Long v Secretary, Department of Education

Discrimination

1. Section 24 of the Act outlines what constitutes discrimination on the ground of sex: 24 WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF SEX (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if the perpetrator-- (a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which 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. (1A) For the purposes of subsection (1)(a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex. (1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women. … (2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs-- (a) are a woman who is pregnant and a man, or (b) are not of the same marital or domestic status, or (c) are a woman who is breastfeeding and a man.
2. Direct discrimination has two elements, differential treatment and causation. For differential treatment to occur the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person of different sex, and that treatment must have occurred in circumstances which are the same or not materially different. In Purvis v New South Wales [2003] HCA 62; 217 CLR 92 (Purvis) the majority (Gummow, Hayne and Heydon JJ) found at [224] that the relevant circumstances: ..are all of the objective features which surround the actual or intended treatment of the … person by the person referred to in the provision as the "discriminator".
3. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason. That is the case whether or not the lawful reason is the dominant or a substantial reason for doing the act: see s4A of the Act.
4. When considering causation, it is the grounds or the reasons for a respondent's action, as opposed to his or her intentions or motives for so acting, which are relevant: see Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Purvis at [160] and IW v City of Perth (1997) 71 ALJR 943 at 975 per Kirby J. The focus is on the "real reason" for the alleged discriminator's act: see Purvis at [166].
5. Section 25 of the Act outlines what is considered sex discrimination in employment: 25 DISCRIMINATION AGAINST APPLICANTS AND EMPLOYEES … (2) It is unlawful for an employer to discriminate against an employee on the ground of sex-- (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. …
6. Section 49ZG of the Act outlines what constitutes discrimination on the ground of homosexuality: 49ZG WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF HOMOSEXUALITY (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of homosexuality if the perpetrator-- (a) on the ground of the aggrieved person's homosexuality or the homosexuality of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which 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. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.
7. Section 49ZH of the Act outlines what is considered homosexuality discrimination in employment: 49ZH DISCRIMINATION AGAINST APPLICANTS AND EMPLOYEES … (2) It is unlawful for an employer to discriminate against an employee on the ground of homosexuality-- (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. …
8. Section 35 of the Act was relied on by the Respondent with respect to the Applicant's complaint of sex discrimination: 35 PREGNANCY, CHILDBIRTH AND BREASTFEEDING Nothing in this Part renders unlawful discrimination by a person against a man on the ground of sex by reason only of the fact that that person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding.
9. Section 54 of the Act was not relied on by the Respondent but it is convenient to set it out here: 54 ACTS DONE UNDER STATUTORY AUTHORITY (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of-- (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, (c) an order of the Tribunal, (d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or (3) Except as provided in this section, this Act has effect notwithstanding anything contained in - … (c1) the Co-operatives (Adoption of National Law) Act 2012 and the Co-operatives National Law (NSW), … (f) the Registered Clubs Act 1976 , or any instrument of whatever nature made or approved thereunder.

Surrogacy legislation

1. Section 3 of the SA provides that it "is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount".
2. Section 5 of the SA defines a surrogacy arrangement: 5 SURROGACY ARRANGEMENT--MEANING (1) For the purposes of this Act, a "surrogacy arrangement" means: (a) an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a "pre-conception surrogacy arrangement"), or (b) an arrangement under which a pregnant woman agrees that the parentage of a child born as a result of the pregnancy is to be transferred to another person or persons (a "post-conception surrogacy arrangement"). (2) An agreement that the parentage of a child is to be transferred to another person is an agreement to the following effect (however expressed): (a) an agreement to consent to a parentage order or an Interstate parentage order being made in respect of the child so as to transfer parentage of the child to another person, (b) an agreement that the child is to be treated as the child of another person (and not of the woman who gives birth to the child), (c) an agreement that the custody of, or parental responsibility for, a child is to be transferred to another person, (d) an agreement that the right to care for a child is to be permanently surrendered to another person. (3) Other matters may be dealt with in a surrogacy arrangement. (4) A variation to a pre-conception surrogacy arrangement that is made after a woman who agrees to become pregnant or to try to become pregnant under the arrangement becomes pregnant is considered to be a part of the pre-conception surrogacy arrangement. Note: A parentage order can be made under this Act in respect of a surrogacy arrangement only if the arrangement is a pre-conception surrogacy arrangement. There are additional preconditions to the making of a parentage order. These are set out in Part 3. (5) In this Act, a reference to the "birth mother", in relation to a surrogacy arrangement, is a reference to the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement. (6) In this Act, a reference to an "intended parent" is a reference to a person to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement.
3. The purpose of a parentage order is to transfer the parentage of a child of a surrogacy arrangement: s 12(2). The SA sets out statutory preconditions that must be met before a parentage order can be made: s 18(1). These include: 1. That all the affected parties - the birth mother, her partner (if any), another birth parent (if any), and the intended parents - consent to the making of the parentage order: s 31(1) read with the definition of "affected party" in s 4(1); 2. That the Court is satisfied that the making of the parentage order is in the best interests of the child: s 22; 3. That the surrogacy arrangement is "not a commercial surrogacy arrangement": s 23(1); and 4. That all the affected parties received counselling and legal advice prior to entering into the surrogacy arrangement, and that the birth mother and birth mother's partner (if any) received further counselling before consenting to the parentage order: ss 35-36.
4. Section 39 of the SA outlines the effect of a parentage order: 39 GENERAL EFFECT OF ORDER (1) On the making of the parentage order in relation to a child: (a) the child becomes a child of the intended parent or parents named in the order and they become the parents of the child, and (b) the child stops being a child of a birth parent and a birth parent stops being a parent of the child. (2) Accordingly: (a) the child of the surrogacy arrangement has the same rights in relation to the intended parent or parents named in the order as a child born to the parent or parents, and (b) the intended parent or parents named in the order have the same parental responsibility as the birth parent had before the making of the order. …
5. For the purposes of s 23(1), a "commercial surrogacy arrangement" pursuant to s 9(1) is any arrangement that: 1. involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person: 1. Agreeing to enter into or entering into the surrogacy arrangement, or 2. Giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or 3. Consenting to the making of a parentage order in relation to a chid of the surrogacy arrangement.
6. An exception is that the arrangement is not a "commercial surrogacy arrangement" if "the only fee, reward or other material benefit or advantage provided is for the reimbursement of a birth mother's surrogacy costs": s 9(2). Those costs are defined in s 7 as the "reasonable costs" associated with a range of costs set out in s 7(1)-(4). A cost is "reasonable" for the purposes of s 7 only if it is "actually incurred" and "the amount of the cost can be verified by receipts or other documentation": s 7(5).
7. It is a criminal offence for a person to enter into, or offer to enter into, a commercial surrogacy agreement: s 8. The maximum penalty that Parliament has prescribed for an individual is 1,000 penalty units or 2 years' imprisonment or both.

The Teaching Service Act 1980

1. The Applicant is a member of the Teaching Service pursuant to the Teaching Service Act 1980 (NSW) (TS Act), which consists of persons employed under Division 2 of Part 4 of the TS Act: s 44. The Respondent is the employer of the members of the Teaching Service: s 12, and also the agency head of the Department for the purposes of the Government Sector Employment Act 2013 (NSW) (GSE Act).
2. Section 13 of the TS Act empowers the Respondent to determine the conditions of employment for members of the Teaching Service: s 13. Section 5A of the TS Act specifies that: 5A PROTECTION OF CHILDREN TO BE PARAMOUNT CONSIDERATION (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. …

Evidence

1. The Applicant relied on evidence from the following witnesses: the Applicant himself, Gabrielle Micallef, Emma Thompson, and Kevin Kelly. The Respondent relied on evidence from the following witnesses: Anna Kulesz, Leanne Beggs, Scott Dries, and Andrew Bell.

