Griffin v Australian Postal Corporation

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether employment terminated at initiative of employer or by effluxion of time - whether termination for the prohibited reason of age - whether applicant’s employment terminated at age 65 by legislative prescription - whether award provision limiting duration of applicant’s employment to age 65 was inconsistent with requirements of Termination of Employment Convention - whether termination constituted discrimination contrary to Part 4E Anti-Discrimination Act 1977 (NSW)

Industrial Relations Act 1988 (Cth) ss 3, 170CA, 170CB, 170DE, 170DF, 170EA, 170HA, 416, Sch 10, Arts 4 & 5, Sch 11, Art 5
Workplace Relations Act 1996 (Cth) s 416
Australian Postal Corporation Act 1989 (Cth) ss 3, 89, 90, 90A, 90B
Industrial Relations Reform Act 1993 (Cth) ss 170HA
Postal Services Act 1975 (Cth) ss 3, 41, 42, 57
Postal Services Amendment Act 1988 (Cth) ss 5, 12, 28
Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 (Cth) s 75
Anti-Discrimination Act 1977 (NSW) Part 4E

Australia Post General Conditions of Employment Award 1989 cl 36(a)(iii); cl 5

ILO 67th Session 1981, Report VIII(1) Termination of Employment at the Initiative of the Employer
ILO 1995 General Survey on the Termination of Employment Convention (N0 158) and Recommendation (No 166) 1982

State of Victoria v Commonwealth of Australia (1996) 187 CLR 416 - considered
Selvachandran v Peteron Plastics (1995) 62 IR 371 - cited
Qantas Airways Limited v Christie (1998) 152 ALR 365 - considered
Fisher v Edith Cowan University (1997) 72 IR 464 - cited
Grout v Gunnedah Shire Council (1994) 1 IRCR 143 - cited
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 - cited
Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 200 - cited
T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 - applied

STANLEY EDWARD GRIFFIN v THE AUSTRALIAN POSTAL CORPORATION
NI 4259 of 1995

SPENDER, VON DOUSSA & MARSHALL JJ
BRISBANE (heard in Sydney)
1 JUNE 1998

IN THE INDUSTRIAL RELATIONS COURT OF

AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 4259 of 1995

BETWEEN:

STANLEY EDWARD GRIFFIN
Applicant

AND:

THE AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE(S):

SPENDER, VON DOUSSA & MARSHALL JJ

DATE OF ORDER:

1 JUNE 1998

WHERE MADE:

BRISBANE (heard in Sydney)

THE COURT ORDERS THAT:

The application be dismissed.

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

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 4259 of 1995

BETWEEN:

STANLEY EDWARD GRIFFIN
Applicant

AND:

THE AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE(S):

SPENDER, VON DOUSSA & MARSHALL JJ

DATE:

1 JUNE 1998

PLACE:

BRISBANE (heard in Sydney)

REASONS FOR JUDGMENT

SPENDER J:
The facts and some of the relevant statutory provisions are contained in the reasons for judgment of Marshall J, which relieves me of the need to repeat them. There is, however, no express reference in his Honour’s reasons to Article 3 of the Termination of Employment Convention (the English version of which is set out in Schedule 10 of the Workplace Relations Act 1996) which, in the view I take of the matter, is central to this appeal. Article 3 provides:

“For the purpose of this Convention the terms ‘termination’ and ‘termination of employment’ mean termination of employment at the initiative of the employer.”

With the addition of that reference, I am able to go directly to the questions on the appeal and state shortly my reasons for judgment.

First, I agree, for the reasons given by Marshall J, that the provisions of Part 4E of the Anti-Discrimination Act 1977 (NSW) do not apply, if cl 36A(iii) of the Australia Post General Conditions of Employment Award 1989 is valid. Next, I agree that the Australia Post General Conditions of Employment Award 1989 (‘the Award’) made by the Australian Industrial Relations Commission on 4 September 1989 applied to Mr Griffin, as a member of an organisation of employees party to that Award, and to Australia Post. The Award applied from 13 July 1989.

Clause 36 of the Award provided as follows:

“ A
(i)...
(ii)...
(iii)an officer may continue in the employment of Australia Post until attaining the age of 65 years but is entitled to retire from employment on or after attaining the age of 55 years.

Unless this provision in the Award was invalid at the time Mr Griffin attained the age of 65 years, it defines the term of Mr Griffin’s employment with Australia Post. If cl 36A(iii) is valid, in my judgment the relationship of employer and employee between Mr Griffin and Australia Post ended by operation of law on his 65th birthday.

I note in this regard that the mere fact that cl 36A(iii) requires Mr Griffin’s employment to come to an end on his 65th birthday does not require the conclusion that “age” is “the” or “a” reason for the termination. Gaudron J noted at p 369 of her reasons in Qantas Airways Limited v Christie [1998] 152 ALR 365 as follows:

“...it may be noted that the mere fact that an employer requires or stipulates for employment to come to an end when an employee reaches a certain age does not necessarily direct the conclusion that, if employment is terminated when he or she reaches that age, age is the reason for its termination.”

Further, in this case, if “age” be the reason for the employment relationship coming to an end, there was no requirement or stipulation by the employer that the employment came to an end at that time: it was the requirement of a clause of an applicable Award.

I note also that it is somehow contended that cl 36A(iii) constituted an impermissible discrimination of the ground of “age”. I have difficulty in seeing that a provision which applies to every officer of Australia Post, and which in the fullness of time, takes effect in relation to each officer of Australia Post, can constitute discrimination.

So far as the central question on this appeal is concerned, s 412(1)(a) of the Industrial Relations Act 1988 (‘the Act’) conferred jurisdiction upon the Industrial Relations Court “with respect to matters arising under [the Act] in relation to which...applications may be made to it under [the Act]”.

Section 170EA(1) provided that:

“A person (‘the employee’) may apply to the Court for a remedy in respect of termination of his or her employment.”

Section 170DE(1) then provided:

“An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”

No reason based on s 170DE is relevant in the present application.

So far as is presently material, s 170DF provided:

“1. An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
...
(f)     ...
        ...age...;
        ...”

Gummow J noted in Qantas Airways Limited v Christie (supra) at p 390:

The prohibitions in s 170DE(1) and s 170DF are concerned with termination of employment for reasons unconnected with the previously fixed term or duration of the employment. There is no prohibition upon the entry into contracts providing for employment over a specified period.”

There is no remedy under the Act for a termination of employment that is not a termination at the initiative of the employer. This Court does not have jurisdiction under the Act if the termination of employment is not a termination at the initiative of the employer.

In my judgment, when a termination comes about as a consequence of a valid Award provision, that termination is not a termination at the initiative of the employer.

The requirement in s 170DF that “an employer must not terminate an employee’s employment” was the subject of discussion in the joint judgment of five members of the High Court in Victoria v The Commonwealth (‘the Industrial Relations Act Case’) (1996) 187 CLR 416.

The question in issue was identified by Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in their Honours’ statement at 519:

“The non-redundancy provisions called into question by the primary argument of the plaintiff States are ss 170DB, 170DC, 170DE(1) and 170DF.”

In that context, their Honours said at 520:

“As a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires. Rather, employment comes to an end by agreement, or, where the term is fixed by award or statute, by operation of law.”
There is nothing in the Act to suggest that the words ‘[a]n employer must not terminate an employee’s employment’ are to be construed other than in accordance with their ordinary meaning. So construed, they do not apply to the situation where employment comes to an end because its term has expired. To put the matter another way, the prohibitions are concerned with termination for reasons unconnected with the term of employment. And that is manifestly clear when regard is had to ss 170DC, 170DE(1) and 170DF. The prohibitions effected by those sections are directed, respectively, to termination for a specified reason and termination for one or more specified reasons, none of which includes the expiry of the employee’s term of appointment.”

In my respectful opinion, the judgment of the High Court in Victoria v The Commonwealth (supra) requires the conclusion that the prohibition in s 170DF has no application when the termination of employment comes about, not at the initiative of the employer, but because of the expiry of the employee’s term of employment.

