Barlow v Qantas Airways Limited
[1996] IRCA 526
•07 November 1996
DECISION NO:526/96
INDUSTRIAL LAW - Interpretation of AWARD - Seniority rule - Provision for seniority to depend upon date of commencement of employment - Exception in the case of a person "reinstated or re-employed following a successful appeal against dismissal - Flight attendants retired at age 35 because of discriminatory practices - Attendants re-employed after substantial break following a consent order in the Equal Opportunity Tribunal that they be "reinstated" on certain terms, including with restoration of sick leave and long service leave rights - Whether the word "reinstated" in the award was qualified by the words "following a successful appeal against dismissal" - Whether attendants were "reinstated".
Airline Flight Attendants' (Qantas) Award, cl 23
Industrial Relations Act 1988, s 413
ROSEMARY ANN BARLOW v QANTAS AIRWAYS LIMITED, FLIGHT ATTENDANTS' ASSOCIATION OF AUSTRALIA and PAMELA BLACKET, FAYE BROWN, SUSAN BURGESS-STITT, ANNE CAMPBELL, JESSICA DAVIES, MARGUERITE DAVIES, MARGARET GILET, URSULA KAISER, MEGAN LAURENCE, LORIS LAWSON, SUZANNE LOVE-DAVIES, CEINY MAYBURY, ANNE McDONNELL, MARGARET McGIRR, MARY MEYER, PATRICIA O'CONNOR, ANNE O'SULLIVAN, MARGARET PHILLIPS, GILLIAN POWELL, PETA RATTRAY, LORRAINE ROOK, SUSAN WHITTY, MICHELE WILLIAMS and CHERYL YOUNG
No. NI.95/3903 of 1995
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE; 7 NOVEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.95/3903 of 1995
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: ROSEMARY ANN BARLOW
Applicant
AND:QANTAS AIRWAYS LIMITED
First Respondent
FLIGHT ATTENDANTS' ASSOCIATION OF AUSTRALIA
Second Respondent
and
PAMELA BLACKET, FAYE BROWN, SUSAN BURGESS-STITT, ANNE CAMPBELL, JESSICA DAVIES, MARGUERITE DAVIES, MARGARET GILET, URSULA KAISER, MEGAN LAURENCE, LORIS LAWSON, SUZANNE LOVE-DAVIES, CEINY MAYBURY, ANNE McDONNELL, MARGARET McGIRR, MARY MEYER, PATRICIA O'CONNOR, ANNE O'SULLIVAN, MARGARET PHILLIPS, GILLIAN POWELL, PETA RATTRAY, LORRAINE ROOK, SUSAN WHITTY, MICHELE WILLIAMS and CHERYL YOUNG
Third Respondents
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE; 7 NOVEMBER 1996
MINUTES OF ORDER
THE COURT DECLARES THAT:
Upon the proper construction of clause 23 of the Airline Flight Attendants' (Qantas) Award 1993, unless the Australian Industrial Relations Commission decides otherwise, each of the third respondents is entitled to seniority on the Flight Attendant Integrated Seniority List according to the date of her first day in training school at the commencement of her initial employment by the first respondent, Qantas Airways Limited.
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI. 95/3903 of 1995
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: ROSEMARY ANN BARLOW
Applicant
AND:QANTAS AIRWAYS LIMITED
First Respondent
FLIGHT ATTENDANTS' ASSOCIATION OF AUSTRALIA
Second Respondent
and
PAMELA BLACKET, FAYE BROWN, SUSAN BURGESS-STITT, ANNE CAMPBELL, JESSICA DAVIES, MARGUERITE DAVIES, MARGARET GILET, URSULA KAISER, MEGAN LAURENCE, LORIS LAWSON, SUZANNE LOVE-DAVIES, CEINY MAYBURY, ANNE McDONNELL, MARGARET McGIRR, MARY MEYER, PATRICIA O'CONNOR, ANNE O'SULLIVAN, MARGARET PHILLIPS, GILLIAN POWELL, PETA RATTRAY, LORRAINE ROOK, SUSAN WHITTY, MICHELE WILLIAMS and CHERYL YOUNG
Third Respondents
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 7 NOVEMBER 1996
REASONS FOR JUDGMENT
WILCOX CJ: This case illustrates two truths. One, discrimination casts a long shadow. The Court is here concerned with the consequences of sexually discriminatory practices that ceased in June 1983. Two, because of its "all-or-nothing" nature, a judicial decision may provide an unsatisfactory resolution of a conflict.
In this case the conflict concerns the relative seniority of flight attendants employed on international routes by Qantas Airways Limited ("Qantas"). Seniority is important to international flight crew. Not only is it relevant to promotion; it is used to determine competing bids for popular routes. The conflict revolves around the interpretation of an industrial award, the Airline Flight Attendants' (Qantas) Award 1993, in particular cl 23.
The employer, Qantas, and the relevant union, Flight Attendants' Association of Australia ("FAAA"), are parties to the proceeding, as first and second respondents respectively. But the principal protagonists are two groups of flight attendants. The applicant, Rosemary Ann Barlow, represents one group, 823 flight attendants (female and male) who have maintained continuous service with Qantas. On their behalf she brings this proceeding as a representative action under Division 6 of Part XIV of the Industrial Relations Act 1988. This group seeks an interpretation of cl 23 of the award pursuant to s 413 of the Industrial Relations Act and argues that the clause ought to be interpreted in a way that makes seniority depend entirely upon length of continuous service. The other group are the third respondents to this proceeding. They are 24 women who were employed by Qantas as air hostesses before October 1974 but elected to leave the employment at age 35, or after ten years' service, allegedly because of the company's discriminatory practices. They recently rejoined the airline, as flight attendants, following proceedings in the New South Wales Equal Opportunity Tribunal. Pursuant to an agreement made at the Tribunal, they were accorded seniority according to the dates they were first recruited by Qantas. This put them ahead of many flight attendants with longer actual service including, presumably, many members of the applicants' group. It is easy to see why members of the applicants' group consider this situation to be unfair. It is equally easy to understand that the third respondents think it would be unfair to calculate their seniority only from the date of their rejoining Qantas, ignoring their previous years of service.
The fair course, as it seems to me, would be to take into account the third respondents' earlier period of actual service, but not the time that elapsed between the dates they left Qantas and the date they rejoined it. Early in the hearing, I suggested that the parties agree to resolve their dispute along these lines, rather than by obtaining a ruling concerning cl 23. This suggestion was not accepted, so I must make that ruling. Whatever conclusion I reach, the result will seem unfair to one group or the other.
