Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 | Case summary

High Court of Australia|1980-03-04|Before: Wilson JJ, Stephen J

This matter of inconsistency may also be approached from a slightly different point of view. For Ansett to wish to dismiss Mrs. Wardley simply because she is a woman, which is its desire, without any reference to her competence or efficiency in the work-place, seems no less remote from the industrial subject matter with which cl. 6B deals than would be her dismissal because of her race or the colour of her skin. Yet her dismissal upon grounds such as those would surely fall foul of the Commonwealth's Racial Discrimination Act 1975 and to see inconsistency between the Agreement and the Equal Opportunity Act would also require recognition of conflict between the Agreement and the Racial Discrimination Act, s. 15 (1) (c) of which is comparable to s. 18 (2) (b) of the Victorian Act. For my part, I see no such conflict between that Commonwealth Act and the present Agreement, a conflict in which the former would necessarily prevail; examination of the Agreement as a whole leads me to the conclusion that it is not to be interpreted as conferring powers of dismissal which would conflict with the Commonwealth Act. In just the same way, I would not interpret it as conflicting with s. 18 (2) (b) of the Equal Opportunity Act.

Concluding, as I have, that there is here no question of direct collision between Agreement and Act, there is, a fortiori, no such inconsistency arising under the doctrine of "covering the field", and this very much for the reasons which I have stated in dealing with direct collision. Whatever field the Agreement may cover, the question of dismissal upon the discriminatory ground that the pilot is a woman is in my view no part of it.

I have sought in the foregoing to give effect to what I regard as important factors in this case: the contrast between the Agreement, in itself an unremarkable instrument serving the useful but quite limited purpose of settling a particular dispute between one employer and a class of its employees, and the Act, a measure of general application giving effect to far-reaching social reforms: the comparable contrast which may be drawn between cl. 6B of the Agreement, which deals in the most general and unemphatic way with rights of termination of the contract of service, and the clear and specific terms of s. 18 (2) (b) of the Act: the preoccupation of the Agreement with no more than the narrow area of industrial relations and the absence of any attempted usurpation of that area by the Act: the way in which the Agreement operates against the background of the general law while the Act provides a part of that same background. It is, in essence, these factors which, in construing these two measures, have led me to conclude that no inconsistency exists between Agreement and Act. What seems to me to be wholly absent is any inconsistency, whether by direct collision of laws or by some federal covering of a particular field, which calls for the exercise of the puissant power of s. 109 of the Constitution so as to render invalid any part of this enactment of the legislature of a State.

It is the pursuit of that search which has led me to conclude that the context and subject matter of the Conciliation and Arbitration Act, and of its factum, the present Agreement, suffice to deny the existence of any inconsistency in the sense of direct collision between cl. 6 of the Agreement and s. 18 (2) (b) of the Act.

In argument it was submitted that upon a quite different approach to that which I have adopted one should equally conclude that there exists no inconsistency. That approach involves treating cl. 6 as concerned only with matters of length of notice, the amount of pay to be given or forfeited in lieu of notice and the right of recourse to grievance procedures, and not at all with the right of dismissal itself. That right would, on this view, be derived exclusively from the general law of contract and no question of direct collision between Agreement and Act would then arise, since the Agreement would then be understood as not dealing at all with the actual right of dismissal but only with questions of length of notice and the like.

However I have difficulty with the concept which this view entails. There are two matters involved in it which I regard as unacceptable. First, it requires the breaking up of the concept of termination of a contract into distinct elements, being the bare right of termination and the period of notice. Each element is to be regarded as so distinct from the other that each may have different origins and come together only when united in the contract itself. This assumes that a bare right of termination can exist, devoid of all provision as to its exercise. It is not that it exists as a right of termination exercisable at will without notice; were that so it would, when introduced into the contract of employment, be irreconcilable with the notice provisions of s. 6B. Its nature must instead be that of a bare right, incapable of exercise until provisions as to its exercise are supplied from another source. I know of no such concept in the general law of contract, from whence it is said to arise.

The corollary to my first objection is that even if the right of termination is to be derived from the general law, that source will not provide any such bare right as I have described, nor, for that matter, a right exercisable without notice. What the general law of contract would supply, in the absence of specific agreement, would be a right to terminate upon reasonable notice. As Bayley J. observed in Winstone v. Linn [12] , when discussing a contract of apprenticeship:

Where the ordinary relation of master and servant subsists, the contract is to endure for a reasonable time if no specific time be fixed, and is determinable by a reasonable notice. Again in In re African Association Ltd. and Allen [13] Bray J. said: It must, I think, be taken to be the law that an agreement of employment of this nature confers no right on the employer, in the absence of misconduct, to terminate the engagement without reasonable notice, unless the agreement contains clear words indicating a contrary intention. But such a right, to terminate upon reasonable notice, would itself conflict with the terms of cl. 6B as to notice, as would a right to terminate without any notice at all. 1. (1823) 1 B. & C. 460, at pp. 468-469 [107 E.R. 171, at p. 174]. 2. [1910] 1 K.B. 396, at p. 400.

In any contract the source of each of its terms, whether explicitly the subject of negotiation and agreement, or referentially imported into it from some other document, or implied by law, must depend upon the particular circumstances of its making. Of the making of Mrs. Wardley's contract of employment we know nothing. However it may not be improper to assume that when the conditions of any employment are governed by an award or industrial agreement, the contract of employment will, either expressly or by implication, referentially incorporate the applicable terms of that award or agreement. I treat cl. 6B as providing the parties to the contract with their respective powers of termination as well as prescribing the procedure for termination. To incorporate cl. 6B of the Agreement referentially into the contract of employment would, in my view, import into it a right of termination on notice, complete in itself. There appear to me to be no grounds upon which to found the view that something less than the referential incorporation in the contract of employment of the whole of the terms of cl. 6B has occurred in the present case. What was said by Latham C.J. in Amalgamated Colleries of W.A. Ltd. v. True [14] does not, I think, tell against this view.

So far, I have said little about the case of pilots who, having longer service with Ansett than has Mrs. Wardley at present, are entitled to have resort to the Agreement's grievance procedures. Peculiar difficulties, which do not present themselves in the present case, may conceivably arise in such cases. It is not the mere fact that an appeal lies to a Grievance Board that may give rise to them. On the view which I have taken of the interaction of the Agreement and the Act such an appeal should, in theory, occasion no question of inconsistency; the Board, like Ansett itself, would be obliged to pay regard to the general law and if it appeared to it that a dismissal breached the law it would have to frame its decision accordingly. However there does appear to be scope for conflict between a decision of the Grievance Board, unfavourable to a pilot and based upon its view of the evidence before it, and a subsequent decision of the Equal Opportunity Board to the opposite effect, based upon what may perhaps be to some extent different evidence and, perhaps, a different view of that evidence. Whether or not this would be a situation to which s. 109 of the Constitution might apply need not now be determined; not only is the situation wholly conjectural but it has not been the subject of any detailed argument before us. It may, indeed, raise other constitutional issues quite apart from s. 109.

Ansett has sought by way of relief three distinct declarations, none of which I would make. The making of the first and second declarations, concerned with the application of the Act to Ansett in determining whether it should offer Mrs. Wardley employment and if so upon what terms, can no longer be in question since she has in fact been employed by Ansett and is currently in its employ. Ansett seeks a third declaration, that no provision of Pt III of the Act applies to Ansett in the exercise by it of "such rights to dismiss pilots as are conferred on it" by the Agreement. For the reasons already given I would refuse any such declaration. I would accordingly dismiss the originating summons.

