Ansett Transport Industries (Operations) Pty Ltd v Wardley

[1980] HCA 8

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Mason, Murphy, Aickin and Wilson JJ.

ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LTD. v. WARDLEY

(1980) 142 CLR 237

4 March 1980

Constitutional Law (Cth)

Constitutional Law (Cth)—Inconsistency between Commonwealth and State Laws—Agreement certified under Conciliation and Arbitration Act—Deemed to be award of the Commission—Provisions relating to dismissal of employees—State law prohibiting discrimination by employer by dismissal or in other ways on grounds of sex or marital status—The Constitution (63 &64 Vict. c. 12), s. 109—Conciliation and Arbitration Act 1904 (Cth), ss. 28, 88V (1), 88ZB (1)—Equal Opportunity Act 1977 (Vict.), ss. 18, 40.

Decisions

1980, March 4.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Aickin. I agree with his conclusions and the reasons he assigns for them. (at p242)

2. I desire to add on my own behalf a passage from the reasons for judgment which I had already prepared for myself. (at p243)

3. The principles by the application of which a question of inconsistency is to be decided are now well settled. The paramountcy given to federal law over inconsistent State laws is universal and without exception. Federal law, whether made in pursuance of an exclusive or concurrent constitutional power, prevails over any State law which is inconsistent with it no matter what the subject matter of the State law. The federal and State law need not be about the same subject matter. The only question is whether the one, i.e. the State law, is inconsistent with the other, the federal law. (at p243)

4. Of course, the federal law must be a valid law. Thus, in some cases, a threshold question of the constitutional validity of a federal law arises. None does in this case. (at p243)

5. Having determined validity, if it arises, the next step is to determine the scope of the federal law. Sometimes the delineation of the "field" in which it operates may serve to determine its scope. Sometimes the purpose of the federal law, gathered from its terms, will indicate that the parliamentary intention was that the federal law would be the law in relation to the matter with which it deals. (at p243)

6. But, however approached, in general, the meaning and scope of the federal law must first be determined. By meaning and scope, I mean, of course, the meaning and scope of that part of the federal law with which it is claimed that a State law is inconsistent, though of course the meaning and scope of a part must be determined after an overview of the federal law as a whole. These principles may be gathered from the decisions to which my brother Aickin makes reference. (at p243)

7. Having determined the scope of the federal law, the inconsistency, if any, of the State laws ought readily to emerge. Sometimes the scope of the federal law will be such as to leave no room at all for the State law. Other times, marginal questions may arise where the scope of the federal law does leave room for what might be called supplementary State law. And, of course, as I have said, at times textual opposition of the terms of the State law to those of the federal law will provide the answer to the question of inconsistency. (at p243)

8. In the present case, the scope of the federal law - a combination of s.. 88V (1) and 88ZB (1) of the Conciliation and Arbitration Act, 1904 (Cth), as amended and the certified industrial agreement on which it operates - includes the determination of the occasions on which the employment of a pilot member of the Airline Pilots Federation may be terminated by the employer. I agree with my brother in thinking that the scope of the federal law in this case leaves no room for the addition of further restraints upon the employer's ability to terminate the employment. (at p244)

9. I would make the declaration proposed by my brother in his reasons. (at p244)

STEPHEN J. The Airline Pilots Agreement 1978 is a memorandum of the terms agreed on for the settlement of matters in dispute between Ansett Transport Industries (Operations) Pty. Ltd. and the Australian Federation of Air Pilots. Certified by the Flight Crew Officers' Industrial Tribunal under s. 28 of the Conciliation and Arbitration Act 1904 (Cth), the Agreement has the same effect as an award of the Commission for all the purposes of that Act. (at p244)

2. The Equal Opportunity Act 1977 (Vict.) is an instrument of a totally different character. An Act of the Victorian Parliament, its long title describes it as making unlawful certain kinds of discrimination on the ground of sex or marital status and as promoting equality of opportunity between men and women. In its attack upon discrimination it concentrates upon the areas of employment, education and the provision of goods, services and accommodation. In each of these areas it makes unlawful various types of conduct which involve discrimination on the ground of sex or marital status. (at p244)

3. It is said by Ansett that there is inconsistency between certain provisions of these two measures and that, by reason of s. 109 of the Constitution, that inconsistency, which affects the area of the engagement and dismissal by it of its pilots, is to be resolved in favour of the Agreement. The consequence, it says, is that whereas it now unwillingly employs Mrs. Wardley as a trainee pilot, it may lawfully dismiss her upon the openly avowed ground that she is a woman, although to do so contravenes the terms of the State Act. (at p244)

4. The inconsistency is said to arise in this way: the Agreement, by pars. A and B of cl. 6, which is entitled "Contract of Employment", provides as follows:-
"A. The employer may employ its pilots and the pilots shall serve the employer in any part of the world where that employer may from time to time be operating, subject to the provisions of this agreement.
B. The services of a pilot shall be terminable by either the employer or a pilot - 1. During the first six months of service, by seven days notice in writing; 2. After the completion of six months of service, by one month's notice in writing; 3. By the payment to the pilot of seven days' or one month's salary in lieu of notice as aforesaid OR 4. By the forfeiture by the pilot of the last seven days' or one month's salary paid to him, in lieu of notice as aforesaid. Provided that the period of notice set out herein may be reduced or waived by mutual agreement. A pilot whose services are terminated whether by summary dismissal or notice shall be given the reasons for this dismissal in writing, in the notice of dismissal, and shall have recourse to the Grievance Procedures except as provided in s. 6H." The Act, on the other hand, by sub-ss. (1) and (2) of s. 18, which appears in a Division of the Act entitled "Discrimination in Employment", provides as follows:

"(1) It is unlawful for an employer to discriminate against a person on the ground of sex or marital status - (a) in determining who should be offered employment; (b) in the terms on which the employer offers employment; or (c) by refusing or deliberately omitting to offer employment. (2) It is unlawful for an employer to discriminate against an employe on the ground of sex or marital status - (a) by denying the employe access, or limiting access by the employe, to opportunities for promotion, transfer or training or to any other benefits connected with employment; or

(b) by dismissing the employe or subjecting the employe to any other detriment." (at p245)

5. Ansett contends that the Agreement, by cl. 6B, gives it an unqualified right to dismiss its pilots on any ground, either on written notice of appropriate duration or on payment in lieu of notice; on the other hand, the Act, by s. 18 (2) (b), makes it unlawful for it to dismiss a pilot on the ground that she is a woman, the very ground upon which Ansett wishes to dismiss Mrs. Wardley. Therein, it is said, lies the immediate point of inconsistency; direct collision occurs because what is permitted by the Commonwealth law is forbidden by the State law. (at p245)

