondent had not discriminated against the applicants on the ground of sex that the applicants would have been allocated a motor vehicle with private use rights. . . . A reasonable practice for the allocation of this benefit, which did not substantially favour either sex, may not have resulted in the applicants being granted private use rights of a motor vehicle.

For the reasons we have given, we are not satisfied that the applicants lost private use rights of a motor vehicle by reason of the respondent's conduct. What they lost was the opportunity to be considered for a work related benefit in a non-discriminatory manner.

Our second reason for declining to award damages for economic loss is an alternative to the first reason. If the first reason is incorrect, and if the applicants have in fact suffered loss of private use rights as a result of the respondent's contravention of the Act, we believe that, except in the case of Ms Bonella, there is no evidence of actual quantifiable loss. It is not sufficient to rely upon the evidence of Mr Wood concerning the number of kilometres the average motorist may have driven in a year. We do not know, except in relation to Ms Bonella, what private use the applicants may have made of any vehicle allocated to them.

92 The applicants’ only response to the Tribunal’s first reason was that the issue was not whether the applicants would have been allocated a vehicle if a non-discriminatory policy had been in operation. In our view, that is precisely the question which the Tribunal was required to address.

93 The Tribunal was correct in saying that in this case it is not possible to predict whether if a non-discriminatory policy had been in place, any of the applicants would have been entitled to private use rights to a motor vehicle. The applicants have not identified any error of law in relation to the Tribunal’s reasoning on economic loss.

Extension to the merits

94 The Council’s Notice of Appeal sought leave for the Appeal Panel to extend the appeal to the merits of the decision. The reason given for seeking such leave was that “Grounds 8, 9, 10 and 11 above may require some re-assessment of the merits of the case as part of the process of addressing each of the errors of law as identified, depending on the preferred approach of the Tribunal.”

95 The applicants submitted that the Council’s submissions in relation to grounds 8, 9 and 10 do not demonstrate that the factual findings with respect to the issues raised by these grounds were material and that had the Tribunal not made these findings the result would have been different. The applicants submitted that a fair reading of the Tribunal's reasons or the relevant evidence does not support the supposed factual errors. Further, they say that even if there were errors, they are not material errors.

Appeal Panel’s reasoning and decision

96 We have found no error of law in the Tribunal’s reasoning or conclusions. In the absence of any reasons advanced by the Council to extend the grounds of the appeal in relation to grounds 8, 9 10 and 15, and consistently with the Appeal Panel’s previous approach in granting leave to extend to the merits, leave is not granted to extend this appeal to the merits of the appealable decision. (See: R v A & B [1999] NSWADTAP 2, Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3, Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 and Law Society of New South Wales v Young (No.2) (LSD) [2001] NSWADTAP 19 at [38].)

Orders

1. Leave is not granted to extend the Council’s appeal to the merits.

2. The appeal by Council is dismissed.


3. The appeal by the applicants is dismissed.