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Commission Submission Amicus Curiae - Howe v Qantas

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IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYDNEY REGISTRY

No SZ1373 of 2002

BETWEEN

LINDY HOWE

Applicant

and

QANTAS AIRWAYS LIMITED

Respondent

SUPPLEMENTARY SUBMISSIONS OF THE

SEX DISCRIMINATION COMMISSIONER APPEARING

AS AMICUS CURIAE

A. INTRODUCTION

1.

In light of the issues raised during the hearing of the proceedings and in the parties’ written submissions, the Sex Discrimination Commissioner (‘the Commissioner’) seeks the Court’s leave to make the following supplementary submissions.

2.

The submissions principally relate to the Applicant’s claim for indirect sex discrimination and in particular:

  1. what constitutes a condition, requirement or practice;
  2. whether the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same sex as the Applicant; and
  3. whether the condition, requirement or practice is reasonable in the circumstances.
3.

Brief submissions in response will also be made in relation to the proper construction of s 40 of the Sex Discrimination Act 1984 (Cth) (‘the SDA’).

B. INDIRECT DISCRIMINATION

The imposition of a condition, requirement or practice

4.

The Applicant brings her claim for indirect discrimination in relation to the condition, requirement or practice imposed by the Respondent, namely, that Long Haul Customer Service Managers employed by the Respondent be available to work full time and without flexibility as to hours of work or arrangement of working time.1

5.

The Commissioner does not agree with the submission of the Respondent that a ‘condition, requirement or practice’ within the meaning of s 5(2) of the SDA must be something separate from the ‘nature of the job itself’.2 That is, that the ‘condition, requirement or practice’ must be something separate from the terms and conditions of the aggrieved person’s employment.3

6.

Australian Courts have held that the condition, requirement or practice that employees be available to work full time is a condition, requirement or practice within the meaning of s 5(2) of the SDA.4 Australian Courts have made this finding in circumstances where the requirement to work full time formed part of the aggrieved person’s ongoing terms and conditions of employment.5

7.

That approach is consistent with that taken by Courts of high authority in other jurisdictions. By way of example, the Commissioner refers to the Northern Irish case of Briggs v North Eastern Education and Library Board [1990] IRLR 181 which considered the indirect sex discrimination provisions of the Sex Discrimination Act 1975 (UK). In this case, Lord Hutton, LCJ, stated at paragraph 27:

We are of [the] opinion that the consideration that the nature of the job requires full time attendance does not prevent there being a "requirement" within the meaning of s.1(1)(b) and Article 3(1)(b). We are further of [the] opinion that the fact that the employer requires the employee to carry out the job she is employed to do does not mean that the employer does not "apply" a requirement to her. 6

8.

The Commissioner submits that to restrict the construction of the words ‘condition, requirement or practice’ to something that is separate to the terms and conditions of the aggrieved person’s employment would be to give the words a narrower meaning than they naturally bear.

9.

Moreover, such a construction would operate to exclude cases that fall within the very mischief that s 5(2) was meant to deal with, that is, systemic discrimination on the basis of sex. It is well established that the words ‘condition, requirement or practice’ within the meaning of s 5(2) ought be broadly construed in order to ensure that respondents are not permitted to evade liability under that provision.7

The condition, requirement or practice has the effect of disadvantaging women

10.

The term ‘disadvantaging’ is not defined in the SDA and there is little discussion of the concept in the relevant case law. The Commissioner submits that the term should be given its ordinary meaning. The term is defined in the Oxford English Dictionary to mean ‘an unfavourable condition or circumstance’.8

11.

The Commissioner submits that the condition, requirement or practice need not disadvantage all women, or all women all of the time. It must simply have, or be likely to have, the effect of disadvantaging women.

12.

In the second reading speech introducing the Sex Discrimination Amendment Bill 1995 (Cth) which introduced the current formulation of s 5(2) of the SDA, the Attorney-General stated as follows ‘the bill sets out a simpler definition of indirect discrimination…The focus is on broad patterns of behaviour which adversely affect people who are members of a particular group.’9

13.

The pre-amendment test for indirect discrimination was criticised for being overly technical, legalistic and complex.10 The Commissioner submits that the Court should be careful not to import into the current formulation of s 5(2) of the SDA the complexities inherent in the pre-amendment provisions.11

14.

