Qantas Airways Ltd v Christie
[1998] HCA 18
•19 March 1998
HIGH COURT OF AUSTRALIA
BRENNAN CJ,
GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
QANTAS AIRWAYS LIMITED APPELLANT
AND
JOHN BAILLIE CHRISTIE RESPONDENT
Qantas Airways Limited v Christie (S194-1996) [1998] HCA 18
19 March 1998
ORDER
Appeal allowed with costs.
Set aside the orders of the Full Court of the Industrial Relations Court of Australia and in lieu thereof order that the appeal to that Court be dismissed with costs.
On appeal from Industrial Relations Court of Australia
Representation:
D M J Bennett QC with I M Neil for the appellant (instructed by
Blake Dawson Waldron)
D F Jackson QC with F L Wright QC for the respondent (instructed by
Paul Murphy)
Intervener:
P M Kite SC intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by M Nicholls, Solicitor, Human Rights and Equal Opportunity Commission)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Qantas Airways Limited v Christie
Industrial Law – Termination of Employment – Whether termination of employment at initiative of employer – Whether contract of employment ended with effluxion of time.
Industrial Law – Termination of Employment – Discrimination on the basis of age – "Rule of 60" – Inherent requirement of the particular position – International airline pilot – Distinction between "position" and "job".
Discrimination Law – Termination of Employment – Discrimination on the basis of age – "Rule of 60" – Inherent requirement of the particular position – International airline pilot – Distinction between "position" and "job".
Industrial Relations Act 1988 (Cth), ss170DE, 170DF, 170EA, 170EDA, 170EE.
BRENNAN CJ. I am in respectful agreement with what Gaudron J has written except in relation to the final, and critical, question of fact, namely, whether it was an inherent requirement of the position which Mr Christie occupied as a pilot of Qantas B747-400 aircraft that such a pilot should not be excluded from flying those aircraft to or over those countries which enforce the Rule of 60. In particular, I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee's position. The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation. In so saying, I should wish to guard against too final a definition of the means by which the inherent nature of a requirement is determined. The experience of the courts of this country in applying anti-discrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.
Evidence is not needed to show that the commercial operation of an international airline requires the efficient deployment of B747-400 aircraft to meet customer demand. The employment of pilots to take those aircraft on the routes selected is a necessary aspect of the undertaking. So too is the allocation of pilots to the scheduled flights. The evidence showed that the method of allocating pilots to particular flights had been established by practice between Qantas and the Pilots Association in 1987. It was a preferential bidding system which discriminated among pilots only on the basis of seniority of service. One element of that practice was that pilots could not bid for more than two one-day flights in any eight-week period. The essential requirements of the position were, apart from the necessary aeronautical skills and licences, a capacity to fly on Qantas' international routes and a consequential ability to participate effectively in the bidding process equally with other Qantas international pilots.
Once Mr Christie attained the age of 60, the Rule of 60 effectively precluded him from flying on the majority of Qantas' international routes. Wilcox CJ found that, in consequence of that limitation[1] -
"[Mr Christie] could not bid in the normal way; he would have to pick and choose amongst the available slip patterns. [The trips open to bidding.] 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."
Mr Christie appealed against this finding but the majority of the Full Court did not find it necessary to deal with this ground of appeal. Gray J held the bidding and roster system to be irrelevant[2] and Marshall J found that the finding by Wilcox CJ did not "bear upon the question as to whether it was an inherent requirement of the position of a Qantas B747-400 captain that the occupant of that position be aged less than 60 and/or be able to fly B747-400 aircraft anywhere Qantas flies"[3]. But the bidding system was an integral part of the Qantas administrative machinery by which it organised its services. That system was not discriminatory in its design or operation. In my opinion, the ability to participate effectively in the system equally with other pilots of similar seniority was an inherent requirement of Mr Christie's position.
[1]Christie v Qantas Airways Ltd (1995) 60 IR 17 at 56.
[2]Christie v Qantas Airways Ltd (1996) 138 ALR 19 at 32.
[3](1996) 138 ALR 19 at 38.
The ground of appeal to the Full Court challenging the finding of Wilcox CJ that Mr Christie would need to use a large proportion of Qantas' short flights in order to make up his hours was repeated in an amended notice of contention in this Court. That issue was not dealt with by the majority judgments in the Full Court. If the correctness of the finding by Wilcox CJ raised by that ground in the notice of contention were critical to the result of this litigation, it would be necessary to remit the issue to the Full Court of the Industrial Relations Court[4] to hear and determine the issue. But the system of bidding is merely the machinery by which Qantas selected pilots for duty on its scheduled flights. It was the ability of each pilot to participate effectively in the system equally with other pilots of similar seniority that made the bidding system an equitable, efficient and non-discriminatory method of selecting pilots for duty.
[4]See the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sched 16, Items 63(1)(a) and (b) and Item 68.
The question is not whether Mr Christie would need to use a large proportion of short flights to make up his hours but whether he would necessarily make up his hours by excluding from his bids flights to or over those countries which apply the Rule of 60. As Mr Christie would be constrained to exclude flights to or over some countries from his bids, he could not participate equally with other pilots of similar seniority in the bidding system. His exclusion from flights to and from some destinations would require other pilots to be selected for duty on those flights more frequently than if Mr Christie had been available for that duty. Even if, the Rule of 60 apart, Mr Christie's seniority would have allowed him to exclude those flights from his bids which filled the required number of flying hours, that hypothetical exclusion would have been made in exercise of his rights as an equal participant in the bidding system. There would have been a continuing possibility of bidding successfully for the flights from which he is now compulsorily excluded. But his inability to bid and to be selected for some flights skews the equitable operation of the system.
As this consideration makes the "large proportion of ... short flights" issue unnecessary to pursue, there is no need to remit the matter to the Full Court of the Industrial Relations Court. I would allow the appeal.
GAUDRON J. The respondent, John Baillie Christie, was employed by the appellant, Qantas Airways Limited ("Qantas"), from 1964 until his 60th birthday on 21 September 1994. His employment came to an end in consequence of a Qantas policy that its pilots should not continue in employment beyond the age of 60. Prior to his retirement, Mr Christie was employed as a captain of B747‑400 aircraft on Qantas international flights.
The proceedings
On 4 October 1994, Mr Christie commenced proceedings in the Industrial Relations Court of Australia[5] claiming that his employment was terminated by Qantas in breach of s 170DF(1)(f) of the Industrial Relations Act 1988 (Cth) ("the Act"), now the Workplace Relations Act 1996 (Cth)[6]. He sought orders for reinstatement and compensation pursuant to s 170EE of the Act.
[5]Schedule 16 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) transferred the jurisdiction of the Industrial Relations Court to the Federal Court of Australia with effect from 26 May 1997.
[6]See Sched 19 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), which took effect on 25 November 1996.
At first instance, the trial judge, Wilcox CJ, found for Qantas[7]. His decision was reversed on appeal by the Full Court of the Industrial Relations Court, it being held by majority (Gray and Marshall JJ, Spender J dissenting) that Mr Christie was entitled to succeed in his action and that the matter should be remitted to the trial judge to consider the relief to be granted[8]. Qantas now appeals to this Court.
[7]Christie v Qantas Airways Limited (1995) 60 IR 17.
[8]Christie v Qantas Airways Limited (1996) 138 ALR 19.
Relevant legislative provisions
When these proceedings were commenced, ss 170DE and 170DF of the Act[9] limited the rights of an employer to terminate an employee's employment. Section 170DE(1) provided:
[9]The provisions of sub-ss (1)(f) and (2) of s 170DF were retained in almost identical terms as sub-ss (2)(f) and (3) of s 170CK of the Workplace Relations Act.There is no equivalent provision to s 170DE(1).
" An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service."[10]
[10]Section 170DE(2), which provided that a reason was not valid if the termination was "harsh, unjust or unreasonable", was held to be invalid but severable in Victoria v The Commonwealth (IndustrialRelationsAct Case) (1996) 187 CLR 416 at 517-518.
Section 170DF relevantly provided:
"(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
...
(f)... age ...
...
(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."
It was provided in s 170CB that an expression had the same meaning in Div 3 of Pt VIA of the Act, which contained s 170DF, as in the Termination of Employment Convention 1982[11]. Article 3 of that Convention defines "termination" and "termination of employment" to mean "termination of employment at the initiative of the employer."
[11]The English text of that convention was set out in Sched 10 to the Act.
