Clelland v Graham Allen [1994] HREOCA 3 (18 February 1994)

Human Rights and Equal opportunity Commission

Sex Discrimination Act 1984

No.H93/014

Between:

MARION CLELLAND

Complainant

and

GRAHAM ALLEN trading as

ALLEN & SONS STEEL &

ALUMINIUM FABRICATIONS

Respondent

Reasons for Decision

of Patricia Wolfe

Inquiry Commissioner

Hearing: Brisbane, Queensland

Date: 16 November 1993

Human Rights & Equal opportunity Commission

Sex Discrimination Act 1984

No.

BETWEEN:

MARION CLELLAND

Complainant

AND:

GRAHAM ALLEN trading as ALLEN & SONS STEEL & ALUMINIUM

FABRICATIONS

Respondent

DETERMINATION AND REASONS FOR DECISION

The Sex Discrimination Commissioner has referred to me for inquiry, by her reference dated 19 April 1993, matters arising out of a complaint by Marion Clelland under ss. 5 and 14 of the Sex Discrimination Act 1984 which complaint was lodged on about l0 May 1991.

The complaint concerns the rate of wages paid to the complainant by the respondent during her employment by the respondent, who was then a steel fabricator carrying on business under various registered business names. The respondent is now bankrupt. The business names have been transferred to other persons.

The relevant provisions of the Act as it then was are as follows:

"5(1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the sex

of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(2) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the sex of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

14(2) It is unlawful for an employer to discriminate against an employee

on the ground of the employee's sex .. :

(a) in the terms or conditions of employment that the employer affords the employee; ...... "

The complainant was employed by the respondent as a "quality controller" from 22 December 1989 to 10 January 1991. She was paid $10.00 per hour as a "casual, full-time" employee. The gravamen of her complaint is that the person who had previously done her job, and the person who replaced her, were each paid $12.00 per hour, because each of them was a person of the male sex. She said that she resigned because she did not obtain equal pay and that the respondent had told her, when she resigned from his employ, that she should have received $12.00 per hour but that male employees received more because they had to supply their own tools. The respondent denied he had ever said that to her or that was a reason why some male employees were paid $12.00 per hour. She claimed she was required to supply her own tools and that money had been deducted from her weekly wage in respect of the purchase of those tools.

The complainant has no formal trade qualifications, and she accepts that she is not a qualified tradesperson. Before she began her employment with the respondent she had worked for a business known as Prowler Proof where she was trained as a quality controller and worked as a quality controller and in powder coating. The complainant admitted her previous job was not a qualified tradesperson's job, and prior to that she had been employed as a general labourer. Both her previous employer and the

respondent found her to be an excellent employee.

The respondent gave evidence of the work done by the person who was employed prior to the complainant, that he was a welder, had done welding as well as quality control work which the respondent said meant that the quality controller checked the product to ensure that it had been made properly.

The complainant had asked him for that person's job in about December 1989. The respondent believed she was an excellent worker and so he had employed her as a "permanent casual" general labourer and quality controller.

The respondent's other employees were either qualified tradespersons, for example, boilermakers or welders, or unqualified labourers sometimes known as trade assistants, or clerical staff.

The complainant's duties involved her in preparing products produced from the respondent's manufacturing section for installation by the fitters, and this included arranging delivery, pick-up from galvanisers or powder coaters. small touch-up repairs, dusting down and cleaning. She checked the work of the welders for faults and determined that the work done had been done to the standard required by the respondent. She also helped out with floor staff in the factory when help was needed.

I accept the respondent's evidence that he supplied tools of various types for use by his employees, that some employees chose to use some of their own tools as these tools were commonly of a higher standard or in better condition than those supplied. The respondent's experience was that smaller tools that he supplied often "disappeared" or were not cared for in the same way as employees looked after their own. Apart from the complainant's evidence there was no other evidence which suggested that male employees were required to provide their own tools, or that they were paid a higher rate if they used their own tools.

The complainant was paid the same rate as the male labourers employed by the respondent. During the period of the complainant's employment with the respondent, there was apparently no category of employment known as quality control officer for which a special award wage had been laid down. The award wage then for a person in her position, that is for an unqualified labourer or trade assistant, was $9.93 per hour. The complainant admitted at the hearing that she was paid at a rate over the award, and that the award was less than $10.00 per hour.

Ms. Clelland said she did not know when she had discovered that the person she had replaced had been paid at a higher rate. She said she had only raised the issue at the firm's break-up party and had later asked for back pay, that is the difference between $10.00 and $12.00 per hour. When Ms. Clelland resigned from the respondent's employ she took up employment with another firm. It seems that she also complained to the Queensland Industrial Relations Commission, and as a result of her complaint, she and the respondent entered into an agreement and signed acceptance of a negotiated settlement.