The agreed facts
Prior to the trial, and in accordance with directions made by Beazley J, the parties conferred with a view to producing an agreed statement of facts. They did not succeed in producing a comprehensive statement. However, during the course of the hearing they agreed on some facts. I will set them out:
"1.At all material times up to June 1983, in comparison to its male cabin crew staff, ('stewards') Qantas discriminated against its female cabin crew staff ('air hostesses') in the nature of the duties that it required them to perform, the allocation of duties and their opportunities for promotion ('the discriminatory practices').
2.The discriminatory practices ceased in June 1983 when the seniority lists for Qantas' stewards and air hostesses were integrated, although some of the effects continued in relation to air hostesses who were not given a further election (as described in 8 below) until 1985.
3.In 1971, Qantas attempted to introduce a compulsory retiring age of 35 years for its air hostesses.
4.In 1972, the AHA and Qantas reached agreement providing, inter alia, for air hostesses to either elect to retire at 35 years or to continue in employment to a later age as specified in an 'age service index' ('the Agreement').
5.In 1975, the Agreement was varied by a further agreement ('the 1975 Agreement'), which provided, inter alia, that any air hostess employed prior to 1 October, 1974 could either retire after age 35 pursuant to the age service index, or elect to either retire at age 35 or to remain in employment until age 55 ('the election').
6.All air hostesses employed before 1 October 1974 and employed by Qantas at that time, (including all of the Third Respondents), were given the opportunity to make the election pursuant to the 1975 Agreement, and did so.
7.In accordance with the 1975 Agreement, no air hostess who commenced employment with Qantas on or after 1 October, 1974, was able to elect to retire at age 35, but was employed to age 55, which was the same position for all stewards regardless of when those stewards commenced employment with Qantas.
8.Qantas gave all air hostesses who had commenced their employment prior to 1 October, 1974 and who were then still in employment, the opportunity to make the election again in 1981 and again in 1985.
9.Qantas agreed that air hostesses electing to retire at age 35, would have made available to them, concessional travel arrangements within Australia and overseas for life, ('the travel arrangements') which otherwise would only be available on retirement at age 55, as they were for stewards. In addition, those retiring at age 35 received 100% of Qantas' contributions to the Superannuation Scheme which otherwise would not have been available.
10.Each of the Third Respondents made the election pursuant to the 1975 Agreement, either in 1975, 1981 or in 1985, and some made more than one such election.
11.Each of the Third Respondents, (other than Love-Davies, Rattray, Young and Phillips who resigned otherwise than in accordance with their election), retired from employment as an air hostess with Qantas, in accordance with the election that she had made.
12.Prior to 1992 when clause 32 was inserted into the Qantas Award, Qantas and the AHA and FAAA had an informal system of dealing with appeals against dismissal, which involved the Union taking the matter up with Qantas and if the matter was not resolved at that level it would either be referred to the Board of Reference constituted by the Deputy Industrial Registrar or to the Conciliation and Arbitration Commission."
Additional facts
The parties' agreement reduces the number of factual issues. But some remain. Although discrimination is conceded, the applicant and FAAA dispute the third respondents' claim that there was a causal connection between the discriminatory practices and their decisions to leave Qantas at age 35 or after ten years' service, as the case may be. So counsel for the third respondents led evidence on this issue. He read affidavits made by 17 of his clients. They were all cross-examined. In addition, documents were tendered by most of the parties. It is desirable that I put flesh on the bones of the agreed facts by giving an account of this evidence and making the necessary findings about causation.
The third respondents became employed by Qantas, as flight hostesses, during the period 1969 to 1973. Most of them joined the company after the introduction in 1971 of the Boeing 747 aircraft, an event that caused a substantial increase in cabin crew numbers. From 1971 to June 1983 the cabin crew on a Qantas Boeing 747 typically consisted of twelve men and three women. The men comprised a service director, who was responsible for all cabin crew, a chief steward, who was responsible for first class passengers, two senior stewards, one of whom was responsible for the duty free bar and one responsible for the galley, an air chef who worked in the first class galley and seven stewards. The three women were flight hostesses.
The seven stewards and three flight hostesses held equal rank. But it seems that, as in George Orwell's "Animal Farm", some animals were more equal than others. The affidavits made by members of the third respondent group contained evidence about this inequality, which was not disputed at the trial. Its flavour is conveyed by the following typical extract:
"In the allocation of duties between hostess and steward, no regard was given to my seniority or experience by Qantas when compared with my male counterparts. In addition, much more attention was paid to my personal grooming than was to my male counterparts. Examples of this allocation of duties and behaviour and the way this affected me in my day-to-day working environment include:
(a)As a hostess my role was to brief mothers with babies, look after them during the flight, clean up vomit and assist in the changing of dirty nappies when required. I can only recall the stewards carrying out these duties on very few occasions.
(b)As a flight hostess on Boeing 707 aircraft I had to look after unaccompanied minors including responsibility for accepting them on board and delivering them to the ground staff at their destination. Also, if they were stops along the way, I was responsible for their whereabouts. I also had to complete all documentation similar to that which became the flight service director's responsibility, for example completing general declarations, passenger documents, recording the number of passengers joining and leaving the aircraft and public announcements. The male stewards did not carry out these duties. These duties gradually became part of the role of flight service directors on the Boeing 747 aircraft yet I was unable to be promoted to the position of flight service director because I was a woman.
(c)Cleaning dirty toilets was considered to be my role because I was a woman. I rarely witnessed a male steward carrying out this task. I also had to order amenities which included items for the toilets, children and passenger care and comfort, a job which the males were not required to do.
(d)My hairstyle, the colour of my makeup and my personal jewellery was inspected and restricted. I was not free to exercise my personal choice in dress accessories. These restrictions did not apply to male stewards.
(e)My weight was constantly monitored whereas no such monitoring existed for male stewards. I feared being over weight because hostesses were taken off flights with reduced pay on the grounds of weight and personal grooming.
(f)Even though I may have had more seniority or experience than my male counterparts on flights, when a list of cabin crew was prepared, the captain would be listed at the top of the list and then each male on the flight from flight service director to flight steward. My name and the names of any other hostesses who formed part of the crew were always listed below the names of the male crew. On the basis of this listing, I was allocated hotel rooms and food after the male cabin crew on the list. If there was a difference in the quality of rooms allocated at hotels, being at the end of the crew list meant that as a hostess, I naturally received the worst room.
