Garriock v Football Federation Australia

NCAT Administrative and Equal Opportunity|2015-08-14

Solicitors: Professional Footballers Australia Inc. (Applicant) Ashurst Australia (Respondent) File Number(s): 1410745

Judgment

Heather Garriock has had an illustrious and lengthy career as a football player. She was one of the youngest women ever to represent the Australian national side (now known as The Matildas) when she was selected as a 16 year old to play in a match against China. She has represented Australia in three Women's World Cups, two Olympics (2000 and 2004), and has played professionally in Europe and the United States as well as in Sydney for Sydney FC and the Western Sydney Wanderers in the W-League.

Background facts

The facts in this case are largely uncontroversial.
In 2013, the Federation and the organisation representing professional football players in Australia, Professional Footballers Australia, were parties to a collective bargaining agreement, the Matildas Collective Bargaining Agreement 2013-2015 (the Collective Bargaining Agreement). Under that agreement players could be offered a contract by the Federation to play for the Matildas, a "Matildas Playing Contract", if selected by a committee constituted by the head coach of the Matildas, the head of National Teams and the Head of Women's Football. The team for a particular tour or tournament could be selected from players who had a Matildas Playing Contract and players who were not currently contracted in this way.
Ms Garriock was not a party to a Matildas Playing Contract when the team for the Tour was selected but was offered a place in the touring team. She was the only member of the touring team to be engaged on that basis.
The Collective Bargaining Agreement required players, like Ms Garriock, who did not have a Matildas Playing Contract but who were offered and accepted a place in a Matildas touring team to sign and comply with the Federation National Team Agreement. That agreement set out such things as the composition of national team selection committees, selection criteria, selection conditions, selection and team announcement procedures, conditions concerning unavailability or withdrawal from selection by players, and a grievance procedure. It should be noted that the section in the agreement relating to the grievance procedure concerned only the process through which disappointed players not selected for national teams could raise their concerns with the Federation and receive feedback and possible reconsideration for selection. It did not deal with the issues of the type that this case raises. Ms Garriock signed and complied with that agreement.
On 26 September 2013, the head Coach of the Matildas offered Ms Garriock the opportunity to join the Matildas tour of the USA. Ms Garriock accepted selection in the team but raised the question of responsibility for the costs of providing care for her then 11 month old daughter. In an email sent on 1 October 2013 addressed to Mr Joel Freeme, the then team manager of the Matildas, she wrote: I refer to my telephone call with Hesterine [head coach of the Matildas] on 26 September 2013 where I was offered a position in the Matildas team for the tour and match in the United States on 21 October 2013. You advised that if was to accept the offer I would need to pay all travel and accommodation costs associated with bringing a carer for my daughter, Kaizen, who is 11 months old. As you will appreciate this will be a cost of several thousand dollars. I accept the offer to play for the Matildas, but I do so on the understanding that I will seek reimbursement of such costs from Football Federation Australia, as I regard these as the responsibility of my employer. As you would appreciate, FFA should aim to provide equal opportunity for all players, including those who have parental responsibilities. I will pay the costs now, as I do not want a dispute over them to result in my non-selection. It would, of course, be impossible for me to accept your offer without seeking reimbursement, when the costs associated with taking a carer to the United States would far outweigh the $150 daily allowance and $500 match payment I will receive as an employee of the FFA for the tour. If you or FFA are aware of any alternative options in relation to child care for the tour, I would be happy to discuss these with you. I look forward to being a productive member of the Matildas team. Regards, Heather Garriock.
On 2 October 2013, Mr Freeme replied noting Ms Garriock's position but reiterating that "it is not the responsibility of an employer to pay for these costs" and stating that if Ms Garriock incurred them, they would not be reimbursed by the Federation. This was put to her courteously but unambiguously.
Ms Garriock went on the Tour accompanied by Kaizen and her mother who provided care for the infant while Ms Garriock fulfilled her team duties. The total costs of the airfares and accommodation for the infant and Ms Garriock's mother amounted to $4259. Ms Garriock paid those costs but was later reimbursed them out of the Professional Footballer's Australia hardship fund.
The Matildas tour program was busy and highly structured. On most days players were effectively "on duty" from about 8-8.30am until as late as 10.30pm. Apart from about one and a half hours during the middle of the day, team activities of one kind or another absorbed most of the players' time during those hours. Self-evidently, if Kaizen was to accompany her mother on the Tour, she needed an additional carer. Ms Garriock's partner, the family's bread winner, runs a small business and was not able to take time off work to care for Kaizen. Hence Ms Garriock asked her mother, Joan Garriock, to accompany her on the Tour to care for Kaizen. Mrs Joan Garriock took unpaid leave from her employment to do so.
Ms Garriock was the only player on tour who had responsibilities as a carer for an infant child. No other player was accompanied by a child.
Ms Garriock played and trained well throughout the Tour.

