IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

No SZ1373 of 2002

Lindy Howe
Applicant

and

Qantas Airways Limited
Respondent

SUBMISSIONS OF
SEX DISCRIMINATION COMMISSIONER APPEARING
AS AMICUS CURIAE

Introduction

1.

Pursuant to an order made on 14 April 2004, the Sex Discrimination Commissioner ("the Commissioner") was granted leave to appear as

2.

amicus curiae

3.

to make written submissions and, if appropriate and necessary, to supplement these written submissions with brief oral submissions.

4.

Broadly, the submissions are limited to the following two issues which arise on the pleadings, viz:

1. the legal framework surrounding s 5(2) (read in conjunction with s 7B) of the Sex Discrimination Act 1984 (Cth) ("the SDA"); and
2. the proper construction of s 40 of the SDA, particularly in the context of awards and certified agreements.

5.

However, if appropriate, and with leave of the Court, the Commissioner reserves the right to make further submissions on legal matters which may arise during the hearing of this matter and after receipt of the respondent’s particularised points of defence. No submissions are to be made in relation to the evidentiary and factual matters that may arise for determination.

6.

The submissions of the Commissioner, will be set out as follows:

1. Background to the Claim.
2. Interpretation of the SDA.
3. Indirect Discrimination and Family Responsibilities.
4. Construction of s 40 of the SDA.
5. Conclusion

PART A: BACKGROUND TO CLAIM

7.

Insofar as it is relevant to these submissions the salient factual background to these proceedings is as follows:

1. The applicant was employed by the respondent in the position of Customer Service Manager ("CSM") long haul.

2. The Enterprise Agreements regulating the applicant's employment during the relevant period were:

   1. Flight Attendants’ Association of Australia – Long Haul Division (Qantas Airways Limited) Enterprise Agreement IV (1998-2001); and
   2. Flight Attendants’ Association of Australia – Long Haul Division (Qantas Airways Limited) Enterprise Agreement V (2001- 2002) (together "the Enterprise Agreements").

3. The Enterprise Agreements required (see cl 49.3.1(a)) a long haul flight attendant who became pregnant

   to cease flying no later than either:

   1. after completing a total of sixteen weeks flying and/or reserve duties from the date of conception; or
   2. no later than the 26th week of pregnancy;

   whichever comes first;

4. The applicant fell pregnant with her second child in late 2000. The applicant registered her interest in available ground duties nominating the date of her confinement as 12 August 2001 and requested ground duties as from 26 February 2001. The applicant was offered a position in the engineering department, earning about $34,000 per annum. As at January 2001, the applicant's remuneration as a CSM was $95,000 per annum, with a base salary of $64,200 per annum. The applicant commenced unpaid maternity leave from 24 February 2001.

5. The applicant was due to return to work following her maternity leave on 19 May 2002. On 21 January 2002, the applicant requested:

   1. alternative employment arrangements;
   2. a permanent transfer from long haul to short haul; or
   3. rosters as a CSM on long haul restricted to short trips or part-time rostering,

   on the basis of her family responsibilities as a primary carer for her children ("the request"); and

6. the respondent refused the request and on 13 March 2002, the applicant accepted a demotion from CSM long haul to flight attendant long haul. The applicant had sufficient seniority as a flight attendant long haul to successfully bid for work patterns that would allow her to accommodate her family responsibilities.

Claims Made by the Applicant

8.

Relevantly for the purpose of these submissions, the applicant makes a claim for indirect discrimination on the ground of sex. That is, in refusing the applicant's request set out above, it is alleged that the respondent imposed the following conditions on the applicant:

1. that a CSM long haul be available to work full time; and
2. that transfer to CSM short haul be accorded only in circumstances of operational requirements and without regard to family responsibilities.

9.

The applicant contends that these conditions have the effect of disadvantaging women in general (presumably because of their greater need for part time or flexible work to enable them to balance work and family responsibilities) and are not reasonable in the circumstances.

Claims Made by the Respondent

10.

