Indirect discrimination - casual teachers disadvantaged

Cases

Indirect discrimination - casual teachers disadvantaged

The matter in issue was whether the requirement for casual teachers to have permanent status in order to have access to higher salary scales was not reasonable in all the circumstances of the case.

WantToReadMore

Get unlimited access to all of our content.

The matter in issue was whether the requirement for casual teachers to have permanent status in order to have access to higher salary scales was not reasonable in all the circumstances of the case.

The NSW Court of Appeal found that this requirement was discriminatory, breaching the Anti-Discrimination Act 1977(NSW). Compliance with an award pay structure was no defence. The Court upheld the teachers' appeal against the finding of an appellate tribunal and reinstated the decision of the initial tribunal.

Background

The NSW Department of Education employed teachers on both a permanent and casual basis and paid them in accordance with pay scales determined by industrial awards or agreements in place from time to time. These scales differentiated between permanent and casual teachers.

The highest increment on the scale for casual teachers was equivalent to the 8th of 13th increments of the pay scale applicable to permanent teachers.

The appellant female teachers contended they have been discriminated against on the grounds of sex under s.24 Anti-Discrimination Act 1977 (NSW) because, as casual teachers, they could not access the higher salary increments paid to permanent teachers, even though, on their case, they performed work of equal value.

The appellants each brought a claim for damages under the Anti-Discrimination Act in the amount of the difference in the salary they earned as casual teachers and the salary they say they should have been paid but for the discrimination.

The appellants’ claims were upheld by the NSW Administrative Decisions Tribunal.

The Department successfully appealed to the Appeal Panel. The appellants appealed to the Court of Appeal from the decision of the Appeal Panel.

Damages for indirect discrimination

The Court found that there was no error of law in the Tribunal’s decision.

The Court noted that a Tribunal or judicial body misdirects itself if it asks the wrong question. In focussing on the question of work value, the Tribunal did not misdirect itself. The question of work value was pivotal to the way the appellants defined their case.

The NSW Department of Education employed teachers on both a permanent and casual basis and paid them in accordance with pay scales determined by industrial awards or agreements in place from time to time. These scales differentiated between permanent and casual teachers.

The highest increment on the scale for casual teachers was equivalent to the 8th of 13th increments of the pay scale applicable to permanent teachers.

The appellant female teachers contended they have been discriminated against on the grounds of sex under s.24 Anti-Discrimination Act 1977 (NSW) because, as casual teachers, they could not access the higher salary increments paid to permanent teachers, even though, on their case, they performed work of equal value.

The appellants each brought a claim for damages under the Anti-Discrimination Act in the amount of the difference in the salary they earned as casual teachers and the salary they say they should have been paid but for the discrimination.

The appellants’ claims were upheld by the NSW Administrative Decisions Tribunal.

The Department successfully appealed to the Appeal Panel. The appellants appealed to the Court of Appeal from the decision of the Appeal Panel.

Damages for indirect discrimination

The Court found that there was no error of law in the Tribunal’s decision.

The Court noted that a Tribunal or judicial body misdirects itself if it asks the wrong question. In focussing on the question of work value, the Tribunal did not misdirect itself. The question of work value was pivotal to the way the appellants defined their case.

The Court made an order that the teachers were each entitled to interest on the damages awarded provided that the total amount of damages with interest did not exceed $40,000. The respondent was ordered to pay the appellants' costs in the Tribunal and before the Appeal Panel and the costs of the appeal.

The Court noted that the motive for indirect discrimination was irrelevant.

The Court continued - stating that the test of 'reasonableness' in s.24(1)(b) was less demanding than one of necessity, but more demanding than a test of convenience.

Due to amendments in 1994 to the anti-discrimination legislation, the existence of an award or industrial agreement apparently sanctioning the pay scales was no longer a defence.

Dissent

Justice Hodgson dissented. His Honour found, contrary to the majority, that under s.24(1)(b) the relevant requirement or condition was one imposed by the perpetrator, in this case, the Department. Neither the enterprise agreement nor the award was itself a requirement made by the Department. Therefore, the question was not whether any discrimination contained in the enterprise agreement or the award was not reasonable, but whether the Department’s following of the enterprise agreement and the award in paying teachers was not reasonable.

AMERY & ORS. v. STATE OF NEW SOUTH WALES (DIRECTOR-GENERAL NSW DEPARTMENT OF EDUCATION AND TRAINING) [2004] NSWCA - Beazley and Hodgson JJA and Cripps AJA - 15 November 2004
 
Related

Indirect discrimination test finds relocation 'reasonable'
 
Victorian department ordered to pay $161,307 for indirect discrimination
 
SA casual clerks win landmark right to permanency
 

 

Post details