A reference should be made to the policy questions that are involved. Kirby J, in his dissenting judgment in Qantas v Christie (supra) offered the opinion at p 411:

“Compulsory retirement by reference to age is the principal mischief at which the inclusion of ‘age’ in the list of prohibited grounds of discrimination was targeted.”

No authority is cited for this statement, which, in my respectful view, is inconsistent with the provisions of cl 5A of Recommendation 166, recorded in Schedule 11 of the Act. That clause provides:

“In addition to the grounds referred to in Article 5 of the Termination of Employment Convention 1982, the following should not constitute valid reasons for termination:
(a) age, subject to national law and practice regarding retirement:
...” [emphasis added]

That there is a complex matrix of social policies interacting and conflicting in relation to retirement ages is apparent from the survey material referred to by Marshall J in his judgment.

It cannot be doubted that an open ended entitlement to every worker (subject to questions such as conduct and capacity) would, in a world of finite job opportunities, have a serious social impact on the rights of younger members of a society to enter the workplace and have meaningful employment. A sentiment for the rights of older citizens should not be permitted to obscure the fact that questions of retirement have profound implications not only for the retirees but for others.

It was accepted in argument that cl 36A(iii) of the Award, if valid, applied to bring Mr Griffin’s employment to an end on his 65th birthday. It follows that unless the Industrial Relations Reform Act 1993 and the insertion of s 170HA into the Act on 30 March 1994, had the effect that cl 36A(iii) of the Award was thereafter invalid, there was a termination of Mr Griffin’s employment by operation of law, and there was no termination of Mr Griffin’s employment at the initiative of the respondent.

Section 170HA provides:

“On and after 26 February 1994, when the Termination of Employment Convention takes effect, any award or order of the Commission that is inconsistent with the requirements of that Convention does not have effect to the extent of the inconsistency.”

The statement of Marshall J in his reasons that “an award provision requiring an employee to cease his or her employment on the grounds that he or she has attained a particular age is inconsistent with the convention, in that it condones the termination of employment for a reason which is not a valid one”, in my respectful view, begs the fundamental question, which is whether such a provision in truth effects a termination of employment at the initiative of the employer. [emphasis added]

A prohibition contained in the Convention on termination for reason of age has no application, in my opinion, to the situation where there has not been a termination of employment at the initiative of the employer, but is the termination of that employment by virtue of the provisions of the Award. Further, a refusal to re-employ an employee after the employee’s employment has ended, is not a termination of that employee’s employment, at the instigation of the employer, by reason of age. I respectfully agree with the observations of McHugh J in Qantas v Christie:(supra) at pp 381-2:

“Qantas’ refusal to employ him past that age was not a termination of employment but a refusal to re-employ him after his employment ended. Nothing in the Act requires an employer of labour to employ a person who is over age 60. To the extent that such a refusal constitutes discrimination on the ground of age, the remedy of the person affected lies in the general anti-discrimination statutes that are in force in various jurisdictions or not at all.
A finding that Qantas did not terminate Mr Christie’s employment does not make the prohibition on age discrimination in s 170DF(1) of the Act meaningless. The argument that ‘there would be no work for s 170DF(1) to do’ unless a finding of discrimination is made in this appeal is unpersuasive. Many examples can be given of cases of termination that would offend against the age discrimination clause of the Act. Probably, the commonest case of such discrimination is one where the employee is terminated because he or she is ‘too old’.
Accordingly, the prohibition on discrimination in s 170DF(1) is inapplicable because Qantas did not terminate Mr Christie’s employment.”

The crucial assertion in Mr Griffin’s case is that there is an inconsistency between cl 36A(iii), and the Termination of Employment Convention, and therefore by operation of s 170HA, cl 36A(iii) is invalid. That assertion requires that cl 36A(iii) effects a termination of employment of the officer at the initiative of the employer.

In my opinion, the clause does not have that consequence. As the High Court noted in Victoria v The Commonwealth (supra) in the passage at 520 earlier set out:

“...employment comes to an end,...where the term is fixed by award,...by operation of law.”

Clause 36A(iii) is therefore valid. The application should be dismissed.

If, contrary to my judgment, cl 36A(iii) was rendered invalid by the operation of s 170HA of the Act, it would be necessary to consider the terms of Mr Griffin’s employment, as defined by the “first” and “second” determinations described in the reasons of von Doussa J. I respectfully agree with his Honour’s reasons for concluding that if Mr Griffin’s employment did not come to an end by force of the age term imposed on his employment by the Award, it came to an end by force of the age term imposed on his employment by the determinations.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 1 June 1998

IN THE INDUSTRIAL RELATIONS

COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 4259 of 1995

BETWEEN:

STANLEY EDWARD GRIFFIN
APPLICANT

AND:

THE AUSTRALIAN POSTAL CORPORATION
RESPONDENT

JUDGES:

SPENDER, VON DOUSSA & MARSHALL JJ

DATE:

1 JUNE 1998

PLACE:

BRISBANE (heard in Sydney)

REASONS FOR JUDGMENT

VON DOUSSA J: On 22 July 1981 Mr Griffin was appointed “an officer” of the respondent. That appointment made him a permanent employee. On the eve of his 65th birthday, 17 March 1995, his employment with the respondent ended. Historically, the employment of an officer in the respondent’s service ceased upon the officer attaining the age of 65 years. Mr Griffin did not want his employment to end when he turned 65. He commenced proceedings under s 170EA of the Industrial Relations Act 1988 (Cth) (“the IR Act”) alleging that his employment had been terminated unlawfully. The application was referred by a single judge to be heard and determined by a Full Court.

The name of the IR Act has since been amended to the “Workplace Relations Act 1996”, but as this case is governed by the provisions of the Act before that amendment I shall refer to it as the IR Act.

Section 170DF of the IR Act provides that an employer must not terminate an employee’s employment for any one or more of a number of specified reasons, including “age”; para 170DF(1)(f). Sub-section 170DF(2) provides that para 170DF(1)(f) does not prevent age from being a reason for terminating employment if the reason is based on the inherent requirements of a particular position. In the present case it is not suggested that s 170DF(2) has any application.

At all times material to this action, s 170EA provided that an employee could apply to the Industrial Relations Court of Australia “for a remedy in respect of termination of his or her employment”. In the IR Act “termination” had the same meaning as in the Termination of Employment Convention 1982 (“the Termination Convention”). Article 3 of the Termination Convention provides:

“For the purpose of this Convention the terms ‘termination’ and ‘termination of employment’ mean termination of employment at the initiative of the employer.”

A “termination of employment at the initiative of the employer” occurs where the termination results directly or consequentially from an act of the employer: Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 200, especially at 205-206.

The respondent contends that Mr Griffin’s employment was not terminated at the initiative of the employer, but came to an end automatically as it was a term of his employment that upon attaining the age of 65 years he would cease to be an officer (“the age term”). The question before this Court is whether the Court has jurisdiction to entertain Mr Griffin’s application under s 170EA. In other words, the question is whether his employment was terminated at the initiative of the respondent, or, as the respondent contends, it came to an end automatically because of the age term. If the employment was not terminated at the initiative of the employer the Court does not have jurisdiction.

The background circumstances and much of the relevant legislation is set out in the judgment of Marshall J who has traced the legislative amendments which have occurred since Mr Griffin was appointed an officer under the provisions of the Postal Services Act 1975 (“the 1975 Act”) by the respondent, then named the Australian Postal Commission. I shall not again repeat the statutory provisions which are set out in his judgment. Similar statutory regimes were considered in Hudson v Australian Telecommunications Corporation (1990) 27 FCR 97 and in Roderick v Australian Telecommunications Commission (1991) 40 IR 217.
Section 46(1) of the 1975 Act provided that officers held office on such respective terms and conditions as the respondent determined. The information before this Court does not contain determinations made under that section which would have applied to Mr Griffin. Section 57(2) of the 1975 Act provided that an officer who attained the age of 65 years ceased to be an officer. In my opinion the consequence of s 57(2) was that it imposed a term on which Mr Griffin held office, in addition to other terms and conditions determined under s 46(1), namely the age term.

