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 ) GeneralDistribution 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: (1) 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 ) GeneralDistribution 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 is, the words "following a successful appeal against dismissal" do not qualify, as a matter of construction, the expression "where a flight attendant is reinstated". The provisions in the 1993 award central to these proceedings are paras (vii), (viii) and (viii) of clause 23(a). They were intended to reflect the scheme found in paras (vii) and (viii) of clauses 28(a) ad 26(a) of the 1974 hostesses award and the 1974 stewards award respectively. The provisions in the 1974 awards provided that generally seniority was lost when employment ceased and that if an employee was re-employed, seniority would commence to accrue from the date of re-employment. An exception to this general rule was when the re-employment "constitute(d) reinstatement". Paragraph (viii) of the clauses in the two 1974 awards went on to provide that a decision by a "Board of Reference following a successful appeal against dismissal" was to be treated as reinstatement. Several features of this scheme are, in our opinion, important. The first is that "reinstatement" is identified as an exception to the general position where there has been re-employment. Thus, it is re-employment with some particular characteristic that sets it apart from other re-employment. The structure and language of para (viii) suggests that reinstatement is treated as a particular type of re-employment and that they are not mutually exclusive concepts or notions. Moreover, the structure of para(viii) suggests that a successful appeal is to be treated as reinstatement but as only one instance of reinstatement and indicates that reinstatement can arise apart from a successful appeal to a Board of Reference. It also indicates that the word "appeal" is used to describe the comparatively formal process of appeal to the Board of Reference. As is apparent from the transcript of proceedings before Justice Boulton in June 1986, the creation of a consolidated seniority list in 1986 and the subsequent variations to the applicable awards including the disaggregation of para (viii) into paras (vii) and (ix) was not intended to alter the scheme in the two 1974 awards. Thus one could reasonably expect the features we have just described to be repeated in the variations. Paragraphs (viii) and (ix) introduced in 1986 can be construed intelligibly in a way that preserves that scheme. We accept that had a comma appeared after the word "reinstated" in paragraph (ix), there would be little scope for arguing that the paragraph should be construed in a way that did not preserve the scheme embodied in the 1974 awards. The absence of the comma provides a basis for contending that the paragraph has another meaning. It is not, however, a meaning that was intended by the parties or the Commission. Thus, if the expression "where a flight attendant is reinstated" is not qualified by the later reference to an appeal, it is nonetheless necessary to consider what the expression means. The Chief Justice said, in our view correctly, that the word "reinstated" must be construed by reference to its meaning in industrial parlance. His Honour had earlier indicated, again in our view correctly, that the terms of the order of Equal Opportunity Tribunal (the "EO Tribunal") and the agreed fact in these proceedings that 25 of the complainants before the EO Tribunal had been reinstated, was not decisive of whether there had been reinstatement. It is convenient to set out the terms of two other agreed facts: "11. Each of the Third Respondents, (other than Love-Davies, Rattray, Young and Phillips who resigned otherwise than in accordance with their election), retired from employment as an air hostess with Qantas, in accordance with the election that she had made. 12. Prior to 1992 when clause 32 was inserted into the Qantas Award, Qantas and the AHA and FAAA had an informal system of dealing with appeals against dismissal, which involved the Union taking the matter up with Qantas and if the matter was not resolved at that level it would either be referred to the Board of Reference constituted by the Deputy Industrial Registrar or to the Conciliation and Arbitration Commission." When first dealing with the question of the meaning of "reinstated", the Chief Justice set out the contention of the Flight Attendants' Association of Australia that the word or its derivatives connote a prior dismissal of the reinstated person by an employer, a revocation of the dismissal and payment for the intervening period. Much of his Honour's subsequent analysis of the submissions focused on whether, for there to be a "reinstatement", it was necessary there be a payment of all benefits that would have accrued during the period off work. His Honour concluded it was not. It is a conclusion with which we agree. However his Honour did not expressly deal with the first element of what the Association contended were the preconditions for a "reinstatement", namely that there had been a dismissal of an employee by an employer. In this appeal the Association submitted that the Chief Justice had erred in not concluding that a prior dismissal was necessary for there to be a subsequent reinstatement. That is, the expression in cl 23(a)(ix) "where a flight attendant has been reinstated" applied only to situations where the flight attendant had earlier been dismissed by the employer, Qantas Airways Ltd ("Qantas"). In our opinion, to identify the issue in these term, creates the potential to divert attention from what is in issue, namely the meaning of "reinstated" given that what constitutes a dismissal is an issue of some complexity itself. We return to this question later. A useful starting point in construing the expression in cl 23(a)(ix) is the definition of reinstatement in Yerburg D & Karlsson M, CCH Macquarie Dictionary of Employment and Industrial Relations (Sydney: CCH Australia Limited, 1992)which was referred to by the Chief Justice and relied on by the Association in the appeal. It includes the following (at 296): "reinstatement the restoration of a former employee to his/her previous position after wrongful dismissal, demotion or transfer. Unlike re-employment (although the two words are sometimes used as if they were synonymous), reinstatement involves no loss of entitlements accrued as a result of service. Indeed, the continuous service of the employee is