Discrimination Against Casual Teachers

By Rebecca Davern

Certain discrimination complaints will be harder to pursue after the High Court limited the traditional scope of indirect discrimination in the NSW casual teachers' dispute.

(New South Wales v Amery [2006] HCA 14 (13 April 2006).

The NSW Court of Appeal had previously found that the Dept of Education & Training had discriminated against casual teachers by restricting access to higher pay rates available to permanents. The High Court, in a 6-1 decision reversed the decision.

The majority found that the difference in terms and conditions of casuals and permanents did not amount to the imposition of a condition or requirement. The teachers were all female and broadly saw that their work and family commitments prevented them from having permanent positions at the higher rates s they were forced to remain as casuals at lower rates.

Justice Gleeson agreed with the majority decision but said that there was a condition imposed on the appointments, but that the condition was a reasonable one.

The decision is seen as unlikely to assist employers who unreasonably refuse flexible working arrangements, but at the same time it will limit the way claims of indirect discrimination can be made.

LexisNexis Butterworths Employment Law Bulletin; vol. 12, no. 3