Keech v State of Western Australia Metropolitan Health Service trading as King Edward Memorial Hospital

In this case, Ms Keech, a 66-year-old midwife and lactation consultant, was injured at work at King Edward Memorial Hospital in Western Australia in February 2007. She received weekly compensation payments for one year, as stipulated by the Workers’ Compensation and Injury Management Act 1981 (WA). When the statutory period for payments ended, Ms Keech alleged that the hospital’s cessation of payments constituted age discrimination under the Age Discrimination Act 2004 (Cth). She sought a declaration of unlawful discrimination, an injunction against future discrimination, and compensation for loss or damage suffered. The court had to determine if the hospital's conduct fell within the definition of unlawful discrimination in s 18(2) of the Age Discrimination Act and whether s 39(4) of the same Act rendered the hospital's conduct lawful.

The court first assessed whether the hospital’s actions constituted discrimination as per s 18(2) of the Age Discrimination Act. Ms Keech argued that the hospital’s cessation of payments discriminated against her because a younger employee would have continued to receive payments. The court found that unlike in Air New Zealand Ltd v McAlister, where the employer had discretion to apply an age-related policy, the hospital's actions were compelled by statute, not discretionary. The court concluded that the hospital’s conduct did not constitute age discrimination because it was merely fulfilling its statutory obligation under the Compensation Act.

Secondly, the court examined whether s 39(4) of the Age Discrimination Act applied, exempting the hospital's conduct from being unlawful. The court determined that "direct compliance" with a statute, as used in s 39(4), meant acting in response to an obligation directly imposed by the statute, not by discretionary directions. Since the hospital’s payments were in direct compliance with the Compensation Act, the court held that s 39(4) rendered the hospital's conduct lawful. Consequently, the court dismissed Ms Keech’s application.

The court ordered that Ms Keech pay the hospital's costs. The decision underscores that compliance with statutory obligations can exempt conduct from being deemed discriminatory under anti-discrimination laws, provided the compliance is direct and not discretionary.