Christie v Qantas Airways Limited
[1996] IRCA 257
•14 Jun 1996
DECISION NO: 257/96
CATCHWORDS
TERMINATION OF EMPLOYMENT - termination based on the inherent requirements of the particular position - whether being aged less than 60 years is an inherent requirement of a position as a pilot - restrictions imposed by foreign governments on pilots aged over 60 years imposes difficulties on employer - whether aircraft rostering issues are inherent requirements
LEGISLATIVE INTERPRETATION - rules to be applied when interpreting international conventions - construction of International Labour Organisations conventions and recommendations
APPEAL - findings of fact by trial judge - function of appellate court - inferences drawn from findings of fact
JURISDICTION - whether employment of appellant was terminated by employer or by effluxion of time - whether terms can be implied into the appellant’s contract of employment to truncate the duration of his employment
Industrial Relations Act 1988 s3, Div 3, Pt VIA, 113, 117, 170CA, 170DE, 170DF, 170EA, 170EE, Scheds. 10, 11
Disability Discrimination Act 1992 s15(4)
Human Rights and Equal Opportunity Commission Act 1986
Andersen v Umbakumba Community Council (1994) 126 ALR 121
Byrne v Australian Airlines Ltd (1995) 131 ALR 422
Christie v Qantas Airways Limited (1995) 60 IR 17
Grout v Gunnedah Shire Council (1994) 1 IRCR 143
Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (1996) 62 IR 200
Rennie v Commonwealth, Full Court, Federal Court of Australia, ACTG 14 of 1995, 17 November 1995, (as yet unreported), Burchett J
Warren v Coombes and Another (1979) 142 CLR 531
Western Air Lines, Inc v Criswell (1984) 472 US 400
X v Department of Defence [1995] EOC para 92715
Convention Concerning Discrimination in Respect of Employment and Occupation, Human Rights and Equal Opportunity Commission Act 1986, Article 1
International Labour Organisation, Recommendation No. 166, Recommendation Concerning Termination of Employment at the Initiative of the Employer
International Labour Office General Survey of 1988, para 126
International Labour Office “German Work Bans Case”, paras 530, 531
Nielsen, Henrik Karl, “The Concept of Discrimination in ILO Convention No. 111”, (1994) 43 ICLQ 827 at 845-846
No. NI 2363 of 1995
JOHN BAILLIE CHRISTIE v QANTAS AIRWAYS LIMITED
CORAM: Spender, Gray and Marshall JJ
PLACE: Melbourne (heard in Sydney)
DATE: 14 June 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NI 2363 of 1995
BETWEEN: JOHN BAILLIE CHRISTIE
Appellant
AND: QANTAS AIRWAYS LIMITED
Respondent
CORAM: Spender, Gray and Marshall JJ
PLACE: Melbourne (heard in Sydney)
DATE: 14 June 1996
ORDER
THE COURT ORDERS THAT:
1.That the appeal be allowed.
2.That the order of the Chief Justice, made on 12 May 1995, that the proceeding be dismissed, be set aside.
3.That there be substituted for that order a declaration that the respondent has contravened s 170DF(1)(f) of the Industrial Relations Act 1988 by terminating the employment of the appellant by reason of his age.
4.That the matter be remitted to the trial judge for consideration of orders pursuant to s170EE of the Industrial Relations Act 1988.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 2363 of 1995
)
QUEENSLAND DISTRICT REGISTRY )
BETWEEN : JOHN BAILLIE CHRISTIE
Applicant
AND: QANTAS AIRWAYS LIMITED
Respondent
CORAM: Spender, Gray and Marshall JJ
PLACE: Melbourne (heard in Sydney)
DATE: 14 June 1996
REASONS FOR JUDGMENT
SPENDER J
This appeal involves the interaction of the adoption into Australian domestic law in s 170DF of the Industrial Relations Act of 1988 ('the Act') of Article 5 of Recommendation 166 of the General Conference of the International Labour Organisation on the one hand, with, on the other, the adherence by many countries to which Qantas Airways Limited ('QANTAS') flies of the "Rule of 60" which is convenient shorthand reference to Standard 2.1.10.1 in Annex 1 to the International Civil Aviation Convention (the 'Chicago Convention') by which contracting States are not to permit holders of a pilot licence to act as a pilot in command of an international air service if the licence holder has attained the age of sixty years. The appeal has significant consequences for the international operations of QANTAS.
Article 5 of the Recommendation referred to above is part of Schedule 11 of the Act, and relevantly provides:
"5 In addition to the grounds referred to in Article 5 of the Termination of Employment Convention, 1982, the following should not constitute valid reasons for termination:
(a)age, subject to national law and practice regarding retirement;
... "
Article 40 of the Chicago Convention allows any state to exclude from entering its territory any aircraft flown by a pilot whose licence is endorsed with particulars showing that a pilot does not satisfy standard 2.1.10.1. Very many countries to which QANTAS flies its B747-400 aircraft will not allow the entry of an aircraft flown by a pilot over the age of sixty to enter the airspace controlled by that country. These countries include the United States of America, Singapore, Thailand, The Netherlands, Ireland and the Scandinavian countries. The position seems to be the same in relation to Hongkong and, so far as flights to Japan are concerned, having regard to United States airspace over Guam, it would appear that services to Japan are also not able to be flown by QANTAS B747-400 pilots over the age of sixty.
The consequence for the appellant, Mr Christie, is that subsequent to his sixtieth birthday he would not have been able to fly to most of the places to which he had flown for QANTAS prior to his sixtieth birthday. As the trial judge found, the adherence by the governments of the countries "most visited by QANTAS" to the "Rule of 60" means that QANTAS would not be able to use Mr Christie in the way he was used in the past; he would be able only to fly to and from New Zealand, Denpasar in Bali, and Fiji, although even in the case of Fiji, there is some problem because crews are often asked to go from Fiji to the United States.
In the context of these circumstances, the appeal poses a significant question on the construction of the provisions of s 170DF of the Industrial Relations Act 1988 ('the Act') dealing with the "inherent requirements" of a "particular position".
Section 170DF relevantly provides:
"(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
...
(f)race, colour, sex, sexual preference, age, physical or mental disability, martial status, family respons- ibilities, pregnancy, religion, political opinion, national extraction or social origin;
...
(2)Sub-section (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position. "
Regrettably, I am in profound disagreement with the conclusion of Gray J and Marshall J that it was not an inherent requirement of the particular position occupied by Mr Christie with QANTAS that he be less than sixty years of age. In my opinion the "particular position" that has to be considered is Mr Christie's occupation as a B747-400 pilot with QANTAS. I respectfully am in agreement with the conclusion of the learned primary judge (Wilcox CJ) that it was and is an inherent requirement of that particular position that Mr Christie be under sixty years of age. His Honour's judgment is reported: (1995) 60 IR 17.
I also am of the opinion that there was no termination by QANTAS of Mr Christie's employment. If the coming into effect of the Industrial Relations Reform Act on 30 March 1994 has the effect of changing a contract of employment that would expire on a worker's particular birthday into one for which the worker could demand to be of indefinite duration, as Gray J concludes, the consequence for public servants, both Commonwealth and State, defence services personnel and indeed just about every worker in Australia, would be dramatic and far reaching.
The various Conventions, the facts and relevant statutory provisions are set out in the judgment of the other members of the Court. It is therefore necessary for me to refer only to those aspects of the facts which bear on the two central questions on the appeal.
I turn first to whether there was a termination by QANTAS of Mr Christie's employment, it being asserted by Mr Christie that QANTAS unlawfully terminated his employment with it.
Mr Christie was born in England on 21 September 1934. He received his wings in 1955 while serving in the Royal Air Force. In 1961 he commenced employment with British European Airways as a pilot and he joined QANTAS as a second officer in April 1964. His letter of appointment dated 30 April 1964 contained a number of conditions, including:
"You are appointed as a Pilot for duty as required by the Company in any part of the world, including Flight Engineering and Navigational duties as directed. "
and:
"During your employment, your services may be terminated by the Company or yourself by the giving of notice or payment or forfeiture of salary in lieu thereof in accordance with the agreement covering Airline Pilots employed by Qantas Empire Airways Limited. "
and:
"The abovementioned conditions of employment are to be read in conjunction with and are supplementary to the terms of any enactment industrial agreement or award specifically covering your employment with this Company. "
No specific retiring age is referred to in that letter. Until 20 November 1974 the "normal retirement date" for a pilot employed by QANTAS was the pilot's fifty-fifth birthday. It seems to me that this earlier-than-usual retiring age recognised that flying required particular skills and judgment, which skills and judgment deteriorate with age, though not of course in a uniform rate from person to person. One can infer that the salary paid to pilots reflects in part this shorter-than-usual career span.
That "the normal retirement date" for a pilot prior to 1974 was fifty-five years is corroborated by the Staff Superannuation Plan and the evidence before the primary judge from Captain Heiniger, the General Manager, Flight Operations, and Chief Pilot for QANTAS, as well as an agreement in 1974 with the industrial association of which Mr Christie was a member.
