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High Court of Australia Transcripts |
Last Updated: 16 November 2005
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Sydney No S288 of 2005
B e t w e e n -
THE STATE OF NEW SOUTH WALES
Appellant
and
JOYCE AMERY
First Respondent
LYN BOVARD
Second Respondent
MARGARET DOUGLAS
Third Respondent
JENNY DRURY
Fourth Respondent
LINDA FREEMAN
Fifth Respondent
LEONIE HANCOTT
Sixth Respondent
JACKI IRVINE
Seventh Respondent
DENISE McHUGH
Eighth Respondent
KAREN MORS
Ninth Respondent
CHERYL O’LOAN
Tenth Respondent
MARION PLATT
Eleventh Respondent
MEGAN PURSCHE
Twelfth Respondent
MARCIA SKELTON
Thirteenth Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE
J
CALLINAN J
HEYDON J
CRENNAN
J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 16 NOVEMBER 2005, AT 10.22 AM
(Continued from 15/11/05)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Dr Birch.
MR BIRCH: Your Honours, if I could begin by handing up a document which sets out a formulation of the requirement or condition issue in answer to the question posed by Justice Hayne yesterday, and I have seven copies that I can hand up to the Bench if that will assist.
GLEESON CJ: Thank you.
MR BIRCH: I might also hand up a decision at the same time of Allders v Anstee. Your Honours, what this attempts to do is this, in the three formulations. The first form seeks to integrate into 25(2)(a) the definition in 24(1)(b), and I have done that in a compressed fashion by calling it a 24(1)(b) requirement. The way it approaches the issue is to specify how it is unlawful for an employer to act, namely in requiring an employee to comply with a 24(1)(b) requirement, and then it follows the words of 25(2)(a) in referring to the terms or conditions it affords its employee.
It is a difficult task to integrate the two sections but that, in my submission, does accomplish that and shows how “requirement or condition”, where that is the basis of discrimination, fits into the 25(2)(a) provision. Then I have identified the 24(1)(b) elements by reference to the facts of this case and similar formulations were touched upon yesterday in that regard, and I do not think that that issue alone is controversial. Then the third formulation seeks to apply 25(2)(a) to the facts of this case.
I have used the phrase “a teacher doing regular teaching” to describe the job which is being done. There is the evidence and matters that I touched on yesterday which we rely upon to show that the job is the job of teaching, not the job of being a casual teacher per se or being a permanent teacher. The job of teaching is the same whatever your status is. So being casual or permanent is itself one of the terms or conditions afforded to a teacher.
So if a teacher is doing regular teaching, we then integrate two concepts into the formulation. One is the “requirement or condition”; the other is the terms and conditions that are afforded the teacher. Being eligible for incremental pay rises above the eighth level of the common incremental scale is a part of the terms and conditions afforded a teacher and the requirement that is imposed in a discriminatory fashion is making that conditional upon obtaining a permanent appointment, the 24(1)(b) “requirement or condition”. That is the manner in which we show the facts integrated into the legislative framework.
HAYNE J: Were all of the individual teachers concerned teachers who wished to have a permanent appointment in the Department?
MR BIRCH: Your Honour, the overwhelming number of them had pending applications for permanency. It is my recollection that there could have been one or possibly two respondents who had not made an application for permanency. The manner in which we conducted the case was that having a pending application for permanency was not a critical ingredient but obviously if it was, contrary to the submission we make, then those that did have that application succeed and those that did not would not.
HAYNE J: Thus the sense in which you say in paragraph 1 that “The Department required the respondent to comply with” permanency in the sense in which you say in paragraph 4 that “The respondent does not comply with the requirement” is at least tailored to the particular facts in the cases where those teachers wished to become permanents but wished to become permanents on conditions which the Department could not then or would not then provide.
MR BIRCH: If I could just use a different example and attempt to show how it would fit even those cases where the teachers did not have a pending application. If one imagined, for instance, that the Department offered teachers a certain salary but an increased salary if they had acquired a higher degree, for example, then one could readily say having that higher degree was a requirement or condition of being eligible for the higher salary. It could be the case that there are teachers who are studying for or wishing to and taking steps to attain that higher degree but there could be some who have simply chosen not to pursue it.
One could still say of those teachers, even though they are not actively attempting to fulfil the requirement, that in their position it is still a requirement or condition of them attaining the higher rate. It is simply a requirement or condition which, as a matter of fact, they will never fulfil at any time whereas those who are taking steps will fulfil in due course and that is, we say, a perfect analogy with the present case. Those with pending applications for permanency may well in due course fulfil the condition but they will suffer the discriminatory treatment until they do. Those that do not have a pending application will suffer it indefinitely.
KIRBY J: But they may never get permanency because the restriction on their availability may be just too severe.
MR BIRCH: That is correct, that is a possibility. Your Honours, that is my answer to the questions that were raised yesterday on how we integrate the requirement of permanency into our case in light of the way the Act is drawn.
Can I then turn to the issues of reasonableness which I have largely dealt with in what I have said yesterday. I wish to finish the submissions that I had to make on the question of statutory obligations with this point. Yesterday I addressed the Court as to why, in our submission, the statutory obligations imposed upon permanents are, we say, minor incidents of their tenure as permanent teachers and that they are not matters that would, however viewed, weigh significantly and thus lead to a finding of reasonableness in the Department’s favour.
Could I turn to the second question because
the way in which this issue arose was that the Tribunal looked at the question
of statutory
obligations and the complaint that was made was that the Tribunal
had committed an error by treating them as irrelevant when they
should have
treated them as relevant. I wish to just refer to the Tribunal’s finding
in order to show that that, in our submission,
is not a correct
characterisation. If I could take your Honours to page 1061 in
volume 5, at paragraph 43 - the existence of these
various
statutory obligations was touched upon by the Tribunal in paragraph 41
towards the top of the page as one of the matters
the Department had raised. In
paragraph 43 they turned to them in somewhat more detail and said that:
we are of the view that reference to the differences . . . does not assist the Tribunal in determining the pivotal question of comparative work value –
Those words standing alone might suggest
that they treated them as utterly irrelevant but, in our submission, that is not
correct.
They continue that:
the resolution of the present question does not depend upon an assertion that the women have been discriminated against because their applications for permanency have been refused, but rather whether the work of casual staff equates with that of permanent staff. The statutory requirements are incidents of permanency as are the vagaries of being a casual teacher. The incidents of permanent and non-permanent staff appointments clearly differ under the Teaching Services Act 1980, but none of these incidents, in our view, on the evidence before us –
and if can I just pause
there and say that shows the Tribunal has not dismissed them from their
consideration but has taken them into
its consideration in light of other
evidence –
bear on the question, whether in the performance of their duties in the Teaching Service long term casual supply teachers do work of lesser value than of permanent staff.
I took your Honours yesterday to the
passages in the oral submissions and the written submissions in which these
matters were raised
by the Department as bearing upon work value. So that was
the relevance that they were offered up to the Tribunal as having. What
the
Tribunal did, in our submission, was make a finding of fact that was open to it
that they were so slight as to have no weight
on that issue. That we say was a
perfectly reasonable or permissible finding for the Tribunal to make on that
question.
KIRBY J: That might be right, but in economic terms if you, say, do work of lesser value than of the permanent staff, you do have to take into account the issue of availability, capacity to be deployed. All of these things have an economic value.
MR BIRCH: Your Honour, I acknowledge that. What I examined yesterday was the practical differences in the operation between the statutory structure for permanents and the position of casuals with their short-term tenure and that is being alluded to, in my submission, by the Tribunal when they refer to the statutory “incidents of permanency as are the vagaries of being a casual teacher”. Furthermore, the Tribunal had before it the evidence of the director of personnel operations as to the way schools were staffed. That was Heather Gray and I referred to her evidence briefly yesterday. They had before them the Promotion and Transfer manual which I referred to briefly yesterday which showed how schools in out-of-the way places can be staffed by inducement system points accumulated and the like, none of which depend upon being compulsorily transferred.
KIRBY J: Is it your submission that if we read the evidence, and specifically that of Ms Gray, the conclusion that we will arrive at is that although under the Teaching Services Act it looks to be a big thing to have the power to deploy, when the actual way in which staffing decisions are made by this Department, given the very large numbers who have to be deployed, that it really does not play a significant role?
MR BIRCH: That is exactly our submission, your Honour.
CALLINAN J: But that may be because teachers understand the inevitability of their having to submit to a transfer, even if it is one they prefer not to have to accept, because they know ultimately they will be bound to accept it if required, and there may not be controversy simply because the Act provides that ultimately they have to go.
MR BIRCH: In our submission, the evidence before the Tribunal really went the other way. The evidence shows that there was an agreement in place between the Teachers Federation and the Department which provided for a system whereby you could accumulate points if you went out to – let us assume that a distant small western town is in a less popular location than a seaside town like Coffs Harbour. If you go to one of those places you can accumulate points which give you a higher priority in then relocating to a desirable school. Now, what that does is it does not use coercive measures to achieve it. It simply uses a reward system to achieve it.
Now, that was material before the Tribunal. I acknowledge that if the evidence was, as your Honour says – it were the case that the threat of exercise of statutory power was permitting the Department to achieve valuable goals, then that would be a matter that would need to be given greater weight, and that was - - -
CALLINAN J: But it is there. The statutory power is there. It can always be used, even if as a last resort.
MR BIRCH: Well, your Honour, what we suggest is that if there is a statutory power – I do not want to suggest it is entirely a dead letter, but if it is close to being properly described as a dead letter, that is a matter that in a factual inquiry of reasonableness is a matter that can be fairly taken into account and the Tribunal could say there is a statutory power. If the Department regularly exercised it and got benefit from having that statutory power that would be an important matter that might go to reasonableness, but if it does not exercise that power, if it achieves its goals by other means and it rarely, if ever, exercises it then it cannot be a reasonable justification for paying one class of teachers only 80 per cent of the remuneration of another class.
CALLINAN J: But even a point system is a form of coercion. “You won’t get the points unless you serve two years at Bourke” or wherever they are sent to - - -
MR BIRCH: That simply means that what happens is you might suffer longer delay in obtaining an appointment to a desirable school. So what happens is that if you are a person who is prepared to go anywhere you will speed up the process of – and that is something which, as I argued yesterday, touches both the permanent and the casual staff. When you apply for a permanent appointment you do not have to indicate a willingness to go anywhere, in the same way that when you seek a casual appointment you might seek it just for the school near your home.
CALLINAN J: If you are an applicant, you are seeking then to impose a condition or requirement upon your employment. Is that not right?
MR BIRCH: It is not a condition or requirement in the same way that the Department is stipulating that if you wish to enjoy higher rates you have to achieve permanency.
