Employment Update - The Word from on High: Indirect Discrimination

Employers who pay casuals less than permanent employees – even where most of them are women who are casuals because of family responsibilities – are not guilty of ‘indirect discrimination’, says the High Court.

This month the majority of the High Court in the State of New South Wales v Amery [2006] HCA 14 (13 April 2006) held that the NSW Department of Education and Training (Department) did not indirectly discriminate against 13 casual female employees of the Education Teaching Service (Service) by paying them lower salaries than permanent employees.

The casuals were paid in accordance with the lower pay scale prescribed by the relevant industrial instruments (Industrial Instrument). In a 6-1 decision the High Court found that it was not unreasonable for the Department not to pay above award rates, or that it was not a Department ‘requirement’ or condition of employment that casual employees should cease casual employment to access the higher pay scale.