6. The agreement being the present manifestation of Commonwealth law, such direct collision will occur only if, on its proper construction, s. 6 of the Agreement does in fact confer upon Ansett a power of dismissal which is absolute in the sense that the only qualifications upon its exercise are to be found in s. 6 itself, no provision of the general law being capable of qualifying it. The question is whether this is the effect of s. 6. (at p245)

7. Mrs. Wardley has only recently come to be employed with Ansett, and this in unusual circumstances which are recounted in other judgments. She is still well within the first six months of her service with the company. Accordingly, at present Ansett may terminate her employment under cl. 6B of the Agreement by seven days' notice in writing or by payment to her of seven days' salary in lieu of notice. After service with Ansett for at least six months, a month's notice, or pay in lieu, will be required. Because of the concluding provisions of par. B of cl. 6, she must in any event "be given the reasons for this dismissal in writing, in the notice of dismissal". Those concluding provisions also refer to a dismissed pilot's right to have recourse to certain grievance procedures, but subject to the exception contained in s. 6H. That exception confines any resort to grievance procedures to pilots having more than one year's service, so those procedures will have no present application to Mrs. Wardley. (at p246)

8. Although it is the interaction of the above provisions of these two measures, the Agreement and the Act, as they now apply to Mrs. Wardley which is presently relied upon as giving rise to inconsistency, that inconsistency will, it is said, persist should Mrs. Wardley complete her first twelve months of service. Any dismissal of her would then entitle her to have recourse to the Agreement's grievance procedures, a description of which appears in other judgments. Those procedures allow a pilot to obtain a review of his dismissal and provide for an ultimate appeal to a special tribunal. If resort to these procedures proves unavailing the dismissal takes effect: yet, were it to involve discrimination on the ground of sex or marital status, it would contravene s. 18 (2) (b) of the Act and there would, it is said, once again be manifest inconsistency between Agreement and Act. (at p246)

9. In my view there is in this case no inconsistency within the meaning of s. 109 of the Constitution. I regard the right of termination of the contract of employment which cl. 6 of the Agreement confers as no absolute right, such as that for which Ansett contends. The right which it confers is not one which is capable of exercise regardless of the unlawfulness under State law of the ground for its exercise. On the contrary it is a right the nature of which is to be understood against the background to its operation which general laws of the land, whether State or federal in origin, provide. (at p246)

10. The Agreement is not, I think, to be read as if creating a partial vacuum, within which the relationship between Ansett and its pilots lies wholly withdrawn from the operation of those general laws of the land which are applicable to other members of the community. To take an example which s. 6 itself affords, when par. A of that clause requires pilots "to serve the employer in any part of the world" it is not for a moment to be understood as seeking to ignore, even were it able to do so, such restrictions upon travel by Australians, say to countries with which Australia is at war, as the Commonwealth Government may at any time impose. Resort to context would, simply as a matter of construction, readily resolve such a suggested conflict. It happens that in this example it would be with Commonwealth not State law that, until properly construed, the Agreement might seem to conflict, and an award cannot, in any event prevail over Commonwealth law: Federated Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association (1922) 30 CLR 144 . However, at the level of construction, as distinct from power, the illustration is apt. The present industrial agreement, made in settlement of an industrial dispute, is concerned with industrial matters and its terms should be construed accordingly; they should not be regarded as trespassing upon alien areas remote from its purpose and subject matter, whether those areas concern the nation's foreign affairs or social evils such as discrimination upon the ground of sex. (at p247)

11. When the power of termination which cl. 6B confers upon the parties to the contract of employment comes to be construed it can be seen to contain nothing in its quite unexceptional wording to suggest that it should stand inviolate, unresponsive to a general law applicable to the community at large and directed to the prevention of some evil practice which, of its nature, may manifest itself in a variety of ways, including the exercise by an employer of his power of dismissal. The concern of the Agreement is, after all, entirely unremarkable, being exclusively devoted to the settlement of an industrial dispute. This is an inherently improbable source in which to discover, in the form of a simple power to bring their contract to an end conferred upon both parties to a contract of employment, a right on the employer's part to practise discrimination upon the grounds of sex, contrary to, and immune from the prohibition of, State law. (at p247)

12. The view that the Agreement is not to be read in isolation from, but, rather, against the background of, the general law of the land finds support in certain features of the Agreement. Thus, in cl. 22 the Agreement makes a brief yet quite specific reference to the existence of pilots' entitlements to long service leave and these are entitlements conferred by State law; the Agreement clearly enough assumes that that law will apply to pilots. Again, the provisions of the Agreement regarding grievance procedures are elaborate, yet they provide no particular criteria or considerations which are to be applied in the determination of any review or appeal from a dismissal. It will no doubt be by reference to any relevant provisions of the general law, together with general notions of fairness and fair dealing, that such proceedings are determined. Included in that general law will be any applicable statute law, whether State or Commonwealth. (at p248)

13. Clause 6B of the Agreement requires that any pilot who is dismissed be supplied with written reasons for his dismissal. Implicit in this must be the requirement that those reasons shall be truly stated. Where a pilot has already served his twelve month period of initial service, those written reasons, although accorded no formal role in the grievance procedures, will, by identifying Ansett's version of the issue between the parties, play an important part in any recourse he may have to such procedures. If they disclose a reason for dismissal which is illegal according to the general law, this will no doubt loom large in shaping the outcome of grievance procedures. A pilot still serving his first twelve months of service, as is Mrs. Wardley, has no recourse to grievance procedures but is entitled to written reasons for dismissal. To him their function can only be the better to ensure that he is not dismissed for an improper reason. If a reason given for his dismissal is in fact an unlawful one, it may put Ansett at risk of incurring whatever penalties may be provided for breach of the particular law in question. It follows that the reference in cl. 6B to the supply of reasons for dismissal suggests, regardless of the length of service of a particular pilot, that the Agreement contemplates the applicability of such general laws as impinge upon dismissal from employment. (at p248)

14. The question as a whole resolves itself, in the end, into a search for legislative intent. While the Agreement and the Act each deals with aspects of the engagement and dismissal of employees, they are essentially dissimilar both in character and in general content. The Act gives legislative effect throughout the Victorian community to a broad social policy concerned with the status of women in that community. It forbids certain acts of discrimination against them on the grounds of sex or marital status and promotes equality of opportunity between the sexes. It applies to widespread areas of human activity: to education, the provision of accommodation and the supply of a great variety of services, as well as to employment. Within these areas it confines itself to the matter of discrimination on the grounds of sex or marital status; whatever other effect it may have within those areas is only incidental to its operation in proscribing sexual discrimination and in promoting equality of opportunity. (at p249)

