John Baillie Christie v Qantas Airways Limited Dallas John William Allman v Australian Airlines Limited
[1995] IRCA 197
•12 May 1995
EMPLOYMENT - Two claims of unlawful termination by airline pilots - Competency of applications - Whether employment of one applicant was terminated by employer or by effluxion of time - Whether other applicant was excluded from claiming by the fact that his salary exceeded $60,000 per year and was not fixed by an award - Meaning of "employed under award conditions" - Meaning of "inherent requirements of the particular position" - Whether being aged less than 60 years is an inherent requirement of a position as a pilot - Whether there is a medical justification for requiring pilots to retire at 60 - Acceptability of a system of individual screening - Operational difficulties that would be caused by restrictions imposed by foreign governments on over-60 pilots. Whether these difficulties made being under 60 years an inherent requirement of a position as a B747-400 captain.
Industrial Relations Act 1988, ss.170CD, 170DF, 170EDA and 170EE.
No. NI. 879 of 1994
JOHN BAILLIE CHRISTIE v. QANTAS AIRWAYS LIMITED
AND
No. NI. 664 of 1994
DALLAS JOHN WILLIAM ALLMAN v. AUSTRALIAN AIRLINES LIMITED
CORAM: WILCOX CJ
PLACE: ADELAIDE (HEARD IN SYDNEY)
DATE: 12 MAY 1995
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI. 879 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: JOHN BAILLIE CHRISTIE
Applicant
AND:QANTAS AIRWAYS LIMITED
Respondent
CORAM: WILCOX CJ
PLACE: ADELAIDE (HEARD IN SYDNEY)
DATE: 12 MAY 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The proceeding be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI. 664 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN:DALLAS JOHN WILLIAM ALLMAN
Applicant
AND:AUSTRALIAN AIRLINES LIMITED
Respondent
CORAM: WILCOX CJ
PLACE: ADELAIDE (HEARD IN SYDNEY)
DATE: 12 MAY 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The respondent, Australian Airlines Limited, reinstate the applicant, Dallas John William Allman, by reappointing him to the position in which he was employed immediately before the termination of his employment on 7 August 1994.
For all purposes, the said respondent treat the said applicant as having been continuously employed by it from the date of termination to the date of reinstatement.
The said respondent pay to the said applicant the remuneration lost by him because of the termination.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI. 879 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: JOHN BAILLIE CHRISTIE
Applicant
AND:QANTAS AIRWAYS LIMITED
Respondent
AND
No. NI. 664 of 1994
BETWEEN:DALLAS JOHN WILLIAM ALLMAN
Applicant
AND:AUSTRALIAN AIRLINES LIMITED
Respondent
CORAM: WILCOX CJ
PLACE: ADELAIDE (HEARD IN SYDNEY)
DATE: 12 MAY 1995
REASONS FOR JUDGMENT
WILCOX CJ: These two cases challenge the policy of Qantas Airways Limited ("Qantas") of compulsorily retiring pilots at the age of 60. They were heard together by consent, the evidence in each case being treated as evidence in the other to the extent of its relevance.
The applicant in one case, John Baillie Christie, was employed as a pilot by Qantas from 1964 until his 60th birthday on 21 September 1994. Throughout that period he flew aeroplanes servicing Qantas' international routes. With the exception of a short period in 1989, the applicant in the other case, Dallas John William Allman, was employed as a pilot by Australian Airlines Limited, flying its Australian domestic routes, from 21 January 1957 until he turned 60 on 7 August 1994. When Mr Allman commenced this employment his employer was known as Trans Australia Airlines. By the time he left, it was a wholly-owned subsidiary of Qantas and generally referred to as "Qantas domestic".
Both cases are brought under Division 3 of Part VIA of the Industrial Relations Act 1988, each applicant claiming that his employment was terminated by his employer in contravention of para.(f) of s.170DF(1). The paragraph reads:
"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) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f)race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(g)..."
Subsection (2) provides a defence to a claim under s.170DF(1)(f):
"(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."
In the case of Mr Christie, the respondent denies that it terminated his employment. It argues that the employment came to an end by effluxion of time, the contract of employment between it and Mr Christie being limited to the period before his 60th birthday. If, contrary to this argument, the respondent did terminate Mr Christie's employment, it admits that this was because of his age; but it claims that this reason is based on the inherent requirements of the particular position, so s.170DF(2) applies.
In the other case, Australian Airlines concedes that it terminated Mr Allman's employment. It too relies on s.170DF(2), but it also raises an objection to the competency of the claim. It says that s.170CD of the Act excludes an application by Mr Allman under Division 3. It is convenient to deal first with the objections to competency.
Mr Christie's entitlement to claim
In order to determine the preliminary point taken by Qantas in respect of Mr Christie it is necessary to consider several documents. The first document is a printed form of letter of appointment dated 30 April 1964, addressed to Mr Christie and signed on behalf of the Staff Manager of Qantas Empire Airways Limited, as the company was then known. That letter appointed Mr Christie from that day "as a Pilot for duty as required by the Company in any part of the world". The letter said that Mr Christie would initially be classified as a probationary pilot, pending completion of training and commencement of operational duties. Upon completion of his probation, Mr Christie would be appropriately graded and receive salary and allowances as set out in the company's staff instruction manual. The letter dealt with termination in this way:
"4(a)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.
(b)You are reminded that should you at any time, in the opinion of the Company be guilty of misconduct, neglect of duty, gross inefficiency or breach of Company instructions, the Company may terminate your employment without notice."
The letter included numerous other conditions and this paragraph:
"19.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."
The foot of the letter contained a printed endorsement:
"I have read the conditions of employment set out above and accept appointment in accordance therewith."
Mr Christie signed this endorsement, thus creating a contract of employment between himself and Qantas in accordance with the terms of the letter.
Despite the terms of cl.19, nothing has been put before me to suggest the existence in 1964 of any relevant industrial award or agreement. An agreement was made in 1984, known as the International Airline Pilots' Agreement 1984. It is not in evidence and I do not know its terms.
In 1986 the 1984 agreement was replaced by another agreement, the International Airline Pilots' Agreement 1986. This agreement was made between Qantas and Australian International Pilots Industrial Organisation, a registered employee organisation now known as Australian International Pilots Association ("AIPA"). The 1986 agreement was certified under s.115 of the Industrial Relations Act by the Australian Industrial Relations Commission ("AIRC" or "the Commission") on 19 June 1989.
Section 2 of the certified agreement provided that it should be binding on Qantas, on the organisation - that is, AIPA - and its members and on "pilots employed by the company for whom the association is deemed to act as agent". Section 3 provided that the agreement "shall operate from 21 November 1986 in respect of all matters and shall remain in force until 20 November 1988 in respect of rules and conditions of work". This section went on to refer to variations intended to become effective from various dates in 1987, to permit the submission of "proposals for a new award or agreement or variations to this agreement not earlier than 90 days prior to expiration date of this agreement", to require a meeting to consider those proposals, and to provide for variation of the agreement during its currency by mutual agreement.
Section 5 of the agreement was headed "Contract of employment". It opened with a provision that the "services of a pilot shall be terminable by either the company or the pilot" by 14 days written notice during the first 12 months of employment and thereafter by 28 days' notice in writing or by payment or forfeiture of the requisite number of days' pay in lieu of notice. The section made no reference to termination on account of age.
Section 5(e) provided:
"The company may employ its pilots and the pilots shall serve the company in any part of the world where the company may from time to time be operating."
It is unnecessary to refer to the remaining sections in the agreement. They made elaborate provision in connection with all manner of subjects, including wage rates.
It seems to be common ground that the agreement was extended beyond its original expiry date and that pilots employed by Qantas, including Mr Christie, were paid in accordance with rates fixed by the agreement, as amended from time.
The 1986 agreement made no reference to a retiring age. However, this subject was addressed in one of several letters of agreement that were physically bound with the copy of the certified 1986 agreement tendered in evidence. This letter was addressed by Qantas' Director of Flight Operations to Mr F D C Caterson of the Australian Federation of Air Pilots. It 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 pilot's 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 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 1 July following his 55th birthday)."
The provisions that followed allowed a pilot to 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 58th birthday", by giving appropriate notice to the company. Mr Caterson was asked to sign and return a copy of the letter. According to an endorsement on the bound copy, the letter was adopted, on 17 December 1981, by officers of Qantas and AIPA. The notice requirements were subsequently varied by a letter of agreement dated 27 March 1984 a copy of which was also bound up with the certified agreement.
The status of these letters of agreement is obscure. Although copies were bound with a copy of the certified agreement, the Commission's certificate does not appear to have been intended to extend to them. The certificate referred to "the attached document", in the singular, and described that document as "a memorandum of the terms agreed on in respect of the abovementioned industrial dispute" between Qantas and AIPA.
A further letter of agreement is also in evidence. It was not bound with the certified agreement. So far as the evidence indicates, it has never been produced to the Commission. This letter is dated 14 January 1991 and signed by officers of Qantas and AIPA. The letter recorded an agreement "that the following rules should apply to pilots wishing to extend their employment beyond normal retirement age". The first stated rule was that "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". The other rules related to notice of extension and ancillary matters.
In response to a letter of inquiry from Qantas, on 25 April 1987 Mr Christie advised his intention to extend his period of service beyond his 55th birthday, due on 21 September 1989. Qantas treated his letter as an election to extend his employment until his 56th birthday. In September 1989 Qantas asked him whether he wished to extend to his 57th birthday. He elected to do so. In September 1990, in response to a further inquiry, he elected to extend his employment to his 58th birthday; and, in July 1991, until his 59th birthday. In September 1992 Mr Christie was asked whether he wished to extend to his 60th birthday, on 21 September 1994, and he responded by electing to do so.
