Employees
based in New Zealand but having an itinerant life around the world still benefit
from local age discrimination rules despite the “proper law” of their employment
contract not being New Zealand law, the Supreme Court ruled in an appeal by two
Cathay Pacific pilots.
Airbus pilots David
Brown and Glen Sycamore challenged Cathay’s 2009 change to conditions of
service requiring retirement at age 55 or continued service to age 65 at
reduced pay. The Supreme Court was told
some 33 NZ-based Cathay pilots are affected.
Cathay said their employment contracts specified Hong Kong law as the
“proper law” governing interpretation and application. Hong Kong law does not prohibit age
discrimination.
The Supreme Court ruled
sections of the Employment Relations Act apply to all employees working out of
New Zealand. This gives protection for basic
human rights: prohibiting discrimination on the grounds of sex, race and
age. These personal rights are protected
by legislation regardless of any contractual provision stating that the law of
another country governs the employment relationship.
The Supreme Court emphasised
its ruling applies only to globe-trotting employees who are “based” in New
Zealand. Under their contract, the
Cathay pilots are required to reside in New Zealand, Auckland is their
designated “home base”, their tours of duty begin and end in Auckland and their
salary is paid in New Zealand dollars.
Brown
v. NZ Basing – Supreme Court (13.09.17)
17.115