Limited protection under the Sex Discrimination Act 1984 (Cth) for women on maternity leave
Mimi Barbaro
Mimi Barbaro is a senior lawyer at the Human Rights and Equal Opportunity Commission
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The recent decision of Burchardt FM in Iliff v Sterling Commerce (Australia) Pty Ltd[1] (‘Iliff’) and of Gordon J in the same case on appeal[2] illustrate the limited protection offered by the direct discrimination provisions of the SDA[3] to women on maternity leave.
Direct discrimination on the grounds of maternity leave
The SDA prohibits direct discrimination on the grounds of pregnancy. Direct discrimination on the ground of pregnancy is described in s 7(1) of the SDA. It includes treating a woman less favourably because of a characteristic that appertains to women who are pregnant ‘than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant’. It is accepted that the taking of maternity leave is a characteristic that appertains generally to pregnant women under s 7(1)(b).[4]
To prove direct discrimination on the ground of pregnancy, a woman must show that:
- the act complained of was because of the taking of maternity leave
(‘causation test’); and
- she was treated less favourably than, in circumstances that are the same or
are not materially different, the discriminator treats or would treat someone
who is not pregnant (‘comparator
test’).[5]
In Iliff the applicant failed to satisfy the court of either of these elements.
The facts in Iliff
Ms Iliff took maternity leave with the consent of Sterling Commerce (‘SC’). SC temporarily employed another woman to carry out Ms Iliff’s role whilst she was on maternity leave. Shortly before she was due to return, SC wrote to her and informed her that the company had been restructured and as part of the restructure her position had been made redundant. SC further said that a new position had been created, but the company did not consider that that it was a suitable alternative position for her current role. They offered to pay Ms Iliff a redundancy payment conditional upon her signing a release that confirmed that she had no further claims against them and that she had returned all company property. In the meantime, SC appointed Ms Iliff’s replacement to the new position that had been created.
Decision at first instance
Burchardt FM held that notwithstanding that he was satisfied that Ms Iliff would not have been dismissed if she had not gone on maternity leave, that did ‘not mean necessarily that the reason for her dismissal was the fact that she was on maternity leave’.[6]
His Honour held that the respondent’s dismissal of the applicant was not discriminatory under the SDA because the ‘real reason’ she was dismissed was that the respondent wanted her replacement to do the work instead because it considered her replacement to be a better employee for the job.[7]
In considering the comparator test Burchardt FM adopted the reasoning of Allsop J in Thomson v Orica[8] (‘Thomson’) and held that the comparator was ‘a person who went on unpaid leave in December 2004 with an enforceable understanding that they were entitled to return to work, following the end of that leave, in 2005’.[9]
His Honour then went on to hold, applying the comparator test, that SC would have refused to have reinstated Ms Iliff if she ‘had been on study leave, or if the person in her job had been a man on unpaid leave, even if such leave had involved, as maternity leave did, a right to return to work’.[10]
Findings of discrimination and breach of the WR Act
His Honour did, however, find that SC had breached the SDA by having made payment of Ms Iliff’s redundancy payment conditional upon her signing a release in favour of the company and had breached Schedules 1A and 14 of the Workplace Relations Act 1996 (Cth) (‘WR Act’).
Decision of Gordon J on appeal
SC appealed against the decision of Burchardt FM and Ms Illif cross-appealed. Relevantly, Ms Iliff argued that Burchardt FM erred because:
- when applying the comparator test his Honour should have reached the same
conclusion that Allsop J did in Thomson, namely that the respondent would
not have treated the comparator in the same way; and
- his Honour incorrectly focussed on identifying the ‘real’ reason
for the dismissal rather than considering whether the maternity leave was a
reason for the dismissal.
Application of the comparator test
Gordon J rejected ground one of the cross-appeal. Her Honour held that the conclusion reached by Allsop J in Thomson was premised on a factual finding that the company in that case was prejudiced against women taking maternity leave. In contrast in Iliff
there was nothing to suggest that the management at Sterling Commerce had a negative attitude towards maternity leave. On the contrary. His Honour found that Mr Vulcan had been supportive of Ms Iliff taking leave.[11]
Gordon J concluded that Burchardt FM had not erred because ‘the evidence did not suggest that SC would have treated the comparator with an equivalent right to return to work any differently than it did Ms Iliff’.[12] Her Honour went on to observe that whilst this amounts to a finding that SC would act contrary to statute
...in the application of the comparator, it is clear that none of Ms Iliff’s sex, maternity leave or family commitments was a reason underlying the company’s poor conduct towards her. The reason for the company’s poor conduct was driven by (and continues to be driven by) its own commercial interests.[13]
This decision suggests that whether a woman is able to satisfy a court that she would have been treated less favourably than the comparator will depend on the evidence about the employer’s attitude towards maternity leave.
