Posted on: Aug 11, 2015
Two pilots, living in New Zealand but flying mostly abroad (Hong Kong and Australia) for Cathay Pacific, were successful in their case that their mandatory retirement at 55 years was in breach of New Zealand’s age discrimination laws.
Relying on a UK case concerning other pilots employed by Cathay, the Court concluded that the bases of peripatetic employees such as the pilots must be their places of employment. From there, it was a comparatively easy step to find that the pilots were based in New Zealand since they had their homes and families in the country and many of the incidents of their employment were connected with New Zealand.
That imposition of a mandatory retirement age was in breach of New Zealand law was not, in itself, particularly contentious; the crux of the problem was that the men’s contracts a) were stated as being subject to the laws of Hong Kong and b) clearly set the retirement age at 55 (a restriction permissible under Hong Kong law).
This raised various questions. Did s 238 of the Employment Relations Act, which forbids contracting out of the provisions of the Act, have the effect of overriding Hong Kong law in certain situations? Alternatively, would the application of Hong Kong law in this situation be contrary to public policy because strict reliance on the clause would be morally and ethically wrong and unprincipled? Was the choice of law clause bona fide and legal?
The Employment Court found that s 238 did indeed have overriding effect; were it not to have, the whole intention of the Act would be frustrated. But even if it was wrong on that score, public policy must decree that a contractual term denying the pilots the right to work must violate essential principles of justice because it involved a “very serious infringement of a basic human right”. Parliament had included age as a prohibited ground of discrimination as one of a number of deeply held values bearing on the very essence of human identity. In the case of employment, that identity related to the right to work. The conduct of the pilots’ employer, a subsidiary of Cathay, in not complying with the clear representations that it had made that it would make the basing structure of its New Zealand pilots fully compliant with local law, contributed to the conclusion that the choice of law clause should not apply on public policy grounds.
See Brown v New Zealand Basing Ltd of Hong Kong (a wholly owned subsidiary of Cathay Pacific Airways Ltd of Hong Kong)
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