Issues in the proceedings
The proceedings have at all stages been conducted on the basis that Mr Christie’s age was the reason, or at least one of the reasons, why his employment came to an end. On that basis, the issues in the Industrial Relations Court were whether Qantas terminated Mr Christie’s employment and, if so, whether the termination was outside the prohibition in s 170DF(1) because the reason was "based on the inherent requirements of [his] particular position."[12] The same two issues arise in the appeal to this Court. Additionally, an amended notice of contention filed on behalf of Mr Christie raises issues under s 170HA of the Act[13] and Pt 4E of the Anti-Discrimination Act 1977 (NSW). However, those issues only arise if it is held that Mr Christie’s employment came to an end by some means other than by termination at the initiative of Qantas.
[12]Section 170DF(2).
[13]This issue was not pressed at the hearing.
Reason for termination
Before considering the issues in the appeal, it is convenient to note that it seems to have been assumed that, because Qantas required Mr Christie's employment to come to an end on his 60th birthday, that was the reason for its so doing. Certainly, it has not at any stage of the proceedings been argued otherwise. However, it may be noted that the mere fact that an employer requires or stipulates for employment to come to an end when an employee reaches a certain age does not necessarily direct the conclusion that, if employment is terminated when he or she reaches that age, age is the reason for its termination.
If, as here, employment comes to an end at an age stipulated by an employer, it will ordinarily be inferred that age was the reason for its so doing. But there may be exceptional cases where, an employee having reached the stipulated age, that is the occasion and not the reason for the termination of his or her employment. It is important to refer to this question because, in my view, the facts of this matter permit of an argument that, although Mr Christie's employment came to an end on his 60th birthday, it did not come to an end for that reason but, in terms of s 170DE(1), for "a valid reason ... based on the operational requirements of the [Qantas] undertaking".
Matters pertaining to the employment relationship
The questions in this appeal require consideration of the terms of certain documents which, together, governed Mr Christie's employment with Qantas. That consideration begins with a letter of 30 April 1964 from Qantas setting out the terms and conditions of his appointment "to the Flight Staff of [that] Company" ("the letter of appointment"). The terms and conditions were accepted by Mr Christie by a signed notation to that effect at the bottom of the letter. By par 2 of the letter, he was "appointed as a Pilot for duty as required by the Company in any part of the world".
Termination of employment was specifically dealt with by par 4 of the letter of appointment. By par 4(a), either party could terminate "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". The letter also made reference to the ability of Qantas to terminate without notice for misconduct[14]. The letter made no reference to retirement although it was apparently then the practice for all pilots to retire no later than their 55th birthday.
[14]In terms used in par 4(b), "misconduct, neglect of duty, gross inefficiency [and] breach of Company instructions".
By par 19 of the letter of appointment, "the ... conditions of employment [were] to be read in conjunction with and [were] supplementary to the terms of any enactment industrial agreement or award specifically covering [Mr Christie’s] employment with [Qantas]." Although par 4(a) of the letter referred to an "agreement covering Airline Pilots employed by Qantas", that agreement is not in evidence. The only agreement tendered in evidence is the International Airline Pilots’ Agreement 1986 ("the 1986 agreement"), an agreement certified by the Australian Industrial Relations Commission on 19 June 1989 pursuant to s 115 of the Act as it then stood.
The 1986 agreement is expressed to replace an earlier agreement known as the International Airline Pilots' Agreement 1984. The 1986 agreement was, in turn, replaced by the International Airline Pilots’ Agreement 1988 ("the 1988 agreement"). As already indicated, that agreement was not put in evidence. However, a copy was made available to the Court. As it happens, nothing turns on whether regard is had to the 1986 agreement or the 1988 agreement, there being no difference between them as to any matter bearing on the outcome of this appeal.
Each of the 1986 and 1988 agreements is expressed to be binding on the Australian International Pilots Industrial Organisation and its members and on pilots employed by Qantas for whom the organisation is deemed to act as agent[15]. Each provides that Qantas may employ its pilots and that its pilots should serve Qantas "in any part of the world where [it] may from time to time be operating."[16] Each provides for termination without notice for misconduct and for termination on notice or by payment or forfeiture of pay in lieu of notice: the period of notice for a pilot with service of 12 months or more is 28 days[17]. The agreements, as such, contain no provision as to retirement. That subject is dealt with in letters of agreement between Qantas and the Australian Federation of Air Pilots ("AFAP") and, later, the Australian International Pilots' Association ("AIPA")[18].
[15]Section 2 of each agreement.
[16]Section 5(e) of the 1986 agreement and s 5E of the 1988 agreement.
[17]Section 5(a) of the 1986 agreement and s 5A of the 1988 agreement.
[18]Mr Christie was at all relevant times a member of AFAP and AIPA, the latter of which was formerly known as the Australian International Pilots Industrial Organisation.
In 1974, in a letter of agreement between Qantas and AFAP ("the 1974 letter"), it was specified that the normal date of retirement was 1 July following a pilot's 55th birthday, but it was agreed that the retirement age for pilots could be extended until age 58. That agreement was renewed in 1977 and, later, confirmed by AIPA. Subsequently, in 1991, in a letter of agreement ("the 1991 letter"), Qantas and AIPA recorded their further agreement that "[a] pilot [might] 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 1974 and 1991 letters provide that pilots wishing to extend their employment beyond the normal retirement date should give notice of their election so to do. In accordance with those procedures, Mr Christie made a number of elections to continue in employment, the last, in September 1992, being an election to continue in employment until he reached the age of 60 on 21 September 1994. Then, on 6 July 1994, he wrote to Qantas expressing his belief that amendments to the Act which took effect earlier that year "[overrode] any requirement for a retirement ... based on age."[19] He also said that he wished to continue in employment beyond his 60th birthday. He received two letters in response, neither of which indicated a final position with respect to his continued employment. His solicitors also confirmed his wish to remain in employment in a letter to Qantas of 22 August. Mr Christie subsequently received a letter from Qantas dated 8 September informing him that "it [was] necessary that [his] retirement take effect as planned on 21 September, 1994." A similar letter was sent to his solicitors.
[19]Apparently, the amendments effected by the Industrial Relations Reform Act 1993 (Cth) which, inter alia, inserted the provisions of Div 3 of Pt VIA of the Act containing ss 170DE and 170DF.
Termination of employment at the initiative of Qantas
Qantas contends, as it has at all stages of these proceedings, that it did not terminate Mr Christie's employment. Rather, it is said that his employment came to an end by the effluxion of time, it being a term of his employment contract or, perhaps, a condition of the employment relationship that his employment should terminate not later than his 60th birthday. Alternatively, it is put that, having elected to extend his employment until his 60th birthday in accordance with the terms of the 1974 and 1991 letters, Mr Christie is estopped from denying that his employment came to an end on his 60th birthday in accordance with the agreements recorded in those letters.
The argument that Mr Christie's employment expired by the effluxion of time or, alternatively, that he was estopped from arguing otherwise led Wilcox CJ, at first instance, and Spender and Marshall JJ, in the Full Court, to consider whether the 1974 and 1991 letters were binding on Mr Christie[20]. In the view of Wilcox CJ, it was also necessary to consider whether the doctrine of estoppel required that the agreement recorded in the 1991 letter be treated as binding because Mr Christie elected to take the benefit of it. In the view that I take, it is unnecessary to consider either question.
[20]The 1974 letter was bound with the 1986 agreement and the 1991 letter with the 1988 agreement. A question which arose at first instance and in the Full Court was whether the 1974 letter was part of the 1986 agreement. That question did not arise with respect to the 1991 letter because the 1988 agreement was not in evidence and, apparently, not before the Full Court.
Even if the agreements recorded in the 1974 and 1991 letters were binding on Mr Christie, they do not purport to alter or vary the terms and conditions of his employment as set out in the letter of appointment or as contained in the 1986 and 1988 agreements[21]. In particular, the letters do not purport to vary the terms specifying the circumstances in which the employment relationship could be brought to an end without notice and providing that it could otherwise be brought to an end by notice or by payment or forfeiture of pay in lieu of notice. Construed in that light, the 1974 and 1991 letters simply record the agreement of Qantas that, if a pilot should elect to continue in employment in accordance with the procedures set out in them, it would not terminate that pilot's employment before his or her 60th birthday to give effect to its retirement policy.
[21]Note that each letter of agreement provides that subsequent letters of appointment should include provision for a normal date of retirement and an entitlement to extend. No reference is made to existing appointments.
Given the terms of the letter of appointment and of the 1986 and 1988 agreements and given, also, the limited nature of the agreement recorded in the 1974 and 1991 letters, it follows that Mr Christie's employment with Qantas continued until terminated by one or other of them in accordance with the industrial agreement which, together with the letter of appointment, governed the employment relationship. Certainly, Mr Christie did nothing to terminate that relationship. That being so, the letter from Qantas of 8 September 1994 is to be seen, in the context of the correspondence between them as to his continued employment, as notice of termination.