Factual background

1. The factual background to the complaint is largely undisputed. The Applicant has been employed by the Respondent since 2016 as a permanent full-time high school teacher. On 27 May 2019 he entered into a surrogacy arrangement and in June or July 2019 he travelled to Mexico to undertake medical testing and make a sperm deposit. He married his husband in November 2019. On 23 March 2020 the surrogate gave birth to the Applicant's biological twin children in Mexico and the Applicant became their primary caregiver. The children were granted Australian citizenship by descent on 9 April 2020 and on 29 May 2020, the Applicant and his children returned to Australia.
2. The Respondent's Leave Policies are contained at Chapter 4 of the Teachers' Handbook. Subchapter 4.2 of the Teachers' Handbook is titled 'Adoption, maternity, altruistic surrogacy and parental leave (including permanent out of home care placements)', an extract of which is annexed to these reasons for decision for convenience. In summary, the following basic leave entitlements are available to permanent and temporary teachers, subject to certain eligibility requirements: Name of leave Staff category Basic entitlement Maternity leave All permanent and temporary teachers who are pregnant Up to 52 weeks of leave, of which 14 weeks at full pay/ 28 weeks at half pay may be paid leave In addition, up to 9 weeks of leave prior to the anticipated date of birth Adoption leave All permanent and temporary teachers who will be the primary caregiver of an adopted child Up to 52 weeks of leave, of which 14 weeks at full pay/ 28 weeks at half pay may be paid leave Altruistic surrogacy leave All permanent and temporary teachers who will be the primary caregiver of a child as a result of an altruistic surrogacy Up to 52 weeks of leave, of which 14 weeks at full pay/ 28 weeks at half pay may be paid leave Parental leave All permanent and temporary teachers who become parents following a birth, adoption or altruistic surrogacy but are not eligible for maternity, adoption or altruistic surrogacy leave Up to 52 weeks of leave, of which 1 week at full pay/ 2 weeks at half pay may be paid leave Permanent out of home care leave All permanent and temporary teachers who will be carers of a child based on the provision of a guardianship or a permanent placement order Up to 52 weeks of unpaid leave

1. The leave entitlements for teachers originate from various sources. Maternity leave comes from Determination No 7 of 2016 under the TS Act (Maternity Leave Determination), adoption leave comes from Determination No 9 of 2016 under the TS Act (Adoption Leave Determination), and parental leave comes from Determination No 8 of 2016 under the TS Act (Parental Leave Determination).
2. Altruistic surrogacy leave, as described in the current Teachers' Handbook, has a rather more complex source. According to the Respondent, from 3 April 2018 to 21 December 2018 the leave entitlement was set out in the Department's 'Industrial Relations Directorate Circular IRC 18/02: Parental Leave for Employees in Relation to Altruistic Surrogacy and Permanent Out-Of-Home Care Arrangements' issued on 3 April 2018 (2018 Circular), which adopted the terms of Determination No 1 of 2018 under the GSE Act (2018 Determination). The 2018 Determination provided the following entitlement: Leave for the purposes of altruistic surrogacy - For the primary care giver - 12 months' leave of which 14 weeks is paid and the remainder unpaid, as per the provisions available for adoption leave under the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.
3. From 21 December 2018 to April 2020, the altruistic surrogacy leave entitlement was set out in the 2018 Circular and the 'Premier's Memorandum M2018-02 - Support for employees engaged in altruistic surrogacy and permanent out of home care parenting arrangements', issued on 21 December 2018 (2018 Premier's Memorandum). From April 2020 to date, the leave entitlement has been set out in the 2018 Circular, the 2018 Premier's Memorandum and the current Teachers' Handbook.
4. Under cll 4.2.3.1 and 4.2.5.1 of the current Teachers' Handbook and cll 2.1 and 2.4 of the Maternity Leave Determination, a teacher who is pregnant and gives birth (including to a stillborn baby) is entitled to 14 weeks' paid leave (Maternity Leave). The Respondent admitted, and it is clear from the terms of cl 4.2.5.1(i) of the Teachers' Handbook, that only female teachers could be eligible for Maternity Leave. A male or female teacher who is the primary caregiver of a child through adoption is entitled to 14 weeks' paid leave (Adoption Leave), and a male or female teacher who is the primary caregiver of a child born through 'altruistic surrogacy' is also entitled to 14 weeks of paid leave (Altruistic Surrogacy Leave), subject to the provision of certain documents. In the case of Altruistic Surrogacy Leave, reflecting the terms of the 2018 Determination, the Teachers' Handbook states at 4.2.6: Altruistic surrogacy leave is available to teachers who are able to demonstrate they are the parent of a child as follows: - Intended parent(s) are to notify the Department at least four (4) months before the expected birth and provide a copy of the pre-conception surrogacy agreement, as provided for under the Surrogacy Act 2010 (redacted as necessary to protect the privacy of non-employees); - At the time of assuming the role of primary or secondary carer the teacher is to provide a statutory declaration advising that they are now the primary or secondary carer of the child and intend to make an application for a parentage orders as required under the Surrogacy Act 2010; - A copy of the parentage order application (redacted as necessary) is provided as soon as practicable after it is lodged; and - A copy of the parentage order (redacted as necessary) is provided as soon as practicable after it is granted.
5. While the Teachers' Handbook includes 'conditions' for Maternity Leave entitlements at 4.2.5.1, Adoption Leave entitlements at 4.2.4.1 and Altruistic Surrogacy Leave entitlements at 4.2.6.1, there are no requirements stated within the Teachers' Handbook on applicants for Maternity Leave or Adoption Leave to demonstrate they are the parent of the child in order to be eligible for those types of paid leave. The requirements for an applicant for maternity leave to produce notification of the child's birth, and for an applicant for adoption leave to produce notification of the child's adoption, are contained within the Maternity Leave Determination and Adoption Leave Determination respectively.
6. If the teacher becomes a parent prior to 1 July 2021 but is not eligible for Maternity Leave, Adoption Leave or Surrogacy Leave, under cl 4.2.7.1 of the current Teachers' Handbook and cl 2.1 of the Parental Leave Determination, they are entitled to 1 week of paid leave as 'Parental Leave'. Recently this entitlement has been increased to 2 weeks of paid leave.
7. EDConnect is a human resources service run by the Department to provide support, information and advice for schools and staff. Shared Services Human Resources (SSHR), which has its own Customer Service Team (CST) is part of EDConnect. The Department uses the Systems Applications and Products (SAP) payroll system to manage pay and leave for employees. This contains an Employee Self Service system (ESS) where employees submit leave applications. Leave applications are reviewed by SSHR CST staff against the eligibility criteria contained in the Teachers' Handbook, the Award, and relevant determinations. Once eligible, an application is endorsed and escalated to the appropriate delegate for approval. If ineligible, the application is rejected by the SSHR CST. SSHR CST record employee enquiries in a service management database called 'Remedy'.
8. The SAP payroll system does not have an option for employees to apply for surrogacy leave. SSHR generally advises employees wishing to apply for surrogacy leave to use the 'Adoption Leave' payroll code.
9. According to Remedy, on 21 January 2020 the Applicant made four telephone enquiries concerning his leave entitlements and spoke to SSHR CST staff. He was emailed a copy of the 2018 Determination. On 23 January 2020 the Applicant applied for 'Adoption Leave Half Pay' for 28 weeks through SAP Payroll's ESS, specifying the 'Date of Custody' as 31 March 2020. He included a copy of the front page of the surrogacy contract he had entered into, which was dated 27 May 2019.
10. On 10 February 2020 the Applicant's application for 14 weeks' paid 'Adoption Leave' was rejected. The email from SSHR CST to the Applicant stated: You were advised in a previous incident (INC000009757748) and given a document regarding the requirements to be granted adoption leave for surrogacy. As you have indicated that you will not be obtaining a NSW Parentage Order, your adoption leave cannot be approved. The application that you have submitted on line has therefore been declined. You would be eligible for 5 days paid parental leave with supporting documentation of the birth certificate. You would need to reapply for another form of leave to cover your original adoption leave period.
11. On 10 February 2020 the Applicant emailed various employees of the Respondent within SSHR, stating the following: I am contacting you directly as I am seeking your help and assistance with a matter concerning taking (adoption) leave. I have requested the leave and it has been declined as I have stated I will not be supplying a NSW Parentage Order. I have explained multiple times to people at EDConnect (it should have been recorded) that I cannot supply this documentation as I am the biological father and one of the partners being listed on the Birth Certificate - the other name is the surrogacy (birth mother) name. What the department is asking of me is to adopt my own child and this is not possible due to the fact that I will be the father stated on the childrens Birth Certificates. If the birth of the twins goes to plan and there are no complications the surrogate has signed a contract stating she will be relinquishing her rights and I will be the primary carer for the two children. I hope you are able to assist with this concern, as I know you have been a great help to [Ms X] a few years ago when she engaged in surrogacy. You can reply to this email and/or contact me on [number redacted].
12. On 11 February 2020 the Applicant spoke with EDConnect twice. Mr Scott Dries, the Senior Manager of SSHR then spoke with the Applicant and confirmed his conversation via email, repeating the documentation requirements for surrogacy leave as per the 2018 Determination and stating: Should you provide the statutory declaration but then not apply for or be granted the [parentage] orders, then the entitlement to the leave will be rescinded.
13. Between 11 February 2020 and 20 May 2020 the Applicant communicated directly and through his solicitor with various representatives of the Respondent, including the Department's Legal section, in relation to his request for paid leave. On 12 May 2020 the Applicant sent Mr Dries an email attaching a "revised statutory declaration" attaching a copy of the surrogacy contract dated 27 May 2019. The revised statutory declaration stated the following: I am married to Morgan Stephen Long (see evidence attached). Together we have engaged a surrogate to start a family of our own. The surrogate gave birth on the 23/03/2020. From the 30/03/2020, I am the primary carer and I intend to make an application for a parentage order as required under the Surrogacy Act 2010. This will entitle me to: Leave for the purposes of altruistic surrogacy - For the primary care giver - 12 months' leave of which 14 weeks is paid and the remainder unpaid, as per the provisions applicable for adoption leave under the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. - For the secondary care giver - short and extended other parent leave in accordance with clause 75.4 of the Crown Employees (Public service Conditions of Employment) Reviewed Award 2009. I agree to provide all documentation required as per the NSW DoE guidelines - Intended parent(s) to notify their employer at least four months before the expected birth and provide a copy of the pre-conception surrogacy agreement, as provided for under the Surrogacy Act 2010 (redacted as necessary to protect the privacy of non-employees); - At the time of assuming the role of primary or secondary carer the employee is to provide a statutory declaration advising that they are now the primary or secondary carer of the child and intend to make application for a parentage order as required under the Surrogacy Act 2010; - A copy of the parentage order application (redacted as necessary) is provided as soon as practicable after it is lodged; and - A copy of the parentage order (redacted as necessary) is provided as soon as practicable after it is granted.
14. On 20 May 2020 Mr Dries emailed the Applicant to inform him that he was being granted surrogacy leave. The email included: As highlighted previously, the granting of this leave is conditional upon you providing the following documents in due course: 1. A copy of the parentage order application (redacted as necessary) as soon as practicable after it is lodged AND 2. A copy of the parentage order (redacted as necessary) as soon as practicable after it is granted. If the documents at points 1 and 2 are not provided then your entitlement to this leave will be rescinded and monies paid to you will need to be repaid. I will set a reminder to check with you in 3 months on your progress obtaining the information at points 1 and 2.
15. On 18 August 2020 Mr Dries sent the Applicant an email chasing up the provision of the Parentage Order documents anticipated in the Applicant's revised statutory declaration. He did not receive a response. The Applicant's complaint was filed with ADNSW shortly thereafter.
16. On 1 February 2021 the Applicant called SSHR to ascertain the amount he would need to repay if he did not seek a parentage order. He was informed that the value of the leave paid to him was $24,495.65, but the repayment amount could be affected by certain leave accruals.