Courts have on a number of occasions taken judicial notice of the fact that a requirement to work full time has the effect of disadvantaging women; as stated by Driver FM in Mayer v ANSTO [2003] FMCA 209 at [70] ‘I need no evidence to establish that women per se are disadvantaged by a requirement that they work full time.’12

15.

In such cases, the basis for the finding of ‘disadvantage’ was that the courts inferred from general knowledge that women were far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work following maternity leave, in order to meet their family responsibilities. In these circumstances, the courts held that a condition or requirement to work full time in order to maintain position, status or salary was a condition or requirement likely to disadvantage women.

16.

The Commissioner submits that the Court can, at the present time, continue to take judicial notice of the fact that a requirement to work full time and without flexibility disadvantages, or is likely to disadvantage, women. Further, the Commissioner submits that that fact is so notorious that it can be judicially noticed without further inquiry.13

17.

Alternatively, this Court can take judicial notice of that fact after having regard to material which is extraneous to the record,14 including statistical information.15 The following matters would be relevant to such an inquiry. First, statistical information supports the conclusion that women access part time work and flexible working arrangements more often than men. In fact, one of the most significant features of part time work in Australia and worldwide is its concentration among women participants in the labour force.16 Second, that material also supports a conclusion that for women in our society working part time has rarely been a choice or a preference, but rather a necessity. It is well established that one of the principal reasons why women seek part time work and flexible work arrangements is because women in our society continue to bear the primary responsibility for the care of their families, particularly the care of young children, and working part time or flexibly allows women to meet these family responsibilities.17 Hours of work and the arrangement of working time are of central concern to workers with family responsibilities. Flexibility in these fields enables workers to reconcile their work and family responsibilities.18

18.

Accordingly, the Commissioner submits that the Court can take judicial notice of the fact that so long as family responsibilities devolve largely upon women, they will be disadvantaged by a requirement to work full time and without flexibility as to the arrangement of working time. The disadvantage arises because women are less able to discharge their responsibilities in both the family and in the workplace.

The goal of shared family responsibilities

19.

The above construction of s 5(2) of the SDA is consistent with the Convention on the Elimination of All Forms of Discrimination Against Women19 (‘CEDAW’) and the Convention Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities20 (‘ILO 156’). To the extent the Respondent suggests otherwise,21 the Commissioner disagrees.

20.

As regards CEDAW, the Committee on the Elimination of Discrimination Against Women22 (‘CEDAW Committee’), in its most recent General Comment, relevantly observed:

The Convention goes beyond the concept of discrimination used in many national and international legal standards and norms. While such standards and norms prohibit discrimination on the grounds of sex and protect both men and women from treatment based on arbitrary, unfair and/or unjustifiable distinctions, the Convention focuses on discrimination against women, emphasizing that women have suffered, and continue to suffer from various forms of discrimination because they are women. [cf respondent’s submissions at para 258].

.a purely formal legal or programmatic approach is not sufficient to achieve women's de facto equality with men, which the Committee interprets as substantive equality. In addition, the Convention requires that women be given an equal start and that they be empowered by an enabling environment to achieve equality of results. It is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account. Under certain circumstances, non-identical treatment of women and men will be required in order to address such differences. …

Women’s biologically determined permanent needs and experiences should be distinguished from other needs that may be the result of past and present discrimination against women by individual actors, the dominant gender ideology, or by manifestations of such discrimination in social and cultural structures and institutions. As steps are being taken to eliminate discrimination against women, women’s needs may change or disappear, or become the needs of both women and men. Thus, continuous monitoring of laws, programmes and practices directed at the achievement of women’s de facto or substantive equality is needed so as to avoid a perpetuation of non-identical treatment that may no longer be warranted. (emphasis added)23

21.

The unequal sharing of family responsibilities between men and women is not an immutable product of women’s biology and should be viewed as a ‘socially and culturally constructed difference’ which CEDAW obliges Australia to take steps to address. As the Respondent notes,24 the steps Australia is required to take to that end include ‘family education’25 and the encouragement of necessary supporting social services.26 However, until so addressed, women will continue to be disadvantaged by family responsibilities as compared to men and CEDAW obliges Australia to provide effective legal protection to affected women.27 The construction of section 5(2) which best accords with those obligations (and the pragmatic and fluid approach to inequality discussed by the Committee) is that outlined above.

22.

