28 The Appeal Panel summarised the evidence before the Tribunal and went on to say at [57]:
Against this background, there is much force in the Appellant's submission that the nature and extent of the discriminatory effect upon the complainants is the denial of permanency at locations and, in some cases, in subject areas, of their choosing. A consequence of that denial is that they remain on a pay scale which limits their remuneration, compared with permanent teachers, but that consequence has a rational and understandable basis, namely the relevant enterprise agreement and Award. That is, in the opinion of the Panel, a very important factor in determining whether the requirement of permanency is reasonable in all the circumstances: see Commonwealth Bank v HREOC at 34 per Sackville J. It is no part of the function of the Tribunal or this Panel to determine whether the NSW Industrial Commission was correct in determining the enterprise agreement and the Award; the fact that they govern the conditions of employment of permanent and casual teachers is what underpins the Appellant's treatment of the complainants.
29 The Appeal Panel found that the nature and discriminatory effect of the requirement of permanency on the complainants did not outweigh the reasons advanced by the appellant at first instance and thus "the complainant did not discharge the onus upon them to demonstrate the unreasonableness of the requirement in all the circumstances of the matter".
30 A "holding appeal" was lodged in the Court of Appeal against the Appeal Panel's decision and the Court of Appeal delivered its decision on 15 November 2004 (Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404).
31 The appeal was allowed on the basis generally that no errors of law had been made by the Tribunal. The Orders made by the Appeal Panel were set aside with 18 of the 20 Orders made by the Tribunal re-instated.
32 The Court of Appeal found in favour of the appellants on the proper construction of s 24(1)(b) of the ADA and against the Department on the basis of the statutory history of the section; the purpose of indirect discrimination provisions and the operation of s 24(1A).
33 Beazley JA traversed the legislative history of the section and concluded at [48]:
I consider that there has been a drafting error in the introductory words of s 24(1), rather than a drafting omission in ss (1A). If that subsection was intended to apply to para. (b) as well as para. (a), the indirect discrimination provisions would be nullified.
49 When an error occurs such that words are used which have no meaning or negative the statutory purpose, it is both permissible and necessary for the court to omit the words from the section under consideration: Saraswati v. The Queen (1991) 172 CLR 1 especially per McHugh J at p.22. Accordingly, in my opinion, s 24 is properly construed so that the words "on the ground of the aggrieved person's sex" after the word "if" in the opening paragraph of ss (1) have no work to do or are mere surplusage in relation to para. (b). they should be ignored.
34 The Court of Appeal upheld the appellants' contention that the discriminatory conduct complained of did not arise from the imposition of a condition or the requirement to have permanent status and found the Appeal Panel misunderstood the appellants' case and therefore erred in law in determining the case on a basis never advanced before the Tribunal.
35 The Court observed in relation to the reasoning of the Appeal Panel at [57]:
It is apparent from the passages that follow that the Appeal Panel accepted the Department's submission. In my opinion these passages do reveal a misunderstanding of the appellant's case. The Appeal Panel had already accepted the appellant's definition of the condition. The error in the Appeal Panel accepting the Department's submission would seem to be that the Appeal Panel then failed to keep at the forefront of its consideration the condition that the appellants alleged was not reasonable. The two passages quoted above can only be correct if the discrimination alleged was a failure to be given permanent status. That was never an issue. If it was, the limitation of the case to teachers who work in blocks of 8 consecutive weeks or more and the evidence in respect of equal work value would have been irrelevant.
36 The Court found the Appeal Panel made an error of law in finding that the Tribunal had misapplied the onus in determining the condition was not reasonable noting that at [71] - [72]:
Senior Counsel for the Department submitted that it is erroneous in law to assume that a difference in treatment is per se discriminatory: Commonwealth Bank v. HREOC per Sackville J at 111, and that the Tribunal in this passage had made an assumption that the casual teachers' pay scale was discriminatory. Having made that assumption is was submitted that the Tribunal then reformulated the question in issue and did so erroneously. I do not agree. The Tribunal in my opinion was saying that, having considered the appellants' case that they performed work of equal value but were paid less because they were casuals, there was a question to be decided as to whether the requirement to have permanent status was not reasonable. It also indicated that it doubted whether the mere fact of existence of a policy to have casual teaching staff would be sufficient to answer that question in the Department's favour. The reasons for the policy would need to be examined.
There was no error in that approach. The Tribunal was neither making an assumption nor asking the wrong question. It was expressing one part of its reasoning in the weighing up process in which it was required to engage. It was doing so in a context where it considered that unless sensible factors could be advanced to explain why teachers performing work of the same value were paid differently, there was a real question to be determined as to whether it was reasonable to do so. There was no error in reaching that position as part of its reasoning process, expressing its assessment at that point and then moving on to assess the factors advanced to justify the policy. The Tribunal did not, as the Department alleged, thereafter engage in the process of determining whether the Department was correct to impose the condition of "permanency" .
37 The Court then said at [73]:
In this case, the appellants advanced a case that it was "not reasonable" for teachers performing work of equal value to be paid differential salaries depending upon whether they were classified as permanent or casual. The appellants had to prove as a fact that they were performing work of equal value. The Department advanced a case to establish the reasonableness of the salary differentiation. The Department's case also had to be evaluated. In evaluating that case, the Tribunal was required to make findings on the evidence presented.