The plaintiff, Ansett Transport Industries (Operations) Pty. Ltd. ("Ansett") seeks declarations that Pt III of the Equal Opportunity Act 1977 Vict. ("the State Act") does not apply to it (1) in determining whether it should offer the defendant, Mrs. Wardley, employment as a trainee pilot; (2) in determining the terms of such employment; and (3) in the exercise of its right to dismiss pilots pursuant to the Airline Pilots Agreement 1978 ("the Agreement"). The declarations are sought on the basis that the State Act is inconsistent with the Agreement and that the State Act is to the extent of the inconsistency inoperative.

The defendant initially sought, and was refused, employment with Ansett as a trainee pilot. After orders were made against Ansett by the Equal Opportunity Board ("the Board") under the State Act, Ansett indicated that it would include the defendant in its next intake of trainee pilots. The consequence is that argument centred on the third of the three declarations sought and, for this reason, I shall direct my remarks principally to the issues which it raises. It seems that on 5th November 1979, after argument in this Court concluded, the defendant was enrolled as a trainee pilot with Ansett.

Ansett, which is a company incorporated in Victoria, carries on business amongst other things as an airline operator in all States of Australia, including Victoria, under the name of Ansett Airlines of Australia. From time to time Ansett recruits pilots in Victoria for the purposes of its airline services.

The terms and conditions of service of pilots so engaged are laid down in the Agreement the parties to which are Ansett and the Australian Federation of Air Pilots ("the Federation"), an organization registered under Pt VIII of the Conciliation and Arbitration Act 1904, as amended, ("the Act") and a declared body pursuant to s. 88Z of the Act.

The Agreement was made in settlement of a dispute created by the service on Ansett of a log of claims dated 24th July 1978 by the Federation. The Agreement was certified by the Flight Crew Officers Industrial Tribunal on 21st March 1979 pursuant to s. 28 of the Act. Under s. 28 (3) of the Act a memorandum or agreement so certified "has the same effect as, and shall be deemed to be, an award of the Commission for all purposes of this Act". Unfortunately the log of claims is not in evidence before this Court. However, I am prepared to assume that the certified Agreement may be treated in all its provisions as falling within the ambit of an industrial dispute which extended beyond the limits of one State: Reg. v. Kirby; Ex parte Transport Workers' Union of Australia [15] ; Reg. v. Railways Appeals Board and Commissioner for Railways (N.S.W.); Ex parte Davies [16] .

(1954) 91 C.L.R. 159. 2. (1957) 96 C.L.R. 429, at p. 437.

In 1976 the defendant lodged her application with Ansett for employment as a pilot. Following interviews and tests, her application was rejected in July 1978. On 2nd August 1978 the defendant lodged a written complaint with the Board alleging that Ansett had discriminated against her on the ground of her sex in refusing her employment.

The State Act makes it unlawful for an employer to discriminate against a person on the ground of sex or marital status in determining who should be offered employment; in the terms on which the employment is offered; in refusing to offer employment (s. 18 (1)); in denying an employee opportunities of promotion and other benefits; and in dismissing an employee (s. 18 (2)), amongst other acts.

Discrimination is defined in s. 16. The Board is constituted under Div. 2 of the Act and assigned duties under Div. 3. Pursuant to Pt VI, Div. 1, the Board may take steps to hear and determine complaints of discrimination and to make orders.

On 19th June 1979 the Board ordered pursuant to s. 40 (2) of the Act:

That Ansett refrain from committing any further act of discrimination against the defendant.

That Ansett engage the defendant as a trainee pilot not later than its next intake of pilots.

That within fourteen days of the date of the order Ansett pay to the defendant by way of damages $14,500.

That from the date of the order until the defendant first receives a salary from Ansett following her engagement as a trainee pilot or until her rejection of an offer of such engagement Ansett pay to the defendant within fourteen days of the liability to do so arising, the sum of $40 per day.

Ansett's case of inconsistency rests on the proposition that the provisions of cl. 6 of the Agreement (referred to in the Agreement as s. 6) confer upon it an unfettered right to dismiss pilots, the provisions of the State Act, particularly s. 18 (2), being inconsistent with this right. The defendant makes two rejoinders: (1) that cl. 6 does not confer an unfettered right to dismiss; rather it merely prescribes the period of notice for the exercise of a right which arises under the general law; and (2) that, even if Ansett's interpretation of cl. 6 be accepted, the conferring of an unfettered right to dismiss is something which lies outside the concept of "industrial matter" as defined by s. 88H of the Act, with the consequence that the clause cannot result in the inconsistency claimed by Ansett.

It is convenient in the first instance to examine the second point made by the defendant. The jurisdiction of the Tribunal is limited to interstate disputes as to "industrial matters" as defined by s. 88H. The section defines "industrial matters", subject to any contrary intention, as meaning "all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by employers".

It may be that this definition is narrower than that contained in s. 4 which refers to the jurisdiction of the Commonwealth Conciliation and Arbitration Commission. As Barwick C.J. noted in Reg. v. Stanton; Ex parte Associated Airlines Pty. Ltd. [17] , the two definitions are differently structured, s. 88H lacking both the opening words of the s. 4 definition and a counterpart to par. (k) of that definition. Nevertheless, it seems to me that a dispute between an airline and its pilots arising from the non-acceptance of a claim by the pilots that the right of the airline to terminate the services of its pilots should be regulated by the provisions of an award is a dispute as to a matter "pertaining to other terms or conditions of service or employment" within the meaning of the s. 88H definition. There is no reason why these general words which are, according to their natural meaning, apt to apply to general terms and conditions regulating the employment relationship should be restricted.

The comments of Barwick C.J. in Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots [18] do not support any such restriction. The Chief Justice there said:

whilst it may be no objection to an award or order settling an industrial dispute or question that the award or order may impinge upon management or the exercise of managerial discretion, management or managerial policy as such is not in my opinion a proper subject matter for an award or order. The Tribunal in this case, in my opinion, had no jurisdiction to enquire into or make any decision about the business considerations upon or for which Qantas decided to give the notices of termination to the airline pilots. The Chief Justice was answering the submission that the Tribunal had jurisdiction to determine whether the giving of notice of termination of employment for redundancy was in accordance with the terms of an award on the ground that this question related to a matter within the s. 88H definition. He was not then dealing with the question whether an award could be made defining and limiting the right of an airline to terminate the services or employment of its pilots. Later, the Chief Justice conceded that the Tribunal had jurisdiction to entertain an independent application to vary the award by dealing with such a topic [19] . 1. (1971) 127 C.L.R. 11, at p. 20. 2. (1971) 127 C.L.R., at p. 21.

It is one thing to say that the exercise of an admitted right of dismissal for reasons of redundancy, involving as it does questions of management and managerial policy, cannot constitute an industrial matter, but it is another and unacceptable thing to say that a dispute as to the definition and limitation of the employer's right to dismiss his employees is not an industrial matter. In my view a dispute of the latter kind falls within the s. 88H definition and, accordingly, it can ground an award by the Tribunal defining and limiting the employer's right of dismissal.

As a preliminary to an examination of the Agreement I should point out that the major thrust of Ansett's case is to establish the existence of what has been called "direct inconsistency", that is, the disconformity which is created by the presence of an absolute right to dismiss for any reason whatsoever, which Ansett finds in the Agreement, and the presence in the State Act of a prohibition against dismissal for the prescribed reasons. "Direct inconsistency" is a description which has always been applied to cases in which it is impossible to obey both laws (R. v. Licensing Court of Brisbane; Ex parte Daniell [20] ; Blackley v. Devondale Cream (Vic.) Pty. Ltd. [21] ). It is also a description which has been applied to cases in which the Commonwealth law grants a permission or a right and the State law prohibits that which is permitted or prohibits the exercise of the right (Colvin v. Bradley Brothers Pty. Ltd. [22] ). Cases of this kind have sometimes been treated as a separate head of inconsistency (O'Sullivan v. Noarlunga Meat Ltd. [23] ), though even when so treated they have generally been related to the "cover the field" test (O'Sullivan v. Noarlunga Meat Ltd. [24] ; Swift Australian Co. (Pty.) Ltd. v. Boyd Parkinson [25] ), apparently on the ground that direct inconsistency is confined to a situation in which simultaneous obedience to both laws is impossible.

