Company car allocation - ground for discrimination

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Company car allocation - ground for discrimination

A local council has been found to have unlawfully discriminated against 5 women employees on the ground of sex, by allocating more company vehicles to male staff than female staff.

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A local council has been found to have unlawfully discriminated against 5 women employees on the ground of sex, by allocating more company vehicles to male staff than female staff. See Bonella & Ors -v- Wollongong City Council[2001] NSWADT 194.

A Full Bench of the Administration Appeals Tribunal (NSW) heard the five female applicants allege that their employer, Wollongong City Council (the respondent), unlawfully discriminated against them on the ground of sex when determining which employees should be permitted to have private use of motor vehicles owned by the respondent.

Claim for economic loss rejected

There were two reasons why damages for economic loss were not be awarded. The Full Bench stated:

'First, we cannot be satisfied that if the respondent had not discriminated against the complainants on the ground of sex that the complainants would have been allocated a motor vehicle with private use rights.

...

Our second reason for declining to award damages for economic loss is an alternative to the first reason. If the first reason is incorrect, and if the complainants have in fact suffered loss of private use rights as a result of the respondent's contravention of the Act, we believe that, except in the case of Ms Bonella, there is no evidence of actual quantifiable loss.'

General damages for humiliation and stress

The Full Bench did not finally determine the claim re humiliation and stress:

'The complainants also sought general damages for humiliation and stress. All of the complainants gave evidence about the negative impact which the operation of the motor vehicle policy had had upon them. ...

If the provisions of the Industrial Relations Act 1996are invoked by the respondent it may be possible to devise a non-discriminatory policy which takes into account the legitimate interests of employees with existing private use rights and which results in financial consequences for the respondent which are not unreasonable. If the matter can be dealt with in an enterprise agreement, concerns about equal remuneration for women are catered for by section 35(1)(a) of the Industrial Relations Act 1996 which directs the Commission not to approve an agreement unless satisfied that it complies with the Anti-Discrimination Act 1977. If agreement cannot be reached, and an award becomes necessary, section 23 of the Industrial Relations Act 1996 will ensure that men and women doing comparable work will receive equal remuneration and other conditions of employment.

...

Consequently, ... we decline to make the order sought at this stage. ...The complainants will need to address the concerns we have raised concerning our power to make the order sought. In order to ensure that there is some finality to this litigation, the leave granted to the complainants should not be indefinite. That leave should remain open until 16 weeks after the date of this decision. This grant of leave may be exercised by the complainants writing to the Registrar, within the designated period.'

Decision for complainants

The Full Bench determined:

'We are satisfied that it is possible for the complainants to argue that they have suffered a "detriment" by reason of the respondent's refusal of their applications for the allocation of a motor vehicle with private use rights. Whilst we have concluded that the complainants have been denied a "benefit" because of the failure of the respondent to allocate them motor vehicles with private use rights, it was also a "detriment" to them to have their applications refused when other employees working at the level of Assistant Manager were successful in their applications for private use rights.'

Shortcomings with legislation

Two shortcomings with the legislation were pointed out:

'The facts of this case demonstrate two shortcomings in the procedural scheme established by Part 9 of the Act. First, there is no capacity for a person to lodge a complaint of on-going discrimination. Any complaint lodged with the President can only encompass conduct which occurred prior to the actual date of the complaint. When it is alleged that a daily continuation of a course of conduct constitutes on-going unlawful discrimination, the current scheme appears to demand that a fresh complaint be lodged each day if the Tribunal is to have jurisdiction to consider the on-going discrimination. That is clearly untenable.

Secondly, the Act contains no equivalent to section 46 PO(3) of the Human Rights and Equal Opportunity Commission Act 1986which, in proceedings under Commonwealth anti-discrimination legislation, permits an application to be made to the Federal Court, or the Federal Magistrates Court, concerning allegations which "arise out of the same (or substantially the same) acts, omissions or practices" that were the subject of the initial complaint to the Human Rights and Equal Opportunity Commission.

