State of Victoria v Schou [2004] VSCA 71

Court of Appeal (Vic)|2004-04-30|Before: PHILLIPS, CALLAWAY and BUCHANAN, JJ.A.

Discrimination - Equal opportunity - Indirect discrimination - Employment by Hansard - Condition of employment that employees attend on site when Parliament sitting - Employee a reporter and subsequently sub-editor - Employee's current responsibilities as parent demanding her presence at home - Refusal to allow the employee to work from home via modem - Relevance of alternative means of working - Whether requirement to attend on site not reasonable - Whether indirect discrimination in employment - Equal Opportunity Act 1984 ss.9, 14.

The complaint was heard by the Tribunal (constituted by member Perlman) in December 1999 and on 20 April 2000 the Tribunal dismissed all 16 claims of discrimination save one which was "found proven". That was a claim by Ms. Schou that, by requiring her to attend work full-time at Parliament House on house-sitting days ("the attendance requirement"), Ms. Schou's employer had indirectly discriminated against her by reason of her status as a parent and a carer. The claim was that the employer was imposing upon her an unreasonable requirement or condition with which she, unlike her colleagues, could not comply because of her status as a parent and a carer. The Tribunal agreed. In its view, there was a reasonable alternative available to requiring attendance on site during sitting days: namely, the installation by the employer at Ms. Schou's home of a modem which would allow her to work "on line" while remaining at home to care for her child. The Tribunal ordered accordingly that compensation be paid for Ms. Schou's loss of employment, she having resigned with effect as of 15 November 1996 in consequence, she said, of the attendance requirement.

From the orders made by the Tribunal on 20 July 2000 the appellant appealed to the Trial Division and Mr. Justice Harper heard the appeal on 5 June 2001. There were eight grounds of appeal, one of which was that the Tribunal had erred in failing to consider the reasonableness of the attendance requirement by reference to all of the circumstances of the case, including the reasons for the attendance requirement and the rationale behind its imposition upon all employees. In substance, this was the ground upheld by the judge who in consequence allowed the appeal, set aside the orders made on 20 July 2000 and remitted the matter for re-hearing by the Tribunal differently constituted, his Honour directing that the Tribunal consider the reasonableness of the attendance requirement as such.

The matter was then re-heard on 6 and 7 March 2002[1] by the Tribunal (this time constituted by a vice president) and Ms. Schou's complaint of discrimination was again upheld. In his Honour's view, the attendance requirement was an unreasonable requirement or condition with which Ms. Schou, unlike her colleagues, could not comply because of her status as a parent. Once again, compensation was ordered in consequence.

The appellant thereupon sought leave from the Court of Appeal to appeal and on 27 September 2002 it was ordered that the application for leave to appeal be adjourned to the court that would hear the appeal if leave were granted. It is in consequence of that order that we have heard not only the application for leave to appeal, but also the argument on appeal should leave be granted.

It is convenient now to refer to the relevant provisions of the Act. Section 6 sets out, in list form, a number of "attributes on the basis of which discrimination is prohibited" and these included, as (1), "status as a parent or carer" [2]. Discrimination is defined by s.7 to mean "direct or indirect discrimination on the basis of an attribute". Section 8 then describes what is direct discrimination: it occurs "if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances". That was not the basis of the complaint on this occasion: the relevant complaint here was of indirect indiscrimination which is described in s.9. That section must be set out in full:-

"(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice - (a) that someone with an attribute does not or cannot comply with; and (b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and (c) that is not reasonable. (2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including- (a) the consequences of failing to comply with the requirement, condition or practice; (b) the cost of alternative requirements, conditions or practices; (c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice. (3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination."

All the sections to which I have so far referred are found in Part 2 of the Act. Part 3 describes when discrimination is prohibited. What is relevant here is s.14, which is headed "Discrimination against employees". It reads:-

"An employer must not discriminate against an employee - (a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment; (b) by dismissing the employee or otherwise terminating his or her employment; (c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program; (d) by subjecting the employee to any other detriment."

It is not altogether easy to reconcile the wording of s.9, describing what is indirect discrimination, with s.14, which describes when discrimination occurs against an employee. In the end I think it best to understand the two in conjunction in this way: that an employer must not, for example, deny or limit access by the employee to opportunities for promotion (as mentioned in s.14(a)) by discriminating either directly or indirectly (as described in ss.8 and 9 respectively). Thus, in a case like the present the employer was prohibited from denying to Ms. Schou any of the "benefits connected with the employment" or "subjecting [her] to any other detriment" by discriminating directly (as described in s.8) or indirectly (as described in s.9). The Tribunal concluded that the employer had discriminated against Ms. Schou by denying her at least one of "the benefits connected with the employment" (being the opportunity for more flexible working arrangements) and by "subjecting [her] to ..... other detriment" (by forcing her to choose between her parenting obligations and her employment) and had done so by imposing upon her a requirement or condition which she (given the relevant attribute of her status as a parent or carer) could not comply with, but which a higher proportion of people without that attribute could comply with and which was not reasonable. As I followed the argument, there was before us no dispute about the foregoing save in respect of the last: that is, whether the requirement or condition imposed upon Ms. Schou was "not reasonable" (as described in s.9(1)(c)). The appellant contended before the Tribunal that Ms. Schou had not shown that the condition was not reasonable, but the Tribunal rejected the submission. The appellant now contends that that was error.