Cameron Long

1. The Applicant was cross examined at hearing on 28 July 2021. His evidence is discussed below in consideration of the legal principles.

Gabrielle Micallef

1. Gabrielle Micallef is a consultant psychologist who was treating the Applicant for a psychological workplace injury in the context of his workers compensation claim. She provided an affidavit to the Tribunal annexing the correspondence she had received from the Applicant's solicitors for a report requesting her diagnosis of the Applicant's condition and her opinion whether that diagnosis had been 'exacerbated by the discrimination outlined above and the nature and extent of that exacerbation', and her report dated 24 May 2021.
2. The Applicant had consultations with Ms Micallef, usually on a fortnightly basis, from 27 August 2020 to the date of the report. Ms Micallef stated that, consistent with the psychiatric assessment conducted by Dr Graham George on 24 June 2020, the Applicant's diagnosis was 'experiencing symptoms of Adjustment Disorder with anxious mood'. The onset of these symptoms was dated by Ms Micallef to 16 March 2020, following an incident at the school at which he taught.
3. In response to the question 'Has diagnosis been exacerbated by Discrimination claims', Ms Micallef stated in her report: As the focus of treatment has been on the assessment and treatment of his psychological workplace injury, I am not able to comment on this direct association. Cameron has reported occasionally on aspects of a toxic, unsafe and unsupportive school culture and associated discrimination but we did not explore this in detail. I can note that Cameron has reported periods of exacerbation in his condition including heightened anxiety, increased thought rumination and sleep disturbance during the course of treatment.
4. Ms Micallef was cross examined at hearing on 28 July 2021. Her evidence was relevant only to the issue of damages.

Emma Thomson

1. Emma Thomson is the solicitor with carriage of the Applicant's matter, employed by Foye Legal. Her first affidavit attaches the results of searches she conducted of statistics from the Australian Bureau of Statistics in relation to men and women's uptake in maternity leave and paternity leave. Her second affidavit attaches the documents produced under summons issued to Ms X. Ms Thompson was not required for cross examination and her evidence is accepted by the Tribunal.

Kevin Kelly

1. Kevin Kelly is a male teacher, married to a woman, who used to be employed by the Respondent. His evidence was to the effect that he was unable to consider if he would be the primary caregiver following the birth of his fourth child in 2013 because according to the Department's policies and the Award, he was only entitled to one weeks' paid leave as the child's father. His evidence was undisputed and is accepted by the Tribunal.

Anna Kulesz

1. Ms Anna Kulesz is the Director of Public Sector Employee Relations (PSER), a unit within the Department of Premier and Cabinet. Ms Kulesz was not required for cross examination and her evidence is accepted by the Tribunal.
2. Ms Kulesz's affidavit explained the process by which the NSW Government developed a government sector-wide policy on altruistic surrogacy leave, including consultation with the unions and government sector agencies, and the instruments and policy documents issued to bring about that result. In December 2016 Unions NSW proposed that employees should receive altruistic surrogacy leave from the moment they assumed the role of primary carer in an altruistic surrogacy arrangement, with evidence to be provided to the employer including the pre-conception surrogacy agreement and a statutory declaration to the effect that they are the primary caregiver. The Unions NSW proposal was accepted in February 2017 with an amendment that, additionally, the statutory declaration include their intention to make an application for a parentage order, and the provision of a copy of the parentage order once it was obtained. Eligibility for surrogacy leave was to be limited to the attainment of a parentage order under the SA to be consistent with NSW legislation on recognition of altruistic surrogacy arrangements.
3. Following the issue of the Premier's Memorandum in 2018, a further determination was made under s 52(1) of the GSE Act in June 2021 (the 2021 Determination) which 'enhanced' and consolidated certain leave entitlements for babies born after 1 July 2021. The 2021 Determination refers to 14 weeks' 'Paid Parental Leave' for leave associated with the birth of a child of the employee, the employee's spouse, or the employee's 'legal surrogate' where the employee has primary responsibility for the care of the child. Evidence required of the employee for surrogacy-related leave is as required by the 2018 Determination.

Leanne Beggs

1. Ms Leanne Beggs is a Senior Industrial Officer within the Respondent's Department. Ms Beggs' affidavit identified the statutory basis for employment conditions in the teaching service as prescribed by determinations made under the TS Act, and explains the policies that the Department follows in granting altruistic surrogacy leave to teachers, and their sources. Prior to 2013 there was no instrument which formalised the Department's position on the provision of altruistic surrogacy leave. Ms Beggs drafted the 2013 Memorandum from the Director of Industrial Relations in the Department's predecessor to the Director HR Shared Services, to ensure consistent practice in the administration of this type of leave.
2. The 2013 Memorandum allowed for applications to be considered on a case by case basis until there was a consistent governmental approach to surrogacy leave, relying on the date of parentage orders under the SA as the date upon which the surrogacy leave started. In March 2018 after a period of union and sector consultation (which was addressed in Ms Kulesz' affidavit) the NSW Government introduced 'parental leave for employees in relation to altruistic surrogacy, which for the primary carer of the child (regardless of gender) is an entitlement to 12 months of unpaid parental leave, of which 14 weeks is paid parental leave and the rest is unpaid". This position was expressed in the 2018 Determination, which does not itself apply to the teaching service. However, effective from 6 March 2018 the Department adopted the provisions of the 2018 Determination and a circular recording that position was circulated within the Department. On 21 December 2018 the Premier's Memorandum was issued which referred to the 2018 Determination and "strongly encouraged" the teaching service and other public sector departments, agencies and corporations "to provide the same leave provision and support to their employees". Chapter 4 of the Teachers' Handbook was updated in April 2020 to include the equivalent entitlement to altruistic surrogacy leave as that applicable under the 2018 Determination.
3. Ms Beggs opined that should the Department deviate from the 'sector-wide position', including the requirement of a parentage order as per the Premier's Memorandum, this would 'make it out of step with the rest of government and potentially create inequitable outcomes for employees due to differential rules being applied'. Ms Beggs was not required for cross examination and her evidence is accepted by the Tribunal.

Scott Dries

1. Mr Scott Dries is a Senior Manager within the Shared Service Human Resources Directorate (SSHR) in the Department. Mr Dries' affidavit and oral evidence at hearing explained how leave is generally applied for, assessed and granted for the Department's employees, how he assessed and ultimately granted Mr Long's application for leave, and the conditions which were imposed on that leave. Whilst he did not deal with the Applicant's initial inquiries regarding surrogacy leave, and was not the employee who described the Applicant's inquiry as 'weird', he was the manager responsible for that employee and took over management of the Applicant's application from 11 February 2020. Mr Dries was cross examined at hearing.
2. The Respondent submitted that the Tribunal should accept Mr Dries' evidence that he treated the Applicant in the way he did - by requiring him to provide a parentage order and informing him that if one was not supplied he may have to repay the leave granted - because he considered he was bound to follow the Department's policies for the grant of altruistic surrogacy leave. We agree that Mr Dries' evidence and his contemporaneous correspondence with the Applicant makes it clear that Mr Dries is applying the requirements of those policies, and accept that submission accordingly.

