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Federal Discrimination Law Online

Chapter 4 The Sex Discrimination Act

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4.1 Introduction to the SDA

4.1.1 Scope of the SDA

The SDA covers discrimination on the ground of:

The definitions of discrimination include both ‘direct’ and ‘indirect’ discrimination, with the exception of the definition of discrimination on the ground of family responsibilities, which is limited to direct discrimination.

Part II Divisions 1 and 2 of the SDA set out the areas of public life in which it is unlawful to discriminate on the ground of sex, marital status, and pregnancy or potential pregnancy. These include:

Discrimination on the ground of family responsibilities is made unlawful only in dismissal from employment.[8]

Note that, unlike the RDA, DDA and ADA,[9] the SDA does not bind the Crown in right of a State unless otherwise expressly provided.[10] This is particularly relevant in relation to the prohibitions on discrimination in work (ss 14-20) which do not expressly provide that the Crown in right of a State is bound by those sections.

Sexual harassment is also covered by the SDA.[11] Sexual harassment is any unwelcome sexual behaviour which makes a person feel offended or humiliated where that reaction is reasonable in the circumstances.

Like discrimination on the ground of sex, marital status and pregnancy or potential pregnancy, sexual harassment is unlawful in a broad range of areas of public life.[12]

The SDA contains a number of permanent exemptions.[13] The SDA also empowers HREOC to grant temporary exemptions from the operation of certain provisions of the Act.[14] The precise scope and nature of a temporary exemption is determined by HREOC in each instance. Temporary exemptions are granted for a specified period not exceeding 5 years.[15]

The SDA does not make it an offence per se to do an act that is unlawful by reason of a provision of Part II.[16] The SDA does, however, create the following specific offences.[17]

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4.1.2 Limited application provisions

Section 9 of the SDA sets out the circumstances in which the Act applies.

Section 9(2) provides that ‘[s]ubject to this section, this Act applies throughout Australia.’ Under s 9(1), ‘Australia’ includes the external Territories. It has been held, however, that the SDA does not have extraterritorial effect.[24]

Section 9(3) provides that the SDA ‘has effect in relation to acts done within a Territory.’ Other than in ss 9(17) and (18) of the SDA, ‘Territory’ is defined as not including the Australian Capital Territory and the Northern Territory.[25]

Section 9(4) provides:

(4) The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect as provided by subsection (3) of this section and the following provisions of this section and not otherwise.

The prescribed provisions of Part II set out the areas of public life in which discrimination is unlawful under the SDA.[26] The prescribed provisions of Division 3 of Part II, set out the areas of public life in which sexual harassment is unlawful under the SDA.[27]

The effect of s 9(4) of the SDA is to limit the operation of these unlawful discrimination provisions to the particular circumstances set out in ss 9(5)-9(20). This ensures that the prescribed provisions of Part II are given effect throughout Australia to the extent that they fall within Commonwealth legislative power. The second reading speech for the Sex Discrimination Bill 1983 (Cth) confirms this understanding of s 9(4).[28] While these circumstances are widely cast, it is nevertheless important for applicants to consider the requirements of s 9 in bringing an application under the SDA.

(a) Application of the SDA to external Territories

In South Pacific Resort Hotels Pty Ltd v Trainor,[29] the Full Federal Court held that the SDA applies generally to acts done in external Territories, such as Norfolk Island.

The Full Court in Trainor found that s 9(3) was unqualified in its terms and dealt with the application of the SDA generally. The fact that subsection (3) precedes those parts of section 9 that deal only with the prescribed provisions, and precedes subsection 9(4) itself, demonstrates that subsection (4) is not the starting point for a consideration of the applicability of the prescribed provisions in a Territory such as Norfolk Island. Rather, subsection 9(4) operates structurally to separate the limitations on the applicability of the prescribed provisions throughout the remainder of the Commonwealth from the unqualified operation of the SDA, including the prescribed provisions, ‘in relation to acts done within a Territory’.[30] There is therefore no additional requirement for an act done in a Territory (as defined) to also fall within the scope of ss 9(5) to 9(20) in order for the SDA to apply.[31]

The Full Court applied the same reasoning in order to find that s 106 of the SDA, which provides for vicarious liability, applied in the Territory of Norfolk Island because s 106 is included in the provisions with which s 9(3) is concerned.[32]

(b) Availability of the SDA to male complainants

Section 9(10) provides that the various prescribed provisions in Part II of the SDA have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’).[33] The SDA relies, in part, on CEDAW for its constitutional basis pursuant to the external affairs power of the Constitution.[34] Section 9(10) refers only to discrimination against women. Accordingly this section will not support a complaint lodged by a man under the SDA.

However, the remaining ss, 9(5)-9(9) and 9(11)-9(20), provide that the various prescribed provisions in Part II of the SDA have effect in a number of specified situations, which reflect heads of Commonwealth legislative power. A male wishing to bring a complaint under the SDA must establish that the complaint falls within one of these sections.

For example, s 9(11) provides that the prescribed provisions of Part II have effect in relation to discrimination by a foreign corporation, a trading or financial corporation formed within the limits of the Commonwealth or a person in the course of the person’s duties as an officer or employee of such a corporation.[35]

In Dudzinski v Griffith University,[36] a male complainant successfully established that Griffith University was a trading corporation for the purposes of s 9(11) of the SDA thereby bringing his complaint within the application of the Act. In Eleven Fellow Members of the McLeod Country Golf Club v McLeod Country Golf Club,[37] the complaint brought by male complainants was dismissed by Commissioner Carter who found that the McLeod Country Golf Club was not a trading corporation and the provisions of Part II of the SDA had no application to the Club.

(c) Marital status discrimination and giving effect to CEDAW under s 9(10)

The application of s 9(10) in relation to a claim of marital status discrimination was considered by the Full Federal Court in AB v Registrar of Births, Deaths & Marriages.[38] The applicant brought a claim of marital status discrimination in the provision of services pursuant to ss 6 and 22 of the SDA. The applicant had undergone sex affirmation surgery and applied to have her birth registration altered to record her as female. The Births, Deaths and Marriages Registration Act 1996 (Vic) provides that the Registrar cannot make the alteration if the applicant is married. The applicant was married. The Registrar refused the application.

The Registrar argued that s 22 of the SDA had no operation because s 9(10), the only relevant subsection of s 9 in this case, only gives s 22 effect in relation to discrimination on the basis of marital status to the extent that it gives effect to CEDAW. CEDAW is concerned with marital status discrimination only to the extent that the discrimination also involves discrimination against women and in this case there was no discrimination against women, as a man would have been treated in the same way as the applicant.

A majority of the Full Federal Court[39] upheld the decision of the judge at first instance[40] and found for the Registrar. The majority held that CEDAW is not concerned with marital status discrimination per se, but is concerned with discrimination on the basis of marital status that also involves discrimination against women.[41] The words ‘in relation to discrimination against women’ in s 9(10) therefore only give effect to provisions prohibiting discrimination on the ground of marital status when such discrimination also involves discrimination against women, where men’s rights and freedoms are the standards for comparison.[42] In the State Act in question in this case, the criterion for discrimination was not sex, but marriage, and had the applicant been a married man, the result would have been the same.

The Full Court specifically noted that s 9(10) is different from the other application provisions in s 9 and that the other application provisions give s 22 (and the other prescribed provisions of Part II) effect on a gender neutral basis.[43] However, none of those provisions applied in this case.

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4.2 Direct Discrimination Under the SDA

4.2.1 Causation, intention and motive

Section 5(1) of the SDA provides the definition of direct sex discrimination:

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

  1. the sex of the aggrieved person;
  2. a characteristic that appertains generally to persons of the sex of the aggrieved person; or
  3. a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

The definitions of direct discrimination on the ground of marital status (s 6(1) – see 4.2.3 below), pregnancy or potential pregnancy (s 7 – see 4.2.4 below) and family responsibilities (s 7A – see 4.2.5 below) are in similar terms, although the definition of pregnancy or potential pregnancy uses the term ‘because of’ rather than ‘by reason of’.

The words ‘by reason of the sex of the aggrieved person’ in the direct discrimination provisions of the SDA require a causal connection between the sex of the aggrieved person and any less favourable treatment accorded to them. They do not, however, require an intention or motive to discriminate.