15. On the other hand, the Agreement's concern, appropriately enough in the case of an agreement made in settlement of an industrial dispute, is narrowly confined to employment relationships as between Ansett and its pilots and to an intricate system for the allocation of particular duties as between pilots. In it is to be found no hint of concern with any such general social questions as equality of opportunity between men and women or discrimination on the grounds of sex or marital status. It is not that the terms of the Agreement appear to be in any way opposed to the concept of the equal status and treatment of women. Rather, the whole question is simply one which is not adverted to, and this because a reading of the Agreement makes it tolerably clear that it was drawn upon the unstated assumption that the situation for which it was legislating was one in which no pilots were women. I say this not because the Agreement refers to pilots as "he", "him" and "his": this may well be equivocal because of the well recognized convention of convenience whereby in such cases the masculine is understood to include the feminine; but because, on those rare occasions when context requires the Agreement to be unequivocal by calling for a description of a pilot's family, it speaks of a pilot and "his wife" and dependent children. As Dixon J. said in Automobile Fire and General Insurance Co. of Australia Ltd. v. Davey (1936) 54 CLR 534, at p 541 "wife", like "husband", is a word imparting a particular status and not a word merely descriptive of a category which, apart from the gender of the word, would include both sexes. Hence the significance of the reference to a pilot's spouse as "his wife". (at p249)

16. That these two measures are so disparate is not to say that there may not arise from the interaction of their provisions some inconsistency such as that with which s. 109 of the Constitution deals. As their Lordships said in Charles Marshall Pty. Ltd. v. Collins (1957) 96 CLR 1, at p 8; (1957) AC 274, at p 287 , "It is of course possible for Acts dealing primarily with different subject matters to have inconsistent provisions on particular matters". However their Lordships immediately went on to say of such cases that "Apparent inconsistencies may however disappear, as here, when the words are construed in the limited context of the respective Acts". To construe two measures of different legislatures, each of which represents an explicit attempt to establish a competing legislative regimen in a particular area of human affairs, is not likely to resolve apparent inconsistency. On the contrary, any process of construction of their provisions which takes account of context is then likely only to emphasize their inconsistency by better revealing the respective legislative intents. Thus revealed they will be seen as involving rival regimens whose occurrence is the very problem, typically federal in character, which s. 109 is designed to resolve. (at p250)

17. When, on the other hand, two measures are concerned with different subjects their collision "is less likely to occur than it is where the two laws are dealing with the same subject matter": Clarke v. Kerr (1955) 94 CLR 489, at p 505 . When they are essentially disparate in character, as are the Agreement and the Act, their interaction at some point may well be shown, once they are construed and account is taken of the "limited context of the respective Acts", to involve no element of inconsistency. Not only will no conscious competition between legislatures be revealed: the context may on the contrary suggest an intent that each measure should keep within its own confines. Their interaction will then involve no more than an intermeshing of laws, each legislature having confined itself to those aspects of a particular situation appropriate to its own particular role in the federal compact. (at p250)

18. Such is the present case. The Victorian legislature has concerned itself quite generally with the social problem of discrimination based upon sex or marital status and occurring in a variety of areas of human activity. It has declared various manifestations of such discrimination to be unlawful. This is a subject matter upon which the Commonwealth's Conciliation and Arbitration Act is understandably silent, silent because of its general irrelevance to the subject matter of that Act. That silence will necessarily extend to the factum through which it operates, the present Agreement. The disputes with which the Conciliation and Arbitration Act are concerned are disputes as to industrial matters, pertaining to the relationship of employer and employee; they have nothing inherently to do with questions of discrimination on the grounds of sex. No doubt it may happen that in a particular dispute, apparently of an industrial character, some question of discrimination of this sort may appear to be involved. The precise nature of its involvement may then determine whether or not the dispute is indeed an industrial dispute. However in the present case the Agreement gives not the slightest indication of any such involvement and has all the hallmarks of being made in settlement of an entirely orthodox industrial dispute. In the context of this Agreement it may be said of the topic of discrimination that, in the words of this Court in Collins v. Charles Marshall Pty. Ltd. (1955) 92 CLR 529, at p 533 , it "simply is not a subject within the purview of the award". (at p251)

19. In Clarke v. Kerr, Dixon C.J. (1955) 94 CLR, at p 496 observed that the hours of the opening and closing of shops were outside the province of federal industrial awards, hours of trading and hours of labour being distinct subject matters of regulation. Likewise discrimination against women, whether in employment or in other spheres, is an equally distinct subject matter of regulation. As such it is not touched by the Agreement. Instead it forms part of the general background of laws against which the Agreement operates and s. 6B says nothing as to it. (at p251)

20. There are, in the joint judgment of other members of the Court in Clarke v. Kerr, passages which, partly by the use of citations from earlier judgments, present in succinct form considerations very apt to the present case. At p. 504 of the joint judgment, in considering whether s. 105A of the State Factories and Shops Act involved inconsistency with the federal Metal Trades Award, their Honours said:

"The truth is that the defendant can only hope to call in aid s. 109 of the Constitution if it is possible to hold that the first sub-section of s. 105A is inconsistent with the Metal Trades Award because 'its effect, if enforced, would be to destroy or vary the adjustment of industrial relations established by the award with respect to the matters formerly in dispute':" (per Isaacs J. in Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466, at p 499 ). "'When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid': (per Dixon J. in Victoria v. The Commonwealth (1937) 58 CLR 618, at p 630 ). But sub-s. (1) of s. 105A does none of these things."

Their Honours went on to say (1955) 94 CLR, at p 505 , in a passage from which I have already quoted in part:

"There can be a collision under s. 109 of the Constitution between a Commonwealth law on one subject and a State law on another but such a collision is less likely to occur than it is where the two laws are dealing with the same subject matter."

Later their Honours concluded (1955) 94 CLR, at p 505 : "The award is only concerned with the question of the terms and conditions upon which the employer can work his employee when it is lawful for him to do so. Accordingly the provisions of sub-s. (1) of s. 105A of the Factories and Shops Act do not alter, impair or detract from the operation of the award." (at p252)

21. Applying these passages to the present case, I cannot regard the effect of the State Act as in any way destroying or varying "the adjustment of industrial relations established" by the Agreement. Moreover the respective natures of those two measures are such that collision is not likely to occur between them, and this because they are laws on different subjects. The Agreement is "only concerned with the question of the terms and conditions upon which the employer can work his employee" and the Act does not "alter, impair or detract from" its operation in this respect. In Charles Marshall Pty. Ltd. v. Collins (1957) 96 CLR at p 7; (1957) AC, at p 286 their Lordships spoke of long service leave as "an entirely distinct subject matter" from those matters regulated by the relevant award; it differed in kind from the holidays which the award prescribed and was "a separate item in industrial relations". Discrimination is not simply an item separate from other subject matters within the area of industrial relations, it itself forms no part of that area. Where the ground for dismissal with which a State law deals is unrelated to industrial considerations and instead relates to discrimination, whether upon the grounds of sex, race or religion, the existence of a federal award or industrial agreement will present no situation of inconsistency. (at p252)