Statutory framework

Ms Garriock alleges that the Federation contravened ss 49V(1)(c), and 49V(2)(a) and (d) of the Act, which state: Discrimination against applicants and employees 49V Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of the person's responsibilities as a carer: … (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer: (a) in the terms or conditions of employment that the employer affords the employee, or … (d) by subjecting the employee to any other detriment.
The form of discrimination alleged by Ms Garriock is commonly termed "indirect discrimination". Section 49T(1)(b) defines "indirect discrimination" on the grounds of carer's responsibilities to mean: 49T What constitutes discrimination on the ground of a person's responsibilities as a carer (1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of the aggrieved person's responsibilities as a carer if the perpetrator: … (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. ….
Section 49S(1) states that for the purposes of the Act, "responsibilities as a carer" is a reference to the person's responsibilities to care for or support: (a) any child or step-child of the person (whether or not under the age of 18 years) who is: (i) wholly or substantially dependent on the person, or (ii) in need of care or support.
There is no argument that throughout the period the subject of the complaint, Kaizen, was wholly or substantially dependent on her mother and therefore Ms Garriock had "responsibilities as a carer".
Ms Garriock submits that for the period of the Tour she was an employee of the Federation. The Federation disagrees. The parties agree, however, that this issue does not need to be resolved as the expression "employment" as used in s 49V is defined to include "work under a contract" (see s 4 of the Act). The Federation accepts that to the extent to which Ms Garriock's participation in the Tour involved her working under a contract to provide services to the Federation, s 49V of the Act applies to the complaint.

What Ms Garriock must establish

To succeed in her complaint of unlawful discrimination, Ms Garriock must establish that: 1. The conduct she complains about falls within s 49V(1)(c), s 49(2)(a) and/or s 49(2)(d) of the Act; and 2. The Federation required Ms Garriock to comply with a requirement or condition; and 3. She was not able to comply with that requirement or condition; and 4. A substantially higher proportion of applicants/employees who did not have responsibilities as a carer complied or were able to comply with the requirement or condition in comparison with applicants/employees who do have responsibilities as a carer; and 5. The requirement or condition was not reasonable having regard to the circumstances of the case.
For convenience in these reasons we will refer to the "requirement or condition" as "the requirement".

Does the conduct fall within s 49V?

The Federation contends that the conduct about which Ms Garriock complains does not fall within either s 49V(1) or s 49V(2) of the Act. It contends that the impugned requirement (see below) was not imposed either at the stage when Ms Garriock was recruited for, or engaged on the Tour.
As the Federation points out, neither of the impugned requirements were pre-requisites to selection as a member of the Matildas. However, selection was but part of the qualification or pre-requisites for participation in the Tour. Ms Garriock was also required to travel overseas at short notice. We find that the impugned requirement arose in the terms on which Ms Garriock was offered employment. We are also satisfied that the impugned requirement fell "within" the terms or conditions afforded to Ms Garriok (New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 ("Amery" at [66]). Further we are satisfied that the impugned requirement constitutes "a detriment".
The subject of the complaint fell within s 49V(1)(c), s 49(2)(a) and s 49(2)(d) of the Act.

Identification of the requirement or condition

The identification of the "requirement or condition" of which an aggrieved person complains is central to the resolution of any complaint of indirect discrimination. This case is no exception. Ms Garriock relies on the following formulations of the requirement: 1. that players undertaking the tour be wholly responsible for any alternative carer arrangements occasioned by the Tour and the costs thereof (the Requirement); 2. that players undertaking the tour be wholly responsible for any alternative maternal care arrangements for an 11 month old infant occasioned by the Tour and the costs thereof (the Alternative Requirement).

Is the Requirement and/or the Alternative Requirement a "requirement" within the meaning of s 49T(1)(b) of the Act?