A letter of agreement dated 20 November 1974 between QANTAS Airways Limited and the Australian Federation of Air Pilots commenced:
"This letter sets out in full the various agreements reached between the Company and the Australian Federation of Air Pilots in respect of the extension of a pilots' (sic) employment beyond the 'normal date of his retirement'.
It is agreed between the Company and the Australian Federation of Air Pilots that as and from the first day of July 1974 that notwithstanding any agreement, Company custom or practice to the contrary, the following provisions shall apply to an offer and acceptance of the extension of a pilot's employment beyond the 'normal date of retirement' (Designated as 1st July following his 55th birthday). "
The letter then continued:
"EXTENSION OF EMPLOYMENT
(a)A pilot may elect to extend his employment beyond the normal retirement date on a year by year basis up to but not beyond the date of his fifty-eight (sic) birthday.
(b)A pilot who so elects to extend his employment in accordance with the provisions of paragraph 1 hereof shall make his first election not later than the date of his fifty-fourth birthday, and such extension shall be to his fifty-sixth birthday. Further elections of annual extensions shall be indicated not later than the date of each of his subsequent birthdays.
(c)A pilot who at the date of this Agreement has attained or will attain before 1st January 1975 his fifty-fourth, fifty-fifth or fifty-sixth birthday shall exercise his election not later than that date in respect of an extension of employment to his fifty-sixth, fifty-seventh or fifty-eighth birthday respectively. "
By letter dated 26 August 1977 the agreement contained in the letter of 20 November 1974 was renewed between QANTAS and the Australian Federation of Air Pilots.
By a letter dated 17 December 1981, QANTAS and the Australian International Pilots Association entered into an agreement in the same terms as the agreement contained in the letter of 20 November 1974, and specifically, it included the matters previously set out. At the time of that agreement, Mr Christie was a member of the Australian International Pilots Association.
The letter of agreement of 17 December 1981 was part of the International Airline Pilots' Agreement 1986, which was on 19 June 1989 certified by the Australian Industrial Relations Commission pursuant to the then s 115 of the Act. That International Airline Pilots' Agreement of 1986, including the letter of agreement of 17 December 1981, acquired the status of an award, pursuant to the then s 116 of the Act. As a consequence, the agreement, including the letter, bound Mr Christie, the industrial association of which he was a member, and all of the members of that association, as well as QANTAS.
I therefore do not accept that Mr Christie's employment with QANTAS was open-ended. At no stage would it have been either QANTAS's contemplation or Mr Christie's that he could continue as a pilot until he was one hundred. According to his letter of appointment of 30 April 1964, QANTAS could terminate his services by the giving of notice or payment of salary in lieu in accordance with the agreement covering airline pilots employed by Qantas Empire Airways Limited. After certification of the International Airline Pilots Association agreement of 1986, including the letter of agreement of 17 December 1981, the employment of Mr Christie by QANTAS would end, at the latest, on his fifty-eighth birthday.
In my opinion, there can be no doubt that the employment relationship between QANTAS and Mr Christie subsequent to 19 June 1989 had, as an important element, the terms of the letter of agreement of 17 December 1981, which was in similar terms to that contained in the letter of agreement of 20 November 1974. Mr Christie acquired rights enforceable against QANTAS by virtue of those agreements, one of those being the right to make a series of annual elections to extend his employment with QANTAS up to his fifty-eighth birthday, beyond the normal retiring age, which was 1 July after his fifty-fifth birthday.
On 28 April 1987 Mr Christie wrote to an officer of QANTAS in the section dealing with air crew personnel in the following terms:
"Dear Sir,
I wish to inform you that it is my intention to extend my period of service with QANTAS beyond my 55th birthday. "
This letter was made on Mr Christie's initiative (not, as the primary judge found, as a response to anything QANTAS had done). This letter is only explicable on the basis that absent the intention expressed in that letter, it was the mutual position of QANTAS and Mr Christie that his employment would have come to an end at the "normal retirement date" as that was understood by both QANTAS and Mr Christie.
On 14 September 1989 Mr Christie signed a letter in the following terms:
" EXTENSION OF EMPLOYMENT
By advice of this letter, I elect to extend my employment to 21.9.91 being my 57th birthday. In so doing I accept that, in accordance with Letter of Agreement No. 1A, should I subsequently wish to terminate my employment prior to the date nominated herein, I will be required to give six (6) months written notice. "
An officer of Employee Relations replied on behalf of QANTAS by letter of 20 September 1989, saying:
" EXTENSION OF EMPLOYMENT
Thank you for your letter of 14 September 1989 wherein you have elected to extend your employment to your 57th birthday ie 21/09/91.
This information has now been recorded. "
On 3 September 1990, Mr Christie signed a letter similar to that of 14 September 1989, referring to his election to extend his employment to 21 September 1992, being his fifty-eighth birthday.
By a letter of 1 July 1991, he elected to extend his employment to 21 september 1993, being his fifty-ninth birthday, and by letter of 21 September 1992 Mr Christie elected to extend his employment to 21 September 1994, being his sixtieth birthday. In my opinion, the last two elections were based on an agreement of 14 January 1991 between QANTAS and the industrial association of which Mr Christie was a member, the effect of which was to permit pilots to extend the annual elections previously available to them by virtue of the agreement of 1981 which had been certified by the Commission, to annual elections the last of which expired on the date of a pilot's sixtieth birthday.
The agreement contained in the letter of 14 January 1991 had not been certified, but if its terms did not apply to Mr Christie and QANTAS, there was no basis for any extension of Mr Christie's employment by QANTAS past Mr Christie's fifty-eighth birthday.
The letters of 1 July 1991 expressing Mr Christie's election to extend his employment with QANTAS to the date of his fifty-ninth birthday, and the letter of 21 September 1992 in which Mr Christie elected to extend his employment to the date of his sixtieth birthday, in my opinion, admit of no other conclusion but that Mr Christie and QANTAS were of the same mind that the agreement of 14 January 1991 conferred on Mr Christie rights enforceable against QANTAS, of which he availed himself, and which QANTAS recognised. In my opinion, the plain contractual position as at the time of Mr Christie's letter of 21 September 1992 was that his employment with QANTAS would extend to the date of his sixtieth birthday, namely, 21 September 1994, but would not extend beyond that day. QANTAS for its part accepted that it would continue its obligations to Mr Christie pursuant to the contract of employment until the date of Mr Christie's sixtieth birthday.
In my opinion, Mr Christie's employment with QANTAS came to an end on 21 September 1994. The sentence in the letter of 21 September 1992:
"By advice of this letter, I elect to extend my employment to 21.9.94 being my 60th birthday."
is a statement that he would retire on his sixtieth birthday; it is an indication by Mr Christie to QANTAS that his employment, at his election, was to extend until that date, and QANTAS for their part were entitled to accept that Mr Christie's election had the effect of extending his employment with QANTAS until that date. On 24 September 1992, QANTAS wrote to Mr Christie in the following terms:
"Thank you for your letter of 21st September, 1992 wherein you have elected to extend your employment to your 60th birthday ie 21st September, 1994.
This information has now been recorded. "
In my opinion, the employment relationship, by virtue of these dealings between Mr Christie and QANTAS, had the effect that his employment continued up to and until 21 September 1994 and was thereafter at an end.
In my view, the matters to which I have referred demonstrate a factual adoption by Mr Christie of the rights contained in the agreement between QANTAS and the industrial association of which he was a member. The course of dealing and the conduct of Mr Christie is explicable, in my opinion, only on the basis that he accepted and adopted the terms of the 1991 agreement as permitting him to elect to continue his employment for each of the two years after his fifty-eighth birthday, a position which QANTAS shared.
On 6 July 1994, Mr Christie wrote to the Director of Flight Operations in the following terms:
"My current retirement date is 21.9.94 my sixtieth birthday. I believe recent legislation may now override any requirement for a retirement to be based on age. It is my wish to continue flying for Qantas beyond 21.9.94.
I am aware that there may be some restrictions to my flying due to certain overseas regulations. but I am prepared to bid around any such restrictions.
The coming into force of the Industrial Relations Reform Act on 30 March 1994 and, in particular, the commencement of s 170DF, did not have the effect of re-writing the contractual relationship between Mr Christie and QANTAS so as to convert a contract of employment which would come to an end at a known fixed time into a contract of indefinite duration. The Act did not re-write contracts of employment. This conclusion applies not only to QANTAS pilots, but also the millions of Australian workers who, prior to the introduction of the Industrial Relations Reform Act on 30 March 1994, were engaged on contracts of employment under which the worker would retire on a nominated date or event.
In the circumstances of this case, there was no termination by QANTAS of Mr Christie's employment. In my respectful opinion, no cause of action is open to Mr Christie under Division 3 of Part VIA of the Industrial Relations Act 1988.