Pursuant to s 28 of the Postal Services Amendment Act 1988 (“the 1988 Act”), which commenced on 30 June 1989, Mr Griffin continued to be employed by the respondent “as if (he) had been engaged by the Corporation under section 41 of the Principal Act as amended by this Act”.

Section 41(2) of the Principal Act as amended provided that “the terms and conditions of employment shall be determined by the Corporation”.

By instrument dated 28 June 1989 (the “first determination”) the respondent made a determination under s 41(2) which relevantly provided:

“...
(2). The terms and conditions of employment applicable from the proclamation date [i.e. 30 June 1989] to staff employed by the Corporation after that date and staff of the Corporation continued in employment under Section 28 of the Postal Services Amendment Act 1988 shall be:
(a)in respect of officers - the terms and conditions applicable to an officer immediately before the proclamation date;

...
(3). A reference in Paragraph 2 to the terms and conditions in force immediately before the proclamation date is a reference to terms and conditions applicable under:
(a)the Postal Services Act 1975, and the Postal Regulations, as in force immediately before the proclamation date...”

This determination had the effect of imposing as a term of his employment the age term.

On 1 July 1989 the Australian Postal Corporations Act 1989 (“the 1989 Act”) came into force. By s 72 of the Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 (“the transitional Act”) each person who immediately before 1 July 1989 was an employee of the respondent continued to be employed by it as if the person had been engaged under s 89 of the 1989 Act, that is, on such terms and conditions as shall be determined by the respondent. By further instrument dated 28 June 1989 the respondent made a determination (the second determination) under s 89 that the terms and conditions of employment applicable to staff whose employment continued under s 72 of the transitional Act from 1 July 1989 shall be the terms and conditions determined under the first determination. Thus, from 1 July 1989 it continued to be a term of Mr Griffin’s employment that his employment as an officer would cease upon him attaining the age of 65 years.

On 4 September 1989 the Australian Post General Conditions of Employment Award 1989 was made, with retrospective application from 13 July 1989. It is common ground that the Award is binding on the respondent and Mr Griffin as a member of an organisation that is a party to the Award.

Clause 5 of the Award provides:

“5 - INCONSISTENCY
(a) This award shall be read in conjunction with the Australian Postal Corporation Act 1989 as may be amended from time to time, and the determinations made thereunder from time to time.
(b) Where the said Act and determinations are inconsistent with the provisions of this award, the latter shall prevail.”

Clause 36 of the Award provides:

“36 - STAFF
(a)(i) Australia Post may appoint a person as an officer, or transfer or advance/promote an officer within Australia Post, provided that such appointments, transfers or advancements/promotions are made in accordance with the provisions of this award.

(ii)An officer will be engaged on a full-time or part-time basis, where prescribed by the relevant specific conditions of employment award/agreement.

(iii)An officer may continue in the employment of Australia Post until attaining the age of 65 years but is entitled to retire from employment on or after attaining the age of 55 years.”

Section 57(1) of the 1975 Act as amended by the Postal and Telecommunications Amendment Act 1983 had provided that an officer who had attained the age of 55 years was entitled to retire, but could continue employment as an officer until attaining the age of 65 years. Sub-clause 36(a)(iii) of the Award makes similar provision, but does not repeat the emphatic terms of s 57(2) of the 1975 Act that an officer who attains the age of 65 years ceases to be an officer. Nevertheless, I consider that sub-clause 36(a)(iii) means that an officer may continue in the employment of the respondent until attaining the age of 65 years, but not thereafter.

Sub-clause 36(a)(iii) is not inconsistent with the first and second determinations insofar as they had the effect of imposing the age term on Mr Griffin’s employment. I consider the age term continued to be a term of Mr Griffin’s employment after the Award came into force.

In my opinion the age term continued to be a term of Mr Griffin’s employment imposed by the Award and by the first and second determinations notwithstanding the commencement of Division 3 of Part VIA of the IR Act on 30 March 1994.

Section 170HA of the IR Act, which is in Division 3 of Part VIA, provides:

“170HA On and after 26 February 1994, when the Termination of Employment Convention takes effect, any award or order of the Commission that is inconsistent with the requirements of that Convention does not have effect to the extent of the inconsistency.”

Articles 4 and 5 of the Termination Convention do not refer to “age” as a reason that does not constitute a valid reason for termination of the employment of a worker. It is the Termination of Employment Recommendation 1982 known as Recommendation 166 which provides that “age, subject to national law and practice regarding retirement” should not constitute a valid reason for termination: see clause 5a. In my opinion sub-clause 36(a)(iii) of the Award is not inconsistent with the Termination Convention. The IR Act recognises the existence of both the Termination Convention and Recommendation 166: see s 170CA(1) of the IR Act. However, s 170HA is specific in its prescription that any award or order of the Commission does not have effect to the extent of inconsistency with the Termination Convention. Inconsistency with Recommendation 166 is not the subject matter of s 170HA.

Moreover, even if it were permissible to construe s 170HA and the Termination Convention in a way that gave rise to an inconsistency with sub-clause 36(a)(iii), so that sub-clause 36(a)(iii) no longer has effect insofar as it provides that employment of an officer upon attaining the age of 65 years ceases, the first and second determinations would continue to impose the age term on Mr Griffin’s employment. The determinations, made under the provisions of the 1988 Act and the 1989 Act respectively are not awards or orders of the Commission, and are outside the scope of s 170HA of the IR Act.

In my opinion on 17 March 1995 it was a term of Mr Griffin’s employment that his employment as an officer with the respondent would cease on him attaining the age of 65 years.

In the event that the Court concluded that the age term continued to be a term of the employment of Mr Griffin on 17 March 1995, Mr Griffin sought to invoke the provisions of Part 4E of the Anti-Discrimination Act 1977 (NSW) (“the NSW Act”). Part 4E of the NSW Act came into force on 1 January 1991. Pursuant to s 49ZU(1), from 1 January 1993 the Act is expressed to apply to and for the benefit of all employees in New South Wales (subject to exceptions not here relevant). It is common ground that Mr Griffin’s contract of employment was formed in New South Wales, and that his employment with the respondent occurred within the State of New South Wales.

Sections 49ZV and 49ZW provide:

“49ZV. It is unlawful for a person:
(a) to retire an employee from employment; or

(b) to require an employee to retire from employment; or

(c) to threaten to retire an employee from employment; or

(d)to engage in conduct with a view to causing an employee to retire from employment,

on the ground of the employee’s age.
49ZW. (1) A provision of an Act or statutory instrument which:
(a) relates to a person employed in the public sector; and

(b)requires the person to retire from, or to vacate, office on or after reaching a specified age,

is of no effect if, under this Part, it is unlawful for the person to be retired from employment.
(2) ...
(3) ...”

It is contended on Mr Griffin’s behalf that these provisions of Part 4E of the NSW Act had operation in respect of his employment on 17 March 1995, and accordingly that it was unlawful for the respondent to require Mr Griffin to cease employment on attaining the age of 65 years. It is further contended that to do so constituted an act on behalf of the respondent that amounted to a termination of Mr Griffin’s employment at the initiative of the employer.