Andrew Bell

1. Mr Andrew Bell, the Respondent's solicitor in these proceedings, provided an affidavit annexing documents which the Respondent had obtained via summons issued to the Applicant, and publicly available information obtained by him from the internet. The documents annexed included the contract and evidence of costs associated with the surrogacy arrangement entered into by the Applicant, information about and from the surrogacy agency 'Miracle Surrogacy', information about commercial surrogacy in Mexico according to the US embassy website, and extrinsic material and review of the SA including parliamentary reports into altruistic surrogacy legislation, second reading speech and explanatory memorandum for the Surrogacy Bill, and the report on a 2018 statutory review of the SA.
2. Mr Bell was not required for cross examination and his evidence is accepted by the Tribunal.

Surrogacy and parentage

1. A fertilised embryo which develops into a foetus has two biological parents: the person whose DNA is contained in the sperm and the person whose DNA is contained in the egg which is fertilised by that sperm. For convenience in these reasons for decision they will be referred to as the 'biological father' and 'biological mother' respectively. Some surrogacy arrangements involve two people: the biological father whose sperm is contributed, and the birth mother who also is the biological mother, as her egg is used. Other surrogacy arrangements can include three people: a biological father, a biological mother, and a birth mother who carries the embryo created by the biological father's sperm and biological mother's egg through pregnancy and childbirth. The biological mother and biological father may or may not be known to each other, and may or may not ultimately be considered the parents of the child at law. In a surrogacy arrangement, parentage is determined by agreement and law and does not necessarily have to include the biological mother or the biological father.
2. Although certain aspects of the arrangement entered into by the Applicant were disputed, including whether or not the arrangement was 'altruistic surrogacy' or 'commercial surrogacy' within the meaning of the SA, the biological aspects were undisputed. The Applicant was the biological father of the children as he had contributed his sperm. The biological mother, being the person whose egg/s were fertilised, was also the birth mother, who carried the children and gave birth to them.
3. The nature of the surrogacy arrangement entered into by the Applicant was controversial because commercial surrogacy arrangements are illegal in most Australian states and territories. As discussed above, in New South Wales, s 8 of the SA makes entering into commercial surrogacy arrangements an offence carrying a maximum penalty for an individual of 1,000 penalty units or imprisonment for 2 years, or both. The respondent's policies refer only to 'altruistic surrogacy' but do not define what is meant by that term. Considering the context of the development and incorporation of those policies, we accept that the term was intended to reflect the definition of altruistic surrogacy as contained in the SA.
4. A person becoming a parent pursuant to a surrogacy arrangement can obtain a parentage order from the Supreme Court of NSW: ss 12, 39 SA. The Respondent's Altruistic Surrogacy leave policy requires an employee who applies for that leave to obtain such a parentage order and provide a copy of it to the Respondent: cl 4.2.6 of the Teachers' Handbook. The reason given by the Applicant in his Points of Claim and expressed in his evidence as to why he did not or could not obtain a parentage order under the SA was that he was the biological father of the children. In his correspondence to SSHR regarding the denial of his application for surrogacy leave he states: I have stated I will not be supplying a NSW Parentage Order. I have explained multiple times to people at EDConnect (it should have been recorded) that I cannot supply this documentation as I am the biological father and one of the partners being listed on the Birth Certificate - the other name is the surrogacy (birth mother) name. What the department is asking of me is to adopt my own child and this is not possible due to the fact that I will be the father stated on the childrens Birth Certificates.
5. The Applicant's evidence under cross examination was that when he provided the statutory declaration stating that he intended to obtain a parentage order for the children to the Department, that statement was accurate. When Mr Dries emailed him in August 2020 chasing up the provision of the parentage order he did not respond, and the ADNSW complaint demonstrates that it was filed the following day.
6. The Applicant's Points of Claim state at paragraph 25: The Applicant cannot obtain a parentage order because he is the children's biological parent.
7. However, as submitted by the Respondent, this is not an accurate statement. While the SA makes no mention of biological fathers, it refers to "birth parents" at s 4 as "a person (other than an intended parent) who is recognised at law as being a parent of the child at the time when the child is born", which would include a biological father. A person can be an "intended parent" who is capable of being granted a parentage order even if that person has contributed genetic material (an egg or sperm) for the child's conception, and is thus in colloquial terms a "biological parent". Section 5(b) and 5(d) of the SA accommodates a situation where a person who is already the child's legal parent - such as the Applicant - remains a parent, but the birth mother and/ or another legal parent agree to relinquish their parental rights. The effect of a parentage order at s 39 of the SA also accommodates a situation in which a child stops being the child of a birth parent, and the intended parents (or the intended parent) become the child's parents.
8. As submitted by the Respondent: The same is true even if the law would already recognise that person as a parent when the child is born. The work done by a parentage order in that case will be to remove the parental status and rights of the birth mother and any other person recognised as a legal parent, and to confirm the parental status and rights of the intended parent and (if applicable) the second intended parent. That interpretation is confirmed by the case law. For example, in AB v EF [2013] NSWSC 866, a case involving twins born to a surrogate who was the biological and birth mother, Ball J made a parentage order in favour of the two plaintiffs, who were the biological father of the twins (AB) and AB's wife (CD). In S v B [2014] NSWSC 1533, where (relevantly) the intended father was the biological parent and was recorded as the father on the child's birth certificate but only the intended mother initially sought a parentage order, the Court held that the parentage order application "should have been brought by both the intended mother and the intended father and the order sought should have been for the transfer of the parentage of the child from both the surrogate mother and her husband to the intended mother and the intended father" (at [1]-[4]). The Court made orders in those terms (at [35]). In GP v BP [2018] NSWSC, the Court made a parentage order in favour of the child's biological parents, who had contributed the ovum and sperm via IVF to the birth mother (at [7], [24]). And in MJC and CSC; re EMC [2012] NSWSC 1626, the Court ordered that the child's parentage be transferred from the birth mother to the first plaintiff (the child's biological father) as father and the second plaintiff as parent (at [24]).
9. The Tribunal accepts the Respondent's submissions on the interpretation of the SA with respect to biological parents.
10. Under cross examination the Applicant accepted that he had not, in fact, applied to the Supreme Court for a parentage order: Q. Is it correct that you did not apply for a parentage order after your leave was granted? A. No, I did not. Q. And you still haven't applied for a parentage order? A. Under legal advice, no. Q. It's correct isn't it that the reason you haven't applied is not because it's financially prohibitive to apply? A. No.
11. Contrary to the Applicant's evidence and submissions, the reason he was not able to obtain a parentage order from the Supreme Court is not because he is the biological father of the children. Whatever the reason, the fact is that the Applicant has not followed through with the intention he expressed in his statutory declaration to apply for a parentage order, which means that he has not complied with the Respondent's requirements under its Altruistic Surrogacy Leave policy.

The Treatment

1. The Applicant alleged the following treatment was discriminatory conduct by the Respondent (the Treatment): 1. The rejection of his application for 14 weeks' paid leave; 2. Requiring the Applicant to obtain a parentage order; 3. Requiring the Applicant to repay the leave he was eventually granted.
2. Addressing each aspect of the Treatment in turn, the evidence supports the Tribunal finding that, initially, the Respondent did reject the Applicant's application for 14 weeks' paid leave. The rejection of leave continued until leave was granted on 20 May 2020, following the Applicant's provision to Mr Dries of a statutory declaration to the effect that he was the primary caregiver of the children, would be applying for a parentage order, and would provide a copy of that parentage order when it was granted.
3. According to the documentary evidence including the email of 10 February 2020 rejecting the Applicant's application, the correspondence between 10 February 2020 and 20 May 2020 and the evidence of Mr Dries, this was because the Applicant had expressed to SSHR staff that he would not be able to (or would not) obtain a parentage order, and had not otherwise complied with the requirements contained in the Altruistic Surrogacy Leave policy in the Teachers' Handbook to provide the relevant statutory declaration. We accept that evidence.
4. The fact that the Applicant was required by the Respondent to obtain a parentage order is undisputed. We accept the evidence of Mr Dries and the contemporaneous correspondence between the Applicant and SSHR staff, including Mr Dries, that both the initial rejection of the Applicant's application and the requirement that he obtain a parentage order were the result of SSHR staff and Mr Dries following the Department's policies for the grant of altruistic surrogacy leave.
5. It is undisputed that Mr Dries had explicitly raised with the Applicant the prospect of him having to repay the value of the leave if the requirements of the Altruistic Surrogacy Leave policy were not ultimately complied with, since the leave was granted on 20 May 2020. It is also undisputed that the Applicant has not obtained the parentage order referred to in his statutory declaration, and has not provided a copy of a parentage order for his children to the Respondent. The evidence demonstrates that the Applicant has not yet been required by the Respondent to repay the value of the 14 weeks' paid leave he was granted on 20 May 2020.

