Tribunal rules against Talley's Fisheries

September 2005
 
Tribunal rules against Talley’s Fisheries
 
The landmark result of the Talley’s Fisheries sex-discrimination case is a wake-up call for employers, according to Robert Hesketh, Director of the Office of Human Rights Proceedings. Caitlin Lewis’ claim that Talley’s discriminated against women by not giving them a chance to do higher-paid work, has been upheld by the Human Rights Review Tribunal.
 
The Office of Human Rights Proceedings represented the plaintiffs at the Tribunal – a male casual worker and a female casual worker. Hesketh describes Talley’s hiring process in the disputed period as “a drafting gate”. Casual labourers turned up, men were automatically steered into higher-paid fish filleting jobs, women into lower-paid trimming jobs. Andrew Talley believed the judgment was an indication of “lunacy… a PC society gone mad,” and appealed to the High Court against the decision last month. “If she didn’t apply for [the job], how can she be discriminated against?” he asked. Because there was “no evidence that management at Talley’s had a practice ofoffering the choice at any stage,” the Tribunal decision said.
 
Will employers see the Talley’s decision as bad for business? Hesketh says “It’s not an example of ‘PC-gone mad’ at all. All the decision is asking employers to do, is treat your staff fairly and equitably. Make sure you’re not disadvantaging one group over another group. I would struggle with the idea that any employer could argue with that.”
 
The case “establishes quite clearly that [Talley’s] was practising sex-discrimination in the way it allocated its roles. The effect of the decision isn’t that business has to offer women all the jobs that are available in whatever organisation you run. …The law isn’t silly. It does recognise that some jobs are best done by men, and some jobs are best done by women.”
 
Hesketh does not mean men are best under a car and women behind a stove. Human Rights law recognises the need to treat different groups differently in employment in some situations, for example:
  • a Catholic Church has a good reason not to hire a Buddhist to perform a liturgy
  • an advertising agency has a good reason not to hire a woman to model men’s underwear
  • an airline has a good reason not to hire a pilot who has become blind
  • but a fish factory does not have a good reason not to hire a woman as a fish filleter.
 
What does the Talley’s decision mean for workplaces? 
 
Hesketh says the decision “is going to require larger employers with a varying workforce and varying tasks, to audit what they do and make sure that any divisions along sex lines are for sound reasons, not for historical reasons that aren’t relevant.” 
 
One of these irrelevant reasons is the assumption that women cannot work in physically demanding jobs, or will always choose the less arduous job over higher pay. The Talley’s case has shown that this kind of thinking can result in unfair exclusion of women from higher-paid jobs they could be keen to work in. “One of the reasons that Talley’s gave for preferring men in the [higher paid] filleting role was that it involved lifting heavy containers of fish. The lie that you can put to that, was that the woman plaintiff in the Talley’s case was a six-foot, strongly built woman who would have had no difficulty whatsoever, as she put it, ‘huffing’ bins of fish… The idea that women can’t lift bins of fish is ridiculous.”
 
Hesketh believes the gender segregation discovered on the Talley’s factory floor was not for any good reason, other than “this is what we’ve always done.”
 
The Talley sheet
 
  • Sex-discrimination: The Human Rights Review Tribunal ruled that Talley’s Fisheries failed to offer filleting jobs to women because Talley’s management wrongly expected that women would be less suitable in the job.
  • Victimisation: Tribunal ruled that Talley’s had treated the plaintiff’s male partner less favourably in employment once she lodged her complaint with the Human Rights Commission.
  • Pay Equity: Tribunal ruled in favour of Talley’s paying filleters more than trimmers, saying that the work was not proved by the plaintiffs to be ‘substantially similar’.
  • Talley’s is appealing on the grounds that the female plaintiff was not ‘drafting-gated’ into a lower-paid trimming role, because there were no filleting roles up for grabs when she applied for the job. They are also claiming that the delays in the hearing process denied Talley’s the right to a fair trial.