| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 424/09 |
| Determination date | 27 November 2009 |
| Member | R A Monaghan |
| Representation | J Roberts ; K Thompson |
| Location | Auckland |
| Parties | Simich & Ors v Air New Zealand Ltd |
| Other Parties | Russell, Tourell, Finlayson, Peters, Benge, Matthews, Rowan |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – International Civil Aviation Organisation amendment 167 allowed pilots to hold pilot in command (“PIC”) positions to age of 65 on certain conditions – Applicant claimed respondent failed to reinstate to PIC positions following amendment and did not take steps to accommodate and did not offer PIC positions on flights where applicants not restricted by age – Applicants claimed questions of law arose: (a) did respondent provide applicants with “reasonable accommodation” under Human Rights Act s35; (b) did respondent comply with provisions of CEAs wholly to satisfy obligation to “reasonably accommodate”; (c) should respondent have taken reasonable steps to ensure applicants reinstated to PIC positions; (d) did respondent discriminate unlawfully from 23 November 2006 until such time as applicants reinstated to PIC position – Applicants claimed Supreme Court did not determine “reasonable accommodation” issue in McAlister v Air New Zealand Limited [2009] NZSC 78 – Authority rejected applicant’s submissions and found (a) did not raise important question of law – Authority found question (b) not dispute about whether terms of CEAs complied with – Found question concerned whether compliance alone enough, and if not, what additional action respondent should have taken for s35 HRA not to apply – Found question hard to answer without knowing whether question of law arose out of interpretation or application of s35 HRA itself – Found question of interpretation of provisions in CEA regarding training and rostering usually heard by Authority rather than Court and not possible at present to say whether questions, if arose, indicated matter be heard in EC – Found questions (c) and (d) concerned introduction of amendment not addressed in McAlister – Authority found another way of putting question (c) would therefore be “assuming terms of CEAs complied with, did pending application of amendment create additional obligations for respondent regarding s35 HRA” – Authority accepted question (c) involved question of law – Authority re-framed question (d) less broadly – Authority concluded application of amendment raised unresolved important questions of law that arose other than incidentally – Authority of opinion in all circumstances EC to determine entire matter – Matter removed to EC under s178(2)(a) and (d) ERA |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s103(2)(b);ERA s104(1)(a);ERA s104(2)(a);ERA s105;ERA s178;ERA s178(2)(a);ERA s178(2)(d);ERA s178(3);Human Rights Act 1993 s30;Human Rights Act 1993 s35 |
| Cases Cited | McAlister v Air New Zealand Limited [2009] NZSC 78;Smith v Air New Zealand Limited [2000] 2 ERNZ 376;Air New Zealand Limited v rush [2003] 2 ERNZ 344 |
| Number of Pages | 13 |
| PDF File Link: | aa 424_09.pdf [pdf 39 KB] |