maintained without a break, and the employee is usually entitled to have the loss of earnings during the period when he/she was wrongfully dismissed made up. All state tribunals frequently exercise their jurisdiction to adjudicate on the fairness or otherwise of a dismissal and may at their discretion order reinstatement in employment when that remedy is appropriate ...." We should add that we are not entirely sure how much reliance can be placed on this text. Our hesitancy flows, in part, from our lack of familiarity with it though generally we embrace the approach that Australian works such as the Macquarie Dictionary are often of greater utility than other sources such as English or American dictionaries: see John While and Sons Pty Ltd v Changleng (1985) 2 NSWLR 163 at 164, and Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 553. Consideration of what is comprehended by the notion of "reinstatement" has arisen in the context of construing provisions of both federal and state legislation. Between 1947 and 1988 the principal Commonwealth industrial legislation, the Conciliation and Arbitration Act 1904, generally marked out the jurisdiction of the Australian Conciliation and Arbitration Commission (and its predecessor) ("the Commission") by reference to the existence of industrial disputes about industrial matters with as one of the defined industrial matters in s 4: "(k) the right to dismiss or refuse to employ, or the duty to reinstate in employment, a particular person or class of persons." It can be seen that reinstatement is identified as a duty, plainly of an employer, and found in a definition referring also to the right to dismiss or refuse to employ, again plainly a reference to rights of an employer. A provision in identical terms was considered by the High Court in Australian Iron & Steel Limited v Dobb (1958) 98 CLR 586 which was described by Dixon CJ at 597 as involving the expression "industrial matters" being "an expression subject to a definition of the kind which has become familiar in statutes of the description." The statute in question was the Coal Industry Act 1946-1951 (NSW). The dispute concerned the failure of an employer to restore to the position of mine deputy, a person who had formerly occupied that position. Of some significance, for present purposes, was that the mine deputy had initially relinquished the position at his initiative because of his medical condition. He had requested to be transferred from the position of mine deputy to surface labourer and the employer had ultimately agreed to the transfer after initially refusing. It was a subsequent request by the employee to be transferred back to the position of mine deputy after his health improved that gave rise to the dispute. In issue was the jurisdiction of a Local Coal Authority to deal with the dispute. As to the meaning of paragraph (k), Dixon CJ said at 598: "In the particular paragraph which includes the words "the duty to reinstate in any employment a particular person or class of persons", the word "duty" is not confined to an existing antecedent legal duty. That would be an absurd interpretation. The expression refers to a question whether it is not obligatory or incumbent industrially upon the party to reinstate a particular person or class of persons in employment. "Reinstate in employment", no doubt, is not a very apt description of the restoration to a superior grade of a man already employed, but it is capable of covering such a matter and it seems obvious that in principle the intention of the legislature must extend to such a case. As it is a meaning of which the expression is susceptible it might accordingly so be construed. In short a matter of dispute such as that now in question seems clearly enough to fall within the general sense of the definition of "industrial matters". McTiernan and Webb JJ agreed with the reasons of Dixon CJ. While it was not an issue or an issue or prominence in those proceedings, it did not appear to be material that the circumstances that gave rise to a question of whether there should be reinstatement arose from the action of the employee rather than the employer. The scope of paragraph (k) was considered again by the High Court in R v Portus; Ex parte City of Perth (1973) 129 CLR 312. In issue was whether the Commission had jurisdiction to deal with a dispute arising from a claim that employees whose employment was terminated or who had been dismissed could appeal to the Commission against the termination or dismissal on the basis that the Commission could determine whether the termination was harsh unjust or unreasonable. The leading judgment of the majority was that of Stephen J. His Honour said at 328: "In my view the Association's claim is not as to any industrial matter; it is, rather, a claim to the exercise by the Commission, in the future, of a new jurisdiction involving the exercise of judicial power and this for the purpose of the settlement of future industrial disputes necessarily lacking any inter-State quality. It is true that what is claimed involves, as a possible outcome of an appeal, the employer's duty to reinstate in employment, a matter specifically referred to in par. (k) of the definition of "industrial matters" in s. 4; but the Association's demand cannot, even if liberally construed, be interpreted as giving rise to an inter-state dispute as to that matter. ... If, then, the dispute cannot be said to fall within par. (k) of the definition of "industrial matter" merely because reinstatement is, perhaps the principal remedy sought by the demand it is also clear that the dispute is not about the right to dismiss, the only other relevant subject matter of par (k). of the definition of "industrial matter"; on the contrary the demand makes it clear that the right to dismiss is to remain unaffected, indeed dismissal, or other termination by the employer, is made a condition precedent to the operation of the proposed right of appeal to the Commission." The paragraph next received detailed consideration by the High Court in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656. The following extracts from the joint judgment of the Court illustrate the connection ordinarily or typically made between the remedy of reinstatement and antecedent dismissal. The Court said at 660: "Reinstatement disputes may take many different forms. The definition of "industrial matters" contemplates that a dispute may arise by reference to "the duty to reinstate". The duty there posited is not a legal duty, but a duty to be imposed by considerations