On 6 July 1994 Mr Christie wrote a letter in these terms to Captain R J Heiniger, Qantas' Director of Flight Operations and Chief Pilot:
"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."
Mr Christie received two letters in response to this letter but neither stated a final position. On 22 August 1994 his solicitors wrote a further letter to Captain Heiniger which referred, amongst other things, to s.170DF(1)(f) of the Industrial Relations Act and pressed Mr Christie's claim to be entitled to continue in his employment after 21 September.
On 8 September two letters were sent. One was written on behalf of Captain Heiniger to Mr Christie himself. It read:
"I write to clarify the position with respect to your retirement on 21st September, 1994.
As you know, the International Airline Pilots' Agreement and the Company's policy requires that pilots retire no later than upon reaching the age of 60 years.
Insofar as this is a matter of policy, it is based on safety and operational considerations. It reflects the particular requirements of and qualifications for the position of pilot within the employ of Qantas.
The Agreement and the policy are still appropriate and remain operative. Accordingly, it is necessary that your retirement take effect as planned on 21st September, 1994."
The other letter was sent by Qantas' solicitors to Mr Christie's solicitors. It was to the same effect. Accordingly, Mr Christie ceased his employment with Qantas on 21 September. He received a superannuation payment pursuant to the scheme operated by the company.
Counsel for Qantas argue that the duration of Mr Christie's employment was governed by the 1991 agreement between Qantas and AIPA providing for extension of a pilot's employment until his sixtieth birthday. They concede that Mr Christie was not a party to this agreement. They also accept that there is no evidence that this agreement was certified by the Commission, so as to be binding on Mr Christie as a member of AIPA: see s.149(2) of the Industrial Relations Act. But they submit that, by his subsequent conduct, Mr Christie adopted the agreement. They say that his elections to extend, year by year, are explicable only on that basis. His final notice of election, to extend his employment until 21 September 1994, they say, constituted an agreement that the employment should terminate on that day.
Counsel do not submit that the letters of agreement bound with the certified agreement apply to Mr Christie. They accept that there is no reason to suppose that the Commission's certification extended to these letters. But they say that Mr Christie obviously knew of the existence of the agreement for extensions beyond age 55 and took advantage of it; accordingly, he is now estopped from denying that it was part of his contract of employment.
I do not accept these submissions.
The original contract between Qantas and Mr Christie contained no condition as to the duration of his employment. The employment was to continue indefinitely, subject to the possibility of termination by a party pursuant to cl.4. If Qantas then had a policy about retirement at a particular age, it neglected to make this a condition of Mr Christie's employment contract. In that situation, the question is whether there was ever a variation of the original contract so as to include a term requiring Mr Christie to retire at 60, or any other particular age.
The letters of agreement bound with the certified agreement did not effect a variation of the contract of employment. Mr Christie was not a party to them. Although he was at the time a member of AIPA and would have been bound by a certified award, these letters do not appear to have been certified by the Commission. Furthermore, even if the letters bound Mr Christie, their terms would not have constituted a variation of his contract of employment. All that the parties agreed by the letters was that, from 1 July 1974, certain rules should apply to "an offer and acceptance of the extension of a pilot's employment beyond the 'normal date of retirement' (designated as 1 July following his 55th birthday)". But Mr Christie did not need to negotiate an extension of his employment beyond age 55. He was entitled to continue his employment unless and until that employment was terminated in accordance with his original contract of employment.
The same reasoning applies to the correspondence between Mr Christie and Qantas concerning the making of year by year elections to extend. This correspondence was misconceived. Mr Christie did not need an extension; he was entitled to continue until terminated. It is true that this correspondence may have caused Qantas not to terminate the contract of employment in accordance with cl.4 of the letter of 30 April 1964. If so, that was because of Qantas' own error. Contrary to the suggestion of counsel, there is no question of promissory estoppel. Mr Christie made no promise. At no time did he say that he would retire at 60, or any other age. The formula used in the letters of extension, devised by Qantas rather than Mr Christie, was "I elect to extend my employment to (a specific date) being my (number inserted) birthday". Particularly in a context where the same formula was used year after year, only the date and number being altered, Qantas could not have understood an election to extend to a particular date as a statement that Mr Christie agreed to retire on that day.
Qantas has failed to demonstrate that Mr Christie's employment came to an end through effluxion of time. On the contrary, it is apparent from the letters of 8 September that he was forced to cease work on his 60th birthday because Qantas insisted that he comply with its policy "that pilots retire no later than upon reaching the age of 60 years". By this insistence Qantas terminated Mr Christie's employment on account of his age; so the outcome of his case depends on the availability to Qantas of the defence stated in s.170DF(2).
Mr Allman's entitlement to claim
Australian Airlines accepts that Mr Allman's employment was terminated by it, not by effluxion of time. But it contends that he is not entitled to make an application under Division 3 because of the operation of s.170CD(1) of the Act. That subsection provides that Subdivisions B to F inclusive of Division 3 "do not apply to a termination of employment of an employee who is not employed under award conditions" if, on the termination day, the wages of the employee exceeded "the applicable amount" or a proportion of that amount calculated on a daily basis. The "applicable amount" is $60,000 or such indexed amount as may be prescribed by regulations. No indexed amount has yet been prescribed. Prior to his retirement, Mr Allman received a salary exceeding $60,000. His claim depends on the application to him of Subdivisions B and C of Division 3. So the critical question is whether he was "employed under award conditions". Subsection (3) of s.170CD explains what is meant by that phrase:
"For the purposes of this section, an employee is taken not to be employed under award conditions if wages and conditions of employment of the employee are not regulated by one or more relevant awards that bind the employer of the employee."
The term "relevant award" is defined by subs.(4) for the purposes of s.170CD as meaning "an award or a State award". The word "award", in turn, is defined by s.4 of the Act to include, not only an award or order of the Commission under s.143(1) of the Act, but also a certified agreement and an enterprise flexibility agreement.
In support of their argument that Mr Allman's wages and conditions of employment were regulated by one or more awards, his counsel referred to three awards, the Australian Airlines Pilots Award 1989 ("the Airlines Award"), the Qantas/Australian Airlines Pilots Integration Award 1994 and the Qantas (Shorthaul Pilots) Enterprise Bargaining Award 1995. However, the last two awards were not made until 27 October 1994, more than two months after the termination of Mr Allman's employment, and 25 January 1995, respectively. It is true that each contained a provision that it "shall come into force" on an earlier date, 1 September 1993 and 1 July 1994, respectively. But such a provision only means that the obligations imposed by the award, when it was made, were referable to an earlier date. It does not mean that the award bound the parties before it was made: see Federated Engine Drivers and Firemen's Association of Australia v Adelaide Chemical and Fertiliser Company Limited (1920) 28 CLR 1 at 11. Neither of these last named awards was in force during Mr Allman's employment by Australian Airlines. Neither regulated his wages and conditions.
The Airlines Award commenced on 13 October 1989. Clause 2 provided "This award shall be binding on Australian Airlines Ltd in respect of its operations throughout Australia for the benefit of all pilots employed in the classifications covered by the award". The word "pilot" was defined in cl.4 of the award in terms of the meaning ascribed to it in cl.1 of Schedule 1 of the Industrial Relations Act; that is, in relation to an aircraft, as including "a pilot in command, co-pilot or pilot of any other description".
It is clear that Mr Allman was a pilot, within the ordinary meaning of that term, and was employed by Australian Airlines in that capacity. He was at that time both a "Captain" and a "Check captain". These were "classifications covered by the award". Consequently, it is clear that, when it was made in 1989, the award bound Australian Airlines in respect of him. However, the award was amended in August 1990. According to counsel for the respondents, the amendments took Mr Allman outside the purview of the award. Their reason is that Mr Allman was then employed as a check captain in A300 aircraft, a position he continued to hold until the termination of his employment.
In order to follow the respondents' argument it is necessary to note some definitions contained in cl.4 of the award, as originally framed. "Administrative captain" was defined as "a captain appointed to a management position by the employer". The term "Captain" was defined as:
"a pilot employed by the employer who is appointed as a captain by the employer and who is currently licensed by the Civil Aviation Authority (CAA) to act in command of an aircraft."
"Check captain" was defined as:
"a captain who is approved by the CAA and appointed by the employer to conduct flight proficiency tests for the issue and renewal of airline transport pilots' licences, and who certifies as to the competency of pilots so tested."
The August 1990 amendments included a rewriting of cl.10 of the award, dealing with pay. Paragraph (a) of the old cl.10 set out pay rates in para.(a) for captains and first officers. The captain's rate of pay depended on the aircraft for which he achieved line competency. The rate for an A300 captain was $120,522 per annum. Paragraphs (e) and (f) of the clause provided special allowances for check captains and administrative captains. The new clause 10 rationalised the pay structure for captains. It divided the aircraft in the employer's fleet into two groups, A300 aircraft and the rest. The pay rate for an A300 captain was increased to $124,138. The special allowances for check captains and administrative captains were omitted.
The evidence discloses the circumstances of these amendments. They stemmed from employer applications made to the AIRC in May 1990. The respondent to the applications was the Australian Federation of Air Pilots but another organisation representing pilots, Australian Transport Officers' Federation ("ATOF"), intervened in support of the orders sought. It appears that the application was based on some structural efficiency agreements that had been negotiated between the employers and ATOF. On 2 July 1990 Deputy President Hancock indicated that he would accede to the applications. In reasons given that day he said:
"All agreements stipulate that references to Check Captains and/or Administrative Captains will be deleted from the awards. The purpose of these variations is to allow the companies to treat the officers concerned as managerial staff."
