June 2006 page 44
Human Rights: Implications for pay equity in State of NSW v Amery
By JOANNA HEMINGWAY
Joanna Hemingway is a lawyer with the Human Rights and Equal Opportunity Commission in Sydney.
THE LONG-AWAITED DECISION in State of NSW v Amery1 has now been handed down. In cases where the conditions of employment are not created by statute, it remains to be seen how the approach of Justices Gummow, Hayne and Crennan will limit claims of indirect discrimination in employment; in particular, whether employers may be able to circumvent discrimination law by narrowly defining employment so that a discriminatory requirement is an element of a particular employment.2
This is problematic where pay equity is in issue, because it precludes comparison of the conditions afforded to employees who are, broadly speaking, engaged in the same work.
Background
The respondents alleged that the Department of Education had indirectly discriminated against them on the basis of their sex in breach of the Anti-Discrimination Act 1977 (NSW) (ADA). They alleged that by reason of their family responsibilities – the burden of which falls disproportionately on women – they were unable to meet the condition of “deployability” to be eligible for employment as permanent teachers. This in turn prevented them from accessing the higher salary levels paid by the Department to their permanent colleagues engaged in the same work.
Upholding the appeal, the majority of the High Court dismissed the respondents’ claim. Kirby J dissented.
Teaching Services Act
The Teaching Services Act 1980 (NSW) (the Teaching Act) sets out the scheme for the employment of teachers by the Department. It divides the teaching service into permanent and temporary employees,3 imposing different conditions on each. Significantly, permanent teachers must be able to be redeployed as and when required by the Department.
Industrial award
The dichotomy between permanent and temporary employees created by the Teaching Act is the basis of the differential pay scales adopted in the relevant industrial award (the award).4 The award provides 13 pay scales for permanent teachers and five for temporary. The highest pay scale for temporary teachers is equivalent to level 8 of the permanent teachers scale.
Relevant provisions of the ADA
Section 25 of the ADA proscribes sex discrimination in the terms on which the employer offers employment (s.25(1)(c)) and the terms and conditions of employment (s.25(2)(a)).
Section 24(1)(b) defines sex discrimination as including indirect discrimination, 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 ... , 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, ... 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.”
Issues on appeal
Two issues were before the High Court:
- what was the “requirement or condition” imposed by the Department for the purposes of s.24(1)(b) of the ADA; and
- was any such requirement or condition “reasonable”?
What was the ‘requirement or condition’?
The respondents alleged that the requirement or condition was to “have permanent status”,5 permanent status being a condition of access to the higher salary levels.
Different approaches were taken to this issue.6 Gleeson CJ held that, in identifying the requirement or condition, the conduct of the Department had to be differentiated from that of the parliament in creating a dualist teaching service, and the Industrial Relations Commission in imposing differential pay scales in the award, as it was only the Department’s conduct which was sought to be impugned by the respondents.7
The question that therefore had to be answered was what was the relevant conduct of the Department in imposing the requirement of permanency? His Honour agreed with Beazley JA in the NSW Court of Appeal8 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.9
Gummow, Hayne and Crennan JJ (Callinan J agreeing)10 rejected the respondents’ characterisation of the requirement or condition on the basis that they had not properly identified the relevant “employment” for the purposes of s.25(2)(a) of the ADA.11 Their Honours held that “employment” in s.25(2)(a) referred to the “actual employment” engaged in by a complainant, not employment in the general.12 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?’”13
Consequently, their Honours held that, having regard to the significantly different conditions imposed on permanent and temporary employees under the Teaching Act, the respondents were not employed as “teachers” but as “casual [or temporary] teachers”.14 This rendered the alleged requirement or condition incongruous.15
Kirby J rejected the approach adopted by Gummow, Hayne and Crennan JJ as being “narrow and antagonistic” and inconsistent with the beneficial and purposive approach required to be taken to remedial legislation such as the ADA.16
In particular, his Honour suggested that their approach to the characterisation of the respondents’ employment gives “considerable scope [to] employers to circumvent ... [the ADA] ... All 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”.17
His Honour held (deciding the matter under s.25(1)(c)) that the Department required the respondents to have permanent status to access the higher salary levels.18
This was because the terms on which the Department offered employment to the respondents for the purposes of s.25(1)(c) included the “relevant terms specifically addressed to non-permanent casual supply teachers ... [, which] terms discriminated against the respondents”.19
Was the requirement reasonable?