It may be that Qantas should have given Mr Christie longer notice than it did. Whether or not that is so, his employment was terminated by Qantas by its letter informing him that his retirement was to take effect as planned, namely, on his 60th birthday. That being so, no issue arises under the amended notice of contention with respect to s 170HA of the Act and Pt 4E of the Anti Discrimination Act 1977 (NSW).
A reason based on the inherent requirements of the particular position
The only reason now advanced by Qantas for its retirement policy is the Rule of 60, a convenient shorthand description of Standard 2.1.10.1 in Annex 1 to the Convention on International Civil Aviation and Arts 39(b) and 40 of that Convention[22]. The effect of Standard 2.1.10.1 is that State parties to that Convention may not permit a pilot who has attained the age of 60 to act as pilot in command of an international air service. And Arts 39(b) and 40 of the Convention, read with Standard 2.1.10.1, allow a State to exclude from its airspace any aircraft flown by a pilot who has attained the age of 60. Those rules do not apply in Australia[23] but are enforced by many of the countries to and over which Qantas flies.
[22]At first instance Qantas raised other considerations, including the health, general fitness and acuity of pilots who had reached the age of 60. This issue was concluded against it by Wilcox CJ and was not in issue in the Full Court.
[23]Note that the Convention contemplates departure by contracting States from international standards: see Art 38.
At first instance, Wilcox CJ held that the position which had to be considered for the purposes of s 170DF(2) was that actually held by Mr Christie immediately prior to the termination of his employment. His Honour proceeded on the basis that that was captain of B747-400 aircraft flying on Qantas' international routes. However, he did not expressly identify the inherent requirements of that position. Rather, he considered the work which would be available to Mr Christie by reason of the enforcement of the Rule of 60 by countries to and over which Qantas flies, including the United States of America, Singapore and Thailand.
It was found by Wilcox CJ that, given the routes flown by Qantas and given the countries which enforce the Rule of 60, Mr Christie would only be able to fly to and from New Zealand, Denpasar (in Indonesia) and Fiji. And on his findings, there would be problems in his flying to Fiji because Qantas often requires its crews to proceed from Fiji to the United States. His Honour went on to consider whether the Qantas roster system would permit Mr Christie to be rostered exclusively on flights to and from New Zealand, Denpasar and Fiji or, perhaps, exclusively on those flights together with internal flights flown as part of Qantas' international services. He held that it would not, or, at least, that it would involve serious practical difficulties. He concluded that s 170DF(2) was to "be applied in a practical, commonsense way" and that, given the serious practical difficulties involved in Mr Christie’s continued employment, "being under 60 years of age was an inherent requirement of a position as a B747-400 Captain."[24]
[24](1995) 60 IR 17 at 56.
It is convenient at this stage to say something of the Qantas roster system. When routes and flights have been determined and aircraft have been allocated to those flights, Qantas prepares its flight schedule and notifies its pilots and other crew members of the resulting "slip patterns". Each "slip pattern" represents a single trip. A trip may be for a few hours or for several days, sometimes as many as 12 days. Pilots and other crew members submit bids for the various "slip patterns", the bids being made for "slip patterns" extending over an eight week period. The bids are accepted or rejected on the basis of seniority and a roster is then prepared. One aspect of the bidding system is that no pilot can bid for more than two one-day trips in any eight week period, a rule apparently devised by Qantas to ensure that there are enough of those trips for each pilot to construct a bid involving the requisite minimum number of hours.
At first instance, Wilcox CJ found that if Mr Christie's employment were continued, he "could not bid [for flights] in the normal way" and "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."[25] His Honour seems to have equated short flights with one-day trips. The finding that he would need to use "a large proportion of ... short flights" and, thus, the conclusion that there were serious practical difficulties involved in his continued employment was put in issue by ground 3 of the notice of appeal filed on behalf of Mr Christie in the Full Court. The same issues are raised by the amended notice of contention filed in this Court. The parties accept that, if it is necessary for those questions to be decided, the matter should be remitted to the Full Court.
[25](1995) 60 IR 17 at 56.
On the approach taken by the majority in the Full Court, it was unnecessary to consider whether, if he continued in employment, Mr Christie could comply with the Qantas roster system. In the view of Gray J, an inherent requirement, for the purposes of s 170DF(2) of the Act, was something essential to the position, rather than something imposed on it. Moreover, an employer could not, "by stipulating for contractual terms, or by creating or adhering to rostering systems ... create inherent requirements of a particular position."[26] It followed, in his Honour’s view, that it was not an inherent requirement of Mr Christie's position that, in terms of his letter of appointment, he be able to undertake "duty as required by [Qantas] in any part of the world". Nor was it an inherent requirement that he be able to fly to such destinations as were necessary to comply with its roster system.
[26](1996) 138 ALR 19 at 32.
The view taken by Marshall J was that the expression "inherent requirements" in s 170DF(2) of the Act was to be construed in accordance with the approach adopted by the Human Rights and Equal Opportunity Commission in X v Department of Defence[27]. In that case, the Commission held in relation to s 15(4) of the Disability Discrimination Act 1992 (Cth)[28] that:
"for [it] to apply, there must be a clear and definite relationship between the inherent or intrinsic characteristics of the employment and the disability in question, the very nature of which disqualifies the person from being able to perform the characteristic tasks or skills required in [the] specific employment."[29]
Applying that test, Marshall J held that "Mr Christie [was] not disqualified from being able to perform the characteristic tasks or skills required in being a pilot, he [was] only inhibited geographically as to where he [might] perform such tasks."[30] His Honour added that "[i]t was not necessary for Mr Christie to be able to fly to any part of the world ... to be a Qantas B747-400 captain" because "[h]e was capable of being rostered so that his services were utilised in flying to locations where he was not prohibited from so doing by the laws of other countries."[31] And in his Honour's view, difficulties which might result from his being rostered in that way were relevant to the question whether Mr Christie should be reinstated but not to the operation of s 170DF(2) of the Act[32].
[27][1995] EOC 92-715.
[28]Section 15(4)(a) provides that certain types of disability discrimination in employment are not unlawful if the person "would be unable to carry out the inherent requirements of the particular employment".
[29][1995] EOC 92-715 at 78,378.
[30](1996) 138 ALR 19 at 40.
[31](1996) 138 ALR 19 at 40.
[32]This was also the view of Gray J: see (1996) 138 ALR 19 at 33.
There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas’ international routes[33], a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as "the characteristic tasks or skills required in being a pilot", as did Marshall J in the Full Court[34], is to overlook its international character.
[33]Note that Qantas' international routes sometimes involve domestic sectors.
[34](1996) 138 ALR 19 at 40.
Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.
Much of the argument in this Court was directed to the question whether the expression "inherent requirements" in s 170DF(2) should be construed broadly or narrowly. It was put on behalf of Mr Christie that it should be construed narrowly because it is an exception to or exemption from the prohibition on termination on discriminatory grounds and a broad construction would be contrary to the evident purpose of s 170DF, namely, to prevent discriminatory conduct. I doubt whether s 170DF(2) is an exception or exemption of the kind which the argument assumes. Rather, I think the better view is that sub-s (2) is, in truth, part of the explication of what is and what is not discrimination for the purposes of s 170DF of the Act. However, that issue need not be explored for there is nothing to suggest that the expression "inherent requirements" in s 170DF(2) is used other than in its natural and ordinary meaning. And that meaning directs attention to the essential features or defining characteristics of the position in question.
A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with. Clearly, Mr Christie's position would not be essentially the same if it did not involve flying B747-400 aircraft or if it did not involve flying on Qantas' international routes. However, that does not answer the question raised by this case. The question is whether the position would be essentially the same if it involved flying B747-400 aircraft but only on those routes which remain available by reason of the enforcement of the Rule of 60.
As already indicated, the fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question whether it is an inherent requirement of the particular position in question. Although the letter of appointment and the 1986 and 1988 agreements stipulate respectively for service "as required by [Qantas] in any part of the world" and for service "in any part of the world where [Qantas] may from time to time be operating", neither, in my view, is an inherent requirement of the particular position which Mr Christie occupied. That is because the practical effect of the Qantas roster system was to require only that he fly to those destinations necessary to comply with that system. That being so, the stipulations in the letter of appointment and in the industrial agreements governing his employment with Qantas are no different from contractual stipulations for qualifications and skills which are excessive when related to the work to be done.