For the purpose of the re-hearing before the Tribunal the parties reached agreement on the facts and the earlier findings by which they should be regarded as bound. This was set out in a formal document[3] and the Summary of Facts, which was filed in accordance with the order of this Court made on 16 May 2003, was plainly derived from that document. What follows has been taken largely from the summary.

The respondent was, in effect, employed by Hansard from 22 January 1979 to 1 November 1996. She commenced employment in 1979 as a trainee parliamentary reporter. On 18 September 1979 Ms. Schou was promoted to the position of reporter R2 and was appointed a Hansard reporter on 21 September 1982. She acted as a sub-editor on one-house Thursdays until her maternity leave in 1989. Ms. Schou was promoted to the position of sub-editor on 4 June 1993 and held that position until she resigned on 1 November 1996.

Hansard is one of the five parliamentary departments that serve the two Houses of Parliament and the parliamentary committees and provide administrative, technical and physical support for members of Parliament and electorate offices. Hansard provides staff to record, report and edit all debates of the Legislative Assembly, the Legislative Council and the eight parliamentary committees appointed by the Parliament to investigate issues referred by the government. Hansard provides services to all members of the two Houses, to the staff of other parliamentary departments, and to the staff of Ministers and members, including staff engaged in electorate offices. The Hansard record is a full report of the speeches of all members of Parliament which, although not verbatim, is substantially the verbatim report, with repetitions and redundancies omitted and obvious mistakes corrected, but which leaves out nothing that adds to the meaning of the speech or illustrates the argument.

Hansard is a relatively small department. At the relevant times its staff consisted of a management team comprising the Chief Reporter (the head of the Department) and two Assistant Chief Reporters, plus four sub-editors (including Ms. Schou), about a dozen permanent reporters, two administrative staff and a clerk.

There are two sessions of Parliament each year - spring and autumn. Each session usually occupies about six to ten weeks including both recess weeks and sitting weeks. The average total number of sitting weeks in each of the years between 1992 and 1996 (inclusive) was 17.4. Under the attendance requirement already identified, Hansard required its sub-editors, including Ms. Schou, to attend work full time on site, at Parliament House, on sitting days, and this (it is agreed) was the imposition of a requirement or condition of employment within s.9(1) of the Act. The attendance requirement concerned the location of the sub-editors' work during sitting weeks only. In non-sitting weeks, reporters took their annual leave and were otherwise required to work from about 10 am. to 4 p.m. on 3 days a week of their choice. Hansard staff were treated and paid as full-time employees and were paid an annual salary ($55,000 for sub-editors) and given six weeks annual leave while other parliamentary employees received four weeks annual leave.

Hansard reporters reported the proceedings of both Houses of the Victorian Parliament, proof-read Hansard, reported the proceedings of parliamentary committees and of other forums, both interstate and intrastate, and prepared sessional indexes. The work of reporters was highly skilled and unique. The reporting was not verbatim but involved editing without changing meaning. A reporter's skills in grammar were critical and the accuracy of the reports was crucial. Reporters were also on call for any other tasks that the sub-editors or senior staff might request. Reporters were assigned to a sub-editor who edited their work and liaised with the reporters to produce the report in final form. The work had to be of a high quality and produced quickly because of the demands of the Speaker and members. Members expected to receive an edited proof for checking within two to three hours of making a speech. Parliament required a hard copy of speeches to be available by 8.30 am. on the day following.

As to sub-editors in particular, their duties were to subedit the reports of proceedings of both houses and all parliamentary committees, youth parliament and students' parliament. They also indexed, trained new reporters, organised reference material and directed reporters in their duties. They had the general task of performance management. The Assistant Chief Reporters and sub-editors spent non-sitting times training the newer people; sub-editors trained newer reporters. The Assistant Chief Reporters and senior sub-editor subedited, organised staff and prepared the final editions of Hansard. The Chief Reporter had a management role and at times subedited and reported as well.

In sitting weeks, reporting staff were required to work at Parliament House an average of four days a week. On two of those days the hours were very long. In sitting weeks staff worked about 45 hours over four days.

(a) Staff were usually not required to work on Mondays in sitting weeks.