(g)As a hostess I was not allowed to be responsible for money received from passengers when taking around the bar cart. Only male stewards were responsible for the money. This was the case even though the male steward may have had much less experience than me. I was angry about this and felt that I could not be trusted with money because I was a woman."
An even more significant area of discrimination concerned career advancement. In those days Qantas did not encourage women to make flying their career.
Until 1975 the retirement age for flight hostesses was 35. A hostess who retired on her 35th birthday, or the earlier expiration of ten years' service, was entitled to significant retirement benefits including superannuation payments and continuing travel concessions. In 1975 Qantas agreed to extend its retirement age to 55 years. This was the same age as for stewards. However, even then, flight hostesses received annual salary increments only during their first ten years service whereas stewards continued to receive salary increments throughout their career.
Furthermore, until 1983 there was a radical difference between stewards' promotion prospects and those of flight hostesses. By the mere effluxion of time, stewards were eligible for promotion to the position of senior steward and then chief steward. Promotion to these positions was governed by seniority alone. Stewards also could compete for promotion to the position of flight service director, this being a merit appointment. In contrast, the only promotion opportunity available to a hostess was to obtain one of the few positions as a senior hostess. This position carried the same salary as that of a senior steward but a senior hostess was required to spend more time on ground duties than a flight hostess. When flying, the special role of a senior hostess related to the checking and training of hostesses, not customer service. The position was not a means of advancing a cabin crew career.
These discriminatory practices had an effect. For all the third respondents who gave evidence, the story was much the same. They first joined Qantas when they were in their early twenties. The position of flight hostess appeared glamorous, particularly because of its prospect of extensive overseas travel. They did not think much about their long-term careers; age 35 seemed far away. Nor did they much concern themselves about the possibility of promotion; to be a flight hostess was exciting enough. Only gradually, as the novelty wore off and the third respondents saw men with whom they had trained being promoted to superior positions at higher pay, did they recognise, and begin to resent, the discriminatory treatment to which they were subjected.
When Qantas changed the retirement rule in 1975, the third respondents were all invited to elect between maintaining their intention to retire at the previously mandatory age of 35 (or after ten years' service), or switching to an age 55 retirement plan. Some maintained their intention to retire at age 35. Those who did this explained in evidence that, by 1975, they were already disillusioned by their discriminatory treatment and lack of career prospects. They saw no point in staying beyond their 35th birthday. This is understandable. Incongruously, Qantas did not revise its promotion policy in line with its extension of the flight hostesses' retiring age. A flight hostess who elected to serve until age 55 was left with the prospect of doing the same work she had always done, without any prospect of promotion and junior to men increasingly younger than herself; and all this without any salary increment, other than for inflation.
Despite this situation, not all the third respondents maintained their intention to retire at 35. Some switched to an age 55 retirement plan.
In 1981 Qantas offered flight hostesses an opportunity to re-elect their retirement age. By this time, disillusionment had overtaken the remaining third respondents. All those who had previously decided to continue until age 55 took the opportunity to change back to 35. In the result, after the 1981 elections, all the third respondents were committed to retire at age 35.
There were, of course, differences in the personal circumstances of the 17 third respondents who gave evidence. Some married during their period of service. Some had children. There were differences in the articulated reasons why they elected, initially or ultimately, to retire at age 35. Family responsibilities were sometimes a factor, but not to the extent that one might have assumed; Qantas offered substantial maternity leave entitlements.
I do not think it necessary to refer to the position of each of the third respondents who gave evidence. It is sufficient to say that I am satisfied, in relation to each of them, that resentment about discriminatory practices, especially in relation to promotion prospects, was a major factor - in many cases, the dominating factor - in her decision to leave Qantas at the age of 35 or after ten years' service. It is readily understandable why this was so. Each witness commenced with Qantas before her 25th birthday. By age 35, she would have at least ten years' service. It would be time to take stock of the future and look for a position that offered prospects of advancement. Flight hostessing did not do this. Even by 1981, there had been no change in the promotion rules.
Some of the third respondents retired before June 1983. Most were still in Qantas' service at June 1983, but committed by their election, in 1975 or 1981, to retire not later than age 35.
In June 1983 Qantas radically altered its rules concerning flight crew. The distinction between stewards and flight hostesses was abolished; they all became flight attendants and were employed on an equal basis, at least in relation to pay and promotion prospects. But, again incongruously, Qantas did not match this reform with an invitation to female flight attendants to re-elect their retirement age. Those who had committed themselves under the old regime to retire at age 35 were held to that commitment.
During the latter half of 1984 some of the third respondents wrote to Qantas requesting an opportunity to re-elect their date of retirement. The company did not accede to the requests. The Australian Flight Attendants' Association ("AFAA"), a predecessor of FAAA, took up their cause. In November 1984 AFAA's solicitors wrote to Qantas on behalf of AFAA and six named flight attendants. Amongst other things, they said:
"The above individuals have all exercised an option to resign after the completion of ten years service as flight hostess or upon resignation while serving as a flight hostess on or after their 35th birthday.
The above individuals were all in the employ of Qantas in June 1983 when promotional opportunities were opened to the female flight attendants by the variation of their award and the subsequent integration of the male and female seniority lists.
At that time representations were made to the company by and [on] behalf of the above persons and on behalf of all female flight attendants who were still in the employ of the company at the time of the integration. It was requested that in view of the promotional opportunities then made available to them, the options which they had previously been given should be re-opened.
To this date, no formal response has been given to these representations."
After referring to the personal circumstances of some of the named flight attendants and to an agreement between Qantas and an earlier industrial association representing air hostesses, the solicitors went on:
"It is clear in our view that the opening of promotional opportunities to flight hostesses and the integration of the seniority lists is a 'significantly changed' or 'special circumstance'. The failure of Qantas to give these female flight hostesses the opportunity, in view of the changed circumstances to opt for retirement at age 55, is clearly a discrimination within the terms of the Commonwealth Sex Discrimination Act 1984 and/or Anti-Discrimination Act 1977 New South Wales (as amended) and we are instructed that unless we receive a favourable response to these requests within seven days hereof, proceedings will be instituted pursuant to these acts without further notice.
We are further instructed that the organisation will similarly pursue the rights of any female flight attendant who has opted for voluntary retirement at age 35 and who remained within the employ of Qantas at the time of the opening of the promotional opportunities and who now wishes to opt for retirement at age 55.