Meaning of "requirement or condition"

The phrase "requirement or condition" is not defined by the Act. The alleged "requirement or condition" must be identified with some degree of precision (Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 ("Banovic") at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 ("Waters") at 393, 406-7; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at 143). However, '"considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain" (Walker v State of Victoria [2011] FCA 258 at [194]).
The authorities have consistently stated that the words "requirement or condition" should not be given a narrow or technical construction (Amery at 195). Rather, they are to be interpreted liberally so as to further the objects of the Act (Banovic at 185, 195-7, 393-4, 406-7; Amery at [64]). Set out in the long title to Act, the objects of the Act are "to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons".
The offending requirement or condition need not be explicit (Banovic at 185; Waters at 360, 407). It may implicitly arise as a practical reality in the circumstances of the case. In the area of employment, a requirement or condition is not limited to the explicit terms and conditions of the contract of employment but may also "encompass … 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" (Allders International Pty v Anstee (1986) 5 NSWLR 47 at 55).

Submissions

The Federation contends that the complaint is misconceived because it did not require Ms Garriock, or indeed any other player on the Tour, to comply with either the Requirement or the Alternative Requirement (the impugned requirement).
The Federation asserts that it did not require Ms Garriock to bring Kaizen on the Tour or to incur the costs of doing so. It argues that the decision to be accompanied on the tour by a relative, or in Ms Garriock's case a dependent child, was a private matter and unrelated to the terms under which the player was engaged. The Federation argues that it is artificial to characterise its refusal to acquiesce to Ms Garriock's "demand" that it bear the costs associated with bringing Kaizen on the Tour, as a "requirement" within the meaning of s 49T(1)(b) of the Act.
Second, the Federation argues that contrary to Ms Garriock's belief that the payment of child care costs is "the responsibilities of [her] employer", she was unable to point to any industrial law or agreement which required the Federation to contribute towards any additional child costs that she might incur as a consequence of participating in the Tour.
Third, the Federation submits that there is simply no evidence that it required any other player to comply with either of the impugned requirements. It points out that Ms Garriock was the only player on the Tour not engaged under a Matildas' Playing Contract and the only player with carer responsibilities for an infant child. It argues that the impugned requirements are described in terms that could only apply to Ms Garriock. This, according to the Federation, is fatal to Ms Garriock's claim because the requirement must be one which the entire group must comply, citing in support Banovic at 185-191.
Ms Garriock rejects the proposition that there is any artificiality in the requirements as formulated. She submits that Mr Freeme's response to her request for assistance in meeting the carer costs, which resulted from her participation on the Tour, in a real and practical sense had the effect of requiring her to comply with each of the impugned requirements.
Second, Ms Garriock rejects the proposition advanced by the Federation that the impugned requirements applied only to her. She argues that Mr Freeme's testimony put beyond doubt that the Federation had imposed a general rule that applied equally to all players on the Tour.
Third, she contends that, contrary to the Federation's argument, the fact that the adverse effects of the requirement fell solely on her is not a legal impediment to her claim, citing in support Hurst v State of Queensland [2006] FCAFC 100.

