Casuals discrimination opens door to massive Govt payout

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Casuals discrimination opens door to massive Govt payout

The NSW Education Department could have to pay nearly a quarter of a million dollars in backpay after a ruling today that it was guilty of breaching the state’s Anti-Discrimination Act by indirectly discriminating against women teachers via their employment status - but that payout applies to only 13 of the state’s 28,000 casual teachers.

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The NSW Education Department could have to pay nearly a quarter of a million dollars in backpay after a ruling today that it was guilty of breaching the state’s Anti-Discrimination Act by indirectly discriminating against women teachers via their employment status - but that payout applies to only 13 of the state’s 28,000 casual teachers.

The Administrative Decisions Tribunal ruling that the requirement of permanency to achieve higher pay was indirectly discriminatory because the overwhelming majority of casual teachers were women could mean the Government will face a massive claim from others who can argue similar disadvantage.

NSW Teachers’ Federation President Sue Simpson told WorkplaceInfo the union would not make a decision on a ‘definitive strategy’ about whether to pursue further claims until it had a chance to consult on the decision. But she said when the Federation was negotiating with the Government for pay equity for casuals during wage negotiations last year, it had been told there was a limited bucket of funds, and increasing their wages would be at the expense of permanent teachers getting the 4% public sector wage rise.

In those negotiations, agreement was reached to phase in improvements, but Simpson said the going since then had been slow, and issues were emerging in the implementation.

She congratulated the teachers for their persistence and courage and said the decision – ‘one of the most important concerning discrimination against women in employment’ – vindicated the Federation’s stance that casual teachers had been grossly exploited.

The Department of Education told WorkplaceInfo it was in the process of analysing the decision, and was awaiting the advice of its senior counsel as to what steps it would take next.

The case was first lodged with the NSW Anti-Discrimination Board in 1995, when 14 long-serving teachers claimed they were underpaid having regard to the duties they performed and the seniority they had established as employees. This was because as casuals they could reach only step 8 on a pay scale of 13 available to permanent teachers under industrial agreements, despite performing work of equivalent standard and value as their permanent colleagues.

The women teachers also said the policy was discriminatory because prior to engaging in casual employment, they were employed as permanent staff at the higher levels of remuneration. They had resigned in response to family responsibilities, and argued they had effectively been precluded from achieving permanent status again because of the limitations on travel and career that those family responsibilities have entailed.

Attempts at reconciliation were unsuccessful, and the matter was referred to the Equal Opportunity Tribunal. One subsequently withdrew her complaint, but the others continued the case, funded by the NSW Teachers’ Federation.

Statistics presented in hearings showed that over a set period there were 79% of men engaged as permanents, compared with 59% of women. ‘It follows that men in the Education and Teaching Service in NSW during the period are more likely to be made permanent staff than women, presumably because men are more able to move to take up permanent positions than women,’ the Tribunal said.

It also noted that in every year for which statistics have been made available four fifths of the casual workforce were female, ‘which tends to support the view that it is more difficult for women than men to obtain permanent status’.

The Tribunal did not deal with the Department’s claims that casuals were needed to supply continuity and flexibility, saying its role was not to decide whether casual staffing arrangements were beneficial for the Department, but whether it was unreasonable to pay women teachers less for doing the same work because of their status.

‘In short, if there is no sensible factor to explain the difference in treatment other than the policy itself then a significant question must arise as to its reasonableness if left unexplained,’ the Tribunal said.

The Department also put forward a work value test, saying casual teachers did not necessarily perform work of equal value. ‘Rather the award and the enterprise agreement take a more absolute approach and prevent long term supply casuals from advancing past step 8 of the salary progression compared to permanent,’ the Tribunal said.

In any case, it said, the teachers had addressed the work value issue with evidence, ‘amply supported’ by almost all the heads of schools called in the case, that they were required to undertake all the duties and responsibilities of permanent staff. Indeed, two of the principals called for the complainants who asserted the fact of equal value, were not cross-examined. The Department’s work value argument was ‘without substance’, the Tribunal said.

The Tribunal also said the Department’s claim the women had chosen to give up permanent work to look after their families ‘missed the point’. ‘It is because they are women that the complainants cannot effectively access the status of permanency,’ it said.

‘It is the rigid operation of the odd, perhaps dated, condition of permanency with respect to female casual supply teachers forced to give up their "permanent" status for family reasons that has served to bring about the discrimination against the complainants in the special circumstances of the complainants before us.

‘The evidence suggests that it is women rather than men, or more precisely the complainants rather than their husbands or partners, who have had to break their career path for family reasons. This in our view is a significant contributor to the unreasonableness of the requirement in the present statutory context.’

The Tribunal ordered the Department pay the women what they had lost because of their casual status over the term of their employment from 8 August, 1994, the date from which awards and agreements had to comply with the Anti-Discrimination Act. Individual payouts ranged from $1,940 to $32,288 and totalled $242,355.79.

The Tribunal left open the issue of costs – while the Teachers’ Federation funded the teachers in the case, it was not directly named itself, so Simpson said she would be consulting legal counsel on whether the union could recoup any money.

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