In accordance with the agreement referred to above, we hereby request that the question of the retirement age for the above persons be reopened and that the right to re-elect be extended to all presently employed female flight attendants who in the past have elected to retire at an earlier age.
It is our opinion that to continue with the present position is in breach of the Commonwealth Sex Discrimination Act 1984 and the Anti Discrimination Act 1977 New South Wales. In the light of Qantas claim to be an equal opportunity employee [sic], we imagine that you will be anxious to rectify this anomaly."
Shortly after this letter was sent, one of the six named flight attendants reached her 35th birthday and was forced to resign. So the solicitors made a complaint to the Anti-Discrimination Board. Conciliation failed and the complaint was referred to the Equal Opportunity Tribunal.
It is not necessary to refer to the tortuous course of events before the Tribunal. Some flight attendants, who were still employed by Qantas and had not yet turned 35, were eventually allowed to alter their planned retirement date to their 55th birthday. Others, who had retired pursuant to an age election and had pressed complaints, were allowed to rejoin the company. This was done pursuant to agreements made between Qantas and each of them on 5 August 1986. A question arose concerning their seniority. It was the subject of two decisions by Justice Boulton of the Australian Conciliation and Arbitration Commission, as it then was. His first decision was given on 7 November 1986 in a case concerning Ms K J Nicholls, a flight attendant who retired on 2 June 1984 pursuant to an earlier election to retire at age 35. She recommenced work on 29 August 1986 pursuant to the agreement of 5 August. Justice Boulton considered the matter of seniority in the context of cl 28 of the then relevant award, the Airline Flight Attendants' (Qantas) Award (Consolidated) 1986. He said:
"Clause 28a(ix) provides an exception to the general rule that a flight attendant who is re-employed following termination of employment and consequent loss of seniority (see paragraph (vii)) shall 'commence to accrue seniority from the date of such re-employment' (paragraph (viii)). The exception applies in the case of reinstatement or re-employment 'following a successful appeal against dismissal'.
The termination of Ms. Nicholls' employment in June 1984 amounted to a forced or compulsory retirement or a 'constructive dismissal' having regard to the then-existing policy of Qantas. Such a forced retirement, in my view, falls within the meaning and intent of clause 28(a)(ix). This view is re-inforced by the reference in paragraph (ix) to reinstatement following 'a successful appeal' - such an appeal would be inappropriate or unnecessary in the case of voluntary termination and would only have meaning in the context of a forced termination or dismissal.
Ms. Nicholls' reinstatement or re-employment (I do not find it necessary to decide which took place) followed a complaint taken by the AFAA to the Anti-Discrimination Board on behalf of Ms. Nicholls and six other female flight attendants. The reinstatement or re-employment was offered by Qantas at least in part settlement of the complaint and thus can be characterised in terms of clause 28(a)(ix) as 'following a successful appeal against dismissal'.
In these circumstances, I consider that clause 28(a)(ix) is applicable to Ms. Nicholls' case.
Accordingly, clause 28(a)(ix) would provide that Ms. Nicholls be returned to the Flight Attendant Integrated Seniority List without loss of seniority 'unless the Conciliation and Arbitration Commission directs otherwise'. The seniority number assigned to Ms. Nicholls by Qantas was determined taking into account her period of non-employment with Qantas between June 1984 and August 1986 but otherwise relates to her period of employment with Qantas since 1970. The seniority number was assigned in accordance with the agreement of 5 August 1986 between Qantas and Ms. Nicholls whereby she accepted the offer of reinstatement. In all the circumstances of this matter and taking into account the acceptance by Ms. Nicholls of the basis of the calculation of her seniority number, I consider that the assignment of the seniority number calculated on that basis is fair and reasonable."
Justice Boulton's second decision came four months later, on 25 March 1987. It concerned Ms R E Lycett, Ms C C Dahl and Ms P A Allom, three flight attendants whose position he found to be substantially similar to that of Ms Nicholls. He reached a similar conclusion.
Three other flight attendants were subsequently dealt with in the same way. As will appear, there is a special provision in the seniority clause of the current award protecting the rights of these seven people.
None of these decisions affected the third respondents. None of them were re-employed until 1995, following further activity in the Equal Opportunity Tribunal. On 23 January 1995, in proceedings brought by 70 complainants against Qantas, the Tribunal made a consent order in which it found their complaints substantiated and ordered payment of agreed damages and costs. The Tribunal made an additional order in relation to 29 complainants:
"3.Orders that the Complainants listed in Schedule 2 attached to these Orders be reinstated by the Respondent to their previous classification and equivalent position on the following terms:
(a)the Complainants' dates of commencement of employment with the Respondent are to be the dates shown in Schedule 2 and seniority is to accrue from those dates, subject to the Airline Flight Attendants' (Qantas) Award 1993;
(b)the Complainants undergo a full Flight Attendant medical examination prior to commencement;
(c)the Respondent allow accrual of sick leave at the rate of 7 days per annum for every year of prior employment (not including the period of absence from the Respondent);
(d)the Complainants may either:
(i)repay any prior long service leave payments received from the Respondent, in which case the Complainants' prior period of service will be included for long service leave accrual; or
(ii)commence long service leave accrual as at the date of reinstatement.
(e)no retrospective long service leave trips are to be received by the Complainants on account of their prior service;
(f)the Complainants may join the Respondent's Star Travel Program;
(g)the Complainants' original dates of commencement of service are to apply for staff travel purposes;
(h)the Complainants complete a St Johns Ambulance Senior First Aid Certificate or equivalent at their convenience."
The 29 people named in Schedule 2 of the Tribunal's order included the 24 third respondents, all of whom resumed work with Qantas on or about 27 February. Each third respondent was assigned seniority according to the date of her original commencement with Qantas. This was because of the terms of order 3(a). Qantas apparently believed that the 1993 award did not prevent that course being taken. The "dates of commencement of employment" referred to in order 3(a) were the dates when the complainants commenced their initial employment with Qantas. The effect was to treat the 24 third respondents more favourably than the flight attendants whose cases were considered by Justice Boulton in 1986 and 1987. In those cases, the calculation of seniority took account only of time previously worked. Order 3(a) also took into account the time when the complainants were not employed by Qantas.