The respondent claims that to the extent that the applicant’s claim relates to conduct done in compliance with an award or certified agreement made under the Workplace Relations Act 1996 (Cth), the conduct is not discriminatory by virtue of s 40 of the SDA.

PART B: INTERPRETATION OF THE SDA

General

11.

In construing beneficial legislation designed to protect human rights such as the SDA, the Court has a special responsibility to take account of and give effect to the purposes and objects of the legislation.1 In accordance with this principle, exemptions and other provisions that restrict rights should be construed narrowly while conversely provisions which confer or amplify rights should be generously construed.2

12.

Further, in the interpretation of a provision of an Act, a construction that promotes the purpose or object underlying the Act is to be preferred to a construction that does not promote that purpose or object.3 This approach does not only apply in circumstances where there is an ambiguity or inconsistency in the Act.4

13.

The objects of the SDA are set out in s 3 of the SDA and relevantly include:

1. to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW");5
2. to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and
3. to promote recognition and acceptance within the community of the principle of the equality of men and women.

Approach to Exemptions Contained Within the SDA

14.

A narrow construction of exemptions under the SDA is required to give effect to the object of the SDA to "eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services…".

15.

The structure of Pt II, Division 4 of the SDA seeks to promote this object. The particular exemptions provided for in that Division are designed to cover only particular fields, while maintaining the unlawfulness of acts of discrimination falling between the exemptions. A broad construction of an exemption such that it overlaps with or completely subsumes other exemptions defeats the purpose behind the manner in which the Division is structured, as well as being contrary to the objects of the SDA as a whole.

16.

Section 3(a) of the SDA provides that one of the objects of the SDA is to give effect to certain provisions of CEDAW. A related principle of the common law is that a statute is to be interpreted and applied, so far as its language permits, in a manner which is consistent with established rules of international law and which accords with Australia's treaty obligations.6 That approach is not limited in its application to ambiguous statutory provisions.7 Rather, wherever the language of a statute is susceptible to a construction which is consistent with the terms of the relevant international instrument and the obligations which it imposes on Australia, that construction must prevail.8

17.

Conversely, if the Parliament intends to legislate inconsistently with Australia's international obligations, it should express that intention clearly. Such a requirement does not infringe upon the principle of Parliamentary supremacy. Rather, it contributes to greater integrity in the legislative process by ensuring that Parliament squarely confronts situations where proposed legislation breaches binding international obligations, being obligations which the Executive has entered into on behalf of Australia.

18.

The following provisions of CEDAW impose upon Australia legal obligations which are relevant to the operation and interpretation of the SDA. In order to give effect to these obligations, a narrow interpretation of the exemptions is required:

1. States parties to CEDAW undertake to eliminate discrimination against women in all its forms: Arts 1 and 2. While the definition of "discrimination" in Art 1 refers to any "distinction, exclusion or restriction made on the basis of sex", that phrase is to be given a broad and beneficial interpretation and can include acts that would also amount to discrimination on the ground of pregnancy.9 The measures States parties are required to undertake, for the purposes of eliminating discrimination against women in all its forms, include ensuring through competent national tribunals the effective protection of women against any act of discrimination (Art 2(c)) and taking all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise (Art 2(e)); and
2. States parties are to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of the equality of men and women, the same rights, in particular the right to the same employment opportunities and remuneration, including benefits (Art 11(1)(b) and (d)); and
3. In order to prevent discrimination against women on the grounds of maternity and to ensure women’s effective right to work, States Parties are to take appropriate measures to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances (Art 11(2)(b)).

PART C: Indirect Discrimination and family responsibilities

General

19.

The effect of the prohibition against indirect discrimination was usefully captured in the well-worn quote from Griggs v Duke Power (1971) 401 US 424 at 431 that the prohibition forbids "practices that are fair in form but discriminatory in practice".

20.