(1920) 28 C.L.R. 23. 2. (1968) 117 C.L.R. 253, at p. 258. 3. (1943) 68 C.L.R. 151. 4. (1954) 92 C.L.R. 565, at p. 592. 5. (1956) 95 C.L.R. 177, at pp. 182, 185. 6. (1962) 108 C.L.R. 189, at p. 207.

As the various tests which have been applied by the Court are all designed to elucidate the issue of inconsistency it is not surprising that they are interrelated and that in a given case more than one test is capable of being applied so as to establish inconsistency. Especially is this so when it is the giving of a permission or the grant of a right by Commonwealth law that is the foundation of a claim of inconsistency. If, according to the true construction of the Commonwealth law, the right is absolute, then it inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales [26] , where the permission for which Commonwealth law provided was neither absolute nor comprehensive.

Inconsistency between a Commonwealth award or an agreement having the force of an award and a State law involves special considerations. They were discussed in Robinson (T. A.) and Sons Pty. Ltd. v. Haylor [27] , and they explain the presence of s. 65 in the Act. In truth the case which Ansett makes is one of inconsistency between the Act and the State Act, s. 109 giving paramountcy to the Act with the result that the State Act cannot operate if, pursuant to the Act, the Commission has exercised its power to the exclusion of the provisions made by State law on the topic. The issue therefore turns upon the interpretation of the Agreement and, despite the emphasis given to the claim of direct inconsistency, the question is whether the provisions of the Agreement were intended to operate, subject to, or in disregard of, the general law.

The Agreement consists of various clauses which are described as sections. I shall refer to them as clauses. Clause 6 - " contract of employment " is the vital clause. It is, so far as it is relevant, in these terms:

A. The employer may employ its pilots and the pilots shall serve the employer in any part of the world where that employer may from time to time be operating, subject to the provisions of this agreement.

B. The services of a pilot shall be terminable by either the employer or a pilot -

During the first six months of service, by seven days' notice in writing;

After the completion of six months of service, by one month's notice in writing;

By the payment to the pilot of seven days' or one month's salary in lieu of notice as aforesaid or

By the forfeiture by the pilot of the last seven days' or one month's salary paid to him, in lieu of notice as aforesaid.

Provided that the period of notice set out herein may be reduced or waived by mutual agreement.

A pilot whose services are terminated whether by summary dismissal or notice shall be given the reasons for this dismissal in writing, in the notice of dismissal, and shall have recourse to the Grievance Procedures except as provided in s. 6H.

Clause 6H is in the following terms: During the period of Initial Service which shall be 12 months in respect of all matters associated with his employment, a pilot's services may be terminated in accordance with this agreement without recourse to Grievance Procedures.

The Grievance Procedures, which are set out in cl. 50 of the Agreement, provide for appeals by employees in disputes on matters which include the termination of a pilot's services. A decision of a Grievance Board is made binding on the Federation, Ansett and its pilots.

The Agreement as a whole deals in some detail with matters pertaining to the employment relationship between Ansett and those pilots who are members of the Federation and are from time to time employed by Ansett. Many of the matters dealt with in the Agreement relate peculiarly to the position of pilots, for example, licences, "blocks", accommodation, reserve duty, scheduling.

From my examination of the Agreement as a whole, I conclude that it should not be viewed as a general industry award which seeks to determine exhaustively the respective rights of employer and employee. Although the Agreement does deal with many of the matters usually found in an award, such as pay, hours of work and leave, its emphasis is on setting out in exact detail the manner and procedure governing the advancement of a pilot in terms of seniority and rights dependent thereon. Clause 6B does not deal with the substantive right of dismissal. Instead, its opening words assume the right of the employer under the general law to terminate the employment of a pilot and the import of the clause as laid down in pars. 1, 2, 3 and 4 is to prescribe the procedure and regulate the means whereby the right to terminate may be effected.

The provisions of cl. 6B accord with the notion of seniority which pervades the entire Agreement. Thus an employee of six months' standing or less will be given one week's notice, an employee of more than six months' standing will be given one month's notice and, pursuant to cl. 6H, an employee of over twelve months' standing may have recourse to the Grievance Procedures.

The essentially procedural nature of cl. 6B is emphasized when it is compared with the relevant provisions of the Broadcasting and Television Act 1942 Cth which were held to be inconsistent with s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 S.A. in Australian Broadcasting Commission v. Industrial Court of South Australia [28] . Section 43 (2) of the Broadcasting and Television Act provided that the Australian Broadcasting Commission should appoint such officers, other than the general manager, and engage such temporary employees "as it thinks necessary". Section 43 (6) made the "terms and conditions of employment of officers and temporary employees such as are determined by the Commission with the approval of the Public Service Board". The same Act preserved the operation of awards made by the Commonwealth Court of Conciliation and Arbitration and determinations made by the Public Service Arbitrator and contained detailed provisions relating to the classification, abolition and reclassification of positions in the service of the Commission, transfer, promotion and dismissal of officers. Section 15 (1) (e) of the South Australian Act, which conferred on the Industrial Court of South Australia jurisdiction to review the dismissal of an employee and if necessary to order the employer to re-employ him, was held to be inconsistent with the Commonwealth Act, in particular with ss. 43 (2) and 43 (6).

Clause 6B of the Agreement stands in contrast to s. 43 (6) of the Broadcasting and Television Act. The contrast shows that cl. 6B does not in itself expressly or impliedly seek to vest in the employer an unfettered right of dismissal on any grounds. It seeks to regulate the period of notice and assumes the rights of dismissal arising under the general law.

Only one ground for dismissal is specified in cl. 6 and that is where a pilot does not hold certain qualifications after five-and-a-half years' service (cl. 6G (2)). For the rest, under the general law Ansett has a right to dismiss a pilot in the first twelve months. Thereafter Ansett's right to dismiss under the general law is qualified by a procedure which reposes a discretion in the Grievance Board.

Ansett argued that Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. [29] supported the view that cl. 6B confers a substantive right of dismissal on Ansett. I do not agree. In Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. the award made under the Act provided that the employment should be terminated by a week's notice on either side. However, the award also provided that "This shall not affect the right of the Company to dismiss an employee without notice for malingering, inefficiency, neglect of duty or misconduct ". This award was alleged to be inconsistent with s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 S.A.. In the light of the specific words of the award, viz. "the right of the Company to dismiss an employee without notice", it is clear that the power to direct re-employment under the State Act and the federal award were inconsistent. However, no such "right" is given here. Rather, cl. 6B of the Agreement is only concerned with the question of notice.

Consequently, I do not find any direct inconsistency between cl. 6B and the State Act. The Agreement does not confer on Ansett a substantive right of dismissal; it merely assumes the right of dismissal for which the general law provides. The right of an employer under the general law to dismiss an employee has been altered in Victoria by the State Act in that an employer may not discriminate against an employee on the ground of sex in offering employment, refusing to offer employment or in the terms on which employment is offered (s. 18 (1)) or by dismissing an employee by reason of sex (s. 18 (2) (b)). The Agreement is to be read in the light of this alteration in the general law. The grounds on which I have reached the conclusion that there is no direct inconsistency also require the conclusion that cl. 6B of the Agreement does not seek to cover the field of the employer's substantive right to dismiss.