Additional Treatment

1. At hearing the Applicant submitted that the adverse or less favourable treatment he was subjected to by the Respondent's conduct included his application being processed by the Respondent under 'inappropriate categories', that his inquiry regarding surrogacy leave entitlements was described as 'weird' by an employee of the Department, and that he was told by the Department that 'the most he was entitled to was 1 week because he was a man' (the Additional Treatment). The Additional Treatment was not explicitly relied on by the Applicant as constituting 'differential treatment' and there were no submissions made to that effect in connection with a comparator, real or hypothetical.
2. Mr Dries' evidence was that the leave system did not have a separate category for surrogacy leave and so the Applicant's application was entered as 'adoption leave' with explanatory notes specifying that the leave was for surrogacy. This was the practice for all surrogacy leave applications. The Tribunal accepts this evidence. There was no submission made that any other employee of the Respondent - real or hypothetical -would not have been similarly treated. To the contrary, the evidence of Ms X's surrogacy leave obtained from summonsed records was that her application for leave was processed as 'maternity leave', 'maternity (equivalent) leave' and 'adoption leave', with the notes on those records clarifying the leave was granted for Ms X's children's birth via surrogacy in India. The Tribunal finds that there was no differential treatment in relation to the characterisation of the Applicant's leave application by the Respondent.
3. The Applicant's further complaint that his request was described as 'weird' by the SSHR CST representative who initially took his inquiry via ED Connect, and that his evidence under cross-examination was he was told 'the most he was entitled to was 1 week because he was a man' rely on the Tribunal drawing factual inferences that this occurred because the Respondent and its employees held cultural stereotypes about men and homosexual men not being the primary caregiver for children. An inference was therefore open to the Tribunal that: …this comment is evidence that employees of the Respondent involved in the process of determining the Applicant's request considered him unsuitable for leave greater that 1 week's parental leave, because he was a man and/or because he was a homosexual man seeking such leave.
4. The issue of the Tribunal making factual findings on the basis of inferences is addressed in more detail below at [114] to [116]. Essentially, though, the Tribunal may take 'judicial notice' of bias against the protected attributes in question (here, men and homosexual men not being primary caregivers for children) in finding that discrimination occurred. However, a finding of discrimination is not available on inference if there is a more probable and innocent explanation for the impugned conduct.
5. We accept that the Applicant's inquiry regarding surrogacy leave entitlements was described in internal SSHR records as 'weird', but even if we accepted that this constituted differential treatment in relation to a comparator, we do not agree that an inference should be drawn that the request was referred to as 'weird' because he was a male or a homosexual male. Considering the Respondent's evidence of the rarity of surrogacy leave applications made by the Department's employees - approximately 10 such applications excluding the Applicant's, including applications prior to 2013 - the obvious, more probable and innocent explanation is that the request was 'weird' because the employee taking the call from the Applicant was unlikely to have dealt with a surrogacy leave application before. There being a more probable innocent explanation in the circumstances, the Tribunal is not willing to make a finding on inference that the Applicant's request was referred to as 'weird' by the Respondent's employee because he was a man or a homosexual.
6. In relation to the Applicant's evidence under cross-examination that he was told 'the most he was entitled to was 1 week because he was a man', the transcript of his evidence provides contextual evidence which makes the inference unacceptable to the Tribunal. The following exchange occurred during the Applicant's cross-examination (emphasis added): Q. Do you accept that nothing in this policy says that a male teacher isn't entitled to paid altruistic surrogacy leave? A. No. Q. You don't accept that? A. I'm confused by the question, because this is - I was told I either apply for this or I just apply for one week full pay as I'm a male. So I don't understand what you're asking. Q. The question is, when you look to how altruistic surrogacy leave is described in the pages we've been to, including page 671 that says, "All permanent and temporary teacher who will be the primary caregiver", do you accept that the policy does not say that you have to be female to get relief? A. No, it doesn't, it says a parent, one parent. Q. And the policy also doesn't say that you have to be heterosexual to get surrogacy leave? A. No.
7. The evidence is clear that he was told that he could, in his circumstances, either apply for the altruistic surrogacy leave or apply for one week full pay. This accurately reflects the options available to the Applicant pursuant to the Teachers' Handbook - he could either apply for the 14 weeks' paid altruistic surrogacy leave, which required specific evidentiary documentation, or he could apply for 1 week's paid Parental Leave, which was available to all parents who weren't otherwise eligible for surrogacy or adoption leave. The Tribunal therefore does not find factually or by inference that the Applicant was told by the Respondent's employee that 'the most leave he was entitled to was 1 week because he was a man', or words to that effect.

Comparator

1. The identification of an appropriate comparator is often a fraught issue in discrimination complaints. In Watts v Australian Post (2014) 222 FCR 220: 277 at [242]-[243] in the context of disability discrimination, the Federal Court explained: … the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the "real reason" for the person's treatment more readily emerges. In the context of s 5(2)(b), it can be said that the "real effect" more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between "less favourable treatment "and "because of the disability" in s 5(2)(b). They are not two separate elements: rather, by reason of the comparison required, either the conclusion will be that the effect of the failure to make reasonable adjustments was to treat a person less favourably because of her disability, or the conclusion will be that it was not. That is why the circumstances with which the comparator is invested are so critical.
2. In determining whether there was discrimination within the meaning of the Act, the Tribunal is required to first identify the circumstances attending the treatment - namely, the "objective features that surround the actual or intended treatment" of the Applicant by the discriminator. Then a comparison must be made to consider how, in those circumstances, the Respondent would have treated a person of a different gender or sexuality to the Applicant: see Purvis at [222]-[225].
3. The comparator relied on by the Applicant to demonstrate the less favourable treatment is: … female teachers who are employees of the Respondent who apply for 14 weeks paid leave after the birth of their biological children who were: a. Granted 14 weeks paid leave; b. not required to repay leave paid to them; and c. Not asked to provide a parentage order.
4. The identification of that comparator is predicated on the fact that the Applicant is the biological parent of the children, to the same effect that a woman is the biological parent of a child to whom she has given birth. However the Respondent's policies and their application are not all predicated on the issue of biology. Various types of leave entitlements are provided by the Respondent to its employees pursuant to the Award and the adoption of determinations pursuant to statute such as the TS Act, which are expressed in the Teachers' Handbook.
5. The Respondent stated that the correct comparator is: … a female teacher who will be the primary caregiver of a child as a result of a surrogacy arrangement.
6. Applying Purvis, it is not enough to only consider the treatment in determining who the appropriate comparator is and whether there had been differential treatment. The Tribunal needs to consider the objective circumstances of the treatment, which includes, as submitted by the Respondent, the context of the Applicant becoming a biological parent as a result of a surrogacy arrangement. Comparing the Applicant with all female teachers who become biological parents, or all heterosexual teachers who become biological parents, is not specific enough to the relevant objective circumstances. Parentage arising from a woman's entry into a surrogacy arrangement is materially different from parentage arising through a woman giving birth to a child, even where the woman is a biological parent of the child.
7. We agree that the proper comparator in the context of the Applicant's sex discrimination complaint is a female teacher who will be the primary caregiver of a child born as a result of a surrogacy arrangement. Even more specifically, the context could include (as submitted by the Applicant) the fact that the female teacher is a biological parent of the child. In the context of the Applicant's sexuality discrimination complaint the proper comparator is a heterosexual teacher who will be the primary caregiver of a child born as a result of a surrogacy arrangement. The question then is whether that female or heterosexual teacher would have been subjected to more favourable treatment than the Applicant was - specifically, whether they would have also had their 14 weeks' paid leave request rejected, whether they would have been required to obtain a parentage order, and whether they would have been required to repay the leave granted in the event that they did not, ultimately, obtain the parentage order.
8. The Applicant submitted in the alternative, although it was not pleaded in his Points of Claim, that even if the Respondent is correct that the correct comparison is 'a woman applying for surrogacy leave' compared to the Applicant as 'a man applying for surrogacy leave', the evidence supports a finding that at least one female employee in the same position as the Applicant was granted leave when the Applicant was not. Summonses were issued to the Department and Ms X, an employee of the Department, with respect to the Ms X's surrogacy leave applications and the Respondent's determinations of those applications. We accept on that evidence that Ms X was granted 14 weeks' paid leave on two occasions, in around December 2011 and again in around December 2012 when she became the mother, via surrogacy, of her two children. We accept that the leave applied for was called "maternity leave" or "maternity leave (equivalent)". These applications for leave and their approvals occurred before 2013, which is before the Department had developed a consistent approach or policy for the approval of surrogacy leave, as was explained by Ms Beggs' evidence. While the approvals for leave came after the introduction of the SA, they occurred years prior to the 2018 Determination and the development of the Altruistic Surrogacy Leave entitlements which applied at the time that the Applicant's children were born. We therefore do not accept that Ms X's circumstances are objectively similar enough to the Applicant's for her to be considered the proper comparator in these proceedings.
9. The Applicant submitted that the fact there was no evidence from the person who made the decision allowing Ms X to take two separate periods of 14 weeks' paid maternity leave for the birth of her children via surrogacy should result in the Tribunal drawing an adverse inference pursuant to Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 in favour of the Applicant, that such evidence would not have assisted the Respondent. We don't agree that the circumstances of Ms X's leave for surrogacy are an appropriate comparator to the Applicant in determining whether there was differential treatment. Prior to 2013, surrogacy leave applications were determined by the Department on a case by case basis, with reference to leave policies which did not, at that time, include the option of altruistic surrogacy leave and did not require the documentary evidence which is now required by the Altruistic Surrogacy leave policy. There is no evidence to support a finding that, had Ms X applied for surrogacy leave after 2018, like the Applicant, she would have been treated any differently to the Applicant.