If I am correct in my conclusion that clause 36(a)(iii) of the Award continued to operate in respect of Mr Griffin’s employment, that provision of the Award, as it operated on 17 March 1995, would be directly inconsistent with Part 4E of the NSW Act, insofar as the NSW Act sought to render unlawful the age term. To the extent of that inconsistency, the Award provision prevails under s 109 of the Constitution: General Motors-Holden’s Ltd v Di Fazio (1979) 141 CLR 659 at 670 and Reg v Industrial Court of South Australia; ex parte General Motors-Holdens Pty Ltd (1975) 10 SASR 582.
On the other hand, if Marshall J is correct in his conclusion that sub-clause 36(a)(iii) of the Award ceased to have effect insofar as it imposed the age term after s 170HA of the IR Act came into operation, I consider an age term continued as a term of Mr Griffin’s employment by force of the first and second determinations. The determinations are not in themselves “a law of the Commonwealth” within the meaning of those words in s 109 of the Constitution; ex parte McLean (1930) 43 CLR 472 at 484. However, the provisions of the 1988 Act and the 1989 Act, which provide the authority to make the determinations, laid down regimes intended to prescribe completely the terms and conditions of employment of the respondent’s employees. The exercise of the power by the respondent to determine the terms and conditions of employment engaged the operation of the provisions of the 1988 Act and the 1989 Act, and those provisions operate to the exclusion of any inconsistent State law; see The State of Western Australia v The Commonwealth (1995) 183 CLR 373 at 473. In T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 at 182 the High Court said:

“The theory upon which the operation of State law gives way in favour of an award providing an inconsistent industrial regulation imputes to the Conciliation and Arbitration Act an intention to confer power upon the arbitrator to make on a subject of dispute an exhaustive determination containing an industrial regulation that, on the subject with which it deals, will cover the ground to the exclusion of any different or further provision.”

In my opinion by analogy this reasoning applies in respect of determinations made by the respondent under the 1988 Act and the 1989 Act to regulate the employment of its employees. The Conciliation and Arbitration Act was an Act of the Commonwealth Parliament passed in exercise of its power under s 51(xxxv) of the Constitution. Commonwealth Acts relating to postal services are made in exercise of its power under 51(v) of the Constitution: Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 571-2 per Latham CJ. Even if sub-clause 36(a)(iii) does not have full effect, I consider that the provisions of Part 4E of the NSW Act relied on by Mr Griffin are inconsistent with the provisions of the 1988 Act and the 1989 Act which are intended to establish a comprehensive regime for the determination of the terms and conditions of the respondent’s employment which covers the field.

The 1989 Act was amended by the Australian Postal Corporation Amendment Act 1994 which inserted a new Part 7A entitled “APPLICATION OF STATE AND TERRITORY LAWS”. Included in Part 7A is s 90A which provides:

“90A. For the purposes of the laws of the Commonwealth, or of a State or Territory, Australia Post is not entitled to any immunity or privilege of the Commonwealth except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of the State or Territory.”

It is contended on Mr Griffin’s behalf that s 90A has the effect of applying Part 4E of the NSW Act to the respondent, and thereby removes any inconsistency between the law of the Commonwealth and Part 4E of the NSW Act. I do not agree. The introduction of Part 7A was part of a package of competition reforms to the postal services monopoly maintained by the respondent. Section 90A withdraws immunities and privileges which might otherwise apply to the respondent as an instrumentality of the Commonwealth, that is it withdraws the prerogatives of the Crown arising from the exercise of the executive power vested in the Commonwealth by s 61 of the Constitution. The executive power vested in the Commonwealth by s 61 of the Constitution is capable of statutory modification: Re Residential Tenancies Tribunal of New South Wales; ex parte Defence Housing Authority (1997) 146 ALR 495 at 497, and s 90A has this purpose. Section 90A would, for example remove the fiscal rights of the Crown in the right of the Commonwealth: The Commonwealth v Cigamtic Pty Ltd (In Liquidation) (1962) 108 CLR 372. However, I do not consider that the operation of s 109 of the Constitution gives rise to “any immunity or privilege of the Commonwealth” within the meaning of s 90A of the 1989 Act.

For these reasons I do not consider that Part 4E of the NSW Act assists Mr Griffin.

In The State of Victoria v The Commonwealth (1996) 187 CLR 416 at 519-520 Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said:

“It is also necessary to consider whether, in terms, the prohibitions in ss 160DB, 170DC, 170DE(1) and 170DF impair the right of the States to determine ‘the term of appointment [of those whom they wish to employ]’ Re Australian Education Union (1995) 184 CLR 188 at 232. The relevant words of each prohibition are that ‘[a]n employer must not terminate an employee’s employment’. In the case of s 170DC, the prohibition is elaborated by reference to a specific reason and, in the case of ss 170DE(1) and 170DF, by reference to specific reasons. As a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires. Rather, employment comes to an end by agreement, or, where the term is fixed by award or statute, by operation of law.
There is nothing in the Act to suggest that the words ‘[a]n employer must not terminate an employee’s employment’ are to be construed other than in accordance with their ordinary meaning. So construed, they do not apply to the situation where employment comes to an end because its term has expired. To put the matter another way, the prohibitions are concerned with termination for reasons unconnected with the term of employment. And that is manifestly clear when regard is had to ss 170DC, 170DE(1) and 170DF. The prohibitions effected by those sections are directed, respectively, to termination for a specified reason and termination for one or more specified reasons, none of which includes the expiry of the employee’s term of appointment.”

It would appear to follow from these observations on the operation of the IR Act that Mr Griffin’s employment came to an end by operation of law, that is by operation of the age term in the Award and the determinations, or alternatively in the determinations alone.

In Qantas Airways Limited v Christie [1998] 152 ALR 365 at paras 62-65, McHugh J, after referring to the above passage from Victoria v The Commonwealth, and also to Mohazab v Dick Smith Electronics Pty Ltd said (at paras 65 and 67):

“Accordingly, Qantas did not terminate Mr Christie’s employment. After the age of 60, Mr Christie was unable to remain in the employment relationship because the terms of the 1974, 1981, and 1991 letters were incorporated into his contract by virtue of par 19 of the original conditions of employment... .
Upon reaching 60, Mr Christie had no legal right to continue in the employment of Qantas. His employment ended when he attained the age of 60 because he and Qantas had agreed that it would end when he reached that age. All the benefits of his employment ended at that age because he had agreed that they would end at that age. Qantas’ refusal to employ him past that age was not a termination of employment but a refusal to re-employ him after his employment ended. Nothing in the Act requires an employer of labour to employ a person who is over age 60...”.

McHugh J went on to observe in para 67 that to the extent that a refusal to re-employ someone over the age of 60 constituted discrimination on the ground of age, the remedy of the person affected lay in the general anti-discrimination statutes that are in force in the various jurisdictions or not at all. The issue before this Court does not concern a failure by the respondent to re-employ Mr Griffin after he attained the age of 65 years. The sole question is whether the Court has jurisdiction to consider whether the termination which occurred on 17 March 1995 was unlawful.

Kirby J however expressed a contrary view to that expressed by McHugh J. His Honour said at para 152(5):

“Contracts which provide for compulsory retirement. Meaning must be given to the concept ‘termination’ of employment in the context, and for the purposes, of the forbidden reasons for termination, including age. It must be assumed that the parliament, by enacting the provisions of s 170DF(1)(f) in relation to age, intended to address the position of persons already in employment whose employment was brought to an end unilaterally on the arbitrary ground of age. The link between the various forbidden reasons in par (f) is, and is only, the existence of a stereotype with no inherent relevance to the capacity of the employee to perform the duties of the employment in question. It must also be assumed that, by the inclusion of the reference to age, the parliament intended to afford effective protection. It should not be assumed that it was intended that par (f) could so easily be circumvented by the simple expedient of presenting an ‘agreement’ whereby the employment would ‘expire’ by reference to age without a need for ‘termination’. This is the kind of ‘misfiring’ of legislation, once quite common, which courts are now enjoined, wherever possible, to avoid.”

and at paras 159 and 160:

“Even supposing that Captain Christie’s contract did contain a term to the effect that it would end when he attained the age of 60, further questions would have to be answered. Does the fact that a contract is expressed to expire when the employee reaches a given age take the contract outside the termination provisions in the Act? Is such a contract more akin to one that is to expire upon a certain date, or to one that is to end only upon the happening of a certain event?
In support of the former proposition, McHugh J has referred in his reasons to a passage in Victoria v The Commonwealth (Industrial Relations Act Case). In my view, the majority in that case should not be taken to be referring to contracts expressed to expire upon the employee’s reaching a certain age. The employee’s age, as such, should correctly be characterised as a matter ‘unconnected with the term of employment’. A term specifying that the contract is to end when the employee attains a specified age is, in my view, analogous to one which requires that the contract will end upon the employee’s becoming pregnant. It falls within the protective provisions of the Act...”.