Because of the complexities surrounding the earlier version of s 5(2),10 Parliament amended the SDA in 1995 to replace the indirect discrimination provisions of the Act which had proven to be "complicated and difficult to apply in practice" and which had been "criticised for being overly technical, legalistic and complex."11 In the second reading speech introducing the Sex Discrimination Amendment Bill 1995 (Cth) which introduced the current formulation of s 5(2), the Attorney-General significantly stated that:12

Tackling indirect discrimination is essential because barriers to equality are often the result of the application of practices, conditions or requirements which appear to be neutral but which in fact impact adversely on members of a particular group

.

The bill sets out a simpler definition of indirect discrimination…The focus is on broad patterns of behaviour which adversely affect people who are members of a particular group.

21.

Accordingly, indirect discrimination on the ground of sex is now defined in s 5(2) of the SDA as follows:

2. For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
3. This section has effect subject to sections 7B and 7D.

22.

Section 7B of the SDA sets out the factors to be taken into account in determining whether a condition, requirement, or practice, that is, or is likely to have, a disadvantaging effect is reasonable in the circumstances. It provides that:

Indirect discrimination: reasonableness test

1. A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.
2. The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
   
   1. the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice;and
   2. the feasibility of overcoming or mitigating the disadvantage; and
   3. whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

23.

The elements of indirect discrimination as set out above can be divided into its constituent elements:

1. the perpetrator requires the aggrieved person to comply with a requirement, condition or practice;
2. the requirement, condition or practice has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved;
3. the requirement, condition or practice is not reasonable in all the circumstances; and
4. the aggrieved person is not able to comply with the requirement, condition or practice.

Insofar as they are relevant to the submissions of the Commissioner, the elements are discussed below.

"Condition, Requirement or Practice"

24.

Consistent with the principles of construction described above, "a generous approach should be taken" to what constitutes a requirement, condition or practice, such that respondents are not permitted to evade liability.13

25.

The courts have found that the condition, requirement or practice that employees be available to work full time to maintain their position, status and level of remuneration is a condition, requirement or practice within the meaning of s 5(2) of the SDA. Further, courts have found that this was a requirement, condition or practice that would disadvantage women with family responsibilities, as the primary carers of children particularly very young children. 14

26.

In Escobar v Rainbow Printing Pty Ltd (No 2),15 a female employee sought to return from maternity leave on a part time basis. Her request was denied and her employment later terminated. Driver FM found this amounted to direct discrimination on the ground of family responsibilities, but that in the event that he was wrong in relation to this finding, further found that the respondent’s conduct constituted indirect discrimination on the basis of sex.16 His Honour held that the refusal to countenance part time work involved the imposition of an unreasonable condition that was likely to disadvantage women because of their disproportionate responsibility for the care of children.17 Driver FM cited with approval18 the decision of the Human Rights and Equal Opportunity Commission ("HREOC") in Hickie v Hunt & Hunt,19 in which Commissioner Evatt had stated:20

Although no statistical data was produced at the hearing, the records produced by Hunt and Hunt suggest that it is predominantly women who seek the opportunity for part time work and that a substantial number of women in the firm have been working on a part time basis. I also infer from general knowledge that women are far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities. In these circumstances I find that the condition or requirement that Ms Hickie work full time to maintain her position was a condition or requirement likely to disadvantage women.

27.

In Hickie, the complainant had taken maternity leave shortly after having been made a contract partner at the respondent law firm. She complained of a range of less favourable treatment during the period of her maternity leave and following her return to work on a part time basis. Relevantly for present purposes, an area of her practice was removed from her on the basis that it could not be managed working part time.

28.

Commissioner Evatt found that the respondent’s conduct did not amount to direct discrimination on the ground of family responsibilities. However, the Commissioner did find that the respondent’s conduct constituted indirect sex discrimination:21

The removal of Ms Hickie's practice occurred partly because she intended to work part time on her return and could not manage such a large practice without supporting staff. Removing her practice, rather than finding other alternatives to maintain it in whole, or in part, may have appeared the most convenient option to the firm, and … more convenient than dividing her plaintiff work, leaving it temporarily with [another partner], or perhaps assigning another member of staff to work with [that partner] until her return to take over. However, if part of the motivation was her intention to work part-time, the removal of her practice can be regarded as the consequence of her inability to meet a requirement that she work full time or manage staff while absent as a condition of maintaining her plaintiff practice. What the firm was saying in effect was that because she was not intending to return to full time work for some time, they would not make an effort to find other alternatives to support her in maintaining all or part of her plaintiff practice, but would remove all of it. Her intention to work part-time after her maternity leave was seen as a basis for stripping her completely of work she had built up over several years.