Discrimination in Employment - ss 25 and ss 49ZH of the Act

1. Sections 25 and 49ZH of the Act, outlining sex and homosexuality discrimination respectively, are in similar terms. The Applicant alleged the Treatment was discrimination on the ground of sex and homosexuality, because: 1. it concerned the terms or conditions of employment offered to the Applicant within the meaning of ss 25(2)(a) and 49ZH(2)(a) of the Act and/or 2. involved denying his access to 14 weeks paid leave being a benefit associated with employment and within the meaning of ss 25(2)(b) and 49ZH(2)(b) of the Act and/or 3. involved detriments, to the extent that he received much less paid leave as a man who was the primary caregiver to his infant children than female employees of the Respondent who were the biological parent of their infant children within the meaning of ss 25(2)(c) and 49ZH(2)(c) of the ADA.
2. The Respondent accepted that the criteria for the grant of altruistic surrogacy leave under the Department's applicable policies (including the requirement to apply for and be granted a parentage order) amount to terms and conditions of employment within the meaning of ss 25(2)(a) and 49ZH(2)(a), or limitations on access to benefits associated with employment within the meaning of ss 25(2)(b) and 49ZH(2)(b) of the Act. It denied that there had been a denial of access to benefits associated with employment within the meaning of ss 25(2)(b) and s 49ZH(2)(b) on the basis that the 14 weeks' leave was ultimately granted to the Applicant.
3. A finding under ss 25 or 49ZH of the Act cannot be made unless the Tribunal first determines that discrimination within the meaning of s 24 or 49ZG occurred. What amounts to discrimination for the purposes of s 25 and s 49ZH is to be derived in the first instance from the relevant definition provided by sections 24 and 49ZG: see Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters) at 392 per Dawson and Toohey JJ in the context of disability discrimination. That is because ss 25 and 49ZH make unlawful (in the circumstances set out in those sections) acts amounting to discrimination within the meaning of ss 24 and 49ZG: Waters at 392. In other words, a finding of discriminatory conduct under ss 24 or 49ZH is not unlawful unless that conduct also contravenes ss 25 or 49ZG.

Sex Discrimination

1. The Applicant's claim for discrimination on the ground of sex, as expressed in the Points of Claim, was: Direct Discrimination - s 24(1)(a) of the ADA 29 The Treatment was direct discrimination within the meaning of s 24(1)(a) and 24 because it was done: a. Because of: i. his sex or ii. a characteristic generally imputed to men that they are not the primary caregiver of infant children from around the time of birth; and b. It was less favourable than female employees of the Respondent who received 14 weeks paid leave to be the main care giver for their biological infant children from around the time of birth and/or Particulars i. Clauses 4.2.5.1 and 4.2.7.1 of the Policy concerning maternity and paternity leave entitlement respectively. 30 The comparator is female teachers who are employees of the Respondent who apply for 14 weeks paid leave after the birth of their biological children who were: a. Granted 14 weeks paid leave; b. not required to repay leave paid to them; and c. Not asked to provide a parentage order. Particulars i. Heterosexual female employees of the Respondent working as high school teachers who applied for 14 weeks paid parental leave around the time of the birth of their biological children and including [three names redacted]. Indirect Discrimination- s 24(1)(b) of the ADA 31 By engaging in conduct giving rise to the Treatment, the Respondent imposed a condition or requirement on its employees that the main caregiver of children that are the biological children of that caregiver, be female in order to obtain the benefit of 14 weeks paid leave. 32 The Applicant could not comply with the requirement because he is male. 33 The Treatment not reasonable having regard to the circumstances of this case given: a. the Applicant is in the same position as women with regard to caring responsibilities as women who are the primary carer for children biologically theirs; b. this policy keeps women in the position as primary carer-givers rather than sharing that burden equally between men and women; and c. the Respondent has recently indicated it is changing its policies to allow its male employees the same access to 14 weeks paid leave when they are the primary carers of a child/children from birth. Particulars i. Media release from the Public Service Association of NSW, dated 7 April 2021 ii. Article in the Illawarra Mercury, dated 7 April 2021 is attached and marked. iii. Article on the 'The Mandarin', dated 7 April 2021. iv. 2020-2021 NSW Budget Statement page 22. 34 Based on paragraphs 28 to 33 above, the Respondent has breached the ADA provisions concerning both direct and indirect discrimination on the ground of sex.