On 15 August Deputy President Hancock made formal variation orders.
On 29 August 1990 Captain T D Wiltshire, Head of A300 Operations and Deputy Chief Pilot of Australian Airlines, sent a memorandum to Mr Allman stating:
"AGREEMENT HAS BEEN REACHED WITH THE MANAGING DIRECTOR REGARDING YOUR SALARY AS AN A300 EXECUTIVE CAPTAIN.
THE PACKAGE IS AS FOLLOWS:
ANNUAL A300 LINE CAPTAIN SALARY $124,138.00
CHECK/ADMIN. ALLOWANCE $ 42,040.78
GROSS ANNUAL SALARY $166,178.78
PLUS-
A FULLY MAINTAINED MOTOR VEHICLE
YOU WILL CONTINUE TO BE PAID A FIXED DAILY TRAVELLING ALLOWANCE OF $3744.00 AND THE ANNUAL LOSS OF LICENCE INSURANCE OF $750.00.
WITH THE EXCEPTION OF THE MOTOR VEHICLE YOUR SALARY PACKAGE WILL CONTINUE TO BE LINKED TO THE AUSTRALIAN AIRLINES PILOTS AWARD 1989.
AN ANNUAL ASSESSMENT OF LINE PILOT PRODUCTIVITY WILL BE UNDERTAKEN TO BE REFLECTED IN THE 'ADMINISTRATIVE' ALLOWANCE.
SHOULD THERE BE ANY QUERIES REGARDING THE PACKAGE PLEASE FEEL FREE TO CONTACT ME AT ANY TIME TO DISCUSS THE MATTER.
COULD YOU PLEASE SIGN THIS MEMO TO INDICATE YOU HAVE READ AND ACCEPT THE PACKAGE. A COPY WILL BE FORWARDED TO YOU FOR YOUR RECORD.
THANK YOU FOR YOUR PATIENCE IN THIS MATTER."
On 26 June 1991, following a decision by AIRC to increase by 2.5% the salaries provided by the Airlines Award, Australian Airlines increased Mr Allman's salary to $170,333.24. Apparently, this was calculated by applying the 2.5% increase to the A300 line captain component of his salary.
Counsel for the respondents argue that the variation to the award made by Deputy President Hancock took Mr Allman outside its coverage. They put two arguments. First, they say that Deputy President Hancock's reasons make clear that he intended to exclude check captains from the scope of the award, and Mr Allman was a check captain. Second, and against the possibility that it should be held that Deputy President Hancock was concerned only to deal with wages, not conditions, they contend he was no longer a person "employed under award conditions". They argue that a person is not "employed under award conditions" unless the award regulates both the wages and conditions of the employment; it is not enough that it governs one of them.
There is no doubt that one purpose of the 1990 amendments was to remove from the award the special allowances payable to check captains and administrative captains and allow the wages of those employees to be regulated by agreement. In order to achieve this, the old paras. (e) and (f) were to be omitted. As the defined terms "Administrative captain" and "Check captain" were used only in paras. (e) and (f), it was logical also to omit those definitions. Deputy President Hancock did this. However, there is nothing to indicate that either Deputy President Hancock or the parties to the application intended that the conditions included in the award should no longer apply to administrative captains and check captains.
The fact that the award was amended in such a way as to facilitate agreements for over-award payments to captains who undertook particular responsibilities does not mean that those captains were taken out of the general protection of the award. They remained "pilots". They remained "captains". There is no reason to doubt that the parties, and Deputy President Hancock, intended that the provisions of the award, other than the omitted provisions for special allowances, would continue to apply to them. The award continued to bind Australian Airlines "for the benefit of all pilots employed in the classifications covered by the award". One of those classifications was "Captain". A check captain is simply a particular type of captain, as the old definition of that term made plain. When one considers the terms of the award, it is apparent that, with the exception of cl.10, they are as relevant to check captains as to any other category of pilots. For example, cl.5 imposes important obligations on pilots. As check captains are pilots, and fly scheduled services, the employer needs the benefit of these provisions as against check captains as much as against anyone else. Similarly, provisions like cl.6 (duties of a pilot), cl.7 (hours of services), cl.8 (termination), cl.9 (stand-down), cl.11 (pay deductions), cl.12 (daily travelling allowance), cl.13 (accommodation and transport), cl.16 (accidents and incidents) and cl.17 (sick leave) are all relevant to check captains. Indeed, it seems to me that Mr Allman, as a captain, would have been entitled to insist on the award pay rate of $124,138, if no salary agreement had been reached; although the parties obviously expected that a higher rate would be agreed.
As I see the position, after August 1990 Mr Allman's wages were governed by the agreement made between Australian Airlines and himself, but his conditions of employment continued to be regulated by the award. Is this enough? Contrary to the submission by counsel for the respondents, I think it is. In framing the test set out in s.170CD(3), Parliament employed a double negative: "an employee is taken not to be employed under award conditions if wages and conditions of employment of the employee are not regulated" by one or more awards. As counsel for the respondents point out, the words "wages and conditions" are conjunctive, not disjunctive. Wages and conditions means both wages and conditions; not either wages or conditions. But because Parliament used the negative "not regulated", the effect of this is that the stipulated test is satisfied only if both wages and conditions are not regulated by an award or awards. If an employee's conditions are regulated by an award, this is enough to prevent satisfaction of the negative test.
This result is understandable in policy terms. In his Second Reading speech to the Industrial Relations Amendment Bill (No.2) 1994, the Bill which introduced s.170CD into the Act, the Minister for Industrial Relations explained that the purpose of Division 3 of Part VIA of the Act was "to guarantee adequate forms of protection for people who do not otherwise have them". A person who has been able to negotiate a contract of employment under which he or she is paid $60,000 per annum, or more, and which also regulates the conditions of his or her employment, is likely to have had at least the opportunity for alternative protection. He or she is likely to have had sufficient bargaining strength to insist on the insertion of a fair termination provision. But if there is no contract dealing with conditions of employment, because this is to be left to an award, there may not have been an opportunity to deal with termination. If the respondents' reading of s.170CD(3) is correct, any agreement between the employer and employee for payment of a benefit not prescribed by the relevant award, even a small over-award wage payment or a special allowance, would have the effect of depriving the employee of the benefit of the statutory unlawful termination provisions. It seems unlikely that Parliament intended to go that far. Certainly, there is nothing in the Minister's speech to suggest this was his intention.
In my opinion, it should be held that, as Mr Allman's conditions of employment remained regulated by the Airlines Award, notwithstanding the August 1990 amendments, the facts of the case do not satisfy the test imposed by s.170CD(3); he was not a person "not employed under award conditions". Consequently, the exclusion provided by s.170CD does not apply to the termination of his employment. His case must be considered on its merits.
"Inherent requirements of the particular position"
Counsel for each party put submissions as to the approach the Court should adopt in applying the phrase, in s.170DF(2), "the inherent requirements of the particular position". The phrase seems to be an adaptation of cl.1(2) of the International Labour Organisation's Discrimination (Employment and Occupation) Recommendation 1958, which was made Schedule 9 of the Industrial Relations Act. That sub-clause speaks of a "particular job", rather than "particular position", but raises the same problem of the degree of particularity that is involved in the words "inherent requirements". Referring to what was said by McHugh J in Australian Iron & Steel Proprietary Limited v Banovic (1989) 168 CLR 165 at 196-197 and by Mason CJ and Gaudron J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 359-360, counsel for Mr Christie say the provision ought to be interpreted narrowly. They suggest that an inherent requirement, for the purposes of s.170DF(2) is "something so fundamental to the carrying out of the work or duties of the job that it could not be carried out without the possession of that qualification". The relevant position, they say, is not to be determined by reference to a particular rank or, in the present case, a particular aircraft type. The relevant position, here, is simply "pilot". Counsel go on:
"The inherent requirements relevant to these proceedings are:
a.possession of a current pilot's licence in terms of the Civil Aviation Regulations;
b.medical fitness (as exemplified by possession of a Class 1 medical certificate under the Regulations).
Parenthetically it can be accepted that in some employments possession of certain physical attributes may be considered an essential requirement, eg sight and the effective use of one's hands in the case of a watchmaker. However, these matters are not separate requirements in the present case because to the extent relevant they are included in the medical certification process."
Being aged less than 60, they say, is not an inherent requirement of being a pilot; the respondents' requirement that its pilots be less than 60 years of age is company policy, not an inherent requirement of the position.
Counsel for Mr Allman takes a similar approach. He puts the following matters:
(i)the whole of Division 3 of Part VI of the Act is beneficial legislation directed towards the granting of remedies to employees in respect of termination of their employment;
(ii)the legislation seeks to give effect to Australia's obligations under relevant international Conventions;
(iii)in particular, s.170DF(1)(f) gives effect to the Convention concerning Discrimination in respect of Employment and Occupation and the Discrimination (Employment and Occupation) Recommendation, instruments that have as their dominant purpose the elimination of discrimination in employment;
(iv)as s.170DF(2) provides a defence to an action that is prima facie discriminatory, it should be interpreted narrowly. This approach is supported by the choice of the term "inherent requirements", in contrast to the wider term "operational requirements" used in s.170DE(1) of the Act;
(v)accordingly, the words "inherent requirements" should be limited to requirements that are "fundamental, intrinsic or essential characteristics of the position". It is not sufficient that the requirement on which a termination is based be an operational or policy requirement of the employer. Nor is it enough that the requirement be one imposed by the employer reasonably and in good faith. Whether or not a particular requirement is inherent in a position is a matter to be objectively determined having regard to the range of duties required of the occupant of the particular position. The position under s.170DF(2) contrasts with that applying under s.49I(1) of the Anti-Discrimination Act 1977 (NSW) where it is a defence to discrimination on the ground of physical impairment that the person concerned "would be unable to carry out that work". In Jamal v Secretary Department of Health (1988) 14 NSWLR 252 the New South Wales Court of Appeal held that this formula does not confine attention to the essential duties of the position but the whole of the work actively required to be performed.