Causation
In relation to the second ground Her Honour held that Burchardt FM’s focus on the ‘real’ reason was impermissible.[14] In this regard her Honour held:
The test of discrimination is not whether the discriminatory characteristic is the ‘real reason’ or the ‘only reason’ for the conduct, but whether it is ‘a reason’ for the conduct.[15]
Nonetheless her Honour held that Burchardt FM’s error would not have altered the outcome as she was satisfied that SC would have treated the comparator in the same way.[16]
Comment
The decision in Iliff demonstrates that there are two reasons that the direct pregnancy discrimination provisions in the SDA offer women on maternity leave limited protection. The first reason arises from the manner in which the comparator was formulated by Allsop J in the decision of Thompson. The second reason arises from the causation test of direct discrimination requiring consideration of the actual reasons for the conduct rather than being a ‘but for’ test.
Comparator
Belinda Smith has been critical of the comparator formulated by Allsop J in Thomson and applied by Burchardt FM in Iliff because it requires the comparison to be with someone on leave.[17] In doing this she says
the court was allowing the employer to use the taking of leave as a basis for decision-making and to ignore the reasons for taking leave. No distinction was made between maternity leave and any other sort of leave, despite the acknowledged connection between maternity and pregnancy (a protected trait and traditional source of disadvantage).
The formulation of the comparator therefore permits employers to treat a woman less favourably because she is on leave which appears to be contrary to the intention of the legislation. It also fails to recognise that maternity leave should not be treated in the same way as other forms of leave and should be given special protection.[18]
Causation
The decision in Iliff illustrates that a further limitation in the protection offered by the SDA is the formulation of the causation test. As the test requires consideration of the actual reason/s for the employer’s conduct it means that even if the taking of maternity leave is causative of a decision to dismiss a woman, in the sense that but for her taking the leave she would not have been dismissed, this is not sufficient to obtain a remedy under the SDA. This in effect means that the SDA permits women to be disadvantaged as a consequence of taking maternity leave.
Given the difficulties posed by the comparator and causation tests the direct pregnancy discrimination provisions of the SDA only go a limited way to addressing the workplace disadvantage that women experience as the result of pregnancy.[19] Women on maternity leave may, however, still consider the provisions of the WR Act and the indirect discrimination provisions of the SDA as providing a possible avenue of redress.
[1] [2007] FMCA
1960.
[2] Sterling Commerce
(Australia) Pty Ltd v Iliff [2008] FCA
702.
[3] Sex Discrimination Act
1984 (Cth).
[4] Thomson v
Orica [2002] FCA 939,
[165].
[5] Thompson v Orica [2002] FCA 939, [118]. See also the decision of the Gummow, Hayne and Heydon
JJ in Purvis v State of New South Wales (Department of Education and
Training) (2003) 217 CLR 92, 162 [231] and Belinda Smith, ‘From Wardley to Purvis –How far has Australian
anti-discrimination law come in 30 years?’ (2008) 21 Australian Journal
of Labour Law 3, 8.
[6] Ibid
[118].
[7] Ibid
[127].
[8] [2002] FCA
939.
[9] [2007] FMCA 1960,
[122].
[10] Ibid
[133].
[11] Ibid
[44].
[12] [2008] FCA 702,
[45].
[13] Ibid,
[46].
[14] Ibid [49]. This seems
to be somewhat inconsistent with the views expressed in Purvis v State of New
South Wales (Department of Education and Training) (2003) 217 CLR 92 by
McHugh and Kirby JJ at 144, [166] and Gleeson CJ at 102, [13].
[15] [2008] FCA 702,
[48].
[16] Ibid.
[17] ‘From Wardley to Purvis –How far has Australian anti-discrimination law come
in 30 years?’ (2008) 21 Australian Journal of Labour Law 3,
20.
[18] International Labour
Office, Equality in employment and occupation, Report III (Part 4B)
(1999) 42.
[19] See HREOC’s
submissions to the Productivity Commission Inquiry into Paid Maternity,
Paternity and Parental Leave, [123]-[158] http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html
