Human Rights and Equal Opportunity Commission †MyAssignmenthelp

Question: Discuss about the Human Rights and Equal Opportunity Commission. Answer: Introduction: Garriock v Football Federation Australia[1]is amongst the recent cases of Australia which saw a claim of unlawful discrimination being brought forward by a female football player in the New South Wales Civil and Administrative Tribunal where the Tribunal held that the discrimination which had been alleged by the plaintiff was not a condition or requirement based on the anti discriminatory act of NSW. In this case, the plaintiff was Heather Garriock and the defendant was the Football Federation Australia. Heather had represented Australia in three world cups and two Olympics[2]. The plaintiff was a former Matilda, Olympian and a football player and was also the mother of Kaizen, a three year old child. She raised a complaint against the Federation for rejecting the request which she had made regarding her the costs of her child for the period during which she would be on the tour in USA, while she was offered a spot on the 3-week football tour. It was stated by Heather that the standa rd pay for the Federation in the matter of the previous tour was almost half of the child care costs of her daughter[3]. Through this tour of USA, Heather was to get an overall sum of $2,440 which included a pay of $500 for every game and a paid allowance of $1500 for the two week tour[4]. The claims made by the plaintiff were related to the conduct of the Federation regarding the indirect discrimination against her, which led to the provisions of the Anti-Discrimination Act, 1997[5] having being breached. The basis of this allegation was over the unlawfulness of the discrimination against an employee by the employer relating to the responsibility as a carer[6]. She based her claim on section 49V of the Anti-Discrimination Act for the responsibility as carer in context of employment. The key issue raised in this case by Heather was in the matter of identifying the requirements or condition related to the requirements placed before Heather by the Federation and which had to be fulfilled. The reason for this was that an indirect discrimination claim had a crucial component of indentifying a requirement or a condition. The unlawful conduct of the Federation was related to imposing the requirement or condition which was brought forward for a player in the matter of fulfilling the same, in comparison to the other players, and this was an unreasonable thing. The players were required to take the full responsibility in this case for the alterative carer arrangements for their children during the tour and also for the costs associated with it. The alternative requirement required the players to undergo the tour in which the full responsibility regarding the substitute maternal care arrangements for the child had to be borne by the player and also for the costs associated with it[7]. What was argued on behalf of Heather Garriock? And why? It was argued on behalf of Heather that the conduct of the defendant had been a direct contravention of section 49V (1) (c), 49V (2) (a) and 49V (2) (d) of the Anti-Discrimination Act due to the discrimination against her for the responsibilities as a carer in the terms of the tour which had been offered, as she was discriminated in the matter of condition of employer which the employer affords and also for the detriment of the employee. Another claim made by the plaintiff was that she was an employee of the Federation which made the pertinent sections apply on her. Though, this claim was denied by the Federation. This issue was not disputed as the provisions of section 49V applied on the people working under a contract and this was not contested by the defendant as the plaintiff was working based on a contract[8]. Heather also claimed an indirect discrimination based on section 49T (1) (b) of the Anti-Discrimination Act. It was claimed that there had been indirect discrimination on the basis of the obligations which the plaintiff held as carer since she had to obey the requirements put by the Federation, which was an unreasonable thing to do. The requirement related to the responsibility of the costs associated with the care of her daughter being imposed on her during the tour of USA. In the matter of the claims of the Federation, she rejected that the impugned were applicable on her[9]. In this regard, she highlighted Freemes testimony in the matter of applicability of these requirements as a general rule which applied on every player who took part in the US tour[10]. She made reference to the case of Hurst v State of Queensland[11] for the claim of the Federation and stated that she was the only one who had to deal with the requirements as they only applied on her. What was argued on behalf of the Football Federation of Australia? And why? The argument presented by the Federation was that the conduct which the plaintiff had claimed in this case was not covered under the sections she quoted. It was also provided that these impugned requirements had not been posed over the plaintiff at any stage and for this reference was made to the time when the plaintiff was hired and the duration of the tour in which she was engaged. This was also not a pre-requisite for the selection as member of Matilda. The argument made by the Federation provided that the full complaint had been conceived in a wrong manner since the requirement and alternative requirements were not required to be followed by Heather or by any player who was on the tour to USA. As per the defendant, they were not required to bring the child of the plaintiff on the tour or to bear the costs of bringing her to the tour. This decision was to be adhered to on the tour for the relatives and for the dependent children as this was a personal issue and was not in any mann er related to the conditions on which the players had been selected for the tour. Another point argued by the Federation was the unfairness of characterising the denial for accommodating the demands of the plaintiff for bearing the costs related to the child on tour, in the matter of the provisions of requirement covered in section 49T(1)(b) of the Anti-Discrimination Act[12]. The Federation also contended that despite the notion of Heather where the defendant was required to pay for the costs of child required as their responsibility, she had failed in showing that an industrial legislation or contract required the Federation to contribute to the costs of child care, which was an addition costs, and which she would be bearing during the said US tour. It was also stated by the defendant that there was a shortage of evidence