CALLINAN J: Why is it not? If I say to you, “I’m prepared to teach but only at Nowra High School” or, indeed, “only at Nowra High School two days a week”, why is that not a stipulation of a condition?
MR BIRCH: It is a stipulation, and what your Honour says is, in a practical sense, right. The teacher is imposing a requirement or condition, but do not forget the requirement or condition we are concerned with is one being imposed by the perpetrator. So the fact that, for example, the teacher says, “I’ll teach English because that’s the only subject I feel comfortable and competent to teach” is a stipulation or condition likewise.
CALLINAN J: You cannot confine the debate to the terms of your formulation, and that is what, it seems to me, your case seeks to do. You really have to look at all of these other factors. You cannot just view it through the prism that you want to view it through. It might go to the question of reasonableness, but I think it probably goes beyond that. It goes to the identification of the condition itself, and it is not nearly as narrow as you are submitting it to be.
MR BIRCH: Your Honour, the argument has now reached the point where the focus is on one small aspect of the case that was conducted before the Tribunal. In plucking out the way in which permanency operated in this context of being transferred to schools or the like, it may appear that one is taking a narrow slice through the terms and conditions afforded to teachers. The Tribunal had before it extensive evidence about the general operation of the education system and the Tribunal looked at and makes findings about the need for flexibility using casuals, the use of casuals in specific ways, and it views it in that broad context. With respect, we have not narrowed it that much in the way we have brought forward the whole case, but there is not brought forward before your Honours in this appeal the whole gamut of material that was being agitated before the Tribunal.
CALLINAN J: Could you at some stage give me reference to that evidence about the points when it is convenient, Mr Birch.
MR BIRCH: I do not want to forget. If I could just take your Honours to volume 2 at page 541, that is the commencement of the document called “PROMOTION AND TRANSFER: PROCEDURES FOR TEACHERS”. That was part of the evidence that was before the Tribunal. If I go to the Tribunal’s judgment itself - - -
KIRBY J: So we are back to volume 5?
MR BIRCH: Back to volume 5. At page 1592 beginning at paragraph 19 towards the bottom of the page, the Tribunal commences a survey of the various issues that are being raised. It looks at financial and economic considerations and says they were not part of the controversy. So the possible greater expense to the government if we find in favour of the complainants is not a reason for finding that the conduct was reasonable. Then over the page they look at continuity and staffing flexibility, then they look at the role of casuals and permanents in paragraph 20. In paragraph 21 they identify the issue of providing against increase and decrease in student enrolments in particular schools and they refer there to the Promotion and Transfer Procedures Manual. So that is this question that we have just been addressing.
Then over in paragraph 22 they looked at “changing curriculum patterns” and in paragraph 23 “the need for staff flexibility to address specialised programs”, in paragraph 24 “to provide for rehabilitation programs for teachers”. Then in paragraph 25, “Another factor identified, was the annual allocation of what was described as unique teacher supplementation”. It continues. I will not address them all but what the Tribunal is there doing is picking out one after another of matters that were offered by the Department as important aspects of the staffing arrangements which it said justified its treatment of casuals in the way that it treated them. In each instance there was a factual finding in favour of the respondent teachers.
CALLINAN J: A fairly summary disposition of some of the matters.
MR BIRCH: The summary disposition was in part because a lot of these issues were put forward on the basis that the existence of a pool of casual teachers is important and they are able to dismiss those arguments fairly briefly because the Tribunal concluded that the complainants’ case did not challenge or threaten the existence of the pool of casual teachers.
CALLINAN J: Some of it seems to me to be on the summary side. Does the Tribunal deal with the evidence of the point system?
MR BIRCH: It does not deal with it by analysing it
in depth. What it does is it refers to the issue of – in
paragraph 21 on page 1593
it said:
The second issue raised by the respondent concerned the need to provide against increases and decreases in student enrolments in particular schools.
But they then made this comment though:
The issue was not pursued in any detail in the evidence.
So the Department itself was not developing detailed arguments or submissions to flesh out these points itself. They are being dealt with in a brief fashion in some instances by the Tribunal but that, in our respectful submission, reflects the relatively brief way the arguments were developed by the Department.
CALLINAN J: How long did the case last before the Tribunal?
MR BIRCH: I think there was approximately four or five hearing days in total. About three of those days were taken up with the cross-examination of witnesses. There were very close to 20 witnesses called, nearly all of whom were cross-examined.
CALLINAN J: And a lot of written material was put in?
MR BIRCH: There was. Virtually all the material that was in is in the appeal books.
CALLINAN J: What I am interested in, Mr Birch, is where I find the point system.
MR BIRCH: The point system is in the Promotion and Transfer: Procedures manual.
CALLINAN J: In volume 2, is it?
MR BIRCH: In volume 2, that is correct.
CALLINAN J: If you would just give me that page again because I thought you were going to draw our attention to some part of the Tribunal’s judgment which dealt with it, but apparently the Tribunal did not. If it is more convenient to do it later do, but you can do it - - -
MR BIRCH: Your Honour, the point is a short one because the way the issue came up before the Tribunal was brief. There was reference to - - -
CALLINAN J: It may have been short but I am interested in it, Mr Birch. If you do not want to give it to me, do not, but I am really interested in it. I think it is relevant and I would really like to see the evidence on it, but if you do not want to do it, do not.
KIRBY J: There is a reference to calculating transfer points on 553.
MR BIRCH: Yes.
KIRBY J: But is your apparent reluctance to enter this because either (a) there was not much evidence, save for the written statement at 553 or thereabouts, or (b) that the evidence suggested that this was a dead letter, that it was not really implemented?
MR BIRCH: Your Honour, the dead letter argument really arose in the Court of Appeal. Before the Tribunal there was no analysis of the promotion transfer point system. The Tribunal were informed of the existence of the system but there was not an argument developed that the Department gains special value from its permanent staff because it can exercise a power or control over them to get them to go to remote places which it cannot exercise over casual staff, but this issue took off, if I can use that phrase, in the Court of Appeal.
CALLINAN J: That may be, Mr Birch, but I am being completely frank with you to give you an opportunity of dealing with something that I think is relevant and possibly important and it is that the point system itself may have been a system of coercion, perhaps indirect coercion, which made implementation or application of the statutory requirements unnecessary. It seems to me, with all due respect, that when the Tribunal says that points were not pursued or were not pursued vigorously, that may be to overlook, for example, quite extensive material which was before it in a written form including the points. I mentioned to you that I thought that the disposition by the Tribunal that some of these matters relied upon by the Department seemed rather summary. Perhaps matters did not appear to be pursued because they were not discussed at great length orally but they are here and they are here in writing. I am just giving you an opportunity of dealing with that if you want to.
MR BIRCH: Your Honour, I do not want to give the impression I am reluctant to grapple with it and I would certainly be happy to put a note in including all the transcript references we can identify where the matter was raised in the Tribunal hearing.
CALLINAN J: It may only be an example. It is not the only one that it seems to me deserved perhaps more lengthy treatment by the Tribunal than it got.
MR BIRCH: Its treatment, in our submission, was commensurate with the level of development of that issue. Can I just perhaps finish the discussion at this point by saying that the argument that there was a benefit for the Department in its permanent staff being able to be sent to, I think Wilcannia was the town picked on in the Court of Appeal which is perhaps unfair to the people of Wilcannia, but the point was put in argument, is there not a special benefit in being able to send permanent staff to Wilcannia and then this led to the discussion about how the Department staffs schools in towns like Wilcannia and whether it does that by exercising its powers under sections 71 and 75 or whether it is done in a different fashion.
There was no argument before the Tribunal by the Department that it gets a special benefit from its permanent staff in being able to send them to places like Wilcannia and there is nothing I can refer to in the materials or transcript before the Tribunal because it simply did not appear in that fashion. The material was before the Tribunal in regard to the points transfer system contained in the document but no argument was developed out of it and there was reference to the statutory obligations in sections 71 and 75 but nothing developed in the form of “And this is of value to the Department because this is the way we get teachers to go to Wilcannia”.
KIRBY J: Could I put to you my concern which is not the same as Justice Callinan but not entirely different. Would one not, if a statute provides for permanent staff who are officers and also provides elements of coercion in 71 and 75 and has a very large workforce which has to be deployed to a whole range of desirable and less desirable places, would one not infer that those provisions are in the statute for a purpose and are used and are of utility to the Department because it gives them either a large stick that they may or may not always have to pull out but it is there in their relationship with permanent staff and the inference is almost inescapable that that is of economic and other value to a big employer like the appellant.
MR BIRCH: Your Honour, the response that we make to that is that obviously it could have such value but it is - - -
KIRBY J: Would you not have the evidentiary onus to show that it is a dead letter? It is like the laws of Hamlet’s Denmark. Do not worry about it. No one uses it. It is virtually never used therefore you can forget it. You would have to show that because on the face of things it is part of the statutory scheme.
MR BIRCH: Well, with respect, your Honour, if one goes to the evidence that was before the Tribunal led from Heather Gray, that is effectively what the evidence revealed. If one goes to about volume 4 of the appeal book, that includes at page 1093 the document called the “AGREEMENT BETWEEN THE NSW DEPARTMENT OF SCHOOL EDUCATION AND THE NEW SOUTH WALES TEACHERS FEDERATION ON STAFFING OF PUBLIC SCHOOLS” and that sets out the way in which it is to be achieved.
At page 1097 there is reference to an incentive scheme and that is to encourage people to take certain appointments. In paragraph 14 on 1097 there is reference to the transfer points system and the agreement of the Department and the Federation for the implementation, in effect, of an increased transfer point system, and then I have already referred your Honours to the Promotion and Transfer document earlier on and there was the full statement of Ms Gray, and Ms Gray’s statement itself did not suggest at any point that the way in which the Department effects its staffing function is by resort to the power we have over permanent staff. It was there in absence in one sense but there was also the positive evidence of how that goal was achieved in another fashion.
Now, your Honour has said to be me we bore the onus, and I accept that that is the case, but the onus is a very hard one in this sense, that there is no limit to the number of matters that could be raised in justification for a condition. Our argument which we put before the Tribunal and in the Court of Appeal was that there has to be at least some notification of an issue which might be a justifying issue so that we can then fulfil that onus.
KIRBY J: But is it not staring at you that the whole point of having permanent staff is deployability – unquestioning, obligatory, statutorily supported deployability – and therefore why does it have to be on notice?
MR BIRCH: Well, to the contrary, your Honour. When - - -
KIRBY J: It is the very essence of the advantage to the Department on the face of the law. That really is the essence of their case. Why else have casuals and permanents anyway? And the statute contemplates that you will.