Section 35

1. In complete answer to the Applicant's claim for discrimination on the ground of sex the Respondent relied on s 35 of the Act, submitting that 'the maternity leave entitlement available under the Department's leave policies for the teaching service is a right or privilege granted in connection with pregnancy and childbirth'. The Applicant's claim for discrimination on the ground of sex is, as set out above at [100], at paragraphs 29 to 34 of the Points of Claim.
2. The Applicant submitted that the maternity leave entitlement was a 'sub-policy' within the Respondent's Parental Leave policies, and the Parental Leave policies concern situations of surrogacy, adoption and care for children in addition to women in respect of pregnancy and childbirth. The Parental Leave policies were therefore not "only" "in connection with" pregnancy, childbirth and breastfeeding, so s 35 should not apply. Further: The right to maternity leave is nowhere expressed to be rights or privileges in connection with pregnancy, childbirth or breastfeeding. If one goes to the policy you will see it is expressed to be part of the leave provisions overall. Indeed, the fact that 14 weeks is also given to those adopting, who have not been pregnant, given birth or breastfeeding shows the connection is not with those matters but with responsibilities associated with the start of caring for a child.
3. The Respondent's Teachers' Handbook at subchapter 4.2 includes various forms of parental or childcare related leave and is titled 'Adoption, maternity, altruistic surrogacy and parental leave (including permanent out of home care placements)'. As discussed above at [32 - 34], the statutory determinations upon which subchapter 4.2 is derived include four separate determinations: the Maternity Leave Determination, Adoption Leave Determination, Parental Leave Determination and the 2018 Determination.
4. As is made clear by Ms Kulesz' affidavit, whilst there is a 2021 Determination which refers to 'Parental Leave' entitlements encompassing maternity, adoption, surrogacy and other parental leave, this policy applies only to babies born after 1 July 2021, there is no evidence that the 2021 Determination has been adopted by the Respondent, and so there is no basis upon which the Tribunal could find that the 2021 Determination applies to the Respondent in the circumstances of these proceedings. Even if it did apply, the 2021 Determination refers back to the previous determinations made for each separate leave type in relation to the evidence or proof which is required to access the leave, so that the evidence required of an employee for surrogacy-related leave continues to be the same as required by the 2018 Determination (outlined at [35] above).
5. There is not, as suggested by the Applicant's submissions, one holistic set of "Parental Leave Policies" for the Respondent. It is clear from the Teachers' Handbook and the underlying determinations that each type of leave included at subchapter 4.2 of the Teachers' Handbook is a separate entitlement. We do not agree that the fact that 14 weeks' paid leave is also given to those adopting, who have not been pregnant, given birth or breastfeeding "shows the connection is not with those matters but with responsibilities associated with the start of caring for a child". If there was such a connection with responsibilities associated with the start of caring for a child, one would expect that the Department's 'Permanent out of home care' Leave, included at cl 4.2.8 of the Teachers' Handbook, would grant a similar period of paid leave to teachers who became the carer of a child based on the provision of a guardianship or a permanent placement order, yet such teachers are granted no paid leave at all.
6. The maternity leave entitlement provided for in the Maternity Leave Determination (of 14 weeks' paid or 28 weeks' half paid leave, of 12 months' total leave, plus 9 weeks' leave prior to the anticipated date of birth) attaches to the physical condition of pregnancy and giving birth to a child. As submitted by the Respondent, the Maternity Leave entitlements differ from the adoption or surrogacy leave entitlements on the basis that caring for the child born from the pregnancy and birth is not a requirement for the paid leave to be granted. The same entitlement is granted irrespective of the whether the pregnancy results in a live birth or a still birth, and irrespective of whether the pregnant woman becomes the primary caregiver of the child when it is born. The remainder of the Maternity Leave Determination also concerns only the rights or privileges of women in connection with pregnancy, childbirth or breastfeeding, and include such entitlements as transferring to a safe job and using sick leave for miscarriage or stillbirth, which are also relevant to the physical condition of pregnancy and childbirth.
7. For this reason we also disagree with the Applicant's submission that in the context of the Act as a whole, taking judicial notice of the existence of a bias against men (or homosexual men) caring for children, s 35 cannot be said to grant a 'privilege' to women of paid leave that 'reinforces the gender stereotypical role of primary carer of children', as this would constitute 'a limitation on a woman's choice, rather than the granting of a privilege'. The Respondent's Maternity Leave provisions, as contained in the Teachers' Handbook, viewed independently for the reasons discussed above, are not contingent on the employee being a carer for the child and do not therefore reinforce that gender stereotype. Further, viewed objectively, leave entitlements grant rights or privileges.
8. The exception to sex discrimination at s 35 of the Act is in identical terms (in context) at s 31 of the Commonwealth Sex Discrimination Act 1984 (SD Act). Both s 35 of the Act and s 31 of the SD Act have been considered by the courts in the context of industrial law, specifically whether a term allowing for maternity leave is discriminatory in various industrial awards or agreements: see, for example, New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamation Union of NSW (2003) 131 IR 203; [2003] NSWIRComm 143 with respect to s 35 of the Act, Christopher Budd v Australian Federal Police [2018] FWCFB 6095 (Budd) with respect to s 31 of SD Act. In Budd, the Full Bench of the Fair Work Commission held at [46] that additional leave for birth mothers is a provision granting a woman a right in connection with childbirth within the meaning of the SD Act: [46] The Deputy President concluded, we think correctly, that the impugned term provided a benefit in the form of additional leave to birth mothers[81] with the consequence that the term was protected by s.31 of the SDA, taking the term outside the area of proscribed discrimination in the SDA. Although the Deputy President did not expressly say so, it seems to us almost self-evident that a term in an agreement which provides for additional leave to birth mothers is a provision granting a woman a right "in connection with" childbirth within the meaning of s.31 of the SDA. The section applies whether the impugned term would otherwise directly or indirectly discriminate since the relevant proscription of discrimination in Division 1 of the SDA is concerned with both direct and indirect discrimination.
9. We agree with the Respondent's submission that the maternity leave entitlements granted by the Maternity Leave Determination are clearly only about the rights or privileges provided to women in connection with pregnancy, childbirth or breastfeeding. We are satisfied therefore that the application of the Respondent's Maternity Leave policy to women who give birth, and the exclusion of the Applicant from eligibility to apply for or obtain 14 weeks' paid leave under the Maternity Leave policy, does not constitute unlawful discrimination because of the application of s 35 of the Act.

Homosexuality Discrimination

1. The Applicant's claim for discrimination on the grounds of homosexuality, as expressed in the Points of Claim, was: Direct Discrimination - s 49ZG(1)(a) of the ADA 36 The Treatment was direct discrimination within the meaning of s 49ZG(1)(a) because it was done: a. Because of: i. his homosexuality or ii. a characteristic generally imputed to homosexual men that they are not, or should not be, the primary caregiver of infant children from around the time of birth; and b. It was less favourable than heterosexual female employees of the Respondent who received 14 weeks paid leave to be the main care giver for their biological infant children from around the time of birth and/or Particulars i. Clauses 4.2.5.1 and 4.2.7.1 of the Policy concerning maternity and paternity leave entitlement respectively. 37 The comparator is heterosexual female teachers who are employees of the Respondent who apply for 14 weeks paid leave after the birth of their biological children who were: a. Granted 14 weeks paid leave; b. not required to repay leave paid to them; and c. Not asked to provide a parentage order. Particulars i. Heterosexual female employees of the Respondent working as high school teachers who applied for 14 weeks paid parental leave around the time of the birth of their biological children and including [names redacted]. Indirect Discrimination- s 49ZG(1)(b) of the ADA 38 By engaging in conduct giving rise to the Treatment, the Respondent imposed a condition or requirement on its employees that the main caregiver of children that are the biological children of that caregiver, be female in order to obtain the benefit of 14 weeks paid leave. 39 The Applicant could not comply with that requirement because he is a homosexual man, married to a man. 40 It was not reasonable having regard to the circumstances of this case given: a. the Applicant is in the same position as women with regard to caring responsibilities as women who are the primary carer for children biologically theirs; b. this policy keeps women in the position as primary carer-givers rather than sharing that burden equally between men and women; c. the Respondent has recently indicated it is changing its policies to allow its male employees the same access to 14 weeks paid leave after they become the primary carers of a child; and d. homosexual men ought to receive the same support to care for their families as heterosexual families. Particulars i. As for paragraph (above). 41 Based on paragraphs 36 to 40 above, the Respondent has breached the ADA provisions concerning direct and indirect discrimination on the ground of homosexuality at work.

