Barlow v Qantas Airways Ltd - [1997] IRCA 271

DECISION NO:271/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - Appeal from decision of single judge - Interpretation of award - Seniority depending 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 - Whether attendants were “reinstated” - Whether reinstatement only arises after dismissal

Australian Iron & Steel v Dobb (1958) 98 CLR 586
Orange City Bowling Club Ltd v Federated Liquor and Allied Industries Employees’ Union of Australia, NSW Branch [1979] AR 90
Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers’ Guild re dismissal [1979] AR(NSW) 329

ROSEMARY ANN BARLOW v QANTAS AIRWAYS LIMITED & ORS

NI 2275 of 1996

LEE, MOORE, MARSHALL JJ

SYDNEY

19 SEPTEMBER 1997

IN THE INDUSTRIAL RELATIONS ) General Distribution

COURT OF AUSTRALIA ) NI 2275 of 1996
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN: ROSEMARY ANN BARLOW

Appellant

AND: QANTAS AIRWAYS LIMITED
First Respondent

AND: FLIGHT ATTENDANTS’ ASSOCIATION
OF AUSTRALIA

Second Respondent

AND: PAMELA BLACKET & ORS

Third Respondents

JUDGE:         Lee, Moore, Marshall JJ
PLACE:         Sydney
DATE:           19 September 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal is dismissed

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE INDUSTRIAL RELATIONS ) General Distribution

COURT OF AUSTRALIA ) NI 2275 of 1996
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN: ROSEMARY ANN BARLOW

Appellant

AND: QANTAS AIRWAYS LIMITED

First Respondent

AND: FLIGHT ATTENDANTS’ ASSOCIATION
OF AUSTRALIA

Second Respondent

AND: PAMELA BLACKET, FAYE BROWN,

SUSAN BURGESS-STITT, ANNE CAMPBELL,
JESSICA DAVIES, MARGUERITE DAVIS,
MARGARET GLIET, URSULA KAISER,
MEGAN LAURENCE, LORIS LAWSON,
SUZANNE LOVE-DAVIES, CEINY MAYBURY,
ANNE McDONNEL, 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

JUDGE: Lee, Moore, Marshall JJ

PLACE: Sydney

DATE: 19 September 1997

REASONS FOR JUDGMENT

Lee and Moore JJ
We have read the reasons for judgment of Marshall J in a draft form. They contain a summary of the facts giving rise to these proceedings and the reasons for judgment of the Chief Justice. They also contain the relevant provisions of the Airlines Flight Attendants’ (Qantas) Award 1993 (“the 1993 award”) and relevant extracts from the Airline Flight Hostesses (Qantas) Award 1974 (“the 1974 hostesses award”) and the Airline Flight Stewards (Qantas) Provisional Award 1974 (“the 1974 stewards award”). We do not repeat the summaries or the award provisions.

We agree that having regard to the manner in which a clause in the same terms as clause 23(a)(ix) in the 1993 award was first introduced into applicable awards in 1986, clause 23(a)(ix) was intended to apply where a flight attendant is reinstated, as well as when he or she is re-employed following a successful appeal against dismissal. That…

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.

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Details

Case: [1997] IRCA 271
Decision Date: 19 September 1997

CaseChat Overview and Summary

The appeal before the court involved Barlow, an employee, against Qantas Airways Ltd, her former employer. The central issue was the interpretation of an award regarding seniority rights for employees who were reinstated or re-employed following a successful appeal against dismissal. Barlow had been a flight attendant for Qantas before being forced into retirement at the age of 35 due to what she claimed were discriminatory practices. The dispute centred around whether her seniority rights should be calculated based on the date of her initial employment or her reinstatement, as stipulated by the award.

The legal issues the court needed to address were the precise interpretation of the award clause in question and its application to Barlow's specific circumstances. The award stated that seniority should depend on the date of commencement of employment, but included an exception for those "reinstated or re-employed following a successful appeal against dismissal." The court had to determine if Barlow's situation fell within this exception and, if so, how this affected her entitlement to seniority.

The court found that the exception in the award applied to Barlow's case, as she had been reinstated following a successful appeal against her dismissal. The court emphasised the importance of interpreting awards in a manner that aligns with their purpose and the context in which they were created. It ruled that since Barlow had been reinstated following a successful appeal, her entitlement to seniority should be calculated from the date of her reinstatement rather than her initial employment. This interpretation was deemed fair and in line with the principles of equity and justice.

The final orders of the court were that Barlow's seniority rights would be calculated based on the date of her reinstatement, thereby granting her the seniority benefits she was entitled to under the award. This decision provided clarity on the application of the award's provisions in similar future cases.

Orders