MR BIRCH: The focus on this issue in the Tribunal was the fact that the teacher complainants had restricted the schools to which they would go, so there was not a willingness on their part to go anywhere.
GUMMOW J: Just picking up that point of Justice Kirby though, this distinction statutory based between permanent and casual, how do you fit that in 25(1)(c) “in the terms on which the employer offers employment”. Employment as what, because it is upon that that 24 then hangs?
MR BIRCH: Well, if I
can answer it in two steps. Firstly, I had meant to take your Honours to
the decision in Allders International Pty Ltd v Anstee on this point and
I omitted to do that. If I could refer to a statement here in regard to what
are the terms and conditions afforded
an employee and then use that to answer
your Honour’s question. The passage I wanted to refer to is at
page 55. This was
an age discrimination case. A company had a policy of
retiring its men at 65 and its female employees at 60 and the woman who
complained
had not been aware when she had accepted employment that she would be
expected to retire at 60. There was an issue as to whether
retiring at 60 was a
term or condition afforded her in her employment and so his Honour
Justice Lee looked at that phrase, which
is in 25, and at page 55B he
said this, and I essentially adopt this as a view of the proper construction of
the legislation:
In my view the Tribunal was correct in its finding, the expression “terms and conditions of employment which he affords him” being not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be.
GUMMOW J: It does not answer this question though, does it?
MR BIRCH: I can now answer your Honour’s question in this fashion. What one does is undertake the job of being a teacher and one of the terms and conditions is that you will do it as a permanent or you will do it as a casual because those - - -
HAYNE J: Thus you walk by the distinction drawn in the Teaching Service Act between officers and others?
MR BIRCH: Yes.
HAYNE J: And the engagement that is offered is not an engagement as an officer, it is an engagement as a teacher?
MR BIRCH: What your Honour is suggesting to me is that you can say of this teacher a term and condition of their appointment is that they have been appointed an officer, a term and condition of the appointment of that teacher is that they have been appointed as a temporary teacher under section 50. But what we say is that one must adopt a practical view of the job that they have been hired to perform.
GUMMOW J: A practical view too of the statutory structure of this governmental organisation. You cannot just offer employment at large. It is meaningless in terms of the Act. Do you see what I mean?
MR BIRCH: I understand what your Honour is - - -
GUMMOW J: It is quite different from this private enterprise operation in Allders, I can understand that.
MR BIRCH: Your Honour, I understand that the Act divides the employees into these two separate categories and what is being put against me is that it involves some conceptual error to suggest that it can be a requirement for one category that they attain the status of another. But when one looks - - -
GUMMOW J: That seems to be what it all turns on in the end and how you fit that into 24 and 25.
MR BIRCH: My answer, your Honour, is this - - -
GUMMOW J: You have three pieces of legislation to juggle. There is the industrial legislation, the Anti-Discrimination Act and the teaching legislation.
MR BIRCH: Yes. Your Honour, my answer is - - -
GUMMOW J: And then they do not fit very well.
MR BIRCH: They do not fit easily. It requires a degree of argument to see how they can be melded together. One has to look at the job that is being done, not entirely through the strict legal terms of the contract. If, for example, one was comparing a teacher performing some function and an entirely different type of teacher performing a different function, the two separate categories point would have some bite, but it is the fact that they perform the same job, in our submission, which is why the argument is available here.
You are not hired to go to the school at whatever it might be and be a history teacher as a casual or a history teacher as a permanent. You can be meaningfully said to have been hired to go the school to be a history teacher, but it will be a term afforded to you that you do it as a permanent teacher or, alternatively, a term afforded to you that you do it as a casual teacher.
GUMMOW J: It seems to me in the end you are attacking – and you may be able to do so – but you are attacking through the Discrimination Act the statutory structure of the teaching legislation, and the attachment through the teaching legislation of different criteria. You want one lot of criteria, which you like, attached to your category when they are otherwise not attached to it, and you never sought employment in what I might call the preferred category.
MR BIRCH: Your Honour, our response to that would be this. If what we were seeking to attack was a matter that was required by the legislation, then that would be an answer to our case. But the Director-General has power, if he so wished, to pay casual teachers above the eighth level. Why the eighth level? Why not the seventh or the ninth or the 10th or the 12th? He has chosen to pay them only up to the eighth level. Now, that of course historically has to do with the existence of the award, but he is not obliged by any provision of the Act to restrict their payment in that fashion.
GLEESON CJ: As between permanent teachers, what is it that gets them above the eighth level?
MR BIRCH: It is increase in seniority, service.
GLEESON CJ: Just seniority? What about obtaining a higher degree?
MR BIRCH: No, not as I understand it. It is service.
GLEESON CJ: Thank you.
MR BIRCH: I am told that what happens is you start at a higher level if you have a higher degree; it is the same for casuals. So you do not start on step one – I do not think anyone starts on step one any longer. You might start on step three or four, depending on whether you have a four-year degree or a three-year degree or whatever.
KIRBY J: Would not the Auditor-General or the Minister or somebody else be breathing down the Director-General’s neck if he started paying above-award wages? This is how it has always been. The award has been hard fought because it is the true wage paid.
MR BIRCH: Our submission is that while that might once have been the case, the existence of the Anti-Discrimination Act and the provisions I have taken your Honours to has changed that, and the Director-General would now be able to say to the Auditor, “I have to pay above the award so as not to engage in an act of discrimination”, indirect - - -
KIRBY J: But he would have to do that step one for women, and then because of that outcome he would have to then do it for all men and thereby remove the distinction between casual supply teachers and permanent staff, which the statute contemplates. I can understand pitching the Anti-Discrimination Act against the award because the statute allows you to do that, but you cannot put the Anti-Discrimination Act, unless there is some element of inconsistency, against the Teaching Services Act because the latter is very specific.
MR BIRCH: Your Honour, paying them equally would not abolish the distinction. The key distinction would remain that a teacher with permanent appointment can expect a job until retirement or dismissal for cause. A casual cannot expect employment beyond their current term. They may be rolled over, they may not. So it is the enjoyment of – I will not call it a job for life, but a job for an extended period as opposed to a short-term job. That is the key incident of permanency and all we are tinkering with is the rate of remuneration. While it is a significant consequence that might be said to flow from the case, we simply say that is now the effect of the law. That must be the case in many indirect discrimination cases. Wherever you can find a condition or requirement and attack it under the provisions of 24(1)(b), then flow-on effects of the sort described here could well be expected.
Your Honours, I think I have dealt as best I can with the point that was raised by Justice Callinan and our ultimate response to that in any event is that these were factual findings of the Tribunal. The attack that was launched on those factual findings was on a relatively restricted front, at least in the Court of Appeal, and it is on a particularly restricted front in this Court and we say that the material before the Tribunal justified it.
Could I just refer in that regard finally
to the decision of Justice Beazley herself in volume 7 at
page 2289. The operation of
section 75 was referred to by
her Honour in paragraph 30 on that page and that is where she made
reference to the Department’s
explanation that it was not exercised in so
draconian a fashion, but her Honour dealt with the legal issue at
page 2322 commencing
at paragraph 125. She analysed the statutory
provisions regarding transfer and the way they operated in light of the
material.
Then over the page at paragraph 128 her Honour there
said:
It is apparent that in reaching that finding –
and she set out immediately above the matter that I referred to
earlier in the Tribunal decision –
the Tribunal did not treat the differences in statutory conditions as irrelevant. Rather, it found that the transfer requirements placed upon permanent teachers were such that they did not assist in determining the work value issue.
We say this was just a relatively banal factual issue determined one way by the Tribunal and that her Honour was correct in finding that that was its nature and it was within the scope of the Tribunal’s power to make that finding.
Your Honours, the other key element in regard to the issue of reasonableness was the relationship between the conduct of the Department on the one hand and the award on the other. I went in some length into this yesterday and what I was seeking to argue was that the existence of the award did not presumptively render the Department’s practice reasonable because of the history and nature of the award, the way it had come into existence and other factual matters.
But once again, the issue
really has in fact come to this Court on a narrower basis and the way it has
come to this Court has been
formulated by Justice Hodgson in his dissenting
judgment. He identified the issue initially at page 2342. What divided
Justice
Hodgson from the majority in the Court of Appeal was this question
of whether in fact it had really been put in the Tribunal in a
fashion that
fairly obliged us to answer it. The majority’s finding was that it had
not and that is what the matter was that
divided Justice Hodgson and the
majority. At page 2342, at the very bottom of the page, his Honour
identified this issue of error,
he said, on the Tribunal’s part:
Failing to give weight to the existence of the enterprise agreement and award, independently of the reasonableness of the enterprise agreement or award, as a factor bearing on reasonableness.
A lot of what I had to say yesterday was that the award itself had internal flaws if you viewed it from the perspective of the Anti-Discrimination Act and its principles. I will not recapitulate what I had to say about Justice Bauer’s judgment. What Justice Hodgson suggested was whether the award is good, bad or indifferent, there could be an argument for an employer that if it relied on the existence of an award – and one can understand, at least at an intuitive level, if one did not have something like a government department but a small employer who said, “Well, look, I’ve paid my employees the award. It is a bit tough to come along and now say ‘You’ve paid them the award and yet you engaged in an unlawful conduct.’” Now, that might be a telling point for an employer with 10 employees running a small machine factory but the Department was in fact a party to the award.
GLEESON CJ: Did the evidence show whether the Department paid anybody over-award payments in any circumstances?
MR BIRCH: Yes. The evidence of Heather Gray – it is referred to in our written submissions, we have given the reference – was to the effect that they paid each and every employee only whatever the award specified.
GLEESON CJ: Yes, because if they did not you could presumably have endless work value disputation as between permanent teachers, for example.
MR BIRCH: Only if they were able to launch some form of action grounded in some law which entitled them to do it. We do not suggest that this would be the one and only anti-discrimination case - - -
GLEESON CJ: No, I do not think that is right. I am not talking about litigation. If the Department adopted the practice or a policy under which it was willing to consider making over-award payments in appropriate circumstances, why would the appropriate circumstances be limited only to cases of sex discrimination? Why would not the way be open for some permanent teachers to say, “We ought to be paid more than those other permanent teachers for this or that reason”?
MR BIRCH: Obviously, a teacher could write to the Department and say, “I’m a very highly qualified and exceptional teacher; pay me more” and the Department, on Ms Gray’s evidence, would write back – this was touched upon, and there was a question from the presiding judicial member. The evidence was the Department would simply say, “No.”
GLEESON CJ: It seems to me inherently unlikely – in fact, if I may say so, it seems to be inherently incredible – that the work value of all permanent teachers is the same.