which could be sufficient to show that the requirement had been placed on the players for fulfilling the impugned requirements. The reason for this was the plaintiff being the only person on this tour who was not affiliated to the Matildas playing contract and was the only person who had the responsibilities as a carer for a small child. The impugned requirements had also been stated in such manner that they were applicable only for the plaintiff[13]. And this was a key issue in the claims made by the plaintiff for the requirement to be fulfilled by the entire group, based on Australian Iron and Steel Pty Limited v Banovic[14]. What did the Tribunal decide? And why? The application made by the plaintiff was rejected by the tribunal in this case due to the impugned requirements not being the requirements as per the sections quoted by the plaintiff. The Tribunal went on to show that in order to form this as a requirement or a condition based on the provisions of the Anti-Discrimination Act, the employer was under a duty regarding the requirement having been applicable on every employee and not just on the plaintiff. This was based on the fact that the provisions of the act in the matter of indirect discrimination, in which the decision making party is under the obligation of deciding upon the major high proportion of a person in absence of a related feature for either complying with or being able to comply with the requirements, as compared to the person having the required characteristics[15]. For the present case it was held by the Tribunal that Heather was the only person who was required to adhere to the requirement or the alternative requirement. The remaining players on this US based tour were not under any carer responsibilities for a child and also, none of the other players had a child with them. So, based on this, the Tribunal was of the view that it could not be shown that the other players, without the carer responsibilities, had the duty for alternative carer arrangement for the period of the tour or for the costs which had to be born for doing the same. The Tribunal expressed their view that the Federation would possibly have to face a lot of criticism in the matter of this issue where the same is considered as a mean spirited thing and also presents the inflexible attitude of the Federation towards its players, based on the view of the plaintiff. However, the statute applicable here did not cover the remedy for all kinds of discrimination[16]. A comparison was drawn by the Tribunal of this case to the case of Hurst and Devlin v Education Queensland[17] which was related to the young student with hearing impairment. In this case, the students were under an obligation regarding accepting of the education and getting the instructions in English without the help of Auslan teacher or any interpreter. In this case, the plaintiff was the only student in the entire class who had these characterises which gave rise to a claim of discrimination due to his hearing impairment. The negative impact of this obligation was based on Hurt and also on all of the other students in that classroom, even when they faced no problem in conforming to these conditions. This case and the case of Heather had difference in the sense that the applicable condition of the Hurst v State of Queensland case had to be obeyed by all the students[18]. In the matter of the emails which had been exchanged between Freeme and the plaintiff, specifically in the matter of the statement made by Freeme for the same not being an obligation of the employer to pay for the costs of the child care, apart from the admission made in oral evidence regarding the simple reliance on the defendants position for a person who wanted to bring their children on the tour, to bear the costs of the children brought with them. This was enough to show that the defendant had not singled out the plaintiff and that the plaintiff had only been subjected to a common rule which was applicable on all the players. For deciding on the matter of the plaintiff being engaged in the playing contract of Matildas, a comparison was drawn to the case of Bonella Ors v Wollongong City Council[19] for identifying the base group. The composition of a group is not covered in the provisions of the Anti-Discrimination act and they have to be changed based on the particular situatio n of the relevant case. Based on the case of Commonwealth Bank v Human Rights and Equal Opportunity Commission[20] it had to be shown that the significance of the pertinent features for complying with the impugned requirements. Having being engaged in the different terms as a contrast to the other players, it could not be shown how the touring team formed an improper based group, on which the requirements could be applied in an equal manner. Thus, the claim of the plaintiff on the basis of Hurst v State of Queensland could not relate to the problem which had been highlighted[21]. In the end, the Tribunal concluded that if it gave the verdict of an unlawful discrimination against the defendant, the defendant would be unnecessarily put in a strained position, even when it adopted the most liberal interpretation of the provisions of the NSW Anti-Discrimination Act. Hence, they rejected the complaint of the plaintiff made against the defendant. Bibliography Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 Bonella Ors v Wollongong City Council [2001] NSWADT 194 Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 Garriock v Football Federation Australia [2016] NSWCATAD 63 Hurst and Devlin v Education Queensland [2005] FCA 405 Hurst v State of Queensland [2006] FCAFC 100 Anti-Discrimination Board of NSW, Matildas childcare case fails (May 2016) https://www.antidiscrimination.justice.nsw.gov.au/Pages/legal-cases/matildas-childcare-case-fails.aspx Maddocks, 2016 In Review (2016) https://www.maddocks.com.au/app/uploads/2014/10/Maddocks-Employment-Safety-People-2016-In-Review.pdf New South Wales Case Law, Garriock v Football Federation Australia [2016] NSWCATAD 63 (2016) https://www.caselaw.nsw.gov.au/decision/5705a150e4b05f2c4f04c9c6 PCC Lawyers, Unlawful discrimination: Garriock v Football Federation Australia [2016] NSWCATAD 63 (2016) https://www.pcclawyers.com.au/news-centre/recent-law-cases/277-garriock-v-football-federation-australia-2016-nswcatad-63 RobertsonHayles, Indirect Discrimination (25 May 2016) https://www.robertsonhayles.com.au/indirect-discrimination/ Young J, Even Matildas Need Childcare: an Analysis of Garriock V Football Federation Australia (8 August 2016) https://www.corrs.com.au/publications/corrs-in-brief/even-matildas-need-childcare-an-analysis-of-garriock-v-football-federation-australia/