In Human Rights & Equal Opportunity Commission v Mount Isa Mines Ltd[44] (‘Mt Isa Mines’), Lockhart J considered the meaning of ‘by reason of’, and discussed various tests to determine if the respondent’s conduct was discriminatory.

His Honour stated:

In my opinion the phrase ‘by reason of’ in s 5(1) of the [SDA] should be interpreted as meaning ‘because of’, ‘due to’, ‘based on’ or words of similar import which bring something about or cause it to occur. The phrase implies a relationship of cause and effect between the sex (or characteristic of the kind mentioned in s 5(1)(b) or (c)) of the aggrieved person and the less favourable treatment by the discriminator of that person.[45]

Lockhart J continued:

In my view the Act requires that when an inquiry is being held into alleged discrimination prohibited by s 14(2) on the ground of the sex of an employee, all the relevant circumstances surrounding the alleged discriminatory conduct should be examined. The intention of the defendant is not necessarily irrelevant. The purpose and motive of the defendant may also be relevant.
....
[I]n some cases intention may be critical; but in other cases it may be of little, if any, significance. The objects of the [SDA] would be frustrated, however, if sections were to be interpreted as requiring in every case intention, motive or purpose of the alleged discriminator: see Waters[46] per Mason CJ and Gaudron J (at 359).

The search for the proper test to determine if a defendant’s conduct is discriminatory is not advanced by the formulation of tests of objective or causative on the one hand and subjective on the other as if they were irreconcilable or postulated diametrically opposed concepts. The inquiry necessarily assumes causation because the question is whether the alleged discrimination occurs because of the conduct of the alleged discriminator; and the inquiry is objective because its aim is to determine on an examination of all the relevant facts of the case whether discrimination occurred. This task may involve the consideration of subjective material such as the intention or even motive, purpose or reason of the alleged discriminator; but its significance will vary from case to case ...
....
I am not attracted by the proposition (which appears to have been favoured by the majority of the House in Eastleigh)[47] that the correct test involves simply asking the question what would the position have been but for the sex ... of the complainant ... Provided the ‘but for’ test is understood as not excluding subjective considerations (for example, the motive and intent of the alleged discriminator) it may be useful in many cases; but I prefer to regard it as a useful checking exercise to be engaged in after inquiring whether in all the relevant circumstances there has been discriminatory conduct.[48]

The issue of causation under the DDA was considered in detail by the High Court in Purvis v New South Wales (Department of Education & Training).[49] The Court held there that the appropriate approach is to consider, in light of all the circumstances surrounding the alleged discrimination, what was the ‘real reason’ or ‘true basis’ for the treatment.[50]

It is, however, important to note that s 8 of the SDA provides that if an act is done by reason of two or more particular matters that include the relevant ground of discrimination, then it is taken to be done by reason of that ground, regardless of whether that ground is the principal or dominant reason for the doing of the act.

More recently, in Sterling Commerce (Australia) Pty Ltd v Iliff,[51] Gordon J noted that ‘the test of discrimination is not whether the discriminatory characteristic is the “real reason” or the “only reason” for the conduct but whether it is “a reason” for the conduct’.[52] Whilst her Honour took the view that the Federal Magistrate at first instance[53] had ‘impermissibly emphasised the motive or driving reason behind the [employer’s] conduct, instead of focusing on whether the conduct occurred because of [the employee’s] sex, pregnancy or family responsibilities’,[54] her Honour did not consider that this affected the ultimate outcome of the case. Her Honour did not, however, discuss the decision in Purvis upon which the Court at first instance based its analysis.[55]

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4.2.2 Direct sex discrimination

Allegations of direct sex discrimination have been raised largely in the context of cases involving pregnancy discrimination (see 4.2.4 below), sexual harassment (see 4.6.5 below) and sex-based harassment (see 4.6.6 below).

In Ho v Regulator Australia Pty Ltd,[56] the FMC considered an allegation of direct sex discrimination contrary to s 5(1)(a). In that case the applicant alleged, amongst other things, that she had been discriminated against on the basis of her sex because she had been asked to change the towels in the men’s washroom. Driver FM found that the request had been made because ‘it was a job that needed doing and it was a job that always been done by “one of the girls”’.[57] Accordingly, his Honour found that the request had been made on the basis of Mrs Ho being a woman, in breach of s 5(1)(a) of the SDA.[58] Driver FM stated that:

The request would not have been made if Mrs Ho had been a man. Appropriate comparators in the circumstances are the male employees in the workplace. They were not and would not have been asked to undertake this menial task. It follows that in making the request to Mrs Ho that she change the towels in the men’s washroom, Mrs Kenny treated Mrs Ho less favourably than a man would have been treated in the same circumstances.[59]

In Evans v National Crime Authority,[60] the applicant, a single parent, was employed on contract as an intelligence analyst by the National Crime Authority (‘NCA’). The applicant left her employment before the end of her contract after being informed that her contract would not be renewed. Prior to this, the applicant had a series of discussions with, principally, the manager of investigations responsible for her team (‘the manager’), in which concerns were expressed about her attendance record and taking of personal leave (comprising carer’s leave and sick leave – all within her leave entitlements).

In addition to a finding that the applicant had been constructively dismissed on the basis of her family responsibilities contrary to s 14(3A) (see 4.2.5 below), Raphael FM also made a finding of direct sex discrimination (the responsibility to care for children being a ‘characteristic that appertains generally to wome[61]. On appeal in Commonwealt[62]v Evans, Branson J overturned the finding of direct sex discr[63]ination. Her Honour found there was no evidence before the Court that showed how a male employee who took the same or comparable amounts of leave as the applicant would have been treated. Branson J stated ‘it is not illegitimate for an employer, all other things being equal and provided indirect discrimination is avoided, to favour for re-employment an employee who takes limited leave over an employee who regularly takes a lot of leave, albeit that it is leave to which he or she is entitl,[64]’. The situation was distinguished from Thomson v Orica Austral[65] Pty Ltdin which there was a family leave policy which required a certain standard of treatment (see 4.2.4(b)).

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4.2.3 Direct marital status discrimination

Section 6(1) of the SDA defines direct discrimination on the ground of marital status:

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital status of the aggrieved person if, by reason of:

  1. the marital status of the aggrieved person; or
  2. a characteristic that appertains generally to persons of the marital status of the aggrieved person; or
  3. a characteristic that is generally imputed to persons of the marital status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.

Section 6 of the SDA was considered by HREOC, the Federal Court and the Full Federal Court in what is known as the Dopking litigation.[66] In that matter, complaints were made to HREOC by single members of the Defence Force (one of whom was Mr Dopking). The complainants had been posted by the RAAF to Townsville. They sought to receive certain allowances to cover costs associated with their posting. These allowances were only available to a ‘member with a family’ which was defined to mean a member normally residing with: (a) the spouse of the member; (b) a child; (c) where the member is widowed, unmarried or permanently separated, or where the member’s spouse is invalided – a person acting as a guardian or housekeeper to a child; (d) any other person approved by an approving authority. The complainants’ applications for the allowances were rejected on the ground that they were members without family.