22. This matter of inconsistency may also be approached from a slightly different point of view. For Ansett to wish to dismiss Mrs. Wardley simply because she is a woman, which is its desire, without any reference to her competence or efficiency in the workplace, seems no less remote from the industrial subject matter with which cl. 6B deals than would be her dismissal because of her race or the colour of her skin. Yet her dismissal upon grounds such as those would surely fall foul of the Commonwealth's Racial Discrimination Act 1975 and to see inconsistency between the Agreement and the Equal Opportunity Act would also require recognition of conflict between the Agreement and the Racial Discrimination Act, s. 15 (1) (c) of which is comparable to s. 18 (2) (b) of the Victorian Act. For my part, I see no such conflict between that Commonwealth Act and the present Agreement, a conflict in which the former would necessarily prevail; examination of the Agreement as a whole leads me to the conclusion that it is not to be interpreted as conferring powers of dismissal which would conflict with the Commonwealth Act. In just the same way, I would not interpret it as conflicting with s. 18 (2) (b) of the Equal Opportunity Act. (at p253)

23. Concluding, as I have, that there is here no question of direct collision between Agreement and Act, there is, a fortiori, no such inconsistency arising under the doctrine of "covering the field", and this very much for the reasons which I have stated in dealing with direct collision. Whatever field the Agreement may cover, the question of dismissal upon the discriminatory ground that the pilot is a woman is in my view no part of it. (at p253)

24. I have sought in the foregoing to give effect to what I regard as important factors in this case: the contrast between the Agreement, in itself an unremarkable instrument serving the useful but quite limited purpose of settling a particular dispute between one employer and a class of its employees, and the Act, a measure of general application giving effect to far-reaching social reforms: the comparable contrast which may be drawn between cl. 6B of the Agreement, which deals in the most general and unemphatic way with rights of termination of the contract of service, and the clear and specific terms of s. 18 (2) (b) of the Act: the preoccupation of the Agreement with no more than the narrow area of industrial relations and the absence of any attempted usurpation of that area by the Act: the way in which the Agreement operates against the background of the general law while the Act provides a part of that same background. It is, in essence, these factors which, in construing these two measures, have led me to conclude that no inconsistency exists between Agreement and Act. What seems to me to be wholly absent is any inconsistency, whether by direct collision of laws or by some federal covering of a particular field, which calls for the exercise of the puissant power of s. 109 of the Constitution so as to render invalid any part of this enactment of the legislature of a State. (at p253)

25. It is the pursuit of that search which has led me to conclude that the context and subject matter of the Conciliation and Arbitration Act, and of its factum, the present Agreement, suffice to deny the existence of any inconsistency in the sense of direct collision between cl. 6 of the Agreement and s. 18 (2) (b) of the Act. (at p253)

26. In argument it was submitted that upon a quite different approach to that which I have adopted one should equally conclude that there exists no inconsistency. That approach involves treating cl. 6 as concerned only with matters of length of notice, the amount of pay to be given or forfeited in lieu of notice and the right of recourse to grievance procedures, and not at all with the right of dismissal itself. That right would, on this view, be derived exclusively from the general law of contract and no question of direct collision between Agreement and Act would then arise, since the Agreement would then be understood as not dealing at all with the actual right of dismissal but only with questions of length of notice and the like. (at p254)

27. However I have difficulty with the concept which this view entails. There are two matters involved in it which I regard as unacceptable. First, it requires the breaking up of the concept of termination of a contract into distinct elements, being the bare right of termination and the period of notice. Each element is to be regarded as so distinct from the other that each may have different origins and come together only when united in the contract itself. This assumes that a bare right of termination can exist, devoid of all provision as to its exercise. It is not that it exists as a right of termination exercisable at will without notice; were that so it would, when introduced into the contract of employment, be irreconcilable with the notice provisions of s. 6B. Its nature must instead be that of a bare right, incapable of exercise until provisions as to its exercise are supplied from another source. I know of no such concept in the general law of contract, from whence it is said to arise. (at p254)

28. The corollary to my first objection is that even if the right of termination is to be derived from the general law, that source will not provide any such bare right as I have described, nor, for that matter, a right exercisable without notice. What the general law of contract would supply, in the absence of specific agreement, would be a right to terminate upon reasonable notice. As Bayley J. observed in Winstone v. Linn (1823) 1 B &C 460, at pp 468-469 (107 ER 171, at p 174) , when discussing a contract of apprenticeship:

"Where the ordinary relation of master and servant subsists, . . . the contract is to endure for a reasonable time if no specific time be fixed, and is determinable by a reasonable notice."

Again in In re African Association Ltd. and Allen (1910) 1 KB 396, at p 400 Bray J. said:

"It must, I think, be taken to be the law that an agreement of employment of this nature confers no right on the employer, in the absence of misconduct, to terminate the engagement without reasonable notice, unless the agreement contains clear words indicating a contrary intention."

But such a right, to terminate upon reasonable notice, would itself conflict with the terms of cl. 6B as to notice, as would a right to terminate without any notice at all. (at p255)

29. In any contract the source of each of its terms, whether explicitly the subject of negotiation and agreement, or referentially imported into it from some other document, or implied by law, must depend upon the particular circumstances of its making. Of the making of Mrs. Wardley's contract of employment we know nothing. However it may not be improper to assume that when the conditions of any employment are governed by an award or industrial agreement, the contract of employment will, either expressly or by implication, referentially incorporate the applicable terms of that award or agreement. I treat cl. 6B as providing the parties to the contract with their respective powers of termination as well as prescribing the procedure for termination. To incorporate cl. 6B of the Agreement referentially into the contract of employment would, in my view, import into it a right of termination on notice, complete in itself. There appear to me to be no grounds upon which to found the view that something less than the referential incorporation in the contract of employment of the whole of the terms of cl. 6B has occurred in the present case. What was said by Latham C.J. in Amalgamated Colleries of W.A. Ltd. v. True (1938) 59 CLR 417, at p 423 does not, I think, tell against this view. (at p255)

30. So far, I have said little about the case of pilots who, having longer service with Ansett than has Mrs. Wardley at present, are entitled to have resort to the Agreement's grievance procedures. Peculiar difficulties, which do not present themselves in the present case, may conceivably arise in such cases. It is not the mere fact that an appeal lies to a Grievance Board that may give rise to them. On the view which I have taken of the interaction of the Agreement and the Act such an appeal should, in theory, occasion no question of inconsistency; the Board, like Ansett itself, would be obliged to pay regard to the general law and if it appeared to it that a dismissal breached the law it would have to frame its decision accordingly. However there does appear to be scope for conflict between a decision of the Grievance Board, unfavourable to a pilot and based upon its view of the evidence before it, and a subsequent decision of the Equal Opportunity Board to the opposite effect, based upon what may perhaps be to some extent different evidence and, perhaps, a different view of that evidence. Whether or not this would be a situation to which s. 109 of the Constitution might apply need not now be determined; not only is the situation wholly conjectural but it has not been the subject of any detailed argument before us. It may, indeed, raise other constitutional issues quite apart from s. 109. (at p256)