ILO 156 was drafted after CEDAW. It is apparent, from the inclusion of the following preambular paragraph (which appears in identical terms in the preamble to CEDAW) that the drafters of ILO 156 had regard to the terms of CEDAW:

States Parties to the present Convention…

Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women.

23.

Article 3, to which the Respondent refers, makes plain that that change is to be achieved over time (hence the inclusion of the words ‘[w]ith a view’ and ‘each member shall make it an aim of national policy…’). In other words, article 3 does not impose an immediate obligation to eliminate or proscribe discrimination on the ground of family responsibilities in the area of employment.28 Rather, States parties are obliged to pursue the goals referred to in article 3 as one aim of national policy (amongst others). Pursuit of that aim does not require that article 5(2) be construed so as to exclude claims founded upon the ongoing disparate impact of family responsibilities upon women, which would, for the reasons above, be inconsistent with CEDAW. It is also relevant to note, in that regard, that the drafters apparently recognised that disparate impact upon women in preparing the text of ILO 156:

It was considered that full equality of opportunity and treatment for men and women could not be achieved without broader social changes, including a more equitable sharing of family responsibilities and that the excessive burden of family and household tasks still borne by women workers constituted one of the most important reasons for their continuing inequality in employment and occupation.(emphasis added)

24.

Indeed addressing that disparate impact was one of the principal aims of ILO 156:

The aim of the instruments was therefore, in the view of the member States, not to pursue a general "family policy" but rather to deal with the issue of family responsibilities in so far as the burden of such responsibilities borne by workers could create or maintain existing inequalities between the sexes. In this regard, it was recalled that discrimination on the grounds of family responsibilities or marital status was frequently judged to be a form of discrimination based on sex. 29 (emphasis added)

25.

Accordingly, the Commissioner submits that so long as family responsibilities and household tasks are not equally shared between the sexes and overwhelmingly devolve upon women, recourse should remain available to women to address any discrimination that may arise in the workplace as a result of this systemic inequality between the sexes.

26.

A claim for indirect sex discrimination under the SDA is and should remain available to prevent this inequality between the sexes within the family from restricting women’s possibilities of preparing for, entering, participating in or advancing in economic activity. The discrimination arises not principally because of family responsibilities but for reasons of sex. The Commissioner disagrees with the submission of the Respondent that the Applicant’s claim seeks to extend s 5(2) of the SDA to provide a cause of action with respect to family responsibilities discrimination in employment generally.30

27.

The Commissioner acknowledges that family responsibilities may not continue to devolve overwhelmingly on women and family responsibilities may become more equally shared between men and women. Accordingly, a condition, requirement or practice to work full time may not continue to disadvantage women (see the comments of the CEDAW Committee extracted above). While the Commissioner supports any development in the legislation which may provide redress for both men and women who experience discrimination on the basis of family responsibilities, the Commissioner submits that this is a matter for the legislature and should not lead this Court to read down protections currently available under the SDA to women who experience discrimination.

28.

Finally, the Commissioner submits that it is unnecessary for the Court to make a finding that family responsibilities are a characteristic appertaining generally to women.31 In fact it is submitted that a finding in these terms would confuse the differences in coverage between ss 5(1) and 5(2) of the SDA. As stated by Driver FM in Mayer v ANSTO at [71]:

Discrimination under s 5(2) is either established or not by reference to its own terms, not by reference to s 5(1). In this case discrimination under s 5(2) is established because the respondent insisted upon the applicant working full-time against her wishes. The issue of family responsibilities is only relevant insofar as it establishes that women tend to be disadvantaged by such a requirement.

Reasonableness: the proportionality of the disadvantage

29.

Ultimately the question of the reasonableness or proportionality of the condition, requirement or practice is one of fact and degree depending on the particular circumstances of the case before the Court. As previously stated the Commissioner makes no submissions upon the reasonableness of the condition, requirement or practice in question in this case other than insofar as the concept of proportionality is concerned.

30.

As the Court in State of Victoria v Schou [2004] VSCA 71 at [25] noted, the principles related to ‘reasonableness’ are well established since Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263, (approved in Waters v Public Transport Corporation (1991) 173 CLR 249 at 395-396). Proportionality is but one component of whether the disadvantage suffered by the Applicant is reasonable or not. As Sackville J in Commonwealth Bank v HREOC (1997) 80 FCR 78 stated at 112:

The presence of a logical and understandable basis is a factor…in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement…and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision.

31.

