'Persons who do not have such responsibilities'. Ground of Appeal 2(a)
41The Tribunal held as a matter of construction of s 49T(1)(b) that the base groups or pools that were to be compared were 'those with carer's responsibilities' and 'those without carer's responsibilities'. The effect was that the first pool included anyone in the Police Force with carer's responsibilities of any of the types to which the definition in s 49S is directed, and the second pool was anyone who did not have carer responsibilities of any of the types listed there. The Tribunal drew this conclusion from the contrasting terms used in the sub-section - an aggrieved person was a person 'having responsibilities as a carer' and their treatment was to be compared with 'persons who do not have such responsibilities'.
42Mr Wright's submission was that his ability to succeed in relation to the next two elements of s 49T(1)(b) the 'reasonableness' element and the ' inability to comply' element (the issues addressed by grounds 2(b) and 2(c) of his notice of appeal) depended significantly on how the Tribunal chose to formulate the comparator groups, and that it was wrong to make the comparator groups so global - all carers with any of the responsibilities to which s 49S refers on the one hand, and everyone else on the other hand.
43The case law shows that the characterisation of the two groups to be compared is often a complex aspect of the case, and the ultimate outcome of the case may turn significantly, as Mr Wright suggests, on the choice made by the Tribunal as to the composition of the base groups. Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 (Banovic) is a striking example of the this point. Women ironworkers complained of indirect discrimination in relation to the impact on them of a retrenchment policy that was neutral on its face, in that it was applied first to those workers who had been most recently employed ('last on, first off'). Women who had been retrenched under the policy complained of indirect discrimination on the ground of their sex, in that a substantially higher proportion of men were able to comply with the policy, and avoid retrenchment.
44The respondent employer submitted that the relevant base comparisons were between all males employed as ironworkers and all females employed as ironworkers. The Court accepted that such a comparison would mask the differential impact of which the women complained. There were very few long term women workers in the workforce, because historically it had been very difficult for women to obtain work as ironworkers due to screening criteria (e.g. weight bearing capacity) that women were less likely to meet. Policies of this kind had been abandoned in mid-1980. The retrenchment announcement had been made in October 1982, after a downturn in the steel industry. The Court (Deane, Dawson, Gaudron JJ; Brennan CJ, McHugh J dissenting) upheld the primary tribunal's orders. The majority defined the 'requirement or condition' for continued employment as being that the employee had to have been employed prior to 30 September 1980. The detriment, risk of dismissal, applied to persons employed after that date. The majority held that the appropriate comparison was one that compared men and women who had been recruited as from that date.
45Once the male pool was defined in that way, it became clear that past practices had resulted in there being proportionately far more women adversely affected by the retrenchment policy than their overall proportion in the workforce. (Women comprised 15% of the post-September 1980 group as compared to 1% of workers in the pre-September 1980 group.)
46Section 24(3)(a) of the ADA, as formulated at the time of Banovic, commenced with the words 'A person discriminates against another on the ground of his sex if he requires the other person to comply with a requirement or condition - (a) with which a substantially higher proportion of persons of the opposite sex to the sex of the other person comply or are able to comply'. In this case parallel language is used, and s 49T(1) substitutes for 'his sex', 'the aggrieved person's responsibilities as a carer'.
47As noted earlier, in the present case the Tribunal held that the comparison, for the purpose of s 49T(1)(b) was to be made between people 'with carer responsibilities' and those who did not have carer responsibilities. The Tribunal did not further qualify the comparator groups, say, for example into a comparison of those with child care responsibilities and those without child care responsibilities, or say those who are carers of children as sole parents, and those that are carers of children as parents in a dual relationship and a supportive partner.
48Mr Wright's submission, in effect, is that it is not sufficient to chose to compare anyone with carer responsibilities against all people without carer responsibilities. The true comparison is between, basically, sole parents with carer's responsibilities and others with carer's responsibilities who are not sole parents. His case is that many of the members of the Police Force with child care responsibilities would be in settings where a spouse or partner may be able to carry the load on the days they are rostered for service. Sole parents, in his submission, face greater difficulty in making other arrangements. Employers should, he argues adopt leave policies that respect their situation, and noted that sole parents may, if they do not meet their obligations under parenting agreements, be at risk of reduction of their care rights.
49The Tribunal drew support for its construction from the different drafting of the disability discrimination provisions of the ADA which it saw as permitting a more refined comparison in that area because of its use of different terminology. The relevant provision (s 49B(1)(b)) allowed for a comparison to be made between people with a disability and people 'who do not have that disability' (emphasis added), 'meaning the aggrieved person's disability' - [83].
50It will be seen that the meaning given to 'carer' in s 49S (set out earlier in these reasons) is not expressed in a global way. It refers to various kinds of care relationships. A distinction is drawn between care relationships with children (see categories (a) and (b)) and ones with other immediate members of the family ((c)).
51Mr Wright submitted that the word 'such' in the provision under notice here (s 49T(1)(b)) played the same rule as the word 'that' in the disability discrimination provision that the Tribunal saw as having a narrowing effect.