31. Ansett has sought by way of relief three distinct declarations, none of which I would make. The making of the first and second declarations, concerned with the application of the Act to Ansett in determining whether it should offer Mrs. Wardley employment and if so upon what terms, can no longer be in question since she has in fact been employed by Ansett and is currently in its employ. Ansett seeks a third declaration, that no provision of Pt III of the Act applies to Ansett in the exercise by it of "such rights to dismiss pilots as are conferred on it" by the Agreement. For the reasons already given I would refuse any such declaration. I would accordingly dismiss the originating summons. (at p256)

MASON J. The plaintiff, Ansett Transport Industries (Operations) Pty. Ltd. ("Ansett") seeks declarations that Pt III of the Equal Opportunity Act 1977 (Vict.) ("the State Act") does not apply to it (1) in determining whether it should offer the defendant, Mrs. Wardley, employment as a trainee pilot; (2) in determining the terms of such employment; and (3) in the exercise of its right to dismiss pilots pursuant to the Airline Pilots Agreement 1978 ("the Agreement"). The declarations are sought on the basis that the State Act is inconsistent with the Agreement and that the State Act is to the extent of the inconsistency inoperative. (at p256)

2. The defendant initially sought, and was refused, employment with Ansett as a trainee pilot. After orders were made against Ansett by the Equal Opportunity Board ("the Board") under the State Act, Ansett indicated that it would include the defendant in its next intake of trainee pilots. The consequence is that argument centred on the third of the three declarations sought and, for this reason, I shall direct my remarks principally to the issues which it raises. It seems that on 5th November 1979, after argument in this Court concluded, the defendant was enrolled as a trainee pilot with Ansett. (at p256)

3. Ansett, which is a company incorporated in Victoria, carries on business amongst other things as an airline operator in all States of Australia, including Victoria, under the name of Ansett Airlines of Australia. From time to time Ansett recruits pilots in Victoria for the purposes of its airline services. (at p256)

4. The terms and conditions of service of pilots so engaged are laid down in the Agreement the parties to which are Ansett and the Australian Federation of Air Pilots ("the Federation"), an organization registered under Pt VIII of the Conciliation and Arbitration Act 1904, as amended, ("the Act") and a declared body pursuant to s. 88Z of the Act. (at p257)

5. The Agreement was made in settlement of a dispute created by the service on Ansett of a log of claims dated 24th July 1978 by the Federation. The Agreement was certified by the Flight Crew Officers Industrial Tribunal on 21st March 1979 pursuant to s. 28 of the Act. Under s. 28 (3) of the Act a memorandum or agreement so certified "has the same effect as, and shall be deemed to be, an award of the Commission for all purposes of this Act". Unfortunately the log of claims is not in evidence before this Court. However, I am prepared to assume that the certified Agreement may be treated in all its provisions as falling within the ambit of an industrial dispute which extended beyond the limits of one State: Reg. v. Kirby; Ex parte Transport Workers' Union of Australia (1954) 91 CLR 159 ; Reg. v. Railways Appeals Board and Commissioner for Railways (N.S.W.); Ex parte Davies (1957) 96 CLR 429, at p 437 . (at p257)

6. In 1976 the defendant lodged her application with Ansett for employment as a pilot. Following interviews and tests, her application was rejected in July 1978. On 2nd August 1978 the defendant lodged a written complaint with the Board alleging that Ansett had discriminated against her on the ground of her sex in refusing her employment. (at p257)

7. The State Act makes it unlawful for an employer to discriminate against a person on the ground of sex or marital status in determining who should be offered employment; in the terms on which the employment is offered; in refusing to offer employment (s. 18 (1)); in denying an employee opportunities of promotion and other benefits; and in dismissing an employee (s. 18 (2)), amongst other acts. (at p257)

8. Discrimination is defined in s. 16. The Board is constituted under Div. 2 of the Act and assigned duties under Div. 3. Pursuant to Pt VI, Div. 1, the Board may take steps to hear and determine complaints of discrimination and to make orders. (at p257)

9. On 19th June 1979 the Board ordered pursuant to s. 40 (2) of the Act:
1. That Ansett refrain from committing any further act of discrimination against the defendant.
2. That Ansett engage the defendant as a trainee pilot not later than its next intake of pilots.
3. That within fourteen days of the date of the order Ansett pay to the defendant by way of damages $14,500.
4. That from the date of the order until the defendant first receives a salary from Ansett following her engagement as a trainee pilot or until her rejection of an offer of such engagement Ansett pay to the defendant within fourteen days of the liability to do so arising, the sum of $40 per day. (at p258)

10. Ansett's case of inconsistency rests on the proposition that the provisions of cl. 6 of the Agreement (referred to in the Agreement as s. 6) confer upon it an unfettered right to dismiss pilots, the provisions of the State Act, particularly s. 18 (2), being inconsistent with this right. The defendant makes two rejoinders: (1) that cl. 6 does not confer an unfettered right to dismiss; rather it merely prescribes the period of notice for the exercise of a right which arises under the general law; and (2) that, even if Ansett's interpretation of cl. 6 be accepted, the conferring of an unfettered right to dismiss is something which lies outside the concept of "industrial matter" as defined by s. 88H of the Act, with the consequence that the clause cannot result in the inconsistency claimed by Ansett. (at p258)

11. It is convenient in the first instance to examine the second point made by the defendant. The jurisdiction of the Tribunal is limited to interstate disputes as to "industrial matters" as defined by s. 88H. The section defines "industrial matters", subject to any contrary intention, as meaning "all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by employers". (at p258)

12. It may be that this definition is narrower than that contained in s. 4 which refers to the jurisdiction of the Commonwealth Conciliation and Arbitration Commission. As Barwick C.J. noted in Reg. v. Stanton; Ex parte Associated Airlines Pty. Ltd. (1978) 141 CLR 281 , the two definitions are differently structured, s. 88H lacking both the opening words of the s. 4 definition and a counterpart to par. (k) of that definition. Nevertheless, it seems to me that a dispute between an airline and its pilots arising from the non-acceptance of a claim by the pilots that the right of the airline to terminate the services of its pilots should be regulated by the provisions of an award is a dispute as to a matter "pertaining to . . . other terms or conditions of service or employment" within the meaning of the s. 88H definition. There is no reason why these general words which are, according to their natural meaning, apt to apply to general terms and conditions regulating the employment relationship should be restricted. (at p258)

13. The comments of Barwick C.J. in Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots (1971) 127 CLR 11, at p 20 do not support any such restriction. The Chief Justice there said:

". . . whilst it may be no objection to an award or order settling an industrial dispute or question that the award or order may impinge upon management or the exercise of managerial discretion, management or managerial policy as such is not in my opinion a proper subject matter for an award or order. The Tribunal in this case, in my opinion, had no jurisdiction to enquire into or make any decision about the business considerations upon or for which Qantas decided to give the notices of termination to the airline pilots."