(b) On Tuesdays, Ms. Schou commenced work at a time between 10 am. and noon and finished at about 2 am. the following morning.

(c) On Wednesdays, Ms. Schou commenced at about 10 am. and worked until about 1 am or 2 am the following morning.

(d) On Thursdays, Ms. Schou generally worked between 10 am. and 8 p.m.

(e) Generally, on Fridays Parliament did not sit and proof-reading was done. Ms. Schou also attended a sub-editors' meeting. Many employees left just after lunch and Ms. Schou generally left by 2 p.m. or 3 p.m. On the rare Fridays that a committee was sitting she may have been detained until 6 p.m. or 7 p.m.

Although reports were also required of parliamentary committees, which usually convened in non-sitting weeks, the average number of days on which committees sat in the period from 1993 to 1997 was between 11 and 20 per annum and it was rare for Hansard staff to work in excess of three days in non-sitting weeks or to be called in when on-call.

The work during sitting times was stressful and demanding. In sitting times there was a need for interaction between all staff members in order to produce accurate reports quickly. It was important that the reporters working during parliamentary sessions be experienced because of their knowledge of members of Parliament, the editorial style used and the computer systems, and reference material. There was a shortage of skilled reporters. The pool of people who might have performed reporting work on a casual basis was limited to a maximum of about four people and their availability was uncertain. Except in urgent circumstances, leave was never granted to employees on two-house sitting days (that is, days when both houses were sitting) because there were insufficient staff to cover absences. If one member of staff was absent, the others had to work harder and, if necessary, for longer. In urgent circumstances, reporters had to be engaged from interstate to cover sessions. The situation was even more difficult in respect of sub-editors given that there were fewer sub-editors and subediting work was more highly skilled than reporting, so that sub-editors were not easily replaced.

From 1989 and throughout the relevant period, Ms. Schou was a parent within the meaning of the Act. Ms. Schou has two children - Harrison (the elder) and Lawrence. As a young child, Lawrence was sick with recurrent chest infections and asthma. After Ms. Schou returned from maternity leave in November 1993, following Lawrence's birth, she increasingly found that caring for Lawrence and working the long hours of sitting weeks was exhausting. By 1995, she found the combination becoming very difficult.

In February 1996, Ms. Schou told Hansard's managers that Lawrence was experiencing health problems with consequent separation anxiety and that she wanted to work part-time until her son's health improved. The managers asked Ms. Schou to prepare some part-time work proposals. This led to part-time work negotiations in 1996. Ms. Schou made her initial proposal for part-time work in April 1996. Hansard made a counter offer. Ms. Schou then made a further offer on 5 June 1996, which was rejected by Hansard in part because it regarded Ms. Schou's services during sitting-weeks as indispensable.

The stalemate in the part-time work negotiations was superseded by what has become called "the modem proposal". This proposal, which emerged out of discussions between Ms. Schou and management at the end of August 1996, was that Ms. Schou work at home on Thursdays and Fridays of sitting weeks via a modem. The two Assistant Chief Reporters agreed with Ms. Schou that the best solution to her difficulties was the installation of a modem line between her home and Parliament House and a fax machine, to allow Ms. Schou to work from home on Thursdays and Fridays when Parliament was sitting. The cost to Hansard of implementing the modem proposal for Ms. Schou was modest ($2,500).

By 1 November 1996 the modem proposal had not been implemented and Ms. Schou thought that it would not be done as agreed by management. She resigned from her employment with Hansard effective as of 15 November 1996. Management had granted unpaid leave to other employees to avoid losing their services. Ms. Schou had "floated" the idea of unpaid leave with management but did not apply. Ms. Schou was ready and able to return to full-time work by mid-1997, some seven months after her resignation.

As I said earlier, the foregoing has been taken, at times verbatim, from the summary filed in accordance with the order of the court which, in turn, derives from the formal statement of facts agreed between the parties and the findings of the Tribunal by which they were bound. It was also agreed between the parties, for the purpose of the re-hearing before the Tribunal, that the respondent "could not comply with the requirement or condition that she attend work full-time on site at Parliament during sitting days" and that "a higher proportion of employees who were not parents or carers could comply with that requirement or condition". We are bound by the parties' agreement in that respect, but the parties formulation of those propositions must be read in context. Ms. Schou first took maternity leave in 1989; she was promoted to the position of sub-editor in June 1993 and returned from further maternity leave in November 1993 after the birth of her second child, Lawrence. It was caring for the second child that occasioned the difficulty which emerged by 1995. It was in 1996 that negotiation commenced over part-time work proposals and, having resigned in November 1996, the respondent was "ready and able to return to full-time work" by mid-1997. It can be said therefore that while the respondent was unable to comply with the attendance requirement, it was an inability which came to the fore only in 1996 and resolved itself by mid-1997. Her inability to comply with the attendance requirement was only for a time and because of her then current responsibilities as a parent, and not simply because she was a parent or carer - and the agreed statements concerning her inability to comply with the requirement or condition imposed by the employer, and the ability of others to comply, should be understood accordingly.