If, notwithstanding the limited destinations to which he can now fly, Mr Christie can comply with the Qantas roster system, his position will be essentially the same as that previously occupied by him. However, it will not be the same if Qantas excepts him from the general roster requirements, for that would transform a position no different from that of any other B747-400 captain into a special position for him. The same would be true of an exception in favour of all pilots over the age of 60. Even so, it would not be correct, in my view, to identify compliance with the roster system as an inherent requirement of the particular position occupied by Mr Christie. A roster system is simply an administrative arrangement designed to ensure the systematic performance of the work to which it relates. However, it does not follow that a roster system is wholly irrelevant for it may be that the inherent requirements of a particular position or, at least, some of them, can be discerned from it.
The Qantas roster system has not at any stage of these proceedings been examined with a view to discerning the inherent requirements of the position of a captain of B747-400 aircraft flying on international routes. Even so, it seems tolerably clear from the examination that has taken place that those requirements include the working of a minimum number of hours in an eight week period flying B747-400 aircraft on trips structured and scheduled by Qantas but chosen, in the first instance, by the pilot, without preference over any other B747-400 captain save to the extent that preference may be given to his or her choice of trips by reason of seniority. There may be other discernible inherent requirements. And it may be that another system could be devised to accommodate Mr Christie without altering the essential nature of the position of captain of B747-400 aircraft. If so, it would follow that his termination was not for a reason based on the inherent requirements of his position.
As it happens, the question whether a roster system can be devised to accommodate Mr Christie without altering the essential nature of the position of captain of B747-400 aircraft need not be explored. The case for Mr Christie has been conducted on the basis that the Qantas roster system is wholly irrelevant, or, in the alternative, that he can comply with it or that it can be adjusted to accommodate him. For the reasons given, the only one of those questions which is relevant is the question whether Mr Christie can comply with the roster system. That raises the question whether Wilcox CJ erred in holding that he would need to use a large proportion of short flights that would otherwise be used to make up the hours of other captains of B747-400 aircraft, a question raised by ground 3 of Mr Christie's notice of appeal to the Full Court but not answered by it.
Orders
The appeal should be allowed with costs and the orders of the Full Court of the Industrial Relations Court set aside. The matter should be remitted to the Full Court for determination of ground 3 of the notice of appeal to that Court.
McHUGH J.
The questions in this appeal are:
(1)whether an employer has terminated employment "for reason" of age where it was a term of the employment that the employee would retire at a specified age and the employer has refused to continue the employment past that age;
(2)whether the age of an employee can constitute one of the "inherent requirements of the particular position" within the meaning of s 170DF(2) of the Industrial Relations Act 1988 (Cth) ("the Act")[35] and therefore constitute a non-discriminatory basis for dismissal.
[35]The Act has been renamed the Workplace Relations Act 1996 (Cth) and has undergone substantial modifications since the current proceedings were initiated. My discussion is limited to the Act as it applied at the relevant time.
In my opinion, the first question should be answered, No and the second question should be answered, Yes.
The statutory background
Section 170DF of the Act[36] relevantly provides:
"(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
...
(f)race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
...
(2) Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position."
[36]Although it was not in issue at any stage of these proceedings, it would seem that s 170DE could also be of relevance. Section 170DE(1) provides:
"An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service."
Section 170DE(2), which stated that a reason was not valid if the termination was "harsh, unjust or unreasonable", was found to be invalid but severable in Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 517.
The employment of Mr Christie
The respondent ("Mr Christie") was employed by the appellant ("Qantas") pursuant to a letter of appointment dated 30 April 1964. The letter of appointment gained contractual force when it was signed by Mr Christie to indicate that he had "read the conditions of employment set out above and accept[ed] appointment in accordance therewith". A number of conditions of employment were specified in the letter of appointment. Paragraph 2 of the letter stated that Mr Christie was employed by Qantas "as a Pilot for duty as required by the Company in any part of the world". Two further conditions are relevant. Paragraph 4 dealt with termination of Mr Christie's employment. It provided:
"(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."
No provision was made for termination of Mr Christie's employment by reason of the reaching of any specified age.
However, par 19 of the conditions of employment provided:
"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."
A letter of agreement addressed by Qantas' Director of Flight Operations to an officer of the Australian Federation of Air Pilots ("the AFAP"), an industrial organisation of which Mr Christie was a member, provided for retirement by reason of age. The letter of agreement was dated 20 November 1974 ("the 1974 letter") and provided for the extension of a pilot's employment beyond the "normal date of his retirement". The 1974 letter designated the "normal date of retirement" as 1 July following the pilot's 55th birthday. In evidence, after referring to Qantas' superannuation plan, Qantas' General Manager of Flight Operations indicated that 55 had been the accepted date of retirement for Qantas pilots prior to the 1974 letter.
The 1974 letter described a process which allowed pilots to elect to extend their employment beyond their 55th birthday on a yearly basis until their 58th birthday. The letter was physically bound to the International Airline Pilots' Agreement 1986 ("the 1986 agreement"), which was certified by the Australian Industrial Relations Commission ("the Commission") pursuant to s 115 of the Act on 19 June 1989. Thereafter the 1974 letter had the status of an industrial award[37].
[37]s 116 of the Act.
The agreement contained in the 1974 letter was renewed on 26 August 1977. The Australian International Pilots Association ("the AIPA"), which had acquired the right from the AFAP to represent pilots flying on international routes, adopted the agreement in a letter dated 17 December 1981 ("the 1981 letter"). The 1981 letter was also bound to the 1986 agreement at the time of certification.
The 1986 agreement was expressed to bind Qantas, the Australian International Pilots Industrial Organisation ("the AIPIO")[38], its members and pilots employed by Qantas "for whom the association is deemed to act as agent"[39]. Section 5(e) of the agreement stated:
"[Qantas] may employ its pilots and the pilots shall serve [Qantas] in any part of the world where [Qantas] may from time to time be operating."
[38]The former name of the AIPA.
[39]s 2.
Although provision was made in the 1986 agreement for the termination of employment for misconduct or other sufficient cause and by notice[40], no reference was made to a specified age at which Qantas' pilots' employment would come to an end. These terms were replicated in the International Airline Pilots' Agreement 1988, which replaced the 1986 agreement.
[40]s 5(a).
A further letter of agreement between Qantas and the AIPA was dated 14 January 1991 ("the 1991 letter"). The 1991 letter extended the date up to which a pilot could annually extend his or her employment to the date of the pilot's 60th birthday. At no stage was the 1991 letter produced to the Commission for certification.
Mr Christie wrote to his employer on 28 April 1987 to inform of his "intention to extend my period of service with Qantas beyond my 55th birthday". On 14 September 1989, 3 September 1990, 1 July 1991 and 21 September 1992, Mr Christie notified Qantas of his election to extend his employment, each time for one year.
On 6 July 1994, Mr Christie wrote to Qantas' Director of Flight Operations in the following terms:
"My current retirement date is 21.9.94 my sixtieth birthday. I believe recent legislation may now override any requirement for a retirement to be based on age. It is my wish to continue flying for Qantas beyond 21.9.94.
I am aware that there may be some restrictions to my flying due to certain overseas regulations, but I am prepared to bid around any such restrictions."
Qantas' Director of Flight Operations also received a letter from Mr Christie's solicitors which made reference to s 170DF(1)(f) of the Act. A response was sent to both Mr Christie and his solicitors which reiterated Qantas' policy of requiring pilots to retire at 60 due to "safety and operational considerations" and stated that it was therefore necessary for Mr Christie's retirement to take effect on 21 September 1994.
Mr Christie ceased employment on that date. He applied to the Industrial Relations Court[41] for a declaration that Qantas had contravened s 170DF(1)(f) of the Act by terminating his employment by reason of his age. Mr Christie also sought consequential orders under s 170EE of the Act requiring his reinstatement and the payment of compensation.
[41]Note that the jurisdiction of the Industrial Relations Court of Australia has been transferred to the Federal Court of Australia since the time of these proceedings: see Sched 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).
The findings of Wilcox CJ
At first instance, Wilcox CJ found against Mr Christie[42]. His Honour made findings on three issues - (1) whether Qantas had terminated Mr Christie's contract ("the contractual issue"); (2) whether there was a medical justification for termination ("the medical issue")[43]; and (3) whether the termination was justified due to problems arising from laws of other countries which prohibited pilots who had attained the age of 60 from entering their airspace ("the operational issue"). Although Mr Christie succeeded on the contractual and medical issues, he failed on the operational issue.
[42]Christie v Qantas Airways Ltd (1995) 60 IR 17 at 57.
[43]The medical issue was not pursued in the Full Court or in this Court.
Wilcox CJ found that Qantas had failed to demonstrate that Mr Christie's employment came to an end through effluxion of time. His Honour held that Qantas had terminated Mr Christie's employment on account of his age[44].
[44](1995) 60 IR 17 at 22.
