Victorian Supreme Court hears case on 'systemic' gender discrimination

Case follows a female employee's seven-year quest to negotiate her salary

Victorian Supreme Court hears case on 'systemic' gender discrimination

The Supreme Court of Victoria recently heard a claim of direct discrimination in employment because of sex and age after an employee said she was denied the opportunity to negotiate and receive a higher salary.

The case is an appeal from the Victorian Civil and Administrative Tribunal (VCAT), alleging that the employer violated the state’s Equal Opportunity Act 2010. The employee cited that her male colleagues were “paid a significantly higher salary” than her. Learn about situations that amount to “direct discrimination” under the said Act and the employer’s obligations to combat it.

The employer is a health care service provider, and the employee is the manager of its orthotic and prosthetics department. She manages a team of about 16 people, comprising clinicians, technicians and administrative staff, who deliver prosthetic and orthotic services across acute, rehabilitation and outpatient settings.

The allied health professionals are generally paid according to their respective enterprise agreements. After becoming the department manager, the employee discovered that one of the senior clinicians under her management was “being paid significantly above the rate for his classification” and was also “receiving an annual salary well in excess of her own.” She also found out that four technicians had been incorrectly classified as clinicians and were being paid above the correct rate for their roles. All of these technicians were men.

For several years, she made several approaches to her managers to negotiate an over-agreement salary for herself, without success. She also wrote a letter “to request the opportunity to engage in discussions regarding uplifting [her] classification and remuneration.” The letter identified three men under her management who had been given that opportunity and paid salaries above the prescribed minimum for their classification.

Finally, in 2019, she made an application before the VCAT, alleging that her employer had discriminated against her in her employment because of her sex and her age. She claimed that her employer “had denied or limited her access to benefits connected with her employment, namely the opportunity to negotiate her remuneration and be paid above the remuneration provided for in her enterprise agreements.”

She sought compensation and an order requiring her employer to stop refusing to negotiate over-agreement remuneration, but the VCAT dismissed her application.

What is “direct discrimination” under Victoria’s Equal Opportunity Act?

As defined in s 8 of the said Act:

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

Examples

1. An employer advises an employee that she will not be trained to work on new machinery because she is too old to learn new skills. The employer has discriminated against the employee by denying her training in her employment on the basis of her age.

2. A real estate agent refuses an African man’s application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race.

(2) In determining whether a person directly discriminates it is irrelevant —

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

What are the employer’s obligations relating to “equal opportunity”?

As provided by s 18 of the same Act:

Discrimination against employee

An employer must not discriminate against an employee —

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment; or

(b) by dismissing the employee or otherwise terminating his or her employment; or

(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

(d) by subjecting the employee to any other detriment.

The court’s consideration

When the employee filed an appeal against the VCAT’s decision to dismiss her application, the Supreme Court noted that the employee “complained of direct discrimination in relation to her remuneration over a period of seven years.”

It also noted that her complaint was made directly against her employer and not against individuals. “It was a complaint of systemic discrimination by a large organisation, and could not be reduced to a few isolated interactions with specific individuals,” the court said.

The court further said that the employer is now obligated to “undertake a workplace gender audit and prepare a gender equality action plan,” as set out in the state’s Gender Equality Act 2020. “The audit must assess the state and nature of gender inequality in the workplace having regard to the specified workplace gender equality indicators, which include equal remuneration for work of equal or comparable value across all levels of the workforce,” the court added.

As of date, the court had ordered the case to be remitted back to the VCAT to be heard and decided again.

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