What I have just said is important in relation to the modem proposal. The proposal, much canvassed by the parties before the Tribunal, was for the respondent to work at home via a modem once installed by the employer. The proposal was agreed to by the two Assistant Chief Reporters and, of course, the respondent emphasised that in argument. It was not costly, it was possible and, she argued, was the appropriate alternative to requiring her to attend on sitting days. None the less, it must be said, it was apparently a short term solution to a then current problem: it was a solution to be adopted in the case of Ms. Schou in order to relieve against her current difficulties. And so it was understood, as I apprehend the evidence. The modem proposal was not put forward as a general variation to the terms and conditions of employment: that is to say, it was not being proposed that all sub-editors should be employed on terms that they either attend the house on sitting days or work at home via a modem. Such considerations led Harper, J. to conclude, in relation to the first Tribunal hearing, that too much attention had been paid to the modem proposal and not enough to what was in truth an antecedent question, whether the attendance requirement was itself not reasonable. It was on that account that the matter was remitted for further hearing and yet, in my respectful view, the same error was repeated when the matter was re-heard.

On the face of it, it seems to me almost inconceivable that the attendance requirement for sub-editors to attend the house on sitting days should be regarded as not reasonable. There was ample reason, surely, to justify such a requirement or condition which was, after all, a term of the contract of employment when first made. Suffice it to refer, in a summary way, to the pressure of work on all reporters during sitting days; that the work was highly skilled and unique; that the reporting, though basically verbatim, involved editing without changing meaning, a task in which skills in grammar were critical and the accuracy of the report crucial; that reporters were assigned to a sub-editor who edited their work and liaised with them to produce the report in final form; and the expectation of members to receive an edited proof for checking within two to three hours of making a speech. Obviously there was a need for interaction between staff members if the reports were to be produced both accurately and quickly and that Hansard was a relatively small department and that there was a shortage of those with the necessary skills all served to dictate the conclusion that to require attendance on site, during sitting days, was certainly not unreasonable.

As the appellant submitted, the principles relating to "reasonableness" are, to an extent, well established since Waters v. Public Transport Corporation[4] in which Dawson and Toohey, JJ.[5] approved the following observations of Bowen, C.J. and Gummow, J. in Secretary, Department of Foreign Affairs and Trade v. Styles[6] (a case on s.5(2) of the Sex Discrimination Act 1984 (Cth)):-

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

See also Waters per Deane, J.[7], contrast per Mason, C.J. and Gaudron, J.[8]; Commonwealth of Australia v. Human Rights and Equal Opportunity Commission[9] per Lockhart, J.[10], per Sheppard, J.[11], per Lindgren, J.[12]; Australian Medical Council v. Wilson[13] per Heerey, J.; and Commonwealth Bank of Australia v. Human Rights and Equal Opportunity Commission[14] per Sackville, J. Relevant factors will necessarily vary from case to case, but the presence, as here, of a logical and understandable basis for the requirement or condition must be an important factor and there can be no doubt but that the attendance requirement was both appropriate and adapted to serve the end it was intended to serve. Thus, if one puts aside consideration of the modem proposal (as Harper, J. urged the Tribunal to do), it appears to me that the only conclusion open on the evidence was that the attendance requirement was altogether a reasonable one. Moreover, when it is borne in mind that the respondent bore the onus of establishing to the Tribunal's satisfaction that the condition or requirement in question was not reasonable, it suffices that there was no basis in the evidence for so concluding, if the modem proposal was disregarded.

On the first occasion, and with respect I think on the second occasion, the Tribunal was seduced by the argument put on behalf of the respondent that, because the modem proposal provided a reasonable alternative for the respondent in her then circumstances, the condition or requirement for attendance on site during sitting days was itself not reasonable. Yet the one does not follow from the other, as Beaumont, J. pointed out in Commonwealth Bank[15]:-

"The Commission refers to the circumstance where an alternative requirement or condition could have avoided or ameliorated the disadvantage experienced by the complainant. That is certainly a factor to be taken into account. But the fact that an alternative could have been adopted does not of itself render a condition which is `appropriate and adapted to the activity in question', to use the Commission's words, unreasonable. Section 5(2) required a finding that the requirement or condition be `not reasonable'. The whole of the circumstances must be examined." [Emphasis added]

Perhaps the existence of a viable alternative, at least for Ms Schou at that particular juncture in her life, made it not necessary for the employer to insist for the time being upon the general condition or requirement that there be attendance on site during sitting days, but s.9 does not turn upon necessity. Nor does it turn upon whether it was reasonable or not for the employer to insist upon the condition or requirement: that is to distort the issue raised by s.9. The question is whether the condition or requirement, being insisted upon, was itself not reasonable. Again as Beaumont, J. put it in Commonwealth Bank[16]:-

"The issue was not whether discrimination was reasonable but whether the requirements or conditions imposed by the Bank [in that case] were `not reasonable'."