If I be wrong in that conclusion, it is necessary to consider whether it was an "inherent requirement" of the "particular position" occupied by Mr Christie that he be under the age of sixty years. The language of s 170DF(2) focuses attention in the first instance on an inquiry as to what is the "particular position" under consideration.
The effect of the application by countries to which or over which QANTAS flies on those routes serviced by B747-400 aircraft means that Mr Christie would not be able to fly to any of the QANTAS European destinations or to Singapore, Bangkok or Hongkong, or to the United States, or over United States territories. The effect of these restrictions is that the only international flights on which QANTAs could use Mr Christie if he were to be employed by them, are flights to and from New Zealand, Denpassar in Bali, and Fiji.
In my opinion, it is not correct to describe the "particular position" of Mr Christie as that of a pilot or even a pilot of a B747-400 aircraft. To do so would be to misrepresent the particular position Mr Christie occupied, by ignoring the geographical content that being a B747-400 pilot for QANTAS entailed.
The words "particular position" focus on the position occupied by the person whose employment has been terminated. In this case, the "particular position" of Mr Christie was as a B747-400 pilot for QANTAS. The effect of the application of the "Rule of 60" by very many of the countries to or over which QANTAS flies means that Mr Christie would be able to fly to only a small proportion of the destinations serviced by QANTAS B747-400 aircraft. In my opinion, if one accepts that the "particular position" under consideration is that of a B747-400 pilot for QANTAS, it is an "inherent requirement" of that "particular position" that the pilot be under the age of sixty years. I respectfully agree with the reasons of Wilcox CJ on this aspect of the matter.
In my opinion, it is not open to the members of this Court to regard the question of air crew scheduling by QANTAS as being simply a matter of convenience, or to regard it as being an attempt by QANTAS to create an inherent requirement where there is in truth none. The evidence both oral and written before Wilcox J concerning the allocation of flights to B747-400 pilots was extensive. His Honour found that while the "Rule of 60" continues to apply in the countries most visited by QANTAS, "Qantas would not be able to use Mr Christie in the way he was used in the past." His Honour said:
"I do not agree with counsel for Mr Christie that this is merely a matter of administrative convenience; it goes to the heart of the system of aircrew scheduling. And that system is not an idiosyncratic fad of this employer. It seems to be the only way of ensuring fairness between employees. Even if it were changed in its details, there would remain a need to use the short flights to even out the hours worked by employees. "
In my respectful opinion, it is not open to a member of this Court to substitute his own view contrary to these findings. Wilcox CJ concluded:
"...the evidence shows that Mr Christie's continuation in employment after 21 September 1994 would have occasioned Qantas serious practical difficulties. If, as I believe, s.170DF(2) is to be applied in a practical, commonsense way, it must be concluded that, at that time, being under 60 years of age was an inherent requirement of a position as a B747-400 Captain. "
It is impossible to regard this passage, in context, as meaning that Wilcox CJ regarded the "particular position" of Mr Christie as a B747-400" Captain, simpliciter, rather than as a B747-400 QANTAS Captain.
I know analogies are often unhelpful, but it seems to me that Mr Christie's position after reaching his sixtieth birthday can be compared with the position of a person employed as a house painter by a painting company, who during the course of his employment over many years had painted the interior of houses, including not only the lower parts of walls but the higher parts of walls and ceilings, but who at a time late in his career is unable to do work that requires him to be on trestles or ladders, so that he can only paint those parts of the wall that he can reach by standing on the floor.
It seems to me that the ability to paint the higher parts of walls and the ceiling is an inherent requirement of the job of a house painter, and it is no answer to say that the painter can still wield a paintbrush and apply paint to areas of walls, provided those areas are parts that can be reached by standing on the floor. Nor is it any answer to say the painting company has other painters who can do the high parts. In my view, the inequity that would flow from making arrangements so that all the easy bits were done by this particular painter and the more difficult bits had to be borne by his workmates is a relevant consideration in considering what are the "inherent considerations" of the "particular position" under consideration.
The fact of the matter is that on reaching sixty, Mr Christie was no longer able to do a large part of what his job previously required him to do. The fact that he was able to do only a small portion of what previously was able to be done by him means that after reaching his sixtieth birthday he lacked an inherent requirement of the particular position he occupied prior to his sixtieth birthday.
In my opinion, QANTAS should succeed both on the issue raised by its notice of contention dealing with termination of employment, and on the application of s 170DF(2).
I would dismiss the appeal.
I certify that this and the preceding sixteen (16)
pages are a true copy of the reasons for judgment herein
of the Honourable Justice Spender.
Date: 14 June 1996 Associate
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 2363 of 1995
)
NEW SOUTH WALES DISTRICT REGISTRY )
B E T W E E N:
JOHN BAILLIE CHRISTIE
Appellant
- and -
QANTAS AIRWAYS LIMITED
Respondent
CORAM: Spender, Gray and Marshall JJ
PLACE: Melbourne (heard in Sydney)
DATE: 14 June 1996
REASONS FOR JUDGMENT
GRAY J
This appeal raises an important question of construction of s. 170DF of the Industrial Relations Act 1988 ("the Act"). The relevant provisions of that section are as follows:
"(1)An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
.....
(f)race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
....
(2)Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position."
The appellant was born on 21st September 1934. He chose a career as an aircraft pilot. On 30th April 1964, he was offered employment as a pilot by the respondent. He accepted that offer. His letter of appointment described his position as "a pilot for duty as required by the Company in any part of the world."
The letter did not specify a retiring age. No doubt the expression of a retiring age was considered unnecessary, because the respondent took the view that it was able to terminate the employment of pilots at whatever age was regarded as appropriate for retirement. Until 20th November, 1974, the "normal retirement date" for a pilot employed by the respondent was that pilot's fifty-fifth birthday.
By a letter of agreement dated 20th November 1974, the respondent agreed with the Australian Federation of Air Pilots to permit individual pilots employed by the respondent to exercise annual elections to continue their employment, on a year to year basis, up to their fifty-eighth birthdays. The terms of the letter required a pilot to make an election no later than the date of his fifty-fourth birthday to extend his employment to his fifty-sixth birthday. Further elections of annual extensions were required to be made not later than the date of each subsequent birthday. The letter also required that pilots employed after 20th November 1974 have included in their letters of appointment provision for the "normal date of retirement" to be 1st July following the fifty-fifth birthday of the pilot, with an entitlement to extend up to the pilot's fifty-eighth birthday on the basis of annual extensions in accordance with the letter.
The agreement of 20th November 1974 was "renewed" between the respondent and the Australian Federation of Air Pilots, by letter dated 26th August 1977.
At the time of the initial agreement, and of its renewal, the appellant was a member of the Australian Federation of Air Pilots.
By letter dated 17th December 1981, the respondent and the Australian International Pilots Association entered into an agreement in the same terms. At the time, the appellant was a member of the Australian International Pilots Association.
By letter dated 28th April 1987, when the appellant was yet to reach his fifty-third birthday, he indicated his intention of continuing in his employment until his fifty-sixth birthday. It should be noted that this letter was not, in terms, an election of the kind contemplated by the agreement of 17th December 1981. It simply said, "I wish to inform you that it is my intention to extend my period of service with Qantas beyond my 55th birthday." By letter dated 30th April 1987, the respondent said, "Thank you for your letter of 28th April 1987 wherein you have elected to extend your employment to your 56th birthday, 21.9.90." and told the appellant that the information had been recorded.
On 19th June 1989, the letter of agreement of 17th December 1981 was part of a collection of documents attached to the International Airline Pilots' Agreement 1986, when that agreement was certified by the Australian Industrial Relations Commission, pursuant to s. 115 of the Act, which has since been repealed. The International Airline Pilots' Agreement 1986 and the letter of agreement of 17th December 1981 thereby acquired the status of an award, pursuant to s. 116 of the Act, which has since been repealed, and the definition of "award" in s. 4(1) of the Act as it then stood. The agreement, including the letter, bound the respondent, the Australian International Pilots Association and all of its members, including the appellant; see s. 116(4)(a) and (b) of the Act as it then stood.
By letter dated 6th September 1989, the respondent enquired whether the applicant wished to continue in employment until his fifty-seventh birthday. The respondent supplied the appellant with a standard form of election, which he completed on 14th September 1989 and forwarded to the respondent. This was one week before the appellant's fifty-fifth birthday. In the following year, on 3rd September, the appellant completed and forwarded to the respondent another standard form letter, which was in terms an election to continue his employment until his fifty-eighth birthday.
By a further letter of agreement dated 14th January 1991, the respondent and the Australian International Pilots Association agreed that a pilot could elect to extend employment up to the date of his (and, presumably, her) sixtieth birthday. An election for an extension was required prior to each birthday. Again, the appellant continued to be a member of the Australian International Pilots Association. The letter of agreement dated 14th January 1991 was never submitted to the Australian Industrial Relations Commission for certification and never acquired the status of an award.