Gleeson CJ (Callinan and Heydon JJ agreeing)20 was the only member of the majority to consider the issue of reasonableness. His Honour stated that in the present context, the question of reasonableness was not about whether the teaching work of a temporary teacher has the same value as a permanent teacher’s, but “whether, having regard to their respective conditions of employment, it is reasonable to pay one less than the other”.21
In determining that question, his Honour agreed with Hodgson JA in the NSW Court of Appeal that, having regard to the “significantly different” incidents of employment for permanent and temporary teachers, and in particular the condition of deployability, it was reasonable for the Department to pay permanent teachers more than temporary teachers.22 His Honour also noted that, were the Department to adopt the practice of paying above-award wages, it would be impracticable to limit such payments to one particular class of teachers.23
Gleeson CJ also held that, although compliance with an award does not provide a complete defence under the ADA, the industrial context in which the alleged unlawful conduct occurs (in this case the provisions of the award) is a relevant circumstance in determining reasonableness under s.24(1)(b).24
Kirby J held that the requirement or condition imposed by the Department was not reasonable as there was nothing in the Teaching Act which justified the significant pay differential (approximately 20 per cent).25 Rather, the Department had “disabled itself from adjusting the salaries of casual teachers according to the actual value of their work”26 by taking an inflexible approach to the requirement of permanency as a prerequisite to access the higher salary scales.27 While a departure from the terms of the award would create a measure of disruption to the Department, his Honour held that that did not render the requirement reasonable.28
‘Deployability’ requirement discriminatory?
It might be noted that the respondents did not directly challenge the requirement of ‘deployability’, which appears to have been the crux of the alleged discrimination in this case.29 While the respondents may not have been able to challenge the condition of deployability under the ADA, it may have been open to them to have argued that the requirement constituted indirect discrimination contrary to the SDA, and was therefore invalid by virtue of s.109 of the Constitution.
ENDNOTES
1. [2006] HCA 14.
2. Ibid [138] (Kirby).
3. Temporary teachers then fall into two categories: short-term casuals (who fill in for ten days of less), and supply casuals (who fill in for teachers on extended leave). The respondents were all supply casuals.
4. The Crown Employees (Teachers and Related Employees) Salaries and Conditions Award.
5. Ibid [17] (Gleeson CJ) and [51] (Gummow, Hayne and Crennan JJ).
6. Heydon J did not did not find it necessary to decide what the requirement or condition was, deciding the matter on the basis of reasonableness: [210].
7. Ibid [17], [25].
8. Amery & Ors v State of New South Wales (Director General NSW Department of Education and Training) [2004] NSWCA 404.
9. [2006] HCA 14, [17].
10. Ibid [205].
11. Ibid [69], [78].
12. Ibid [68].
13. Ibid.
14. Ibid.
15. Ibid [69].
16. Ibid [138].
17. Ibid [137].
18. Ibid [142].
19. Ibid.
20. Ibid [203] (Callinan J) and [210] (Heydon J).
21. Ibid [20].
22. Ibid [19].
23. Ibid [21], [24].
24. Ibid [22]. Note that the ADA differs from the Commonwealth Sex Discrimination Act 1984 (SDA) in this regard, as under ss.40(1)(e) and (g) of the SDA, compliance with an award provides a complete defence.
25. Ibid [154]-[158].
26. Ibid [163] (emphasis added).
27. Ibid [162].
28. Ibid [172].
29. Ibid [6] (Gleeson CJ).