The respondent said that she had simply told him that she was resigning to go back to powder coating work, that she had resigned and after she left his employ an industrial inspector had come out to the factory and told him that she should have been paid some overtime. He said he had agreed to pay her an amount which he believed was the amount that the industrial inspector had told him that she was entitled to, and that the matter was then settled by agreement with the complainant. There was no evidence as to the date of that agreement reached between the respondent and the complainant, but it seems she was paid about $470.00 by the respondent in settlement of the claim for overtime and public holidays on 28 September 1991.

The complainant's replacement was qualified as a boilermaker. The respondent said that this person was able to do the work the complainant had done but could also be assigned some of the welding jobs. She admitted the person who replaced her was also

a qualified tradesperson.

Ms. Clelland made no complaint that the respondent had denied her access or limited her access to promotion transfer or training, and indeed said that another employee of the respondent who had provided her with some coaching in spot welding.

Clearly the complainant felt aggrieved because she believed she owned more tools than some of the other men. She had claimed to have purchased an orbital sander through the respondent's firm for $179.00, as well as a tape, but agreed that her employer had supplied her with sanding paper, gloves and wire brushes. The complainant tendered an invoice from a supplier of the respondent alleging this was in respect of items purchased by her.

In his initial response to Ms. Clelland's complaint, the respondent denied that Ms. Clelland had been employed as a quality control officer, or that moneys had been deducted for the payment of those moneys. He also stated that no specialised tools were required to be purchased by her for her general labour duties, although she had asked if she could purchase tools for her personal use through the firm so she could obtain a discount. I accept Mr Allen's evidence that he did not doubt that money may have been deducted from her pay but that he had then believed that no money was deducted for the tools which she said she had purchased.

The complainant called two clerical employees of the respondent, a Ms. Hamley who was employed as a secretary by the respondent prior to Ms. Clelland's employment and during part of the period of Ms Clelland's employment. Ms. Hamley said her responsibilities included calculating the wages, and although she was shown a note in her own handwritten "take $40.00 from Marion", she could not remember why, or whether that amount was for the purchase of equipment. Ms. Hamley said that money was taken out of wages for purchases made by employees and for advances to employees and that each employee provided her with the number of hours worked.

Ms. Pettitt replaced Ms. Hamley, but she could not recall a meeting attended by the complainant and respondent when the complainant had asked for back pay. After hearing both parties it seems that Ms. Clelland had believed at one stage that a person who undertook quality control work was specially qualified or entitled to the same pay as qualified tradespersons perhaps because she had understood the respondent to say that she should have received $12.00 an hour but had not because male employees had to supply their own tools. However while believing that she held the same qualifications as the persons who had held the job before and after her, Ms. Clelland had not taken into account that those persons held trade qualifications, and her experience in quality control prior to her employment was not sufficient to entitle her to a qualified tradesperson rate.

The complainant produced a copy of her group certificate for the period 6 July 1990 to 10 January 1991, which shows that the complainant's gross wages as returned were $12,733.02 and that her nett wage for that period amounted to $9,826.62. The bank statements tendered by her show some amounts which were deposited in her account for the period 6 July 1990 to 4 January 1991 inclusive are described as "pay". These sums amount to $9,296.85, or in other words, the "pays" credited to her bank account amount to about $529.00 less than the nett wages shown to have been paid by the group certificate. There are a number of possible explanations for this discrepancy, including: firstly, that tools to that amount were purchased by the complainant through the auspices of the respondent and paid for by deductions from her wages; secondly, that the group certificate issued by the respondent overstated the amount of wages paid; thirdly, that the nett wages shown as paid on the group certificate include the amount paid by the respondent to the complainant in settlement of the claim for overtime and holiday pay.

Whatever the explanation for the discrepancy, neither those documents nor other evidence adduced satisfied me that the complainant was not paid $12.00 per hour on the ground of her sex or that the respondent discriminated against the complainant on the ground of

her sex in the terms or conditions of employment that he afforded her: s. 14(2)(a) of the Sex Discrimination Act 1984.

I am satisfied that the respondent did not require the complainant or the men he employed as general labourers to supply their own tools, and that the respondent's reason for paying her $10.00 per hour related only to her status as a general labourer.

The complainant has not established conduct which is discrimination within the meaning of subsection 5(l) or (2) or that the respondent had treated her, by reason of the differing rates of pay made to her immediate predecessor and successor on the one hand, and to her on the other, less favourably than he had treated them by reason of her sex. The discrepancy in those rates of pay did not come about on the ground of her sex, but because she was not a qualified tradesperson.

The complaint has not been substantiated

Determination

The complaint is dismissed.

DATED at Brisbane this 18th day of February 1994.

.......................................

P.M. Wolfe