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​Matildas childcare case fails​​

Legal Case: Carer's responsibilities discrimination

Published: May 2016

It’s well known that Australia’s women’s football team lag far behind the men in terms of pay and conditions. An attempt to address the issue of childcare for the women’s team has been disallowed by the NSW Civil and Administrative Tribunal.​

Background

Sport is one area where women still lag far behind men in terms of pay, conditions, entitlements and opportunities. 

There are many reasons for this and various arguments and points of view. But with a few notable exceptions, sporting bodies, sponsors and the media still seem to believe that the public would rather watch men because men are better at sport. Therefore men deserve more money, more glory and more of everything else that comes with being a sporting star. 

For professional athletes who are women, life can still be a struggle. Take the Matildas, for example. Our national women’s football team has enjoyed great success in international competition – arguably more than our men. Yet their pay and conditions remain pitifully poor compared with what the men receive.         

They have tried to improve their situation in various ways, including taking legal and industrial action. 

Heather Garriock has played for the Matildas and represented Australia in three World Cups and two Olympics. In 2013 she was selected to play in a two week tour of the US. She was paid an allowance of $150 a day and $500 for each game played. But because she was a late selection, she was unable to arrange care for her 11-month-old daughter. 

Her mother went with her to help look after the child, but this was an expensive solution. Ms Garriock earned a total of $2,440 for the tour but estimated that her daughter’s care costs were double that amount. She asked the Football Federation to cover the costs, including air fares for her mother. The Federation refused. 

Ms Garriock made a complaint of discrimination on the basis of caring responsibilities against the Federation. This was heard in the NSW Civil and Administrative Tribunal.

Anti-Discrimination Act

Under the NSW Anti-Discrimination Act, discrimination against a person because they are responsible for the care of a family member is unlawful in the workplace. The employer must provide any reasonable services or facilities to assist employees to do their jobs, unless it would cause the employer ‘unjustifiable hardship’. 

It might be argued that child care is a reasonable service or facility for an employer such as the Football Federation to provide. But Heather Garriock’s case didn’t get as far as considering that question, because she first had to prove that she had been discriminated against. There are two types of discrimination to be considered: direct and indirect.

Direct discrimination involves treating someone less favourably than others in similar circumstances. Ms Garriock couldn’t claim this type of discrimination, because the Football Federation doesn’t pay anyone’s childcare costs. That meant there was no-one who could be compared with her. 

Indirect discrimination is when an employer imposes a requirement which applies to everyone, but disadvantages one group more than another, unless the requirement is ‘reasonable in the circumstances’. Ms Garriock argued that it was an unreasonable, and therefore unlawful, for the Federation to make her bear the full costs of childcare arrangements while she was on an overseas tour. 

However the Federation argued that it did not impose a requirement on any of its players to bring their children on tour, and therefore didn’t impose a requirement to pay the associated costs.

Results ​​

The Tribunal agreed. To be covered by the Act, the requirement would have had to be one which was imposed on the whole team, which was clearly not the case. The requirement was only imposed on players who had carer’s responsibilities. 

The tribunal said that while the Federation’s attitude might be called ‘mean-spirited’ and ‘inflexible’, the Anti-Discrimination Act does not cover all kinds of discrimination.  

Garriock v Football Federation Australia [2016] NSWCATAD 63 (8 April, 2016) ​

​​​​​​​​​​Back to May 2016 - Equal Times ​Newsletter​​​​

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image of Heather_Garriock playing football for AustraliaHeather Garriock playing for Australia​

Image source: wikipedia