of industrial fairness. In Australian Iron & Steel Ltd v Dobb (1958) 98 CLR 586 at p. 598, Dixon CJ (referring to the similarly worded provision of the Coal Industry Act 1946 (Cth) said: "the word 'duty' is not confined to an existing antecedent legal duty. That would be an absurd interpretation. The expression refers to a question whether it is not obligatory or incumbent industrially upon the party to reinstate a particular person or class of persons." Of course an enforceable duty to reinstate in employment can only arise after employment has been terminated. As a general rule disputes as to reinstatement also arise after employment has been terminated, as eg, occurred in Reg v Gough; Ex parte Cairns Meat Export Co Pty Ltd (1962) 108 CLR 343" and later at 664: "Where, as here, the relevant award imposes no obligation upon an employer to reinstate a dismissed employee or class or employees and the Act confers no general entitlement to reinstatement, either as a right or as an available legal remedy, then, unless the provisions of s 5 of the Act are invoked, the dispute is properly to be viewed as a claim for the creation of an obligation on the part of the employer to reinstate the dismissed employee or employees. The creation of new rights and obligations is a function which is properly performed in the exercise of arbitral power. In the present case, no claim was made by reference to s 5 of the Act and it was made clear by the Union and the Society that they sought a variation of the Award or the making of a new award to bring such an obligation into existence." and later at 665: "Ordinarily, in industrial tribunals empowered to order reinstatement, the criterion for the making of an order for reinstatement is that the dismissal was harsh, unjust or unreasonable, although more recently the tendency has been to express the test in terms of unfairness: see In re Loty and Holloway and Australian Workers' Union [1971] AR(NSW) 95." Further consideration of the definition arose in Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Victoria) Ltd (1989) 166 CLR 311 where again this ordinary or typical connection between reinstatement and antecedent dismissal was evident in the observations of the Court. Mason CJ said at 316: "As the Court noted in Ranger Uranium (1987) 163 CLR 664, where there is no entitlement to reinstatement under the Act or the relevant award and no jurisdiction in the Commission to order reinstatement, a dispute arising out of the termination by the employer of employees' employment would ordinarily be regarded as embracing a claim for the creation of an obligation on the part of the employer to reinstate the employees." and Gaudron J at 335: "Until the decision in Ranger in 1987 the Conciliation and Arbitration Commission generally assumed that it had no authority to entertain reinstatement disputes: see Ranger (1987) 163 CLR at p. 660. Moreover, the prevailing industrial criterion for the making of an order for reinstatement is that the dismissal was harsh, unjust, unreasonable or unfair: see Ranger (1987) 163 CLR at p. 665. Within this context, it seems to me impossible to say that an employer faced with the demand made in 1986, headed "Contract of Employment", dealing in terms with the duration and manner of severance of the employment relationship, making no reference to reinstatement and making no allusion to the criterion by which an award for reinstatement is usually made would or could be expected to understand the demand to comprehend a claim that all persons dismissed otherwise than in accordance with the regime therein postulated should be reinstated in employment." See also: Re Boyne Smelters Ltd: Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 446. We last refer to Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 and the observations of Gaudron J at 612: "The argument concerning the Reinstatement Award is based on the propositions that cl 74 of the log of claims is a claim for a regime governing dismissal and reinstatement and not a claim for the reinstatement of individual employees. But that proposition assumes that cl 74 stands in isolation from the antecedent events which themselves constituted a dispute as defined in s 4(1) of the Act. It also assumes, contrary to the clear understanding of everyone concerned, that cl 74 did not involved a claim for the reinstatement of the PKIU members dismissed on 4 March." (footnotes omitted) In each of these cases, the discussions linking the remedy of reinstatement to antecedent dismissal was influenced by the circumstances giving rise to the proceedings which, in one way or another, concerned dismissals. However these discussions do illustrate, in our opinion, that there has been a tendency to link the two and that very often the word "reinstatement" is, in industrial parlance, identified as a remedy arising when an employer has dismissed an employee. Both in 1986 and 1993, and apart from the reference in para (k) in s4, references to reinstatement were found in provisions conferring a power to order reinstatement when an employee had been dismissed by an employer. In 1986, s5 of the Conciliation and Arbitration Act 1904 empowered the Federal Court to order reinstatement of an employee who had been dismissed by an employer in contravention of the section. In 1993 a similar provision was found in s 334 of the Industrial Relations Act 1988. A similar line of authority can be found in New South Wales. The legislative history, including the introduction in 1912 of a reference to reinstatement in the definition of industrial matter in the Industrial Arbitration Act 1912 (in terms very similar to paragraph (k) of the Commonwealth Act just discussed) and early cases, was discussed in Australia Consolidated Press Ltd v Federated Miscellaneous Workers Union (No 1) [1973] AR 181. The nature of the power conferred, indirectly, by that definition was considered in the leading judgment of Walsh J in North West County Council v Dunn (1970) 126 CLR 247. His Honour said at 259: "In s 5, the term "Industrial matters" is defined. The term is stated in include, "... all or any matters relating to - ... (c) the employment of children or young persons, or of any persons or class or persons in an industry, or the right to dismiss or refuse to employ or reinstate in employment any particular person or class of persons therein; but not so as to give preference of employment to members of industrial unions, except in accordance with the provisions of paragraph (g) of subsection one of section twenty of this Act." These provisions