As I have said, so far from being not reasonable, the attendance requirement was perfectly reasonable and, with respect, it was simply not open to the Tribunal to conclude otherwise. The existence of the alternative - an alternative which was put forward merely as a short-term solution to the temporary problem - did not dictate the contrary.

That is not to say that alternatives are irrelevant: as already noticed, the fact that an alternative could have been adopted will ordinarily be one of the circumstances that must be examined in determining reasonableness. But it must be one that bears upon the reasonableness of the condition or requirement at issue. To take an example: suppose an employer imposes on male employees generally the requirement that they come to work in red shirts each day (perhaps because of the image that the employer desires to project while its workers are dealing with the public). To require the workers arrive at work wearing red shirts could be characterised as unreasonable, given the obvious alternative that they change into red shirts upon arrival. Both would achieve the desired end and nothing would be gained by insisting upon the one condition over the other. The existence of the alternative then bears upon the reasonableness of the condition or requirement to be imposed, but that is because each of the alternatives is equally suited to the end. Each requirement, that employees arrive at work wearing red shirts and that they change into such shirts before starting work, might be said to be "appropriate and adapted" to the desired end (to use the words of Brennan, J. in Waters[17]), but the one is no better suited than the other and so it ceases to be reasonable to insist upon the one over the other. In the case of Ms. Schou, the alternative was not equally suited to the requirements of the job. On the evidence it seems obvious that sub-editors had to work on site - or at least most of them did: for, had all of the sub-editors been absent as Ms. Schou proposed (working from home via a modem), the needs of the job could not have been met. That is why in this case the existence of the alternative does not bear upon the result. But in my opinion the Tribunal considered that it did and in so doing it misdirected itself.

It is true that at the outset the Tribunal identified correctly the problem identified by Harper, J. in the earlier reasons for decision of the Tribunal. As the learned vice president said on this occasion[18]:-

"[Harper, J.] took the view that the Tribunal had erred in the way in which it framed the question of whether it was reasonable to require the applicant [i.e., Ms. Schou] to attend her work location whilst Parliament was sitting. Harper, J. held that the Tribunal had misunderstood the issue before it and had concentrated on whether the option proposed by the applicant was reasonable, rather than on what he identified as the central issue, namely the reasonableness of the requirement that all sub-editors attend the work site at Parliament House. He took the view that the Tribunal had erred in determining the reasonableness of the attendance requirement by looking only at the applicant and not at the sub-editors as a group."

The vice president then[19] quoted this from the reasons for judgment of Harper, J.:-

"The Tribunal, by this approach, concentrated upon the reasonableness of the modem proposal. The Tribunal was in my opinion wrong to do so. The modem proposal is only relevant if the "attendance" requirement is in its general operation (that is as it operates generally on Hansard Sub-editors) unreasonable. .... It is not sufficient to concentrate only on Ms. Schou to the exclusion of the others. This, nevertheless, is what (as it seems to me) the Tribunal did."

The vice president concluded this part of his reasons as follows[20]:-

"It follows that the issue before me is the "reasonableness" of the obligation imposed by the [employer] upon all sub-editors to attend at Parliament House full time. As I understand it [counsel] on behalf of the applicant, did not dispute that this was the central issue before me. Indeed the written submissions which she filed and to which she spoke concentrated on this issue."

Thus far, the task before the Tribunal on the second occasion was correctly identified but, with respect, I do not think that the task was discharged.

Thus, immediately after what I have just referred to, the vice president went on to characterise the argument put on behalf of the present respondent in this fashion[21]:-

"The general thrust of the submission made by [counsel] on behalf of the applicant is that when the nature of the work performed by sub-editors and the manner in which they performed that work is examined in detail, the proper conclusion is that the proposition put by the applicant, whereby she would work from home on Thursdays and Fridays during sitting weeks for the limited period involved, was practical and achievable. Accordingly, so the argument goes, it was not reasonable of the respondent to refuse to adopt and implement this proposal. [Counsel] submits that the very fact that the proposal was supported by the assistant chief reporters ... is convincing evidence that the proposal was reasonable and achievable."

As I read the reasons for decision, this was the argument accepted by the Tribunal. In other words, the vice president concluded that, because the modem proposal was "practical and achievable" (or was "reasonable and achievable") it was not reasonable of the present appellant to refuse to adopt and implement it. In consequence (as I follow the reasoning) his Honour concluded that to insist upon the attendance requirement was "not reasonable" in terms of s.9(1)(c).