This situation caused concern to other Qantas flight attendants. On 4 October 1995 Ms Barlow instituted this proceeding on behalf of herself and 463 other named persons claiming the following orders:
"(a)an interpretation of the Award pursuant to s.413 of the Industrial Relations Act 1988 (Cth)("the Act") to the effect that on a proper construction of the Award, the seniority of employment of each of the complainants referred to in the said Statement of Claim with the First Respondent operates from the date of their re-employment by the First Respondent on or about 27 February 1995 pursuant to subclause 23(a)(viii) of the Award and not from any earlier date pursuant to subclause 23(a)(ix) of the Award;
(b)a declaration that the First Respondent is in breach of the provisions of the Award;
(c)an order that the First Respondent forthwith publish an Integrated Seniority List, to give effect to the interpretation pursuant to 3(a) above;"
The number of group members has grown since the institution of the proceeding. There has been no variation in the claimed relief.
The award
The Airline Flight Attendants' (Qantas) Award 1993 was made by the Australian Industrial Relations Commission on 7 January 1994. By cl 3 it was made binding on Qantas and FAAA, as to all flight attendants employed by Qantas, whether members of FAAA or not. The award is lengthy. It deals with many matters. It is common ground that the only provisions relevant to this case are cll 23 and 32.
Clause 23 is entitled "Seniority". Relevantly, it provides:
"(a)(i)The seniority of a flight attendant shall be determined by the length of the flight attendant's continuous service as a flight attendant with the Company.
(ii)Seniority shall commence to accrue from the flight attendant's first day in the training school.
(iii)...
(iv)...
(v) ...
(vi) ...
(vii)Except by agreement between the Association and the Company, seniority shall cease either from the termination of a flight attendant's employment with the Company or from the date he/she accepts a permanent position with the Company other than as a flight attendant.
(viii)Except as provided in (ix), a flight attendant having lost seniority as a result of termination or permanent employment other than as a flight attendant, shall, if re-employed by the Company as a flight attendant, commence to accrue seniority from the date of such re-employment.
(ix)Where a flight attendant is reinstated or re-employed following a successful appeal against dismissal, his/her name shall, unless the Australian Industrial Relations Commission directs otherwise, be returned to the Flight attendant Integrated Seniority List without loss of seniority.
(x)Any dispute as to the application of the above rules shall be submitted to the Seniority Dispute Committee.
Flight attendant integrated seniority list
(b)(i)The Company shall compile a Flight attendant Integrated Seniority List which shall contain the staff number, seniority number, classification and commencement date in the training school of each flight attendant in order of seniority.
(ii)A flight attendant's name and other relevant details shall be added to the Flight attendant Integrated Seniority List by the Company as soon as practicable after his/her commencement date at the training school.
(iii)...
(iv)The Company shall on 1 July of each year publish a complete updated Flight attendant Integrated Seniority List showing the names of all flight attendants in order of seniority.
(v) ...
(vi)...
(vii)...
(viii)...
Seniority disputes committee
(c)(i) ...
(ii) ...
(iii)...
Application by seniority
(d)(i)Without limiting any other provisions of this Award and provided that in each case the flight attendant is sufficiently qualified to undertake the training or duty required, seniority shall be used to determine the order of selection of flight attendants to be considered by the Company for promotion, transfer to and status on an aircraft type and in the event of redundancy, selection for termination and the award of annual leave.
(ii)Notwithstanding paragraph (i) hereof, promotion by merit from Level 2 to Level 3 shall be determined by:
(1)Skills acquisition as defined.
(2)Experience as measured by seniority.
(iii)Unless otherwise agreed between the Company and the Association the provisions of paragraph (ii) hereof shall not come into operation until 3 June 1996. Until the date of operation flight attendants shall be promoted from level 2 to level 3 following application for advertised vacancies in that category and upon successful completion of the interim upgrade course, in order of seniority.
(iv)Notwithstanding paragraph (i) hereof, promotion to flight attendant Level 4 shall be determined in accordance with the provisions of Clause 30 of this Award.
(e)Notwithstanding the provisions contained in subclause (a)(i) of this clause, the date from which seniority shall accrue for the following flight attendants is:
P A Allom 29.1.74 C L Dahl 8.6.72
C M Pask 25.2.70 P Gubbins 29.1.74
K J Nicholls 3.6.70 V Moore 26.6.68
R Lycett 5.10.72"
The critical provision, for the purposes of this case, is cl 23(a)(ix). A question arises as to whether the words "following a successful appeal against dismissal" qualify "reinstated" as well as "re-employed", it being argued by the applicant and FAAA that the third respondents were not dismissed from their earlier employment and, in any event, the decision of the Equal Opportunity Tribunal did not constitute a "successful appeal against dismissal". Clause 32(c) and (e) are relevant to that matter. Paragraph (c) provides a code for dealing with a "disciplinary action", a term that is defined to include "reprimand, withholding an annual increment or promotion, demotion and termination". Whenever the employer (Qantas) thinks that disciplinary action is or may be warranted, it must so advise the flight attendant and supply certain information. After specified steps are taken, Qantas may take disciplinary action but, if it does, it must advise the flight attendant of its reasons. Paragraph (e) provides for an appeal to an independent Board of Appeal. The Board is required by sub-cl (e)(iii)(10) to determine the appeal and advise the appellant and Qantas of its decision within seven days.
The submissions of counsel
The first step in the argument of Mr R Goot, counsel for the applicant, is that, but for par (ix) of cl 23(a) of the award, it would be clear that the seniority of the third respondents must be calculated as from the date of their re-employment by Qantas, 27 February 1995. All parties accepted that this statement is correct; but for par (ix), par (viii) would clearly govern the case.
Mr Goot's subsequent steps are more contentious. Turning to par (ix), he says that the word "reinstate", like "re-employed", is qualified by the words "following a successful appeal against dismissal" and there was here no dismissal; each of the third respondents retired at the age of 35 years (or ten years' service) pursuant to an election to take that course. Moreover, counsel says, there was no "appeal against dismissal". Those words should be read as a reference to the appeal procedure provided by cl 32, not as including any forensic challenge, anywhere, to Qantas' conduct.
Mr Goot was inclined to concede that the re-employment of the third respondents by Qantas amounted to a reinstatement. It would follow that, if he was wrong in suggesting that "reinstated" is qualified by the words "following a successful appeal against dismissal", par (ix) would apply. However, Mr S Rothman SC and Mr M J Walton, who represented FAAA, did not make that concession. They disputed that the third respondents were "reinstated" within the usual meaning of that word.
Mr J Stevenson, counsel for Qantas, and Mr J Basten QC, counsel for the third respondents, contested each of the above propositions concerning the interpretation of par (ix). Additionally, Mr Basten contended that par (vii) of cl 32(a) applied to this case; there was an agreement between FAAA and Qantas concerning the restoration of his clients' seniority.