The requirement to work full time is, in my view, a requirement with which a substantially higher proportion of men comply or are able to comply. In making this conclusion, I rely on the evidence of the respondent about the substantial number of women in their firm who had periods of maternity leave and part-time work as well as my general knowledge and experience of employment in the legal profession. It is a requirement with which the complainant could not comply, due to her family responsibilities

29.

In Mayer v ANSTO [2003] FMCA 209, the applicant similarly wanted to work part time following a period of maternity leave. Driver FM found that the respondent’s requirement that the applicant work full time, when part time work was available within the organisation, constituted indirect discrimination within the terms of s 5(2).22 Significantly his Honour stated:23

I need no evidence to establish that women per se are disadvantaged by a requirement that they work full-time. As I observed in Escobar v Rainbow Printing and as Commissioner Evatt found in Hickie v Hunt & Hunt women are more likely than men to require at least some periods of part-time work during their careers, and in particular a period of part-time work after maternity leave, in order to meet family responsibilities.

The Court held that the applicant had been constructively dismissed and, accordingly, the respondent had breached s 14(2)(c).24

30.

One exception to this general line of authority is the recent decision by this Court in Kelly v TPG Internet Pty Ltd [2003] FMCA 584 at [82], where Raphael FM held that the refusal to provide Ms Kelly with part time employment was a refusal to provide her with a benefit rather than the imposition of a condition, requirement or practice that was a detriment. Any question as to the reasonableness of the condition, requirement or practice consequently did not arise.

31.

The Commissioner respectively submits that Kelly is a decision with a number of difficulties and one which ought to be considered carefully in the context of its particular facts. This is because:

1. the reconciliation by his Honour in Kelly of his conclusion in that case with that of the earlier decision of the Court in Mayer, with respect, fails to address the whole of the definition of indirect sex discrimination in s 5(2). The refusal to allow part time work by an employer – or the insistence on full time work - may constitute a "practice" within the rubric of s 5(2) irrespective of whether it is a "condition or requirement";
2. to treat the provision by an employer of flexible working conditions in order to accommodate the needs of working parents as only constituting a benefit compels the conclusion that its refusal can almost never constitute indirect discrimination and that employers who refuse to provide such working conditions are immunised from proceedings under the Act in this regard. Such a result would be antithetical to the objectives of the SDA;
3. alternatively, and equally problematic, the decisions in Mayer and Kelly, when read together, stand for the proposition that an employer who consistently provides part time work but then later refuses do so can be liable under the SDA (Mayer) but an employer who has a policy or practice of never permitting reduced working hours cannot (Kelly); and
4. by characterising the refusal of the employer to allow Ms Kelly to work part time as a refusal to confer a benefit or an advantage, Raphael FM, conflated the notion of "disadvantage" with the imposition of a condition, requirement or practice (at [79]). The two are separate elements of s 5(2) and must remain so if the provision is to operate effectively. Were it otherwise, the section could be potentially left with very little work to do as employers sought to define the act the subject of the complaint in a way that resulted in the conferral of a benefit thereby escaping the purview of the SDA.

32.

The preferable view, and one which more readily accords with the purpose of the legislation and the preponderance of the authorities, is that to compel an employee to work on a full time basis in order to maintain his or her position, status and comparable level of remuneration, particularly in circumstances where an employee returns from maternity leave with concomitant family responsibilities, does amount to a condition, requirement or practice within the meaning of s 5(2). The issue then becomes one of "disadvantaging" and the "reasonableness" of the condition, requirement or practice particularly as that term is defined in s 7B of the SDA.

33.