The learned vice president was influenced by the consideration that the attendance requirement, as it applied to all sub-editors, was quite inflexible: his Honour made this point in paragraph 40 of the reasons for decision. After referring to counsel's submission that "consideration of requests to work from home could, for example, be dealt with according to a process which started from the assumption that a certain proportion of employees would need to physically attend the work place in order to meet operational requirements", his Honour appears to have accepted the submission that the reasonableness of the attendance requirement "ought not to be tested against the remote possibility that all sub-editors who merely preferred to work from home had sought permission to do so". That, in my respectful view, was error; for what was at stake was the reasonableness of the requirement, directed to all of the employees in the area, that they attend on site during sitting days. That sub-editors, as a general rule, should attend on site was self evident and, by accepting the submission I have just referred to, the Tribunal appears to me to have lapsed into the error earlier committed, of considering whether the position of Ms. Schou was reasonable as a "one off", in that it was some sort of exception to what otherwise was a general requirement.

That is not to say, as Harper, J. himself pointed out, that a good employer should not consider from time to time a specific request of a particular employee to depart from the general rule: exceptions will always have to be made for emergencies and the like. It may well be that Ms. Schou, in the circumstances in which she found herself, had a strong case for some departure from the general rule in her case, but the mistake was then to conclude that, if she had such a case, that made the general requirement not reasonable. It seems to me, with respect, that in the Tribunal's view the general requirement was not reasonable if the general requirement should be one which admitted of exceptions. But that cannot be the case: every general requirement may have to admit of exceptions from time to time; and the recognition of the need to admit exceptions is a matter for proper management, not anti-discrimination legislation. That point is only emphasised when it is recalled that the exception sought to be made by the respondent on this occasion was of a short term nature and to meet a temporary problem.

To put the matter another way: it was not reasonable to expect that the requirement or condition imposed by the employer in circumstances like this should be reconstructed as a requirement or condition that all sub-editors attend on site unless they chose to work from home via a modem proposal (even to the limited extent proposed by Ms. Schou on this occasion). It was not reasonable to expect so much of the employer. Indeed, so much was recognised by the vice president in this passage in his reasons for decision[22]:-

"I am conscious that in this case there were only four employees working as sub-editors. If even one of them was working from home, a significant proportion of the employees in this classification would be doing so. Subject to the strength of the evidence as to whether any of the sub-editors strictly needed to attend Parliament, the proportion of sub-editors permitted to work from home under a more flexible arrangement would be relevant to whether such an arrangement would render the strict attendance requirement unreasonable."

In other words, his Honour regarded it as material that not all the sub-editors could be permitted to work from home if they so chose, even to the limited extent proposed by Ms. Schou.

That the modem proposal was but a short term solution to a temporary problem was emphasised too; for it was said[23]:-

"Another factor relevant to reasonableness is that the applicant's proposal was to work from home two days a week whilst Parliament was sitting. The proposal was for a specific purpose and for a limited period. I consider it relevant that the President of the Legislative Assembly indicated in a memorandum his view that the decision to permit the applicant to work from home was one for management and that "as it would be for a short time only" he was not raising "any objections to it".

In my opinion, that was the proper approach: it was not a matter for complaint of indirect discrimination under the Act.

Having stated in more general terms some of the principles that he saw to be applicable, the vice president concluded[24]:-

"The test cited by Harper, J. requires me to make an assessment of the reasonableness of the attendance requirement in light of the degree of inconvenience (if any) that a suggested alternative might involve together with other relevant factors."

His Honour then turned to examine "in more detail the nature of the work performed by reporters and sub-editors together with the detail of the modem proposal".[25] Each of the difficulties raised by the employer were then canvassed, such as the need for frequent communication between reporters and sub-editors on the one hand and between sub-editors and assistant chief reporters on the other[26]; that sub-editors frequently needed to discuss issues with each other and senior staff[27]; the strict time constraints for completing the reports, the value of direct contact with reporters and others, the potential burden placed on other sub-editors if one was absent or attempting to work from home, the security of the material, the problem of possible equipment failure, and the need from time to time for reporters and sub-editors "to liaise with ministers, members and their staff". (That some of these difficulties were not points made at the first hearing before the Tribunal appears to have weighed with his Honour and I am not clear why that was so, but I pass it by without further comment.) His Honour concluded that "the difficulties now emphasised by the [employer] are or were not so great as to make the modem proposal impractical".[28]

Nor did the vice president regard it as determinative that the attendance requirement was expressly imposed by the schedule attached to the specific employment agreement entered into by Ms. Schou in the first place.[29] It may be that that, too, bespoke a measure of error on his part but in the end it does not matter and I say no more about it. The same pertains in relation to the point made by his Honour in paragraph 74 of the reasons for decision, that the consideration relating to the reasonableness of the attendance requirement was also "effectively relevant to whether the `practice' of refusing to vary this requirement was unreasonable". With respect, a "practice" of refusing to vary the attendance requirement attracted considerations quite different, it seems to me, from those relating to the requirement or condition that there be attendance as a general rule, and it was the latter which was before the Tribunal, not the former. At all events that was the approach taken by the parties.