The Chief Justice was answering the submission that the Tribunal had jurisdiction to determine whether the giving of notice of termination of employment for redundancy was in accordance with the terms of an award on the ground that this question related to a matter within the s. 88H definition. He was not then dealing with the question whether an award could be made defining and limiting the right of an airline to terminate the services or employment of its pilots. Later, the Chief Justice conceded that the Tribunal had jurisdiction to entertain an independent application to vary the award by dealing with such a topic (1971) 127 CLR, at p 21 . (at p259)

14. It is one thing to say that the exercise of an admitted right of dismissal for reasons of redundancy, involving as it does questions of management and managerial policy, cannot constitute an industrial matter, but it is another and unacceptable thing to say that a dispute as to the definition and limitation of the employer's right to dismiss his employees is not an industrial matter. In my view a dispute of the latter kind falls within the s. 88H definition and, accordingly, it can ground an award by the Tribunal defining and limiting the employer's right of dismissal. (at p259)

15. As a preliminary to an examination of the Agreement I should point out that the major thrust of Ansett's case is to establish the existence of what has been called "direct inconsistency", that is, the disconformity which is created by the presence of an absolute right to dismiss for any reason whatsoever, which Ansett finds in the Agreement, and the presence in the State Act of a prohibition against dismissal for the prescribed reasons. "Direct inconsistency" is a description which has always been applied to cases in which it is impossible to obey both laws (R. v. Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 ; Blackley v. Devondale Cream (Vic.) Pty. Ltd. (1968) 117 CLR 253, at p 258 ). It is also a description which has been applied to cases in which the Commonwealth law grants a permission or a right and the State law prohibits that which is permitted or prohibits the exercise of the right (Colvin v. Bradley Brothers Pty. Ltd. (1943) 68 CLR 151 ). Cases of this kind have sometimes been treated as a separate head of inconsistency (O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565, at p 592 ), though even when so treated they have generally been related to the "cover the field" test (O'Sullivan v. Noarlunga Meat Ltd. (1956) 95 CLR 177, at pp 182, 185 ; Swift Australian Co. (Pty.) Ltd. v. Boyd Parkinson (1962) 108 CLR 189, at p 207 ), apparently on the ground that direct inconsistency is confined to a situation in which simultaneous obedience to both laws is impossible. (at p260)

16. As the various tests which have been applied by the Court are all designed to elucidate the issue of inconsistency it is not surprising that they are interrelated and that in a given case more than one test is capable of being applied so as to establish inconsistency. Especially is this so when it is the giving of a permission or the grant of a right by Commonwealth law that is the foundation of a claim of inconsistency. If, according to the true construction of the Commonwealth law, the right is absolute, then it inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales (1965) 113 CLR 54 , where the permission for which Commonwealth law provided was neither absolute nor comprehensive. (at p260)

17. Inconsistency between a Commonwealth award or an agreement having the force of an award and a State law involves special considerations. They were discussed in Robinson (T.A.) and Sons Pty. Ltd. v. Haylor (1957) 97 CLR 177, at pp 182-183 , and they explain the presence of s. 65 in the Act. In truth the case which Ansett makes is one of inconsistency between the Act and the State Act, s. 109 giving paramountcy to the Act with the result that the State Act cannot operate if, pursuant to the Act, the Commission has exercised its power to the exclusion of the provisions made by State law on the topic. The issue therefore turns upon the interpretation of the Agreement and, despite the emphasis given to the claim of direct inconsistency, the question is whether the provisions of the Agreement were intended to operate, subject to, or in disregard of, the general law. (at p261)

18. The Agreement consists of various clauses which are described as sections. I shall refer to them as clauses. Clause 6 - "CONTRACT OF EMPLOYMENT" is the vital clause. It is, so far as it is relevant, in these terms:
"A. The employer may employ its pilots and the pilots shall serve the employer in any part of the world where that employer may from time to time be operating, subject to the provisions of this agreement.
B. The services of a pilot shall be terminable by either the employer or a pilot - 1. During the first six months of service, by seven days' notice in writing; 2. After the completion of six months of service, by one month's notice in writing; 3. By the payment to the pilot of seven days' or one month's salary in lieu of notice as aforesaid OR 4. By the forfeiture by the pilot of the last seven days' or one month's salary paid to him, in lieu of notice as aforesaid. Provided that the period of notice set out herein may be reduced or waived by mutual agreement. A pilot whose services are terminated whether by summary dismissal or notice shall be given the reasons for this dismissal in writing, in the notice of dismissal, and shall have recourse to the Grievance Procedures except as provided in s. 6H." Clause 6H is in the following terms:
"During the period of Initial Service which shall be 12 months in respect of all matters associated with his employment, a pilot's services may be terminated in accordance with this agreement without recourse to Grievance Procedures." (at p261)

19. The Grievance Procedures, which are set out in cl. 50 of the Agreement, provide for appeals by employees in disputes on matters which include the termination of a pilot's services. A decision of a Grievance Board is made binding on the Federation, Ansett and its pilots. (at p261)

20. The Agreement as a whole deals in some detail with matters pertaining to the employment relationship between Ansett and those pilots who are members of the Federation and are from time to time employed by Ansett. Many of the matters dealt with in the Agreement relate peculiarly to the position of pilots, for example, licences, "blocks", accommodation, reserve duty, scheduling. (at p262)

21. From my examination of the Agreement as a whole, I conclude that it should not be viewed as a general industry award which seeks to determine exhaustively the respective rights of employer and employee. Although the Agreement does deal with many of the matters usually found in an award, such as pay, hours of work and leave, its emphasis is on setting out in exact detail the manner and procedure governing the advancement of a pilot in terms of seniority and rights dependent thereon. Clause 6B does not deal with the substantive right of dismissal. Instead, its opening words assume the right of the employer under the general law to terminate the employment of a pilot and the import of the clause as laid down in pars. 1, 2, 3 and 4 is to prescribe the procedure and regulate the means whereby the right to terminate may be effected. (at p262)

22. The provisions of cl. 6B accord with the notion of seniority which pervades the entire Agreement. Thus an employee of six months' standing or less will be given one week's notice, an employee of more than six months' standing will be given one month's notice and, pursuant to cl. 6H, an employee of over twelve months' standing may have recourse to the Grievance Procedures. (at p262)