Although Wilcox CJ found that termination of pilots' employment on the ground of age was "not defensible on medical or safety grounds"[45], his Honour found that s 170DF(2) of the Act prevented Mr Christie's dismissal from being classified as discriminatory. The rostering and bidding system employed by Qantas, together with the effect of the laws which had been enacted in most countries on Qantas' routes to prevent pilots over the age of 60 from entering that country's airspace, meant that it was an "inherent requirement" of Mr Christie's position that he be under the age of 60.
[45](1995) 60 IR 17 at 56.
The findings of the Full Court of the Industrial Relations Court
On appeal, the Full Court of the Industrial Relations Court set aside the order made by Wilcox CJ and made a declaration that Qantas had contravened s 170DF(1)(f) of the Act by terminating the employment of Mr Christie by reason of his age[46]. The Full Court remitted the matter to Wilcox CJ to consider the relief to be granted[47]. A majority of the Full Court (Gray and Marshall JJ, Spender J dissenting) held that age was not an inherent requirement of Mr Christie's position[48]. The majority of the Court (Gray and Marshall JJ, Spender J dissenting) also upheld Wilcox CJ's finding that Mr Christie's contract of employment had been terminated rather than brought to an end simply by the expiration of time[49].
[46]Christie v Qantas Airways Ltd (1996) 138 ALR 19 at 46.
[47](1996) 138 ALR 19 at 46.
[48](1996) 138 ALR 19 at 33, 40.
[49](1996) 138 ALR 19 at 30, 45.
Qantas did not terminate Mr Christie's contract of employment
The first question in the appeal is whether Qantas terminated Mr Christie's employment.
A person's employment is not terminated when it ends by virtue of the effluxion of time. In Victoria v The Commonwealth (Industrial Relations Act Case)[50], Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said:
"There is nothing in the Act to suggest that the words '[a]n employer must not terminate an employee's employment' are to be construed other than in accordance with their ordinary meaning. So construed, they do not apply to the situation where employment comes to an end because its term has expired ... The prohibitions effected by [ss 170DC, 170DE(1) and 170DF] are directed, respectively, to termination for a specified reason and termination for one or more specified reasons, none of which includes the expiry of the employee's term of appointment."
[50](1996) 187 CLR 416 at 520.
In the Act "termination" of employment has the same meaning as in the Termination of Employment Convention[51]. The International Labour Organisation's Termination of Employment Convention 1982 ("the Termination Convention") is reproduced in Sched 10 of the Act. Article 3 provides:
"For the purpose of this Convention the terms 'termination' and 'termination of employment' mean termination of employment at the initiative of the employer."
[51]s 170CB.
In Mohazab v Dick Smith Electronics Pty Ltd (No 2)[52], the Full Court of the Industrial Relations Court interpreted the phrase "termination of employment at the initiative of the employer" in accordance with the general rules of treaty interpretation found in Arts 31 and 32 of the Vienna Convention on the Law of Treaties 1969. The Full Court held[53] that "termination of employment at the initiative of the employer" meant a termination that was brought about by an employer and to which the employee had not agreed. The Court held[54] that a termination occurs when "the act of the employer results directly or consequentially in the termination of the employment". It said[55]:
"That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."
[52](1995) 62 IR 200.
[53](1995) 62 IR 200 at 205.
[54](1995) 62 IR 200 at 205.
[55](1995) 62 IR 200 at 205-206.
Accordingly, Qantas did not terminate Mr Christie's employment. After the age of 60, Mr Christie was unable to remain in the employment relationship because the terms of the 1974, 1981 and 1991 letters were incorporated into his contract by virtue of par 19 of the original conditions of employment. Paragraph 19 provided that the conditions of employment were "to be read in conjunction with and are supplementary to the terms of any enactment industrial agreement or award specifically covering [Mr Christie's] employment". As I have said, the 1974 and 1981 letters had the status of awards subsequent to their certification with the 1986 agreement by the Commission on 19 June 1989. From this point, s 116 of the Act rendered their terms binding not only on the parties to the agreement[56] (Qantas and the AIPIO) but also on Mr Christie as a member of these industrial organisations[57]. Although the 1991 letter was never certified by the Commission, it was clearly an "industrial agreement ... specifically covering [Mr Christie's] employment". It was also incorporated by par 19.
[56]s 116(4)(a).
[57]s 116(4)(b).
It may be that, even prior to the letters of agreement, Mr Christie's contract of employment contained a term that his employment would end at 55. Evidence concerning the Qantas superannuation plan, which was given in the Industrial Relations Court, indicated that Qantas pilots had customarily retired at the age of 55. If a term requiring retirement at the age of 55 could be said to be reasonable and was "so well known as to be properly read into the contract"[58], that term would be incorporated into the contract by implication. When Mr Christie notified his intention to extend his employment beyond the age of 55 on 28 April 1987, he was acting in accordance with the system for the extension of his employment from the age of 55 to the age of 58 which had been established by the 1974 letter. Subsequent notifications were in accordance with the modifications of this system effected by the later letters.
[58]Devonald v Rosser & Sons [1906] 2 KB 728 at 733.
Upon reaching 60, Mr Christie had no legal right to continue in the employment of Qantas. His employment ended when he attained the age of 60 because he and Qantas had agreed that it would end when he reached that age. All the benefits of his employment ended at that age because he had agreed that they would end at that age. Qantas' refusal to employ him past that age was not a termination of employment but a refusal to re-employ him after his employment ended. Nothing in the Act requires an employer of labour to employ a person who is over age 60. To the extent that such a refusal constitutes discrimination on the ground of age, the remedy of the person affected lies in the general anti‑discrimination statutes that are in force in various jurisdictions or not at all.
A finding that Qantas did not terminate Mr Christie's employment does not make the prohibition on age discrimination in s 170DF(1) of the Act meaningless. The argument that "there would be no work for s 170DF(1) to do" unless a finding of discrimination is made in this appeal is unpersuasive. Many examples can be given of cases of termination that would offend against the age discrimination clause of the Act. Probably, the commonest case of such discrimination is one where the employee is terminated because he or she is "too old".
Accordingly, the prohibition on discrimination in s 170DF(1) is inapplicable because Qantas did not terminate Mr Christie's employment[59]. In my opinion, that prohibition is also inapplicable because Mr Christie's age was an "inherent requirement of the position" within the meaning of s 170DF(2) of the Act. As a result, Qantas was entitled to terminate Mr Christie's employment when he reached the age of 60 even if the contract of employment did not end by effluxion of time.
[59]If a majority of this Court had found that Qantas had not terminated Mr Christie's employment, it would have been necessary to consider the applicability of Pt 4E of the Anti-Discrimination Act 1977 (NSW). However, in view of the majority position and the need for further argument before this issue could be determined, it is unnecessary to deal with the position under the State legislation.
The construction of s 170DF(2) of the Act
Although s 170DF(1)(f) prohibits termination of employment for reason of age, s 170DF(2) makes this prohibition inapplicable where the reason for termination is based on "the inherent requirements of the particular position", a phrase whose meaning is to be ascertained by reference to its meaning in the Convention provisions which are the basis of the termination of employment provisions of the Act[60]. The relevant Convention provision[61] is Art 1(2) of the International Labour Organisation's Discrimination (Employment and Occupation) Convention 1958[62] ("the Discrimination Convention"). It provides[63]:
"Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination." (my emphasis)
[60]Gerhardy v Brown (1985) 159 CLR 70 at 124; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381 at 383, 388, 419; 142 ALR 331 at 332, 339, 383.
[61]See s 170CA(2) of the Act.
[62]Reproduced in Sched 1 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
[63]Paragraph 1(2) of the Discrimination (Employment and Occupation) Recommendation, which is reproduced in Sched 9 of the Act, is in similar terms. It states that "[a]ny distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof is not deemed to be discrimination". (my emphasis)
The words of s 170DF(2) differ from those of Art 1(2) of the Discrimination Convention in that s 170DF(2) refers to a "particular position" rather than to a "particular job". Qantas asserts that this is a material distinction and that the interpretations of Art 1(2) which require a narrow reading of that article[64] are not applicable to s 170DF(2). In the Full Court of the Industrial Relations Court, Marshall J rejected this submission. His Honour held that Art 1(2) of the Discrimination Convention and s 170DF(2) of the Act are "materially indistinguishable"[65].
[64]See the Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organisation to examine the observance of the Discrimination (Employment and Occupation) Convention, 1958 (No 111), by the Federal Republic of Germany, ILO Official Bull, Supp 1, (Series B) (1987), vol 70 at par 530.
[65](1996) 138 ALR 19 at 36.