This was the approach taken by Harper J in Victoria v Schou (2001) 3 VR 655. In Schou, his Honour did not question whether the need for Ms Schou’s, who was a Hansard reporter, physical attendance at Parliament House when Parliament was sitting constituted a condition, requirement or practice. It was accepted that it was: see at [17], [25] and [33]. Rather what was in issue was the reasonableness of this condition, requirement or practice. This question VCAT had not properly turned its mind to because it had directed the question of reasonableness toward the refusal of her employer to provide a modem when it had initially been offered permitting her to work from home so that she could attend to her sick child. It was this offer that was said to constitute a benefit or favour exclusive to Ms Schou, the withdrawal of which could not amount to discrimination. The modem proposal could only have been relevant if the attendance requirement was unreasonable: at [17], [19], [34]. Because VCAT had not, however, examined the reasonableness or otherwise of the attendance requirement it had fallen into error.

"Disadvantaging"

34.

The language of s 5(2) is plain and clear. A condition, requirement or practice must have, or be likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

35.

The term "disadvantaging" is not defined in the SDA and there is little discussion of the concept in the relevant case law. The Commissioner submits that the term, consistent with the principles of construction articulated above, ought to be accorded a meaning which accords with the beneficial purpose of the legislation, and in particular, the elimination of indirect discrimination.

36.

In the present case what must be demonstrated is that the requirement to work full time has the effect of disadvantaging women. The Court should therefore compare the impact of the requirement or condition on men with its impact upon women. The Commissioner notes that the courts have found on a number of occasions that a requirement to work full time has a disparate impact upon women and therefore has the effect of disadvantaging them.25

"Reasonable in the Circumstances"

37.

The concept of whether a condition, requirement or practice is "reasonable in the circumstances" for the purpose of s 7B (and thus s 5(2)) of the SDA is ultimately a question of fact to be determined on the evidence and having regard to the criteria, liberally construed, set out in s 7B. It should be noted that s 7B(2) is not an exhaustive definition.

38.

The seminal test for determining reasonableness derives from the following passage of Bowen CJ and Gummow J in Styles (at 634):

the test of reasonableness is less demanding than one of necessity but more demanding than a test of convenience…The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.

39.

Brennan J in Waters v Public Transport Corporation (1991) 173 CLR 349 subsequently provided a more detailed examination of the application of the test. According to his Honour, consideration must first be given to whether it is reasonable to impose the requirement or condition "in order to perform the activity or complete the transaction": at 378. Secondly, regard must be had to whether the transaction or activity could be performed without imposing a requirement that is discriminatory: at 378.

40.

Brennan J went on to state that the relevant factors to be taken into account as part of the exercise of considering the relationship of the requirement to the transaction or the activity include (at 378):

1. The effectiveness of the requirement;
2. The efficiency of the requirement;
3. The convenience of the requirement; and
4. The cost of not imposing the discriminatory requirement or substituting another requirement.

41.

Importantly, the factors to be taken into account in construing the "reasonable in all the circumstances" test are to be widely drawn. A narrow construction of the test was rejected by the majority of the Court in Waters: see Mason CJ and Gaudron J at 365.

42.

In Commonwealth v Human Rights & Equal Opportunity Commission (Dopking’s case) (1995) 63 FCR 74 at 82-83 Lockhart J said that the test:26

required the Commission, first, to examine the reasons in favour of the condition, and secondly, to weigh those reasons against the nature and extent of the discriminatory effect of the condition. The conclusion of discrimination…can be valid only when the Commission determines that, in all the circumstances, the difference of treatment between members without a family and members with a family is not reasonable.

43.

Consequently, the following key propositions can be distilled in relation to the concept of "reasonableness" for the purpose of s 7B of the SDA:

1. The test is an objective one, but the subjective preferences of an aggrieved person or a respondent may be relevant in determining reasonableness;27
2. Reasonableness is a question of fact which can only be determined by taking into account all of the circumstances of the case, which may include the financial or economic circumstances of the respondent;28
3. The test is reasonableness, not correctness or "whether the alleged discriminator could have made a ‘better’ or more informed decision";29 and
4. It is not enough, however, that a decision have a logical or understandable basis. While this may be relevant, taking into account all of the circumstances, such a decision may nevertheless not be reasonable.30

44.