23. The essentially procedural nature of cl. 6B is emphasized when it is compared with the relevant provisions of the Broadcasting and Television Act 1942 (Cth) which were held to be inconsistent with s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.) in Australian Broadcasting Commission v. Industrial Court of South Australia (1977) 138 CLR 399 . Section 43 (2) of the Broadcasting and Television Act provided that the Australian Broadcasting Commission should appoint such officers, other than the general manager, and engage such temporary employees "as it thinks necessary". Section 43 (6) made the "terms and conditions of employment of officers and temporary employees . . . such as are determined by the Commission with the approval of the Public Service Board". The same Act preserved the operation of awards made by the Commonwealth Court of Conciliation and Arbitration and determinations made by the Public Service Arbitrator and contained detailed provisions relating to the classification, abolition and reclassification of positions in the service of the Commission, transfer, promotion and dismissal of officers. Section 15 (1) (e) of the South Australian Act, which conferred on the Industrial Court of South Australia jurisdiction to review the dismissal of an employee and if necessary to order the employer to re-employ him, was held to be inconsistent with the Commonwealth Act, in particular with ss. 43 (2) and 43 (6). (at p263)

24. Clause 6B of the Agreement stands in contrast to s. 43 (6) of the Broadcasting and Television Act. The contrast shows that cl. 6B does not in itself expressly or impliedly seek to vest in the employer an unfettered right of dismissal on any grounds. It seeks to regulate the period of notice and assumes the rights of dismissal arising under the general law. (at p263)

25. Only one ground for dismissal is specified in cl. 6 and that is where a pilot does not hold certain qualifications after five-and-ahalf years' service (cl. 6G (2)). For the rest, under the general law Ansett has a right to dismiss a pilot in the first twelve months. Thereafter Ansett's right to dismiss under the general law is qualified by a procedure which reposes a discretion in the Grievance Board. (at p263)

26. Ansett argued that Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. (1975) 10 SASR 582 supported the view that cl. 6B confers a substantive right of dismissal on Ansett. I do not agree. In Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. the award made under the Act provided that the employment should be terminated by a week's notice on either side. However, the award also provided that "This shall not affect the right of the Company to dismiss an employee without notice for malingering, inefficiency, neglect of duty or misconduct . . .". This award was alleged to be inconsistent with s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.). In the light of the specific words of the award, viz. "the right of the Company to dismiss an employee without notice", it is clear that the power to direct re-employment under the State Act and the federal award were inconsistent. However, no such "right" is given here. Rather, cl. 6B of the Agreement is only concerned with the question of notice. (at p263)

27. Consequently, I do not find any direct inconsistency between cl. 6B and the State Act. The Agreement does not confer on Ansett a substantive right of dismissal; it merely assumes the right of dismissal for which the general law provides. The right of an employer under the general law to dismiss an employee has been altered in Victoria by the State Act in that an employer may not discriminate against an employee on the ground of sex in offering employment, refusing to offer employment or in the terms on which employment is offered (s. 18 (1)) or by dismissing an employee by reason of sex (s. 18 (2) (b)). The Agreement is to be read in the light of this alteration in the general law. The grounds on which I have reached the conclusion that there is no direct inconsistency also require the conclusion that cl. 6B of the Agreement does not seek to cover the field of the employer's substantive right to dismiss. (at p264)

28. Unquestionably there is a strong case for saying that, in cases to which the Grievance Procedures apply, namely, cases of termination of employment after the period of Initial Service (of twelve months) has expired, the Agreement is directly inconsistent with the State Act. After twelve months' service an employee may seek to contest his dismissal through the Grievance Procedures and this may result in a confirmation by the Grievance Board of his dismissal. He may then take his case to the Equal Opportunity Board which may order his reinstatement. This situation, should it arise, may well result in direct inconsistency, though it is fraught with difficulties not explored in argument. (at p264)

29. The Agreement expressly provides that the determination of the Grievance Board is to be binding on the parties. The validity and the effect of this provision were not debated. It was not suggested that it was invalid as an attempt to oust the jurisdiction of the courts to deal with wrongful dismissal. And it was assumed that the constitutional power under s. 51 (xxxv.) as exercised by the Act extended to the inclusion in the Agreement of a provision authorizing a tribunal set up by the Agreement to give a binding determination of a dispute between the parties and that this involved no exercise of judicial power by the tribunal which would conflict with Ch. III of the Constitution. On the assumption that the provision is valid and that its effect is to make the determination of the Grievance Board on the issue of dismissal conclusive between the parties I would conclude that the determination takes effect according to its terms, notwithstanding a determination or order to the contrary made under the State Act. (at p264)

30. This conclusion still leaves for decision the question whether the discretion which the Agreement reposes in the Grievance Board is to be exercised subject to, or in derogation of, the general law. The fact that inconsistency may arise between a determination by the Grievance Board and one by the Equal Opportunity Board does not in itself provide support for the view that the Agreement evinces an intention that the Grievance Board is not to be bound by, or is not to apply, the substantive principles of law expressed in a State statute. It is one thing to say that the decision of the Grievance Board is to prevail over a decision of a Board under a State Act. It is quite another thing to say that the Grievance Board may, in arriving at its decision, disregard the provisions of substantive law contained in the State Act. It is not enough for a plaintiff who alleges inconsistency to point to the existence under the Commonwealth law of a power or discretion which of its nature may be exercised in conformity with the provisions of State law. To succeed he must go further and demonstrate that as a matter of legislative intention the power or discretion is to be exercised to the exclusion of what State law says upon the topic. Although the issue of dismissal is left in the discretion of the Grievance Board, there is nothing which indicates that the discretion is reposed in the Grievance Board to the exclusion of any provision which the general law may make upon the subject. (at p265)

31. Accordingly, although the Grievance Procedures may give rise to a situation of direct inconsistency with the State Act, this inconsistency does not in my opinion have any application to the defendant during the period of Initial Service. Further, as the direct inconsistency is not based on the existence of an intention that the Grievance Board is to exercise its discretion in derogation or in disregard of the general law, there is no foundation for the argument that the inconsistency to which I have referred in some way colours or affects the provisions of cl. 6B of the Agreement as they relate to the defendant during her period of Initial Service. (at p265)

29. It may be right to criticize, as Mr. Ryan, for Ansett, did in his reply, this emphasis on sex rather than upon dismissal. On the other hand, the parties must not be taken to be negotiating an agreement in a legal vacuum. The Victorian Act was enacted in 1977, and one would have expected Ansett to raise it in the subsequent negotiations between the parties if that was its wish. In my opinion there is much to be said for the view that the parties here were concerned with developing adequate safeguards for the employee through the grievance procedures. There is nothing to suggest that they were at all concerned with a definition of the employer's grounds for dismissal; if they were, then one would have expected to see explicit reference to it in the award. (at p289)