38 On the issue of work value the Court held at [106] - [109]:
The Department next advanced a number of submissions to the effect that, in focussing on work value, the tribunal's focus was on the wrong question. The Appeal Panel dealt with this at [AP.54]. It held that in addressing the question of the nature and extent of the discriminatory effect as a work value issue, the Tribunal misdirected itself and acted without jurisdiction. The Appeal Panel continued:
"Whatsoever the anomalies and discrepancies inherent in the pay scales applying to casual and permanent staff, there was no basis upon which the Tribunal was entitled to consider that they were premised on gender. Rather they arose (if at all) as a result of a series of cases before the NSW Industrial Commission beginning in 1983. It is one thing to acknowledge the [appellants'] argument that these anomalies 'map discriminatory gender divisions' (para. 35), it is another thing entirely to adopt such an argument (as the Tribunal appears to have done) for the purposes of determining whether the requirement is unreasonable."
A number of observations should be made about this passage. The Tribunal could only have misdirected itself if it asked itself the wrong question. The question of work value was pivotal to the way the appellants defined their case. It was the essence of the discriminatory effect alleged. In defining its case in this way, the appellants were required to prove, as a fact, that 8-week teaching blocks involved work of equal value to that performed by permanent teachers. The Tribunal found that this had been established and the Department has accepted that there was evidence available to the Tribunal to enable it to do so. That finding was not, of course, the end of the appellants' case. There were other elements of s 24(1)(b) that also had to be satisfied. However, the work value finding was the major factual circumstance raised on the appellants' case that had to be determined and evaluated. There was thus no focus on the wrong issue.
The Appeal Panel also said that in taking the approach that it did, the Tribunal acted beyond jurisdiction. It seems that the Appeal Panel considered that the Tribunal embarked upon the determination of a matter that was solely within the jurisdiction of the Industrial Commissioner. It is difficult to understand why the Appeal Panel considered a jurisdictional question was involved. The Tribunal was not determining pay scales over which the Industrial Relations Commission exercises jurisdiction. Nor did the Tribunal consider, as the Appeal Panel seems to find, that the pay scales were premised on gender. But even if the Tribunal did find that to be the case, such a finding is not outside jurisdiction. It is a finding of fact on a matter in issue in the proceedings before it. It was permissible for the Tribunal to consider a case that the appellants were being paid less than permanent employees notwithstanding that their work was of equal value. That did not make the case a work value case for industrial purposes. The Tribunal was required to consider and determine that factual allegation as part of the consideration whether, if it was established, these appellants were discriminated against on the grounds of sex within the meaning of s. 4(1)(b).
Nor is it an answer to a discriminatory condition to assert that a specialist tribunal established the parameters of the discrimination in an Award or by approving of an industrial agreement. That would have been an answer before the amendments to s 54 of the ADA in 1994. It is possible, of course, that there may be circumstances where the existence of an Award or industrial agreement is relevant to whether relief ought to be granted under the ADA. For example, if the question whether differential pay scales were discriminatory had been agitated before an industrial tribunal as part of a determination of an Award, there may be an abuse of process if complainants then sought to challenge the Award as discriminatory under the ADA. The abuse would arise because of the possibility of having inconsistent decisions operating within the same sphere. However, that is not the case here. The Award that determined the differential pay scales was made before the ADA came into operation. Although there have been subsequent awards and agreements, none have involved a consideration of the issue raised in this case. But in any event, the question for consideration here is whether the appellants have established each of the components of s 24(1)(b).
39 The Court also found that the Tribunal had not considered the issue of work value in an "impermissible context as contended by the Department", noting at [112]:
In dealing with the issue in this case the Tribunal said:
"35 ... The issues in this case arise out of the anomalies in pay scales between permanent and casual supply employees which, the [appellants] have argued, map discriminatory gender divisions.
36 It is only since 1994 that industrial awards and agreements in New South Wales have been required to comply with the Anti Discrimination Act 1977. It is in this context that the present inquiry occurs. The focus of our inquiry is not a specific industrial inquiry as to work value and continuity of employment, but raises the so-called 'wide sociological problems' referred to above, such as patterns of work participation in relation gender."
At this point in its reasons the Tribunal was dealing with the Department's argument that the question of work value had been determined by the Industrial Commission in 1983 and that in subsequent negotiations and cases the Teachers Federation had not sought to break that nexus. However, as the Tribunal pointed out, the issue before it was different from the issues determined by the Commission. The Tribunal's reference to the "so-called 'wide sociological problems'" was no more than a statement of the context in which the claim for discrimination was made. The reference to these matters did not involve a consideration of impermissible extraneous factors.
40 The Court also considered the issue of the existence of a specialist industrial tribunal as follows at [116] to [122]:
The question was raised whether, because underlying the appellants' claim were questions of work value and pay scales, and such matters are usually and better dealt with by the Industrial Relations Commission, the Tribunal should have found that the requirement of permanent status was not reasonable. It is relevant to this question that since the repeal of s 54(e) of the ADA in 1994, the Industrial Relations Commission must be satisfied that any Award it makes or agreement it approves, does not breach the ADA.