...

Consequently, in order to succeed in this case the complainants must be able to prove a contravention of the Act which occurred in the six month period prior to the date upon which they lodged their complaints with the President of the ADB, namely 5 September 1996. ... Discrimination on the ground of sex is defined in section 24(1) of the Act.

...

If read literally, ... section 24(1) injects into the concept of indirect discrimination an element which was not referred to by counsel, and which is at odds with all of the leading cases. The High Court has considered the concept of indirect discrimination in two cases: Australian Iron and Steel Pty Ltd v Banovic(1989) 168 CLR 165 and Waters v Public Transport Corporation(1991) 173 CLR 349. The Full Court of the Federal Court has most recently considered the concept in Commonwealth Bank v Human Rights and Equal Opportunity Commission('Finance Sector Union Case') (1997) 1311 FCA. In all of these cases it is expressly or impliedly acknowledged that there is an important distinction between the concepts of direct and indirect discrimination. ...

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter.

...

[Conclusion]

Our conclusion that section 24(1) should not be read literally has been reached because to do so in the light of the history of the 1994 amendments to the Act would be to give that provision a grammatical meaning which does not give effect to the purpose of the legislation. It is reasonable to expect that if the legislature had wished to change the concept of indirect discrimination, as it had been explained by the High Court in both Banovic and Waters, it would have done so explicitly. It is also reasonable to expect that the responsible Minister, the Attorney-General, would have referred to such a significant change in his second reading speech. The policy which underpins laws prohibiting indirect discrimination was explained by Sackville J in Australian Medical Council v Wilson(1996)  FCA 591.

...

We acknowledge that our rejection of a literal construction of section 24(1) requires us to regard the words "on the ground of sex ", when used for the second time, as mere surplussage, and therefore of no effect, when considering a case of indirect discrimination under section 24(1)(b). Whilst, as a general principle, courts and tribunals are not at liberty to consider words in a statute to be superfluous (see D Pearce and R Geddes, 'Statutory Interpretation in Australia', 5th ed. Sydney: Butterworths, 2001 at page 36), McHugh JA acknowledged in Kingston v Keprose Pty Ltd (1989) 11 NSWLR 404 at 422, that there are occasions upon which "words must be omitted to avoid absurdity"'.

Base group

The requirement to establish a base group was explained:

'In order to make the comparison required by this second element of indirect discrimination, it is necessary to carefully select the base group or pool which is to be used for the purpose of contrasting gender compliance with the requirement or condition. The pool is all of the people to whom the challenged requirement or condition is applied, or is potentially applied. In a sex discrimination case this pool or base group is split into gender groups because the purpose of the exercise is to compare female compliance and male compliance with the challenged requirement or condition. ...

As at 26 August 1999, 22 of the 28 male Assistant Managers and 7 of 12 female Assistant Managers had private use rights. This meant that 78.5% of men and 58.3% of women had private use rights. On both 8 December 1999 and 28 February 2000, 22 of the 28 male Assistant Managers and 5 of the 10 female Assistant Managers had private use rights, producing proportions of 78.5% and 50% respectively. By 7 December 2000, 23 of the 30 male Assistant Managers and 5 of the 10 female Assistant Managers.'

Decision and Orders

The complaints lodged by each of the five complainants were substantiated. The Tribunal made the following orders:

  1. Within 28 days of the date of this order the respondent is to pay each of the complainants damages in the sum of $7500.
  2. The complainants are granted leave to approach the Tribunal for an order pursuant to section 113(1)(b)(ii) of the Anti-Discrimination Act 1977 no later than 16 weeks after the date of this order.
Costs

The complainant sought an order for costs against the respondent generally, and against EHABSA for the additional costs associated with its involvement in the case. The combined operation of section 88 of the ADT Act, and the practices which have built up when exercising the costs power under section 114 of the Act, means that it is necessary to demonstrate special circumstances before a costs order will be made. None have been demonstrated in this case. Consequently there will be no order as to costs.

 

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