HREOC found that this amounted to direct discrimination on the ground of marital status.[67] The respondent argued that the allowance was denied not because of the complainants’ marital status, but because they were not part of a household including a person within the definition of ‘family’.[68] This argument was rejected by Sir Ronald Wilson, who held:

In my opinion [the respondent’s argument] neglects to mark the significance of paragraphs (b) and (c) of section 6(1). It is not only ‘marital status’ to which regard must not be had, but also ‘a characteristic that appertains generally to or is generally imputed to persons of the marital status’ of the complainant. Not being part of a ‘household’ is a characteristic that pertains generally to persons of single status, thereby as a matter of generality rendering single persons ineligible to receive the allowance. In the present case, that characteristic of not being part of a household attached to Mr Dopking, thereby rendering him ineligible to receive the allowance.[69]

On review by the Full Court of the Federal Court,[70] it was held by Lockhart and Wilcox JJ (Black CJ dissenting) that the approach taken by HREOC was incorrect. Lockhart J stated:

In this case s 6(1) requires the comparison to be made between Mr Dopking as a person with the characteristic mentioned in para (b) or (c) of subs (1) and a person of a different marital status. There is no extension of that other person’s marital status for the purposes of the section. In other words, the comparison is not made with a person having a characteristic that appertains generally to or is generally imputed to persons of another marital status; it is made with a person of a different marital status – for example a married person.
....
The reason why a member of the Defence Force is... treated more favourably than others is because the member is accompanied by a person who normally resides with him or her and falls within the extended definition of ‘family’. It is not the marital status of the person ... that determines the more favourable treatment, but the fact that, whatever that person’s marital status is, he or she has one or more ‘family’ members normally residing with him or her who in fact accompanies the member to the new posting.[71]

Wilcox J also favoured a ‘narrow’ view of s 6(1), requiring a comparison between:

the treatment of an aggrieved person having a particular marital status (or characteristic which appertains generally, or is perceived to appertain generally, to persons of a particular marital status) and the treatment accorded to persons having a different marital status, without reference to the characteristics that generally appertain, or are imputed, to that marital status.[72]

In MW v Royal Women’s Hospital,[73] HREOC considered a refusal to provide in vitro fertilization treatment to unmarried women. The fertilization procedure was regulated by the Infertility (Medical Procedures) Act 1984 (Vic) which provided that the procedure may only be carried out if the woman is married. The complainants were not married but each was in a long term stable de facto relationship. They satisfied all the requirements for the program but were not permitted to continue on the program because they were not married.

The Commissioner found that as the hospitals that had refused treatment were in the business of providing health care, they were subject to s 22 of the SDA (which proscribes discrimination in the provision of goods, services and facilities). The refusal to provide the IVF services to the complainants because they were not married constituted unlawful discrimination on the ground of their marital status.[74] The Commissioner stated that compliance with a State law is not a defence under the SDA[75] and the complainants were awarded damages.[76]

The same issue arose in McBain v Victoria.[77] The Federal Court found that s 8 of the Infertility Treatment Act 1995 (Vic) required a provider of infertility treatment to discriminate on the ground of marital status. That section and a number of other provisions were declared by Sundberg J to be inconsistent with the SDA and, under s 109 of the Constitution, inoperative to the extent of the inconsistency.[78]

A complaint of marital status discrimination in the provision of services under the Births, Deaths and Marriages Registration Act 1996 (Vic) was considered by the Full Federal Court in AB v Registrar of Births, Deaths & Marriages.[79] Section 30C(3) of the State legislation relevantly provides that the Registrar cannot make an alteration to a person’s birth registration after that person has undergone sex affirmation surgery if the person is married.

Kenny J found that, were it not for the limited application provisions in the SDA, s 30C(3) of the State legislation would have been inconsistent with s 22 of the SDA because it required the Registrar to treat the applicant less favourably than an unmarried person and would therefore be invalid to the extent of that inconsistency in accordance with s 109 of the Constitution.[80] However, none of the relevant provisions of s 9 operated to give the SDA effect in the circumstances of this case.

Only s 9(10) (relating to CEDAW) was relevant to the activities of the Registrar. As discussed in more detail at 4.1.2(c) above, that provision could only give operation to s 22 in relation to discrimination on the ground of marital status when such discrimination also involved discrimination against women, where men’s rights and freedoms are the standards for c[81]parison.81 Here, the action of the Registrar in refusing to alter the applicant's birth certificate had nothing to do with the applicant being a woman and had the applicant been a man, the result would have been the same. As the criterion for discrimination was not sex, but marriage, the appe[82]failed.

Other cases have considered claims of unlawful discrimination on the ground of marital status but the claims were dismissed without significant discussion of the relevant provisions of the SDA.[83]

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4.2.4 Direct pregnancy discrimination

Section 7(1) of the SDA defines direct discrimination on the ground of pregnancy or potential pregnancy:

(1) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of:

  1. the aggrieved woman’s pregnancy or potential pregnancy; or
  2. a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
  3. a characteristic that is generally imputed to women who are pregnant or potentially pregnant;

the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.

Much of the case law in relation to s 7(1) of the SDA arises from complaints that allege discrimination after a woman has returned to work after taking a period of maternity leave. This is because the taking of a period of maternity leave is a characteristic that appertains generally to women who are pregnant (s 7(1)(b)).[84] These cases are discussed further below (4.2.4(b)).

(a) Relationship between pregnancy and sex discrimination

Complaints of discrimination on the basis of pregnancy or potential pregnancy, or on the basis of a characteristic that appertains generally to women who are pregnant or potentially pregnant, raise potentially overlapping claims of sex and pregnancy discrimination. This is because pregnancy and potential pregnancy, and the characteristics that appertain generally to those attributes, have also been said to be characteristics that appertain generally to women.[85] Complaints of discrimination on these grounds may therefore fall within both s 5(1)(b) and s 7(1)(b) of the SDA.

It has been held, however, that s 7 of the SDA operates exclusively of s 5. In Human Rights & Equal Opportunity Commission v Mount Isa Mines Ltd[86] (‘Mt Isa Mines’), Lockhart J stated:

What is the relationship between ss 5, 6 and 7 of the SD Act? Section 5 relates to sex discrimination, s 6 to discrimination on the ground of marital status and s 7 to discrimination on the ground of pregnancy. Section 7 assumes that the aggrieved person is pregnant or has a characteristic that appertains generally to or is generally imputed to persons who are pregnant. If the facts of a particular case concern an aggrieved person who is pregnant or who has a characteristic that appertains generally to or is generally imputed to pregnant women, in my opinion s 7 operates exclusively of s 5.[87]

Mt Isa Mines has subsequently been applied in cases alleging direct discrimination in relation to return to work after a period of maternity leave. In Thomson v Orica Australia Pty Ltd[88] (‘Thomson’), for example, Allsop J held that the taking of maternity leave is a characteristic that appertains generally to women, and accordingly, less favourable treatment on the ground that a woman has taken maternity leave can amount to discrimination on the basis of sex, as well as pregnancy. [89] However, his Honour considered that he should follow the decision of Lockhart J in Mt Isa Mines in relation to the exclusive operation of s 7 and s 5.[90] He therefore concluded that, although he was satisfied the facts of the case would have supported a conclusion of unlawful sex discrimination under ss 5(1)(b) and (c) and 14(2), relief would be limited to that based on the claim of pregnancy discrimination under ss 7(1) and 14(2).[91]

(b) Maternity leave – direct discrimination on basis of characteristic that appertains generally to pregnancy

There have been a number of cases in this area. These are discussed with particular emphasis on the identification of the ‘comparator’: that is, the person or persons to whom an applicant is to be compared in determining whether or not there has been ‘less favourable treatment’.

In Thomson, the applicant had been employed for nine years before taking 12 months maternity leave to which she was entitled under the respondent’s family leave policy. A few days before she was due to return to work, the applicant was advised that she would not be returning to her pre-maternity leave position and that she would be performing new duties. The applicant alleged that the changes to her job amounted to a demotion and that the respondent’s actions amounted to a constructive dismissal.

Allsop J found that the job offered to the applicant on her return from maternity leave was ‘of significantly reduced importance and status, of a character amounting to a demotion (although not in official status or salary)’.[92] His Honour considered that the appropriate comparator, for the purposes of s 7(1) of the SDA, was a similarly graded account manager with the applicant’s experience who, with the employer’s consent, took 12 months leave and who had a right to return to the same or similar position. His Honour also found that the posited comparator would not have been treated contrary to any policy that had been laid down for his or her treatment.[93] His Honour decided that the applicant had been treated less favourably than another employee in the same or similar circumstances who was not pregnant.[94]

Allsop J also found that the actions of the employer constituted a serious breach of the implied term of the contract of employment that an employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties.[95] His Honour found that the applicant was entitled to treat herself as constructively dismissed at common law[96] and that discrimination had occurred contrary to ss 14(2)(a), (b), (c) and (d) of the SDA.

Thomson was cited with approval in Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd.[97] The applicant in that matter was employed in the position of Manager, Technology Support in the respondent’s finance and administrative group. She claimed that upon her return from maternity leave her position no longer existed, due to a restructure, and she was persuaded to take a role in ‘special projects’ which was graded two levels lower. She was, however, remunerated according to her original position and invited to participate in an important new project. The applicant complained that, by effectively demoting her, the employer had breached ss 5(1), 7(1) and 14(1) of the SDA and an implied term of her contract of employment which guaranteed that she would be provided with a comparable position upon returning from maternity leave. She further complained that she was constructively dismissed.