The term ‘proportionate’ is not defined in the SDA. Again, some assistance may be derived from international law.32 In General Comment 18 to the International Covenant on Civil and Political Rights,33 'Non Discrimination', the Human Rights Committee explains that under international law 'not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.'34 This approach is reflected in jurisprudence from the Human Rights Committee.35

32.

Similarly, the Commissioner submits that the appropriate inquiry is to ask whether or not the requirement or condition is appropriate and adapted to achieving a legitimate non-discriminatory end and whether the relevant activity could be performed without imposing such a requirement or condition.

C. SECTION 40 OF THE SDA

33.

For the reasons set out in her primary submissions of 16 April 2004,36 the Commissioner submits that s 40(1) of the SDA should not be construed so as to protect acts which are consequential to compliance with an award or certified agreement.37

34.

Such a construction is inconsistent with the clear and unambiguous wording of the provision of the SDA which requires the relevant act to have been done ‘in direct compliance’ with an award or certified agreement. To permit the construction posited by the Respondent would be to impermissibly import into the provision words that the Parliament has deliberately chosen to exclude such as ‘indirect’ or ‘consequential upon’.

35.

Further, such a construction is contrary to recent authorities in relation to s 40 of the SDA and its state counterparts, which posit a narrow construction of the exemption.38 The Court is referred to the decision in Gibbs v Commonwealth Bank of Australia (1997) EOC 92-977 where the Commission stated at 77,140 that in order for there to be ‘direct compliance’ within the meaning of s 40, the action taken by the discriminator must have been ‘made necessary’ by the clause in the award or certified agreement.

36.

In so far as the Respondent relies on the judgment of Abadee J in David Jones v P (29 August 1997)39, the Commissioner says that the decision provides no authority for the Respondent’s submission in this regard.