Unquestionably there is a strong case for saying that, in cases to which the Grievance Procedures apply, namely, cases of termination of employment after the period of Initial Service (of twelve months) has expired, the Agreement is directly inconsistent with the State Act. After twelve months' service an employee may seek to contest his dismissal through the Grievance Procedures and this may result in a confirmation by the Grievance Board of his dismissal. He may then take his case to the Equal Opportunity Board which may order his reinstatement. This situation, should it arise, may well result in direct inconsistency, though it is fraught with difficulties not explored in argument.

The Agreement expressly provides that the determination of the Grievance Board is to be binding on the parties. The validity and the effect of this provision were not debated. It was not suggested that it was invalid as an attempt to oust the jurisdiction of the courts to deal with wrongful dismissal. And it was assumed that the constitutional power under s. 51 (xxxv.) as exercised by the Act extended to the inclusion in the Agreement of a provision authorizing a tribunal set up by the Agreement to give a binding determination of a dispute between the parties and that this involved no exercise of judicial power by the tribunal which would conflict with Ch. III of the Constitution. On the assumption that the provision is valid and that its effect is to make the determination of the Grievance Board on the issue of dismissal conclusive between the parties I would conclude that the determination takes effect according to its terms, notwithstanding a determination or order to the contrary made under the State Act.

This conclusion still leaves for decision the question whether the discretion which the Agreement reposes in the Grievance Board is to be exercised subject to, or in derogation of, the general law. The fact that inconsistency may arise between a determination by the Grievance Board and one by the Equal Opportunity Board does not in itself provide support for the view that the Agreement evinces an intention that the Grievance Board is not to be bound by, or is not to apply, the substantive principles of law expressed in a State statute. It is one thing to say that the decision of the Grievance Board is to prevail over a decision of a Board under a State Act. It is quite another thing to say that the Grievance Board may, in arriving at its decision, disregard the provisions of substantive law contained in the State Act. It is not enough for a plaintiff who alleges inconsistency to point to the existence under the Commonwealth law of a power or discretion which of its nature may be exercised in conformity with the provisions of State law. To succeed he must go further and demonstrate that as a matter of legislative intention the power or discretion is to be exercised to the exclusion of what State law says upon the topic. Although the issue of dismissal is left in the discretion of the Grievance Board, there is nothing which indicates that the discretion is reposed in the Grievance Board to the exclusion of any provision which the general law may make upon the subject.

Accordingly, although the Grievance Procedures may give rise to a situation of direct inconsistency with the State Act, this inconsistency does not in my opinion have any application to the defendant during the period of Initial Service. Further, as the direct inconsistency is not based on the existence of an intention that the Grievance Board is to exercise its discretion in derogation or in disregard of the general law, there is no foundation for the argument that the inconsistency to which I have referred in some way colours or affects the provisions of cl. 6B of the Agreement as they relate to the defendant during her period of Initial Service.

It follows that Ansett's case for the second and third declarations sought, fails. Although the second declaration sought does not require separate discussion, I should acknowledge that there are provisions in the Award which refer to "wives" of pilots. However, I do not read into these references a positive requirement that females should not be enrolled as trainee pilots.

Section 40 (2) empowers the Board to make an order (a) against a respondent requiring it to refrain from committing any further act of discrimination against a complainant; (b) requiring a respondent to pay within a specified period to a complainant such damages as it thinks fit to compensate the complainant for loss or damage suffered in consequence of an act of discrimination; (c) requiring a respondent to perform any specified acts with a view to redressing any loss or damage suffered by a complainant as a result of an act of discrimination; or to order that the complaint be dismissed.

The first order made by the Board, that which required Ansett to refrain from committing any further act of discrimination against the defendant, effectively prohibited Ansett from dismissing the defendant on the ground of her sex, once it employed her. For the reasons which I have given, the provisions of the State Act, including s. 40 (2) (a) which authorized the making of the first order, involved no inconsistency with the Award.

The second order made by the Board, that which required Ansett to employ the defendant, was authorized by s. 40 (2) (c). Its validity is put in question by the first declaration sought by Ansett. However, I am unable to perceive any basis for inconsistency between the Award and the provisions of the State Act which enables the Board to direct Ansett to employ the defendant. The Award does not attempt to prescribe the qualifications of eligibility of persons seeking to enrol as trainee pilots with Ansett. This is a topic which is left untouched by the Award which regulates the terms and conditions of employment of pilots and trainee pilots once engaged by Ansett.

The third and fourth orders made by the Board are authorized by s. 40 (2) (b) of the State Act. For the reasons given in the preceding paragraph, the provisions of the State Act which authorized the making of these orders are not inconsistent with the Award.

In the result I would refuse to make the declarations sought and dismiss the originating summons.

Mrs. Wardley is now employed by the plaintiff company. The first and second declarations therefore concern questions which are moot, and should be refused.

To justify its claim for the second declaration, the plaintiff contends that the Equal Opportunity Act 1977 Vict. is inconsistent with cl. 6B of the Airline Pilots Agreement 1978 which provides that the employer may terminate the services of an employed pilot on seven days' notice. The Agreement contains no reference to grounds for termination. The plaintiff claims that its right to terminate services is unqualified except for the seven days' notice requirement.

In my opinion, there is no inconsistency. The Agreement does not give a right to terminate which, apart from the seven days' notice requirement, is unqualified; it leaves the employer to exercise such rights as it has under the general law (with the seven days' notice requirement). The rights under the general law are those under the common law as modified by any Act or State Act. It has been modified significantly in at least two respects: (1) s. 5 of the Conciliation and Arbitration Act 1904 Cth, as amended, prohibits dismissal or prejudicial conduct by an employer towards an employee by reason of the fact that he is a member of an organization, etc.; (2) the Equal Opportunity Act also places certain limitations on the common law right of an employer. The circumstances are similar to those in Charles Marshall Pty. Ltd. v. Collins [30] where it was held that a federal award, although dealing generally with conditions of employment, was not exhaustive and did not deal with the topic of long service leave which remained regulated by State Acts.

Otherwise, the claim for the third declaration does not relate to any concrete event or circumstance. It seeks an abstract ruling which would be applicable to events which have not occurred and may not occur, that is, termination of Mrs. Wardley's employment on grounds which would come within the scope of the Equal Opportunity Act. If this did occur, the validity of the termination may not depend on supposed inconsistency between the Act and the Agreement. Larger questions may arise, for example, whether Parliament has authorized the tribunals established under the Conciliation and Arbitration Act to make or certify awards or agreements which provide for unjustifiable sex discrimination, and whether Parliament has legislative power to authorize such discrimination. The Constitution makes no discrimination between the sexes. It may be that an implication should be drawn from its terms that the Parliament's legislative powers do not extend to authorizing arbitrary discrimination between the sexes. There are other constitutional questions which also have not been explored, but this case is not a suitable vehicle for their consideration. If a live issue of the validity of termination of services based on sex discrimination were to arise, the declaration sought would not necessarily resolve the issue. For these reasons, the third declaration should also be refused.

This matter was removed into this Court from the Supreme Court of Victoria by order made on 4th October 1979 pursuant to s. 40 of the Judiciary Act 1903, as amended. In the Supreme Court of Victoria Ansett Transport Industries (Operations) Pty. Ltd. ("Ansett") had commenced proceedings against the defendant by way of originating summons asking various questions concerning the application of the Equal Opportunity Act 1977 Vict. ("the State Act") to Ansett in relation to the employment of the defendant as a trainee pilot, and for certain declarations concerning the operation of Pt III of the State Act and of the Airline Pilots Agreement 1978, an agreement certified under s. 28 of the Conciliation and Arbitration Act 1904, as amended, by the Flight Crew Officers' Industrial Tribunal ("the Agreement").