Direct Discrimination

1. Pursuant to s 24(1)(a) of the AD Act, direct discrimination on the ground of sex occurs if the perpetrator (relevantly): on the ground of the aggrieved person's sex …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex[.]
2. Similarly, under s 49ZG(1)(a), direct discrimination on the ground of homosexuality occurs if the perpetrator (relevantly): on the ground of the aggrieved person's homosexuality …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person[.]
3. The Applicant provided the Tribunal with extensive evidence to the effect that the vast majority of women, in comparison to men and homosexual men, become the primary caregiver to their biological children. The Applicant submitted that the discrimination he experienced: … clearly arises from long held cultural stereotypes of the kind that have prevented women's participation at work because of their role in giving birth and raring children. It is an historical fact that men and homosexual men, have been treated as if they are not, or will never be, the primary caregiver of infant children from their birth, that is the clear characteristic generally imputed to those groups and what is clearly reflected not just in the Respondent's policies but the Australian Bureau of Statistics most recent statistics on this issue which show, Around 95 per cent of primary parental leave, taken by the person with the most day-to-day responsibility for the child, was taken by mothers, according to new data released today by the Australian Bureau of Statistics (ABS). Fathers took 95 per cent of all secondary parental leave.
4. The Applicant submitted that in considering causation, as discussed in Australian Iron & Steel Pty Limited v Banovic (1989) 168 CLR 165 (Banovic) at 176-177, while evidence of intent or motive may be relevant, it is not determinative: It is not difficult to envisage situations in which the ground of an act or decision may be identifiable as one falling within s. 24(1)(a), (b) or (c) notwithstanding that the act or decision is not actuated by a motive to discriminate. One need go no further by way of example than an act or decision - as in the past frequently happened denying women certain opportunities by reference to the inadequacy of toilet facilities. And in that situation it is possible that "consciousness" may extend only to the inadequacy of toilet facilities without a full appreciation that that consideration is but an aspect of a characteristic that appertains generally or is generally imputed to women. And there may be other situations in which habits of thought and preconceptions may so affect an individual's perception of persons with particular characteristics that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision.
5. With respect to the Applicant's case relying on inference, the Applicant referred the Tribunal the principles set out in Victoria v McKenna [1988] VR 310 at [42] (emphasis added) to the effect that judicial notice may be taken of the existence of a bias against men, or homosexuals, caring for children: What his Honour said in that case has to be read in the context of the facts of that case. His Honour saw finding number (2) as preventing a finding of racial discrimination. If his Honour's reasons are used, however, to suggest that the relevant evidence could not include the fact that the complainant was black (or in this case female), that would seem to me to be going further than his Honour intended. In cases like Arumugam, or the present case, a given fact to be considered in considering all the evidence is the race or gender of the complainant which is to be compared with the race or gender of the other persons involved. Another relevant fact would be the existence of racism or sexism in the community. His Honour in fact referred to the presence in the community of the phenomenon of racism, a phenomenon that is known to affect decision making by people (at 327). That phenomenon is a matter of background fact which courts can draw on or judicially notice (See Carter PV, "Judicial Notice: Related and Unrelated Matters" in Campbell and Waller (eds), Well and Truly Tried (1982)). Bearing these points in mind, it might be properly argued, for example, having regard to the existence of racism in the community, that where a choice was made between two individuals, one of whom was black and one of whom was white, and the white (or the black) person was selected, a number of possible inferences arise for consideration, one of them being that race was a factor in the choice because of the existence of racism and the fact that a choice was being made between people of different races. An analysis of the full facts of the case may reveal that that inference should not be drawn. Arumugam was such a case; for while the complainant had better qualifications he was "less articulate and less aggressive" and for that reason less suitable. An innocent explanation existed and was accepted. But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn (c.f. Fullagar, J. in Arumugam (at 330), and Anderson, J., in KLK Investments Pty Ltd v Riley (1993) 10 WAR 523 at 528) even though there is no additional positive evidence to support the drawing of the inference. It seems to me that the same points may be made in relation to sexism and complaints of sexual discrimination.
6. The principle referred to therein in Department of Health v Arumgam [1988] VicRp 42; [1988] VR 319 (Arumgam), is that a finding of discrimination based on race ought not to be made where there exists a more probable and innocent explanation for the impugned conduct. This is an accepted principle which is discussed in many Tribunal decisions considering discrimination complaints, because the evidence of discrimination is very often inferential. If there is no direct evidence of causation on the ground of the protected attribute (in Arumgam being race, in these proceedings being sex or sexuality), a causal link between the protected attribute and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. Importantly, an inference cannot be made where more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70].
7. The Tribunal accepts that historically men and homosexual men have been treated as if they are not, or will never be, the primary caregiver of children from birth. The Tribunal also accepts the statistics compiled by the Australian Bureau of Statistics on this issue to the effect that the vast majority of primary caregivers are women. However, the evidence does not support the Tribunal finding that the Respondent's policies reflect this stereotype to the effect that they are unlawfully discriminatory of men or homosexual men.
8. The Respondent's policies actually make no allowance for paid leave (beyond 1 week paid parental leave, or two weeks at half-pay) for biological parents on the basis of whether they are the primary caregiver or not. The effect of this is that a woman who is the biological mother of a child, but not the birth mother of that child, gets the same amount of paid leave as a man who is the biological father of a child, which is 1 week's paid parental leave. In contrast, a woman who gives birth to a child but relinquishes her parentage pursuant to the SA, and so has no caregiving role, would be entitled to 14 weeks' paid maternity leave regardless. To be entitled to more than 1 week's paid leave, an employee must be the birth mother, or comply with the adoption or surrogacy leave requirements. Further, an employee - male or female - who becomes the primary caregiver of a child via 'out of home care arrangements' gets no paid leave at all. A similar scenario was discussed in Budd at [74], where the Full Bench, in applying the proper comparator between a male employee and a female employee, noted that women other than birth mothers, such as "a mother of an adopted … [or] surrogate child or the female partner of a birth mother", would have no entitlement to the leave. There was "no single beneficial treatment of employees who are women under the impugned term", and thus no sexual discrimination.
9. As discussed above, the proper comparator, which permits the Tribunal to isolate sex as the attribute that sets the Applicant apart from the hypothetical other person, is: a female teacher who will be the primary caregiver of a child as a result of a surrogacy arrangement. The proper comparator in relation to the Applicant's direct discrimination claim under s 49ZG(1)(a) is: a heterosexual teacher (whether male or female) who will be the primary caregiver of a child as a result of a surrogacy arrangement. The question the Tribunal then has to ask is: How would that person have been treated by the Respondent were they to have applied for leave?
10. We agree with the Respondent that on the evidence before the Tribunal, the answer is: no differently from the Applicant. The Department's policies apply the exact same criteria to women who are becoming parents through surrogacy as apply to men, regardless of their sexuality. To receive 14 weeks' paid/ 28 weeks' half paid leave of a total of 12 months' leave, they must apply for, and receive, a parentage order from the Supreme Court. The evidence also demonstrates that the Department has, in fact, applied the policies consistently since 2013. Leaving aside the Applicant's case and one request still in progress, since 2013 the Department had received 10 altruistic surrogacy leave applications from NSW teachers and had determined them as follows: 1. denied 2 applications for surrogacy leave (both female applicants), on the basis that they did not provide a statutory declaration and parentage order; 2. granted 8 applications for surrogacy leave (5 female applicants, 3 male applicants), on the basis that they did provide parentage orders.
11. This supports the Tribunal finding that the Applicant was treated no differently to other applicants for altruistic surrogacy leave, female or heterosexual applicants included, in that he was required to comply with the policy and provide a statutory declaration to have his application accepted, and would be required to follow through with the intention expressed in that statutory declaration to obtain a parentage order.
12. Accordingly, the Applicant cannot establish that he has been treated less favourably than women or heterosexual persons in his situation would have been treated. His complaint of direct discrimination on the ground of sex or homosexuality must therefore fail.

Indirect Discrimination

1. Under s 24(1)(b) of the AD Act, indirect discrimination on the ground of sex occurs if the perpetrator (relevantly): requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex … comply or are able to comply, being a requirement which 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.
2. Similarly, under s 49ZG(1)(b), indirect discrimination on the ground of homosexuality occurs if the perpetrator (relevantly): requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons … comply or are able to comply, being a requirement which 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..
3. The Applicant submitted that the condition or requirement imposed by the Respondent was that the Applicant be female in order to receive 14 weeks' paid leave to be the main care giver for his children after they were born. For the reasons discussed above in relation to the identification of a comparator, the Tribunal rejects that submission.
4. The Tribunal accepts the Respondent's submission that the requirement of condition that it had required the Applicant to comply with in order to access 14 weeks' paid/ 28 weeks' half paid leave was the provision of a parentage order This condition was imposed pursuant to the policy contained in the Teachers' Handbook for the granting of Altruistic Surrogacy Leave, applicable to all applicants irrespective of gender or sexuality.
5. While the Tribunal accepts that a substantially higher proportion of women are primary caregivers to children, there is no evidence before the Tribunal which would allow a finding that a substantially higher proportion of women become parents to children via Altruistic Surrogacy arrangements than men. Even if that were the case, the Applicant has not fulfilled his burden of establishing that pursuant to s 24(1)(b) of the Act a substantially higher proportion of men, or pursuant to s 49ZG(1)(b) of the Act a higher proportion of homosexual persons, are unable to comply with the evidentiary requirements for altruistic surrogacy leave.
6. Even if the Tribunal accepted (which it doesn't) that a higher proportion of men or homosexual persons are unable to obtain and provide a parentage order to access the Respondent's Altruistic Surrogacy Leave entitlements, the Tribunal does not agree that those requirements are not reasonable in the circumstances.
7. The Applicant submitted that an inference available on the evidence was that the Respondent did in fact discriminate, because there is no other lawful basis to rely on the SA in its Altruistic Surrogacy Leave policy, derived from the 2018 Determination which requires documentary evidence of parentage orders. The Applicant relied on the exclusion in the GSE Act under which the 2018 Determination was made, at s 52(2): (2) Conditions of employment that are so determined apply to Public Service employees unless inconsistent with this Act, State industrial instruments or any other law.
8. The Applicant submitted that this meant any breach of the Act makes the 2018 Determination inconsistent with the Act, and thus the 2018 Determination would be of no effect, and that this would be consistent with the 'overall regime' which includes s 169 of the Industrial Relations Act 1996 (NSW) (IRA) and s 54(1)(d) of the Act which provides that Awards and other industrial instruments are not covered by the statutory exemption.
9. Although we agree with the Applicant's submission that "nothing in the SA placed any obligation on the Department to take that approach", referring to the adoption of SA obligations with respect to recognising surrogacy via parentage orders, we disagree that the recognition of the 2018 Determination and the Altruistic Surrogacy Leave policy thereafter is inconsistent with the Act.
10. There is nothing preventing the Department adopting new policies after the introduction of the SA, as it did once a public sector-wide position had been articulated and consultation with the union and other stakeholders had occurred. We agree with the Respondent's submission that it is reasonable for the Department to structure its leave policies by setting employment conditions which do not undermine the child-protection focus of the SA and the TS Act: s3 SA, s5A TS Act. As referred to in New South Wales v Amery (2006) 230 CLR 174 at [6] per Gleeson CJ: The department functioned, and the respondents were employed, within a scheme of statutory regulation found in the Teaching Services Act 1980 (NSW). That scheme was outside the control of any of the parties to these proceedings, and constituted one of the "circumstances of the case" required by s 24(1)(b) to be considered.
11. Accordingly the Applicant's complaint of indirect discrimination on the grounds of sex or homosexuality fails.

Conclusion

1. On the basis that the Tribunal has found that the Respondent has not discriminated against the Applicant, directly or indirectly, on the grounds of sex or homosexuality pursuant to s 24 and 49ZG of the Act, there can be no unlawful discrimination in employment pursuant to s 25 and 49ZH of the Act.
2. Pursuant to s 108(1)(a) of the Act, the Applicant's complaint is dismissed.

Orders 1. The Applicant's complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977.

Teachers Handbook section 4 Leave Provisions (2987884, pdf) 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 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: 26 April 2022