MR BIRCH: Your Honour, we would acknowledge that there would be differences in the skill and value of different teachers and we acknowledge the Department probably has to govern remuneration by a system of rules, but the fact that it has to be rule governed does not relieve them of the obligation of ensuring that they have non-discriminatory rules.
GLEESON CJ: But it is not unusual. I mean, the same might apply to judges. They all get paid the same.
MR BIRCH: Your Honour, it is possible that the implications of the anti-discrimination laws just have not yet been fully felt.
GLEESON CJ: My point is a different one and it is related to what Justice Hodgson said. It is understandable that the Department would have a policy of paying nobody over the award because once the Department adopted a policy of being prepared to consider applications for over-award payments as a matter of principle then there is no reason why you would limit the applications you would consider to applications on the ground of sex discrimination.
MR BIRCH: There would be this reason, we would submit, that if you did not alter the rules to comply with the Anti-Discrimination Act you would run risk of engaging in unlawful behaviour, but if a group of teachers simply wrote and said, “We think all teachers with a higher degree should be paid more”, or whatever, and the Department wrote back and said, “No”, that is the end of the debate. There is no foothold those teachers have to demand or insist upon a change of rules.
So one can say this, that there are indeed two categories; there are alterations of rules to comply with anti-discrimination law and there are all the other possible alterations with the Department presumably will just reject because it is not obliged to entertain them and has a policy of not entertaining them.
GUMMOW J: Do you have that reference to the non-payment of above-award remuneration? You said there was a reference in your submissions to it.
HAYNE J: It is page 338. It is referred to in your submissions at paragraph 29, I think.
MR BIRCH: Yes, it appears in the transcript.
KIRBY J: Apart from anything else, the bureaucratic convenience of just paying award would be enormous whereas if you start having individual assessment it would be a tremendously complicated thing in such a big workforce.
MR BIRCH: Your Honour, we acknowledge that you could not assess all 75,000-odd people individually but, on the other hand, the way we put our case with the eight-week limit was one which we say was amenable to a rule. There has never be a single suggestion that the Department’s computer could not have coped with the rule modification that would have flowed from our case. Indeed, the Department’s computer coped with the 100-day principle introduced by Justice Bauer presumably without too much disruption.
KIRBY J: Yes, but the suggestion is that once you open Pandora’s box then all sorts of problems arise. You say, “Too bad. There is the Anti-Discrimination Act and we are not concerned with all the other problems; we are just concerned with problems that run into the Anti-Discrimination Act”, and that is your foothold. It is either good or it is bad, but that is what it comes down to.
MR BIRCH: Indeed, it is a heavy onus. A teacher would have to bring forward and succeed in establishing conduct in breach of the Anti-Discrimination Act. That is a heavy burden for a teacher to undertake. At page 338, I think, Justice Hayne identified for me there is the passage where - - -
GUMMOW J: Line 35.
MR
BIRCH: Yes, and at line 40 the judicial member asked why only the
award was paid:
If somebody is worth more, why shouldn’t they be paid for it?
That is the point that was put to me in argument by the
Chief Justice a moment ago. Ms Gray said:
I suppose we have an industrial award that has set the pay rates, and we pay in accordance with the award.
Q. That’s the Teachers Federation. Why should they set the rates for particularly worthy people?
A. Well, at the moment, we are not free-wheeling. We have an industrial award that does set our rates for permanents and does set our rates for casuals. We haven’t gone down the line like independent schools, where they are paying on performance, perhaps, or paying on qualifications.
Now,
what that does is say this, “We have a policy, we follow inflexibly the
award”, but it does not say, “and we
do it because if we abandoned
it then it would lead to some significant prejudice, inconvenience or the
like”.
Your Honours, I just wanted to deal finally with the
way in which Justice Hodgson had formulated that question and then just
show
the way the majority dealt with it. At page 2345 at line 20 the
question was crystallised in this fashion. The Tribunal, Justice
Hodgson
said:
did not address the very existence of the enterprise agreement and award as a factor relevant to reasonableness, in that what had to be shown was that it was not reasonable for the Department to make over-award payments to supply casual teachers. For reasons given above, in my opinion what then would have to be shown to not reasonable was failing to make over-award payments available to all supply casual teachers, not just to women or to teachers with commitments to children.
We accept that that is a correct way of posing the
question and his Honour then answered it at page 2347 in
paragraph 202, and I referred
to this yesterday. He uses the phrase
“having regard to the various matters”:
it is prima facie reasonable for the Department not to make over-award payments to one class of persons dealt with by an award -
I have
said already what I want to say as to why his Honour should not have put it
in that fashion, but his Honour puts it still more
strongly again when he
goes on to then add:
It may be that, if there are no reasonably arguable grounds for class differences, it would not be reasonable to maintain those differences -
Now, what we say is that was the factual
finding we got, that there was no reasonably arguable basis for them.
His Honour then said:
but in my opinion there are here at least arguable grounds, in terms of work value, statutory requirements and degree of commitment. I do not think a finding by a non-industrial tribunal that these arguable grounds do not, on the balance of probability, justify differences in payment, is sufficient to show that it is not reasonable for the Department to refrain from over-award payments -
What his Honour has done, we say, is
this. His Honour has essentially rejected the factual finding of the
Tribunal, in part because
it is a non-industrial tribunal, that it has gone
beyond its proper scope and I have said yesterday as to why, in our submission,
that is wrong. The majority dealt with this matter at page 2329 in
paragraph 147. Her Honour said:
I have now had the advantage of reading in draft the judgment of Hodgson JA. In my opinion, the conclusion reached by his Honour is based on arguments and issues that either were not argued at all in the Tribunal or before the Appeal Panel, or were not sufficiently raised so as to be squarely in issue.
That was what divided the majority and the
minority. Justice Hodgson accepted that he had formulated it in a fashion
different from
that put by the Department but he contended that it was within
the terms of the notice of contention.
We have traced through the history in our written submissions and I will not repeat that, but it comes down to this, that the appellant effectively undertook the task in this appeal of showing that the majority were wrong, that they had raised it in a fashion that made it fair for those findings to be made against us that were suggested by Justice Hodgson.
GLEESON CJ: Does paragraph 147 mean that there was no disagreement between Justice Beazley and Justice Hodgson on the matters to which you have just been referring? Justice Beazley simply said that for the reasons she gave in paragraph 147 she would not entertain those considerations.
MR BIRCH: Well, your Honour, I would be speculating as to whether her Honour, had she considered them capable of being entertained, would have then made the same finding as Justice Hodgson. I do not know.
GLEESON CJ: I was not inviting speculation. It is the case, is it, that we do not find any reasoning of Justice Beazley contradictory of the reasoning of Justice Hodgson? We find on Justice Beazley’s part a refusal to entertain the additional condition – the considerations.
MR BIRCH: We find the reference in her judgment to the statutory provisions and suggestions that they do not have as great a weight as other people may - - -
GUMMOW J: That is paragraph 116, is it not? Paragraph 116 and following?
MR BIRCH: I am indebted to your Honour.
GLEESON CJ: Let me put the question to you this way. What were the considerations that Justice Beazley said she would not entertain?
MR BIRCH: They were – I am interpolating - the matters that were contained in paragraph 202 of Justice Hodgson’s judgment, at least they included the matters in 202. On the reasonableness issue that was the key matter upon which his Honour was prepared to substitute a finding in favour of the Department against a finding for the complainants.
GLEESON CJ: So then in relation to those matters it all comes down to a question of whether or not Justice Beazley was right in refusing to consider them?
MR BIRCH: Yes, and our submission is this, that if it is true that they were not properly raised and we were not given an opportunity of fairly answering them, then the appeal should not be upheld on that ground. It was correct of her Honour to deny to the appellant the opportunity of developing a new argument effectively in the Court of Appeal or possibly in the Appeal Panel, depending on what you can glean out of it. So it comes down to this. Was it in truth the case that before the Tribunal the argument was put in a fashion that put it fairly before the Tribunal? Now, what is the argument - - -
GUMMOW J: The Court of Appeal was not hearing an appeal from anything. The Court of Appeal was hearing an “appeal”. The Court of Appeal was exercising original jurisdiction. The question is what is the ambit of that jurisdiction?
MR BIRCH: Well, it was - - -
GUMMOW J: State courts are always straying to this idea - it is not a real appeal. It is an exercise of original jurisdiction assigned to the Court of Appeal by the presence, it seems, of this described judicial member.
MR BIRCH: Your Honour, even accepting that what Justice Hodgson was doing by the time one got to paragraph - - -
GUMMOW J: Not a Suttor v Gundowda Case at all.
MR BIRCH: Well, what his Honour was doing, if one assumes this was rehearing on the merits, was rehearing on the merits conducted with the agreement of the Department on the materials that were available, but without the opportunity of recalling witnesses and cross-examining witnesses. What we say is this, that if one picks out the matters that were identified by Justice Hodgson, they were matters that might have been dealt with either by fresh evidence or by cross-examination of Ms Heather Gray as to the operation of the Department’s staffing operation and that might have been a full answer to why the award did not have to be followed. After all, Heather Gray’s evidence was simply that we follow the award. She had not gone on and said we follow the award because if we did not follow the award we would experience particular problems, and the Department had never identified one.
GUMMOW J: I would have thought that is obvious.
MR BIRCH: Well, we would have contended that far from being obvious, the Department could have easily accommodated a modification to its rule to pay eight-week supply casuals up to the 13th - - -
GUMMOW J: Or, to be technical, it at least shifted the evidentiary burden back to you.
MR BIRCH: What the Court of Appeal was concerned with was whether the evidentiary burden had shifted or not.
GLEESON CJ: This is a case about pay relativity, is it not?
MR BIRCH: In one sense it is, yes.
GLEESON CJ: A view on which both sides of the relativity are likely to have sensitivities.
MR BIRCH: Yes, we would accept that. The difficulty is that the number of matters that might be brought to bear upon justification are almost infinite. There is an unfairness in an argument being reconstituted in the Court of Appeal saying, “Well, it could be the case”.
GUMMOW J: No, an argument being put for the first time to a court exercising this “appeal” function under the administrative legislation in New South Wales. It all comes back to the nature of the proceeding in the Court of Appeal really.
MR BIRCH: Well, I perhaps should deal with that - - -
GUMMOW J: That is why we took you to those sections yesterday.
MR BIRCH: I am about to deal with the question of merits appeal, but the answer then would be that the Department had itself accepted that there were limitations on the form of merits appeal it could have that really did not leave open to it the opportunity to raise an argument that could have been met by cross-examination of witnesses, for example, had it been in play back before the Tribunal.
CALLINAN J: Would not the industrial situation have necessarily been on the table though? I do not see how you could conduct a case of this kind without at least having in your mind, and it being in the mind of the Tribunal, that industrial relations could be affected - the matter with which Justice Hodgson dealt.