The State Act sets up a body called the Equal Opportunity Board which is given various functions. Part III deals with "discrimination" and the material sections are ss. 16 and 18 which are as follows:

(1) A person discriminates against another person on the ground of sex or marital status in any circumstances relevant for the purposes of a provision of this Act if on the ground of the sex or marital status of the other person the first-mentioned person treats the other person less favourably than he treats or would treat a person of the other sex or of a different marital status.

(a) no account shall be taken of special treatment afforded to women in connexion with pregnancy or childbirth; and

(b) a comparison of the cases of persons of the other sex or of a different marital status shall be a comparison where the relevant circumstances in the one case are the same, or are not materially different, in the other.

(1) It is unlawful for an employer to discriminate against a person on the ground of sex or marital status -

(a) in determining who should be offered employment;

(b) in the terms on which the employer offers employment; or

(2) It is unlawful for an employer to discriminate against an employé on the ground of sex or marital status -

(a) by denying the employé access, or limiting access by the employé, to opportunities for promotion, transfer or training or to any other benefits connected with employment; or

(b) by dismissing the employé or subjecting the employé to any other detriment.

(a) employment for or in connexion with a private household;

(b) discrimination on the ground of sex in the offering of employment to actors or performers for the purposes of dramatic performances or entertainment;

(c) discrimination on the ground of sex in employment where the number of persons employed by the employer does not exceed five (disregarding any persons employed within his private household); or

(d) the offering of employment only to persons of the one sex where as a term of the employment the employé is required to reside in communal residential accommodation provided by the employer only for persons of that sex.

(4) For the purposes of paragraph (c) of sub-section (3) -

(a) a person who holds a controlling interest in a body corporate shall be regarded as the employer of the employés of the body corporate; and

(b) a body corporate that is deemed to be related to another body corporate by virtue of sub-section (5) of section 6 of the Companies Act 1961 shall be regarded as the employer of the employés of that other body corporate.

Part VI deals with enforcement and s. 38 provides for the lodging of complaints as follows:

(1) A person who claims that some other person has discriminated against him on the ground of sex or marital status in contravention of a provision of this Act, may lodge a written complaint setting out details of the alleged act of discrimination with the Registrar.

(2) A person, or two or more persons together, may lodge with the Registrar a written complaint under this section setting out details of alleged acts of discrimination against him or them or against him or them and against other persons.

(3) A complaint under this section may not be lodged later than twelve months after the date on which the act of discrimination the subject of the complaint is alleged to have been committed.

(4) Where a complaint is lodged with the Registrar under this section, the Registrar shall refer the complaint to the Commissioner.

Section 39 provides that the Commissioner shall in certain circumstances refer a complaint to the Board and s. 40, which provides for the Board to hear and determine the complaint, is as follows:

(1) Where a complaint has been referred by the Commissioner to the Board under section 39 the Board shall proceed to hear and determine the complaint.

(2) The Board, after hearing the evidence and representations that the parties to the proceedings relating to a complaint desire to adduce or make, may make one or more of the following orders: -

(a) It may order the person with respect to whom the complaint was made (in this section called "the respondent") to refrain from committing any further act of discrimination against the complaint;

(b) It may order the respondent to pay within a specified period to the person who made the complaint such damages as it thinks fit to compensate the last-mentioned person for loss or damage suffered by him in consequence of the act of discrimination to which the complaint relates;

(c) It may order the respondent to perform any acts specified in the order with a view to redressing any loss or damage suffered by the person who made the complaint as a result of the act of discrimination -

(3) The Board may, in the course of proceedings before it make an interim order to prevent a party to the proceedings from acting in a manner prejudicial to any decision or order that the Board might subsequently make.

(4) A person who contravenes or fails to comply with an order under this section is guilty of an offence and liable to a penalty not exceeding $1,000.

(5) If a person fails to pay an amount to another person in pursuance of an order of the Board under this section, that other person may recover that amount from the first-mentioned person as a debt due to that other person by action in a court of competent jurisdiction.

The defendant who is a member of the Airline Pilots Federation lodged with Ansett an application for employment as a pilot in 1976. After interviews and tests Ansett rejected her application in July 1978. On 2nd August 1978 the defendant lodged with the Registrar of the Equal Opportunity Board a written complaint pursuant to s. 38 which alleged that Ansett had discriminated against her on the ground of sex in refusing to offer her employment as a pilot.

On 6th June 1979 the Board made a determination that Ansett had discriminated against the defendant on the ground of her sex and on 19th June 1979 made an order in the following terms:

That the Respondent (Ansett) refrain from committing any further act of discrimination against the Complainant.

That the Respondent engage the Complainant as a trainee pilot not later than its next intake of pilots.

That within 14 days of the date of this Order the Respondent pay to the Complainant by way of damages $14,500.

That from the date of this Order until the Complainant first receives a salary from the Respondent following her engagement as a trainee pilot or until her rejection of an offer of such engagement the Respondent pay to the Complainant within 14 days of the liability to do so arising, the sum of $40 per day.

On 26th June 1979 Ansett gave notice of appeal to the Supreme Court of Victoria pursuant to s. 43 of the State Act and on 28th June 1979 an order was made in the Supreme Court that that appeal be set down for hearing in a list to be determined by the Master.

On 21st August 1979 Ansett took out the originating summons in the Supreme Court seeking declarations as follows:

A. That no provision of Part III of the Act applies to the Plaintiff in determining whether it should offer the Defendant employment as a trainee pilots [sic];

B. That no provision of Part III of the Act applies to the Plaintiff in determining the terms on which the Plaintiff should offer the Defendant employment as a trainee pilot; and

C. That no provision of Part III of the Act applies to the Plaintiff in the exercise of such rights to dismiss pilots as are conferred on it by the Airline Pilots Agreement 1978.

On 5th October 1979 Ansett determined that its next recruitment intake of airline pilots should take place on or about 5th November 1979. On 10th October, Ansett applied to a judge of the Supreme Court for an order staying any further operation of the Board's order until its appeal and the originating summons had been heard. That application was refused and accordingly in accordance with the Board's order Ansett offered employment to the defendant to commence on 5th November 1979.

I turn now to the terms of the Agreement, which was made in settlement of a dispute which arose from the rejection by Ansett of a log of claims delivered to it by the Federation on 24th July 1978. That dispute was notified by Ansett to the Flight Crew Officers' Industrial Tribunal. The details of the claims made are not material and it is not suggested that the terms of the Agreement as certified by the Tribunal on 21st March 1979 could not have been included in a valid award made by the Tribunal. It was suggested that some significance should be attached to the fact that cl. 5B provides for variation of the agreement as follows:

This agreement has been reached on the understanding that the employer and the Australian Federation of Air Pilots acting on behalf of pilots in the employment of Ansett Transport Industries (Operations) Pty. Ltd. may confer on and vary any conditions of employment at any time during the currency of this agreement. and that s. 109 of the Constitution could not operate upon an agreed variation under that clause. This argument however mistakes the operation of s. 28 of the Conciliation and Arbitration Act which gives the force of an award to a certified agreement, but not to agreed variations which are not certified. A certified agreement may however be varied, as an award may be, by the Commission or the Tribunal: seeR. v. Commonwealth Court of Conciliation and Arbitration; Ex parte North Melbourne Electric Tramways and Lighting Co. Ltd. [31] . 1. (1920) 29 C.L.R. 106.

The Agreement between Ansett and the Federation contains extremely elaborate provisions regulating a great many matters in relation to the terms of employment of flight crew. The provisions now material are as follows:

shall be binding upon the employer, Ansett Transport Industries (Operations) Pty. Ltd. and upon the Australian Federation of Air Pilots and its members in the States and Territories of the Commonwealth of Australia, who are from time to time employed by the employer

A. This agreement shall operate from 1 July 1978 and shall remain in operation till 30 June 1980.

B. The services of a pilot shall be terminable by either the employer or a pilot -

During the first six months of service, by seven days notice in writing;

After the completion of six months of service, by one month's notice in writing;

By the payment to the pilot of seven days' or one month's salary in lieu of notice as afore'aid (sic). or

By the forfeiture by the pilot of the last seven days' or one month's salary paid to him, in lieu of notice as aforesaid.