Mr Basten's last contention is clearly untenable. Paragraph (vii) is directed to a situation where an agreement is made between FAAA and Qantas concerning non-cessation of a flight attendant's seniority before the termination of the flight attendant's employment. The paragraph uses the future tense, "seniority shall cease". The agreement in the present case was made long after the third respondents' termination of employment, and in the context of their proposed re-employment.
Qualification of "reinstated"
In challenging the argument that the word "reinstated" in cl 29(a)(ix) is qualified by the words "following a successful appeal against dismissal", Mr Stevenson referred to the history of the award. It seems that the first cabin crew award dealing with seniority was the Airline Flight Hostesses (Qantas) Award 1970. Clause 9(b) of that award provided that "(s)eniority shall be the length of continuous service as a flight hostess with the Company ...". It said nothing about reinstatement or its consequences. The subject was mentioned in the Aircraft Flight Stewards' Award 1971 and the Airline Flight Hostesses (Qantas) Award 1972, both of which were in relevantly similar terms:
"(vii)Seniority shall cease from the termination of a flight [steward's/hostess's] service with the Company or from the date a flight [steward/hostess] accepts a permanent appointment with the Company other than as a flight [steward/hostess].
(viii)A flight [steward/hostess], having lost seniority as a result of termination or permanent employment other than as a flight [steward/hostess] shall, if re-employed by the Company as a flight [steward/hostess], commence to accrue seniority from the date of such re-employment, unless such constitutes reinstatement, in which case service shall be deemed unbroken. In all cases unless agreed by the Association and the Company, all decisions by a Board of Reference following a successful appeal against dismissal will be considered as reinstatement and no loss of seniority will result."
In written submissions, Mr Stevenson contended:
"23.These award provisions made clear that:
(a)the general rule in regard to re-employment was that seniority dated from the date of re-employment;
(b)reinstatement was an exception to that general rule (service was to be 'deemed unbroken');
(c)re-employment following a successful appeal against dismissal treated as being the equivalent to ('will be considered as') reinstatement.
24.These awards thus contemplated that reinstatement and re-employment following upon a successful appeal against dismissal would both be considered circumstances in which full retention of seniority resulted.
25.If the circumstances of the present case were governed by the provisions of these awards there could be no doubt that the complainants reinstated pursuant to the orders of the Equal Opportunity Tribunal ... would be entitled to seniority from the date of their original employment."
In 1974 new awards were made, one each for flight hostesses and flight stewards. They each contained seniority provisions in terms similar to those of the earlier awards.
Similar provisions were included in the Airline Flight Attendants (Qantas) Award (Consolidated) 1986, an award that related only to female flight attendants. However, later in 1986 both this award and the 1974 stewards' award were varied by the insertion of seniority provisions that included a par (ix) that was identical to par (ix) of the 1993 award, except that the reference was to the Conciliation and Arbitration Commission rather than the Australian Industrial Relations Commission. It was the 1986 award, so varied, that Justice Boulton examined in his decisions of 7 November 1986 and 25 March 1989.
Mr Stevenson placed reliance on the circumstances surrounding the 1986 variations and tendered the transcript of the hearing of the Conciliation and Arbitration Commission out of which it arose. That hearing was conducted by Justice Boulton on 16 June 1986. The transcript reveals that the variations were made by consent, the consenting parties being Qantas and two forerunners of FAAA: the Australian International Cabin Crew Association ("AICCA") and AFAA. Mr A Tudehope for AICCA explained that the variations arose out of the amalgamation of the separate seniority lists for flight stewards and flight hostesses. He said "we have also tried to tidy up the clause just slightly". He referred to the places where amendments had been made. When he got to par (viii) of the existing awards, he commented that the paragraph had been broken up; he meant into the new (viii) and (ix). Nobody suggested that the change would affect the substance of the existing provision.
At the end of the hearing, Justice Boulton ordered that the awards be varied in the terms sought. He gave no reasons for decision, as would have been appropriate if he had regarded himself as making an order that changed the parties' rights. A formal order to that effect was entered on 11 August 1986.
In the absence of this history, I would be attracted to the construction of the provision suggested by counsel for the applicant and counsel for FAAA. As a matter of English, this is the better interpretation of the paragraph. A comma should have been inserted after the word "reinstated", if it was not intended that it be qualified by the words "following a successful appeal against dismissal". Moreover, although he puts the matter too highly, I see some merit in Mr Rothman's contention that an unqualified reading:
"would create an industrial absurdity in that, in circumstances where the seniority list is an extremely significant issue, an employer could 'reinstate' without recourse to any tribunal, the organisation or any of its members the latter two of whom would be significantly affected by such a reinstatement."
To some extent the force of this submission depends on the width of the word "reinstate", in the context of par (ix). Nevertheless, given the fact that other people are affected by a reinstatement decision, it would be understandable if the drafter of the paragraph had intended to limit the circumstances under which reinstatement affected seniority rights.
However, it seems clear that earlier versions of this provision did not limit the circumstances under which a reinstated employee could regain seniority. As Mr Stevenson pointed out, a flight steward or flight hostess who was "re-employed" by Qantas in that capacity commenced to accrue seniority only from the date of re-employment; the earlier service was disregarded. But there was an exception where the re-employment "constitutes reinstatement"; without qualification. It is true that the last sentence of the provision referred to decisions by a Board of Reference following a successful appeal against dismissal. But this was a deeming provision. It was not an exhaustive statement as to what constituted reinstatement. Such decisions were to be "considered as reinstatement". And, if it is permissible to have regard to the transcript of the hearing before Justice Boulton on 16 June 1986, it is clear that nobody intended to change that situation.
Counsel for FAAA contended that I am not entitled to have regard to that transcript. They cited three authorities in support of that contention. Chronologically, the first is a decision of Morling J in the Federal Court of Australia Re Hydro-Electric Commission (Tas) Carpenters & Painters Award 1979. It appears to be reported only in the Industrial Arbitration Service Current Review (1981) at 549. The case concerned cl 10(1) of the award, relating to industry and underground allowances. At 551 Morling J said: "(t)he primary task is to discover the meaning of cl 10(1), reading the award as a whole". He referred to the well-known comment of Street J in George A Bond & Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-504, with its reference to the fact that awards:
"frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draftsmanship which one expects to find in an Act of Parliament."