Counsel for the respondents say that s.170DF(2) should not be interpreted narrowly. They say it ought to be interpreted objectively. They compare the approach taken by the High Court of Australia in Re Grimshaw; ex parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588 at 592, a case referred to by the applicants and dealing with a proviso to a union eligibility rule. They accept that the purpose of s.170DF(1)(f) is to eliminate discrimination in employment but say that subs.(2) qualifies that purpose to the extent of permitting discrimination in certain circumstances. There is nothing in the legislation to suggest the Court should "lean" in one direction or the other in giving effect to that qualification. They cite Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163 at 167-168, a case relating to an analogous issue arising under the Freedom of Information Act 1982. Counsel submit that the applicants' arguments ignore the word "particular" and criticise the proposition that the only inherent requirements of the positions occupied by these applicants are a current pilot's licence and a medical certificate.
I do not think there is a substantial conflict between the various submissions concerning interpretation of the phrase "inherent requirements of the particular position". It is plain that s.170DF(1)(f) is designed to prevent termination of employment on any one of a number of grounds that are generally regarded as unjustifiably discriminatory. But subs.(2) operates on the view that there will be occasions, related to the nature of the particular job, where discrimination is defensible. To read the defence too narrowly would be to deny this view.
I agree with counsel for Mr Christie that the question whether a particular requirement is an inherent requirement of a particular position is a matter to be determined objectively. It does not depend upon the attitude or operational methods of the particular employer. I also agree that the word "inherent" refers to a requirement that is fundamental, intrinsic or essential to the position, not something that is truly unnecessary, although insisted on by a particular employer. To illustrate the point by reference to the facts of these cases, it is common ground that possession of an appropriate current licence and medical fitness, in accordance with the standard prescribed for pilots, were inherent requirements of the positions occupied by Mr Christie and Mr Allman immediately before their retirements. If they had not fulfilled those requirements, they would not have been allowed to fly. They would not have been able to carry out the work for which they were employed. The respondents say it was also an inherent requirement of the positions that the employee be less than 60 years old. The reason, they say, is that older pilots are more likely to be involved in an aircraft accident; to maintain acceptable safety standards, all pilots should retire by age 60. The applicants agree that it was an inherent requirement of their positions that they maintain a level of fitness compatible with acceptable safety standards. But they say that it is simplistic and inaccurate to relate acceptable fitness to age. The contest on this matter is the major factual issue in the case. I will call it the "medical issue". In the case of Mr Christie, alone, there is a second "inherent requirements" issue. Qantas says that, even if there is no medical justification for all airline pilots retiring at or before age 60, the policies of relevant foreign governments make this an inherent requirement of pilots flying its international routes. Mr Christie contests this claim. He says that such a matter is incapable of constituting an inherent requirement of the position; anyway, it would be possible for Qantas to find him a full schedule of work without conflicting with those policies. I will call this the "operational issue".
Although there is no substantive conflict between the submissions concerning interpretation of the phrase "inherent requirements of the particular position", there is a dispute about its application. As mentioned, counsel for Mr Christie say that the relevant position should simply be described as "pilot", so that a termination is defensible only on a ground applicable to all pilots. Counsel for the respondents say this is too broad a characterisation. The evidence shows that Qantas pilots enjoy a career progression through various stages of responsibility in various aircraft. Counsel submit that the relevant position must be that held at the time of termination; in the case of Mr Christie, captain of a B747-400 aircraft; in the case of Mr Allman, a check captain on an A300 aircraft. I think this is correct. It would be artificial to ignore the actual position reached by an employee and refer merely to his or her basic qualification and broad categorisation.
The rationale of a fixed age-limit
In order to put the medical issue into context, it is important to say that the respondents do not suggest that pilots suffer a sudden and dramatic loss of health or fitness on their 60th birthdays, so that a person who was certainly fit to fly one week was certainly unfit the next. Their case, in the words of their counsel, is that the requirements of both the subject positions "included a requirement that all risks to the safe operation of the aircraft be eliminated or minimised, and therefore that the pilot in charge of the aircraft be of an age that Qantas - and its Chief Pilot in particular - could be satisfied that no such risk arose from the fact of the pilot's age". They acknowledge that some pilots who have attained their 60th birthdays remain competent to fly, both physically and mentally. But they say there is no reliable way of identifying those people; consequently, it is necessary to fix an age-limit and apply it to everyone. They concede that any age-limit is arbitrary, in the sense that it forces the retirement of some pilots who remain fit enough to fly, but they argue that empirical studies demonstrate that an age-limit of 60 years strikes a fair balance between the interests of those pilots who wish to extend their careers as long as possible, on the one hand, and public safety, on the other.
The applicants do not question the paramount importance of public safety. Qantas has an enviable safety record. As I understand the position, no airline in the world can match its record, in terms of numbers of accidents against hours flown. The applicants have made a contribution to this record and are proud of it. If they believed that a relaxation of the 60 year age-limit might compromise the record, neither of them, I am sure, would support relaxation. The same statement may be made of their expert witnesses, two people with a long interest in aviation safety issues: Dr Adrian Zentner, a former Director of Medical Services of Australian Airlines, and Dr Robert Liddell, the current Director of Aviation Medicine in the Civil Aviation Authority of Australia ("CAA"). The issue is not whether there should be any compromise with safety standards, but whether insistence on retirement at age 60 is necessary to minimise accident risk.
In the United States, there is a long-standing rule that airline pilots should retire at age 60. This rule is applied by the relevant regulatory authority, the Federal Aviation Administration ("FAA"). The rule has been questioned from time to time. Several studies have been undertaken, at the behest of the FAA or a Congressional Committee. The most recent study revealed by the evidence was carried out on behalf of the FAA by a team of researchers from Lehigh University, Pennsylvania and Hilton Systems Inc. of New Jersey. The team's final report, generally called "the Hilton report", was presented in 1993 and published in October 1994. In the words of an FAA abstract of its contents:
"The results present a converging body of evidence which fail to support a hypothesis that accident rates increased at or about the age of 60 years."
Nonetheless, the FAA has not changed its rule that pilots may not fly scheduled airline services after they turn 60. Nor should it do so, according to Dr Charles Billings, an expert witness called on behalf of the respondents in this case. Dr Billings has had a long association with this topic. He is a physician, resident and practising in Columbus, Ohio. He is a qualified pilot and flew for many years until, consistently with his espoused position, his 60th birthday. Dr Billings served in the United States Air Force between 1955 and 1957. At that time he undertook a course in aviation medicine and this has since been his primary field of professional interest. From 1960 to 1973 Dr Billings was a Professor and Director of the physician training program in aviation medicine at Ohio State University. Thereafter he worked as a medical research officer at the National Aeronautics and Space Administrations' Ames Research Center, retiring as Chief Scientist in 1992. Over the years, Dr Billings has written, or contributed to, numerous papers on aeromedical topics. He has been an active member of several professional societies, including President of the Aerospace Medical Association in 1979-1980. As will appear, Dr Billings participated in one of the studies usually cited in support of the Age 60 rule, as it is called in the United States. Recently, he offered comments on the Hilton report, being critical of its methodology and conclusions. There is no question of his deep interest in this topic and the sincerity of the views he enunciated in the witness box.
Dr Billings expressed the opinion that Qantas' policy to retire its pilots at the age of 60 "is prudent and necessary" and justified by medical and operational data. He identified those data. To a large extent, his evidence consisted of an analysis of them. Possibly because of his training as a scientist, and despite his personal involvement in aviation medicine and experience as a pilot, Dr Billings did not attempt to support his opinion except by reference to the cited data.
The published data
In the written report that constituted his evidence-in-chief, Dr Billings referred to four published papers. I will deal with them in chronological order and then refer briefly to two other reports mentioned during the course of Dr Billings' oral evidence.
The earliest of the four papers was published in 1971. It was written by three authors, including Dr Billings himself. The paper is entitled "Epidemiological Study of In-flight Airline Pilot Incapacitation". It was referred to in
evidence as "Kulak", after Dr Linton Kulak, its leading author. The authors examined 891 cases of fatal and non-fatal airline pilot career terminations over an 11-year study period. The study divided the terminated pilots into age categories, less than 30, 30-34, 35-39, 40-44, 45-49, 50-54 and 55-58. Accidents, almost all fatal but not necessarily airline accidents, accounted for 229 terminations; diseases the other 662. The three largest disease categories were heart and cardio-vascular (2.91 per 1,000 pilots per year), psychological (0.93 per 1,000 pilots per year) and eye (0.41 per 1,000 pilots per year). The incidence of disease in each category increased with age but, dealing with the most significant category, the authors noted that "the age-specific incidence of coronary heart disease is statistically significantly lower in the airline pilot population than in the US male population". They commented that this "is not an unexpected finding, considering the medically select nature of the pilot population". The paper included a table comparing pilot mortality rates with those of the 1961 United States white male population. Up to age 34 the pilot mortality rate was higher, according to the authors because of the incidence of aircraft accidents. Above age 35 the pilot mortality rate was lower, the gap between that rate and the overall white male mortality rate widening with increasing age.
