Barlow v Qantas Airways Limited - [1996] IRCA 526

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barlow v Qantas Airways Limited

Details

AGLC: Barlow v Qantas Airways Limited [1996] IRCA 526
Case: [1996] IRCA 526
Decision Date: 07 November 1996

CaseChat Overview and Summary

In the Federal Court of Australia, Barlow, a former flight attendant, brought an action against Qantas Airways Limited. The dispute arose from Barlow’s retirement at the age of 35 due to the company’s discriminatory practices and subsequent re-employment following a successful appeal against her dismissal. Barlow sought clarification on the interpretation of the relevant award's seniority rule, which provided that seniority depended on the date of commencement of employment, with an exception for those reinstated or re-employed following a successful appeal against dismissal. The case centred on whether Barlow’s re-employment entitled her to a seniority date that aligned with her original employment commencement date.

The central legal issue before the court was the interpretation of the seniority rule within the award. Specifically, the court needed to determine if the exception for those reinstated or re-employed following a successful appeal against dismissal applied to Barlow’s situation and, if so, how it should be applied. The court also had to consider whether the award’s language created an ambiguity that required an interpretation favouring the employee. Furthermore, the court needed to assess whether Qantas’s practices were discriminatory and if those practices justified any exceptions to the seniority rule.

The court held that the exception for those reinstated or re-employed following a successful appeal against dismissal did apply to Barlow’s situation, as she was re-employed after successfully appealing her dismissal. The court found that the language of the award did not create an ambiguity that would require interpretation in Barlow’s favour. The court emphasised that the exception was intended to cover those who were re-employed following a successful appeal, but it did not automatically reinstate their previous seniority. Instead, it provided for a more limited adjustment to their seniority. The court ruled in favour of Qantas, finding that Barlow’s re-employment did not entitle her to the seniority date she sought.

The final orders of the court dismissed Barlow’s claims, affirming that the seniority rule did not automatically reinstate the seniority she had prior to her retirement. The court upheld the award’s interpretation and found that Qantas had not acted unlawfully in its practices. This decision clarified the scope of the exception within the award and confirmed that re-employment following a successful appeal did not equate to a full reinstatement of previous employment terms.

Orders