Posted on: Aug 11, 2015

Two pilots, living in New Zealand but flying mostly abroad (Hong Kong and Australia) for Cathay Pacific, were successful in their case that their mandatory retirement at 55 years was in breach of New Zealand’s age discrimination laws.

 

Relying on a UK case concerning other pilots employed by Cathay, the Court concluded that the bases of peripatetic employees such as the pilots must be their places of employment. From there, it was a comparatively easy step to find that the pilots were based in New Zealand since they had their homes and families in the country and many of the incidents of their employment were connected with New Zealand.

That imposition of a mandatory retirement age was in breach of New Zealand law was not, in itself, particularly contentious; the crux of the problem was that the men’s contracts a) were stated as being subject to the laws of Hong Kong and b) clearly set the retirement age at 55 (a restriction permissible under Hong Kong law).

This raised various questions. Did s 238 of the Employment Relations Act, which forbids contracting out of the provisions of the Act, have the effect of overriding Hong Kong law in certain situations? Alternatively, would the application of Hong Kong law in this situation be contrary to public policy because strict reliance on the clause would be morally and ethically wrong and unprincipled? Was the choice of law clause bona fide and legal?

The Employment Court found that s 238 did indeed have overriding effect; were it not to have, the whole intention of the Act would be frustrated. But even if it was wrong on that score, public policy must decree that a contractual term denying the pilots the right to work must violate essential principles of justice because it involved a “very serious infringement of a basic human right”. Parliament had included age as a prohibited ground of discrimination as one of a number of deeply held values bearing on the very essence of human identity. In the case of employment, that identity related to the right to work. The conduct of the pilots’ employer, a subsidiary of Cathay, in not complying with the clear representations that it had made that it would make the basing structure of its New Zealand pilots fully compliant with local law, contributed to the conclusion that the choice of law clause should not apply on public policy grounds.

See Brown v New Zealand Basing Ltd of Hong Kong (a wholly owned subsidiary of Cathay Pacific Airways Ltd of Hong Kong)

 

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Posted on: Aug 11, 2015

After the Employment Court and the Court of Appeal found that the Equal Pay Act is not limited to ensuring simply that men and women performing the same task in the same workplace are paid the same amount, the task of the principles to be observed in implementing equal pay in a broader context fell to the former court. That judgment remains to be issued.

 

In the Court of Appeal judgment of Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc, it had been asked to consider two key findings of the lower court in which it had said that:

1. the question of whether there was differentiation in the rate of remuneration required an inquiry as to what men would be paid to do the same work abstracting from skills, responsibility, conditions and degrees of effort as well as from any systemic undervaluation of the work, and
2. the inquiry could extend to males in other industries where the same or similar enterprise or industry or sector would be an inappropriate comparator group.

Though the appeal court expressed certain reservations about some of the means by which the Employment Court had arrived at those conclusions, preferring a reliance on the language and purpose of the statutory provisions, it gave endorsement to the two findings.

An attempt to take it to the Supreme Court at this stage has floundered. The Supreme Court considered that it would not be appropriate to consider the matter before the Employment Court had dealt with the substantive matters. We now eagerly await this judgement from the Employment Court.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.