Driver FM accepted, citing Thomson, that by placing the applicant in a position which was inferior in status, she had been treated ‘less favourably than a comparable employee would have been who was not pregnant and who was returning after nine months leave and with the rights of the kind reflected in the maternity leave policy’.[98] As such, the employer had engaged in discrimination as defined in s 7(1)(b) of the SDA and was in breach of s 14(2)(a) of the SDA.

In relation to the alleged breach of contract, Driver FM held that the employer’s parental leave policy formed part of the contract for employment which gave the applicant the right to return to a comparable position.[99] However, Driver FM held that by remaining in her position as Business Improvement Facilitator and accepting the offer to work on the new project, the applicant ‘forgave’ the employer’s breach of contract.[100] Her conduct was therefore inconsistent with her acceptance of a repudiation of the contract by the employer, even if that conduct had amounted to a fundamental breach.[101] Driver FM declined to make a finding of constructive dismissal.[102]

In Mayer v Australian Nuclear Science & Technology Organisation,[103] the applicant occupied a professional position with the respondent as a Business Development Manager. She informed her employer that she wanted to take 12 months maternity leave. Her three year contract was due to expire during that leave. She sought a two year extension to her contract but it was extended for a period of only one year. The applicant claimed the one year extension was discriminatory on the ground of her pregnancy because at that time other professional officers on fixed term contracts were offered contract extensions of two years or more.

Driver FM found that there had been discrimination as defined by s 7(1) and it was unlawful by s 14(2)(a).[104] His Honour held that the proper comparison to be made was between the applicant and other fixed term contract employees of the respondent who were not pregnant, who intended to take 12 months leave and who had sought to have their contracts extended.[105] Driver FM found that most (if not all) other fixed term contract employees of the respondent who were not pregnant and who had sought to have their contracts extended were granted a contract extension of an equal or greater period than the original term of their employment. His Honour noted that, whilst there was no uniform approach to the renewal of fixed term contracts, the respondent’s practice gave rise to a reasonable expectation that, provided that performance was satisfactory, the contract would be renewed for a period no shorter than the initial contract period. Driver FM held that the applicant was treated less favourably than comparable employees.[106]

His Honour was further satisfied that the applicant’s pregnancy was a factor in the decision to grant her a one year extension. The respondent asserted that the dominant factor in considering the length of the extension was the doubt about a business case for the applicant’s position. His Honour found that a factor in that uncertainty was doubt in the respondent’s mind whether, and if so on what basis, the applicant would be returning from maternity leave. His Honour stated that by offering the one-year extension the employer was ‘minimising the risk that Ms Mayer might not return or might want to return on an inconvenient basis after completing her maternity leave’.[107]

In Ilian v ABC,[108] the applicant took a period of two years and four months leave during which time she gave birth to two children. The leave comprised predominantly maternity leave, but also included long service leave, recreation leave and sick leave.[109] Upon her return to work, the applicant’s employer failed to allow her to return to the position she had held before the commencement of her leave. The applicant alleged that her employer’s conduct was because of her pregnancies and the taking of maternity leave, and brought a claim of both sex and/or pregnancy discrimination pursuant to ss 5 and 7 of the SDA.

McInnes FM upheld the applicant’s claim under s 7(1)(b) of the SDA, accepting that the applicant was treated less favourably than a comparator on the ground of her pregnancy. In relation to the issue of a comparator, McInnes FM stated:

It is sufficient for the Court to find as it has found that the Respondent’s usual practice for employees who have taken leave of an extended nature is that they return to their previous duties.[110]

McInnes FM held that the reason for the less favourable treatment was the applicant’s pregnancies and the taking of maternity leave and that the respondent had therefore contravened s 7 of the SDA.[111]

The application of Allsop J’s approach in Thomson to the issue of the comparator led to the dismissal of a complaint of discrimination in Iliff v Sterling Commerce (Australia) Pty Ltd.[112] In that case, the applicant was employed by the respondent for two years prior to becoming pregnant in April 2004. Following discussions with her manager, it was agreed that the applicant would return to work on a part time basis before resuming her full time duties, subject to the changing needs of the business and potential restructuring. Upon attempting to return to work, the applicant was informed that her position no longer existed and that she was to be made redundant. She was advised that changes had occurred within the structure of the respondent’s business and that the employee who had replaced her in her absence was better qualified for the new tasks these changes entailed.

Burchardt FM concluded that if the applicant had not gone on maternity leave it was more probable than otherwise that she would have continued in her employment, notwithstanding the various changes that took place in relation to the conduct of the business.[113] However, while it was clear that the applicant would not have been dismissed if she had not taken maternity leave, this did not necessarily mean that the reason for her dismissal was the fact that she was on maternity leave.

Relying on Thomson and Purvis v New South Wales (Department of Education & Training),[114] Burchardt FM decided that the comparator against whom the applicant’s treatment should be compared was a person who went on unpaid leave in December 2004 with an enforceable understanding that they were entitled to return to work following the end of that leave in 2005.[115] Despite taking an unfavourable view of the manner in which the respondent company dealt with the applicant, his Honour held that the real reason why the applicant was not permitted to return to work was because management had formed the view that the person who was employed to replace the applicant during her maternity leave was a better employee for the job. His Honour expressed the view that the same treatment would have been accorded to an employee on study leave or a male employee on unpaid leave even if such leave had involved a right to return to work.[116] Accordingly, this element of the sex discrimination claim failed.

Burchardt FM concluded, however, that the respondent had unlawfully discriminated against the applicant in requiring her to sign a release before it would pay her a redundancy payment. This was based on a finding that the respondent wanted a release from the applicant in order to try and prevent her from seeking to enforce her rights pursuant to the return to work provisions contained in the Workplace Relations Act 1996 (Cth). His Honour concluded that the reason for the respondent’s action was therefore the taking of maternity leave.[117]

Both the appeal and cross-appeal against Burchardt FM’s decision were dismissed.[118] In responding to an argument that Burchardt FM did not correctly identify the comparator, Gordon J gave further consideration to Allsop J’s findings in Thomson and noted that

The issue is whether Allsop J’s finding that the employer would not have treated the comparator contrary to any other company policy was premised on the factual finding in that case that the Orica supervisor was prejudiced against women taking maternity leave. In my view, that factual finding did inform Allsop J’s assessment that Orica treated the employee in question contrary to its own company policy (which was the relevant issue in that case) because of the maternity leave.[119]

In relation to the matter before her Honour, Gordon J found that there was nothing to suggest that the management at Sterling Commerce had a negative attitude towards maternity leave. In this context, her Honour was ‘less likely to find that a reason Sterling Commerce failed to reinstate Ms Iliff was that she took maternity leave’.[120] In addition, her Honour accepted that the evidence before Burchardt FM did not suggest that Sterling Commerce would have treated the comparator with an equivalent right to return to work any differently than it did Ms Iliff and her Honour therefore dismissed that ground of the cross-appeal. [121]

In Ho v Regulator Australia Pty Ltd,[122] the applicant alleged, amongst other things, that she had been discriminated against on the basis of her pregnancy. Driver FM found that the applicant’s supervisor had made it clear to the applicant that her pregnancy was unwelcome and that she would be required to prove her entitlement to maternity leave. She was required to attend a meeting with an independent witness to discuss her request for leave as well as a change in her work performance which had followed the announcement of her pregnancy.