The judgments of the other members of the Court in Christie do not express a preference for one or other of the differing approaches expressed by McHugh J and Kirby J. Brennan CJ did not discuss the topic but expressed agreement with the judgment of Gaudron J, except as to a critical question of fact. Gaudron J, at par 24, held that Captain Christie’s contract of employment did not contain a term that it would automatically terminate on his attaining the age of 60. Her Honour said that it was therefore unnecessary to consider the argument of Qantas that the employment came to an end by the effluxion of time and for that reason was not a termination at the initiative of Qantas: paras 21 and 22. Gummow J decided the case on the footing that even if the contract of employment continued beyond Captain Christie’s 60th birthday, there was no termination of his employment at the initiative of Qantas that contravened s 170DF, for the reason that the termination was based on the inherent requirements of his particular position, within the meaning of s 170DF(2) of the IR Act, para 100. Nevertheless, at para 98 Gummow J said:

“The prohibitions in s 170DE(1) and s 170DF are concerned with termination of employment for reasons unconnected with the previously fixed term or duration of the employment. There is no prohibition upon the entry into contracts providing for employment over a specified period.”

I understand that observation by Gummow J as dicta that supports the approach of McHugh J rather than the approach of Kirby J.

In the present case, Mr Griffin’s employment came to an end by force of the age term imposed on his employment by the Award and determinations, or alternatively by the determinations. In my opinion, the employment came to an end by operation of law. The employment was not terminated at the initiative of the employer. I consider that this Court
does not have jurisdiction to entertain the application under s 170EA of the IR Act, and the application should be dismissed.

I certify that this and the preceding eleven (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa

Associate:

Dated: 1 June 1998

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 4259 of 1995

BETWEEN:

STANLEY EDWARD GRIFFIN
APPLICANT

AND:

THE AUSTRALIAN POSTAL CORPORATION
RESPONDENT

JUDGES:

SPENDER, VON DOUSSA & MARSHALL JJ

DATE:

1 JUNE 1998

PLACE:

BRISBANE (heard in Sydney)

REASONS FOR JUDGMENT

MARSHALL J: The matter before the Court is an application pursuant to s 170EA of the Industrial Relations Act 1988 (Cth) (“the IR Act”) in which the applicant, Mr Griffin, seeks a remedy in respect of what he alleged to be the unlawful termination of his employment by the respondent, the Australian Postal Corporation (“Australia Post”). The matter was referred by Madgwick J (“the trial judge”) on 19 June 1996 to be heard and determined by a Full Court pursuant to s416(1)(b) of the IR Act. See now s 416(1)(b) Workplace Relations Act 1996 (Cth).. The name of the IR Act was amended to the “Workplace Relations Act 1996” as a consequence of Sch 16 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). For the sake of convenience I will refer in this judgment to the relevant legislation as the IR Act.

THE PARTIES

Mr Griffin was born on 18 March 1930. On 23 February 1981 he commenced work as a “temporary employee” of Australia Post in the classification of a postal transport officer. On 22 July 1981 Mr Griffin was made a permanent employee and appointed as an “officer” of Australia Post. His employment with Australia Post ended on 17 March 1995, on the eve of his 65th birthday.

Australia Post is a public sector corporation which, inter alia, is responsible for the provision of postal services throughout Australia. It was established by the Postal Services Act 1975 (Cth) (“the 1975 Act”). It has carried on, from mid-1975, the “postal ... activities which had previously been carried on by employees in the Commonwealth public service in the Postmaster-General’s department ...”. See Re Australian Postal and Telecommunications Union, New South Wales Branch (1975) 25 FLR 90, 93 (per Franki and St John JJ). See also Australian Postal Corporation v Pac Rim No 3 Pty Ltd, (Federal Court of Australia, Marshall J, 19 January 1998, unreported).

THE COMPETING CONTENTIONS

The critical issue before the Court is whether it has jurisdiction to entertain Mr Griffin’s application. Mr Gee QC, counsel for Australia Post, contended that the employment of Mr Griffin was not terminated at its initiative but rather that it came to an end by agreement or by operation of law. Put simply, it was alleged that the term of Mr Griffin’s employment had expired. Counsel for Mr Griffin, Mr Wright QC, contended that Mr Griffin was not employed by Australia Post for a fixed term. Mr Wright argued that Mr Griffin’s employment was terminated by Australia Post in accordance with its then policy of requiring its employees to compulsorily cease their employment on attaining 65 years of age. Additionally, Mr Wright submitted that the termination of Mr Griffin’s employment in accordance with Australia Post’s compulsory retirement policy was contrary to Part 4E of the Anti-Discrimination Act 1977 (NSW) (“the NSW Act”) which he contended was made applicable to Australia Post by ss 90A and 90B Australian Postal Corporation Act 1989 (Cth) (“the 1989 Act”). Mr Gee put in issue the applicability of the NSW Act to the circumstances of the ending of Mr Griffin’s employment.

THE LEGISLATIVE FRAMEWORK (OTHER THAN THE NSW ACT)

The IR Act

Mr Wright alleged that the termination of Mr Griffin’s employment was contrary to s 170DF of the IR Act. That section provides as follows:

“170DF(1) An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) temporary absence from work because of illness or injury;
(b)union membership or participation in union activities outside working hours or, with the employer’s consent, during working hours;

(c)non-membership of a union or of an association that has applied to be registered as a union under the provisions of this Act;

(d)seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e)the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f)race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g)      absence from work during maternity leave or other parental leave.
170DF(2)        Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position.
170DF(3)       Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the employer terminates the employment in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.” (emphasis supplied)

If the Court does not accept the submissions of Australia Post on the question whether or not it terminated Mr Griffin’s employment or on the applicability of the NSW Act, there will be no issue that s 170DF(1)(f) of the IR Act has been breached by it. No defence based on s 170DF(2) of the IR Act was relied on by Australia Post.
Section 170DF of the IR Act is contained in Div 3 of Pt VIA of the IR Act (“the Division”). The Division contains several other sections which are relevant to this matter.

Section 170CA of the IR Act provides that:

“170CA(1) The object of this Division is to give effect, or give further effect, to:
(a) the Termination of Employment Convention; and
(b)the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No. 166, and a copy of the English text of which is set out in Schedule 11.

170CA(2) Without limiting subsection (1), the reference in paragraph 170DF(1)(f) to sexual preference, age and physical or mental disability, have been included in order to give effect, or further effect, to:
(a)the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and

(b) the Recommendation referred to in paragraph 170BA(c).
170CA(3) Without limiting subsection (1), the reference in paragraph 170DF(1)(f) to other parental leave has been included in order to give effect, or further effect, to the Family Responsibilities Convention and to the Recommendation referred to in paragraph 170KA(1((b).”

Section 170CB of the IR Act provides that:-

“170CB An expression has the same meaning in this Division as in the Termination of Employment Convention.”

Section 170HA of the IR Act provides that:-

“170HA On and after 26 February 1994, when the Termination of Employment Convention takes effect, any award or order of the Commission that is inconsistent with the requirements of that Convention does not have effect to the extent of the inconsistency.”

Section 3(g) of the IR Act provides that:-

“3 The principal object of this Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by:
...

(g)helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

The Postal Service legislation

The 1975 Act established two classes of employees of Australia Post, then known as the Australian Postal Commission. The first, an “employee”, was defined in s 3 of the 1975 Act to mean “a person engaged by the Commission as a temporary employee under section 45”. The second, “an officer”, was also defined by that section to mean “a person who is appointed to the Service under section 42 or deemed to have been appointed to the Service under Part IV of the Transitional Provisions Act”.

Section 57 of the 1975 Act initially provided as follows:

“(1)An officer who has attained the age of 60 years is entitled to retire from the Service if the officer desires to do so, but may, subject to this Part, continue in the Service until he attains the age of 65 years.