have been regarded as giving authority to Conciliation Committees, and also to the Industrial Commission (see s 30), to make an order against an employer to reinstate in employment an employee whose services have been terminated, notwithstanding that in terminating them the employer has not committed any breach of contract or of any relevant award or other law. It may be observed that there is no express provision for the making of an order that an employee be reinstated. But the power to make an order or an award "determining any industrial matter" has been regarded as extending to the making of such an order. In the provision by which the right to dismiss or refuse to employ or reinstate in employment is declared to be an "industrial matter", the term "right" has been treated as not referring solely to a legal right, but a referring to the propriety, as a matter of fairness and justice, of doing in particular circumstances that which admittedly an employer has a legal right to do. The Industrial Commission has laid down principles, to which I shall refer again as to the manner in which the power to order reinstatement of a servant who has been lawfully dismissed should be exercised." Again this passage illustrates the ordinary or typical connection between reinstatement and antecedent dismissal. However what was comprehended by the notion of an employer's "refusal to reinstate in employment" was viewed broadly by the Industrial Commission of New South Wales in Court Session in Orange City Bowling Club Ltd v Federated Liquor and Allied Industries Employees' Union of Australia, NSW Branch [1979] AR(NSW) 90. In issue was the jurisdiction of the Commission to order, in effect, that an employer offer further employment to casual employees who, in legal theory, had each completed an engagement as a casual employee and thus concluded their employment under the contract of employment applicable to that engagement. The contract of employment had not been terminated by either party but had concluded by its completion. Was a dispute about the future or further employment of the casual employees a matter relating to "the right to ... refuse to ... reinstate in employment"? The Commission concluded it was not but said the following about that expression (at 94): "We think that the counsel is correct in his submission that it is not appropriate to classify the present case as one of reinstatement. We find it difficult and, indeed, inapt to use that term as applicable to a situation where the parties to a contract of employment have agreed that the period of employment should be for a specific term and where after that term has expired and the contract of employment has thus come to an end it is sought that the employer-employee relationship be restored or again entered into. Reinstatement in the industrial context, we consider, should be limited to cases in which the employment has been terminated, or a reduction or regression in employment has occurred, by decision or action on the part of one or other of the parties to the contract." It appears the Commission viewed an issue of reinstatement as capable of arising, inter alia, when the employment had been terminated by either the employer or by the employee. Dismissal by the employer was not a necessary element. This was made plain in a judgment of Macken J given later that year: In Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers' Guild re dismissal [1979] AR(NSW) 329. An issue had arisen about jurisdiction to deal with an application for an order for reinstatement in circumstances where, arguably, the employee had resigned voluntarily. There was a factual issue about whether the resignation was given under duress. Macken J concluded that, in so far as jurisdiction was concerned, it did not matter that the employee may have resigned voluntarily. His Honour said at 93: "On appeal, Mr Shaw of counsel, who appeared for the Guild, contended that the learned conciliation commissioner was in error in declining to exercise his jurisdiction, having regard to the judgment of the Commission in Court Session, of 7 March in Orange City Bowling Club Limited v Federated Liquor and Allied Industries Employee's Union of Australian, New South Wales Branch. He argued that, even had Mr Gale freely resigned from his employment, it was within the jurisdiction of the conciliation commissioner to hear the reinstatement application. Mr Gallagher, who appeared for the employer, conceded that the commissioner was in error in holding that he lacked jurisdiction to determine the reinstatement claim, given the judgment in the Orange City Bowling Club Limited Case. ... There can be no doubt that the conciliation commissioner had jurisdiction to decide the merits of the termination of employment. Not only did such jurisdiction exist had the resignation been untainted by duress, but, as a matter of fact, the employee did not resign; he was dismissed." (footnotes omitted) The approach of the Industrial Commission to the circumstances when reinstatement in employment might arise is a broader one than appears to have been adopted earlier by the majority of the Court of Appeal in Ex parte Sutherland Shire Council; Re Cahill [1969] 2 NSWR 437 at 439 in referring with approval to observations of Tucker J in Hodge v Ultra Electric Ltd [1943] 1 KB 462, namely that reinstatement in employment was to the same position and after the employer terminated the employment. However what the preceding analysis demonstrates is that in discussions concerning specific statutory provisions there is often a link made between the notion of reinstatement and dismissal, that is, the action of the employer. However the link is not always made or accepted as a necessary precondition to an act which would constitute the reinstatement of an employee either in employment or to a position. The critical question in the present proceedings is what is meant by "where a flight attendant is reinstated" in clause 23(a)(ix). If limited to reinstatement after dismissal the expression would serve a purpose. It is to be remembered that clause 23(a)(ix) also speaks of re-employment following a successful appeal. However reinstatement could well occur before any appeal was undertaken, at least an appeal in some formal sense. Agreed fact number 12 was that a dismissal might be taken up by a union before any appeal to a board of reference. Reinstatement might be agreed to before any appeal was lodged or prosecuted to a point where a decision was given. Thus the expression "where a flight attendant was reinstated" would