Driver FM held as follows:

I find that in subjecting Mrs Ho to the meeting on 25 February 2002 the respondents discriminated against Mrs Ho on account of her pregnancy. The appropriate comparators are employees of the first respondent who were not pregnant but who had a condition requiring leave on the production of a medical certificate. It is hard to imagine an employee requiring leave on production of a medical certificate being summoned to a meeting before an independent witness to discuss their need for leave and an asserted decline in work performance and attitude since the medical condition became known. I find that such an employee would not have been subjected to an analysis of their work performance or been summoned to a meeting with an independent witness to justify a request for leave. By subjecting Mrs Ho to the meeting the respondents breached s.7(1)(a) of the SDA.[123]

In Howe v Qantas Airways Ltd,[124] the applicant was employed by the respondent as a Customer Service Manager when she became pregnant. The applicant was earning $95,000 per annum, with a base salary of $64,000 in that position. The Enterprise Agreement regulating the applicant’s employment required her to cease flying duties 16 weeks after the date of conception. The applicant registered her interest in available ground duties and was offered a position in the engineering department, performing photocopying and filing duties, earning about $30,000 per annum. The applicant commenced unpaid maternity leave rather than take this position. The applicant alleged that the respondent had unlawfully discriminated against her on the ground of her pregnancy by refusing her request to access her accumulated sick leave entitlements and/or by failing to pay the applicant her base salary when she was required to cease flying by reason of her pregnancy.

Driver FM found that the proper comparison to be made was between the applicant and an employee of the respondent who was not pregnant but required to cease flying duties by reason of a medical condition. This hypothetical comparator was covered by the Enterprise Agreement that regulated the applicant’s employment. The Enterprise Agreement provided that a flight attendant who, through personal illness, was unfit for flying but was fit for non-flying duty may take sick leave or if a temporary ground staff position was available and accepted by the flight attendant, he or she must be paid the rate of pay prescribed in the relevant award.

Therefore, as the comparator would have the option of performing ground duties or taking sick leave, Driver FM found that the refusal of sick leave to the applicant amounted to less favourable treatment and constituted discrimination in breach of ss 7(1) and 14(2)(b) of the SDA. However, the offer of a rate of pay applicable to the engineering department position was not discriminatory by reference to this same hypothetical comparator.

In Dare v Hurley,[125] the applicant alleged that she was dismissed from her employment either because she was pregnant or because of her request for maternity leave. The respondent contended that the applicant’s employment was terminated because she had acted inappropriately by deleting documentation from the company’s computer system, by installing password protection on documents contrary to company policy and by reporting in sick by means of an SMS message.

Driver FM considered that the appropriate hypothetical comparator for the purposes of s 7(1) of the SDA was an employee of the respondent subject to the same terms of employment: that is, one who had expressed a wish to take a period of unpaid leave; whose work performance was not assessed as unsatisfactory prior to the leave request; and who password protected two documents without instruction and reported in sick by means of an SMS message.[126] His Honour found that in dismissing the applicant, the respondent treated her less favourably than the hypothetical comparator would have been treated because of her need for maternity leave: a characteristic that appertains to women who are pregnant. His Honour held that the respondent acted unlawfully in dismissing the applicant in breach of ss 7(1) and 14(2)(c) of the SDA.[127]

In Fenton v Hair & Beauty Gallery Pty Ltd,[128] the applicant attended her workplace after an absence due to illness related to her pregnancy. Driver FM found that the applicant was discriminated against on the ground of pregnancy when she was sent home by her employer despite being ‘fit, ready and able to work’. His Honour stated:

The fact was that Ms Fenton had presented for work, was not sick and wanted to work. Ms Hunt had decided not to take the risk of permitting Ms Fenton to work because she did not want a repetition of the events of 18 December 2003 [on which day the applicant had been ill and had to leave work]. Ms Hunt’s motives may have been benign (she was genuinely concerned for Ms Fenton’s welfare) but Ms Fenton was treated less favourably than the hypothetical comparator would have been in the same circumstances. Ms Fenton was denied a week’s salary that she was entitled to earn. A valued employee with Ms Fenton’s skills and experience who was temporarily unfit for work but then presented for work fit at a time when her services were sorely needed, would not have been turned away. It was Ms Fenton’s pregnancy that caused Ms Hunt to send Ms Fenton home because of her concern for her welfare. However, the decision should have been left for Ms Fenton. In sending Ms Fenton home and thereby depriving her of a week’s salary, Ms Hunt discriminated against Ms Fenton by reason of her pregnancy contrary to s.7(1) and s.14(2)(b) of the SDA. Ms Hunt denied Ms Fenton access to paid employment for a week which was a benefit associated with her employment. Alternatively, the denial of paid employment was a detriment for the purposes of s.14(2)(d).[129]

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4.2.5 Discrimination on the ground of family responsibilities

The definition of discrimination on the ground of family responsibilities appears in s 7A of the SDA. Unlike the other grounds in the SDA, the definition is restricted to direct discrimination. In addition, discrimination on the ground of family responsibilities is made unlawful only where an employee is dismissed (s 14(3A)) although constructive dismissal will suffice.[130]

Section 7A of the SDA provides:

7A Discrimination on the ground of family responsibilities

For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if:

(a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and

(b) the less favourable treatment is by reason of:

(i) the family responsibilities of the employee; or
(ii) a characteristic that appertains generally to persons with family responsibilities; or
(iii) a characteristic that is generally imputed to persons with family responsibilities.

Section 14(3A) of the SDA provides:

(3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.

In Song v Ainsworth Game Technology Pty Ltd[131] (‘Song’), the applicant sought to continue an informal practice she had maintained for nearly one year of leaving the workplace for approximately twenty minutes (from 2.55pm to 3.15pm) each afternoon to transfer her child from kindergarten to another carer.

The respondent sought to impose upon the applicant the condition that she attend work from 9am until 5pm with a half hour for lunch between 12pm and 1pm. When this condition was not accepted the respondent unilaterally changed the applicant’s employment from full-time to part-time employment, purportedly to allow the applicant to meet her family responsibilities.

Raphael FM found that the applicant was treated less favourably than a person without family responsibilities who would have expected flexibility in starting and finishing times and in the timing of meal breaks.[132] His Honour further found that the unilateral change to part-time employment constituted constructive dismissal of the applicant and that one of the grounds for that dismissal was the applicant’s family responsibilities in breach of s 14(3A) of the SDA.[133]

In Escobar v Rainbow Printing Pty Ltd (No 2)[134] (‘Escobar’), Driver FM suggested that the case before him involved a factual situation effectively the reverse of that in Song. Rather than a case where the employer essentially compelled the employee to work part-time, Driver FM found that prior to the applicant’s return from maternity leave, she sought to reach an agreement with the respondent that she return to work on a part-time basis.[135] Following that conversation, and prior to the applicant’s return to work, the respondent employed another person to fill the applicant’s full-time position. On the day that the applicant returned to work, the respondent told her that there was no part-time work available and terminated the applicant’s employment.

Driver FM found that on the facts of the case the breach of s 14(3A) was clear:

There is no doubt in my mind that the applicant was dismissed by the respondent when she presented herself for work on 1 August 2000. The employment relationship between the parties had continued to that point and the applicant was clearly sent away from the workplace on the understanding that the employment relationship was then severed. The reason for the dismissal is also clear. The reason was that Mr Meoushy was unwilling to countenance at that time the possibility of the applicant working part time and had filled her full time position, rendering that position also unavailable. Mr Meoushy had taken that action because he had formed a view (I think correctly) that the applicant was unwilling to work full time because of her family responsibilities. I am left in no doubt that the applicant was dismissed from her employment on 1 August 2000 because of her family responsibilities.[136]

In Evans v National Crime Authority,[137] the applicant, a single parent, was employed on contract as an intelligence analyst by the National Crime Authority (‘NCA’). The applicant left her employment before the end of her contract after being informed that her contract would not be renewed. Prior to this, the applicant had a series of discussions with, principally, the manager of investigations responsible for her team (‘the manager’), in which concerns were expressed about her attendance record and taking of personal leave (comprising carer’s leave and sick leave – all within her leave entitlements).

Raphael FM found that the manager was unhappy with the concept of carer’s leave[138] and that the manager considered non-attendance for reasons of carer’s leave to be damaging to that person’s employment prospects within the NCA.[139] His Honour was also satisfied that the manager’s grading of the applicant at her performance review was influenced by his views as to her taking of personal leave.[140] This in turn affected the renewal of the contract.[141] Raphael FM concluded that the applicant had been constructively dismissed on the basis of her family responsibilities, contrary to s 14(3A).[142] In finding that there had been ‘less favourable treatment’ for the purposes of s 7A, his Honour stated that the proper comparator was an employee without family responsibilities who took personal leave within his or her entitlements.[143]

Raphael FM’s finding of discrimination on the ground of family responsibilities was upheld on appeal by Branson J in Commonwealth v Evans.[144]

A number of cases involving issues relating to family responsibilities and requests for flexible working arrangements have included claims of indirect sex discrimination (s 5(2)). These cases are considered at 4.3 below.