By letter dated 29th July 1991, the respondent enquired whether the appellant wished to continue in employment until his fifty-ninth birthday. The standard form election so to continue, which was signed by the respondent, was dated 1st July 1991, but was received by the respondent on 2nd August 1991. Again, on 15th September 1992, the respondent wrote to the appellant asking whether he wished to continue in employment until his sixtieth birthday. The appellant signed another standard form of election to continue in employment until his sixtieth birthday and forwarded it on 21st September 1992.
By letter dated 6th July 1994, the appellant wrote to the respondent in the following terms:
"My current retirement date is 21.9.94 my sixtieth birthday. I believe recent legislation may now override any requirement for a retirement to be based on age. It is my wish to continue flying for Qantas beyond 21.9.94.
I am aware that there may be some restrictions to my flying due to certain overseas regulations but I am prepared to bid around any such restrictions.
Due to the relatively short time available before 21.9.94 I trust that you can give me an early reply."
The appellant's sixtieth birthday fell on 21st September 1994. On and from that day, the respondent treated his employment as having come to an end. Immediately prior to that day, the appellant held the position of captain of a B747-400 aircraft. He was listed eighteenth in seniority among approximately 113 pilots of B747-400 aircraft employed by the respondent.
The appellant made an application to the Court, pursuant to s. 170EA of the Act, alleging that the respondent had terminated his employment by reason of his age. A similar application was made by a Mr. Allman, a domestic pilot who had been employed by Australian Airlines Ltd. until his sixtieth birthday. Australian Airlines Ltd. was a wholly owned subsidiary of the respondent. The two applications were heard together by the learned Chief Justice. His Honour published one set of reasons for judgment in the two cases. His reasons are reported as Christie v. Qantas Airways Limited; Allman v. Australian Airlines Limited (1995) 60 I.R. 17.
A major issue at the trial concerned the adequacy of evidence to justify a ban on airline pilots flying beyond the age of sixty for medical or safety reasons. His Honour held that such a ban could not be justified. He held that Australian Airlines Ltd. was in breach of s. 170DF(1)(f), in having terminated the employment of Mr. Allman by reason of his age. He ordered that Mr. Allman be reinstated in his employment. No appeal has been brought from that judgment or order. With respect to the appellant, his Honour held that no breach of s. 170DF(1)(f) had occurred, because it was an inherent requirement of the particular position occupied by the appellant that he be less than sixty years of age. The appellant has appealed against the order dismissing his application. He seeks an order that he be reinstated in his employment. The respondent has filed a notice of contention, contesting the conclusion of the learned Chief Justice that the respondent had terminated the appellant's employment. Two issues therefore arise, namely whether there was a termination of employment, for the purposes of s. 170DF, and whether age was an inherent requirement of the particular position held by the appellant.
On the first issue, the Chief Justice held that the various collective agreements concerning postponement of the retiring age year by year, and the forms of election signed by the appellant, were of no effect in relation to the appellant's contract of employment. His Honour found that there was never a contractual term relating to a retiring age in the appellant's contract of employment; he was entitled to continue in employment with the respondent until his employment was terminated properly. See 60 I.R., at pp. 21-2.
It was certainly the case that, at its inception, the contract did not contain an express term dealing with a retiring age. Counsel for the respondent argued that such a term came into the contract either directly, as a result of the collective agreements, or by the adoption by the appellant of the process of applying to extend his employment on an annual basis beyond his fifty-fifth birthday.
This argument encountered serious difficulties. One of the difficulties, which the law of contract has always faced, is the relationship between collective industrial agreements and individual contracts of employment. See Young v. Canadian Northern Railway Co. [1931] A.C. 83, at pp. 88-9, Rodwell v. Thomas [1944] K.B. 596, at p. 601, Ford Motor Co. Ltd. v. Amalgamated Union of Engineering and Foundry Workers [1969] 2 Q.B. 303, at pp. 321-31 and Gregory v. Philip Morris Ltd. (1987) 77 A.L.R. 79, at pp. 93-5. It is clear that terms of a collective agreement do not become terms of a contract of employment automatically. There must be some factual adoption of them, as was the case in National Coal Board v. Galley [1958] 1 W.L.R. 16 and Edwards v. Skyways Ltd. [1964] 1 W.L.R. 349, or what the High Court of Australia in Byrne v. Australian Airlines Ltd. (1995) 131 A.L.R. 422, at pp. 428-9 in the judgment of Brennan CJ, Dawson and Toohey JJ, and at pp. 442-3 in the judgment of McHugh and Gummow JJ, described as "crystallised custom". Even the enforceability under the Act of the one agreement which was certified does not assist the respondent, in the light of the view taken of the relationship between awards and contracts of employment in Byrne, at pp. 425-7 and 447-52. The fact that the 1991 agreement was never certified, so that the earlier agreement was never varied in terms of the Act, deprives the respondent of any opportunity to argue that the statutory force given to a certified agreement affected the appellant's contract of employment.
With respect to the appellant's first letter about extension to his fifty-sixth birthday, and the subsequent standard form notices of election, it is difficult to reach a conclusion. The acts of the appellant in that regard are equally consistent with having been performed pursuant to his contract of employment or pursuant to the collective agreement. If the latter view were taken, the mere fact that the appellant had acted on the collective agreement would not necessarily bring its terms into his contract of employment.
In the result, I do not believe that it is necessary to determine this issue. I am prepared to assume that the appellant came to be bound by his contract to retire when he attained the age of sixty. Prior to that event, however, he had informed the respondent that he did not wish to avail himself of that term, nor for it to be enforced against him, invoking "recent legislation" as overriding any requirement of a retiring age. By enforcing that term, against the will of the appellant, the respondent initiated the termination of his employment. It thereby brought itself within the s. 170DF(1)(f) of the Act, unless subs. (2) is applicable to the appellant's position. In other words, s. 170DF(1)(f) operated to make any term of the appellant's contract requiring his retirement at a particular age a term on which the respondent could not insist, unless it had the protection of subs. (2). It is therefore necessary to turn to the issue of the effect of subs. (2).
An enquiry as to whether something is an inherent requirement of a particular position must involve the characterisation of the particular position. In the present case, characterisation is difficult. The Chief Justice did not discuss the issue expressly in his reasons. At 60 I.R. p. 53, he described the appellant as "employed by Qantas as an international pilot" and continued, "He flew B747-400 aircraft, the largest jumbo jets." At p. 55, his Honour referred to "a position as Captain of a B747-400 aircraft". At p. 56, his Honour expressed his conclusion that, "being under sixty years of age was an inherent requirement of a position as a B747-400 Captain". His Honour therefore appears to have regarded the "particular position" of the appellant, for the purposes of s. 170DF(2), as having the characteristics that he was: (a) employed by the respondent; (b) as a pilot; (c) to fly internationally; (d) as a captain; (e) of B747-400 aircraft, the largest jumbo jets.
If this be the correct characterisation, it cannot be said that it is an inherent requirement of the particular position that its holder be aged less than sixty. As his Honour found, at 60 I.R., p. 54, there are three overseas destinations to which the appellant could fly B747-400 aircraft for Qantas, namely Denpasar in Indonesia, Fiji and New Zealand. Because of the laws of some other countries, he would not be able to captain a B747-400 aircraft, either landing in those countries or flying over them. In particular, he could not land in or fly over Singapore or Thailand. As Singapore and Bangkok are staging points, used frequently by the respondent for its flights to European destinations, the appellant would be unable to fly as captain of the aircraft through those ports to countries in Europe whose laws would not prohibit him from flying as a captain, or from landing.
It is only the addition of another factor or other factors to the characterisation of the appellant's particular position that would lead to the conclusion, to which the Chief Justice came, that age is an inherent requirement of that position. One such factor, relied on by Counsel for the respondent, was the ability to fly anywhere in the world as required. It was a term of the appellant's contract of employment, from its inception, that he be available to fly anywhere in the world as required. It was also said to be a term of the relevant collective agreement.
Similarly, Counsel for the respondent sought to rely on the factor of its rostering system. This rostering system has the force of the certified agreement between the respondent and the Australian International Pilots Association. It was the subject of detailed findings by his Honour, at 60 I.R., pp. 54-55. The respondent first determines the routes which it wishes to fly and the flights which it wishes to operate on those routes. It allocates aircraft to those flights, striving to use its aircraft efficiently, because of the cost of purchasing or leasing and operating them. The flight schedule is then used with a computer program which takes into account statutory and award requirements affecting the operation of air crew. The result is a series of what are called "slip patterns". Each slip pattern represents one trip. A trip may involve four hours of work, flying from Sydney to Melbourne and return. It may be as much as a twelve day trip, beginning and ending in Sydney and taking in destinations in Asia and Europe. The slip patterns are then combined to form a bid package, covering a period of eight weeks. Crew, including pilots, then submit their bids for specific slip patterns. The bids are determined according to the seniority of the persons bidding and the slip patterns are allocated to pilots and other crew members. A roster is then prepared and distributed. It may be altered at any time.
