Union seeks decisions in casuals' cases

By Brenda Seymour

A decision in favour of 13 women casual school teachers (the Amery women) in the NSW Court of Appeal means Federation will now seek decisions in two other cases involving casuals.

Federation will now call on the Industrial Relations Commission (IRC) to bring down its decisions for casual and temporary school teachers and TAFE part time casual teachers.

Federation ran an IRC case for men and women casual and temporary school teachers (2001). The Full Bench of the IRC advised Federation on August 26, 2004, having considered the further submissions on August 10, 2004, that it had decided to reserve its decision until the judgment in the Supreme Court of NSW Court of Appeal proceedings had been delivered.

Essentially the claim is for full pro rata payment for a minimum of four weeks full time work and for a minimum of one day a week for eight weeks part time work.

Federation also ran an IRC case for TAFE part time casuals (2003). The Full Bench decision is still reserved. The Commission may now feel at liberty to also bring down this decision.

History of the Amery case

The Amery women each brought a claim for damages under the Anti Discrimination Act in the amount of the difference in the salary they earned as casual teachers and the salary they say they should have been paid but for the discrimination.

On March 12, 2001 the Administrative Decision Tribunal gave its judgment in the matter of Amery & Ors v. The State of NSW.

The Administrative Decision Tribunal, in that decision, found that a number of women casual school teachers who were employed by the NSW DET in the same position for a period of eight weeks or more performed work equivalent to work performed by their permanent colleagues and were victims of indirect discrimination based on their sex. The basis of that discrimination was that such teachers were denied access to the higher salary levels afforded their permanent colleagues because they did not fulfil the requirement of permanency, in circumstances where a substantially higher proportion of women teachers than men teachers were so affected. The 'Amery' women in that case were awarded damages.

On June 12, 2003, the Administrative Decisions Tribunal Appeal Panel overturned the decision of the Tribunal at first instance to, in effect, find that there had not been unlawful discrimination in respect of the employment of casual school teachers.

The women teachers involved in the Amery case then lodged an appeal against this decision in the Supreme Court of NSW Court of Appeal. This matter was heard in June 2004 and judgment was reserved.

On November 15, 2004 the Supreme Court of NSW Court of Appeal in the Amery case brought down a significant decision finding in favour of the Amery women. By a two to one decision, the decision overturned the Administrative Decisions Tribunal Appeal Panel decision. The Supreme Court of Appeal found that the original tribunal did not err in law.

Accordingly, the decision of the original Tribunal should be reinstated and, as the DET has had a determination on the merits, the application for leave to appeal on the merits should be refused.

Further, DET are to pay all costs.

The 'Amery' women were originally awarded damages of up to $40,000 each. These payments with interest are now assured under this decision. The Carr Labor Government, however, is considering leave to appeal to the High Court. Labor Council is supporting Federation's call that taxpayers' money not be wasted on what Federation believes will be a futile High Court appeal.

Brenda Seymour is Assistant General Secretary (Research and Industrial).

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December 2004 contents