More important for present purposes is the detailed assessment made by the Tribunal of the several matters raised by the employer in support of the attendance requirement.[30] His Honour re-stated the approach he took, that the test of reasonableness "necessarily involves making an assessment of the reasonableness of the attendance requirement in the light of the degree of inconvenience (if any) that a suggested alternative or alternatives might involve, together with any other relevant factors." Each of the matters raised by the employer in support of the attendance requirement was then dealt with in the light of the arguments raised on behalf of Ms. Schou. After considering each, his Honour concluded with these words[31], or to this effect:

"I again conclude that the matters raised on behalf of the applicant are sufficient to support a conclusion that the attendance requirement was unreasonable in so far as it was supported on this ground."

In other words, in so far as the employer sought to support the attendance requirement as reasonable, the arguments of the applicant (Ms Schou) were described as sufficient to support the conclusion that the requirement was unreasonable. But of course the arguments advanced on behalf of Ms Schou were directed at diminishing or destroying the force of what the employer put forward and it may well be that, when read in the context of each of the matters considered, his Honour's expression of conclusion did reflect a reversal of the onus, as was submitted to us (even though the consideration of those various matters was prefaced by a correct statement of the onus[32]).

Be that as it may, the principal ground of error lay in the general approach taken by the Tribunal on this occasion. Despite what his Honour said from time to time about the task set for him by Harper, J., the reasonableness of the attendance requirement was considered in the light of the alternative, the modem proposal. Yet on any view, adopting the modem proposal was not as efficacious as the attendance requirement, nor could it be. It seems to me plain beyond argument that the attendance requirement was appropriate and adapted to the needs of the employer and the task to which the employees were committed. That there might be departures from the attendance requirement when emergencies arose or special circumstances dictated (or even in a case like Ms. Schou's when conditions at home demanded it) was not really in issue: what was in issue was the reasonableness of the general condition which was the attendance requirement. As I said at the outset, it was not open, in my view, for the Tribunal to regard the attendance requirement as not reasonable if it was considered independently of the modem proposal. And because the modem proposal was on any view less efficacious (on one or more grounds) than the attendance requirement, it was not a matter of the employer's being unreasonable in preferring the one over the other. It was not a matter of indirect discrimination under s.9(1) of the Act.

Finally, I say something more of the arguments that were addressed to us. Not surprisingly perhaps, the respondent contended that as the appellant was challenging the conclusion of the Tribunal that the attendance requirement was not reasonable, it was seeking to re-open what was no more than a question of fact, something that could not be done on an appeal such as this, which was permitted only on a question of law. Without doubt the question of reasonableness is basically an issue of fact (as emphasised by the Federal Court in Edgley v. Federal Capital Press of Australia[33]) but in my opinion the Tribunal did not simply make a wrong determination in this regard. The Tribunal significantly misdirected itself as to its task and in so doing fell into error of law. The central focus of the Solicitor-General's argument was that the mere existence of the modem proposal as an alternative which was open and available to the appellant did not bear upon the reasonableness of the condition or requirement which the appellant itself had chosen to impose and insist upon, and I have given my reasons for agreeing in that submission.

By the same token, I would reject the appellant's primary contention (as the matter was argued) that the Tribunal erred in failing to adopt a "two-tiered" approach to the question of reasonableness. The contention was that the Tribunal should first have determined whether the condition or requirement was "appropriate and adapted" to the performance of the activity of producing Hansard (as mentioned by Brennan, J. in Waters[34]); instead, it was said, the Tribunal had moved simply to reasonableness in the context of the modem proposal, without deciding first whether the condition or requirement imposed by the employer was itself appropriate and adequate. The difficulty with this argument is that, if the two stage approach was warranted (and I do not say that it was) and if the Tribunal did fail to consider whether the condition was appropriate and adapted, the Tribunal may be taken to have assumed that it was, in favour of the appellant. The error was not, I think, in failing to adopt some "two-tiered" approach to the question of reasonableness, but in considering the reasonableness of the condition or requirement imposed by the employer in the light of an alternative, the modem proposal, which was not as efficacious or as suited to the task as the attendance requirement itself. I emphasise again that this is not to say that reasonableness should be considered without regard to alternatives: plainly that would be contrary to s.9(2). But the alternatives must be as efficacious if the mere existence of an alternative is to bear upon the reasonableness of the condition or requirement under attack. If this case does nothing more, it demonstrates that that must be so, or every claim by an individual to some special allowance or privilege could be recast, when

refused, as a claim to discrimination under the Act.[35]

For these reasons I would grant leave to appeal, order that the appeal be treated as instituted and heard instanter, allow the appeal, set aside the orders made below and in lieu substitute an order that the remaining complaint of discrimination be dismissed.