The respondent has for some time operated a rule of its own making in conjunction with this bidding system. The rule is that a pilot cannot bid for more than two one-day trips in any eight week period. The purpose of this rule is to ensure that enough of those trips are available for all pilots to construct full and efficient bid lines. I take this to mean that the respondent allocates one-day trips in order to optimise the rosters and to ensure that its pilots fly the requisite minimum number of hours in any bid period.
Argument on the appeal concerned substantially whether the appellant could fit within this roster system, without being compelled to fly as a captain to or over any country which would not accept aircraft flown by a captain over sixty. It was said that the Chief Justice erred in his findings about the effect of the bidding system. In particular, Counsel for the appellant argued that his Honour had confused "short trips" with one-day trips and that there were in fact enough "short trips", of up to four days in duration, to destinations to which the appellant could fly, to enable the bidding system to operate. Counsel for the respondent joined issue with these arguments and also drew the Court's attention to the fact that, if the appellant were allowed to continue in employment, other sixty year old pilots would have to be fitted into the roster system as well.
In my view, both the contractual requirement to fly anywhere in the world as required and the bidding and roster system are irrelevant to the inherent requirements of the appellant's particular position, for the purposes of s. 170DF(2). That subsection refers to an "inherent" requirement, namely something that is essential to the position, rather than being imposed on it. I do not think that an employer, by stipulating for contractual terms, or by creating or adhering to rostering systems, can create inherent requirements of a particular position. An employer could not, by a term of the contract, give itself the right to dismiss a woman who became pregnant, a person who suffered some physical or mental disability, someone who changed marital status or acquired family responsibilities, or someone who adopted a particular religion or political opinion, in defiance of s. 170DF(1)(f). Despite any contractual term, those characteristics would not become "inherent" requirements of the employee's position. Similarly, an employer could not rely on an established rostering system to terminate an employee whose family responsibilities, pregnancy or religion conflicted with that system. Protection against discrimination is provided by s. 170DF, even when there is a cost to the employer in adopting a rostering system, so as to avoid terminating the employment of an employee for a prohibited reason.
I recognise that the distinction between an inherent requirement and one imposed by a term of the contract of employment, or by the adoption of some system by the employer, is not always clear. It could be said that recognition that the appellant's particular position is properly characterised as including the factors of his employment by the respondent, his position as a captain and his responsibility for flying B747-400 aircraft means that reference is inevitably made to his contract. It is true that these factors would have a contractual foundation. They are nonetheless easily recognisable as part of the "particular" position, rather than being added to it as obligations or functions.
Characterisation of the particular position of an employee will often involve matters of impression. In the process, a purposive construction of s. 170DF of the Act must be adopted. The policy underlying the section is one that, wherever possible, protects employees from discrimination in termination of their employment for any of the prohibited reasons. That policy would be undone completely if an employer could arrange the terms of the contract, or its operating systems, so as to permit it to terminate the employment of employees on those prohibited grounds.
In my view, it does not matter that the present bidding and rostering system operated by the respondent has its basis in an agreement certified under the Act. Such an agreement is only a creature of the Act and cannot override it. If it becomes necessary for the respondent to seek the approval of the Australian Industrial Relations Commission for a system which will accommodate one or more pilots who are aged over sixty, then so be it. No system is immutable. Efficiency might have to be sacrificed in order to avoid unlawful discrimination.
I am therefore of the view that the Chief Justice was wrong in concluding that it was an inherent requirement of the particular position occupied by the appellant that he be less than sixty years old. The appeal must therefore be allowed.
Once the conclusion is reached that the respondent has contravened s. 170DF(1)(f), the Court must turn its attention to the question of remedies under s. 170EE. The primary remedy is an order requiring the employer to reinstate the employee, either by reappointing the employee to the position in which the employee was employed immediately before the termination, or appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. The Chief Justice did not give consideration to the reinstatement of the appellant by either of these means. If he had done so, he could properly have taken into account the bidding and rostering system operated by the respondent. He would not necessarily have reached the conclusion that the appellant could not be reinstated by either of the methods referred to in s. 170EE(1)(a). The outcome might depend upon whether the appellant is able to sustain the argument that his Honour confused "short trips" with one-day trips. It might depend on whether the appellant could fly on the basis that he was not the captain of the aircraft, without the terms and conditions of his employment being less favourable than they have been.
If the conclusion were reached that reinstatement was impracticable, consideration would have to be given to an award of compensation under s. 170EE(2) and to the calculation of that compensation, having regard to s. 170EE(3) and (4).
In my view, it is proper for the matter to be remitted to the Chief Justice to deal with the issue of remedies. The Full Court is not in a position to deal with the matter, especially in the absence of any relevant findings of fact.
I should therefore make the following orders:
That the appeal be allowed.
That the order of the Chief Justice, made on 12th May 1995, that the proceeding be dismissed, be set aside.
That there be substituted for that order a declaration that the respondent has contravened s. 170DF(1)(f) of the Act by terminating the employment of the appellant by reason of his age.
That the matter be remitted to the Chief Justice for consideration of orders pursuant to s. 170EE of the Act.
I certify that this and the
preceding seventeen (17) pages are a true copy of the reasons for judgment of his Honour Justice Gray
Associate:
Date:
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NI 2363 of 1995
BETWEEN: JOHN BAILLIE CHRISTIE
Appellant
AND: QANTAS AIRWAYS LIMITED
Respondent
CORAM: Spender, Gray and Marshall JJ
PLACE: Melbourne (heard in Sydney)
DATE: 14 June 1996
REASONS FOR JUDGMENT
MARSHALL J
BACKGROUND
This matter is an appeal from the judgment of the Court constituted by Wilcox CJ in matter No. NI 879 of 1994. That matter was heard together with matter No. NI 664 of 1994 (“the Allman matter”) in which the parties were Dallas John William Allman and Australian Airlines Limited (“Australian”). His Honour delivered reasons for judgment in each matter in a single judgment on 12 May 1995. See Christie v Qantas Airways Limited (1995) 60 IR 17 (“Christie”). Mr Christie and Mr Allman each made application under s170EA of the Industrial Relations Act 1988 (“the Act”) for orders including an order that the relevant termination of employment was in contravention of Division 3 of Part VIA of the Act. Each applicant alleged that he had been terminated in breach of s170DF(1)(f) of the Act. That provision proscribes the termination of employment of an employee at the initiative of the employer for, so far as is presently material, a reason based on the age of the employee concerned.
Mr Allman’s employment was terminated by Australian when he reached the age of 60 on 7 August 1994. At the time of the termination of his employment, Australian was a wholly owned subsidiary of the respondent to this appeal (“Qantas”). Mr Christie’s employment was either terminated by Qantas on 21 September 1994 on his 60th birthday or his contract of employment ended with Qantas on that day as a result of the effluxion of time, depending on the resolution of the issues dealt with later in these reasons.
In each case the employer alleged that it did not breach s170DF(1)(f) of the Act. Each respondent submitted that pursuant to s170DF(2) of the Act the relevant termination based on the age of the applicants was a termination for a reason “based on the inherent requirements of the particular position”. It was submitted that there was a medical reason for the policy of terminating the employment of pilots at age 60. Wilcox CJ rejected that submission. This meant that Mr Allman succeeded in his application. An order was made for his reinstatement. Mr Christie did not succeed in his application. Wilcox CJ found that “...being under 60 years of age was an inherent requirement of a position as a B747-400 Captain” (see Christie at 56) because a substantial number of countries to which Qantas planes are flown do not permit the landing of aircraft flown by pilots aged 60 or over. The Chief Justice found that there would be rostering problems for Qantas if Mr Christie was reinstated but limited in his flying to a restricted range of destinations. Counsel for Mr Christie submitted to Wilcox CJ that rostering issues did not bear upon “the inherent requirements of the position” but were matters relevant to the issue of administrative convenience. The Chief Justice said, at 56, that the rostering difficulty which would be occasioned by the limits on where Mr Christie could fly went “...to the heart of the system of aircrew scheduling.”. Also, at 56, his Honour said:-
“... Whatever the future may bring, the evidence shows that Mr Christie’s continuation in employment after 21 September 1994 would have occasioned Qantas serious practical difficulties. If, as I believe, s 170DF(2) is to be applied in a practical, commonsense way, it must be concluded that, at that time, being under 60 years of age was an inherent requirement of a position as a B747-400 Captain.”
Wilcox CJ, earlier in his reasons for judgment, at 18-22, had dealt with and rejected a submission by Qantas that Mr Christie’s employment was not terminated at its initiative but rather had ended by the effluxion of time. In respect of that issue Qantas filed a notice of contention in which it seeks to have the Court, on appeal, form a different view to the one taken by his Honour.
THE LEGISLATIVE FRAMEWORK
Section 170DF of the Act provides as follows:-
“170DF.(1) An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a)temporary absence from work because of illness or injury;
(b)union membership or participation in union activities outside working hours or, with the employer’s consent, during working hours;
(c)non-membership of a union or of an association that has applied to be registered as a union under the provisions of this Act;
(d)seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e)the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f)race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (emphasis supplied)
(g)absence from work during maternity leave or other parental leave.