In my opinion, however, there is a distinction between a person's job and a person's position and that distinction may sometimes prevent the Convention jurisprudence on Art 1(2) from being applicable. The term "a particular job" in Art 1(2) of the Discrimination Convention has been construed by reference to the preparatory work and the text of the Convention to mean "a specific and definable job, function or task" and its "inherent requirements" those "required by the characteristics of the particular job"[66]. A person's job is therefore primarily concerned with the tasks that he or she is required to perform. No doubt the term "job" is often used to signify a paid position of employment. But in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks that the person must perform. A person's position, on the other hand, is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position.
[66]International Labour Office, General Survey: Equality in Employment and Occupation, (1988) at par 126.
In most cases, the distinction between the requirements of a position and the requirements of a job will be of little significance. But it is a mistake to think that there is no distinction between "a particular position" and "a particular job". In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the "job" of President if that term refers to the work done by the President.
The "inherent requirements" of Mr Christie's "particular position"
Mr Christie's "job" was to captain international flights[67]. His "position" was Captain of Qantas B747-400 aircraft flying internationally. What is an inherent requirement of the position of Captain of such an aircraft is not necessarily an inherent requirement of the tasks that the Captain performs, and an inherent requirement of the tasks of that Captain is not necessarily an inherent requirement of the position. In the report of the International Labour Organisation's Commission of Inquiry into the observance of the Discrimination Convention by the Federal Republic of Germany[68], "inherent" was interpreted to mean "existing in something as a permanent attribute or quality; forming an element, especially an essential element, of something; intrinsic, essential". The term "inherent" in s 170DF(2) should be given the same meaning. Importantly, for the purposes of this case, that which is essential to the performance of a particular position must be regarded as an inherent requirement of that position. Thus, in Cramer v Smith Kline Beecham[69], Ryan JR held that the termination of employees at a chemical plant who were penicillin sensitive was not in contravention of s 170DF(1)(f), which prohibits termination by reason of physical disability. The Judicial Registrar found[70] penicillin tolerance to be an inherent requirement of working in a chemical manufacturing plant. Tolerating penicillin was an essential attribute of being employed in "the particular position".
[67]See par 2 of the letter of appointment and s 5(e) of the 1986 agreement as set out in the judgment of Gummow J.
[68]Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organisation to examine the observance of the Discrimination (Employment and Occupation) Convention, 1958 (No 111), by the Federal Republic of Germany, ILO Official Bull, Supp 1, (Series B) (1987), vol 70 at par 531.
[69]Unreported, Federal Court of Australia, 2 July 1997.
[70]Unreported, Federal Court of Australia, 2 July 1997 at 5.
Qantas submitted that it was an inherent requirement of the position of a Captain of a Qantas B747-400 aircraft flying internationally that the holder of that position be under 60 years of age. Qantas contended that age was an inherent requirement of the position because the Captain of a Qantas B747-400 - indeed any pilot - over the age of 60 years is prohibited from entering the airspace of the countries on Qantas' overseas routes by the laws of those
countries. Indonesia[71], Fiji[72] and New Zealand are the only exceptions to the prohibition. Except for those three countries, the countries to or through which Qantas flies are parties to the Convention on International Civil Aviation. That Convention prohibits State parties from allowing a pilot who has attained the age of 60 to act as a pilot in command of an international air service[73]. Articles 39(b) and 40 of the Convention give State parties the power to refuse entry to aircraft piloted by a person 60 years of age or older. Qantas contended, therefore, that the position of a Captain of a Qantas B747-400 aircraft flying internationally could only be held by a person under 60 because the holder of that position had to fly to foreign countries which were parties to the Convention on International Civil Aviation. Whatever might be the case with other pilots and other airlines, Qantas argued, the Captain of a Qantas B747-400 flying internationally had to be under 60 to hold that "particular position". Being under 60 years of age was therefore an indispensable incident of that "particular position". To employ somebody in that position who was over 60 would result in a change in the essential nature of the position.[71]Denpasar in Bali.
[72]Note that Wilcox CJ recognised that even Fiji might present a problem, because flight crews are often required to proceed from Fiji to the United States, which is a strong adherent of the "Age 60 Rule": see (1995) 60 IR 17 at 54.
[73]Standard 2.1.10.1 in Annex 1 to the Convention.
The argument for Qantas placed much weight on the practical difficulty that would confront it if it had to employ persons over the age of 60 in the position of a Captain of a B747-400 flying internationally. Qantas allocates international flights to its pilots by means of a preferential bidding system. Flight schedules are devised by allocating specific aircraft to specific flights. The flight schedules are then put through a computer program which produces slip patterns. One slip pattern is produced for each trip; the slip patterns are then combined to form an eight week bid package. The bid package shows all the trips available in an eight week period for each aircraft and rank of pilot. Pilots then use the bid package to submit their bids for the slip patterns they wish to work on in each period. Certain restrictions operate on a pilot's choice of slip patterns - pilots cannot bid for any more than two one-day trips in an eight week bid period and each pilot is required to fly approximately 170 hours per bid period. The rationale behind the limited number of short trips per pilot is that the short trips are used to make up shortfalls in each pilot's bidding total and therefore have to be shared. Bids are determined in accordance with seniority. At the completion of bidding, a further computer program allocates slip patterns to each pilot.
Qantas claimed that Mr Christie's inability to fly on any flights except those to Indonesia, New Zealand and Fiji, all of which were short flights, could not be accommodated by its bidding system. Because the short flights were used by all pilots to round their flying hours up to the required number, if all such flights were allocated to Mr Christie, the remaining pilots would be under-utilised. Qantas claimed that to employ Mr Christie to operate short flights only would result in Qantas paying him to do work which the remaining pilots would otherwise have undertaken. The position would worsen if other pilots over the age of 60 also had to be employed on the Indonesian, New Zealand and Fiji routes. Indeed, the Full Court recognised that Mr Christie "was no longer able to do a large part of what his job previously required him to do"[74].
[74](1996) 138 ALR 19 at 27 per Spender J.
Qantas claimed that the problems occasioned by the retention of Mr Christie beyond the age of 60 therefore extended beyond matters of mere administrative inconvenience and expense to strike at the core of the system by which Qantas utilised its pilots. This system was described by Wilcox CJ as "the only way of ensuring fairness between employees"[75]. Mr Christie, on the other hand, contended that the international restrictions to which he was subject could or should be accommodated by modifications to Qantas' bidding system, so that being under the age of 60 was not "an essential element" of his employment.
[75](1995) 60 IR 17 at 56.
Anti-discrimination legislation serves a vital purpose within the community, reflecting standards and values demanded by a society striving for fairness and egalitarianism. But the Act is not a general anti-discrimination statute although its objects include "ensuring that labour standards meet Australia's international obligations"[76] and "helping to prevent and eliminate discrimination on the basis of ... age"[77]. The objects of a federal Act must always be considered when interpreting any of its provisions and, so far as possible, its provisions should be given a meaning consistent with its objects[78]. That being so, in interpreting s 170DF of the Act, courts must endeavour to give full effect to the legislature's prohibition on discrimination in situations where a person's employment is terminated. However, the effect of s 170DF(2) is that a termination of employment "based on the inherent requirements of the particular position" is non-discriminatory. No doubt, having regard to the objects of the Act, a court should not give the exception in s 170DF(2) an expansive interpretation. Nevertheless, if a requirement falls within the natural and ordinary meaning of the exception, it must be regarded as non-discriminatory for the purposes of the Act.
[76]s 3(b)(ii) of the Act.
[77]s 3(g).
[78]Waters v Public Transport Corporation (1991) 173 CLR 349 at 359.
Furthermore, although the prohibition in s 170DF(1) must be given a liberal interpretation, that liberal interpretation operates in the context of a free enterprise system of industrial relations where employers and employees have considerable scope for defining their contractual rights and duties. Nothing in s 170DF(1), for example, prevents the employer from defining the tasks of or the qualifications for a particular position or requires that they be delineated in a particular way. If by reason of a particular delineation of the requirements of a particular position, age is an inherent requirement of that particular position, the employer commits no breach of s 170DF(1) if he terminates the employment for reasons of age. There is nothing in the Act equivalent to Pt IVA of the Income Tax Assessment Act 1936 (Cth), nothing that invalidates a contract or arrangement whose purpose or effect is to avoid the operation of s 170DF(1). The contract of employment, expressly or by implication, defines the position of each employee and the requirements of that position.
In Commonwealth of Australia v Human Rights and Equal Opportunity Commission[79], Cooper J considered the operation of s 15(4)(a) of the Disability Discrimination Act 1992 (Cth)[80]. That section relevantly provides:
"Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training ... and all other relevant factors that it is reasonable to take into account, the person because of his or her disability;
(a)would be unable to carry out the inherent requirements of the particular employment."
