High Court favours NSW Government on pay scales

By Brenda Seymour

The High Court of Australia has held that different pay scales for permanent and casual NSW teachers does not contravene s24(1)(b) of the Anti-Discrimination Act.

Thirteen teachers, supported and funded by the Federation, began their case in 1996. The State Government employed the women as casual teachers on a long-term basis and paid them less than their permanent colleagues. The women argued that the State Government indirectly discriminated against them by paying them less than permanent teachers even though they performed work of equal value.

Most of the 13 women teachers had ceased teaching on a permanent basis due to family commitments, which demanded greater flexibility in their working hours.

The women argued that since very few casual teachers are male, the pay scales affected women more than male teachers and so had an indirect effect of discrimination on the ground of gender.

The NSW Court of Appeal decided in favour of the teachers, and the State of NSW appealed to the High Court, arguing that the statutory grounds for claiming discrimination had not been made out. The High Court, by a 6-1 majority, allowed the state's appeal. Four members of the majority held that there was no requirement or condition on casuals that potentially contravened the Anti-Discrimination Act, while the other two members of the majority made their decision on the basis that the grounds for differentiating between casual and permanent teachers had not been shown to be unreasonable.

On the announcement of the High Court decision, Federation President Maree O'Halloran said:

"The High Court today decided by a 6-1 majority in favour of the State Government and against the 13 casual teachers in the Amery case.

"The Federation is disappointed with the High Court decision and angry with the state Labor Government's ongoing exploitation of non-permanent teachers.

"Federation congratulates Justice Michael Kirby for his lengthy and considered dissenting opinion in this case. Justice Kirby's opinion criticised the conservatism of the current High Court: 'This case joins a series, unbroken in the past decade, in which this Court has decided appeals unfavourably to claimants for relief under anti-discrimination and equal opportunity legislation.'

"The State Government has fought this case at every turn over the past 10 years and continues to exploit teachers employed on a non-permanent basis."

Federation congratulates and thanks the women involved in this case: Joyce Amery, Lyn Bovard, Margaret Douglas, Jenny Drury, Linda Ellis, Leonie Hancott, Jacqueline Irvine, Denise McHugh, Karen Mors, Cheryl O'Loan, Marion Platt, Megan Pursche and Marcia Skelton.

They have taken a long and courageous stand against the State Government's exploitation. Their stand has been of great benefit to all non-permanent teachers in NSW.

The longstanding Amery case was the catalyst for the State Government/Department of Education and Training agreeing in 2001 to the category of 'temporary' teachers in schools. Temporary teachers are not permanent but receive more pay increments and better conditions than casual teachers. The State Government, however, continues to treat non-permanent teachers differently to other non-permanent state government employees. Other state government employees have an opportunity, established by legislation, to convert to permanency after 12 months. Teachers do not. The State Government is also arguing against non-permanent (temporary) teachers in schools and TAFE receiving a flow on of the benefits of the recent NSW Industrial Relations Commission's secure employment test case," she said.

Federation will continue to campaign for the rights of non permanent (casual and temporary) teachers including a demand for legislative change. It does appear, however, after Amery et al that the representative case involving nearly 700 women before the Anti Discrimination Tribunal and a test case before the Supreme Court will not be able to be continued by the Federation and those members.

State of NSW v Amery [2006] HCA 14 (April 13, 2006) High Court decision can be found at: http://www.austlii.edu.au/au/cases/cth/HCA/2006/14.html.

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

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