R A Pepper

Counsel for the Sex Discrimination Commissioner

23 June 2004

Endnotes

  1. See paragraph 7.7 of the Applicant's written submissions dated 28 May 2004.
  2. See paragraph 232 of the Respondent's written submissions dated 16 June 2004 ('the Respondent's written submissions').
  3. See paragraph 235 of the Respondent's written submissions.
  4. See Australian authorities referred to at paragraphs 22 and following of the Commissioner's submissions of 16 April 2004. The Commissioner does not agree with the submission of the Respondent at [236] - [237] that these authorities should be viewed with caution as they do not concern the imposition of a condition, requirement or practice in circumstances where there is an ongoing employment relationship. The Respondent has not provided any explanation or reason for this submission. The Commissioner reiterates her submission that the cases referred to are authority for the principle that the condition, requirement or practice that employees be available to work full time to maintain their position, status and level of remuneration is a condition, requirement or practice within the meaning of s 5(2) of the SDA.
  5. See for example Mayer v ANSTO [2003] FMCA 209 at [74]. The Commissioner refers to paragraphs 28 - 30 of her submissions of 16 April 2004 in relation to the difficulties with the decision in Kelly v TPG Internet Pty Ltd [2003] FMCA 584.
  6. This passage was cited with approval in the decision of the Employment Appeal Tribunal (UK) in Lockwood v Crawley Warren Group Ltd (28 June 2000) Unreported, EAT/1176/99, per Mr Justice Maurice Kay at [15] where it was held that the requirement to work full time, in circumstances where the requirement formed part of the applicant's current contractual obligations, was a requirement or condition imposed by the respondent within the meaning of s 1(1)(b) of the Sex Discrimination Act 1975 (UK). It should be noted, however, that the case law in the United Kingdom on this point is inconsistent.
  7. See paragraph 22 of the Commissioner's submissions of 16 April 2004. See also the decision of the Employment Appeal Tribunal (UK) in Clarke v Eley (IMI) Kynoch Ltd [1982] IRLR 482 at 485, where Browne-Wilkinson J referring to the words 'requirement or condition' stated: 'In our view it is not right to give these words a narrow construction. The purpose of the legislature in introducing the concept of indirect discrimination into the 1975 Act and the Race Relations Act 1976, was to seek to eliminate those practices which had a disproportionate impact on women or ethnic minorities and were not justifiable for other reasons. ... If the elimination of such practices is the policy lying behind the Act, although such policy cannot be used to give the words any wider meaning than they naturally bear, it is our view a powerful argument against giving the words a narrower meaning thereby excluding cases which fall within the mischief which the Act was meant to deal with.'
  8. The Shorter Oxford English Dictionary on Historical Principles, (Third Edition) Volume 1 at p 557.
  9. Hansard, 28 June 1995, p 2460.
  10. Hansard, 28 June 1995, p 2460.
  11. See for example Department of Foreign Affairs v Styles (1989) 88 ALR 621 and Australian Iron and Steel v Banovic (1987) 168 CLR 165. A further indication of the complexity involved in the pre-amendment provisions of the SDA can be found in the United Kingdom where the test for indirect discrimination in the EC Directive 97/80/EC and the Sex Discrimination Act 1975 (UK) reflects the pre-amendment test, the focus being on establishing disparate impact rather than disadvantage. The question of the correct legal test for establishing the requisite degree of disparate impact between men and women was referred to the European Court of Justice by the House of Lords in R v Secretary of state for Employment, ex parte Nicole Seymour-Smith[1999] 2 AC 554. The ECJ stated at 597, [60] - [62]: '...it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition...That situation would be evidence of apparent sex discrimination...That could also be the case if the statistical evidence revealed a lesser but persistent and relatively constant disparity over a long period between men and women who satisfy the requirement...It would, however, be for the national court to determine the conclusions to be drawn from such statistics. It would also be for the national court to assess whether the statistics concerning the situation of the workforce are valid and can be taken into account, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short term phenomena, and whether in general, they appear to be significant.'
  12. See also Mayer v ANSTO at [68]- [73]; Hickie v Hunt and Hunt (1998) EOC 92-910 at [16.17.10] - [16.17.12]; Victoria v Schou at [17] and [25]; Escobar v Rainbow Printing (No 2) [2002] FMCA 122 at [33] and [37]; Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184.
  13. The Commissioner submits that it is a fact 'so generally known that every ordinary person may be reasonably presumed to be aware of it'. See McHugh J at [64] - [70] and Callinan J at [162] - [169] in Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460. Both McHugh and Callinan JJ cite with approval the oft-quoted statement of Isaacs J in Holland v Jones (1917) 23 CLR 149 at 153; 'the only guiding principle - apart from Statute - as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it the court "notices" it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.' Facts that have been judicially noticed without inquiry include, inter alia, that cancer is a major health problem within the community and little progress has been made in controlling it (Re E M Murray (deceased); Permanent Trustee Co of NSW v Salwey [1964-5] NSWR 121 at 122); that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection (M v The Queen (1994) 181 CLR 487 at 515 per Gaudron J); and that many lawyers now charge hundreds of dollars an hour for their services and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable (Perre v Apand Pty Ltd (1999) 198 CLR 180 at 215 [89] per McHugh J); per McHugh J in Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460 at [66]. And in Rendell v Paul (1979) 22 SASR 459 at 465-466 King CJ stated that judicial notice can be taken of 'general economic trends, the effects of inflation, prevailing rates of interest and returns on investments'. See also s 144(1)(a) of the Evidence Act 1995 (Cth).