In relation to s 7B(2)(c), the Commissioner notes that a denial or reduction in remuneration to a person is a very significant limitation on that persons economic rights and that for such a disadvantage to be proportionate to the result sought the respondent in any such case should be required to demonstrate that the result sought is important and significant.

PART D: Construction of section 40 of the SDA

45.

Section 40 of the SDA relevantly provides as follows (emphasis added):31

Acts done under statutory authority

1. Nothing in Division 1 or 2 affects anything done by a person in direct compliance with:
   
   3. a determination or decision of the Commission;
   4. an order of a court; or
   5. an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment; or
   6. a certified agreement (within the meaning of the Workplace Relations Act 1996 ).

46.

The Commissioner submits that the Court ought adopt a construction of s 40 that is consistent with the principles of construction enunciated in Part B above with respect to exemptions. That is, the provision should be narrowly and literally construed in a manner that avoids an interpretation permitting any acts done not only directly - but also indirectly – in compliance with the Enterprise Agreements to be exempt from the SDA. Such a construction is available to the Court given the plain and clear language of the section and for the reasons set out below.

"In Direct Compliance With"

47.

The Enterprise Agreements sanction the enforced cessation of a long haul attendant from flying if either of the criteria above in cl 49.3.1(a) are met. Were such a condition or term of employment not contained within the Enterprise Agreements, then the restriction would amount to a clear breach of the SDA. That it does not is because of the protection afforded to the respondent by s 40. That is, to refuse to permit a flight attendant to fly in these circumstances does not amount to unlawful discrimination because the refusal is committed "in direct compliance with" a certified agreement which permit such action to be taken.

48.

However, where a certified agreement is silent as to, or does not state with sufficient particularity, what, if any, action an employer must take with respect to the terms and conditions of employment, for example, once an employee has ceased flying in accordance with cl 49.3.1(a) or upon an employee’s return from maternity leave, then caution should be exercised in the application of s 40 to those actions. Similarly, when confronted with certified agreements that define only a minimum requirement and thereafter allow an employer a discretion, again caution should be exercised in the application of s 40(1).

49.

Moreover, to the extent that certain practices exist in a workplace as to how certain conditions of employment are to operate, they are just that, ie practices, and if they do not fall within the express terms of a certified agreement must fall outside the protective mantle of s 40.

50.

The Commissioner therefore submits that the exemption in s 40(1) ought to be strictly construed. It should only have application when a person is directly complying with an award or certified agreement, that is, when it was necessary for the person to perform the act in order to give effect to the term or condition of employment contained in the certified agreement or award. Accordingly, where the Enterprise Agreements are silent or do not specify the scope of the operation of the terms and conditions of employment contained therein, s 40(1) has no application.

51.

To interpret s 40 in any other manner would be to violate both general cannons of statutory construction and those specifically applicable to anti-discrimination legislation referred to above: first, the words are clear and unambiguous on their face - acts done "in direct compliance with" (emphasis added) certified agreements are permitted - and should be interpreted as such.32 The inclusion of the word "direct" and the omission of the words "direct and indirect" or any more general reference to acts done "in compliance with" is a clear indication of the intention of the legislature to limit the scope of the exemption in this regard.33 The Court should not strain the words of the section by reading into it words that were never intended to be part of the provision.

52.

Second, were a wider construction to be afforded to the provision, it would have the effect of rendering virtually all conduct with which some nexus, however intangible and tenuous, to a certified agreement could be demonstrated non-discriminatory, thereby thwarting the purpose of the Act. Taken to its extreme it could, for example, permit the dismissal of any long haul flight attendant who satisfied the criteria in cl 49.3.1(a) above. A result clearly repugnant to the object of the SDA.

53.