comprehend reinstatement after dismissal following a representations by a union, or conceivably only by the employee in question, while "re-employ(ment) following a successful appeal" would comprehend reinstatement after a more formal process. However was the expression "where an employee is reinstated" intended to be limited to those circumstances? The definition of "reinstate" and "reinstatement" in the Delbridge A, et al (eds) Macquarie Dictionary (Sydney: The Macquarie Library Pty Ltd, 1991) is : "reinstate - to put back or establish again, as in a former position or state." It would be consistent with this definition to treat the expression in clause 23(a)(ix) as applying to any circumstance where the flight attendant was put back into employment whether the flight attendant had left voluntarily or had been dismissed. However it is to be recalled that the text now found in clause 23(a)(ix) was first introduced into the applicable awards by variations made in August 1986 by Justice Boulton with the consent of the parties. It embodied a scheme in which reinstatement was treated as re-employment with some special characteristic. The formulation adopted in 1986 was repeated when the 1993 award was made. In the intervening period, in November 1986, Justice Boulton was called upon to construe and apply a clause in the same terms as clause 23(a)(ix) in relation to a flight attendant, Ms K J Nicholls, who had recommenced work in August 1986 after having retired as a result of the application of the Qantas' discriminatory employment policies concerning female flight attendants. In his reasons for decision his Honour said: "The termination of Ms Nicholl's employment in June 1984 amounted to a forced or compulsory retirement or a 'constructive dismissal' having regard to the then-existing policy of Qantas. Such a forced retirement , in my view, falls within the meaning and intent of clause 28(a)(ix). This view is re-enforced by the reference in paragraph (ix) to reinstatement following 'a successful appeal" - such an appeal would be inappropriate or unnecessary in the case of voluntary termination and would only have meaning in the context of a forced termination or dismissal. Ms Nicholls' reinstatement or re-employment (I do not find it necessary to decide which took place) followed a complaint taken by the AFAA to the Anti-Discrimination Board on behalf of Ms Nicholls and six other female flight attendants. The reinstatement or re-employment was offered by Qantas at least in part settlement of the complaint and thus can be characterised in terms of clause 28(a)(ix) as 'following a successful appeal against dismissal'." While it is not entirely clear, his Honour appears to have proceeded on the basis that the equivalent to clause 23(a)(ix) applied only where there had been a forced compulsory retirement variously described by his Honour as forced retirement, forced termination or constructive dismissal. What constitutes dismissal can be a vexed question and it often arises in the context of a particular statutory formulation see: Attorney General v Western Australian Prison Officers Union of Workers (1995) 62 IR 225, especially at 228-231 per Rowland J; Smith v Director- General of School Education (1993) 51 IR 204, and Pacific Waste Management Pty Ltd v Saley (1993) 51 IR 339; see also the helpful and scholarly article of Professor G McCarry, Constructive Dismissal of Employees in Australia (1994) 68 ALJ 494. In the present case clause 23(a)(ix) operates where a flight attendant has been "reinstated". It is probable that the word "reinstated" was used in 1986 and repeated in 1993 to describe a situation where Qantas placed back into employment a flight attendant whose employment had been terminated by some action of Qantas, the effect of which Qantas, in substance, nullified either voluntarily or by compulsion. The obvious situation where this would occur was where Qantas had dismissed the flight attendant in the sense that it expressly terminated the contract of employment and treated the employment relationship as at an end. However was clause 23(a)(ix) intended to be limited to dismissal of this character? Of some significance, in our opinion, is that the formulation found of the 1993 award was adopted, by its repetition, after Justice Boulton construed it as applying to a forced retirement and subsequent re-employment. Thus the parties to the 1993 award and the Commission were adopting a formulation that was not limited in its application to dismissal in the way we have just discussed. It was accepted as a formulation which would apply to situations involving some action on the part of Qantas contributing in a material way to the termination, even if it had the appearance of a resignation. It should now be construed this way. Clause 23(a)(ix) does not, however, concern situations where the flight attendant voluntarily left the employment and was not influenced in doing so in any material way by the conduct of Qantas including the implementation of its policies. In the present case, the Chief Justice made a declaration applying to each of the 24 third respondents and did so on the basis that each had been reinstated. Agreed fact number 11 was that four of them resigned and the remainder retired. Of some significance, however, are the findings of the Chief Justice at page 12 of his reasons for judgment in the following passage: "I do not think it necessary to refer to the position of each of the third respondents who gave evidence. It is sufficient to say that I am satisfied, in relation to each of them, that resentment about discriminatory practices, especially in relation to promotion prospects, was a major factor - in many cases, the dominating factor - in her decision to leave Qantas at the age of 35 or after ten years' service. It is readily understandable why this was so. Each witness commenced with Qantas before her 25th birthday. It would be time to take stock of the future and look for a position that offered prospects of advancement. Flight hostessing did not do this. Even by 1981, there had been no change in the promotion rules." These findings were not challenged in the appeal. These findings were preceded by a discussion of the evidence which had commenced with the identification of the relevant issue in the following passage at page 6 of the reasons for judgment: "The parties' agreement reduces the number of factual issues. But some remain. Although discrimination is conceded, the applicant and FAAA dispute the third respondents' claim that there was a causal connection between