(2) Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position. (emphasis supplied)
(3) Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the employer terminates the employment in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”
Section 170DF of the Act is, in large part, based upon Article 5 of the Convention Concerning Termination of Employment at the Initiative of the Employer (“the Termination of Employment Convention”). See Schedule 10 of the Act. However it is notable that age is not referred to at Article 5. Article 5(a) of Recommendation No. 166 (found at Schedule 11 of the Act) provides as follows:-
“In addition to the grounds referred to in Article 5 of the Termination of Employment Convention, 1982, the following should not constitute valid reasons for termination:
(a)age, subject to national law and practice regarding retirement;”
Reference should also be made to the Convention Concerning Discrimination in Respect of Employment and Occupation (Convention 111), which is Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986. Article 1 of that Convention provides as follows:-
“1. For the purpose of this Convention the term ‘discrimination’ includes -
(a)any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
(b)such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employer’s and worker’s organisations, where such exist, and with other appropriate bodies.
2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. (emphasis supplied)
3. For the purpose of this Convention the terms ‘employment’ and ‘occupation’ include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.”
Various provisions of the Act, apart from s170DF, bear on the issues requiring resolution in this matter.
Section 170CA of the Act provides that:-
“170CA.(1) The object of this Division is to give effect, or give further effect, to:
(a)the Termination of Employment Convention; and
(b)the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No. 166, and a copy of the English text of which is set out in Schedule 11.
(2) Without limiting subsection (1), the reference in paragraph 170DF(1)(f) to sexual preference, age and physical or mental disability, have been included in order to give effect, or further effect, to: (emphasis supplied)
(a)the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and
(b)the Recommendation referred to in paragraph 170BA(c).
(3) Without limiting subsection (1), the reference in paragraph 170DF(1)(f) to other parental leave has been included in order to give effect, or further effect, to the Family Responsibilities Convention and to the Recommendation referred to in paragraph 170KA(1)(b).”
Section 3(g) of the Act provides that:-
“3. The principal object of this Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by:-
...
(g)helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.” (emphasis supplied)
Section 170DE of the Act provides that:-
“170DE.(1) An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service. (emphasis supplied)
(2) A reason is not valid if, having regard to all the circumstances of the case, including the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid.” (emphasis supplied)
THE SECTION 170DF(2) DEFENCE
In order to determine whether the termination of Mr Christie’s employment on account of his age was for a reason based on the inherent requirements of the particular position, it is first necessary to determine what in fact was the particular position held by Mr Christie. The Chief Justice, at the passage at p.56 cited above, held that the position was a B747-400 Captain.
The words, “the inherent requirements of the particular position” are materially indistinguishable from the words “the inherent requirements of a particular job” as used in Article 1(2) of Convention 111. Section 170 CA(2)(a) of the Act illustrates the link between s170DF(1)(f) and Convention 111.
As von Doussa J said in Andersen v Umbakumba Community Council (1994) 126 ALR 121, 124-125:
“... The rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional cannons of construction of the English common law. In Commonwealth v Tasmania (the Franklin Dam case) (1983) 158 CLR 1; 46 ALR 625, Gibbs CJ at CLR 93 and Brennan J at CLR 222-3 considered that the relevant rules of interpretation are to be found in Art 31, paras 1 and 2 and Art 32 of the Vienna Convention on the Law of Treaties, and Murphy J at CLR 177 assumed that the interpretation principles in these Articles applied. See also Thiel v FCT (1990) 171 CLR 338 at 349, 356; 94 ALR 647 and Victrawl Pty Ltd v AOTC Ltd (1993) 117 ALR 347 at 350. The Vienna Convention was in force before the Termination of Employment Convention was adopted by the General Conference of the International Labour Organisation on 22 June 1982.
The general rules of interpretation by the Vienna Convention are:
Article 31
1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2.The context for the purpose of the interpretation of the treaty shall comprise, in addition to the text, including its preamble and annexes:
(a)any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b)any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
Article 32 provides:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a)leaves the meaning ambiguous or obscure; or
(b)leads to a result which is manifestly absurd or unreasonable.’
Apart from the rule of interpretation laid down in the Vienna Convention, Mason and Wilson JJ in Shipping Corp of India Ltd v Gamlen Chemical Co (A'Asia) Pty Ltd (1980) 147 CLR 142 at 159; 32 ALR 609 at 618 (with whose judgment Gibbs and Aicken JJ agreed) said:
It has been recognised that a national court, in the interests of uniformity, should construe rules formulated by an international convention, especially rules formulated for the purpose of governing international transactions such as the carriage of goods by sea, 'in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation', to repeat the words of Lord Wilberforce in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141 at 152; see also Stag Line Ltd v Foscolo, Mango & Co Ltd [1932] AC 328 at 350.”
In this case the Court has been referred to the preparatory work of the Convention by way of an article by Henrik Karl Nielsen in (1994) 43 ICLQ 827 entitled “The Concept of Discrimination in ILO Convention No. 111”. At 845-846 the learned author said as follows:
“...Regarding the meaning of the term ‘particular job’, it appears from the preparatory work of the Convention that the term refers to a specific and definable job, function or task and not to a broader sector of employment. Thus, the Conference Committee on Discrimination rejected a proposal from the employers to insert after the words ‘inherent requirements of the job’ the words ‘or the particular circumstances under which the job is being performed’.”
See also para 126 of the International Labour Office General Survey of 1988 regarding the concept of a particular job where it is said that:-
“Concept of ‘a particular job’ - ‘It appears from the preparatory work and the text of the Convention as ultimately adopted, that the concept of “a particular job” refers to a specific and definable job, function or task. Any limitation within the context of this exception must be required by the characteristics of the particular job, and be in proportion to its inherent requirements. Certain criteria may be brought to bear as inherent requirements of a particular job, but they may not be applied to all jobs in a given occupation or sector of activity, and especially in the public service, without coming into conflict with the principle of equality of opportunity and treatment in occupation and employment.”
Reference to a specific and definable job, function or task tends against the submission of counsel for Qantas on the appeal that the position of Mr Christie can be equated with that of a transport worker who is limited in the locations to which he may travel. As the Commission of Inquiry of the International Labour Office said in the “German Work Bans Case ” at para 531:-
“...The word ‘inherent’, which is used in the English text, is defined in the Oxford English Dictionary in the following terms: ‘existing in something as a permanent attribute or quality; forming an element, especially an essential element, of something; intrinsic, essential’. A corresponding idea is expressed by the words used in the French text (‘qualifications exigées’). Accordingly, any limitation which it is sought to bring within the scope of the exception provided for in Article 1, paragraph 2, must be necessary because of the very nature of the job in question. The notion of ‘necessity’ is widely resorted to in international human rights instruments as a criterion restricting exceptions to the rights recognised therein. Moreover, in considering whether a particular limitation can be justified as necessary, it is not sufficient to address only the question whether circumstances exist in which action may be called for to meet a purpose for which limitations are authorised by the provision in question. One must also consider whether the form and extent of the measures actually provided for or taken are commensurate with the exigencies of the situation. In other words, the limitation must be proportionate to the aim pursued.”
The conclusion of the Chief Justice was that it was an inherent requirement of the position of a B747-400 Qantas Captain that the holder of the position be aged under 60 years. His conclusion in that respect was based upon the following findings:-
the only international flights available to Mr Christie are those to and from New Zealand, Bali and Fiji;
to make up sufficient hours in order to complete his ordinary working hours, Mr Christie would need to use a “large proportion” of Qantas’ short flights.
if a substantial proportion of short flights were allocated to Mr Christie, Qantas would be unable to fully use all its other B747-400 Captains;
It is unnecessary to determine whether or not those findings were open to be made on the evidence. Those findings illustrate that rostering difficulties may have been occasioned by the continuation in employment of Mr Christie beyond his 60th birthday. They do not, in my view, bear upon the question as to whether it was an inherent requirement of the position of a Qantas B747-400 Captain that the occupant of that position be aged less than 60 and/or be able to fly B747-400 aircraft anywhere Qantas flies.
Qantas submitted that it was an inherent requirement of the position of a Captain of a B747-400 aircraft employed by Qantas for the occupant of that position to be able to perform the duties attending that position in any part of the world. It contended that the acceptance of Qantas’ offer of employment by Mr Christie in 1964 involved him in accepting that condition. As Mr Christie was unable to fulfil that condition on reaching 60 years of age, it was submitted that Qantas was able to terminate his employment without offending the material provisions of the Act.
A logical consequence of the submissions of Qantas is that it would be entitled to terminate the employment of all its female pilots with impunity if one or more foreign countries would not permit them to fly into their airports. Equally, if some particular nation or nations decided that pilots of a certain sexual preference would not be permitted to land aircraft on their soil then all pilots having such sexual preference would be liable to dismissal at the hands of Qantas, without remedy. Clearly such an absurd situation ought not be countenanced, especially in circumstances where the Court is interpreting remedial legislation which is designed to provide protection to employees against discriminatory treatment at the hands of their employers. See Grout v Gunnedah Shire Council (1994) 1 IRCR 143, 160 per Moore J.