Findings and conclusions

The parties agree that to constitute a requirement or condition within the meaning of s 49T(1)(b) of the Act, the employer must require not only the "aggrieved person" to comply with the impugned requirement but also other employees/prospective employees. This is because indirect discrimination requires the decision-maker to decide whether a "substantially higher proportion" of persons without the relevant characteristic - in this case responsibilities as a carer - "comply or are able to comply" with the impugned requirement as compared to the proportion of persons with responsibilities as a carer who comply or are able to comply with the impugned requirement. Self-evidently that exercise can only be undertaken if more than one person is required to comply with the nominated requirement.
We do not accept the contention advanced by the Federation that any arrangements made for Kaizen's care throughout the Tour and the costs thereof, were simply a "private matter". We find the Federation implicitly required Ms Garriock to be wholly responsible for any alternative carer arrangements occasioned by the Tour and the costs. Given the short notice on which the offer of the Tour was made, the long hours of work involved and the fact that Ms Garriock was required to be overseas for the duration of the Tour, to participate in the Tour, Ms Garriock, Kaizen's primary carer, had no real option but to make and pay for alternative carer arrangements.
The email exchange between Mr Freeme and Ms Garriock and in particular Mr Freeme's statement "it is not the responsibility of an employer to pay for these costs", together with the admission made in oral evidence that he was simply relaying "the FFA position: that players who wished to bring children on tour were responsible for any costs incurred", makes clear that Ms Garriock was not singled out by the Federation, but rather as she asserts, she was subjected to a general rule.
The Federation argues that Ms Garriock was, in effect, a "group of one" as she was the only member of the Tour not engaged on a Matildas Playing Contract. As a consequence it contends it is impossible to undertake the comparison required by s 49T(1)(b) of the Act.
To undertake that comparison it is necessary to identify the relevant "base group" to whom the requirement is directed (Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77]). The Act does not prescribe the composition of that group which will vary according to the circumstances of the case. The identified base group or group(s) must however reveal the significance, if any, of the relevant characteristic to compliance with the impugned requirement (see Banovic at 179; Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at 42).
That Ms Garriock was engaged on different terms to other players of itself does not establish that the touring team represents an inappropriate base group, especially given that the impugned requirement was applied equally to players on a Matildas Playing Contract and those otherwise engaged.
However, in our view the base group identified by Ms Garriock, namely all players on the Tour, suffers from a more fundamental problem, namely it was directed solely at players with carer responsibilities. While we accept that the Federation applied a blanket policy or general rule, it was directed or applied only in respect of players with carers' responsibilities. It cannot reasonably be argued that players without carer responsibilities were required to be responsible for "any alternative carer arrangements occasioned by the Tour and the costs thereof". The requirement simply did not arise. The impugned requirements were imposed solely on players with carer responsibilities.
Ms Garriock contends that the fact that the adverse effects of the requirement fell solely on her is not a legal impediment to her claim, citing in support Hurst v State of Queensland. She argues that the approach taken to the formulation of the requirement in this case, namely by reference to the conduct complained about, is appropriate and mirrors that taken by Hurst.
Hurst v State of Queensland involved a claim of indirect discrimination on the ground of disability brought under the Disability Discrimination Act 1992 (Cth) by a profoundly deaf primary school student, Tiana Hurst. In the original proceedings Lander J formulated the requirement in the following terms "to accept an education and receive instruction in English without the assistance of an Auslan teacher or interpreter" (Hurst and Devlin v Education Queensland [2005] FCA 405 at [80]-[87]; Hurst v State of Queensland [2006] FCAFC 100 at [32]).
As Ms Garriock correctly points out, on appeal the requirement formulated by Lander J was not the subject of any adverse comment by the Full Court of the Federal Court. The Federal Court found Miss Hurst was the only person with the relevant characteristic, hearing impairment and (on her case) none of the members of her group - hearing impaired students - were able to comply with the challenged requirement. The group without the relevant characteristic, was described as "[Miss Hurst's] hearing peers in the classroom situation" (Hurst and Devlin v Education Queensland [2005] FCA 405 at [70]). The Federal Court found that all members of that group was able to comply with the requirement.
We agree with Ms Garriock that there is no authority for the proposition that a group has to be of any particular size numerically. A group of one person with the relevant requirement may be sufficient for a valid comparison to be made. (See for example, Reddy v International Cargo Express [2005] NSWADT 3.) However, this does not address the problem we identified above. While the adverse effect of the requirement was found to affect only Miss Hurst, nonetheless all members of the base group were required to comply with it, namely accept an education and receive instruction in English without the assistance of an Auslan teacher or interpreter. While none of Miss Hurst's hearing peers may have encountered any difficulty complying with the requirement, they were nonetheless required to comply. Had the requirement been formulated in a different way, for example: students must be responsible for arranging an Auslan teacher/interpreter and/or bear any associated costs, it would have suffered from the very problems that beset the requirements challenged in this case, in that only persons with the relevant characteristic would be required to comply with the requirement.
For these reasons, in our view neither the Requirement nor the Alternative Requirement constitute a requirement or condition for the purpose of s 49T(1)(b) of the Act. It follows that there is no basis on which to assess whether a "substantially higher" proportion of players without responsibilities as a carer "comply or are able to comply" with the impugned requirement, than the proportion of players with responsibilities as a carer who "comply or are able to comply".

Conclusion

The Federation is likely to be the subject of criticism for what some may perceive to be a mean-spirited and inflexible attitude to a player of the stature of Ms Garriock. However, the Act does not provide a remedy for all forms of discrimination. To find that the Federation, as alleged, had unlawfully discriminated against Ms Garriock would, in our view, impermissibly strain even the most liberal interpretation of the provisions pursuant to which her claims have been brought. Accordingly, we must dismiss the complaint.

Application for costs

The Federation foreshadowed that, if successful, it may make an application for costs. The parties agree that any application for costs should be determined without a hearing as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
Accordingly we order: 1. Any application for costs must be filed and served, with supporting submissions, within 21 days of the date of this decision. 2. Any opposing submissions must be filed and served within a further 21 days. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 20 April 2016 - Amendment to paragraph 50 - corrected the final reference to the phrase "proportion of players without responsibilities" and substituted with the phrase "proportion of players with responsibilities". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2016

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