52Mr Wright's submissions also referred in support to the terms of s 49U, the unjustifiable hardship provision, and its reference to the 'relevant responsibilities' of the carer. Section 49U provides:
49U What constitutes unjustifiable hardship
In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account, including:
(a) the nature of the benefit or detriment likely to accrue to or be suffered by any persons concerned, and
(b) the effect of the relevant responsibilities as a carer of a person concerned, and
(c) the financial circumstances of and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
53We agree with Mr Wright's submission that the disability discrimination provisions and the carer responsibilities discrimination provisions are substantially similar. We doubt that the Parliament intended that in indirect discrimination cases there would be a greater freedom to the Tribunal to narrow the comparator categories in disability cases as compared to carer responsibilities cases.
54We think Banovic itself illustrates a situation where the Court (by majority) was prepared to move away from a bald comparison of all female workers affected by the retrenchment policy and all male ironworkers affected by the retrenchment policy, and confine the comparison to male employees and female employees with a particular characteristic, in that instance employment after the date when the screening policies that had so heavily disfavoured female employment had been abandoned.
55Section 23(3) of the ADA provided at that time:
(3) A person discriminates against anotherperson on the ground of his sex if herequires the other person to comply with arequirement or condition -(a) with which a substantially higherproportion of persons of the oppositesex to the sex of the other personcomply or are able to comply;(b) which is not reasonable having regardto the circumstances of the case; and(c) with which the other person does notor is not able to comply."
56That some flexibility may be brought to the task of identifying the groups to be compared is acknowledged, we consider, in the following passage from the joint judgment of Deane and Gaudron JJ in Banovic (at CLR pp 178-9).
17. As previously indicated, s.24(3)(a) requires an exercise which will ascertain whether sex is significant to compliance with the condition or requirement in question. It may be expected, as was indicated by Street C.J. in the Court of Appeal, that the base groups which are appropriate to that exercise will vary according to the context in which the condition or requirement is imposed. That being so, there is no warrant for reading s.24(3)(a) as invariably requiring the calculation of proportions by reference to the general male and female populations. Equally, there is no warrant for reading s.24(3)(a) as excluding that calculation if it will reveal the significance, if any, of sex to compliance. The silence of s.24(3)(a) as to the method of identifying appropriate base groups should, we think, be taken as requiring the Tribunal to determine for itself the base groups which will reveal whether sex is a significant factor in compliance. That is not to say that a determination of the appropriate base groups is merely a finding of fact which is beyond appellate review by reason of the limitation on appeals in s.118 of the Act.
18. The determination of the appropriate base groups will ordinarily involve the making of findings of fact. But it also involves a reasoning process which is not dissimilar from that involved in the process of determining whether or not evidence is relevant to an issue in a trial. A decision to select particular base groups involves a question of law, at least in so far as it is a question of law whether the base groups selected produce the exercise required by s.24(3)(a), namely, the ascertainment whether sex is significant to compliance. In this respect, it is necessary to enquire, as was pointed out in the recent decision of the United States Supreme Court in Wards Cove Packing Company (at pp 4586-4587), whether the groups are "too broad" or "too narrow". That exercise is, in essence, the same as an enquiry whether irrelevant considerations were taken into account or relevant considerations were not taken into account.
57In our view, the approach adopted in Banovic is one that allows for more fine-grained identification of the comparator groups or pools than simply confining them to the primary language of the statute.
58In our view, the task of the Tribunal is to adopt comparator categories that are of sufficient breadth to enable an effective comparison to be made and constitute pools that are credible and recognisable for those engaged in administration. This approach is consistent, as we see it, with the systemic character of indirect discrimination cases.
59We think it is permissible, having regard to the protective purpose of these provisions, and the delineation of different types of carer responsibility situations in s 49V, to characterise the groups more precisely than the Tribunal chose to do. We consider that the Tribunal was not barred by law from adopting more specific comparator categories than it chose to do. We do not think that the legislation mandates, as the Tribunal's reasons would appear to suggest, that only comparison allowed is between all persons with care responsibilities and all those without care responsibilities. It is permissible, we consider, to define the first group in narrower terms, having regard to the context and circumstances of the case.
60The Tribunal did go on to consider Mr Wright's submissions as to the characterisation of the two pools.
61The more extreme of his two proposals was that it was open to compare officers in Hillston with child care responsibilities and those without such responsibilities. This would have produced the absurd result of a pool of one, on the one side, and, on the other side, a pool of two. In our view the indirect discrimination provisions are not directed to microscopic comparisons of this kind, and that is reflected in words such as a 'substantially higher proportion'.
62The Tribunal also considered his other proposal, which it described as the third option. Mr Wright suggested that the comparator groups might be all those with carer responsibilities of a particular kind or extent (e.g. single parents) and those without those kinds of carer's responsibilities (i.e. people who are not single parents but who may have other kinds of carer's responsibilities). Had this case proceeded, it would, as the Tribunal noted have met with insuperable difficulties. Mr Wright had not adduced any evidence going to the extent of compliance of single parent officers versus, say, dual parent officers.
63Accordingly, if an approach that invested the carer comparison with additional characteristics such as sole parent status had been adopted, it would not, as we see it, have succeeded on the evidence before the Tribunal. There was insufficient evidence to make a comparison.
64The grounds of appeal also criticised the Tribunal for its ruling that it was not open to it in analysing the case on this basis to take 'judicial notice' of certain matters and find them as facts, in this instance the difficulties that a sole parent has in providing care as distinct from one who has a supportive partner. We will not deal with this point at length. In our view this is a matter that should be the subject of evidence, and we agree with the reservations expressed in another context on lightly taking judicial notice of matters: see Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 at [94]-[95] per Beazley ACJ (reversed in the High Court but not on this aspect, NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11).