the discriminatory practices and their decisions to leave Qantas at age 35 or after ten years' service, as the case may be. So counsel for the third respondents led evidence on this issue. He read affidavits made by 17 of his clients. They were all cross-examined. In addition, documents were tendered by most of the parties. It is desirable that I put flesh on the bones of the agreed facts by giving an account of this evidence and making the necessary findings about causation." In our opinion, the relevant parts of the reasons for judgment of the Chief Justice read as a whole indicate that the findings earlier set out were findings in relation to causation. Thus his Honour was rejecting any suggestion that the termination of the employment of each of the third respondents was entirely voluntary and unaffected in any material way by the formulation and implementation of discriminatory work practices by Qantas. It was thus open to his Honour, in our opinion, to find that each of the 24 third respondents were flight attendants who had been reinstated. Given this conclusion it is probably unnecessary to formulate, in a more precise way, the line delineating the circumstances in which a flight attendant can and cannot be viewed as having been reinstated. However the approach of the American federal courts referred to by Professor McCarry has, in our opinion, much to commend it. That is, the inquiry should be whether there has been reinstatement after termination in circumstances where the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, and whether the employee acted reasonably. But on the basis that it would not be necessary to demonstrate that the intolerable working conditions were imposed for the purpose of forcing the employee to resign: see Young v Southwestern Savings and Loan Association 509 F. 2d 140 (5th Cir, 1975); Bourque v Powell Electrical Manufacturing Co 617 F. 2d 61 (5th Cir 1980); Shawgo v Spradlin 701 F. 2d 470 (5th Cir, 1983). We would dismiss the appeal. I certify that the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee & Moore. Associate: Dated: 19 September 1997 Counsel for the Applicant: Mr R Goot Solicitor for the Applicant: Toomey Pegg & Drevikovsky Solicitors Counsel for the First Respondent: Mr H Dixon Solicitor for the First Respondent: Blake Dawson Waldron Solicitors Counsel for the Second Respondent: Mr F L Wright QC Mr M J Walton Solicitor for the Second Respondent: Jones Staff & Co Solicitors Counsel for the Third Respondent: Mr J Basten QC Solicitor for the Third Respondent: Henry Davis York Lawyers Date of Hearing: 13 March 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 2275 of 1996 ON APPEAL FROM A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA BETWEEN: ROSEMARY ANN BARLOW Appellant AND: QANTAS AIRWAYS LIMITED and: First Respondent and: FLIGHT ATTENDANTS' ASSOCIATION OF AUSTRALIA Second Respondent PAMELA BLACKET, FAY BROWN, SUSAN BURGESS-STITT, ANNE CAMPBELL, JESSICA DAVIES, MARGUERITE DAVIS, 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 philips, gillian powell, peta rattray, lorraine rook, susan whitty, michele williams and cheryl young Third Respondents JUDGES: LEE, MOORE AND MARSHALL JJ DATE: SEPTEMBER 1997 PLACE: SYDNEY REASONS FOR JUDGMENT MARSHALL J This matter is an appeal against the judgment of Wilcox CJ of 7 November 1996 in which his Honour gave an interpretation of the Airline Flight Attendants' (Qantas) Award 1993 ("the award") pursuant to s 413 of the Workplace Relations Act 1996 ("the Act"). His Honour's judgment is now reported: see Barlow v Qantas Airways Limited (1996) 72 IR 194. The appellant applied for an interpretation of the award as a representative party on behalf of 823 flight attendants who have been continuously employed by the first respondent, Qantas Airways Limited ("Qantas"), on international air routes. The appellant had standing to bring the application as a member of the second respondent and a person bound by the award: see ss 149(1)(f) and 413(1)(b) of the Act. Wilcox CJ gave an interpretation of the award which was not the interpretation urged upon him by the appellant. His Honour made a declaration to give effect to his interpretation of the award. FACTUAL BACKGROUND As a result of discriminatory employment practices undertaken by Qantas, certain flight attendants employed by it (some of whom constitute the third respondents) ceased to be employed by it. In proceedings in the Equal Opportunity Tribunal of New South Wales ("the Tribunal"), a consent order was made on 23 January 1995 which resulted in the reinstatement of the third respondents. So far as is material, the consent order of the Tribunal provided that: "... the Complainants ... be reinstated by the Respondent [i.e. Qantas] to their previous classification and equivalent position on the following terms: (a) the Complainants' dates of commencement of employment with the Respondent are to be the dates shown in Schedule 2 and seniority is to accrue from those dates, subject to the [award]". As Wilcox CJ put it at 202: "The 29 people named in Schedule 2 of the Tribunal's order included the 24 third respondents, all of whom resumed work with Qantas on or about 27 February. Each third respondent was assigned seniority according to the date of her original commencement with Qantas." The effect of the reinstatement of the third respondents was to disturb the status quo that existed prior to 27 February 1995 regarding the seniority of flight attendants employed by Qantas on international air routes. Each third respondent received a seniority ranking corresponding to the date of her initial employment with Qantas. Consequently there was a lowering of the seniority ranking of each Qantas flight attendant employed subsequently to the third respondents, notwithstanding the continuous service of each such person. Seniority is an important concept in airline operations. It is relevant, inter alia, for bidding purposes. Flight attendants bid for work on particular routes and are accorded their preference according to their seniority. Seniority also governs other important aspects of employment including the taking of recreational leave and promotion opportunities. THE AWARD The provision in the award which was the subject of the application for interpretation was cl 23. It provides so far as is material: "(a) (i) The seniority of a flight attendant shall be determined by the length of the flight attendant's continuous service as a flight attendant with the Company. (ii) Seniority shall commence to accrue from the flight attendant's first day