MR BIRCH: Your Honour, we would not deny that the industrial issue in the broader sense was on the table, but that having been said, there are a host of different ways it could have an impact. For example, an employer might say, “Well, if I do what you’re suggesting I do, half my staff will go on strike, my business will be ruined and we’ll all be bankrupt and no one will have a job”, and that, if it were established, might be a terrifically good reason.
CALLINAN J: But you do not know what the industrial consequences of industrial action are going to be. All you know is that industrial disruption is what you want to avoid.
MR BIRCH: You do, your Honour.
CALLINAN J: You do not know where it would end up.
MR BIRCH: Your Honour, you do want to avoid it but, on the other hand, that does not mean that a tribunal cannot make a finding that the likelihood of industrial disruption from a certain change is so slight that it does not render the conduct reasonable. That was effectively what the Tribunal found - - -
CALLINAN J: Where do I find that finding?
MR BIRCH: I am paraphrasing the Tribunal, your Honour.
CALLINAN J: Because I cannot find it. I see there is a reference to what was considered in Waters which included good industrial relations in paragraph 18 at page 1592. Are there other references to industrial relations?
MR BIRCH: Your
Honour, if one goes to Justice Hodgson’s findings in paragraph 202 he
said, to do what we asked:
would appear to have the potential for disruption to good industrial relations.
There was no suggestion by the Department that industrial relations would be disrupted in any sense other than this, that if they paid women casuals, or women with families, only the higher rates, that would breed a new ground of unfairness. That is an argument which we say was never a good one because that was not the implication of our case. The implication of our case was to pay everyone.
His Honour Justice Hodgson accepted that that was the implication. What his Honour is effectively saying, in our submission, there is paying all supply casuals, men, women and those with families, has the potential for disruption to good industrial relations. We say that was not an issue that was ever in play.
CALLINAN J: Even though he has used the word “potential”?
MR BIRCH: Yes, because the potential disruptions are multifarious. We cannot satisfy an onus of seeking to demonstrate that no possible type of industrial disruption can occur by calling affirmative evidence. It would be an utterly impracticable onus to satisfy. There has to be at least something to put us on notice as to what might be the disruption so that we can then go about fulfilling our onus of showing that that is not a realistic threat.
Your Honours, I can finish this point simply by saying this, that the question whether there was unfairness to us or not in allowing it to be raised depends on whether it really was in play. The appellant says it was and its note that was referred to by Mr Jackson yesterday morning in paragraph 6(c) identifies those passages which it says put that issue in play. My learned friend identified the pages which he said were the key ones.
We simply say that, in our submission, they do not do that at all. What they show was simply that the Bauer judgment and its virtue was a matter that was raised and also raised was the question that if the Department paid women casuals or women with families a higher rate, that could be disruptive, but that was a phoney issue, in our submission, in any event. Therefore, we say in truth nothing is pointed to showing that this was in play.
KIRBY J: You have said that now several times and we will just have to look at whether or not that is fair, but industrial reality rather suggests that once you remove the universal rule that people are paid according to the award or agreement, then you cannot really confine it to this particular class. You are going to have people saying, “Well, I want to be paid above award for performance or for added qualifications or for my long service or because I’m brilliant”. Every one of us will remember teachers who were brilliant and outstanding and should be paid twice or treble what others are, but the system cannot work that way. Once you release the lid, then that is going to be on the table. That is not really a matter for pleading, it seems to me. It is just an inevitable consequence of moving away from the universal rule of the award.
MR BIRCH: Your Honour, the legislatures lifted the lid by amending section 54, in our submission, and, they having done it, whatever consequences flow are the natural effect of having given the Act the wide scope it now has. I say of course that that scope is still limited by the terms of the Act itself, but that is exactly what the legislature has done. It has ended the period in which the award constituted the principal or monopolistic way of governing these matters.
Your Honours, I come only now to the merits appeal and I will be brief with this because I can rest largely on - - -
HAYNE J: Before you leave this question
about industrial considerations, page 1598, paragraph 35, line 25
or thereabouts records:
the Commission in Court Session noted with approval the comment of Bauer J that this approach, “did not attempt to grapple with the wider industrial and sociological problems inherent in [sic] part-time and casual employment” . . . We think that the very questions there referred to were left in abeyance by both the parties and the Commission. They have been squarely raised in the proceedings before us.
Now, at least standing alone that rather suggests that the industrial problems were seen as raised but the Tribunal then passes by without amplifying them. How can you have this endless reference to work value cases in the Industrial Commission and successive decisions of the Industrial Commission saying that there is no industrial dimension to this problem?
MR BIRCH: Your Honour, we do not deny the existence of an industrial dimension; we simply suggest that the Anti-Discrimination Act now imposes, effectively, limits. I think I would only repeat what I said yesterday, but that is our response to that. In fact, the Tribunal there says the limit is that the Industrial Tribunal looked at it through industrial glasses, so to speak, and we, the Equal Opportunity Tribunal, look at it through the eyes of the Anti-Discrimination Act, and that is the way in which the jurisdictions have now been divided.
Your Honours, that
leaves only this question of merits appeal. Could I just deal with it in this
fashion. The merits appeal that
was sought in the notice of appeal to the
Appeal Panel appears at page 1642 in volume 6 and at the bottom it
says:
The Appellant does wish to apply for leave to appeal on the merits.
Then the various grounds are set out. I will not go through
them all, but a review of paragraphs (34), (35) and (37), for example,
we
say put into play virtually every issue that was heard by the Tribunal at first
instance. There is no suggestion that this is
to be restricted merely to legal
argument or argument on any particular basis. It is not made clear whether what
is being sought,
for example, is a review of the evidence at the most
fundamental level. Over the page on 1645 one of the things sought to be
canvassed
was:
In finding that the value of the work of the Respondents was equal to that of “permanent” teachers –
which
presumably would have involved reviewing the evidence of the 20-odd witnesses
who had given evidence about equal work value.
Paragraph (47) we note
included as a ground of merits appeal that:
In circumstances where three of the Respondents . . . had achieved “permanent” employment prior to the completion of the hearing, it should have found that employment as a “permanent” teacher was a requirement or condition with which they and the other Respondents did comply or were able to comply.
We comment it is ironic in the light of the grounds of appeal. The problem that the Panel faced was that the merits appeal that was sought before the Panel involved a revisiting of the entire matter that had been conducted before the Tribunal. In our written submissions we have identified the passages where we, in writing and orally before the Panel, said two things are incumbent upon the appellant, firstly, to say something about why it should have leave in the first instance to embark upon this. We were not narrow in that regard. We said it could be anything at all. It could be in argument, it could be evidence, it could be a statement of law, but we have to hear something as to why they should have leave and, secondly, we suggested there should be some particularity of how far the review should go.
GUMMOW J: This is page 1675, is it not, your written submission to this effect, line 40?
MR BIRCH: Yes, your Honours. At page 18 of our written submissions, in paragraph 75 we seek to identify the history of the issue and we have given the appeal book reference to what was said before the panel at 1716 in volume 6. The Department sought under judicial cross-examination in the Court of Appeal to attempt to articulate why it should have leave to deal with the general importance of the issues but that was the first time they undertook the burden of saying why they should have leave for their merits appeal.
KIRBY J: Where was that done?
MR BIRCH: That was done in argument before the Court of Appeal. The merits appeal issue appears quite a number of times in the transcript before the Court of Appeal and we have identified key passages in paragraphs (ix), (x) and (xi) on page 19 of our submissions. The upshot of it was this, that the Department appears to accept that it would not achieve a remitter if the court was prepared to embark upon the merits but as to the matters that were to be dealt with by the merits review, it is our contention that no clarity was ever achieved. In fact, my learned friend asked yesterday as to what it was that the merits appeal should extend to, replied as best I recall something to the effect, the evidence. It was still put on the basis that there was a desire to review in some global fashion the findings that had been made by the Tribunal. If it was to be a merits review with leave under the Administrative Decisions Tribunal Act reasons had to be articulated and they would have had to have been articulated by reference to the merits issues that the party wished to ventilate.
KIRBY J: That seems to be leave of the Tribunal in that Act but where does that pass on to the Court of Appeal?
MR BIRCH: The Court of Appeal had two options. If it had found that there was error by the Tribunal in not dealing with the leave application it could have exercised the Tribunal’s power and it could have considered and determined the leave application. Our response to that was - - -
KIRBY J: It picks those powers up, does it, under the Supreme Court Act?
MR BIRCH: It picks them up under section 120, we say, of the Administrative Decisions Tribunal Act but also does have powers under the Supreme Court Act.
GUMMOW J: You had better give us that provision.
MR BIRCH: Yes, it is in the written submissions. I will have to identify the paragraph number and I will provide it to your Honour.
HEYDON J: One problem I have with this argument of yours at the moment and that is it is full of the potentiality for further delay. You started these proceedings in 1997. The matter did not come on for hearing in the Tribunal until 1999. The Tribunal delayed judgment for 18 months from the time when the last lot of written submissions was received. There was then a delay in going to the Appeal Tribunal. It delayed in giving judgment for a year. There was then a delay in going to the Court of Appeal and it reserved judgment for six months. This is eight years after the proceedings started now, should not finality be an important consideration rather than these questions as to whether sufficient particularity was given at one point, the Court of Appeal is divided on whether the matter should be considered or not?
MR BIRCH: Your Honour, we agree entirely, but we say that the potential for delay arose from our opponent’s course of conduct. What we ask is that it – well, we asked the Court of Appeal to deal with it in a final fashion and they did. What we said to the Court of Appeal quite simply was - - -
HEYDON J: Final, but somewhat amputated.
MR BIRCH: We do not want a remitter because that could cause the whole thing to repeat all over again. We urge you to deal with the merits yourself if and to the extent that you think they should be dealt with. That view was ultimately acquiesced in by Mr Menzies. I think that is acknowledged.
HEYDON J: Well, this folds back then into the question of whether Justice Hodgson was right to say that the matter had been sufficiently canvassed below, or wrong.
MR BIRCH: Indeed.
It comes down ultimately to – well, there are two aspects of it. Justice
Hodgson gave a limited merits review on
that specific aspect of reasonableness
that he dealt with. He dealt with it in terms of a finding in favour of the
Department.
The majority said, “We don’t believe that that ought to
be done because it wasn’t raised fairly below”.