In Western Air Lines, Inc v Criswell (“Criswell”) (1984) 472 US 400, 412-413, the United States Court of Appeal for the Ninth Circuit held a statutory provision which allowed age discrimination: “where age is a bona fide occupational qualification necessary to the normal operation of the particular business”, should be “an extremely narrow exception to the general prohibition of age discrimination...”.
The exception in the United States legislation referred to above is not unlike an exemption which is referrable to “the inherent requirements of the particular position”. To the extent that there is a difference it appears that the United States exception referred to above is wider than the exemption provided in s170DF(2) which focuses on the requirements of the position or job of the employee rather than the business of the employer.
Criswell concerned the action of an airline company in terminating the employment of a flight engineer on his attaining of 60 years of age. The approach of the Court in Criswell is consistent with the submissions of counsel for Mr Christie that defences to the general prohibition of the types of discrimination referred to in s170DF(1)(f) of the Act should have a narrow operation. See also “The Concept of Discrimination in ILO Convention No. 111”, Henrik Karl Nielsen, supra at 845 and the German Work Bans Case at para 530 where it said that:-
“It needs to be borne in mind that Article 1, paragraph 2, is an exception clause. It should therefore be interpreted strictly, so as not to result in undue limitation of the protection which the Convention is intended to provide.”
In my view the s170DF(2) defence should be narrowly construed. A narrow construction of s170DF(2) is consistent with s3(g) of the Act. Section 170DF(2) is not unlike the “exemption” or “defence” referred to by Commissioner Carter of the Human Rights and Equal Opportunity Commission in X v Department of Defence [1995] EOC para 92715. In that case the meaning of the words “inherent requirements’ in s15(4) Disability Discrimination Act 1992 (“the Disability Act”) was examined. The Commissioner held (at p 78, 378) that:-
“... for the exemption to apply, there must be a clear and definite relationship between the inherent or intrinsic characteristics of the employment and the disability in question, the very nature of which disqualified the person from being able to perform the characteristic tasks or skills required in this specific employment. Only then can the employer avoid the unlawfulness which attaches to the discrimination.”
The above approach to the construction of s15(4) of the Disability Act is the approach which should be applied to the construction of the s170DF(2) of the Act. Mr Christie is not disqualified from being able to perform the characteristic tasks or skills required in being a pilot, he is only inhibited geographically as to where he may perform such tasks. It was not necessary for Mr Christie to be able to fly to any part of the world in order for him to be a Qantas B747-400 Captain. He was capable of being rostered so that his services were utilised in flying to locations where he was not prohibited from so doing by the laws of other countries. The difficulties which ensue for the respondent in organising its rosters do not mean that the s170DF(2) defence is made out. Rather, they are difficulties that are relevant to practicability of reinstatement as a remedy pursuant to s170EE of the Act. In my view the Chief Justice erred in holding that being under 60 years of age was an inherent requirement of a position as a B747-400 Qantas Captain. It was possible and remains possible for Mr Christie to be rostered so that he is able to perform his duties as a B747-400 Captain. The very characterisation of the issue by Wilcox CJ as “an operational issue” illustrates, with respect, an incorrect approach to the resolution of the issue. A matter that goes to operational requirements is not necessarily a matter that bears upon the inherent requirements of the particular position.
Section 170DE(1) of the Act recognises that an employer may have a valid reason for the termination of an employee’s employment based on the operational requirements of the undertaking, establishment or service of the employer. But such a reason will not be a valid one if it is nonetheless harsh, unjust or unreasonable having regard to those operational requirements or if it involves a breach of s170DF(1) of the Act. In such circumstances s170DF(2) of the Act should not be construed as providing an exception to s170DF(1) of the Act regarding an issue relevant to operational requirements of the employer simply because of some difficulty or inconvenience which may affect the employer’s operational requirements, due to the reinstatement of the employee.
In my view the s170DF(2) defence has not been made out in this matter. No valid reason has been advanced for the termination of Mr Christie’s employment. It is now necessary to determine the jurisdictional issue to decide whether, in fact, Qantas did terminate Mr Christie’s employment or whether it ended by the passage of time. However, prior to so doing it is necessary to deal with a submission by counsel for Qantas that the Full Court cannot deal with the appeal before it upon the basis of the principles applied in Warren v Coombes and Another (1979) 142 CLR 531.
APPROACH TO THE APPEAL
Wilcox CJ concluded that the rostering difficulties which would have been occasioned by the retention in employment of Mr Christie went “to the heart of the system of aircrew scheduling” and was not “merely a matter of administrative convenience”. Whether the relevant difficulties went to the heart of the system of aircrew scheduling cannot govern the answer to the question as to whether it was an inherent requirement of the particular position that Mr Christie held that he not be aged 60 or over.
The Chief Justice’s finding about the difficulty occasioned by the continuation in employment of Mr Christie “did not depend to any substantial degree on the credibility of ... [any] witness”. See Rennie v Commonwealth, Full Court, Federal Court of Australia, ACTG 14 of 1995, 17 November 1995, as yet unreported per Burchett J at 10. In such circumstances the following passage from the joint judgment of Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes and Another (1979) 142 CLR 531, 552-553, is apposite:
“[W]e can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. ... [I]f the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.”
In my view the trial judge was in no better position than the Full Court in the instant circumstances to decide whether or not being aged less than 60 was an inherent requirement of the position of a Qantas B747-400 Captain. If having formed the view that the Chief Justice was incorrect in the inferences he drew from the facts before him in relation to this issue, the Full Court is duty bound to give effect to its contrary view. See also Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (1996) 62 IR 200, 202-203.
THE JURISDICTIONAL ISSUE
Qantas submitted that Mr Christie’s employment came to an end by agreement and was not terminated at its initiative. Consequently it submitted that no cause of action was open to him under Division 3 of Part VIA of the Act. The Chief Justice, at 22, held that Mr Christie’s employment was not ended by the effluxion of time but as a result of the insistence of Qantas, “that he comply with its policy that pilots retire no later than upon reaching the age of 60 years”.
Mr Christie commenced employment with Qantas on 30 April 1964. He was then 29 years of age, having been born on 21 September 1934. At all material times Mr Christie was a member of the relevant industrial association which represented the industrial interests of Qantas’ international pilots. The letter of appointment of Mr Christie referred to him “as a Pilot for duty as required by the Company in any part of the world”. At the time of Mr Christie’s appointment it was not a condition of his employment that he retire when he reached 60 years of age.
On 20 November 1974, the relevant industrial association entered into an agreement with Qantas. The agreement was in the form of a “letter of agreement” and provided so far as is material as follows:-
“ Ref O.433/7501-T.1
20th November, 1974
LETTER OF AGREEMENT
Between
QANTAS AIRWAYS LIMITED
And
THE AUSTRALIAN FEDERATION OF AIR PILOTS
Mr F.D.C. Caterson,
Australian Federation of Air Pilots,
66 Chandos Street
ST. LEONARDS 2065Dear Sir,
This letter sets out in full the various agreements reached between the Company and the Australian Federation of Air Pilots in respect of the extension of a pilots’ employment beyond the ‘normal date of his retirement’.
It is agreed between the Company and the Australian Federation of Air Pilots that as and from the first day of July 1974 that notwithstanding any agreement, Company custom or practice to the contrary, the following provisions shall apply to an offer and acceptance of the extension of a pilot’s employment beyond the ‘normal date of retirement’ (Designated as 1st July following his 55th birthday).
EXTENSION OF EMPLOYMENT
1.(a) A pilot may elect to extend his employment beyond the normal retirement date on a year by year basis up to but not beyond the date of his fifty-eight [sic - should read fifty-eighth] birthday.
(b)A pilot who so elects to extend his employment in accordance with the provisions of paragraph 1 hereof shall make his first election not later than the date of his fifty-fourth birthday, and such extension shall be to his fifty-sixth birthday. Further elections of annual extensions shall be indicated not later than the date of each of his subsequent birthdays.
(c)A pilot who at the date of this Agreement has attained or will attain before 1st January 1975 his fifty-fourth, fifty-fifth or fifty-sixth birthday shall exercise his election not later than that date in respect of an extension of employment to his fifty-sixth, fifty-seventh or fifty-eighth birthday respectively.
....
LETTERS OF APPOINTMENT
(i)Any pilot employed by the Company after 20th November, 1974 shall have included in his letter of appointment the provisions that his normal date of retirement will be 1st July, following his fifty-fifth birthday with the entitlement for him to extend his employment up to his fifty-eighth birthday on the basis of annual extensions in accordance with this letter.
(j)It is also agreed that any alteration to these conditions shall only be made by the mutual agreement between the Federation and the Company.
(k)No action to alter any of the agreements contained in this letter will be taken by either party without the consent of the other and in the event an action to alter any such agreement is made by any individual pilot or group of pilots, such action will be opposed by both parties.