(2) An officer who attains the age of 65 years ceases to be an officer.”

The age “60” referred to in s 57(1) of the 1975 Act was subsequently reduced by amending legislation to the age “55”.

Section 57 of the 1975 Act was contained in Div 5 of Pt V of that Act. The 1975 Act was amended by the Postal Services Amendment Act 1988 (“the 1988 Act”). By s 5 of the 1988 Act, Australia Post came to be called “the Australian Postal Corporation”. Section 12 of the 1988 Act repealed Div 5 of the 1975 Act and relevantly substituted two new provisions, ss 41 and 42, into the 1975 Act.

The new s 41 of the 1975 Act provided that:

“41. (1) The Corporation may engage such employees as are necessary for the performance of its functions and the exercise of its powers.
(2) The terms and conditions of employment shall be determined by the Corporation.”

The new s 42 of the 1975 Act provided that:-

“42. The Corporation shall endeavour to achieve and maintain high standards as an employer in relation to terms and conditions of employment, occupational health, industrial safety, industrial democracy, non-discriminatory employment practices and other matters.”

Section 28 of the 1988 Act provided that:

“28. Each person who, immediately before the commencement of section 12 of this Act, is an officer or employee of the Corporation continues to be employed by the Corporation as if the person had been engaged by the Corporation under section 41 of the Principal Act as amended by this Act.”

The 1988 Act commenced operation on 30 June 1989.

The 1989 Act (referred to at p 2 of these reasons) commenced operation as at 1 July 1989. In s 3 of the 1989 Act, “Australia Post” was defined to mean “the Australian Postal Corporation”.

Sections 89 and 90 of the 1989 Act provided that:

“Staff
89. (1) Australia Post may engage such employees as are necessary for the performance of its functions.
(2) The terms and conditions of employment shall be determined by Australia Post.

Australia Post as employer
90. Australia Post shall endeavour to achieve and maintain high standards as an employer in relation to terms and conditions of employment, occupational health, industrial safety, industrial democracy, non-discriminatory employment practices and other matters.”

The 1975 Act and the 1988 Act were repealed by s 75 Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 (“the TPS Act”). The TPS Act became operative on 1 July 1989.

THE TERM OF THE APPLICANT’S EMPLOYMENT

“The Postal Acts”

When Mr Griffin was appointed as an “officer” of the respondent in July 1981, s 57 of the 1975 Act had the effect that, if it still applied when Mr Griffin reached 65 years of age, Mr Griffin would then cease to be an officer. To the extent that there was any doubt that subs (1) of that section had that effect, subs (2) removed any such doubt by referring to an officer ceasing to be an officer at the age of 65 years.

On 30 June 1989, upon the commencement of the 1988 Act, s 57 of the 1975 Act was repealed. The new s 41 of the 1975 Act did not make provision for age-based retirement. Section 28 of the 1988 Act had the effect of deeming Mr Griffin’s original employment to have been entered into in accordance with s 41 of the 1975 Act. Section 89 of the 1989 Act is in almost identical terms to s 41 of the 1988 Act. In my view, nothing turns on the fact that s 41(1) of the 1988 Act contained the words “and exercise of its powers” after the word “functions”.

Consequently, as at 30 June 1989 and onwards, there was no legislative prescription which had the effect of terminating Mr Griffin’s employment on his 65th birthday.

The Determinations

On 28 June 1989, Australia Post made a determination under s 41 of the 1975 Act which had the effect, inter alia, of continuing the terms and conditions of employment of officers of Australia Post which were applicable to them immediately prior to the commencement of the 1988 Act. Further on 28 June 1989, Australia Post made a determination under s 89 of the 1989 Act, which had materially identical effect to that made under s 41 of the 1975 Act.

The consequence of these determinations was that the conditions attaching to Mr Griffin’s employment regarding his retirement were not as provided in the 1975 Act but, as at 30 June 1989, were pursuant to the 1988 Act and, as at 1 July 1989, were founded upon the 1989 Act.

The Award

On 4 September 1989, the Australian Industrial Relations Commission made the Australia Post General Conditions of Employment Award 1989 (“the award”). The award applied retrospectively to 13 July 1989.

The award applied to Australia Post and to Mr Griffin in his capacity as a member of an organisation of employees which was a party to it. The award applied to Australia Post and Mr Griffin up to and including the end of Mr Griffin’s employment with Australia Post.

It is common ground that the award applied to the exclusion of the determinations made under the 1989 Act to the extent of any inconsistency. Clause 36(a)(iii) of the award provided as follows:

“(a)     (i)        ...
(ii)       ...
(iii)An officer may continue in the employment of Australia Post until attaining the age of 65 years but is entitled to retire from employment on or after attaining the age of 55 years.”

The effect of this provision of the award was to limit the duration of Mr Griffin’s employment to the attaining of the age of 65 years.

SECTION 170HA

On 30 March 1994, s 170HA of the IR Act became operative.

The terms of s 170HA of the IR Act requires an examination of the issue as to whether cl 36(a)(iii) of the award is inconsistent with the provisions of ILO Convention 158, the English language version of which is reproduced as Sch 10 to the IR Act.

THE CONVENTION

Article 4 of the Convention provides that:

“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.”

Section 170DE(1) of the IR Act is based upon Art 4.

Article 5 of the Convention provides that:

“The following, inter alia, shall not constitute valid reasons for termination:
(a)union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;

(b)seeking office as, or acting or having acted in the capacity of, a workers’ representative;

(c)the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(d)race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(e) absence from work during maternity leave.”

Article 5 of the Convention does not refer to “age”, but that fact does not mean that a termination of employment based on the age of an employee is consistent with the Convention. As was said in the majority judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in State of Victoria v Commonwealth of Australia (“Victoria”) (1996) 187 CLR 416, 517:

“Article 4 of the Convention requires that employment not be terminated without a valid reason. Article 5 provides that a number of grounds ‘inter alia, shall not constitute valid reasons for termination’. Those grounds, even if they would otherwise have constituted valid reasons for termination, are deemed not to be valid reasons. The use of the words ‘inter alia’ recognises that the list in Art 5 is not an exhaustive one. There obviously will be other reasons for termination which, having regard to the capacity and conduct of the employee and the operational requirements of the employer, are not valid. However, the Convention does not specify in detail what those reasons are. It leaves the general word ‘valid’ as the cornerstone of Art 4.”

Clause 5(a) of Recommendation No 166, the English language version of which is reproduced as Sch 11 to the IR Act, provides that:

“5. In addition to the grounds referred to in Article 5 of the Termination of Employment Convention, 1982, the following should not constitute valid reasons for termination:
(a) age, subject to national law and practice regarding retirement;
...”.

Even apart from the assistance obtained from Sch 11 to the IR Act, a termination of employment based on the age of the employee would not be consistent with the Convention, because the Convention requires that a termination be justified (see Art 9). In my view, a termination based on age, putting to one side issues which may be raised by s170DF(2) of the IR Act, could rarely, if ever, be justified. This is particularly so when one considers the objects of the IR Act and the Division. See ss 170CA and 3(g) of the IR Act, both reproduced above.

An award provision requiring an employee to cease her or his employment on the grounds that she or he has attained a particular age is inconsistent with the Convention in that it condones the termination of employment for a reason which is not a valid one. It is a termination for a discriminatory reason and not for a reason which is “sound, defensible or well founded”. See Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.

As at 30 March 1994, upon the enactment of the Industrial Relations Reform Act 1993, which inserted s 170HA in the IR Act, cl 36(a)(iii) of the award ceased to have any effect. Consequently, on and from 30 March 1994, there was no statutory or award requirement that Mr Griffin’s employment cease on his 65th birthday.