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4.3 Indirect Discrimination Under the SDA

Section 5(2) of the SDA provides:

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

The definitions of indirect discrimination on the grounds of marital status (s 6(2)) and pregnancy or potential pregnancy (s 7(2)) are set out in similar terms.

These provisions all apply subject to s 7B which provides:

7B Indirect discrimination: reasonableness test

(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.

(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

  1. the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
  2. the feasibility of overcoming or mitigating the disadvantage; and
  3. whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

Section 7C deals with the burden of proof. It provides:

7C Burden of proof

In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.

The current provisions relating to indirect discrimination were inserted by the Sex Discrimination Amendment Act 1995 (Cth). Prior to the commencement of that amending Act, the indirect discrimination provisions of the SDA were in similar terms to those currently in the DDA.[145] This section considers the jurisprudence developed prior to 1995 only where it is relevant to the interpretation of the present provisions.

In Mayer v Australian Nuclear Science & Technology Organisation[146] (‘Mayer’), Driver FM referred to the second reading speech of the Sex Discrimination Amendment Bill 1995, in which the then Attorney-General stated:

The bill sets out a simpler definition of indirect discrimination. It provides that a person discriminates against another person if the discriminator imposes or proposes to impose a condition, requirement or practice that has or is likely to have the effect of disadvantaging the person discriminated against because of, for example, his or her sex. The focus is on broad patterns of behaviour which adversely affect people who are members of a particular group.[147]

There are three constituent elements to the current indirect discrimination provisions of the SDA. These are:

These elements will be considered below together with the relevant case law.

In a number of cases, issues surrounding family responsibilities and requests for part-time work have been considered within the context of the definition of indirect sex discrimination. This is significant because s 14(3A) of the SDA only makes direct discrimination on the basis of family responsibilities unlawful in cases of dismissal from employment.[148] In contrast, discrimination on the basis of sex is unlawful in the employment context more generally, and in many other areas of public life.[149] In addition, invoking the indirect sex discrimination definition in such matters avoids the potential difficulties associated with the causation and comparator elements of the direct family responsibilities discrimination provisions.[150]

4.3.1 Defining the ‘condition, requirement or practice’

The words ‘requirement or condition’ should be given a broad or liberal interpretation to enable the objects of the legislation to be fulfilled.[151]

In Australian Iron & Steel Pty Ltd v Banovic,[152] Dawson J considered the words ‘requirement or condition’ in the context of the indirect sex discrimination provisions of the Anti-Discrimination Act 1977 (NSW). Dawson J stated:

it is clear that the words ‘requirement or condition’ should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employee: Clarke v Eley (IMI) Kynoch Ltd (1983) ICR 165, at pp 170-171. Nevertheless, it is necessary in each particular instance to formulate the actual requirement or condition with some precision.[153]

This passage was cited with approval by the High Court in Waters v Public Transport Corporation[154] in the context of the indirect discrimination provisions of the Equal Opportunity Act 1984 (Vic).

In a number of indirect sex discrimination cases involving issues of family responsibilities and requests for part-time work, courts have held that the condition, requirement or practice that employees be available to work full-time is a ‘condition, requirement or practice’ within the meaning of s 5(2) of the SDA.[155] Courts have made this finding in circumstances where the requirement to work full-time formed part of the aggrieved person’s ongoing terms and conditions of employment.[156]

In Escobar v Rainbow Printing Pty Ltd (No 2)[157] (‘Escobar’), a female employee sought to return from maternity leave on a part-time basis. Her request was denied and her employment later terminated. Driver FM found this amounted to direct discrimination on the ground of family responsibilities[158] and that in the event he was wrong in relation to this finding, further found that the respondent’s conduct constituted indirect discrimination on the basis of sex.[159] His Honour held that the refusal to countenance part-time work involved the imposition of an unreasonable condition that was likely to disadvantage women because of their disproportionate responsibility for the care of children.[160] In making this finding, Driver FM cited with approval[161] the decision of HREOC in Hickie v Hunt & Hunt[162] (‘Hickie’).

In Hickie, the complainant had taken maternity leave shortly after having been made a contract partner at the respondent law firm. She complained of a range of less favourable treatment during the period of her maternity leave and following her return to work on a part-time basis. Relevantly, an area of her practice was removed from her on the basis that it could not be managed working part-time. Commissioner Evatt stated ‘I find that the condition or requirement that Ms Hickie work full-time to maintain her position was a condition or requirement likely to disadvantage women’.[163] The respondent’s conduct was found to constitute indirect sex discrimination.

In Mayer v Australian Nuclear Science & Technology Organisation,[164] (‘Mayer’) the applicant similarly wanted to work part-time following a period of maternity leave. The applicant had worked on a full-time basis prior to her maternity leave. Driver FM held as follows:

The test under s.5(2) is whether a condition, requirement or practice has, or is likely to have, the effect of disadvantaging a person of the same sex as the aggrieved person; in this case, a woman. In this case the relevant condition or requirement was that the applicant work full-time. Such a condition or requirement is likely to have the effect of disadvantaging women because, as I have noted, women have a greater need for part-time employment than men. That is because only women get pregnant and because women bear the dominant responsibility for child rearing, particularly in the period closely following the birth of a child. ...In this case discrimination under s.5(2) is established because the respondent insisted upon the applicant working full-time against her wishes.[165]

One exception to this general line of authority is the decision of Raphael FM in Kelly v TPG Internet Pty Ltd[166] (‘Kelly’). In this case, the applicant complained that the refusal by her employer to make available part-time work upon her return from maternity leave amounted to indirect sex discrimination. Raphael FM discussed, in particular, the decisions in Hickie and Mayer, and distinguished them from the case before him. His Honour noted that in both of those cases the applicants had been refused benefits that had either been made available to them (as in Hickie) or that were generally available (as in Mayer). In the present case, there were no part-time employees in managerial positions employed with the respondent. His Honour stated:

Section 5(2) makes it unlawful for a discriminator to impose or propose to impose a condition requirement or practice but that condition requirement or practice must surely relate to the existing situation between the parties when it is imposed or sought to be imposed. The existing situation between the parties in this case is one of full time employment. No additional requirement was being placed upon Ms Kelly. She was being asked to carry out her contract in accordance with its terms.[167]

In those circumstances, his Honour held that the behaviour of the respondent constituted a refusal to provide the applicant with a benefit. It was not the imposition of a condition or requirement that was a detriment: ‘there was in reality no requirement to work full-time only a refusal to allow a variation of the contract to permit it’.[168]

The correctness of the decision in Kelly was considered by Driver FM in Howe v Qantas Airways Ltd[169] (‘Howe’). Driver FM disagreed with Raphael FM in Kelly, on this issue, albeit in obiter comments, for reasons which included the following. First, if Raphael FM was correct in distinguishing the earlier authorities, an employer who consistently provides part-time work but then later refuses to do so can be liable under the SDA (as in Mayer) but an employer who has a policy or practice of never permitting reduced working hours cannot (as in Kelly). This would be an odd result. Second, in characterising the refusal of the respondent to allow the applicant to work part-time as a refusal to confer a benefit or advantage, Raphael FM conflated the notion of ‘disadvantage’ in s 5(2) of the SDA with the imposition of a ‘condition, requirement or practice’. They are separate elements of s 5(2) and must remain so if the provision is to operate effectively. Third, Raphael FM did not consider whether the respondent’s insistence on full-time work may have constituted a ‘practice’ within the meaning of s 5(2) irrespective of whether it was a ‘condition or requirement’.[170]

In State of New South Wales v Amery[171] (‘Amery’) the respondents were employed by the NSW Department of Education as temporary teachers. They alleged that they had been indirectly discriminated against on the basis of their sex under ss 24(1)(b)[172] and 25(2)(a)[173] of the Anti-Discrimination Act 1977 (NSW) (‘ADA’) because, as temporary teachers, they were not entitled to access higher salary levels available to their permanent colleagues for the same work.