The other members of the Court propose to decide this case on the basis that the relevant "requirement, condition or practice" was the requirement that the respondent and other Hansard sub-editors work full-time at Parliament House on sitting days, as opposed to its being an inflexible requirement that they do so even when temporary arrangements could be made to overcome a relatively short-term difficulty. In my respectful opinion, that is to take too narrow a view of the words "requirement, condition or practice" in s.9 of the Equal Opportunity Act 1995.

As Brennan, J. said in Waters v. Public Transport Corporation[36]:

"But even where the imposition of the particular requirement or condition is appropriate and adapted to the performance of the relevant activity or the completion of the relevant transaction, it is necessary to consider whether performance or completion might reasonably have been achieved without imposing so discriminatory a requirement or condition."

"Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution but in a less discriminatory way."

If the effect of inflexibility is to discriminate between persons with and without an attribute, "inflexible" may be substituted for "discriminatory" in each of those passages. It is unnecessary, in this case, to choose between a two-stage and a single-stage approach. [38]

Inflexibility may be part and parcel of a requirement, condition or practice. Very often it is justified. Even more often, a person alleging indirect discrimination will not be able to show that the inflexibility is not reasonable.[39]

As I understand it, the inflexibility of the requirement lay at the heart of this case.[40] A requirement that Hansard sub-editors work full-time at Parliament House on sitting days could not, in itself, be unreasonable. Reading the Tribunal's reasons in that way, I do not consider that they reveal an error of law of which the appellant may complain.[41]

Whether it was unreasonable to impose an inflexible requirement is a question of fact on which I express no opinion.

It was also submitted that the Tribunal ignored evidence that other options, namely part-time work and leave without pay, were available to the respondent; but that would amount, at most, only to an error in the fact-finding process. The Tribunal did not fail to take a mandatory consideration into account. On the contrary, at [94], it expressly said that it had had regard to "[t]he consequences of failing to comply with the strict and inflexible attendance requirement".[42] If it made a mistake in assessing those consequences, that was an error of fact.

46 In deference to the argument presented by the learned Solicitor-General, I would grant leave to appeal pursuant to s.148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998, but I would dismiss the appeal.

I agree with Phillips, J.A. In my view, s.9 of the Equal Opportunity Act 1995 is concerned with the question whether a requirement, condition or practice is reasonable. It is not concerned with the modifications to a general requirement, condition or practice that might reasonably be made to accommodate one person's special needs.

The Tribunal found, not that it was not reasonable to require Hansard sub-editors to attend at Parliament on sitting days, but rather that it was not reasonable to impose that requirement, condition or practice without any exception because of the circumstances attending the respondent. In my view, the requirement, condition or practice is not to be so viewed. There must be very few general requirements, conditions or practices which cannot be reasonably altered to meet the needs of one individual. And if that question is to be addressed whenever it is complained that a requirement, condition or practice is discriminatory, the Act will become a means for reviewing the reasonableness of administrative decisions in particular cases. I do not think Parliament intended such a result.

[1] According to the affidavit of David Joseph Janson sworn on 8 July 2002 paragraph 18.

[2] Before amendment by Act No.84/1997 to read "parental status or status as a carer".

[35] In Waters at 372 Brennan, J. (dissenting) described as "misdirected" the invocation of the Act to support a claim which was in truth for special treatment. (This was quoted by Harper, J. [2001] VSC 321 at [13].)

[38] I agree with Phillips, J.A. that, if a two-stage approach is required, the Tribunal assumed the first stage in favour of the appellant; but I doubt that a two-stage approach is required, having regard to the terms of s.9(2).

[39] Section 9(1)(c). For simplicity hereafter I shall sometimes use "unreasonable" as a synonym for "not reasonable".

[40] As the Tribunal said in its reasons at [40], after referring to Harper, J.'s decision in State of Victoria v. Schou [2001] VSC 321, "However, it must be borne in mind that the attendance requirement which the respondent chose to apply to sub-editors was quite inflexible." (Emphasis added.)

[42] Section 9(2)(a). So, too, at [80], the Tribunal prefaced its consideration of factors on which the appellant relied to support the attendance requirement with a reminder that it was for the respondent to show that the requirement was not reasonable. I do not think that there was any reversal of the onus of proof.

At a glance

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Judgment (96 paragraphs)

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