  14. Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460 per McHugh J at [67] - [69]. McHugh J states at [67]: 'On countless occasions, Justices of this Court have used material, extraneous to the record, in determining the validity and scope of the legal rules and principles. They have frequently relied on reports, studies, articles and books resulting from their own research after the case has been reserved and parties have made their submissions.' And McHugh J states at [69] 'Courts have also used published statistics to resolve issues vital to the resolution of litigation and to inform themselves on policy issues.' In any event, the Commissioner submits that the disadvantage in the circumstances of this case is so notorious that further inquiry is not necessary.
  15. Aqua Max Pty Ltd v M T Associates Pty Ltd (Unreported, Supreme Court of Victoria, 19 June 1998) per Gillard J at [30] - [33], cited with approval by McHugh J in Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460 per McHugh J at [69].
  16. ABS, Labour Force, Australia Data Cubes 6291.0.55.001 cited in I.Campbell and S.Charlersworth 'Background Report: Key Work and Family Trends in Australia' (Centre for Applied Social Research, RMIT University, Melbourne, April 2004) at 149. See also International Labour Organisation, General Survey: Workers with Family Responsibilities, International Labour Conference (80th: 1993: Geneva), Report III Part 4B, 1993 at [144].
  17. ABS, Australian Social Trends 2003; Family and Community - Family functioning: Balancing family and work, 3 June 2003. See also International Labour Organisation, General Survey: Workers with Family Responsibilities, International Labour Conference (80th: 1993: Geneva), Report III Part 4B, 1993 at [143].
  18. International Labour Organisation, General Survey: Workers with Family Responsibilities, International Labour Conference (80th: 1993: Geneva), Report III Part 4B, 1993 at [131].
  19. Opened for signature 18 December 1979 and entered into force 3 September 1981. The Convention is set out in the Schedule to the SDA.
  20. Entered into force 11 August 1983; ratified by Australia 30 March 1990.
  21. See the Respondent's submissions at paragraphs 258-264.
  22. The Committee on the Elimination of Discrimination Against Women is the expert body with responsibility for considering the progress made in the implementation of CEDAW (See article 17(1)). It considers reports prepared by States Parties on the legislative, judicial, administrative or other measures adopted to give effect to CEDAW and the progress made by States Parties in that respect (see Article 18). It also has the power to make 'suggestions and general recommendations' based on that material (See Article 21(1)). The exercise of those functions and powers necessarily involves the interpretation of the provisions of CEDAW. The General Recommendations made by the Committee are interpretative comments which develop further analysis of the articles and areas of the CEDAW Convention. The Recommendations guide State Parties in the best ways to implement human rights standards at the domestic level. The General Recommendations on Country Reports thus constitute an expert interpretation of the provisions of CEDAW to which this Court should give weight.
  23. General Recommendation No 25, (Thirtieth Session, 30 January 2004) at [5] - [11].
  24. See Respondent's submissions at paragraphs 260-261.
  25. Article 5(b) CEDAW.
  26. Article 11(2)(c) CEDAW.
  27. Article 2 CEDAW.
  28. Cf article 8 of ILO 156 which more obviously imposes an immediate obligation in relation to termination of employment. The obligation in article 8 of ILO 156 provided the constitutional basis for the introduction of s 7A into the SDA - which provides that family responsibilities shall not, as such, constitute a valid reason for the termination of employment. See Human Rights and Equal Opportunity Legislation Amendment Bill (No 2) 1992, Explanatory Memorandum, 18 November 1992 at [6] - [8] and the Second Reading Speech to the Human Rights and Equal Opportunity Legislation Amendment Bill (No 2) 1992, Hansard, 3 November 1992, p 2399. Note also that article 10 of ILO 156 expressly states that the provisions of ILO 156 may be applied by stages if necessary, account being taken of national conditions.
  29. International Labour Organisation, General Survey: Workers with Family Responsibilities, International Labour Conference (80th: 1993: Geneva), Report III Part 4B, 1993 at [25] - [26].
  30. See paragraph 204 of the Respondent's written submissions.
  31. See paragraph 7.2 of the Applicant's written submissions dated 28 May 2004.
  32. See the approach adopted by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004 SCC 4 where the Court (McLachlin CJ, Gonthier, Lacobucci, Major, Bastarache and LeBel JJ) stated at [31]: '[F]urther precision on what is reasonable under the circumstances may be derived from [Canada's] international treaty obligations... Canada's international commitments confirm that physical correction that either harms or degrades a child is unreasonable.'
  33. Opened for signature 16 December 1966; entered into force 23 March 1976; entered into force for Australia 13 November 1980.
  34. UN Doc HRI\GEN\1\Rev1 at 26 (1994), [13].
  35. See for example Waldman v Canada, Human Rights Committee, Communication No 694/96, CCPR/C/67/D/694/1996, [10.6].
  36. See paragraphs 44 - 53.
  37. See paragraph 151 of the Respondent's written submissions.
  38. Waters v Public Transport Corporation (1991) 173 CLR 349 and Gibbs v Commonwealth Bank of Australia (1997) EOC 92-977. The Commissioner submits that the reasoning of the High Court in Waters v Public Transport Corporation remains instructive despite (i) the differences in the wording of s 40 of the SDA and s 39 of the Victorian Act; and (ii) the fact that the clause was contained in a statute rather than an award, there of course being no protection for acts done in direct compliance with a statute in the SDA. (see paragraph 147 of the Respondent's submissions). This is because the High Court had to make a choice between a broad construction of the protection and a narrow construction. They considered that when the relevant provision 'is construed in its context in the Act...it appears to us that the narrow construction is the preferable one' (at 369).
  39. Unreported, Supreme Court of New South Wales (Matter No 30062/96).

 

 

Last updated 15 January 2002.