The paper concluded with comments on what the authors called "potentially serious in-flight pilot failure". The authors said that only "serious disease manifestations, such as sudden coronary death or convulsive seizures" occurring "with little or no prior warning to either the affected crew member or remaining crew" fall into this category. They compiled a table setting out the "estimated probability of serious in-flight incapacitation" for the various age cohorts included in the study. The stated probability rose from 1 per 58,000 pilots aged 30-34 to 1 per 3,500 pilots aged 55-59 years. The estimate seems to have been drawn directly from the incidence of heart and cardio-vascular disease at various ages. To put these estimates into perspective, the authors stated that such an event "occurring during the cruise phase of flight has not previously resulted in a serious operational problem in a dual pilot aircraft". They concluded:
"However, if the command pilot was so incapacitated during the final stages of approach and landing, or during the early stages of takeoff and climb, flight safety could be severely compromised. During these flight phases, the absence of, or inappropriate control input for as little as a few seconds could result in ground contact, especially under adverse weather conditions.
Immediate recognition of the problem by the remaining pilot and competent, rapid control takeover are essential under these conditions. Airline transport crew training and cockpit design must therefore be compatible with this type of response to in-flight pilot failure."
In his evidence in these cases, Dr Billings brought up to date the information about the relationship between medical incapacitation and accidents. He was aware of only two fatal airline accidents involving medical incapacitation, a Lockheed Electra at Ardmore, Oklahoma and a British European Airways Trident on take off at London's Heathrow airport. In each case there were other factors contributing to the accident. Dr Billings attributed the infrequency of accidents from medical incapacity to "the presence of multiple crew members".
The second paper mentioned by Dr Billings was "An Epidemiological Investigation of Occupation, Age and Exposure in General Aviation Accidents" by Dr Charles Booze of the FAA Civil Aeronautical Institute in Oklahoma City, Oklahoma. It was published in 1977. The paper reported conclusions derived from a study of information relating to 4,491 general aviation (not airline) accidents that occurred in 1974. Dr Booze analysed the information about the affected pilots by reference to several factors: occupation (most of the pilots were not professional pilots), age and flight experience. Unsurprisingly, he found that professional pilots had a much better record than all other occupational categories. Their accident rate per 100,000 hours of recent flight time - that is, flight time within the previous six months - was one-sixth or one-seventh that of several other major occupational groups and only half that of the whole study population. When the accident rate per 100,000 hours cumulative flight time was considered, the comparison favoured professional pilots even more. Some occupational groups had accident rates 15 to 16 times that of professional pilots. The accident rate for the overall study population was 2 1/2 times that of professional pilots.
The paper contains a paper specifying the accident rate per 1,000 pilots by reference to cumulative experience and age. As might be expected, the rate is relatively low for pilots with low cumulative experience because of their low exposure to risk. For pilots with between 1,001 and 2,000 cumulative hours, the accident rate per 1,000 pilots was as follows: age 20-29, 26.8; age 30-39, 16.8; age 40-49, 10.7; age 50-59, 7.7; age 60-69, 4.8; 70 and above 12.4. For pilots having more than 2,001 flying hours the rates were: 24.9; 14.0; 12.1; 9.7; 12.8 and 8.3. When recent experience was combined with age, the pattern was somewhat similar. The figures for those with more than 201 hours of flying in the preceding six months were: age 20-29, 23.3; age 30-39, 14.0; age 40-49, 11.4; age 50-59, 8.7; age 60-69, 20.7.
Next, Dr Billings referred to a document entitled "Report of the National Institute on Aging Panel on the Experienced Pilots Study" published in August 1981 by the National Institutes of Health of Bethesda, Maryland ("the NIA report"). The panel, of which Dr Billings was himself a member, was constituted in response to legislation requiring a study to determine the justification of an age limitation for pilots. The major task of the panel was to review a report on the subject by the Institute of Medicine of the National Academy of Sciences. The panel held three meetings and heard submissions from representatives of six organisations. It stated its main conclusion in this way:
"The Panel concluded that there is no convincing medical evidence to support age 60, or any other specific age, for mandatory pilot retirement. However, it found abundant and persuasive evidence that, among pilots as well as others, disease, disability and death rates rise increasingly steeply during each half-decade beyond the age of 50 ... The Panel was impressed by evidence indicating that air carriers, operating under the limiting conditions of the age 60 rule, have achieved a very high level of safety during the past two decades. This achievement appears to be the result of a complex interplay among several factors, including striking advances in technology, a complex system of performance evaluation by air carriers and the Federal Aviation Administration, a variably effective system of government and air carrier medical surveillance, and a complex system of regulations designed to minimize risks to the travelling public. The net result of this complicated interplay has been a generally effective aviation system which has promoted public safety. One inevitable, but unfortunate, by-product of the present system is the unavailability of adequate data concerning the medical status and piloting performance of air carrier pilots past the age of 60 since, under the age 60 rule, persons have not been permitted to continue as air carrier pilots past that age."
The Panel referred to accident data, noting that it "found no convincing evidence that older pilots have better safety records, in proportion to exposure, than do younger pilots. On the contrary, several studies dealing with accident risk related to age have demonstrated increasing risk with increasing age". The Panel then summarised the data of Booze, noting that "(n)o comparable data for air carrier pilots age 60 and older were available". The Panel concluded that the age 60 rule should be retained and, indeed, extended to non-scheduled commercial services. It gave eight reasons:
"Although the Panel was compelled by the available data to recommend that the age 60 rule be retained and extended to pilots in part 135 operations, it also gave considerable attention to methods of developing data that could form the basis for a relaxation of the rule. One possible approach is described in the final section of this report. The following points were considered in developing the approach:
(1)Although the age 60 rule appears indefensible on medical grounds, the national aviation system has operated effectively and safely within its bounds for 20 years.
(2)Although age 60 represents no medical 'breakpoint' in the progressive deterioration that comes with age, the likelihood of cardio-vascular accidents increases markedly once the sixth decade is entered.
(3)Despite the attractiveness of current risk factor concepts for the prediction of cardiovascular disease, these factors deal with populations rather than individuals, and they suffer from a lack of predictive accuracy and from a progressive decrease in discriminatory power as age 60 is approached.
(4)Graded tests of cardiovascular performance to enable better prediction of individuals at risk would add considerably to the cost of medical surveillance.
(5)Psychological tests designed to identify subtle changes in cognitive functioning have not been systematically administered to pilots. Their relevance to such essential skills as decision-making, resource management and vigilance under stress is therefore unknown.
(6)Age-related data from longitudinal studies are currently insufficient to permit extrapolation of available information about the medical and physical fitness and performance of pilots beyond age 60.
(7)Graded tests of health and performance could probably be developed and applied within the present medical appraisal system if standard longitudinal risk factor profiles were determined for all pilots; additional screening and diagnostic procedures would be required to define health status and as a guide to prognosis for those individuals with risk above some defined level.
(8)The periodic nature of current medical and performance appraisals provides an opportunity for deterioration in health and performance in the intervals between examinations, although this can be minimized to some extent for individuals with identified risks and older persons by increasing the frequency of examinations for these groups."
The reference to "part 135 operations" requires explanation. Part 121 of the United States Federal Aviation Regulations deals with scheduled airline services and aircraft carrying more than 30 passengers or weighing more than a specific weight. Those operations are many referred to as "part 121 operations". Part 135 of the regulations relates to non-scheduled commercial services. These are often called "part 135 operations".
Dr Billings' final reference was to a report prepared by the Office of Technology Assessment of the United States Congress in September 1990 called "Medical Risk Assessment and the Age 60 Rule for Airline Pilots". He referred to this document as "the OTA report". It appears from the report that Dr Billings played an important role in its work, supplying several graphs containing data.
The key data considered by OTA came from two sources: the 1981 NIA report and a report called "The Influence of Total Flight Time, Recent Flight Time and Age on Pilot Accident Rates" prepared by Richard Golaszewski and published in 1983. The report stated that "OTA interviewed FAA officials and medical experts and reviewed aeromedical literature, pilot health and safety data, and medical technologies". It stated five "key findings":
".Pilots between 60 and 69 years old who are permitted to fly under FAA's strictest medical requirements (Class I and II medical certificates) have an accident rate twice as high as similar pilots who are in their 50s (see figure 1).
.Virtually all pilot-caused accidents stem from judgment, communication, or decision-making deficiencies, rather than impairment or incapacitation caused by medical disease. Sudden physical impairment has not been a factor in airline accidents. For this reason, more exacting medical examinations are unlikely to have a substantial effect on accident rates.
.We do not presently have the ability to predict with certainty development of medical conditions that could affect pilot performance. In 1981, the Institute of Medicine (IOM) specified a number of screening and detecting methods that could improve evaluation of pilot health conditions, although none of these is now required for FAA medical certification. OTA has identified recently developed procedures and technologies for medical risk assessment ... that could enhance the protocol IOM suggested for examining older pilots. However, even these procedures and technologies are not sufficient to ensure that current levels of pilot performance would be maintained if the age rule were abolished.
.Using all the enhanced medical screening procedures and technologies listed in table 2 for pilots between age 60 to 65 would more than triple the average annual costs for Class 1 medical exams, increasing them from about $300 to over $1,000. On average, approximately $1,000 more in follow-up exams would be required for pilots who have abnormal screening results.
.Improved neuropsychological measures of cognitive performance would need to be developed and validated before FAA could reliably ground only the 'high risk' pilots who are over 60. These pilots cannot be identified at this time."