Then that left all
the other possible merits issues outside of the reasonableness aspect that
Justice Hodgson looked at. Nobody
looked at those – neither
Justice Hodgson nor Justice Beazley and Justice Cripps. The reason for
that is contained in the
majority’s decision at 2328 in volume 7 about
line 40. Her Honour, Justice Beazley, said:
The Department did not satisfactorily explain to this Court what issues it wanted to ventilate in its merits review application that were not ventilated before the Appeal Panel on its consideration of the question whether the condition was not reasonable. In these circumstances, where I consider that the Department has had a merits review -
Now, that went one way in the Appeal Panel. It was dealt with
by Justice Hodgson also differently and also favourably to the Department,
but then what about everything else?
I would not entertain an application by the Department either that this Court determine the application for leave to appeal on the merits or that the matter be remitted to the Appeal Panel for it to do so. In the circumstances there was no operative error in the Appeal Panel not stating whether it granted or refused the leave sought.
What the court was really concerned with was effectively the management of this litigation. The merits appeal, the issues that could be raised, could have been extensive.
They could have included that the Tribunal should have rejected the evidence of each of the 13 respondents and preferred the evidence of a high school teacher called by the – but there was no indication given as to whether that was the nature of it, how it was to be managed, and the Court of Appeal was entitled to be assisted by particulars of the issues the Department wished to raised and the way in which they wished the court to deal with it. The Department simply failed to give that assistance. The Court of Appeal correctly declined to then deal with it. It was not for the Court of Appeal to formulate the merits review which the Department had not taken up the burden of formulating and then decide it. That is what happened to it. It was lost to that reason.
Your Honours, the history and the argumentation about what had and did not have to be done is torturous, and I will not take you to it. There were four written submissions filed by the parties on the nature of the factual inquiry and whether it had or had not been sufficiently specified. There was direction given by the judge which implicitly had not been fully satisfied by the documents that the Department filed because they never identified them, so Justice Beazley found, by the end of the appeal. That is what happened to the merits appeal. It fell by the wayside because the Department simply did not bring it forward coherently.
GUMMOW J: What was the identification of the question of law which founded the appeal to the Court of Appeal?
MR BIRCH: The Panel argued that - - -
GUMMOW J: It was required by section 119.
MR BIRCH: The Panel found that the Tribunal had reversed the onus of proof on the issue of reasonableness and - - -
GUMMOW J: Is it stated anywhere in this lengthy document at page 1925, the notice of appeal to the Court of Appeal? One would have thought it would tell you what the question of law was.
MR BIRCH: Yes. If one looks at 2(a), that was the legal error of the Panel that was the key one that operated in the Court of Appeal. In effect, the Panel said that the Tribunal had committed a legal error by reversing the onus and it was argued by the respondents that the Panel had committed a legal error in detecting a legal error that did not exist.
GUMMOW J: Is it accepted by both sides – I do not know the answer to this – that if the criterion of a question of law is raised, that the subject matter in the Court of Appeal then is, as it were, broader than that?
MR BIRCH: Yes, both sides - - -
GUMMOW J: There is a whole lot of cases on the old income tax structure about this.
MR BIRCH: Yes. We accepted in the Court of Appeal that once we had established a legal error by the Panel which entitled the Panel’s decision to be set aside, that in effect threw the gates open because the Court of Appeal was then able to make whatever decision was appropriate.
GUMMOW J: Under section 120.
MR BIRCH: Yes.
HAYNE J: Is Justice Beazley in paragraph 144 at 2328 focusing her Honour’s attention on the application for leave that was made to the Panel and whether the Panel determined that application for leave?
MR BIRCH: She was considering that together with the possibility that the merits could be opened up in any event. So one way of getting to the merits was ventilating - - -
GUMMOW J: I do not know where this word “merit” gets into sections 119 and 120.
MR BIRCH: Yes.
HAYNE J: It seemed to me that reading 144, what her Honour was recording was a submission by the Department that if the Tribunal’s determination was reinstated, that is if you succeeded, the Panel had not determined the application for leave to appeal to it on the merits and the Court of Appeal should make an order that either permitted or, I would have thought, required the Panel to decide that which it had not decided, namely the application for leave.
MR BIRCH: Your Honour, that was the
Department’s initial position. In their first round of written
submissions they asked for a remitter
on the grounds that your Honour has
articulated. There was then a submission by us that as the Court of Appeal had
power to deal
with the merit issues anyway, rather than risk a remitter and then
a further appeal and a whole fresh cycle, there should be no remitter.
This
then led to a debate conducted in writing initially and then in open court, the
upshot of which was that Mr Menzies accepted
that the Court of Appeal would
deal with the matter, there would not be a remitter, but he did not abandon his
application for a
merits review. Even though he did not abandon it, there was
still an obligation upon him to articulate what he wanted the Court
of Appeal to
review, and that is what her Honour ultimately was dealing with in
paragraph 144, where she said the Department had
a merits review before the
Panel only on the reasonableness aspect but:
I would not entertain an application by the Department either that this Court determine the application for leave to appeal on the merits or that the matter be remitted –
and essentially her Honour says they
have had all that they ought to get, and there has never been an articulation of
merit issues
that could be decided and ought to have been decided by the Court
of Appeal. All there has been has been a demand for a merits appeal,
and if it
be a demand for a remitter, Mr Menzies essentially accepted that that would
not be the course. We have set the transcript
passages of that debate between
him and the Bench in (x), (xi), and (xii) on page 19 of our written
submissions.
I would particularly refer your Honours to the passage in volume 7 at 2239, point 2, which is, as we apprehend it, the last word from the Department’s counsel on what they expected the Court of Appeal to do. We are not entirely certain what they intended but as we read that passage we understand Mr Menzies to have said, “Well, we have got a merits review on. We want you to deal with it on the materials that are before you”, and that was as far as he took the specification and articulation of it.
CALLINAN J: But the appellant’s written contentions, for example, at pages 1999 and onwards, seem to raise any of the merits questions which anybody has touched upon.
MR BIRCH: Your Honour, they raised everything as we apprehended it and that was the complaint we made. There was never a written submission that went through the witnesses and said they should reject this witness for that reason - - -
CALLINAN J: But the contentions are there and there was an evidentiary basis – you might argue about whether they are correct or not – but there seems to me to have been an evidentiary basis for all of them.
MR BIRCH: But the argumentative onus, if I can put it that way, that rested upon the Department was to assist the Court of Appeal in understanding why it should uphold the arguments in its notice of contention by reference to material which made improbable or false particular factual findings of the Tribunal or something of that sort, and that never occurred.
CALLINAN J: But a lot of it is here in writing in the contentions. I must say I do not understand the submission. Take (xi) on page 2000, “the carefully determined system of industrial regulation”.
MR BIRCH: That was a matter that was effectively dealt with by – you see some of the merit issues ultimately ended up being dealt with by Justice Hodgson in the way that he did and dealt with by Justice Beazley in the way I have previously discussed. What they complained about, as we understand it, is that there was a standing demand for a wide-ranging merits review that covered virtually everything else. While bits of it – the industrial regulation aspects that your Honour has just pointed to – got picked up and dealt with in the way they did, there were other aspects that were not dealt with and, as we understand it, the complaint is, “Well, we still never had our wide-ranging review of the whole case”, to which our response has always been, “Well, you have never identified the issues, articulated the arguments and pointed to that evidence or those factual findings that you want reversed”.
CALLINAN J: But you seem to know what you had to grapple with. Take 2022, “RESPONDENT’S REPLY TO SUBMISSIONS OF APPELLANTS WITH RESPECT TO THE RESPONDENT’S APPEAL ON THE MERITS”, a very lengthy – not very lengthy, I am sorry, a few pages only, but you joined issue as it were.
MR BIRCH: That is the response when we challenged the principle of a remitter and what that really deals with is the question of whether the leave issue had been properly kept alive. It did not delve into the question of which witnesses were to be disbelieved or their evidence rejected.
GLEESON CJ: Dr Birch, can I raise with you the question of costs? Could you look at page 2348c, line 40? Did the Tribunal make an order for costs in favour of your clients?
MR BIRCH: We made an application and that application was unsuccessful and it was unsuccessful in an unusual way. The two lay members of the Tribunal found in our favour and the presiding member found against us. He held that it was an issue of law and therefore his vote was the deciding vote. We appealed that and in the Court of Appeal that was reversed in our favour, so we obtained an order for costs before the Tribunal in the Appeal Panel.
GLEESON CJ: In the Appeal Panel?
MR BIRCH: In the Appeal Panel. I am sorry, no, we obtained costs orders from the Court of Appeal for the Tribunal in the Appeal Panel. We never - - -
GLEESON CJ: I know you did, that is why I drew your attention to those orders on page 2348c, line 40. They are the orders.
MR BIRCH: Yes.
GLEESON CJ: What I asked you was, had you obtained an order for costs in the Tribunal, and then I was going to ask you, had you obtained an order for costs in the Appeal Branch of the Tribunal.
MR BIRCH: Yes, I took the long way around. The answer is yes to both those questions, your Honour.
GLEESON CJ: Right. Now, I am looking at - - -
MR BIRCH: I am sorry - - -
KIRBY J: You would not have got it in the Appeal Panel because you lost.
MR BIRCH: We did not get them from the Tribunal or the Panel. We got those costs but we only got them because the Court of Appeal gave them to us.
GLEESON CJ: What order for costs did the Appeal Bench make?
MR BIRCH: The Appeal Bench made no costs order at all.
GLEESON CJ: Right. So until the matter got to the Court of Appeal there was no order for costs?
MR BIRCH: Correct.
GLEESON CJ: And you applied to the Court of Appeal for and got from the Court of Appeal an order for the costs in the proceedings before the Tribunal, the Appeal Bench and the Court of Appeal?
MR BIRCH: Yes.
GLEESON CJ: That was the first order for costs that was ever made in these proceedings?
MR BIRCH: It was, yes.
GLEESON CJ: Mr Jackson on page 16 of his written submissions seeks an order that the appeal be allowed and that the orders, including, I presume, order 19, of the Court of Appeal be set aside.
MR BIRCH: Yes.
GLEESON CJ: I do not see anything about the matter of costs in Mr Jackson’s orders sought.
MR BIRCH: Yes. Can I perhaps indicate the position as we understand it? When special leave was sought there was an undertaking in the appeal papers filed by the applicant then, the appellant now, to pay our costs whatever the outcome of the appeal and we understand that they stand by that undertaking.
GLEESON CJ: Pay your costs of what?
MR BIRCH: I am sorry, of the appeal in this Court. That does not go beyond that. So whatever be the outcome of the appeal, the appellant has agreed to pay our costs in this Court, then if they - - -
GUMMOW J: There was no condition attached to the grant of special leave. I have no recollection of that.