Under the Teaching Services Act 1980 (NSW) (the ‘Teaching Act’), the teaching service is divided into permanent employees and temporary employees. Different conditions attach to each under the Act. As well, under the award[174] permanent teachers are paid more than temporary teachers. The award contains 13 pay scales for permanent teachers and 5 for temporary teachers; the highest pay scale for temporary teachers is equivalent to level 8 of the permanent teachers scale.

The respondents alleged that the Department imposed a ‘requirement or condition’[175] on them that they have permanent status to be able to access higher salary levels.

Different approaches were taken to this issue by members of the High Court.

Gleeson CJ agreed with Beazley JA in the NSW Court of Appeal[176] that the relevant conduct of the Department was its practice of not paying above award wages to temporary teachers engaged in the same work as their permanent colleagues. His Honour said that it was in this sense that the Department ‘required’ the respondents to comply with a condition of having a permanent status in order to have access to the higher salary levels available to permanent teachers.[177]

Gummow, Hayne and Crennan JJ (Callinan J agreeing)[178] held that the respondents had not properly identified the relevant ‘employment’.[179] Their Honours held that ‘employment’ referred to the ‘actual employment’ engaged in by a complainant. They stated that:

the term ‘employment’ may in certain situations, denote more than the mere engagement by one person of another in what is described as an employer-employee relationship. Often the notion of employment takes its content from the identification of the position to which a person has been appointed. In short, the presence of the word ‘employment’ in s 25(2)(a) prompts the question, ‘employment as what?’[180]

As different conditions attached to permanent and temporary teachers under the Teaching Act, their Honours held that the respondents were not employed as ‘teachers’ but as ‘casual teachers’.[181] Hence, the alleged requirement or condition was ‘incongruous’.[182]

Kirby J dissented. He described the approach of Gummow, Hayne and Crennan JJ as ‘narrow and antagonistic’ and inconsistent with the beneficial and purposive interpretive approach to remedial legislation.[183] In particular, Kirby J stated that the majority’s approach gives ‘considerable scope [to] employers to circumvent ... [discrimination legislation] ... [A]ll that is required in order to do so is for an employer to adopt the simple expedient of defining narrowly the “employment” that is offered’.[184] His Honour held that the Department imposed a requirement or condition of ‘permanent employment’ on the respondents in order to gain access to the higher salary levels.[185] This was because the terms on which the Department offered employment to the respondents included the ‘relevant terms specifically addressed to non-permanent casual supply teachers ... [which] terms discriminated against the respondents’.[186] His Honour also reached a different conclusion to Gleeson CJ on the issue of reasonableness on the facts of the case.[187]

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4.3.2 Disadvantaging

A condition, requirement or practice must have, or be likely to have, the effect of ‘disadvantaging’ persons of the same sex or marital status as the aggrieved person, or persons who are also pregnant or potentially pregnant. The term ‘disadvantaging’ is not defined in the SDA and there is little discussion of the concept in the case law.

As discussed in 4.3.1 above, women who have encountered problems when seeking to work part-time upon return to work from maternity leave have successfully argued that a requirement to work full-time is a condition, requirement or practice that has the effect of disadvantag[188] women. The courts have accepted, sometimes as a matter of judicial notice without any specific evidence, that this disadvantage stems from the fact that women are more likely to require part-time work to meet their family responsibilities.

The seminal statement to this effect comes from the decision of Commissioner Evatt in Hickie v Hunt & Hunt:[189]

Although no statistical data was produced at the hearing, the records produced by Hunt and Hunt suggest that it is predominantly women who seek the opportunity for part time work and that a substantial number of women in the firm have been working on a part time basis. I also infer from general knowledge that women are far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities. In these circumstances I find that the condition or requirement that Ms Hickie work full-time to maintain her position was a condition or requirement likely to disadvantage women.

This passage was cited with approval in Escobar v Rainbow Printing Pty Ltd (No 2)[190] and in Mayer v Australian Nuclear Science & Technology Organisation (‘Mayer’).[191] In Mayer, Driver FM went on to state, ‘I need no evidence to establish that women per se are disadvantaged by a requirement that they work full-time’.[192]

In Howe v Qantas Airways Ltd[193] (‘Howe’), the issue of whether courts could continue to take judicial notice of this ‘disadvantage’ in the absence of any evidence was raised by the respondent. Driver FM stated (albeit in obiter comments) that ‘it is open to the Court to take judicial notice that as a matter of common observation, women have the predominant role in the care of babies and infant children...and that it follows from this that any full-time work requirement is liable to disproportionately affect women’.[194] Driver FM went on to state:

The point is that the present state of Australian society shows that women are the dominant caregivers to young children. While that position remains (and it may well change over time) s 5(2) of the SDA operates to protect women against indirect sex discrimination in the performance of that care giving role.[195]

The Commonwealth Sex Discrimination Commissioner appeared as amicus curiae in Howe.[196] In relation to this issue she submitted that the court could, at the present time, continue to take judicial notice of the fact that a requirement to work full time and without flexibility disadvantages, or is likely to disadvantage, women. She further submitted that that fact is so ‘notorious’ that it could be judicially noticed without further inquiry.

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4.3.3 Reasonableness

Section 7B(2) identifies matters that are to be taken into account in determining reasonableness. It is not an exhaustive definition. It is clear from the authorities in relation to ‘reasonableness’ that all of the circumstances of a case should be taken into account. The onus of establishing that the requirement or condition is reasonable rests on the respondent (s 7C).

The following passage from the decision of Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs & Trade v Styles[197] has been described as the ‘starting point’[198] in determining reasonableness:

the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.[199]

The following propositions can be distilled in relation to ‘reasonableness’ for the purposes of s 7B of the SDA:

In Escobar v Rainbow Printing Pty Ltd (No 2),[204] (‘Escobar’), while not expressly referring to s 7B(2), Driver FM considered some matters relevant to the reasonableness of the requirement or condition. As discussed above (see 4.2.5 and 4.3.1), this matter concerned an employer’s refusal of a request to work part-time from an employee returning from maternity leave. Driver FM found that the respondent’s ‘refusal ... to countenance the possibility of part-time employment for the applicant’, and his subsequent dismissal of her on that basis,[205]s not reasonable.205 In arriving at this conclusion, his Honour found the following factual[206]tters persuasive:206

In Hickie v Hunt & Hunt,[208] where part of the complainant’s practice area was taken away when she returned to work on a part-time rather than full-time basis, Commissioner Evatt found that ‘the removal of her practice can be regarded as a consequence of her inability to meet a requirement that she work full-time’.[209] Such a requirement was ‘not reasonable having regard to the circumstances of the case’.[210] The Commissioner went on to say:

Hunt and Hunt have accepted that women should be able to work part time after their maternity leave. In that case, they should have approached Ms Hickie’s problem by seeking alternative solutions which would have enabled her to maintain as much of her practice as possible. The firm should have considered seriously other alternatives. Ms Hickie would return in a few weeks and she was willing to work on urgent matters. Part of her practice could have been preserved for her with other arrangements.[211]

In Mayer v Australian Nuclear Science & Technology Organisation,[212] the refusal of the applicant’s request to work part-time was also found to be unreasonable. Driver FM found that the evidence made it clear that there was in fact part-time work available for Ms Mayer. This work was ‘different work to that which the applicant had been doing, but it was important work that the applicant was able to do and that needed to be done’.[213] Consequently, the respondent’s refusal to accommodate the applicant’s request for part-time work was not reasonable:

Ms Bailey identified work that could properly occupy Ms Mayer’s time until 3 January 2003 for two days each week. At a minimum, therefore, the respondent should have offered Ms Mayer employment for two days per week for the balance of her contract until 3 January 2003.

The work that Ms Mayer could have performed part-time would have been discrete project work, rather than the performance of her previous functions. Ms Mayer gave evidence of important projects that she could have assisted on. Ms Bailey in her e-mail, stated that there were ‘many projects’ that Ms Mayer could work on. In my view, with a little imagination the respondent could, if it had wished to, found useful work for Ms Mayer to do for three days a week until 3 January 2003.

