QCAT confirms paid maternity leave not discriminatory

Crown Law recently represented Queensland Health in its defence of a sex discrimination complaint that had significant whole-of-Government implications.

Luke Tung, an employee of Queensland Health, applied for 14 weeks’ paid maternity leave. Mr Tung was to be the primary caregiver of his child when born. His application for paid maternity leave was refused on the basis that there was no entitlement under Queensland Health’s paid parental leave policy (which is based on Directive No. 26/10 Paid Parental Leave) to provide paid maternity leave to male employees; only female employees who are expected to give birth are entitled to receive paid maternity leave. The Ministerial Directive applies to all public service employees.

Paid maternity leave was introduced for Queensland Government employees in 1996. It is given only to female employees in recognition of the fact that female employees who have children will necessarily require an absence from the workplace to prepare for and recover from the birth of their child. It was part of the State’s evidence before the Tribunal that paid maternity leave is also provided to encourage breastfeeding and to encourage women to return to the workplace, to their pre-birth employer. Paid maternity leave provides recognised benefits to both women and employers.

Subsequent to the refusal to grant him 14 weeks’ paid maternity leave, Mr Tung applied for eight weeks’ paid special leave. His application for paid special leave was refused because his circumstances were not considered to be exceptional, a necessary requirement for any additional paid leave. Mr Tung was entitled to one week’s paid spousal leave and also was able to use recreation leave.

The matter was heard by the Queensland Civil and Administrative Tribunal (the Tribunal) over three days, in October 2012 and May 2013. On 13 June 2013, Member Roney QC of the Tribunal dismissed the complaints of discrimination.

The Tribunal found that the decision to refuse paid maternity leave did not amount to direct discrimination because the refusal was not because of his sex. It was an essential part of the direct discrimination case for Mr Tung that the decision to refuse him paid maternity leave was because of or “on the basis of” his sex.

Instead, the Tribunal found that the application for paid maternity leave was refused because he was not eligible – not being an employee who would give birth – under the relevant policy and directive. Significantly, the Tribunal found that there was no evidence that Mr Tung’s leave application would have been treated less favourably than one from a female employee who was not an expectant mother.

The Tribunal also found that the refusal of Mr Tung’s application for eight weeks’ paid special leave did not amount to discrimination because the refusal was not as a result of his sex. The Tribunal accepted that the reason for recommending the refusal was the conclusion that a supporting parent wishing to take time off to care for a newborn was not an exceptional circumstance.

Although the refusal of Mr Tung’s application for paid maternity leave was not because of his sex, it was conceded by Queensland Health that Mr Tung could not comply with the requirements for paid maternity leave, namely that he be a female employee who was pregnant. The fact that there was such a requirement for the payment of maternity leave, which Mr Tung could not – because he was male – comply with, was the basis of a complaint of indirect discrimination.

As it had been conceded that to be eligible for paid maternity leave an employee had to be female, the only matter to be determined by the Tribunal with respect to this part of the complaint was whether the term was reasonable.

The Tribunal found that, having regard to the considerations that justified the establishment of maternity leave for women only, it was reasonable to limit that leave to expectant mothers who are employees. The Tribunal further found it was objectively reasonable to provide paid maternity leave only to mothers and not male parents having regard to the undisputed benefits that would be brought to mothers.

In finding the restriction of maternity leave to female employees to be reasonable, the Tribunal also stated that, “one can act reasonably [in providing a benefit to a group] even though one does not also provide the same benefits to any other person of any other sex or with other qualifications who might be seen as morally or socially equally worthy”. This appears to recognise that the fact there may be limits to the provision of a benefit does not, of itself, make the limited provision of that benefit unreasonable. This is a welcome observation for employers wishing to make special provisions to certain groups.

Although not strictly necessary, as a result of his conclusion with respect to the reasonableness of limiting paid maternity leave to female employees only, Member Roney QC also considered the exemptions under s 104 and s 105 of the Anti-Discrimination Act 1991 (AD Act).

Section 104 of the AD Act permits a person to do an act to benefit the members of a group with an attribute for whose welfare the act was designed if the purpose is not inconsistent with the AD Act. This provision is known as the welfare measure exemption.

Section 105 of the AD Act permits a person to do an act to promote equa opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with the AD Act.

Both these provisions have received little judicial consideration in Queensland. A key question in the case of both exemptions is: What is the purpose of the act being done?

Member Roney QC accepted the evidence on behalf of the State that the introduction and provision of paid maternity leave to female employees was for the welfare of women as a group who have traditionally been otherwise disadvantaged in the workforce as a result of having to take leave to have children. The Tribunal found that both defences would have been established in the circumstances.

Mr Tung had until 17 July 2013 to appeal the Tribunal’s decision. No appeal was lodged.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 4 September 2013