MR BIRCH: It was noted formally by the Court but it was - - -
GUMMOW J: .....of noting it; it is a question of giving an undertaking to the Court. It is either given or not given to the Court or it is inter partes. Are you saying it is inter partes? There is nothing wrong with it if it is inter partes, if that is what it is.
MR BIRCH: Yes.
GLEESON CJ: Have you noticed that the orders sought by Mr Jackson are inconsistent with that? He does not seek an order - - -
MR BIRCH: I have raised the matter with Mr Jackson and - - -
GLEESON CJ: I am raising the matter with you now and we will be doing it with Mr Jackson in a moment.
MR BIRCH: I understand that this is the position, that the Department does not resile from the undertaking that they gave inter partes that they would pay our costs in this Court, whatever be the outcome of the appeal, that if the appeal were to succeed that would leave the costs in the Court of Appeal to be decided perhaps by this Court in accordance with the usual principles, but the costs in the Tribunal are a little different because the Tribunal has a power to award costs only where there are special circumstances. I think there are two views at the Bar table as to what should happen.
Our tentative suggestion is this, that if the appeal succeeds then we ought to have an order for our costs in this Court, but that we would lose the costs order in the Court of Appeal and the Court would deal with those it saw fit, and then so far as the Panel and the Tribunal is concerned, the Court could remit the question of costs to the Panel to deal with if either party - - -
GUMMOW J: We remit things to courts. We do not remit things to an - - -
MR BIRCH: Yes, well - - -
GUMMOW J: The Judiciary Act does not contemplate that, Mr Birch.
MR BIRCH: Yes, in those circumstances, this Court could deal with the matter on a brief submission.
GLEESON CJ: Mr Jackson has made it clear, has he not, in his written submissions that he seeks to have order 19 made by the Court of Appeal set aside?
MR BIRCH: We apprehend that, that if he wins the appeal, we would – we do not see ourselves being able to resist that because part of the or most of the reason we got the costs orders we did was because the Court of Appeal found in our favour. It did not make those costs orders on the assumption that we should have them no matter what.
GLEESON CJ: If you are right about the agreement inter partes, then the only thing that is left unclear by Mr Jackson’s written submissions is what order he seeks in relation to the costs of the proceedings before the Court of Appeal.
MR BIRCH: Yes, that is correct, although if it is left with no orders – the position before the Tribunal will be that if those orders are made, there will simply be no costs orders before the Tribunal. That, we say, would be the appropriate way for the Court to leave the matter. As to whether Mr Jackson seeks to pursue that in some other way – the only point we are making of course is that this Court would not simply award costs against us of the two steps before the Tribunal as of course because costs in the Tribunal are governed by section 88 of the Administrative Decisions Tribunal Act which provides that one has to show special circumstances. So even though on the assumption - - -
GLEESON CJ: I think you are pushing at an open door in relation to the proceedings before the Tribunal. I do not understand Mr Jackson to be seeking an order against you for costs in the Tribunal or the Appeal Panel.
MR BIRCH: I think your Honour might be right. I will not take it further.
GUMMOW J: Can I ask you a question about section 24 before you sit down? Section 24(1)(b) uses the words “requires the aggrieved person to comply with a requirement or condition”. Section 24 has its derivation, I think, from the British legislation of 1975 which talks about applying a requirement or condition. Is there anything to be drawn from the different use of language, from applying a requirement or condition in section 1(1) of the Sex Discrimination Act 1975, or is it just a drafting preference?
MR BIRCH: Well, our submission is it is most probably a drafting preference. If it were to be suggested, for example, that in order for there to be a 24(1)(b) requirement or condition there had to be conduct in which there had been an express demand that one comply, then we say that would be too narrow a reading of the section. If the requirement can arise as a result of the practical operation of the requirement or condition, then that we say is encompassed in the term “requires”.
GUMMOW J: Thank you.
MR BIRCH: Your Honour Justice Gummow asked me for the provision in the Supreme Court Act that we depended upon and that was section 75A(10) as conferring upon the Court of Appeal the general power to dispose of the whole controversy.
GUMMOW J: Thank you.
GLEESON CJ:
Thank you, Dr Birch. Yes, Mr Jackson.
MR JACKSON:
Your Honours, there are a number of matters with which I wish to deal.
May I deal first with the question of costs that your Honour
the
Chief Justice asked about. We do seek costs so far as the proceedings in
the Court of Appeal are concerned and I should have
made that clear in our
written submissions. So far as the costs in the Tribunal at two levels are
concerned, may I say in relation
to that, I have been endeavouring to ascertain
whether costs were sought in the Appeal Panel so far as we were concerned.
There
does not appear to have been an order made for costs in that regard and
may we, in that regard, if we were to seek any order in relation
to the costs of
the Tribunals, let the Court know within a few days and indicate the basis for
doing so, and let our learned friends
know, of course?
GLEESON CJ: Yes. Is it the case that costs orders are only made in that forum if there are special circumstances?
MR JACKSON: Yes.
GLEESON CJ: What might the special circumstances be?
MR JACKSON: Your Honour, it seems likely that there was not an application made in the first place. May I check that and if we do seek any order in relation to that, there may be a policy question involved in relation to that as well, whether we put something in writing, your Honours, identifying the matters we would rely on in that regard.
GLEESON CJ: You will have seven days to do that and Dr Birch will have seven days to respond.
MR JACKSON: Thank you.
GLEESON CJ: What about the costs of this appeal?
MR JACKSON: Your Honour, so far as the costs of this appeal are concerned we have agreed to pay the other side’s costs in any event.
GLEESON CJ: Thank you.
GUMMOW J: We do not make an order to that effect. We simply make no order as to costs but you do want your costs in the Court of Appeal.
MR JACKSON: Yes. Your Honours, may I deal with a couple of matters that I was asked about and I said I would provide something in relation to it. Your Honours asked me first of all about the date when the amendment to section 54 of the Anti-Discrimination Act came into force – that was 8 August 1995. Your Honours will see it referred to – I do not think I need to take your Honours to it – in the judgment of Judge Murrell in volume 1 of the appeal books, page 14 in paragraphs 4.8 to 4.10. Her Honour’s reasons there set out the matters lying behind that. That is the first matter.
Your Honours also asked about the Supreme Court provisions which are applicable to the hearing of the matter in the Court of Appeal. The relevant provisions appear to be first, section 48(1) which is the provision that took the matter to the Court of Appeal rather than to a single judge, the reason being that the Tribunal or the Appeal Panel had Judge Latham, as her Honour then was, as a member of it and in consequence the matter went to the Court of Appeal. We would refer also to section 75(A)(10), as our learned friend did, and also to section 75(A)(4) of the Supreme Court Act 1970.
Your Honour the Chief Justice asked about how is
it that persons would become aware of promotions, vacancies and matters of that
kind. Your Honours, there seem to be two relevant provisions or sets of
provisions. The first of them to which I would go is in
the Teaching
Services Act, section 95. Your Honours will see that
section 95(1) provides that:
All notices of appointments, promotions, retirements, dismissals and annulments of appointments of:
(a) officers of the Education Teaching Service shall be published in the Education Gazette -
Of course, section 95(2) makes that publication conclusive evidence of those matters. That is the first part. The second, your Honours, is to be found in a combination of a number of provisions to which I referred in passing earlier.
They are the provisions of section 38(1)(f) and (g) requiring the maintenance of promotions lists and the definition of “promotions list” in section 4 and then the provisions of section 59 and the immediately following provisions which deal with the way in which persons are appointed.
So far as the practical arrangements concerning promotion and transfer are concerned, I just wanted to go very briefly if I may to some passages in the evidence and dealing with the promotion and transfer procedures. What one sees from them is that whilst there are endeavours made to accommodate teachers and to ensure that there is an equitable method of promotion and transfer, what one does see at the same time is that it is indicated that in the end teachers do have to go if necessary where they are sent.
Could I take your Honours for a moment to the promotion and transfer procedures set out in volume 2 at page 541. Your Honours will see, if I could go to page 541, that it is the promotion and transfer procedures. At page 543 there is an overview of them and you will see in relation to the overview at about line 22 under the heading “Full-time positions”, you will see “Priority transfers” and then the occasions when priority transfers are mentioned in brief. You will see three stars further down about line 40 a reference to a “Permanent Employment Program – Casual teachers”. If one goes on the next page to “Permanent part-time positions”, again these are permanent people, you will see the first two star points under that heading for “Priority transfers” and then “Permanent Employment Program”.
In relation to those
matters, if one goes to the second note on the page, your Honours will see
that:
Casual supply teachers must submit an application for teacher employment before being considered for appointment to any permanent part-time position as from term two, 1998.
Then your Honours will see some other references to them in
the same paragraph. The methods of applying for transfer appear first
on
page 546 and under the heading “OVERVIEW” in the first
paragraph there is a reference to the fact that permanents
applying for a
transfer must complete the appropriate form. Two paragraphs further
down:
The districts or schools to which . . . seeking to transfer can be listed in preference order or may be grouped to indicate equal preference.
Your Honours will see then at page 547 there is a
provision for priority transfer and at about line 35 you will see the first
priority
is where the position they hold “is affected by school closure,
amalgamation” and other matters of the kind there referred
to. Two
paragraphs further down, they:
will be placed in a suitable vacancy closest to their current school;
will be deemed to have continuity of service –
if they are in effect forced to move.
You will see on
page 548 there is another category “Incentive transfer”, and that is
if you have done your time in perhaps
the less appealing places you get some
quid pro quo in relation to that for those things. There are provisions for
“Compassionate
transfer” at page 549 and a number of other
matters, but could I refer particularly to page 550. At page 550,
under the heading
at the top of the page:
Classroom teachers who have served for at least three years . . . are eligible to apply for service transfer.
Your Honours will see the remainder of that paragraph and
then three paragraphs further down it says:
Classroom teachers applying for service transfer should note that they will be appointed to, not offered, a position at any school on their preference list.
Now, your Honours, no doubt that is put in a fairly
restrained way, but it is indicating that they will be appointed to a place and
they have to go. At page 553 your Honours will see the method of
“CALCULATING TRANSFER POINTS” and if I could go to
the fifth dot
point on the page you will see:
Transfer points are credited for all casual service for periods in excess of one term when the teacher becomes permanent –
and, to put it shortly, the provision has the effect that if you have accumulated points notionally as a casual teacher you get the advantage of them once you become - - -
CALLINAN J: Retrospective advantage.
MR JACKSON: Yes. Your Honours, if I could move then - - -
CALLINAN J: It is better than Frequent Flyer points, Mr Jackson.
MR JACKSON: Your
Honour, it is always a difficult question, although one of the airlines today
seeks to make it less so. At page 558 your
Honours will see in the
first two lines:
Classroom teacher positions . . . will be advertised and filled by merit.