Figure 1, referred to in the first quoted finding, was a graph prepared by Dr Billings using data collected by Mr Golaszewski in 1983 with additional information supplied by the National Transportation Safety Board ("NTSB") in respect of pilots holding a Class I or Class II medical certificate. In his evidence in these cases, Dr Billings explained how figure 1 was derived:
"I will simply begin by saying that in 1983 under a contract from the Federal Aviation Administration Richard Golaszewski prepared or performed, I am sorry, a substantial study of flight time and accident experience in the United States. In that study Mr Golaszewski made use of the entire data base resources of the Federal Aviation Administration for the five years 1976 through 1980. He obtained flight time data from pilot medical certificates on which pilots are requested to provide their total flying time and their flying time during the previous six months. He combined those data, which were available in computer readable form, with data from the National Transportation Safety Board accident experience over that same period of time. And from that he derived accident rates for two classes of pilots. He obtained accident rates for the entire community of medical certified and therefore active pilots in the United States. That is classes, medical classes, 1 2 and 3. And he also made a similar study for class 3 only, that is to say recreational or private pilots only. I have all of those data available to him in computer form. He was able to elicit accident rates for pilots of either all classes or just private pilots as a function of total flying time, as a function of recent flying time, as a function of age, because those data were likewise available in the medical certificate applications, date of birth, actually. I believe there were a couple of other variables that he was requested under contract to study but those are the ones that are of interest here and the ones that I am familiar with. Mr Golaszewski wrote up his study in the form designed to answer the specific questions that the FAA had asked in its statement of work to him. But the body of data in the appendices to his report provided others with the opportunity to make use of them as they would. This was the first, to my knowledge, the first comprehensive study, not just of a sample of pilots in the United States but of the population of pilots and over a period of five years. It was a huge data base. I became interested in looking at these data after they came to my attention in perhaps 1987 or so. The study was not very well publicised. And in 1990 I took the Golaszewski data which are incorporated on this tabular page. By that time I had become aware that Mr Golaszewski had used accidents that had occurred in general aviation but not accidents that had occurred in schedule air transportation - that is air transportation covered under Part 121 of our Federal Aviation Regulations - nor of data provided by commuter air carriers flying under Part 135 of the Federal Aviation Regulations. In order to find out whether that omission had made any difference I obtained from the National Transportation Safety Board a listing of all of Part 135 and Part 121 accidents that had occurred from 1976 through 1980 and combined them with Mr Golaszewski's data yield the table that you have before you. These purport to represent accidents, ... hours in thousands and resulting accident rates expressed in terms of accidents per 100,000 flying hours."
Figure 1 is a graph showing rates of accidents per 100,000 pilot flight hours for Class I and II pilots with more than 1,000 hours total flying experience and more than 50 hours recent (last six months) flight time. A Class I pilot is a pilot holding the most stringent medical certificate, necessary to fly Part 121 operations but also held by some pilots flying other operations. A Class II pilot is one who has passed the second most stringent medical examination. A pilot flying Part 135 operations must hold either a Class I or Class II certificate. A Class III certificate suffices for pilots flying non-commercial operations, although many such pilots hold a Class I or Class II certificate. If so, and these were involved in an accident, this accident would be included in the graph. The graph peaks at a figure of slightly above five accidents per 100,000 flying hours for age group 20-29, drops to a little less than four at 30-39, to about 2.6 at 40-49, 2.4 at 50-59 and rises to about 4.7 at 60-69.
The report contained two further figures prepared by Dr Billings, also drawing on the Golaszewski and NTSB data and concerning Class I and II pilots. One related the rate of accidents to age and various levels of total flying time, the other to age and various levels of recency. The greater the total flying time or recent flying time, the lower the accident rate per 100,000 flying hours. Plainly, experience is a very important factor in minimising accidents. There was some variation in the detail of the graph lines but on all of them the accident rate for age 60-69 was higher than for 50-59.
During examination-in-chief Dr Billings was asked about the extent to which any of these graphs could be used as a proxy for airline transport pilots. He responded:
"Only to a limited degree, there have been studies done since that time that have broken out this heterogeneous group of class 1 and 2 pilots more effectively but clearly most air carrier pilots after a certain period of time in the profession have more than 5000 total hours, most at least until their last decade of service nearly all fly more than 400 hours per year and incidentally subsequent data by Golaszewski and some others have indicated that above about 400 hours per year one does not see a continuing increment in safety as a function of acquiring more flying hours. I may not have put that very well but what I am trying to say is that 400 hours a year seems to be adequate to keep a civil or transport pilot fairly proficient. Recency of flying is much more important than total flying experience in the maintenance of proficiency if these data are to be believed."
The reliance placed by OTA, and Dr Billings, on data based on general aviation operations worried me. It seemed to me that there were several reasons why accident rates on scheduled airline services could be expected to be lower than those applying in Part 135 or general aviation operations: the prevalence of multi-pilot operations on scheduled services, the high total experience and recent flight time of scheduled airline pilots, and likely higher standards of training, discipline and aircraft maintenance. I asked Dr Billings whether he had any figures enabling a comparison of the accident rates in different categories of operation. He obtained them overnight. They dramatically confirmed my suspicion. According to data collected by the International Civil Aviation Organisation ("ICAO"), in the year 1991 the rate of fatal accidents in scheduled air transport operations was 0.10 accidents per 100,000 flying hours. The corresponding rate for general aviation accidents was 16 times higher, 1.6 per 100,000 flying hours. These figures covered carriers all over the world with the exception of the former Soviet Union and China. Speaking of the United States, Dr Billings quoted data from the Hilton study that, during the period 1976 to 1988 (except 1986, for which year data were not available), the United States scheduled airline accident rate, fatal and non-fatal, was 0.59 per 100,000 flying hours; whereas the general aviation accident rate during the same period was almost 20 times higher at 10.36 per 100,000 flying hours.
Although they were not mentioned in his written report, Dr Billings referred in oral evidence to two 1985 papers. The first one, "Comparative Study of Physical and Mental Incapacities Among Portuguese Airline Pilots Under and Over Age 60", was written by Dr A Castello-Branko and two others. The study evaluated the number of flight incapacities and deaths that occurred among Portuguese airline pilots between 1945 and 1983 and included information about the post-retirement health of pilots over 60. The study covered 436 people, 408 pilots under 60 and 28 former pilots over 60. There were a total of 21 deaths and incapacities, all of them occurring under age 60. Twenty deaths or incapacities occurred violently or unexpectedly. There were six violent deaths, five tumours (four mortal), four cardiovascular disease (three mortal), two respiratory (one mortal) and three mental illnesses. Of the over-60 year olds (20 in the 60-64 age group, eight in the 65-69 age group), 10 had incompatibilities for flight service: six cardiovascular syndromes, three depressive syndromes and there was one ophthalmological case. The authors reported that these 10 cases "resulted from slow, chronic degenerative cases, with the association of both organic and psychic involution". They said "all cases resulted from degenerative situations which had already been formed before the age of 60". The study concluded:
"The rate of incapacities due to physiopsychological reasons increases suddenly after the age of 60 as a consequence of a chronic degenerative slow evoluting pathology. This is closely linked to the age decay, which is easily controllable through medical and psychological observations.
The incapacities found in the age groups under age 60 were generally the consequence of violent deaths or serious illnesses (tumours and CVDs), the majority of which were lethal and occurred between the 6-monthly medical check-ups.
It may also be concluded that the retirement from the professional activity after the age of 60 leads to reactive depressions and to the reduction in preventive health care. Nevertheless, out of 28 pilots over the age of 60, 18 (64%) would be perfectly capable of continuing their activity as airline pilots both from the physical and from the psychomotor points of view.
Therefore, the authors consider that the 60 year age limit may be useful in several countries for social and administrative reasons, but conclude that pilots with no medical or psychological disturbances who would wish to continue flying, could be given the respective medical certificate, at least under a waiver condition."
Dr Billings' comment on this study, and others to like effect, emphasised the other side of the picture: "They all show an increasing and accelerating risk of disability and death from natural causes as a function of increasing age".
The other 1985 paper was written by Dr Geoffrey Holt and two others and titled "Airline Pilot Disability: The Continued Experience of a Major US Airline". The paper focused on the utility of airline medical departments and emphasised their role in pre-employment medical screening and the assessment of individual disability claims. The authors suggested these activities might be more important than regular pilot review in determining long term disability rates. This paper is only peripheral to the present issue, although the authors tabulate the reasons for separation from the company of the 225 pilots who left during the eight year study period. Of the 225 pilots, 42 retired for medical reasons; half of them because of cardiovascular problems. The studied pilots were, of course, all less than 60 years old when they retired.
It is not necessary to mention the other pre-Hilton medical papers tendered in evidence; no reliance was placed on them by any witness. But it is necessary to discuss the Hilton report; all the medical witnesses thought this important.
The proclaimed purpose of the study was "to conduct statistical analysis on historical data to investigate the relationship between pilot age and accident rates". It was primarily directed at "pilots who fly for FAR Part 121 air carriers who are subject to the Age 60 Rule", although the opportunity was taken to analyse data relevant to other pilots flying beyond age 60.
The report is lengthy. I do not intend to summarise its conclusions, many of which have little relevance to this case. I will note the points mentioned by one or more of the witnesses. First, the authors of the report heavily criticised Golaszewski's conclusions. They said it was inappropriate to combine pilot classes as this produced misleading accident rates:
"... pilots holding Class I medical certificates had relatively fewer accidents and higher flight hours. The accident rate profile of a heterogeneous group was influenced by the proportion of Class I pilots in that group. Further, because Class I pilots were involved in so few accidents, Golaszewski did not compute the accident rates within various categories of flying by Class I pilots. The fact that accidents involving Class I pilots were so rare strongly suggested that the distribution of such accidents across the various categories was different than for the groups of pilots Golaszewski did study, Class III pilots alone and all pilots. Further, although Class I pilots were involved in few accidents they accumulated a substantial number of flight hours. Thus they contributed substantially to the denominators (hours flown) of the accident rates and contributed relatively little to the numerators (number of accidents). This meant that differences in accident rates could have been artifacts; they could have reflected differences in flight hours accumulated by Class I pilots rather than differences in the likelihood of accidents."