It was submitted by Mr Gee for Australia Post that the effect of cl 36(a)(iii) of the award was to specify a term for Mr Griffin’s employment and did not result in Australia Post terminating his employment at its initiative. Counsel for Australia Post relied upon the following passage in Victoria v Commonwealth at 519 - 520 where the Full Court considered the terms of the IR Act :

“It is also necessary to consider whether, in terms, the prohibitions in ss 170DB, 170DC, 170DE(1) and 170DF impair the right of the States to determine ‘the term of appointment [of those whom they wish to employ]’. The relevant words of each prohibition are that ‘[a]n employer must not terminate an employee’s employment’. In the case of s 170DC, the prohibition is elaborated by reference to a specific reason and, in the case of ss 170DE(1) and 170DF, by reference to specific reasons. As a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires. Rather, employment comes to an end by agreement, or, where the term is fixed by award or statute, by operation of law.
There is nothing in the Act to suggest that the words ‘[a]n employer must not terminate an employee’s employment’ are to be construed other than in accordance with their ordinary meaning. So construed, they do not apply to the situation where employment comes to an end because its term has expired. To put the matter another way, the prohibitions are concerned with termination for reasons unconnected with the term of employment. And that is manifestly clear when regard is had to ss 170DC, 170DE(1) and 170DF. The prohibitions effected by those sections are directed, respectively, to termination for a specified reason and termination for one or more specified reasons, none of which includes the expiry of the employee’s term of appointment.”

The above passage does not support the proposition that a provision in an award which has the effect of compulsorily retiring an employee solely on the ground of the employee’s attaining a certain age would still apply, notwithstanding s 170HA of the IR Act. To read the passage in that way is to take it out of context. That passage related to the reach of the Division in respect of State public servants employed upon term contracts, absent any consideration of age discrimination. It in no way was meant to sanction termination of employment on the basis of age. Whether an employment relationship has ended with the effluxion of time remains a question of fact to be determined in each individual case where the issue arises. See Qantas Airways Limited v Christie (1998) 152 ALR 365. See also Fisher v Edith Cowan University (1997) 72 IR 464

As the judgments of Gaudron and Kirby JJ in Qantas reveal, it cannot be assumed automatically that a cessation of employment on the occasion of a particular “retirement date” insisted on by an employer, necessarily leads to the termination of the contract of employment by the effluxion of time. McHugh J held to the contrary but he was alone in so doing. Brennan CJ agreed with Gaudron J, whilst Gummow J did not find it necessary to deal with that issue..

The purpose and scope of s 170HA of the IR Act was described in the Explanatory Memorandum accompanying the Industrial Relations Reform Bill 1993 as follows: :

“Section 170HA : Inconsistent awards and orders
The purpose of proposed section 170HA is to make clear that awards or orders of the Commission cannot be inconsistent with the international obligations that are given effect to by this proposed Division of the Act. This provision will strengthen the implementation of those obligations by this legislation.
This proposed section does not affect any award or order of the Commission that is consistent with Australia’s international obligation under the Termination of Employment Convention. In particular, this proposed section does not invalidate any entitlements of employees or their unions.”

It is inconsistent with Australia’s international obligations to permit the operation of awards which allow an employer to prohibit an employee from working beyond a certain age. Such provisions would, if operable, allow discrimination against employees on the ground of age.

The objects of Convention 158 and the objects of the Division would be undermined if the fundamental human right not to be discriminated against on the basis of one’s age was able to be rendered nugatory by blatantly discriminatory award clauses. An approach to the interpretation of s 170HA of the IR Act which allowed such award clauses to operate would be one which the Court should be most reluctant to take. This is especially so given that the Court is examining remedial legislation which is designed to provide protection to workers against discriminatory treatment at the hands of their employers: see Grout v Gunnedah Shire Council (1994) 1 IRCR 143, per Moore J at 160, whose judgment in that respect was not contradicted on appeal. My view is fortified when it is considered that one is interpreting legislation based on an international convention. See Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331.

Applicant A shows that it is permissible to have regard to the preparatory work in relation to a Convention in considering its terms. The preparatory work performed by the International Labour Office in relation to Convention 158 undertaken in 1981, supports the view that Art 4 of the Convention would be breached if age-based retirement was enforced by an employer in the absence of there being any national practice regarding age-based retirement. There was no evidence before the Court of there being any such national practice in Australia.

In Report VIII(1) of the 67th Session of the International Labour Conference in Geneva at 11, the following is provided:

“Workers who have reached the age of retirement are also sometimes excluded from various kinds of protection. In Italy, for example, workers who are entitled to an old-age pension or who have reached the age of 65 are excluded from protection against unjustified dismissal generally, but not from protection against discriminatory dismissal based on political opinion, religion, trade union membership or activities, nor from entitlement to severance allowance. In Ireland and the United Kingdom a worker who has reached the normal retirement age, or (in Ireland) the age of 70 or (in the United Kingdom) 65 if a man and 60 if a woman, is excluded from protection against unfair dismissal; in the United Kingdom this exclusion does not apply to protection against dismissal for specified reasons stated to be inadmissible, such as trade union membership or activities. Older workers are also sometimes excluded from entitlement to severance allowance or redundancy benefits (see below, Chapter V). Whilst in these countries the attainment of the age of retirement, the age of entitlement to an old-age pension or a given age excludes the persons concerned from the protection of the provisions concerned, in some countries the attainment of such an age is deemed rather to be a valid reason for termination of employment. This question is further discussed in the next chapter.”

At 23 under the heading “Other Reasons” the Report states:

“In a number of countries several other reasons which are enumerated as justifying dismissal might seem somewhat more difficult to classify among the three kinds of reason mentioned above. These include...the attainment of a given age, the age of retirement or entitlement to an old-age pension (as in, for example, Bulgaria, Cyprus, Panama, Romania, Sweden and Yugoslavia). With regard to the last-mentioned reason, under the legislation of Ireland, Italy and the United Kingdom the attainment of a given age or pensionable age is not stated to be a valid reason for dismissal but excludes the persons concerned from the protection of the legislation.”

In the absence of provisions permitting compulsory retirement (which is really a euphemism for compulsory termination) legislation enacted to give effect to the Convention should not be construed as permitting discriminatory award clauses to continue to have effect.

The 1995 General Survey of the International Labour Office on Convention 158 and Recommendation 166 supports the above analysis. At paragraph 131 of the General Survey the following is said:-

“In some countries, legal provisions have been adopted to protect older workers against discrimination in general and termination of employment on account of age in particular. These measures are based on the idea that the assessment of the work of a person who has reached a certain age should be based on the abilities he displays and not on his age. In some cases, legislation prohibits discrimination on account of age or the termination of a person’s employment on the ground of age. In one country, enterprise practice seems to be in favour of an extension of the compulsory retirement age. In the Russian Federation, the Constitutional Court has described the dismissal of workers who are entitled to a full old-age pension, once they reach retirement age, without taking the circumstances into consideration, as being contrary to the Constitution and to the Declaration of 1991 of the rights of the individual and of the citizen. In other countries, however, a worker who is eligible for full old-age benefits may have his employment terminated, although legislation sometimes specifies a minimum age.”

The Survey in a footnote (102) gives examples of legislation which prohibits discrimination on account of age. It says:

“For example, Canada: Provinces of Ontario, New Brunswick: the Human Rights Code and Act prohibit any discrimination on the basis of age; Province of Quebec: s. 122.1 of the Labour Standards Act prohibits the dismissal, suspension or retirement of an employed person because he has reached or passed the age or the number of years of service applicable for retirement; New Zealand: s. 22 of the Human Rights Act, 1993: ‘Age’ is defined as beginning at 16 years of age and ending at the time when the worker is entitled to receive a state pension; Singapore: s. 4(1) and (2) of the Retirement Age Act, 1993: notwithstanding any law, contract or collective agreement, retirement age shall not be less than 60 years of age, or such other age, up to 67 years, as may be prescribed by the Minister. No employer shall dismiss on the ground of age any employee who is below 60 years of age or the prescribed retirement age; Spain: the Constitutional Court has decided that additional provision No. 5 of the Worker’s Charter setting the obligatory retirement age at 69 years of age was unconstitutional given the fact that it established the incapacity of a worker from a specific time and the immediate, unconditional extinction of the employment relationship at that age; United States: Age Discrimination in Employment Act, 1967. This Act also outlaws the retaliatory discharge of an employee based on an employee’s participation in the enforcement of the Act. The laws of a large number of federal states also prohibit dismissal on account of age. Furthermore, in this country, the obligatory age for retirement has been withdrawn from the legislation of many states for almost all public service positions.”

