File photo / Martin Sykes
Two Kiwi pilots have won the right to stay in their jobs, after arguing that being forced to retire at the age of 55 was discrimination under New Zealand laws.
David Brown and Glen Sycamore are employed by New Zealand Basing Limited (NZBL) as senior captains, flying aircrafts for Cathay Pacific Limited (Cathay Pacific), of which NZBL is a wholly owned subsidiary.
Under both men's employment agreements a clause stated they were required to retire at the age of 55.
Mr Brown and Mr Sycamore will turn 55-years-old in 2015, and have claimed being forced to retire then was discrimination.
Mr Brown and Mr Sycamore took their argument to the Employment Relations Authority, and the matter has now appeared before the Employment Court.
Following the incorporation of NZBL in 2000, both pilots signed employment agreements, the authority said.
The employment agreements signed by the pilots included the usual conditions of employment, and a provision that the retirement age would be 55.
In 2009, the pilots had the opportunity of agreeing to slightly different terms and conditions of employment, including a retirement age of 65.
However, neither of the pilots elected to transfer to the new employment agreement at that time, the authority said.
The pilots then requested to transfer to the new employment agreement in order to have a retirement age of 65, but NZBL refused their request, the authority said.
The pilots claimed the law of New Zealand applied, not the law of Hong Kong and under the Human Rights Act, it was unlawful for NZBL to discriminate against them because of age.
However, NZBL contended the laws of Hong Kong and not New Zealand applied to the situation.
NZBL claimed the retirement age for both men under their employment agreements was 55 and such retirement age was lawful under the laws of Hong Kong, as that was stated in their employment agreements.
The matter was first taken to the Employment Relations Authority, however authority member Anna Fitzgibbon passed the matter straight through to the Employment Court.
"I am persuaded that the matters arising are important questions of law. There are important issues of law as to the applicability of the law of New Zealand or of Hong Kong and the interface in the particular circumstances with the Human Rights Act," Ms Fitzgibbon said.
"Further, there will be a number of employees who will be affected by the decision. The other matter which I take into consideration is the fact that the parties require the matter to be dealt with urgently given the Captains turn 55 years of age next year."
The Employment Court in Auckland has found it would be discriminatory for NZBL to require employees to retire on the grounds of age as defined in the Human Rights Act.
Judge Bruce Corkill dismissed the airline's claims that the laws of Hong Kong and not New Zealand applied to the situation.
"I am satisfied that recognition of Hong Kong law rather than New Zealand law would in the present circumstances be unjust or unconscionable, having regard to the significant importance which should be attached to New Zealand's age discrimination legislation, and to the conduct of NZBL in the particular circumstances." Costs were reserved.
Mr Brown and Mr Sycamore's lawyer, Garry Pollak, said the Employment Court made a "bold decision" they were very pleased with.
"They've been employees of [Cathay Pacific] for many many years and they are both senior pilots, the Employment Court really spelt it out in all the details and factual background quite accurately.
"There is still an appeal period of two weeks, I am not sure if the company intends to appeal but that's their right."
Comment was being sought from Cathay Pacific Airways Limited.