... [T]he respondent’s effort to find part-time work for the applicant was inadequate. The respondent’s refusal of part-time work for three days per week was not reasonable.[214]

His Honour found, however, in respect of the applicant’s proposal for job-sharing or working partly from home:

It was reasonable for the respondent to refuse Ms Mayer’s proposal for job sharing of her role, or for her to work partly from home... Ms Mayer’s role required both a consistency of approach and regular interaction with other staff. The effective performance of that role would have been problematic if Ms Mayer had worked partly from home, or had shared her duties with another employee. It was clear from Ms Mayer’s own evidence that she would not have been able to work full-time from home while caring for her child.[215]

As in Escobar, his Honour did not make express reference to s 7B(2) when expressing his conclusions on reasonableness.

In New South Wales v Amery,[216] the respondents were employed by the Department of Education as temporary teachers and alleged that they had been indirectly discriminated against on the basis of their sex under ss 24(1)(b) and 25(2)(a) of the Anti-Discrimination Act 1977 (NSW) (‘ADA’) because, as temporary teachers, they were not entitled to access higher salary levels available to their permanent colleagues for the same work (see discussion at 4.3.1 above).

Gleeson CJ (Callinan and Heydon JJ agreeing)[217] was the only member of the majority to consider the issue of reasonableness. His Honour stated that the question of reasonableness in this case was not whether teaching work of a temporary teacher has the same value of a permanent teacher, but ‘whether, having regard to their respective conditions of employment, it is reasonable to pay one less than the other’.[218]

In light of the ‘significantly different’ incidents of employment for permanent and temporary teachers, in particular the condition of ‘deployability’, his Honour held that it was reasonable for the Department to pay permanent teachers more.[219] Furthermore, his Honour held that, it would be impracticable for the Department to adopt the practice of paying above award wages to temporary teachers.[220]

Although compliance with an award does not provide a defence under the ADA, Gleeson CJ held that the ‘industrial context’ may be a relevant circumstance in determining ‘reasonableness’.[221] It is relevant to note that the ADA differs from the SDA in this regard: under ss 40(1)(e) and (g) of the SDA direct compliance with an award provides a complete defence.

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4.3.4 The relationship between ‘direct’ and ‘indirect’ discrimination

In Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission,[222] a matter involving a complaint arising under the pre-1995 provisions, Sackville J considered the relationship between ‘direct sex discrimination’ under s 5(1) and ‘indirect discrimination’ under s 5(2).

His Honour noted that s 5(2) in both its pre-1995 form and post-1995 form ‘addresses “indirect sex discrimination” in the sense of conduct which, although “facially neutral”, has a disparate impact on men and women’.[223] Citing Waters v Public Transport Corporation[224] and Australian Medical Council v Wilson[225] his Honour concluded that ‘[i]t seems to have been established that subss 5(1) and (2) are mutually exclusive in their operation’.[226]

In Mayer v Australian Nuclear Science & Technology Organisation,[227] a matter involving a complaint arising under the post-1995 provisions, Driver FM also considered the relationship between the direct and indirect provisions of s 5 of the SDA and found them to be mutually exclusive. His Honour stated:

[Section] 5(2) does not depend on s 5(1) at all to give it meaning. The opening words of both ss 5(1) and 5(2) are the same. The distinction between the two sections is simply that s 5(1) deals with direct discrimination and s 5(2) with indirect discrimination. The provisions are therefore mutually exclusive. The test under s 5(2) is whether a condition, requirement or practice has, or is likely to have, the effect of disadvantaging a person of the same sex as the aggrieved person; in this case, a woman. In this case the relevant condition or requirement was that the applicant work full-time. Such a condition or requirement is likely to have the effect of disadvantaging women because, as I have noted, women have a greater need for part-time employment than men. That is because only women get pregnant and because women bear the dominant responsibility for child rearing, particularly in the period closely following the birth of a child. Discrimination under s 5(2) is either established or not by reference to its own terms, not by reference to s 5(1). In this case discrimination under s 5(2) is established because the respondent insisted upon the applicant working full-time against her wishes. The issue of family responsibilities is only relevant insofar as it establishes that women tend to be disadvantaged by such a requirement.[228]

The same reasoning would presumably be applied to the direct and indirect discrimination provisions relating to the grounds of marital status and pregnancy.

This does not, however, prevent applicants from pleading direct and indirect discrimination in the alternative.[229]

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4.4 Special Measures Under the SDA

Section 7D of the SDA provides that actions which constitute ‘special measures’ are not discriminatory. This provision ‘recognises that certain special measures may have to be taken to overcome discrimination and achieve equality’.[230]

Section 7D of the SDA states:[231]

7D Special measures intended to achieve equality

(1) A person may take special measures for the purpose of achieving substantive equality between:

  1. men and women; or
  2. people of different marital status; or
  3. women who are pregnant and people who are not pregnant; or
  4. women who are potentially pregnant and people who are not potentially pregnant.

(2) A person does not discriminate against another person under section 5, 6 or 7 by taking special measures authorised by subsection (1).

(3) A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

  1. solely for that purpose; or
  2. for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4) This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

Section 7D was considered for the first time by the Federal Court in Jacomb v Australian Municipal Administrative Clerical & Services Union[232] (‘Jacomb’). In this case, the rules of a union provided that certain elected positions on the branch executive and at the state conference were available only to women. The male applicant alleged that the rules discriminated against men and were unlawful under the SDA. The essence of the applicant’s objection to the rules was that the union policy of ensuring 50 per cent representation of women in the governance of the union (which was the basis of the quotas within the rules) exceeded the proportional representation of women in certain of the union branches. Consequently, women were guaranteed representation in particular braches of the union in excess of their membership to the disadvantage of men. The union successfully defended the proceedings on the basis that the rules complained of were special measures within the meaning of s 7D of the SDA.

The special measures provision is limited, in its terms, by a test as to purpose. Section 7D(1) provides that a person may take special measures for the purpose of achieving substantive equality between, amongst others, men and women. The achievement of substantive equality need not be the only, or even the primary purpose of the measures in question (s 7D(3)). It was accepted by Crennan J in Jacomb that the test as to purpose is, at least in part, a subjective test.[233] Crennan J stated ‘it is the intention and purpose of the person taking a special measure, which governs the characterisation of such a measure as non-discriminatory’.[234] In applying this test, Crennan J was satisfied that the union believed substantive equality between its male and female members had not been achieved and that addressing this problem required women being represented in the governance and high echelons of the union so as to achieve genuine power sharing. Crennan J commented that it ‘was clear from the evidence that part of the purpose of the rules was to attract female members to the union, but this does not disqualify the rules from qualifying as special measures under s 7D (subs 7D(3))’.[235]

Section 7D also requires the court to consider the special measure objectively. Crennan J appeared to accept the submission of the Sex Discrimination Commissioner (appearing as amicus curiae[236]) that s 7D requires the court to assess whether it was reasonable for the person taking the measure to conclude that the measure would further the purpose of achieving substantive equality.[237] In making this determination, the Sex Discrimination Commissioner submitted that the court must at least consider whether the measure taken was one which a reasonable entity in the same circumstances would regard as capable of achieving that goal. The court should not substitute its own decision. Rather it should consider whether, in the particular circumstances, a measure imposed was one which was proportionate to the goal. Crennan J stated that she was satisfied, on the evidence, that the union rules were a reasonable special measure when tested objectively.[238]

Section 7D(4) provides that the taking, or further taking, of special measures for the purpose of achieving substantive equality is not permitted once that purpose has been achieved. This gives rise to the question: when can it be said that measures are no longer authorised because their purpose has been achieved? Crennan J stated:

Having regard to the inflexibility of the quotas and the express provisions of subs 7D(4), monitoring is important to ensure the limited impact of such measures on persons in the applicant’s position. The rules have only been utilised once and there was evidence that elections to the relevant positions were for four-year terms. Accordingly, it is too soon to find that the special measure is no longer needed or that rules 5 and 9 are deprived of their character as a special measure because they have been utilized once. However, rules 5 and 9 cannot remain valid as a special measure beyond the ‘exigency’ (namely the need for substantive equality between men and women in the governance of the union) which called them forth. [239]

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4.5 Areas of Discrimination

The bulk of the claims that have been brought under the SDA have related to employment. However, the provisions in Part II, Div