Cooper J said[81]:
"The inherent requirement[s] of a particular employment are the necessary tasks required to be performed and the personal characteristics or qualifications, if any, required by the employer, divorced of any requirement or condition the enforcement of which would constitute discrimination against a person".
[79](1996) 70 FCR 76.
[80]Like s 170DF(2) of the Act, s 15(4) of the Disability Discrimination Act 1992 (Cth) is based on the Discrimination Convention.
[81](1996) 70 FCR 76 at 87.
It is unnecessary to determine whether this statement correctly construes s 15(4)(a). But given the structure of s 170DF, it is not correct to say that the "inherent requirements of a particular [position] are the necessary tasks ... divorced of any requirement or condition the enforcement of which would constitute discrimination against a person". This is because s 170DF(2) operates on the assumption that what is in fact discrimination on the ground of age is not discrimination for the purposes of the section. Other statements by his Honour in that case, however, are applicable to s 170DF. Thus, his Honour said[82] that whether a requirement was an inherent requirement of a particular employment was a matter which should be determined according to the dictates of common sense and as a matter of objective fact rather than as a matter of mere speculation or impression.
[82](1996) 70 FCR 76 at 88.
Courts in the United States have also considered a counterpart of s 170DF(2) found in legislation which provides that termination for otherwise discriminatory reasons will be non-discriminatory where the termination relates to a "bona fide occupational qualification" and/or requirement[83]. However, the variance in expression between this phrase and the phrase employed in the Act, as well as the structure of s 170DF, means that judicial interpretations of the phrase are of limited assistance in construing s 170DF, particularly as the United States legislation goes so far as to require the bona fide occupational qualification or requirement to be "reasonably necessary to the normal operation" of the particular business.
[83]See, for example, the Age Discrimination in Employment Act of 1967, 29 USC § 623(f)(1) and the Civil Rights Act of 1964, 42 USC § 2000e-2(h).
Decisions of US courts emphasise that, when interpreting provisions which render otherwise discriminatory behaviour non-discriminatory, regard should be had not only to the situation of the employer and employee but also to the needs of third parties. For example, the Supreme Court of the United States has used the "bona fide occupational qualification" defence to uphold an employer's decision to hire male guards only in contact areas of maximum-security prisons[84] and an airline's decision to dismiss flight attendants at different points during the first five months of their pregnancy[85]. These cases involved a consideration of the needs of prison inmates and airline passengers respectively. However, the different language of s 170DF provides no ground for considering the needs of third parties - in this case Qantas' other employees, who presently operate under a bidding system which allocates flights in a fair and just manner.
[84]Dothard v Rawlinson 433 US 321 at 336-337 (1977).
[85]Condit v United Air Lines, Inc 558 F 2d 1176 (1977), 435 US 934 (1978); In re National Airlines, Inc 434 F Supp 249 (1977); Harriss v Pan American World Airways, Inc 649 F 2d 670 (1980); Burwell v Eastern Air Lines, Inc 633 F 2d 361 (1980), 450 US 965 (1981).
It is no doubt true that, if Qantas was ordered to accommodate not only Mr Christie, but all other pilots who reach the age of 60 and wish to remain in employment, the order would detrimentally affect both the way Qantas manages its operations and the employment conditions of pilots under age 60. At first instance Wilcox CJ said that there were "serious practical difficulties"[86] associated with requiring Qantas to modify its operations in the way contended for by Mr Christie. In order to avoid under-utilisation of its staff, Qantas would need to change "the very nature" of its operations, an outcome which has been eschewed by the United States Supreme Court in its interpretations of the bona fide occupational qualification defence[87]. But such problems are irrelevant to the issue of what is inherent in the "particular position" of the Captain of a Qantas B747-400 flying internationally. If age is not an inherent requirement of the position, termination on the ground of age is a breach of s 170DF. That being so, inconvenience to Qantas or third parties from any order of the Industrial Relations Court is an inevitable by-product of the effect of the ordinary and natural meaning of s 170DF.
[86](1995) 60 IR 17 at 56.
[87]Price Waterhouse v Hopkins 490 US 228 at 242 (1989); Automobile Workers v Johnson Controls, Inc 499 US 187 at 218 (1991).
Nevertheless, the conclusion that it was an inherent requirement of Mr Christie's position as a Qantas Captain of international B747-400 flights that he be able to fly to a reasonable number of Qantas' numerous overseas destinations is inescapable. It was plainly an "inherent requirement" of the position of such a Captain that he or she should have the capacity (physically, mentally and legally) to fly B747-400 flights to any part of the world. That was an indispensable requirement of the position. Having regard to the fact that pilots over 60 are unable to fly over the greater portion of Qantas routes, it is an essential incident of that requirement and therefore an inherent requirement of the position of Captain that the holder be under 60. If Qantas had to employ persons over the age of 60 in the position of a Captain of a B747-400 flying internationally, the inherent requirements of the position of Captain of such an aircraft would be very different. It is true that a contractual requirement does not necessarily equate to an "inherent" requirement. However, it was essential that, at the very least, a pilot in Mr Christie's position should be able to operate a sufficient number of flights to meet the requirements of his employment with Qantas as an international pilot. It is probably the case, having regard to the terms of the employment contract, that the Captain of a Qantas B747-400 flying internationally should be able to fly to every Qantas destination. It is unnecessary, however, to decide that point in this case.
When Mr Christie turned 60, he was unable to perform a large and essential part of his duties. Whether an inherent requirement of his position is identified by reference to his age or merely by reference to an ability to fly to a reasonable number of Qantas' overseas destinations is immaterial, as the former necessarily incorporates the latter. It is unnecessary to determine what conclusion might be reached if only a small number of countries imposed the 60 year age ban. The ability to fly to most of Qantas' overseas destinations is a requirement which was, to use the words of Cooper J in Commonwealth of Australia v Human Rights and Equal Opportunity Commission[88], "truly necessary to ensure the adequate performance of the employment".
[88](1996) 70 FCR 76 at 88.
Order
The appeal should be allowed with costs. The orders of the Full Court of the Industrial Relations Court should be set aside. In lieu thereof, the appeal to that Court should be dismissed with costs.
GUMMOW J. The facts giving rise to the controversy between the parties and the course of the litigation in the Industrial Relations Court of Australia[89] ("the Industrial Relations Court") are described in the judgments of McHugh J and of Kirby J and need not be repeated in any detail.
[89]Christie v Qantas Airways Ltd (1995) 60 IR 17 at first instance and Christie v Qantas Airways Ltd (1996) 138 ALR 19 on appeal to the Full Court.
On 4 October 1994, the respondent ("Captain Christie") filed an application in the Industrial Relations Court under s 170EA of what was then the Industrial Relations Act 1988 (Cth) ("the Act")[90]. Section 170EA(1) provided that:
"A person ('the employee') may apply to the Court for a remedy in respect of termination of his or her employment."
Section 412(1)(a) of the Act conferred jurisdiction upon the Industrial Relations Court "with respect to matters arising under [the Act] in relation to which ... applications may be made to it under [the Act]".
[90]The short title to that Act was changed to the Workplace Relations Act 1996 (Cth) by Sched 19 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). Schedule 16 thereof provides for the transfer of jurisdiction to the Federal Court of Australia. This appeal concerns the Act as it stood after the commencement on 18 August 1994 of certain provisions of the Industrial Relations Legislation Amendment Act 1994 (Cth).
The relief sought by Captain Christie included an order declaring that the termination of his employment by the appellant ("Qantas") contravened Div 3 of Pt VIA of the Act. Division 3 comprised ss 170CA‑170HB. Provision for the Court to grant declaratory relief was made by s 417 of the Act. The Full Court made a declaration that Qantas "has contravened section 170DF(1)(f) of the [Act] by terminating the employment of [Captain Christie] by reason of his age" and ordered that the matter be remitted for consideration of the making of orders pursuant to s 170EE.
Sections 170EE and 170EDA are provisions of central importance for this case. Section 170EE applied in respect of a contravention of a provision of Div 3 (other than s 170DB and s 170DD) which was "constituted by the termination of employment of an employee" (s 170EE(1)). The Industrial Relations Court was empowered to make various orders, including an order requiring the employer to reinstate the employee and an order for payment of compensation. Sections 170DB and 170DD have no relevance for the present case.
The termination point may be readily disposed of. The findings made sustain the conclusion that Qantas terminated Captain Christie's employment for the reason of age. This is hardly a surprising conclusion given Qantas' unyielding insistence upon the criterion of age and its determined, but ultimately unsuccessful, attempt to justify its stand by reference to medical and safety considerations.