30. After careful consideration of these competing arguments, I conclude that the Agreement does not confer on Ansett the authority, subject only to other provisions of the Agreement, to terminate Mrs. Wardley's employment because of her sex. Let me illustrate the point by reference to s. 5 of the Conciliation and Arbitration Act. I draw no distinction in this frame of reference between the provisions of s. 5 and the provisions of s. 18 (2) (b) of the Victorian Act, notwithstanding that the former is a Commonwealth statute. For the purposes of the illustration that fact is irrelevant. If Ansett were to terminate Mrs. Wardley's employment because of her union activity for the Federation then prima facie it would be guilty of an offence under s. 5 of the Commonwealth Act, and would be liable to the penalty prescribed. It would not be suggested that Ansett was empowered by that Agreement to dismiss a pilot because of his or her union activity. There would be no disturbance to the operation of the Agreement. On the other hand, if the termination represented an act of discrimination on the ground of sex, prima facie that act could attract the jurisdiction of the Equal Opportunity Board. If the powers of that Board were simply to impose a penalty for a breach of the Act, then the analogy with s. 5 of the Commonwealth Act would be complete and there would be no invalidity. (at p289)

31. However, in fact, the Board's powers are somewhat different. By s. 40 (2) it may order Ansett - (a) to refrain from committing any further act of discrimination against Mrs. Wardley; (b) to pay to her damages to compensate her for loss or damage suffered by her in consequence of the act of discrimination; (c) to perform any acts specified in the order with a view to redressing any loss or damage suffered by her as a result of the act of discrimination; or (d) it may dismiss the complaint. (at p290)

32. In my opinion there is no collision between the Agreement and the powers in (a) and (b). It may not be possible to make the necessary computation under (b) until the industrial relationship of the parties under the Agreement has been finally determined pursuant to its provisions, but that is not material. It may be observed that it is not simply a question of whether the two laws can both be obeyed; that test has long since been rejected as necessarily establishing consistency: Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466 . Nor is the fact that the subject-matter of the two laws is separate and distinct, if that be the case, necessarily determinative: Colvin v. Bradley Bros. Pty. Ltd. (1943) 68 CLR 151 . The significant fact is that in my opinion the Victorian Act does not by these provisions deny or vary a right, power or privilege conferred on Ansett by the Agreement, nor does it grant to Mrs. Wardley a right which is denied or affected by the paramount law. (at p290)

33. But the same cannot be said of the power conferred on the Board by s. 40 (2) (c). It is a wide power which is not particularized. Conceivably it could lead the Board to order an employer to reinstate a former employee and give directions with respect to seniority or other matters which would clearly fall within matters covered by the award. Any exercise of powers to this effect could be a case of direct inconsistency with the Agreement. (at p290)

34. In this respect the case finds a parallel in the reasoning and decision of the Supreme Court of South Australia in the General Motors-Holden's Case to which I have already referred. The award in that case provided for the employment to be terminated on notice, but unlike the Agreement in the present case there were no grievance procedures and consequently no provision which could lead to his re-employment with seniority and other privileges restored. However, s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972-1974 (S.A.) confers on the Industrial Court a jurisdiction to hear and determine any question as to whether the dismissal of an employee was harsh, unjust or unreasonable, and if it thinks fit to order the re-employment of that employee on terms not less favourable than if he had not been dismissed and payment of some or all of the lost wages. The Court concluded that the State Act purported to confer on the Court the power to direct re-employment on terms that must conflict directly with certain terms of the award on which, if he were re-employed, his employment would be governed. It was therefore invalid to the extent of the inconsistency. (at p291)

35. Two further points of interest may be noted in the General Motors-Holden's Case (1975) 10 SASR 582 . The Court rejected a submission that the "covering the field" test was applicable to the award. Consistently with that stand, their Honours recognized that if the State Act had conferred the jurisdiction in question only in cases where the dismissal was wrongful, and thus represented a modification of the common law action for wrongful dismissal, "there might be room for the argument that the Award, which accepts, and operates against a background of, the common law, stands in peaceful co-existence with, and is supported by, the State Act." (per Walters and Wells JJ. (1975) 10 SASR, at p 601 ). (at p291)

36. Bray C.J. envisaged the same possibility (1975) 10 SASR, at p 589 . I do not think that this latter point is of relevance, notwithstanding the fact that in contrast to the South Australian Act the Victorian Act expressly declares the discriminatory acts to be unlawful, because I construe the Agreement as invoking the grievance procedures whether the termination can be described as lawful or unlawful. (at p291)

37. Mr. Liddell also relied on a decision of this Court in Australian Broadcasting Commission v. Industrial Court (S.A.) (1977) 138 CLR 399 . The question in that case was whether the same provision of the South Australian Act that was in issue in the General Motors-Holden's Case was inconsistent with Div. 2 of Pt III (including s. 43 (6) of the Boradcasting and Television Act 1942 (Cth)). The latter section provided that the terms and conditions of employment of temporary employees are such as are determined by the Commission with the approval of the Public Service Board. The Justices of this Court, assuming for the purposes of the case that there was jurisdiction in the Industrial Court to deal with the particular matter, found the provisions of s. 15 (1) (e) of the State Act to be inconsistent and therefore invalid in their application to the Commission. While some members of the Court based their conclusion on direct inconsistency, and others on the "covering the field" test, the result, if I may say so with respect, was inevitable having regard to the plain terms of the Commonwealth Act. (at p291)

38. In both these cases, the invalidity flowed from the purported assertion by the State Act of a power to order the re-establishment of the relationship of employer and employee on particular terms notwithstanding that the termination of the original relationship was within the operation of a law of the Commonwealth. (at p292)

39. The question remains as to the relief sought by the plaintiff in terms of the third declaration, namely, that no provision of Pt III of the Victorian Act applies to the plaintiff in the exercise of such rights to dismiss pilots as are conferred on it by the Agreement. This claim raises a number of difficulties. Firstly, Pt III in the relevant respect does no more than declare it to be unlawful for an employer to discriminate against an employee on the ground of sex by dismissing the employee. No penalty is provided. Section 54 provides that a contravention of the Act does not as such incur a sanction (whether criminal or civil) except to the extent expressly provided, and "sanction" includes the granting of an injunction or declaration. Secondly, in the view I take of the Agreement it does not confer on the plaintiff any "rights" to dismiss pilots; it operates on the fact of dismissal by imposing the requirement of prescribed notice, of written reasons, and of subjection in appropriate cases to the grievance procedures. Thirdly, even if one extends the reference to Pt III so as to embrace the provisions of Pt VI relating to enforcement, and s. 40 in particular, the circumstances are not such as to lend themselves to the making of a declaration. Mrs. Wardley has not been dismissed. It is true that the Equal Opportunity Board has ordered pursuant to the power conferred upon it by s. 40 (2) (a) that Ansett refrain from committing any further act of discrimination against her, and it would seem that a dismissal by Ansett on the ground of her sex would constitute a contravention of that clause of the order of the Board thus constituting an offence and rendering the company liable to a penalty not exceeding $1,000. But this aspect of the matter would end there. For the reasons I have already outlined such a course of events would not in my opinion establish any inconsistency with the Agreement. (at p292)

40. In the circumstances therefore as they are at present, it is inappropriate for this Court to exercise its power to make a declaration of right. (at p292)

41. For these reasons, I would decline to make the declarations sought by the plaintiff. (at p292)

Orders

Originating summons dismissed with costs.