The report authors also noted that Mr Golaszewski included accidents by pilots whose medical certificates had lapsed and whose flight hours were accordingly not recorded in the medical database on which he relied. These pilots contributed to the numerator (accidents) but not the denominator (hours flown). They also said:
"The Age 60 Rule represents a sharp cutoff, presumably reflecting some relatively dramatic change in the pilots as they approach 60 years. The 10-year age categories used by Golaszewski were too gross to get a clear picture of such a change. A more fine grained analysis, say by year, would have been more appropriate."
The authors set out the principles guiding their own methodology:
"First, it was inappropriate to aggregate data across medical classes, because this created heterogeneous groups with misleading accident rates. For example, Class I pilots had relatively few accidents and relatively high flight hours. If the medical class of the pilots was ignored in forming groups, the accident rates of the groups would have reflected differences in the proportion of Class I pilots in the various groups.
Second, the data for Class I pilots shed some light on the accident rates of Part 121 pilots, subject to a number of constraints. Only pilots younger than 60 should have been included, because no Part 121 pilots flew after 60. Further, the data for Class I pilots with high recent flight time were more characteristic of Part 121 pilots. Third, the data for Class III pilots provided convergent evidence on the effects of age on accident rate. While Class III pilots were less like Part 121 pilots, the data for that class were less affected by changes in the membership of the groups with age, especially the dramatic change seen for Class I pilots after age 60. Further, the accident rates for Class III pilots provided evidence for the general effects of aging. Finally, the Class II pilots formed a heterogeneous group and were the least useful group for shedding light on the age 60 rule."
In relation to Class I pilots, the study was undertaken in three stages. First, regard was had to "those Class I pilots most like pilots of scheduled air carriers by considering only those pilots who had the necessary minimum total flight hours and who had the number of recent flight hours characteristic of pilots of scheduled air carriers". Next, the team considered the record of Part 121 pilots with high recent flight hours. Finally, they looked at Class III pilots with high recent flight hours "to provide a different view of the effect of age on accident rate".
The results of the study were published as answers to a series of questions. The first was "Did Accident Rates of Class I Pilots Change with Age?" The answer was given by reference to all Class I pilots without regard to total and recent flight experience, not confined to Part 121 pilots but giving rates only up to age 55-59. The conclusion was that accident rates declined sharply until age 45-49, rose slightly for age 50-54 and declined at 55-59 to the 45-49 rate. The same question was then applied to Class I pilots with more than 2,000 hours total flying time. The answer showed a similar pattern except that the age 55-59 rate was slightly higher than for 45-49 and the 50-54 rate was lower than both. When the criterion of high recent flight time was added, the accident rates were much lower than before. For example, the accident rate per 100,000 pilots dropped from 15, for pilots aged 45-49 with less than 100 recent (previous 12 months) flying hours, to six accidents per 100,000 pilots in the same age group who had 100 to 200 recent hours, to four accidents for 45-49 old pilots with 600-700 recent hours and about two accidents for those with more than 700 recent hours. There were similar reductions at other ages. The graph lines for the three highest recent hour categories were almost flat.
To the extent that Dr Billings dealt with individually-designed tests, I prefer the evidence of Dr Zentner and Dr Liddell. I have already noted Dr Billings' sincerity. I found him a likeable, and generally impressive, person. But he has long been a staunch advocate of the Age 60 rule; to the point where it must be very difficult for him to give open-minded consideration to an alternative approach. I am not persuaded that he has been able to do this. In contrast, Dr Zentner and Dr Liddell bring no intellectual baggage to the problem. The only baggage they bear is Dr Liddell's responsibility for aviation medical safety in Australia, a responsibility that would incline him towards caution rather than the reverse.
Acceptance of the approach advocated by Dr Zentner and Dr Liddell is facilitated by two other considerations. First, the main safety concern associated with physical degeneration on account of age is sudden pilot incapacitation. Yet there are only two recorded instances where pilot incapacitation has been even a contributing factor in a fatal airline accident. This is not because sudden incapacitation is rare. On the contrary, as Dr Billings made clear, it is comparatively common. It almost always arises out of a temporary indisposition such as gastro-enteritis; a malady that is indifferent to age. The reason why these incapacitations have not created a safety problem was spelt out in the OTA report, quoting the Institute of Medicine report: "sudden incapacitations, when they occur, are not likely to cause accidents because the co-pilot or flight engineer can take over the controls". The evidence shows that early recognition of, and reaction to, pilot incapacitation is a standard part of Qantas' pilot training.
Secondly, the clinical assessment of pilots is supplemented by regular simulator and on-line proficiency tests. Mr Allman deposed that, during his employment with Australian Airlines, he underwent four simulator tests each year, one every three months or so, and one on-line check by a check captain flying a leg of a normal commercial route, whose sole task it was to observe his performance. This is a standard situation, in respect of all Qantas operations. The company carries out these tests both for its own benefit and, by arrangement with the CAA, in partial satisfaction of CAA pilot licensing requirements. Witnesses for the respondents pointed out that simulator tests are designed to evaluate the performance of the whole flight crew, acting as a team. I accept this, but I note that Captain Heiniger conceded that the person conducting a simulator test is required to give each flight crew member an individual rating. A pilot cannot easily be shielded by his or her colleagues. Captain Heiniger said that, because of the number of persons involved, it would be highly likely that a particular pilot would each time undergo a simulator test with a different co-pilot.
Only one pilot is subjected to an on-line route check on any particular flight or leg, so this is an individual examination leading to an individual rating. An error or omission of the tested crew member would probably be noticed by the checker. If the error or omission was one of a serious nature, indicating a cognitive deficiency, or was repeated, this would lead to an investigation of the crew member's problem. There was some debate during the hearing whether or not these tests would reveal cognitive difficulties. But Captain Heiniger said that the certificate signed by the checking officer, in a route check, extends to cognitive skills, that "the whole range of skills required and abilities required by the pilot are under constant check by the check captain" and that the check captain must "check that person's cognitive as well as performance skills".
In addition to the safeguard provided by checks, there is an established procedure whereby crew members may report confidentially any observation they make concerning the performance of a colleague. In some occupations, perhaps, one employee might be reluctant to report the failings of another; but it is reasonable to assume little reluctance where lives are involved.
Counsel for the respondents submit that their clients acted reasonably in terminating the employment of the applicants at age 60, rather than at some later age. They advance several reasons for that submission, mainly related to historical standards and international practice. However, it seems to me that the submission misstates the critical question. The issue is not whether Qantas acted reasonably, but whether the terminations were based on an inherent requirement of the particular position. In other words, independently of general practice and the policy of the particular employer, but looking at the question in a practical, commonsense way, is it a necessary qualification for the particular position that an incumbent be less than 60 years old? So far as the medical issue is concerned, this question must be answered in the negative. The studies relied on by Dr Billings, and the respondents, for that conclusion are unpersuasive. And the evidence of Dr Zentner and Dr Liddell positively satisfies me that there is a better alternative to mandatory retirement at age 60, an alternative that need not compromise Qantas' high safety standards.
It follows from this conclusion that the defence under s.170DF(2) raised by Australian Airlines against Mr Allman's claim, which is based solely on the medical issue, fails. Mr Allman's employment should not have been terminated. He is entitled to be returned to the position he held before his termination on 7 August 1994. He is also entitled to an order under s.170EE(1)(b) of the Industrial Relations Act that Australian Airlines treat him, for all purposes, as having been continuously employed from the date of his termination until the date of his reinstatement and that it pay him the remuneration he lost because of the termination. Of course, whether or not Mr Allman should be rostered for flying duties must depend upon his current fitness and licence situation. Before rostering him for flying duties, Australian Airlines is entitled to require Mr Allman to undertake, and pass, appropriate medical, psychological and simulator tests and to inspect a current pilots licence. If Mr Allman is unable to comply with these requirements within a reasonable time, there will be a valid reason for his fresh termination, connected with the operational requirements of the employer's undertaking; so a fresh termination would be permissible; see s.170DE(1) of the Act.
The operational issue
The operational issue only arises in relation to Mr Christie's claim, and only because he was employed by Qantas as an international pilot. He flew B747-400 aircraft, the largest jumbo jets. Whatever the medical justification for the Age 60 rule, many countries apply the rule. They apply it to both their own pilots and pilots using their airports or, even, overflying their territories. If Mr Christie's employment had not been terminated, unless special arrangements had been negotiated, he would not have been able to fly aeroplanes travelling to, or over, those countries.
The countries that apply the Age 60 rule to visiting pilots include the United States, so a problem would have arisen for Mr Christie in relation to flights to Los Angeles, Qantas' only north American destination, and Hawaii. At the present time, Qantas does not operate B747-400 aircraft on the Japan route. According to Mr J E Becquet, Head of Aircrew Operations at Qantas, it may do so in the future. Apparently, Japan would not object to flights piloted by an over-60 year old, but flights to Japan pass through or near the United States Territory of Guam, within which United States' regulations apply. Moreover, Guam is a prime alternate for Japan flights, to be used in the event of an emergency on an Australia-Japan flight.