Provided that the period of notice set out herein may be reduced or waived by mutual agreement.

F. A pilot shall not fly an aircraft during his employment except in the service of his employer unless the employer otherwise consents in writing.

H. During the period of Initial Service which shall be 12 months in respect of all matters associated with his employment, a pilot's services may be terminated in accordance with this agreement without recourse to Grievance Procedures.

The Grievance Procedures referred to in cl. 6H. are extensive and elaborate, occupying some six printed pages. It is not necessary to set them out in full but it is necessary to understand the system.

Clause 50 A.1 describes the scope of the Grievance Procedures as follows:

Subject to this agreement, these procedures shall apply to any dispute on any matter including the termination of a pilot's services, whether by summary dismissal or notice. Notwithstanding anything contained in this section or any other sections of this agreement, these procedures shall not apply to any matters relating to operational safety, negotiation of a new agreement, a variation of this agreement, or matters arising out of s. 37.

Sub-clause B then deals with "Procedures - Other than Disciplinary Matters" by providing for three stages. The first stage is that a pilot who considers himself adversely affected is to make his complaint to the Senior Regional Captain who has then to investigate the complaint and may require further discussions before giving his decision and reasons. The second stage is that the pilot may request that the matter be reviewed by the Manager Flight Operations who must conduct a hearing at which witnesses may be examined and cross-examined. The third stage is an appeal to the Grievance Board which shall conduct a hearing at which the pilot may be represented and may call and cross-examine witnesses and the Board is then to determine the matter. The Board consists of five members, of whom two are appointed by Ansett and two by the Federation, and the Chairman is appointed by agreement between Ansett and the Federation.

Ansett's contention is that the provisions of the State Act have no application to its employment or dismissal of pilots and any actions taken in relation thereto because that legislation is inconsistent with the Agreement. The question which arises is whether the provisions of the Agreement govern the rights and powers of Ansett to dismiss pilots employed by it, to the exclusion of the provisions of the State Act so that the latter are inconsistent with the former within the meaning of s. 109 of the Constitution.

Section 28 (1) and (3) of the Conciliation and Arbitration Act provides as follows:

(1) If, before an industrial dispute has been referred to arbitration in accordance with this Act, the parties to the dispute or any of them reach agreement on terms for the settlement of all or any of the matters in dispute, they may either -

(a) make a memorandum of the terms agreed on and request a member of the Commission to certify the memorandum; or

(b) request a member of the Commission to make an award or order giving effect to their agreement,

and, subject to this section, the member of the Commission may, by order to which a copy of the memorandum is attached, certify the memorandum or may make an award or order accordingly.

(3) A memorandum certified in accordance with this section has the same effect as, and shall be deemed to be, an award of the Commission for all purposes of this Act.

Inconsistency under s. 109 is usually described as taking one of two forms, i.e. it may arise from "direct conflict" or from a Commonwealth legislative intent to cover a particular legislative "field" and to make its law the exclusive in that particular field. These tests have never been regarded as mutually exclusive, and indeed in the case in which "covering the field test" was first referred to, i.e. Clyde Engineering Co. Ltd. v. Cowburn, Isaacs J. said [32] :

If a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field The inconsistency is demonstrated, not by comparison of detailed provisions, but by the mere existence of the two sets of provisions. Where that wholesale inconsistency does not occur, but the field is partly open, then it is necessary to enquire further and possibly to examine and contrast particular provisions. If one enactment makes or acts upon as lawful that which the other makes unlawful, or if one enactment makes unlawful that which the other makes or acts upon as lawful, the two are to that extent inconsistent. It is plain that it may be quite possible to obey both simply by not doing what is declared by either to be unlawful and yet there is palpable inconsistency. In the present case there is inconsistency in both of the senses I have described. 1. (1926) 37 C.L.R. 466, at pp. 489-490.

The argument in this case was primarily directed to the question whether the Agreement was intended to cover the field of the terms of employment of airline pilots by Ansett, including the terms upon which such employment might be terminated, to the exclusion of any State regulation of any aspect of such employment, including the termination of the employment of an individual employee, i.e. that there was inconsistency in the sense in which the expression "cover the field" has been used since Ex parte McLean [33] , especially as explained in the judgment of Dixon J. [34] The present case may however provide an example of "direct conflict" between the provisions of a federal law and a State law. Such a conflict is not confined to a situation where it is impossible to obey both laws, but may occur also when a State law prohibits conduct permitted expressly or impliedly by a federal law, cp. Colvin v. Bradley Bros. Pty. Ltd. [35] especially per Latham C.J. [36] and per Starke J. [37] , and see the observations of Isaacs J. [32] quoted above.

(1930) 43 C.L.R. 472. 2. (1930) 43 C.L.R., at p. 483. 3. (1943) 68 C.L.R. 151. 4. (1930) 43 C.L.R., at p. 160. 5. (1930) 43 C.L.R., at pp. 161-162. 6. (1926) 37 C.L.R. 466, at pp. 489-490.

In relation to dismissal at least the present case may be regarded as an example of "direct conflict" in that the Agreement appears to permit the dismissal without review of a pilot during his first six months of service on either the giving of notice of seven days, or upon payment of seven days' salary, upon any ground whatever, whereas the State Act prohibits dismissal on specified grounds. It is therefore convenient to consider first the question of direct conflict.

I turn now to a consideration of the Agreement in so far as it applies to a pilot who has been employed for a period of less than twelve months. Such employment may be terminated by notice of one week or payment of one week's salary in the case of a pilot who has been employed for less than six months, and by notice of one month or payment of one month's salary in the case of a pilot who has served more than six but less than twelve months. The notice must state the ground of the dismissal. Such a notice would be effective in accordance with its terms to bring the employment to an end. The Agreement excludes such a termination from the Grievance Procedure and no question of wrongful dismissal could arise if the correct notice were given, irrespective of the ground assigned for the dismissal.

If it were the fact that the termination involved discrimination on the basis of sex or race the State Act would on its face enable a complaint to be made which could be followed by an order from the Board directing a reinstatement or a re-employment of the pilot so dismissed. This appears to me to involve "direct conflict" in the sense of making unlawful that which the Agreement permits.

The Agreement makes an express provision for dismissal of such a pilot, or termination of his employment without restricting in any way the grounds upon which such termination may be given. The State Act would enable such a decision to be set at nought by the Board ordering reinstatement or re-employment, and apparently payment in respect of any period between the termination and the reinstatement. This appears to me to involve inconsistency in the sense that the State Act would if valid "impair alter or detract from the operation of" the Agreement. I take that phrase from the reasons for judgment of Dixon J. in Victoria v. The Commonwealth [38] where he said:

Such a statement must, of course, begin with some formulation of what I understand to be the test of inconsistency under s. 109 adopted in this court. I attempted in Ex parte McLean [39] to explain my conception of the principle upon which the decisions had proceeded, particularly those given upon the Commonwealth Conciliation and Arbitration Act, and there [39] will be found all that is required for the purpose now in hand. Substantially, it amounts to this. When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent. Cf., too, Stock Motor Ploughs Ltd. v. Forsyth [40] . 1. (1937) 58 C.L.R. 618, at p. 630. 2. (1930) 43 C.L.R., at pp. 483-487. 3. (1930) 43 C.L.R., at pp. 483-487. 4. (1932) 48 C.L.R., at p. 136.