Morling J stated that he was "informed from the bar table that cl 10 was incorporated into the award by agreement between the parties to it". After discussing the proper interpretation of the award, his Honour added this observation:
"I have so far considered the question without reference to the history of the award. Counsel for the union argued that it was not permissible to look at the history of the award as the terms of it were so clear as not to give rise to ambiguity. I think there is sufficient ambiguity in the award to make it permissible to consider its history (see Pickard v John Heine & Son Ltd (1924) 35 C.L.R. at p.9) but I do not think the history assists the Commission's case. If anything, it supports the construction for which the union contends, as I shall attempt to show."
The reference in the brackets was to an observation by Isaacs
ACJ: "In interpreting documents, should there be any ambiguity, their history, as well as their subject matter, may be important."
The second case is a decision of the Full Federal Court, Electrical Trades Union of Australia v Waterside Workers' Federation of Australia (1982) 59 FLR 78. In order to construe the eligibility rule of the respondent Federation, the Court had to consider the meaning of the words "waterside worker". The members of the Court observed at 82 that the words must be given "the ordinary meaning which they bear generally among people concerned with industrial matters in relevant or related industries" and that "(t)he purpose of any permissible reference to extrinsic material ... must be to ascertain that ordinary meaning". Having said that, their Honours took into account provisions in various Commonwealth statutes referring to waterside workers, the form of the Federation's eligibility rule from time to time, reports of courts and commissions indicating what constituted a waterside worker in the view of a particular judge or Commissioner, the provisions of some awards, and relevant oral evidence. In connection with reports of courts and commissions, at 83 the Full Court sounded a warning:
"... we consider that considerable assistance is to be obtained from cases and decisions indicating what judges and Commissioners, experienced in industrial matters, have understood to constitute the identifying attributes of a waterside worker and from the approach adopted in Commonwealth statutes which provided part of the context for more recent amendments to the federation's eligibility provisions. On the other hand, for example, we think that less assistance is to be derived from the provisions of consent awards which were not primarily concerned with the scope of eligibility provisions and where the federation may, without opposition from an employer, have been seeking to extend the ambit of its members' activities ..."
Notwithstanding these observations about weight, the members of the Full Court did not suggest that reports of proceedings before courts and commissions were inadmissible. It seems they accepted that even a consent award might be considered, although it might provide minimal assistance.
The final case mentioned by counsel is Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444. This was a decision of Gray J concerning the meaning of the word "employees" in a certified agreement. The particular question was whether the word embraced casual employees. The respondent's case was that it did not. Its counsel contended that the word was at least ambiguous and tendered evidence as to the circumstances under which the agreement was made and the intentions of the company's negotiators as to its scope. Gray J held there was no ambiguity; even if there was, evidence of the negotiators' subjective intentions would not be admissible. Significantly, his Honour accepted that, if there were an ambiguity, evidence regarding surrounding circumstances would be receivable.
I do not think any of these decisions supports the contention put on behalf of FAAA. Paragraph (ix) of cl 26(a) of the award is ambiguous. Although I have expressed an opinion concerning its better interpretation, the position is unclear. It is always dangerous to put much weight on the presence or absence of commas, which are often used loosely. So I think it is permissible to have regard to any extrinsic material that shows the nature of the problem that the drafter was seeking to overcome. The situation is analogous to that concerning reference to Parliamentary debates, and particularly Ministers' Second Reading Speeches, in construing a statute. That practice is now sanctioned, in the Commonwealth sphere, by s 15AB(2)(f) of the Acts Interpretation Act 1901. However, long before there was legislation like that, it was accepted that courts could examine Hansard, at least to discover the mischief to which ambiguous legislation was addressed: see the comment of Kirby P in Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220 at 223 and the cases there collected.
In relation to awards, it is relevant to note Atwood Oceanics Australia Pty Ltd v Commissioner of Taxation (1989) 30 IR 58, a decision of Lee J in the Federal Court. At 64 his Honour referred to the accepted principles concerning the construction of industrial awards. He commented at 65:
"In the case of ambiguity it may be appropriate to look at the reasons, if any, for the decision of the tribunal to enact the award and to look at the history of the award's provisions."
Lee J cited a number of authorities for that statement, going back to Pickard v John Heine & Son.He also mentioned Knox v Grace Bros Holdings Ltd (1985) 8 FCR 497, a case in which the Full Federal Court specifically asked counsel to provide written submissions concerning the history of an award provision whose meaning was in dispute: see per Burchett J at 505.
I think the principle applied in these cases applies equally to a transcript of a proceeding in the Conciliation and Arbitration Commission giving rise to an award provision whose meaning is in doubt. Contrary to the submission of counsel for FAAA, I hold that I am entitled to have regard to what transpired at the hearing on 10 June 1986. I am not entitled to do this for the purpose of determining the meaning attributed to the paragraph by the parties represented at that hearing or by Justice Boulton but in order to understand the circumstances in which the variations were made and the problem that was being addressed.
Once that is done, it becomes immediately apparent that the variations were concerned with only two matters: amalgamating into one award provisions previously contained in two, and tidying up some presentational aspects. Nobody sought to change the substance of the previous award provisions. In this situation, par (ix) of the clause adopted that day by Justice Boulton - and so its successor, par (ix) of the present award - should be interpreted as reproducing the notion embodied in the 1971 and 1972 awards: any reinstatement constitutes an exception from the principle, embodied in par (viii), that re-employment causes a fresh commencement of accrual of seniority. For the paragraph to apply, it is not necessary that the reinstatement follow a "a successful appeal against dismissal".
The meaning of "reinstated"
As an alternative to the submission just discussed, counsel for FAAA contended that, in an industrial context at least, the word "reinstated" or its derivatives connotes a prior dismissal of the reinstated person by an employer, a revocation of the dismissal and payment for the intervening period. They said that continuity of employment, for all purposes, is fundamental to the notion of reinstatement. In support of this submission they cited The CCH Macquarie Dictionary of Employment and Industrial Relations and a decision of the Full Bench of the Australian Industrial Relations Commission, Printing and Kindred Industries Union v Vista Paper Products Pty Limited (1992) 9 CAR 10. The dictionary defines reinstatement as follows:
"the restoration of a former employee to his/her previous position after wrongful dismissal, demotion or transfer. Unlike re-employment (although the two words are sometimes used as if they were synonymous), reinstatement involves no loss of entitlements accrued as a result of service. Indeed, the continuous service of the employee is maintained without a break, and the employee is usually entitled to have the loss of earnings during the period when he/she was wrongfully dismissed made up."