THE TERMINATION

On 20 January 1995, as his 65th birthday approached, Mr Griffin advised Australia Post management in the following terms:

“I wish to apply to continue my employment as a Linehaul driver after attaining the age of 65 on 18 March 1995 & until such time as I feel that I will be more able to adjust to retirement.”

It was not necessary for Mr Griffin to seek to have his employment extended given that, from 30 March 1994, the discriminatory award provisions had been overridden by the IR Act . However, the letter demonstrates Mr Griffin’s desire to continue in his employment. He was not paid the courtesy of a written response to that letter. Instead, on 27 February 1995, Australia Post wrote to him advising as follows:

“As you are ceasing from close of business on 17 March 1995, your lump sum superannuation payment from the APSS will be processed by National Mutual, the scheme administrator.
This payment will naturally be subject to tax and preservation requirements.
To speed up the payment of your benefit, you must complete and sign the following forms:
- Benefit Payment Request
- Tax File Number Notification form
National Mutual will contact you as soon as possible after you leave. They will advise you of your benefit and let you know what extra information is needed.
If you require further information or assistance please contact me on 754 1000.”

On 28 February 1995, Mr Griffin wrote again to Australia Post in the following terms:

“On 20 January 1995, I wrote requesting that I be allowed to continue my employment as a Linehaul driver with AUSTRALIA POST after attaining the age of 65 on 18 March 1995. Although you have verbally informed me that my request has been refused, I have yet to receive a written reply. I now ask for a written explaination (sic) as to the reason or reasons for the refusal from the person responsible for the decision.”

No reply to this correspondence was in evidence. However, an Australia Post circular, undated but numbered “1995/13” was in evidence. It was in the following terms:

“EMPLOYMENT BEYOND SIXTY FIVE (65) YEARS
On 7 July 1994 a copy of Headquarters memo dated 14 June 1994, entitled ‘Age Discrimination in Employment and Termination’ was provided to all management areas and entitlements staff.
Further advice has now been received from Headquarters confirming legal opinion that the General Conditions of Employment Award provisions for age retirement at 65 are legal.
Headquarters has also advised that a committee has been established to review the whole issue of maximum retirement age (65) within the Federal public service. The outcome of this review will be known later this year.
Headquarters has agreed that as an interim arrangement, (until the outcome of this review is known), staff will continue to be retired from the age of 65 in New South Wales, with the following exceptions (Ref: 9.6.8 of the PP & P Manual):
- where there is no suitable person under 65 to perform the work; or

- where the employee has special qualifications for a particular job; or

- where the employee is required to train a successor in the position formerly occupied by the employee.

Employment beyond the age of 65 will be on the basis of temporary employment.
The employee is to be advised that in the event of a workplace injury or illness NO incapacity payments can be made under the Safety, Rehabilitation and Compensation Act 1988 (this Act has no provision for such payment beyond the age of 65).
IN ALL CASES, APPROVAL FOR EMPLOYMENT BEYOND THE AGE OF 65 WILL BE EXERCISED ONLY BY THE GENERAL MANAGER.
In all cases maximum possible notice must be given to the General Manager. The General Manager’s approval is NOT to be anticipated and no undertakings are to be given to employees concerned.”

Mr Griffin was not offered temporary employment beyond his 65th birthday. As the circular discloses, he was “retired” from Australia Post pursuant to its then policy. The policy, as appears from the circular, was not inflexible. Australia Post considered that it was able to offer further, albeit temporary, employment to persons such as Mr Griffin. That it chose not do so shows that it, instead, elected to terminate Mr Griffin’s employment. Mr Griffin’s employment was terminated by Australia Post at its initiative. It decided to dispense with his services in circumstances where it considered that it was its right to opt to retain his services.

To say that Mr Griffin’s employment term came to an end by the effluxion of time is not only contrary to law (having regard to the effect of s 170HA of the IR Act on the discriminatory award provision) but is also contrary to a careful analysis of the factual circumstances surrounding the cessation of Mr Griffin’s employment. Consequently, the Court has jurisdiction to deal with Mr Griffin’s application pursuant to s 170EA of the IR Act. The evidence shows that Australia Post acted in breach of s170DF(1)(f) of the IR Act in terminating Mr Griffin’s employment.

Given the time which has lapsed between the making of the application, and the Court giving judgment , caused chiefly by agreement between the parties that the Court should await the High Court’s judgment in Qantas, it is preferable for the trial judge to consider in a contemporaneous context the question of the appropriate remedy in all the circumstances.

THE NEW SOUTH WALES ACT

It was submitted by Mr Wright that the action of Australia Post in compulsorily retiring Mr Griffin was contrary to the provisions of Part 4E of the NSW Act which prohibited such conduct. It was alleged that ss 90A and 90B of the 1989 Act had the effect of applying Part 4E of the NSW Act to Australia Post. Sections 90A and 90B of the 1989 Act provide as follows:

“90A. For the purposes of the laws of the Commonwealth, or of a State or Territory, Australia Post is not entitled to any immunity or privilege of the Commonwealth except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of the State or Territory.”
“90B. A law of a State or Territory does not apply to Australia Post if, apart from this section, it would:
(a) apply to Australia Post; and
(b) so apply as to discriminate against Australia Post.”

I have difficulty in comprehending how an award provision which applies to Australia Post can be considered as an “immunity or privilege of the Commonwealth”. Clause 36(a)(iii) of the award has the force of federal law and applies notwithstanding any contrary State enactment to the extent of any inconsistency. Therefore, the application of Part 4E of the NSW Act to Mr Griffin is governed by the same considerations which were referred to earlier in these reasons concerning the operation of s 170HA of the IR Act.

Consequently, there is no relief which Mr Griffin is entitled to if his submission as to the applicability of the NSW Act is correct over and above that to which he is entitled flowing from the analysis earlier in these reasons regarding s 170HA of the IR Act overriding cl 36(a)(iii) of the award. Therefore, it is unnecessary to express a view as to the applicability of the NSW Act.

ORDERS

The orders which I would make are as follows:

It is declared that the employment of the applicant was terminated at the initiative of the respondent.
It is declared that the respondent contravened s170DF(1)(f) of the Industrial Relations Act 1988 in terminating the employment of the applicant.
The matter be remitted to the trial judge for consideration of orders pursuant to s170EE of the Industrial Relations Act 1988.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated: 1 June 1998

Counsel for the Applicant: Mr L Wright QC with
Mr J Murphy

Solicitor for the Applicant: McClellands

Counsel for the Respondent: Mr C Gee QC with
Mr G Watson

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 9 October 1996

Date of Judgment: 1 June 1998

BETWEEN:	STANLEY EDWARD GRIFFIN Applicant
AND:	THE AUSTRALIAN POSTAL CORPORATION Respondent
JUDGE(S):		SPENDER, VON DOUSSA & MARSHALL JJ
DATE OF ORDER:		1 JUNE 1998
WHERE MADE:		BRISBANE (heard in Sydney)

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 4259 of 1995

JUDGE(S):	SPENDER, VON DOUSSA & MARSHALL JJ
DATE:	1 JUNE 1998
PLACE:	BRISBANE (heard in Sydney)

JUDGES:	SPENDER, VON DOUSSA & MARSHALL JJ
DATE:	1 JUNE 1998
PLACE:	BRISBANE (heard in Sydney)

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 4259 of 1995

Counsel for the Applicant:	Mr L Wright QC with Mr J Murphy
Solicitor for the Applicant:	McClellands
Counsel for the Respondent:	Mr C Gee QC with Mr G Watson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 October 1996
Date of Judgment:	1 June 1998

[1998] IRCA 15

1 Jun 1998