Strictly, this question only arises if there is a basis for this Court to make a determination on the merits. However, I am prepared to proceed for the moment on the assumption that this Court is entitled to deal with the issue.
There are a number of answers to this argument. The first is that it potentially entrenches the discriminatory nature of the condition. The appellants, as individuals, have no standing to bring a claim before the Industrial Relations Commission. Claims relating to conditions of employment must be brought by the representative body of the industry concerned: s 11(2) of the Industrial Relations Act 1996 . In this case, that is the Teachers Federation. The attitude of the Federation to bringing a claim of this nature is unknown. In addition, the Federation has a number of different interests to represent. Some of the interests may conflict. For example, permanent teachers may resist the bringing of a work value case on behalf of casual teachers. The Federation may feel the need to compromise aspects of a claim because of these conflicting interests. This may have occurred in the work value case run in 1983 before Bauer J and was a matter of comment by his Honour. There may be financial considerations that may influence the Federations' decision as to whether to bring forward such a case at any given time. But whatever be the position, the Industrial Relations Commission has not examined and determined the precise work value raised by the appellants here and has not determined a work value issue in relation to casual teachers since 1983. Thus, if the appellants were successful on every other basis that was raised as an issue in the case, but failed on this issue, it means the discriminatory effect of the condition would remain.
Further, even though the Industrial Relations Commission is a specialist body, the Tribunal has jurisdiction to deal with discrimination that arises from the terms and conditions of employment. For example, s 25(2) of the ADA Act provides that it is unlawful for an employer to discriminate on the grounds of sex in the terms and conditions of a person's employment.
I would add finally that the fact that s 54 no longer protects awards and industrial agreements from the operation of the ADA means that there is no basis for an argument that conduct that is engaged in, in order to comply with an Award of agreement that contains a provision that is discriminatory within the meaning of the Act will be acting unlawfully, at least in relation to the particular claimants who have proved a case under s 24. It does not follow in this case, therefore, that because the Department was implementing the Award or agreements made or sanctioned by the Industrial Commission that the requirement for permanent status was reasonable in relation to these claimants.
There is one further aspect of this consideration that arises. Contemporaneously with the repeal of s 54(e), provisions were inserted into the industrial legislation whereby the Industrial Relations Commission may not make an Award of approve an agreement that contravenes any other law. At the time that the 1996 Industrial Agreement was approved, counsel for the Department and for the Federation assured the Commission there was no such contravention. The question arose, perhaps, obliquely whether the Tribunal was exercising a de facto supervisory jurisdiction, or to put the matter more directly, should the Tribunal defer to the specialist jurisdiction of the Industrial Relations Commission in respect of issues, such as work value, as arose here.
The answer to that question cannot, I suspect, be categorical. In this case, the Department failed in its challenge that there was an estoppel arising from the Industrial Commission's determination of the Award. In addition, there has been no work value determination by the Industrial Relations Commission on the issue raised in these claims, and the appellants themselves have no standing in the Industrial Relations Commission. The Tribunal had jurisdiction to hear the claims, and once that jurisdiction was invoked, was required to determine them."
41 The Court again re-iterated that the issue of permanency in this instance in the context of the provisions of the Teaching Services Act, was not the issue in the case, noting that:
What is in issue is whether the condition with which the appellants must comply to be paid comparably for work of equal value involves a contravention of s 24(1)(b).
42 Following the Court of Appeal's decision, the Department sought, and on 27 May 2005 was granted, leave to appeal to the High Court in State of New South Wales v Amery & Ors No S487 of 2004.
43 The respondent subsequently made application to the Full Bench that it should defer the decision in this matter on the basis that, special leave having been granted by the High Court, it would be premature for the present proceedings to be finalised until the Full Bench had the benefit of the final decision of the High Court.
44 We consider that there is a deal of substance in the application made by the respondent because there is little doubt that there has been a significant inter-relationship between these proceedings and the proceedings commenced in the Administrative Decisions Tribunal, known as Amery & Ors v The State of New South Wales, and the consequent proceedings successively in the Appeal Panel of the Tribunal, the Court of Appeal and, most recently, the High Court of Australia. Indeed, as we noted earlier, in para [9], the present application was filed by the Federation arising from the determination of the Administrative Decisions Tribunal in those proceedings. It is plain that these proceedings have been significantly complicated by the proceedings in the Administrative Decisions Tribunal and those subsequent thereto.
45 Although the Federation is not a party to those proceedings, it is common ground that the individual teachers who were the applicants in those proceedings were provided with legal assistance by the Federation and, to that extent at least, the complications in the proceedings have arisen from the Federation's actions in commencing these proceedings having lent assistance to some of its members to pursue other proceedings which dealt with related issues.
46 Having given detailed consideration to the respondent's application, and the Federation's strenuous opposition to it, and having regard to the conclusions we have reached in this matter, including our conclusions as to the significance of the decision of the Court of Appeal to the outcome in the present matter, we have decided not to defer the decision in this matter.
Applicable awards