The PKIU case concerned a Reinstatement Award. The members of the Full Bench took the opportunity to discuss the notion of reinstatement. They quoted from a judgment of the United Kingdom National Industrial Relations Court in Morris v Gestetner Ltd [1973] ICR 587 at 592:
"The power conferred by section 106(4) is to recommend 're-engagement' and not 're-instatement.' 'Re-instatement' is retroactive in effect. It involves a revocation of the dismissal and payment of wages for the intervening period. 'Re-engagement' leaves the dismissal unaffected and an intervening period of unemployment."
The Full Bench commented that a similar approach had been taken by the Industrial Commission of New South Wales in Australian International Pilots' Association v Qantas Airways Ltd (1987) 22 IR 436. At 441 the Commission referred to "reinstatement" being "restoration to the position formerly occupied or to one of similar status, a distinction having been drawn between that situation and re-employment". In support of a suggestion that "the notion of reinstatement comprehends some form of payment for the period of dismissal" the Full Bench cited a statement of Nathan J of the Victorian Supreme Court in Royal Children's Hospital v President of the Industrial Relations Commission (1989) VR 527 at 536 and the approach of Keely J of the Federal Court in Bowling v General Motors Holden Pty Ltd (1980) 42 FLR 309 at 325.
In response to this argument, counsel for Qantas and counsel for the third respondents referred to the use of the word "reinstated" in the order made by the Equal Opportunity Tribunal on 23 January 1995. They also pointed out that, in an early statement of agreed facts, the parties to this case all agreed that "25 of the Complainants [before the Tribunal] were reinstated by the First Respondent on or about 27 February 1995" (my emphasis).
The language used in the consent order is relevant to the question whether the third respondents were "reinstated" within the meaning of par (ix) of cl 23(a) of the award. But it cannot be regarded as decisive of the point. The parties were not addressing par (ix). Anyway, their choice of language cannot bind other parties. If the agreed re-engagement did not amount to reinstatement, other people having an interest in the matter are entitled to say so.
There is more force in Qantas' and the third respondents' reliance on the word used in the statement of agreed facts. All the present parties accepted that document. However, it does not appear that they were then addressing the present issue. The relevant sentence is part of a narrative of facts and immediately follows a reference to the Tribunal's order. I think the authors of the sentence intended to do no more than state when the Tribunal's order was carried into effect. The question whether the third respondents' re-engagements constituted reinstatement is a question this Court must determine for itself.
As the Court is concerned with the interpretation of an industrial award, it seems indisputable that the word "reinstated" must be construed by reference to its meaning in industrial parlance. And it is indisputable that, in an industrial context, maintenance of continuity of employment is a significant element in the concept of reinstatement. However, as the CCH Macquarie Dictionary definition itself acknowledges, the concept does not necessarily involve the payment of all benefits that would have accrued during the period off work. This understanding of the situation is reflected in s 170EE(1) of the Industrial Relations Act concerning reinstatement of employees dismissed from their employment in contravention of Division 3 of Part VIA of that Act. That subsection empowers the Court to make an order requiring the employer to "reinstate the employee" by reappointing the employee to the position the employee occupied immediately before termination, or another position on comparable terms and conditions. If such an order is made, under para (b) of the subsection, the Court may make such order as the Court thinks fit to maintain the continuity of the employee's employment and an "order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination". But none of these orders are automatic. They are to be made only "if the Court considers it appropriate in all the circumstances of the case". They generally are made, as the Court's decisions show. But the Act contemplates the possibility that they are not.
The agreement made on 23 January 1995 included several conditions concerned with the maintenance of the third respondents' continuity of employment. They were to be accorded seniority and staff travel benefits calculated by reference to their original commencement dates. They were accorded sick leave entitlements at the rate of seven days for each year of prior employment, but not their period of non-employment by Qantas. If they elected to repay any prior long service leave payments, they could accrue long service leave in respect of their earlier employment.
Having regard to these terms, it seems to me that the consent order provided for a reinstatement of the third respondents' employment rather than a re-employment. Although the order did not provide for payment of all benefits that the third respondents would have earned if they had been employed continuously, notably wages, it recognised the third respondents' prior service and provided benefits for them calculated by reference to that service. They were to be substantially better off than if employed by Qantas for the first time on 27 February 1995. It seems to me that it is not a misuse of industrial parlance to refer to these restorations of employment as reinstatements. And, if there is so, there is nothing in par (ix) of cl 23(a) to suggest to conclude that the third respondents were not "reinstated" within the meaning of that paragraph. It follows from this conclusion that each of the third respondents is a person falling within par (ix) of cl 23(a).
"Re-employed following a successful appeal against dismissal"
Counsel for the third respondents argued that each of them fell within the description of a person "re-employed following a successful appeal against dismissal". They did not argue that their clients were actually dismissed. They said the dismissals were constructive dismissals. In support of that submission they cited a number of American cases where people who left a position because of discriminatory treatment were held to have been constructively dismissed. I think there are difficulties in applying those cases to the notion of constructive dismissal, as it is understood in Australia. On the other hand, it may be possible to argue that some of the third respondents were actually dismissed. I have in mind those who actively, but unsuccessfully, sought not to be held to their election to retire at age 35. Their employment was terminated against their will.
Having regard to my view about reinstatement, it is not necessary for me to reach a firm conclusion about the matter of dismissal or as to whether the Tribunal decision can properly be described as "a successful appeal against dismissal". Whatever the position in relation to these matters, the third respondents fall within par (ix) of cl 23(a). They are entitled to seniority according to the dates of their original commencements of employment unless the Commission decides otherwise.
Orders
The appropriate way of disposing of the matter is for me to make a declaration to the effect that, upon the proper construction of the award, unless the Commission decides otherwise, each of the third respondents is entitled to seniority on the Flight Attendant Integrated Seniority List according to the date of her first day in training school.
I certify that this and the preceding forty (40) pages
are a true copy of the Reasons for Judgment
of the Honourable Chief Justice Wilcox.
Associate:
Dated: 7 November 1996
APPEARANCES
Counsel for the Applicant: R Goot
Solicitors for the Applicant: Toomey Pegg & Drevikovsky
Counsel for the First Respondent: J Stevenson
Solicitors for the First Respondent: Blake Dawson Waldron
Counsel for the Second Respondent: S Rothman SC and M J Walton
Solicitors for the Second Respondent: Jones, Staff & Co
Counsel for the Third Respondent: J Basten QC
Solicitors for the Third Respondent: Henry Davis York
Dates of hearing: 23, 23, 24 and 25 July 1996
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