Third, such a construction is moreover contrary to recent authority in relation to s 40 and its State counterparts, which posit a restrictive construction of the exemption.34 The High Court in Waters v Public Transport Commission (1991) 173 CLR 349 considered the operation of the equivalent exemption in the Victorian Act and gave it a narrow interpretation.35

54.

In Gibbs v Commonwealth Bank of Australia (1997) EOC 92-977 at 77,140 the HREOC held that the term "direct compliance" was to be distinguished from:

mere "compliance", but it is a term that is less strong than say "strict compliance"…"direct" compliance would appear to go to a broader class of provisions and would, in my view, cover action made necessary by reasonably-specific clauses as distinct possibly from ones that were very generally expressed.

55.

Accordingly, any construction that would impermissibly broaden the exemption provided by s 40(1)(f) of the Act ought be rejected.

PART E: CONCLUSION

56.

From the foregoing discussion, the submissions of the Commissioner may be summarised as follows:

1. consistent with established principles of statutory construction in the context of anti-discrimination legislation:

   1. s 5(2) (when read with s 7B) of the SDA ought to be given a wide construction and concomitant application in order to amplify the application of the legislation; and conversely
   2. s 40 of the SDA ought to be given a narrow interpretation so as to avoid restricting the ambit of the Act;
2. that a person must, in order to retain the same status and level of remuneration, work full time, is to impose a requirement, condition or practice, the denial of which may, subject to evidence of disadvantage and unreasonableness, result in unlawful discrimination pursuant to s 5(2);
3. s 40 does not provide an unlimited exemption to persons or entities to discrimination against persons on the grounds contained in the SDA merely because the acts or omissions were done pursuant to a certified agreement. Rather, the words "in direct compliance with" are to be construed in accordance with their plain and unambiguous meaning, that is, only those acts which are directly and expressly sanctioned by a certified agreement will be otherwise exempt from the provisions of the Act.

16 April 2004

R A Pepper
Counsel for the Sex Discrimination Commissioner
12 Wentworth Chambers
Tel: (02) 9235 2157
Fax: (02) 9221 7183