Would you please sign a copy of this letter and return as your agreement with the terms provisions [sic] of this letter.
Yours faithfully,
A. WHARTON
(A. Wharton)
DIRECTOR OF FLIGHT OPERATIONS
AGREED
(Sgd.) F.D.C. Caterson
FOR AND ON BEHALF OF
THE AUSTRALIAN FEDERATION
OF AIR PILOTS
7.8.77 LOA 3-03
Agreement Renewed this 26th Day of August. 1977
(Sgd.) I.A. Wilson
FOR AND ON BEHALF OFQANTAS AIRWAYS LIMITED
(Sgd.) D.R. Gray
FOR AND ON BEHALF OF
THE AUSTRALIAN FEDERATION
OF AIR PILOTS”
Paragraph (i) of the 1974 agreement made it mandatory for pilots employed after 20 November 1974 to have a normal date of retirement of “1st July following his fifty-fifth birthday” referred to in each letter of appointment. A question arises as to whether the 1974 agreement varied Mr Christie’s contract of employment to provide that his normal date of retirement should be the same as those pilots who were employed after 20 November 1974.
The implication of a term in Mr Christie’s contract of employment, to the effect that from 20 November 1974 Mr Christie was in a position whereby on 1 July 1990 he would need to apply “to extend his employment” with Qantas, was not “necessary for the reasonable or effective operation of the contract in the circumstances ...”. Therefore it cannot be said that such a term was implied into Mr Christie’s contract of employment. See Byrne v Australian Airlines Ltd (“Byrne”) (1995) 131 ALR 422, 444 (per McHugh and Gummow JJ).
In Byrne it was said by McHugh and Gummow JJ (at 444) of the particular award provision submitted by the appellants in that case to be implied into their contracts of employment that:-
“The contractual term propounded by the appellants would operate in a partisan fashion. It would favour the interests of the employee at the expense of those of the employer.”
Here the opposite would apply, Mr Christie’s rights would have been cut down by the term said by Qantas to have been implied in 1974 into his contract of employment.
As at 1974, Mr Christie had every right to expect that he was able to continue in his employment, subject to health and licensing matters, beyond 1 July 1990. It is erroneous to submit that Mr Christie was acquiring any right as a result of his industrial association’s apparent acceptance that employees in his position should have a finite working life limited by considerations designed to deal with the terms upon which new pilots would be employed after 20 November 1974.
On 28 April 1987, Mr Christie wrote to Qantas advising that:-
“I wish to inform you that it is my intention to extend my period of service with Qantas beyond my 55th birthday.”
In accordance with the 1974 agreement (which had been renewed in 1977 and 1981) this appeared to involve an application for “an extension” of Mr Christie’s employment to his 56th birthday on 21 September 1990. This application for an extension was unnecessary as the term of the 1974 agreement purporting to limit Mr Christie’s employment never formed part of his contract of employment.
On 19 June 1989 the Australian Industrial Relations Commission (“the Commission”) certified an agreement between Mr Christie’s industrial association and Qantas entitled the International Airline Pilots’ Agreement 1986 (“the certified agreement”).
The certified agreement reproduced, as part of its terms, various letters of agreement between the association and Qantas including the 1974 agreement as renewed on 17 December 1981.
As at 19 June 1989, for the reasons expressed above, the 1974 agreement insofar as it sought to limit Mr Christie’s working life had not become part of his contract of employment. It did not thereby become part of his contract of employment by virtue of being part of an award.
To borrow from and adapt for present purposes the language of the judgment of McHugh and Gummow JJ in Byrne at 452:
“There is nothing to suggest that the ... [contract] of employment [was] not workable and effective before the introduction into ... [an award] of provisions such as ... [the 1974 agreement]. This is not a case where a provision such as ... [the 1974 agreement] is necessary lest the contract be deprived of its substance, seriously undermined or drastically devalued in an important respect.”
See also Brennan CJ, Dawson and Toohey JJ at 429 where their Honours said in their joint judgment:-
“... Just as there can be no implied or presumed intention of the parties in this case to include a provision of an award as a term of their contracts of employment, there can be no assumption that they contracted upon the basis of the inclusion of an award provision. There would be no need for them to do so because the award operates of its own force. Whatever may be the situation with the terms of collective bargains, which at least involve a measure of agreement albeit not with individual employees, there can in our view be no basis for treating a provision of an award as a ‘crystallised custom’ and implying a term to its effect into a contract of employment.”
On 14 January 1991 the association and Qantas entered into a further agreement which was not the subject of certification by the Commission. The 1991 agreement insofar as is material provided as follows:
“LETTER OF AGREEMENT
between
QANTAS AIRWAYS LIMITED
and
THE AUSTRALIAN INTERNATIONAL PILOTS’ ASSOCIATION
It is agreed between the Company and the Australian International Pilots’ Association that the following rules should apply to pilots wishing to extend their employment beyond normal retirement age.
EXTENSION OF EMPLOYMENT
1.(a) A pilot may elect to extend his employment beyond the normal retirement date on a year by year basis up to but not beyond the date of his sixtieth birthday.
(b)A pilot who so elects to extend his employment in accordance with the provisions of paragraph 1 hereof shall make his first election not later than the date of his fifty-fourth birthday, and such extension shall be to his fifty-sixth birthday. Further elections of annual extensions shall be indicated not later than the date of each of his subsequent birthdays.
(c)A pilot who at the date of this Agreement has attained or will attain before 1st February 1991 his fifty-seventh or fifty-eighth birthday shall exercise his election not later than 1st February 1991 in respect of an extension of employment to his fifty-ninth or sixtieth birthday respectively.
...
LETTERS OF APPOINTMENT
(h)Any pilot employed by the Company after 14th January, 1991 shall have included in his letter of appointment the provisions that his normal date of retirement will be 1st July, following his fifty-fifth birthday with the entitlement for him to extend his employment up to his sixtieth birthday on the basis of annual extensions in accordance with this Letter of Agreement.
(i)It is also agreed that any alteration to these conditions shall only be made by mutual agreement between the Australian International Pilots’ Association and the Company.
(j)No action to alter any of the agreements contained in this letter will be taken by either party without the consent of the other and in the event an action to alter any such agreement is made by any individual pilot or group of pilots, such action will be opposed by both parties.
SAVINGS
(k)Nothing contained in this agreement shall in any way reduce the benefits or entitlements of any pilot or of the Company or the Association as were provided for in Letter of Agreement No. 1 of the International Airline Pilots Agreement 1989 and as originally entered into on the 20th day of November, 1974: Ref. 0.433/7501 - T - 1.
Dated this 14th day of January 1991
(Signed) P.M. LAVALLIN PUXLEY
For and on behalf of
QANTAS AIRWAYS LIMITED
(Sgd) D.R. GRAY
For and on behalf of
AUSTRALIAN INTERNATIONAL
PILOTS’ ASSOCIATION”
After 14 January 1991 any pilot employed by Qantas was to have recognised in her or his letter of appointment a normal retirement date of the 1st day of July following their attaining the age of 55 with annual extensions permitted up to age 60. The agreement did not and could not operate to truncate the duration of Mr Christie’s employment for the same reasons that I have found that the 1974 agreement did not apply to limit the duration of Mr Christie’s employment.
The elections made by Mr Christie on 2 August 1991 and 21 September 1992 to extend his employment were unnecessary. I agree with the conclusion of the Chief Justice, at 22, that:-
“Mr Christie did not need an extension; he was entitled to continue until [his contract of employment was] terminated.”
I therefore agree with the Chief Justice that the Court had the jurisdiction to entertain Mr Christie’s application. Mr Christie’s contract of employment did not end with the lapse of time. Rather it was terminated by Qantas at the initiative of Qantas.
Qantas submitted that Mr Christie was estopped from denying that his employment came to an end on 21 September 1992 due to his conduct in seeking extensions of his employment up to and including that day. I do not believe that the doctrine of estoppel is relevant to the matter before the Court. If the contract of employment of Mr Christie did not require that he apply for extensions of it no question of estoppel can arise. If the opposite was true, Qantas would not need to rely upon the doctrine of estoppel.
ORDERS
In the circumstances, it is appropriate in my view to make the following orders:
1.That the appeal be allowed.
2.That the order of the Chief Justice, made on 12 May 1995, that the proceeding be dismissed, be set aside.
3.That there be substituted for that order a declaration that the respondent has contravened s 170DF(1)(f) of the Industrial Relations Act 1988 by terminating the employment of the appellant by reason of his age.
4.That the matter be remitted to the trial judge for consideration of orders pursuant to s170EE of the Industrial Relations Act 1988.
I certify that this and the preceding 25 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 14 June 1996
Counsel for the applicant : Dr C N Jessup QC with
I M Neil
instructed by : Blake Dawson Waldron
Counsel for the respondent : L Wright QC with
Ms S Winters
instructed by : Jones Staff and Co
Dates of Hearing : 11 October and
28 November 1995
Date of Judgment : 14 June 1996
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