State of New South Wales v Amery [2006] HCA 14

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

THE STATE OF NEW SOUTH WALES APPELLANT

AND

JOYCE AMERY AND ORS RESPONDENTS

State of New South Wales v Amery [2006] HCA 14

13 April 2006

S288/2005

ORDER

1. Appeal allowed. 2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 10 December 2004 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with T J Anderson for the appellant (instructed by Crown Solicitor for New South Wales)

C J Birch SC with P F Lowson for the respondents (instructed by MacMahon Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

State of New South Wales v Amery

Industrial law (NSW) – Discrimination – Respondents were female teachers employed on a temporary basis as "supply casuals" by the New South Wales Department of Education and Training – Different salary scales applicable to permanent teachers and casual teachers – Permanent teachers entitled to progress along a common incremental salary scale consisting of 13 levels of annual salary – Casual teachers remunerated on a salary scale consisting of five levels, the highest of which equated to level eight of the salary scale of permanent teachers – All but two of the respondents had ceased teaching on a permanent basis either in order to rear children or for other family reasons – Evidence suggested that the proportion of permanent teachers employed in NSW government schools who are men is substantially higher than the proportion of casual teachers who are men – Permanent teachers subject to statutory requirements that did not apply to casual teachers – Whether subjection of casual teachers to different salary scale constituted discrimination on the grounds of sex in the terms or conditions of employment within ss 24(1)(b) and 25(2)(a) of the Anti-Discrimination Act 1977 (NSW) – Whether respondents were required to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the respondents do not or are not able to comply – Whether requirement that respondents obtain appointment as permanent full-time or part-time teachers was a "requirement or condition" within the meaning of s 24(1)(b) – Whether any such requirement was reasonable.