Endnotes

1. Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh J at 22-23, per Gaudron J, at 27 per Toohey J, at 39 and 41- 42 per Gummow J and 58 per Kirby J; X v Commonwealth (1999) 200 CLR 177 at 223 Kirby J; and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J.
2. X v Commonwealth (1999) 200 CLR 177 at 233 per Kirby J; Qantas Airways Limited v Christie (1998) 193 CLR 280 at 333 and footnotes 168-169, per Kirby J.
3. s 15AA Acts Interpretation Act 1901 (Cth).
4. Mills v Meeking (1990) 91 ALR 16 at 30-31, per Dawson J.
5. Opened for signature 18 December 1979 and entered into force 3 September 1981. The Convention is set out in the Schedule to the SDA.
6. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. See also Maxwell on the Interpretation of Statutes (7th ed, 1929) at 127; Pearce and Geddes, Statutory Interpretation In Australia (5th ed, 2001) at [5.14]. In this regard, Australia is a signatory to the International Covenant on Civil and Political Rights (opened for signature 16 December 1966 and entered into force on 23 March 1976) ("ICCPR"), Note also that Art 2 of the ICCPR requires States parties to ensure to all individuals the rights recognised in that covenant without distinction of any kind, including sex.
7. See, for example, Brown v Classification Review Board (1998) 154 ALR 67 at 78 per French J; Secretary of State, Ex Parte Simms [2000] 2 AC 115 at 130 per Lord Steyn, 131 per Lord Hoffman. Even if the principle is confined to ambiguous statutory provisions, the concept of 'ambiguity' in this context is construed broadly: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.
8. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. See also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ; Spigelman CJ, "Access to Justice and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.
9. See, by way of analogy, Thomson v Orica Australia Pty Ltd [2002] FCA 939 at [168].
10. See for example decisions such as Department of Foreign Affairs v Styles (1989) 88 ALR 621; and Australian Iron and Steel v Banovic (1987) 168 CLR 165
11. Hansard, 28 June 1995, p 2460.
12. Hansard, 28 June 1995, p 2460.
13. Clarke v Catholic Education Office [2003] FCA 1085 at [44]; Mayer v ANSTO [2003] FMCA 209 at [72]- [73]; Victoria v Schou (2001) 3 VR 655 at 659; Waters v Public Transport Commission (1991) 173 CLR 349 at 393 and 407; Styles v Secretary, Department of Foreign Affairs (1988) 84 ALR 408 at 421-422.
14. Hickie v Hunt and Hunt (1998) EOC 92-910 at [16.17.10] - [16.17.12]; Victoria v Schou at [17] and [25]; Escobar v Rainbow Printing (No 2) [2002] FMCA 122 at [33] and [37]; Mayer v ANSTO at [68]- [73]; Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184.
15. [2002] FMCA 122.
16. [2002] FMCA 122 at [37].
17. [2002] FMCA 122 at [37].
18. [2002] FMCA 122 at [33].
19. (1998) EOC 92-910.
20. (1998) EOC 92-910 at [16.17.10] - [16.17.12].
21. (1998) EOC 92-910 at [16.17.10] - [16.17.12].
22. [2003] FMCA 209 at [69].
23. [2003] FMCA 209 at [70].
24. [2003] FMCA 209 at [74].
25. Hickie v Hunt and Hunt (1998) EOC 92-910 at [16.17.10] - [16.17.12]; Victoria v Schou at [17] and [25]; Escobar v Rainbow Printing (No 2) [2002] FMCA 122 at [33] and [37]; Mayer v ANSTO at [68]- [73]; Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184.
26. This passage was approved in Waters v Public Transport Corporation (1991) 173 CLR 349 at 395-396 and 383 and Australian Medical Council v Wilson (1996) 68 FCR 46 at 60.
27. Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 83 (Lockhart J); cited with approval in Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 111 (Sackville J).
28. Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111 (Sackville J); Waters v Public Transport Corporation (1991) 173 CLR 349 at 378.
29. Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 87 (Sheppard J); Australian Medical Council v Wilson (1996) 68 FCR 46 at 61 (Heerey J); Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 112 (Sackville J).
30. Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 112-1133 (Sackville J).
31. Similar provisions exist in other anti-discrimination enactments: Disability Discrimination Act 1992 (Cth) s 47; Anti-Discrimination Act 1977 (NSW) s 54; Equal Opportunity Act 1995 (Vic) s 70; Discrimination Act 1991 (ACT) 30; Anti-Discrimination Act 1991 (QLD) s 106; Equal Opportunity Act 1984 (WA) s 35N; Anti-Discrimination Act 1992 (NT) s 53 and Anti-Discrimination Act 1998 (Tas) s 24.
32. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Australian Securities Commission v D B Management Pty Ltd (2000) 199 CLR 321.
33. Cf for example the language used in Equal Opportunity Act 1995 (Vic) s 70 ("things done to comply with"); Anti-Discrimination Act 1991 (QLD) s 106 ("acts done in compliance with"); Anti-Discrimination Act 1992 (NT) s 53 ("acts done in compliance with").
34. While there is scant case law concerning the application of s 40 of the SDA, recent decisions in New South Wales concerning the equivalent provision in the Anti-Discrimination Act, particularly in circumstances where employers have purported to justify discriminatory acts on the basis of compliance with occupational health and safety legislation, demonstrate a clear judicial trend in favour of narrowly construing exemptions such as s 40 of the SDA: Peck v Commissioner of Corrective Services (2002) EOC 93-236; Cargill Australia Ltd v Higginson (2002) EOC 93-245; Perlidis v Brambles Security Services (2003) EOC 93-264 and Lavery v Commissioner of Fire Brigades (2003) EOC 93-274.
35. See the discussion per Mason CJ and Gaudron J at 368-369. The reasoning accorded with earlier decisions of the Human Rights and Equal Opportunity Commission ("HREOC"): Clinch v Commissioner of Police (1984) EOC 92-115 and Gulliver v Council of City of Sydney (1987) EOC 92- 185.

Last updated 15 January 2002.