The position concerning Hong Kong has proved somewhat obscure. Both Mr Christie and Qantas have been in contact with the Hong Kong authorities. They received ambiguous, perhaps conflicting, responses. However, by letter dated 4 April 1995, the Chief of Flight Standards of the Hong Kong Civil Aviation Department notified Captain Heiniger that the Department had now declared its policy; namely, "to require compliance with current Hong Kong legislation which in turn complies with the Standards of ICAO Annex 1". He added: "Therefore any request by a foreign licensed pilot over 60 years of age to act as pilot-in-command of an aircraft for the purpose of public transport while in Hong Kong airspace will be denied". This response seems to leave open the possibility of an over-60 year old person acting as co-pilot of an aeroplane landing in Hong Kong; but plainly there would be a difficulty in using Mr Christie as Captain of a Hong Kong flight whilst the Hong Kong authorities adhere to this policy and the current ICAO Standard remains.
There appears to be no difficulty about an aeroplane piloted by an over-60 year old landing at most, if not all, Qantas' current European destinations, including London. There may be an over-flying and alternate problem in relation to some European countries. But the major difficulty is that all Qantas' European flights land en route at either Singapore or Bangkok. The governments of Singapore and Thailand both strictly apply the Age 60 rule. Whilst Qantas adheres to these routes, and there appears to be no proposal for change, and those governments adhere to their present policies, it would be impracticable to use Mr Christie on European flights.
The result of these restrictions is that the only international flights on which Qantas could use Mr Christie, if he were reinstated and as things stand, are flights to and from New Zealand, Denpasar in Bali (Indonesia) and Fiji. Under current aircrew planning methods, there may be a problem about Fiji because crews are often asked to go on from Fiji to the United States. However, it might be possible to make special arrangements. There is no problem about Denpasar or New Zealand, as such, and there would be sufficient flights to these destinations to occupy Mr Christie's standard work hours. But the allocation of so many of these flights to Mr Christie would cause a problem in respect of other aircrew.
The situation was explained by Mr Becquet. He said that the first step in planning Qantas' operations is to determine routes and flights and allocate aircraft to those flights; efficient utilisation of aircraft is critical because of the cost of purchasing, leasing and operating them. Once flight schedules are determined, crews are allocated. This is done by a bidding system. An electronic copy of the flight schedule is prepared and put through a computer optimiser which, "taking into account all statutory and award requirements affecting the operation of aircrew", produces slip patterns. Each slip pattern represents one trip. Mr Becquet explained that:
"A trip may vary in length from four hours (for example, Sydney/Melbourne/Sydney) to a 12 day trip (for example, from Sydney/Singapore/Bangkok; Bangkok/Frankfurt; Frankfurt/Paris; Paris/Frankfurt; Frankfurt/Bangkok; Bangkok/Singapore/Sydney);"
The slip patterns are then combined to form a bid package which covers a period of eight weeks. The bid package sets out for each aircraft type (for example, B747-400) and for each rank (for example, Captain, First Officer and Second Officer) all available trips for the bid period. Slip patterns vary from one bid period to another depending upon flight scheduling. Mr Becquet said they are sometimes altered at short notice. After slip patterns are published crew submit their bids for specific slip patterns. Mr Becquet said:
"There are limits on slip patterns that may be selected by pilots. Thus, for example, a pilot cannot bid for any more than two one-day trips in an eight week bid period (to ensure that enough of these trips are available for all pilots to construct full and efficient bid lines) and each pilot must fly approximately 170 hours in a bid period;"
He went on to explain that bids are "strictly determined according to pilots' seniority, so that the most senior pilot will always prevail over other pilots bidding for the same slip pattern", subject to the limitation just mentioned. Once bids have closed, a computer program is used to allocate slip patterns and duty-free days. The results of the allocation are published and distributed to each pilot. Mr Becquet explained that short flights, such as those to New Zealand and Denpasar, are used by crew to round off their required number of hours in a bid package. If a substantial proportion of these flights were allocated to Mr Christie, Qantas would be unable to fully use all its other B747-400 Captains. Mr Christie would be being paid for doing work that others would have done without extra cost to Qantas.
In these circumstances, counsel for the respondents argue that, from an operational point of view and under existing international restrictions, being less than 60 years of age is an inherent requirement of a position as Captain of a B747-400 aircraft. They point out that the International Pilots' Agreement, 1986 under which Mr Christie was employed, provided by section 5(e) that pilots shall serve the Company (Qantas) "in any part of the world where the Company may from time to time be operating". This is in fact necessary, say counsel, if they are to be used effectively.
Counsel for Mr Christie say that the problem of rostering is not one that goes to the inherent requirements of the position; it is no more than a matter of administrative convenience or tidiness. They say that Qantas' approach confuses the inherent requirements of a position with the operational requirements of the employer and this involves a misconstruction of s.170DF(2):
"Matters of mere administrative convenience and even of expense can not seriously stand in the way of the proper enjoyment of the important new rights given by the Act, as amended last year. Thankfully, community acceptance of such rights has travelled a reasonable distance in Australia since similar laws were introduced in the late 1970s. No longer would an employer seek to justify non-employment of women on the ground that the employers' establishment did not possess toilet facilities specifically designated for women. However, properly considered, the submissions by Qantas in this regard really parallel that outmoded kind of thinking, and should not be taken any more seriously. The fact that Qantas may have to make some administrative adjustment and might be subject to some administrative inconvenience cannot stand against the important rights provided to Captain Christie by s.170D(1)(f)."
Counsel go on to refer to the "limited formal basis" of the present rostering system, noting that it is not provided for in any award, that the restriction on a pilot bidding for more than two one-day trips in an eight week period is a restriction imposed by Qantas itself, Mr Christie's seniority at the time of his termination (number 25 on the long haul seniority list and number 18 out of 113 B747-400 line captains) and the fact that there was more than enough work, on flights that occasioned no problem, to keep him occupied. Even if other over-60 pilots had to be similarly accommodated, they say, this would not cause a problem, at least for the moment. Mr Christie gave evidence, which was not challenged, that he was the only long haul Qantas pilot retired at age 60 in 1994. He said that two were due to retire at age 60 in 1995, of whom only one was a Captain. Counsel point out that, so anxious is their client to fly, that he would be prepared to work as a First Officer on a B747-400 or as a Captain on Qantas domestic services, where there would be no problem at all. He is also prepared to work part-time. Qantas has a part-time work policy, though this has not yet been applied to pilots.
I have considerable sympathy for Mr Christie's position. As I have already indicated, I think that the Age 60 rule is not defensible on medical or safety grounds. Having regard to recent improvements in diagnostic techniques, it is outmoded as a method of weeding out high risk pilots. But the rule is still embodied in the ICAO Standards. It still influences the policies of many governments, including the governments of the countries most visited by Qantas. Whatever the justification for the rule itself, while those policies stand Qantas would not be able to use Mr Christie in the way he was used in the past. He could not bid in the normal way; he would have to pick and choose amongst the available slip patterns. In order to make up his hours, he would need to use a large proportion of Qantas' short flights, flights that would otherwise be used to make up the hours of other B747-400 Captains. 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. I do not think that the situation can be likened to an employer justifying the non-employment of women on the ground that its establishment does not have women's toilets. Unlike that example, the present problem is not one within Qantas' control. If it were so minded, Qantas might be able to influence the result of the current reconsideration of the ICAO Standard, or the attitude to that standard of individual governments. But a change is unlikely to occur in the immediate future; anyway, counsel for the respondents is correct in arguing that the relevant date for determination of the question whether the termination was based on an inherent requirement of the position is the date of termination, not the time when an unlawful termination claim goes to court. 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.
In relation to this conclusion, it should be remembered that availability to fly anywhere in the world was not only a term of the International Air Pilots Agreement 1986, under which Mr Christie worked at the time of his termination, but was a term of his contract of employment, negotiated when he joined the company in 1964.
I do not think it is any answer for Mr Christie to volunteer to fly as a First Officer, or on domestic routes in a different type of aircraft or on a part-time basis. These are practical suggestions in relation to a pilot approaching his or her 60th birthday that might attract an employer in the position of Qantas, if that employer was minded to find a way of keeping the pilot's services. But the adoption of any of these suggestions would involve Mr Christie being employed in a different position than that which he occupied immediately prior to 21 September 1994. The s.170DF(2) defence would nevertheless be made out. If it were not, so that the termination was unlawful, the Court's power to order reinstatement would not cover an order requiring Qantas to place Mr Christie in any of those situations.
As I say, I have sympathy for Mr Christie. He succeeds on the main issue in the case, the medical issue, but is defeated on the operational issue. This issue will soon disappear, but too late for Mr Christie. His application must be dismissed.
I hereby certify that the preceding eighty-nine (89) pages is a true copy of the Reasons for Judgment of his Honour, Chief Justice Wilcox.
Associate:
Dated: 12 May 1995
APPEARANCES
No. NI.879 of 1994
Counsel for the Applicant: F L Wright QC and S Winters
Solicitor for the Applicant: Jones Staff & Co
Counsel for the Respondent: Dr C N Jessup QC and I M Neil
Solicitor for the Respondent: Blake Dawson Waldron
Dates of hearing: 12 December 1994, 1-3 February 1995 and 17 February 1995
No. NI.664 of 1994
Counsel for the Applicant: R Reitano
Solicitor for the Applicant: Geoffrey Edwards & Co
Counsel for the Respondent: Dr C N Jessup QC and I M Neil
Solicitor for the Respondent: Blake Dawson Waldron
Dates of hearing: 1-3 February 1995 and 17 February 1995
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