I turn now to the consideration of possible inconsistency in the case of a pilot who had been employed for a period in excess of one year. Suppose that he is given a notice of dismissal on the stated ground of inefficiency and that it involved discrimination on grounds of race or sex. If such a pilot challenged his dismissal, he would be entitled to proceed through the three stages of the Grievance Procedure. Suppose that he did so but in the end his appeal was dismissed and the termination of his employment thereby became effective. If the State Act were to operate according to its terms he could make a complaint, have a hearing before the Board and an order could be made for his re-employment. Such a procedure would set at nought the provision of the Agreement and thus establish a clear inconsistency. Whether such inconsistency is regarded as "direct" in the sense that the Agreement permits what the State Act prohibits, or as resulting from an intention disclosed by the Agreement to deal exclusively with the terms of employment including termination thereof, at least in the cases to which the Grievance Procedure applies, does not matter. What does matter in my opinion is that the inconsistency is plain on the face of the two instruments.

It may be that the two tribunals would be applying different criteria but the superimposing of other criteria administered by another tribunal, capable of producing a different result in relation to employment demonstrates inconsistency, whether one regards it as "direct" or as an "intrusion" by State law into a field which the Conciliation and Arbitration Act intends that a certified agreement of this kind shall exclusively occupy.

Thus the Agreement provides that the pilot may appeal against dismissal via the Grievance Procedure, whatever the reason for the dismissal may be, whereas the State law says that, in relation to dismissal for some specified reasons or for reasons which include a specified reason, he may apply to the Equal Opportunity Board which may make a variety of order inconsistent in operation with those made by the Grievance Board. Those two procedures might be pursued concurrently and might lead to inconsistent results.

It is however possible, and may indeed be necessary, to look at the matter more broadly and in accordance with the explanation of inconsistency in relation to awards given by Dixon J. in Ex parte McLean and restated in later cases such as Robinson (T. A.) and Sons Pty. Ltd. v. Haylor [41] . In the case of an award or a certified agreement the "law of the Commonwealth" with which the State law is to be regarded as inconsistent is the Conciliation and Arbitration Act itself, which gives to an award statutory operation as a prescription of industrial conduct within the area of the dispute which the award settles.

The statutory provision which shows that the intention of the Parliament was to give to awards an overriding character is s. 65 of the Conciliation and Arbitration Act which is as follows:

Where a State law, or an order, award, decision or determination of a State Industrial Authority, is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid. The words "or deals with a matter dealt with in" and "or in relation to the matter dealt with" were added by s. 25 of the Commonwealth Conciliation and Arbitration Act 1928 assented to on 22nd June 1928, i.e. after the judgment in Ex parte McLean had been delivered (6th June 1928).

The added words have given rise to some difficulty as they appear to go beyond s. 109 and if so would be beyond power. This aspect was dealt with in the joint judgment of Dixon C.J., McTiernan, Williams, Webb, Fullagar and Kitto JJ. in Collins v. Charles Marshall Pty. Ltd. [42] . No such doubts however affect the section as it was originally enacted as to which the joint judgment says:

The provision may be used as indicating an intention on the part of the Federal Parliament that the power of the arbitrator to determine an industrial dispute enables him to make an exhaustive provision completely governing matters within the ambit of the dispute to the exclusion of any other regulation. But it is difficult to support the provision as directly operating to amplify or extend s. 109. The point is further explained in Robinson (T. A.) and Sons Pty. Ltd. v. Haylor [43] in the joint judgment of Dixon C.J., McTiernan, Williams, Webb, Kitto and Taylor JJ. as follows: 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. It was by Clyde Engineering Co. Ltd. v. Cowburn [44] and H. V. McKay Pty. Ltd. v. Hunt [45] that that result was established. Clearly enough an award or an agreement having the force of an award did not in itself answer the description of a law of the Commonwealth within the meaning of s. 109 of the Constitution. For the reason, no doubt, s. 30 of the Commonwealth Conciliation and Arbitration Act 1904 provided that when a State law or an award, order or determination of a State Industrial Authority is inconsistent with an award or order lawfully made by the federal Arbitration Court, the latter should prevail and the former, to the extent of the inconsistency, be invalid. 1. (1955) 92 C.L.R. 529, at p. 549. 2. (1957) 97 C.L.R. 177, at p. 182. 3. (1926) 37 C.L.R. 466. 4. (1926) 38 C.L.R. 308.

That passage also provides authority (if it be needed) for the proposition that, for the purposes of s. 109, an agreement certified under s. 28 of the Conciliation and Arbitration Act stands in the same position as an award. Indeed s. 28 itself provides in sub-s. (3) that:

A memorandum certified in accordance with this section has the same effect as, and shall be deemed to be, an award of the Commission for all purposes of this Act.

In this case the demand was for the terms of the unregistered 1977 Agreement (which had expired on 30th June 1978) and certain additional terms and conditions. Included in the 1977 Agreement were (amongst other clauses of the Agreement) cll. 6 and 50. The Flight Crew Officers' Industrial Tribunal was the only body with power to settle that dispute by award, or to certify an agreement between the parties to that dispute which would give it the force of an award. Within the ambit of that dispute that Tribunal had exclusive authority to determine the rights and duties of the employer (Ansett) and its employees being members of the Federation. The Conciliation and Arbitration Act empowers the Flight Crew Officers' Industrial Tribunal to prescribe completely and exhaustively what rights and obligations of the parties to the dispute shall be with respect to all the matters in dispute, i.e. those within the ambit of the dispute. Those matters included the right of Ansett to dismiss flight crew officers, the mode of exercise and the limitation on that right and the extent to which and the manner in which such officers were able to challenge the exercise of such right.

It is no doubt true, as was argued, that discrimination on grounds of race or sex was not dealt with in the Agreement, nor was it as such a matter in dispute, but that is not sufficient to deny the possibility of inconsistency. The "field" or subject matter of the State law is not necessarily of significance. The critical matter is the field of the federal law. If a State law "intrudes into or operates" within the field of such a federal law, or would alter, impair or detract from the operation of a federal law, then there will be inconsistency, whatever the topic or field of the State law. The State Act is in this respect unlike State laws with respect to long service leave provisions which were considered not to involve inconsistency with federal awards in Collins v. Charles Marshall Pty. Ltd. and in Robinson (T. A.) and Sons Pty. Ltd. v. Haylor because they did not interfere with the operation of the awards in question. In my opinion that cannot be said in the present case at least in so far as termination of employment is concerned, and no doubt also in relation to questions of promotion.

In Ex parte McLean [46] Dixon J. pointed out that the Conciliation and Arbitration Act limited the exclusive authority of awards to the regulation of the industrial relations in dispute and did not necessarily make them the equivalent of Commonwealth statutes for all purposes. He suggested that it might be possible that State laws not dealing with industry at all would not necessarily be inconsistent even though they both dealt with the same conduct. Dixon J. did not deal conclusively with this possibility but the long service leave cases may be examples of a similar view. The joint judgment in Robinson (T. A.) and Sons Pty. Ltd. v. Haylor does not return to this possibility. Whatever its significance, there is no suggestion that it could save State legislation which altered, impaired or detracted from the operation of an award or agreement in its application to industrial matters, because the Conciliation and Arbitration Act enables the Tribunal, or the Commission, to prescribe completely the industrial relations between employer and employee in relation to every matter the subject of a dispute. In such a situation s. 109 makes paramount the operation of s. 65 of the Conciliation and Arbitration Act and that section then gives paramountcy to the award.

The two different aspects of inconsistency are no more than a reflection of different ways in which the Parliament may manifest its intention that the federal law, whether wide or narrow in its operation, should be the exclusive regulation of the relevant conduct. Whether it be right or not to say that there are two kinds of inconsistency, the central question is the intention of a particular federal law. The field of its operation may be regarded as wide or narrow and produce inconsistency because of the intention to cover a particular field exclusively or because of an intention to regulate specific conduct so that any other regulation of that conduct is inconsistent because the attempt to regulate the identical conduct in a different manner, or perhaps at all, necessarily impairs the operation of the federal regulation of that conduct.