in the training school. ... (vii) Except by agreement between the Association and the Company, seniority shall cease either from the termination of a flight attendant's employment with the Company or from the date he/she accepts a permanent position with the Company other than as a flight attendant. (viii) Except as provided in (ix), a flight attendant having lost seniority as a result of termination or permanent employment, other than as a flight attendant, shall, if re-employed by the Company as a flight attendant, commence to accrue seniority from the date of such re-employment. (ix) Where a flight attendant is reinstated or re-employed following a successful appeal against dismissal, his/her name shall, unless the Australian Industrial Relations Commission directs otherwise, be returned to the Flight attendant Integrated Seniority List without loss of seniority. (x) Any dispute as to the application of the above rules shall be submitted to the Seniority Dispute Committee. Flight attendant integrated seniority list (b) (i) The Company shall compile a Flight attendant Integrated Seniority List which shall contain the staff number, seniority number, classification and commencement date in the training school of each flight attendant in order of seniority. (ii) A flight attendant's name and other relevant details shall be added to the Flight attendant Integrated Seniority List by the Company as soon as practicable after his/her commencement date at the training school. ... (iv) The Company shall on 1 July of each year publish a complete updated Flight attendant Integrated Seniority List showing the names of all flight attendants in order of seniority. ... Application by seniority (d) (i) Without limiting any other provisions of this Award and provided that in each case the flight attendant is sufficiently qualified to undertake the training or duty required, seniority shall be used to determine the order of selection of flight attendants to be considered by the Company for promotion, transfer to and status on an aircraft type and in the event of redundancy, selection for termination and the award of annual leave. (ii) Notwithstanding paragraph (i) hereof, promotion by merit from Level 2 to Level 3 shall be determined by: (1) Skills acquisition as defined. (2) Experience as measured by seniority. (iii) Unless otherwise agreed between the Company and the Association the provisions of paragraph (ii) hereof shall not come into operation until 3 June 1996. Until the date of operation flight attendants shall be promoted from level 2 to level 3 following application for advertised vacancies in that category and upon successful completion of the interim upgrade course, in order of seniority. (iv) Notwithstanding paragraph (i) hereof, promotion to flight attendant Level 4 shall be determined in accordance with the provisions of Clause 30 of this Award. (e) Notwithstanding the provisions contained in subclause (a)(i) of this clause, the date from which seniority shall accrue for the following flight attendants is: P A Allom 29.1.74 C L Dahl 8.6.72 C M Pask 25.2.70 P Gubbins 29.1.74 K J Nicholls 3.6.70 V Moore 26.6.68 R Lycett 5.10.72". The particular dispute between the appellant and the third respondents arose concerning the interpretation of cl 23(a)(ix) of the award. The appellant effectively contends that the relevant paragraph must be read distributively such that the word "reinstated" is referable to the words "following a successful appeal against dismissal". The third respondents contend that only the word "re-employed" is governed by the words "following a successful appeal against dismissal". On the third respondents' contention, having been reinstated, their names, in the absence of an Australian Industrial Relations Commission direction to the contrary, shall be returned to the seniority list without loss of seniority. On the contention of the appellant, the reinstatement of the third respondents must follow a dismissal and a subsequent successful appeal against dismissal for a return of their names to the seniority list without loss of seniority. Wilcox CJ found that as a matter of ordinary English the interpretation contended for by the appellant should be favoured. His Honour said at 207: "... A comma should have been inserted after the word 'reinstated', if it was not intended that it be qualified by the words 'following a successful appeal against dismissal'." His Honour then had regard to the history of cl 23(a)(iv) of the award. In doing so he examined the transcript of the proceedings before the Australian Conciliation and Arbitration Commission ("ACAC") which led to the introduction of the material provisions of the award in their current form. It was contended by the second respondent, Flight Attendants' Association of Australia ("FAAA"), that his Honour was not entitled to have regard to the transcript of proceedings in the ACAC. Wilcox CJ rejected that submission and held that "... it is permissible to have regard to any extrinsic material that shows the nature of the problem that the drafter was seeking to overcome". The question as to whether the Court is entitled to have regard to extrinsic material to aid in the interpretation of an award in the absence of ambiguity is a controversial one. There are authorities which support each side of the debate. More recent authority and the preponderance of authority in this Court favours a generous approach to the use of extrinsic material in such circumstances: see for example Hawkins v Queensland Meat Export Company P/l (Madgwick J, 31 July 1996, IRCA, unreported), Finance Sector Union v Commonwealth Bank of Australia, (Moore J, 18 December 1995, IRCA, unreported) and Western Newspapers v Warren (1994) 1 IRCR 393, 405. In each case the Court referred to the judgment of Burchett J in Short v Hercus (1993) 40 FCR 511, where a generous approach to the use of extrinsic material to aid in award interpretation was favoured. On the other hand, there are decisions of the Federal Court of Australia, most of which pre-date Short v Hercus, which hold that it is erroneous to have regard to extrinsic material in the absence of ambiguity: see Australian Bank Employees Union v Australia and New Zealand Banking Group Limited, (Keely J, 12 October 1990, at 10-11 unreported), Victoria v Australian Teachers Union (1993) 47 IR 328, 334, Bell v Gillen Motors P/L (1989) 27 IR 324, 331, City of Wanneroo v Holmes (1989) 30 IR 362, 378 and Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444, 449. It was not necessary for current purposes to resolve