Then at about line 45 it says:
All suitable qualified casual and unemployed teachers with permanent full-time approval . . . are eligible to apply for an advertised classroom teacher position provided they have not accepted a substantive classroom teacher position in the current staffing operation.
Then at page 573 under the heading “Permanent Employment Program – casual teachers” your Honours will see that there is an endeavour to move casual teachers, some casual teachers, with certain numbers into permanent positions.
Your Honours, if I could go then, and I will try to do so very briefly, to the Casual Teachers Handbook, your Honours will see in that in the same volume at page 429. I had not proposed to go to the detail of it but what your Honours will see is that it goes on for a considerable number of pages advising of the position and it goes up to page 464 and there is a further version commencing at page 465. I do not think there is anything additional or specific I wanted to refer to in it but it simply emphasises the existence of there being a number of different situations.
KIRBY J: Where is the Casual Teachers - - -
MR JACKSON: I am sorry, your Honour. There are a couple of versions of it. Page 429 in volume 2 and there is a second version, I think, in page 465.
HAYNE J: These are Federation publications?
MR JACKSON: Yes. Your Honours, in relation to sections 71 and 73, whilst it is now 20 years ago there is a reported case which I will describe shortly as O’Neill in 1985 – its true name is Teachers Federation v The Education Department or something along those lines. The reference to it is (1985) 27 AILR 242, the case number being 276, in which Mr O’Neill was dismissed because he refused a transfer. This was an appeal against it and your Honours the appeal for the appeal failed although the Industrial Court urged the parties to reconsider their somewhat pugnacious attitudes perhaps, or his attitude at least.
Your Honours, I would also refer if I may to
the actual oral evidence of Ms Gray which you will find in volume 1.
May I go to page
314? Now, your Honours will see at page 314 the
passage commencing at line 30 and going to the bottom of the page. She was
asked
about a situation that may arise when at a particular school there is no
work for a permanent teacher. She said at line 35:
Yes, that can occur . . .
WITNESS: That teacher is required to complete a transfer form and they are given the status of a nominated transfer, and then they will be placed into the nearest, closest vacancy in relation to their subject area.
Q. Do they have any choice about that?
A. No.
Now, your Honours, one can see in
cross-examination by my learned friend at page 315, the passage commencing
about line 32 to the
bottom of the page and in particular at about
line 38:
Q. The position is that if that teacher, for whatever reason, declines to accept the nominated transfer which is offered to them by the department, then they, in effect, resign from the permanent teaching force. Correct?
A. They would have to undertake that, or they would have to go through that process, yes.
Your Honours will see that goes down to the bottom of the
page. If I could go to page 317 about the last answer on the page, about
line 52. She was asked:
if a supply teacher with a supply casual appointment was to apply for permanent part-time status and receive that permanent part-time status, they would then be liable to be served with a nominated transfer if their usefulness at the school, for whatever reason, expires.
Your Honours will see her answer to that. It goes over to the top of the next page to about line 16. Your Honours will see a reference to the criteria applied between lines 22 and 30.
KIRBY J: What do you say ought to be inferred from that?
MR JACKSON: Well, what I am saying, your Honour, is that if one takes that passage and one takes, really, the remainder of page 318 and page 319, and I was going to refer particularly at about lines 35 to 40 on page 319, one of the – what she is really speaking about is the need or the “deployability”, if I could use a word that I think your Honour may have used, of the staff and you will see particularly lines 35 to 40, there are vacancies they have to fill. They need to have teachers. Sometimes they are permanent, sometimes they are casual. Now, your Honours, could I move then to page 330 and, hardly surprisingly, it appears between lines 25 and 37 that the system was computerised so that there can be a matching of persons and positions.
Then if I could go down to
page 335 - and I think I used the expression “velvet glove”
yesterday - your Honours will
see at page 335 in the passage
commencing at the top of the page and going through to about line 52, first
of all, at about line
27 that:
There have to be good reasons, and logical reasons, exceptional and compelling reasons –
why a person offered a job in an area they have indicated they are prepared to go to might be allowed to refuse it. Then, at about line 44 through to about line 52, what is indicated is that if you are prepared to go anywhere the more chance you have of getting a permanent appointment. Finally, your Honours, at page 336 between lines 34 and 44 she refers again to the computer, the operation of a computer.
Your Honours, might I turn from that to say just something about Justice Bauer’s decision and the references that were made to it. At the time of his decision in 1983, I think, it was not then the question of eight compared to 13 salary levels. There were eight salary levels for permanents and four for casuals. Your Honours can see those set out – I do not think I need take your Honours to them – in volume 3 at page 869. At the top of the page the levels are set out. That was referred to also at the bottom of page 866.
KIRBY J: What is the point you are making?
MR JACKSON: Your Honour, I am simply seeking to say if your Honours to go Justice Bauer’s decision, you will see him talking about something that does not really match the current situation. I am not suggesting that the effect of it is different; I am just saying it makes it intelligible if I may. I am going to lead on from that to say, your Honours, that in dealing with the casual employees, one does need to bear in mind that the rates that the casual employees were to receive were ones that did involve some loading in their favour. That that is so appears in his reasons at page 901. That is because he was talking about dividing the salaries by 203 rather than a larger number of days. You will see that referred to in paragraph 2 on page 901 and goes through to paragraph 3 as well. It is not as if one simply is giving casuals entirely lower rates.
That also was referred to by the Full Bench at
page 968 in the same volume. At page 968 when the matter went before
it, about three-quarters
of the way down the page, line 40, they
say:
The rate thus struck represents a loading of a fairly substantial sum in excess of the daily rate of a permanent teacher –
et cetera. That is dealt with also at page 969, lines 25 to 45; 970, 38 to 43 and 971, lines 35 to 45. The award presently in question, if I could just say this, it is referred to as being a 1983 award. In fact it is a 1996 award, although it is right to say that there had not been a full examination of the issue at a point after 1983.
Your Honours, could I move to a different matter. Some
complaint has been made that we did not refer enough, as it were, to the
statutory provisions. If one goes to volume 6 at
page 1742 – these submissions were both before the Tribunal and
the Appeal
Panel – you will see at the bottom of page 1742 at
about line 40 the submission there made was:
The criterion of performance of the same work is not a proper basis for a claim that they should have access to the same incremental salary scale as that applicable to permanent teachers. If it was, there would be no need for the two incremental salary scales that exist for casual teachers and permanent teachers . . . The valuation of work is a much more complex task than simply saying two people do the same work.
That is when you see the next paragraph on page 1743, to which I took your Honours earlier, dealing with the statutory requirements. Perhaps it could have been said four or five times but the point is pretty clearly there. The point we would make, and I took your Honours to it, is that paragraph 43 of the Tribunal’s reasons at page 1601 in volume 5 is premised on the wrong question.
Your Honours, could I deal with what was done by the Appeal Panel. The argument on behalf of our learned friends – and your Honours will see it referred to in the transcript of yesterday at line 3270 – suggested the Appeal Panel took a very broad brush view and that because there had been a determination by an industrial tribunal it treated that as being the end of the matter. Our submission is that that simply is not so.
If I could just say, the Appeal Panel dealt with the factual issues in its reasons commencing at paragraph 51 in volume 6 at page 1915. Your Honours will see paragraph 51 and then at paragraphs 53 through to 59 – I will not go through them again, but your Honours will see, in our submission, that whatever might be quite the ambit of the term, that that does seem to be that on the question of reasonableness a review of the matter on the merits. Your Honours, there was no material error in it, in our submission, that should not have been set aside.
Your Honours, may I mention one matter too about the effect of the Tribunal’s order. There is one provision of the Anti-Discrimination Act to which I should refer, and that is section 54(1)(c). Section 54(1)(c) has the effect that to comply with the order of the Tribunal does not itself amount to unlawful discrimination. So that it is possibly correct to say that there would not be discrimination against men because of compliance with the actual order of the Tribunal, but if one were to seek to avoid the issue arising by voluntarily paying women teachers an amount in excess of the award, that then would be discriminatory in respect of men. I mention the point, your Honours, only because I have said at least in the course of things that if you do one thing for women it will be discriminatory against men, but I should mention that provision, but there is a slight qualification to that.
One of your Honours asked for what was the position in relation to the legislation earlier for permanents and casuals, or earlier versions of the legislation. May I give your Honours a copy of a note which deals with the earlier legislation which goes back, I think, to 1895 and it simply indicates the relevant provisions.
GLEESON CJ: Thank you.
MR JACKSON: Your Honours, may I refer to our learned friends’ submission handed to your Honours this morning dealing with the way in which their case fits within the provisions. Your Honours, could we just say in relation to that, that if one looks at the way in which the requirement is described under the heading “Section 24(1)(b) of the ADA applied to the facts”, if one really defines the issue in the way in which our learned friends seek to define it, then I suppose it is not difficult to define the requirement in that way.
However, your Honours, our submission is that so to define it
really unduly limits the issue because the requirement is really that
the
Department required the respondent to comply with the requirement of having a
permanent appointment, to have the pay and other
conditions
applicable to a
permanent, and of course, your Honours, the way in which one defines the
requirement or condition is something which
affects critically what are all the
circumstances of the case when one comes to dealing with the question of
reasonableness in item
3.
Now, your Honours, may I, as a last matter, deal with something that was said concerning the various issues that were raised. Your Honours have the document I think which is called Appellant’s Note concerning paragraphs 147 and 164 of the Court of Appeal’s reasons. We refer, amongst other things, in that document in paragraphs 3 and 4 to the various grounds that had been raised and your Honours will see references to them. Your Honours, when we come to paragraph 6 we set out where the various issues were dealt with. I wonder if I might add, your Honours, in relation to paragraph 6(c), a reference to the decision of the Tribunal at page 1596 of volume 5, please.
KIRBY J: Is this the Appeal Panel?
MR JACKSON: I am sorry, your Honour. I was dealing with the Tribunal, I think – page 1596 dealing with the Tribunal. I simply wanted to refer, so far as the Industrial Commission’s judgment was concerned, to paragraphs 30 through to 38 which deal with this issue. Your Honours, could we add a specific reference also to page 1469 in the written submissions.
Your Honours, so far as the merits aspect of the
case is concerned, could we just seek to say this, that what the Court of Appeal
did was to say, “You have had a merits review before the Appeal Panel,
therefore, you cannot have another now”. What
was left out of account was
that we had succeeded before the Appeal Panel and that then seems to have gone
by the board for no very
good reason. Your Honours, those are our
submissions.
GLEESON CJ: Thank you. We will reserve our
decision in this matter and we will adjourn until 10.00 am
tomorrow.
AT 12.45 PM THE MATTER WAS ADJOURNED
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