I do not think that in the circumstances the specific questions in the originating summons should be answered. In lieu of the declaration asked for in the summons, I would make a declaration that the provisions of Pt III of the Equal Opportunity Act 1977 would not apply to the dismissal of the defendant from her position as a trainee pilot if that dismissal occurs in accordance with the provisions of the Airline Pilots Agreement 1978 as certified by the Flight Crew Officers' Industrial Tribunal. I would order that the costs of the proceedings be paid by the defendant.

The defendant, Mrs. Deborah Jane Wardley, is a pilot. In 1976 she applied to the plaintiff company, Ansett Transport Industries (Operations) Pty. Ltd. ("Ansett") for employment in that capacity. In July 1978 Ansett rejected her application. Thereupon Mrs. Wardley, believing that the Equal Opportunity Act 1977 Vict. ("the Victorian Act") was applicable to the circumstances of the case, lodged with the Registrar of the Equal Opportunity Board, pursuant to s. 38 of the Act, a written complaint that Ansett had discriminated against her on the ground of sex in refusing to offer her employment.

The Board proceeded to hear the complaint, and on 19th June 1979, it made an order in the following terms:

That the Respondent (Ansett) refrain from committing any further act of discrimination against the Complainant.

That the Respondent engage the Complainant as a trainee pilot not later than its next intake of pilots.

That within 14 days of the date of this Order the Respondent pay to the Complainant by way of damages $14,500.

That from the date of this Order until the Complainant first receives a salary from the Respondent following her engagement as a trainee pilot or until her rejection of an offer of such engagement the Respondent pay to the Complainant within 14 days of the liability to do so arising, the sum of $40 per day.

The Act authorizes an appeal to the Supreme Court against an order of the Board, and Ansett instituted such an appeal. Those proceedings are still pending in the Supreme Court of Victoria.

The proceedings with which this Court is concerned were commenced by an originating summons issued in August 1979 by Ansett against Mrs. Wardley. The summons was issued out of the Supreme Court of Victoria, but was removed into this Court on the application of the Attorney-General of Victoria pursuant to s. 40 of the Judiciary Act 1903 Cth. The summons raises for consideration the proper construction of the Victorian Act, with particular reference to its application to Ansett having regard to the Airline Pilots Agreement 1978 ("the Agreement") and the provisions of s. 109 of the Constitution. The precise relief claimed by the Plaintiff is for declarations in the following term:

A. That no provision of Part III of the Act applies to the Plaintiff in determining whether it should offer the Defendant employment as a trainee pilot;

B. That no provision of Part III of the Act applies to the Plaintiff in determining the terms on which the Plaintiff should offer the Defendant employment as a trainee pilot; and

C. That no provision of Part III of the Act applies to the Plaintiff in the exercise of such rights to dismiss pilots as are conferred on it by the Airline Pilots Agreement 1978.

When the summons came on for hearing, the Court had the benefit of hearing argument not only from the parties but on behalf of the Attorneys-General of Victoria, New South Wales, South Australia and Tasmania, each of whom intervened in exercise of the right conferred by s. 78A of the Judiciary Act. The intervening States all supported the defendant.

The Airline Pilots Agreement 1978 is expressed to be a memorandum of the terms agreed on for the settlement of all or part of the matters in dispute between Ansett and the Australian Federation of Air Pilots. It was certified pursuant to s. 28 of the Conciliation and Arbitration Act 1904 Cth on 21st March 1979. By virtue of that provision the Agreement "has the same effect as, and shall be deemed to be, an award of the Commission for all purposes of this Act". In all material respects, the Agreement repeats the provisions of the 1977 Airline Pilots Agreement; we were informed that this latter agreement, though acted upon by the parties, was not certified, but no real point seems to be made of that. It is conceded that Mrs. Wardley is a member of the Federation.

It is necessary to identify, for the purpose of applying s. 109 of the Constitution, the status of the Agreement. As I have noted, it is deemed to be an award of the Commission. The question of inconsistency between the Agreement and a State law may arise, not because the Agreement is "a law of the Commonwealth" within the meaning of s. 109, but because it derives its force from such a law, namely, the Conciliation and Arbitration Act: cf. s. 65 and see Clyde Engineering Co. Ltd. v. Cowburn [47] ; Ex parte McLean [47a] . Clause 5B of the Agreement empowers the parties to vary any conditions of employment at any time during the currency of the Agreement but it would seem to follow that no significance from the point of view of inconsistency within the meaning of s. 109 would attach to the variation unless and until it was certified in accordance with s. 28.

(1926) 37 C.L.R. 466. 2. (1930) 43 C.L.R. 472.

Clause 6 of the Agreement is headed " contract of employment ", and contains provisions, inter alia, as follows:

B. The services of a pilot shall be terminable by either the employer or a pilot -

During the first six months of service, by seven days notice in writing;

After the completion of six months of service, by one month's notice in writing;

By the payment to the pilot of seven days' or one month's salary in lieu of notice as aforesaid or

By the forfeiture by the pilot of the last seven days' or one month's salary paid to him, in lieu of notice as aforesaid.

Provided that the period of notice set out herein may be reduced or waived by mutual agreement.

The Agreement deals with what are called "Grievance Procedures" in cl. 50. Subject to the Agreement, they apply to "any dispute on any matter including the termination of a pilot's services, whether by summary dismissal or notice" (cl. 50A.1.); they do not apply to certain matters that are set out and which it is unnecessary to particularise. The procedures outlined in cl. 50 are very detailed, and appear to be quite exhaustive. In matters other than Disciplinary Matters, a pilot who considers himself adversely affected by any matter within the scope of the procedures may complain to the appropriate Senior Regional Captain who, following investigation, notifies the pilot of his decision. If the pilot is dissatisfied with the decision, he is entitled to have the decision reviewed by the Manager Flight Operations. This review takes the form of a hearing at which the pilot may be represented and both the employer and the pilot may call evidence. If, then, the pilot is dissatisfied with the decision of the Manager Flight Operations, he has a further appeal to the Grievance Board. Again, the appeal to the Board takes the form of a hearing at which the pilot may be represented and call evidence. It is unnecessary to detail the procedures in disciplinary matters; suffice it to say that they are broadly similar to those which I have described.

The Grievance Board consists of a Chairman who must be approved by the employer and the Federation, and four other members of whom two shall be nominated by the employer and two by the Federation.

The Victorian Act deals with "Discrimination in Employment" in Div. 2 of Pt III. It will be sufficient to set out the material provisions of s. 18:

(1) It is unlawful for an employer to discriminate against a person on the ground of sex or marital status -

(a) in determining who should be offered employment;

(b) in the terms on which the employer offers employment; or

(2) It is unlawful for an employer to discriminate against an employé on the ground of sex or marital status -

(a) by denying the employé access, or limiting access by the employé, to opportunities for promotion, transfer or training or to any other benefits connected with employment; or

(b) by dismissing the employé or subjecting the employé to any other detriment

Part VI of the Act deals with "Enforcement". It provides for an initial process of investigation and conciliation by the Commissioner for Equal Opportunity. Failing resolution by these procedures, the matter shall be referred to the Equal Opportunity Board constituted under Pt II, Div. 2 of the Act. The powers of the Board, so far as they are relevant to the present case, are set out in s. 40:

(1) Where a complaint has been referred by the Commissioner to the Board under section 39 the Board shall proceed to hear and determine the complaint.

Ansett Transport Industries (Operations) Pty Ltd v Wardley

At a glance

Court

Decision date

Before

Source

Judgment (243 paragraphs)

Parties

Cases Cited (1)

Cited By (9)