the apparent conflict between the two lines of authority referred to above. No party sought to persuade the Court that Wilcox CJ had erred by having regard to the circumstances of the making of cl 23(a)(ix) of the award. The relevant transcript was in evidence before his Honour. It disclosed that the relevant provisions came into being as a result of an amalgamation of seniority lists for male flight stewards and female flight hostesses into one seniority list for flight attendants. That matter was described by an advocate appearing in the proceedings before the ACAC that led to the making of Cl 23 (a)(ix) of the award as "the matter of substance". He further commented that the "... parties... have also tried to tidy up the clause just slightly". The two predecessor provisions which were to be "tidied up just slightly" were in materially identical form to each other and provided that a relevant employee: "... having lost seniority as a result of termination or permanent employment other than as a (flight hostess/flight steward) shall, if re-employed by the Company as a (flight hostess/flight steward) commence to accrue seniority from the date of such re-employment, unless such constitutes reinstatement, in which case service shall be deemed unbroken." CONCLUSION It is apparent upon a reading of the transcript of the ACAC proceedings in 1986, that the parties did not intend to alter the effect of the predecessor provisions to cl 23(a)(ix) in the making of the new provision. Wilcox CJ held as much and in my view was correct in so doing. When one has regard to the transcript of the proceedings in which cl 23(a)(ix) of the award was made, the inescapable conclusion is that the word "reinstated" was intended to stand alone and not be governed by the words "following a successful appeal against dismissal". It was contended by the appellant that the third respondents were not "reinstated" because of the fact that their re-engagement was at the behest of a non-industrial tribunal in circumstances where FAAA was not a party to the proceedings. In my view, the circumstances surrounding the reinstatement of an employee cannot determine whether what truly occurred was reinstatement. For example, an employee may be reinstated by an employer without the need for recourse to proceedings in any court or tribunal as a result of a consensual settlement at an early stage of the issues that led to the termination of the employment relationship. FAAA contended that one cannot be reinstated without being dismissed. It submitted that the third respondents had not been dismissed and therefore could not be reinstated within the terms of cl 23(a)(ix). Assuming that the third respondents had not been dismissed but each had voluntarily terminated her employment, I do not see why the third respondents cannot be said to have been reinstated. It is open to an employer to reinstate an employee notwithstanding that the employee initiated the termination of the employment relationship. For example, an employer may accept the voluntary resignation of an employee but later determine that it wishes to have the employee return to its employ. It may successfully advise the employee to return to work on terms that constitute a reinstatement rather than re-employment such that the employee does not lose continuity of service for long service leave and holiday pay purposes, or indeed any other purposes. If I am in error in determining that Wilcox CJ correctly interpreted cl 23(a)(ix) of the award and that restoration of the seniority rights of the third respondents was only possible as a result of the re-employment of them following a successful appeal against dismissal, there is insufficient material before the Court to enable a determination as to whether each of the third respondents was "dismissed". Whether such "dismissals" occurred is a contested question of fact which is inappropriate for determination in proceedings under s 413 of the Act: see Printing and Kindred Industries Union v Bendigo Advertiser and Independent Pty Ltd (Gray J, 25 February 1988 unreported) where his Honour said at 9-10: "It is no part of the function of the Court, in determining an application pursuant to s 110 of the Act [now s 413], to determine the facts of any particular case. It is therefore unnecessary for me to determine whether any particular employee has reached pensionable retiring age, and to construe that phrase." See also Victoria v Australian Teachers Union (1993) 49 IR 149, 151 where Northrop J said: "Section 51 corresponds to s 110 of the Australian Conciliation and Arbitration Act 1904. It has been held that the provision is designed to enable the Court to give an authoritative decision on the meaning of an award. Essentially the decision is based upon the proper construction of words used in the award. The construction is to have general application and is not directed to the particular facts of any matter in dispute between parties. At the same time it is necessary for the Court to have some background information to constitute a framework within which the award is to be construed." See further Media Entertainment and Arts Alliance v John Fairfax Group Ltd (1993) 49 IR 374, 375. Consequently, in the event that I am in error as to the correct interpretation of the award, it would not be appropriate to make a declaration in the terms sought by the appellant. It would be more appropriate to remit the matter to the trial judge to enable him to determine if agreement can be reached on the question as to whether each of the third respondents was dismissed. In the absence of such agreement it would be appropriate for the application to be dismissed on the basis that it essentially seeks enforcement of the award as distinct from an interpretation upon undisputed facts: see Master Builders Association of Victoria v BLF (1981) 54 FLR 358, 360-362 and Actors Equity v Australian Broadcasting Corporation (1986) 17 IR 393, 394. Having regard to the foregoing the order I would make is that the appeal be dismissed. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall Associate: Dated: Counsel for the Appellant: R M Goot Solicitor for the Appellant: Toomey Pegg and Drevikovsky Counsel for the first Respondent: H Dixon Solicitor for the first Respondent: Blake Dawson Waldron Counsel for the second Respondent: F L Wright QC with M Walton Solicitor for the second Respondent: Jones Staff Counsel for the third Respondents: J Basten QC Solicitor for the third Respondents Henry Davis York Date of Hearing: 13 March 1997 Date of Judgment: 19 September 1997