The original contract between Qantas and Captain Christie contained no term as to its duration. It was therefore to continue indefinitely, subject to the right of both parties to terminate it. If this contractual position remained unchanged, there is no doubt that the event which brought it to a close in 1994 was the unilateral act of Qantas. By his letter of 6 July 1994, Captain Christie made it plain that he wished to continue flying beyond his sixtieth birthday. He invited Qantas to agree. It did not. It enforced the Rule of 60. It ascribed that course to "the International Airline Pilots' Agreement and the Company's policy". Upon this basis, the end of the employment came about by the decision of the employer. It was contrary to the wishes of the employee.
It is a precondition of the application of the Act, as of the Termination of Employment Convention, that the termination must be by the employer[205]. In the field of termination of employment litigation, there are many cases where the dispute has concerned whether the action of the employer was the "principal contributing factor which leads to the termination of the employment relationship"[206]. In such cases courts seek to discover where the initiative for ending the employment relationship arose and specifically whether the employee voluntarily left[207]. In the instant case, unless the legal position was altered by supervening industrial agreements or by the "elections" signed by Captain Christie, the situation at the end of the employment relationship was the same as that established by the letter of appointment. Either party could terminate. Qantas exercised that right. Such an analysis would scarcely be surprising given that, at the time the initial agreement was reached, there was no legal or other inhibition upon Qantas' right to terminate the employment of a pilot by reference to his age and that alone.
[205] See s 170CB referring to the ILO Termination of Employment Convention and 170DF(1).
[206]Mohazab v Dick Smith Electronics Pty Ltd(No 2) (1995) 62 IR 200 at 205.
[207] Mohazab v Dick Smith Electronics Pty Ltd(No 2) (1995) 62 IR 200 at 204-208; see also Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 at 374; McCarry, "Constructive Dismissal of Employees in Australia" (1994) 68 Australian Law Journal 494 at 495.
Qantas argued that legal analysis of the employment contract between itself and Captain Christie indicated that, between the original contract and the ultimate "retirement", a condition was incorporated whereby both parties agreed that Captain Christie would retire at the age of sixty. This argument was advanced on several bases. It was suggested that the reference in the original contract to "the terms of any enactment, industrial agreement or award specifically covering your employment" incorporated the successive agreements made with the pilots' association of which Captain Christie was a member. The terms of the letters of agreement of 1974 and 1991 are contained in the reasons of Marshall J in the Full Court[208]. The earlier document, providing for extensions up to the pilot's fifty-eighth birthday, did not become a term of Captain Christie's contract of employment. It was not shown that the agreement had been certified under the Act, or the Conciliation and Arbitration Act 1904 (Cth), so as to give it binding force by statute. It was never expressly agreed to by Captain Christie. When it was made (and varied) there was nothing to suggest that the original agreement was not workable and effective. Nor was it shown that the agreement required an additional condition to be imported to avoid depriving the contract of its substance and value[209]. If this is true of the terms of a collective bargain which favoured the interests of an employee at the expense of those of the employer[210], the converse must equally be true of a provision having the reverse effect. There was no basis for treating the provision of the agreement between Qantas and the pilots' association as a "crystallised custom" implied, for that reason, as a term of the contract of employment[211].
[208](1996) 138 ALR 19 at 41-43 (1974 letter); 44-45 (1991 letter).
[209]Byrne v Australian Airlines Ltd (1995) 69 ALJR 797 at 819; 131 ALR 422 at 452.
[210]Byrne v Australian Airlines Ltd (1995) 69 ALJR 797 at 802; 131 ALR 422 at 429.
[211] Byrne v Australian Airlines Ltd (1995) 69 ALJR 797 at 801-802; 131 ALR 422 at 428-429.
The express extension of Captain Christie's service after his fifty-fifth birthday, although in apparent conformity with the 1974 agreement, was, in law, unnecessary. The attempt to introduce a retirement age into the initial agreement with Qantas was never effective. It is true that in 1989 the Australian Industrial Relations Commission certified an agreement between the pilots' association and Qantas[212]. By force of the Act[213], such an agreement would, so far as relevant, have been binding on Captain Christie as a member of the pilots' association. However, that certified agreement merely reproduced the 1974 agreements as later renewed (most recently in 1981). As at the date of the certification, that agreement, so far as it purported to introduce a retirement date into Captain Christie's agreement with Qantas, had not become part of his contract of employment. It did not do so by virtue of certification.
[212]International Airline Pilots' Agreement 1986.
[213]s 149(2).
The later (1991) agreement between Qantas and the industrial organisation was not certified. Captain Christie obviously knew of its existence. His "elections" to extend his retirement, eventually up to his sixtieth birthday, appear on a form provided by Qantas. That form was obviously prepared in reliance upon the agreement. But this conduct is also insufficient to signify an agreement by Captain Christie to include the retirement date in his contract with Qantas. Once again, the so-called "elections" were legally unnecessary because Captain Christie's initial agreement was for employment until terminated. The "elections" might have been administratively convenient to Qantas. But they could not alter, without Captain Christie's consent, the terms of his initial engagement. The "elections" fall short of indicating such consent. They were based on Qantas' misunderstanding of the position between it and Captain Christie. Nor was that position affected by any estoppel preventing Captain Christie from relying on his original contract. By filling in the form provided by Qantas in the successive years after his fifty-fifth birthday, he was merely conforming to Qantas' internal procedures. He was not promising to retire at age sixty. Had a further form been submitted to him, in or before 1994, there can be no doubt that he would have filled this in to extend to his sixty-first and later birthdays. But it would not have changed the basis of the contract.
Even supposing that Captain Christie's contract did contain a term to the effect that it would end when he attained the age of sixty, further questions would have to be answered. Does the fact that a contract is expressed to expire when the employee reaches a given age take the contract outside the termination provisions in the Act? Is such a contract more akin to one that is to expire upon a certain date, or to one that is to end only upon the happening of a certain event?
In support of the former proposition, McHugh J has referred in his reasons to a passage in Victoria v The Commonwealth (Industrial Relations Act Case)[214]. In my view, the majority in that case should not be taken to be referring to contracts expressed to expire upon the employee's reaching a certain age. The employee's age, as such, should correctly be characterised as a matter "unconnected with the term of employment"[215]. A term specifying that the contract is to end when the employee attains a specified age is, in my view, analogous to one which requires that the contract will end upon the employee's becoming pregnant. It falls within the protective provisions of the Act. Whether that result can be circumvented by calculating the duration of the contract in terms of the employee's birth date is a question well beyond the scope of this appeal. However, the interpretation of the Act contended for by Qantas would undermine the achievement of the object of the Act. That object is not only to redress age discrimination where it occurs[216]. It is also to "prevent and eliminate discrimination on the basis of ... age"[217]. Compulsory retirement by reference to age is the principal mischief at which the inclusion of "age" in the list of prohibited grounds of discrimination was targeted[218].
[214](1996) 187 CLR 416 at 520.
[215](1996) 187 CLR 416 at 520.
[216]By the operation of ss 170DF and 170EE.
[217]s 3(g).
[218] cf McMorrow "Retirement Incentives In The Twenty First Century: The Move Toward Employer Control Of The ADEA" 31 University of Richmond Law Review 795 at 813 (1997); see also Eglit, "Age Discrimination in Employment Act" 31 University of Richmond Law Review 579 at 629 (1997) which notes that involuntary age-based retirement is now "virtually outlawed" by the Age Discrimination in Employment Act of 1967 (US).
It follows that, even had a term requiring retirement at the age of sixty been successfully incorporated into Captain Christie's contract, there would still have been a "termination" by Qantas. The termination point, establishing the jurisdiction of the Industrial Relations Court, was properly found in Captain Christie's favour.
Inherent requirements of the particular position
I reach the difficult point in this appeal. The arguments which support the construction urged for Qantas found favour with two of the judges below[219]. There is no merit in Qantas' suggestion that the Full Court erred in disturbing a conclusion resting on the advantages which the trial judge enjoyed in evaluating Qantas' rostering system[220]. The question was not one which required evaluation of rostering but rather an identification of the "particular position" in question and then, for the purposes of s 170DF(2) an identification of the "inherent requirements" of that position. It is essential to give full meaning to the word "inherent". This must be done in the context of statutory provisions designed to forbid the termination of the employment of employees for specified reasons, including age.
[219] Christie v Qantas Airways Ltd (1995) 60 IR 17 at 56 per Wilcox CJ; (1996) 138 ALR 19 at 27 per Spender J (diss).
[220]Relying on Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178.
In comparison with Convention 111, the Act laid greater emphasis upon the specific tasks in question. However, this distinction is less important than Qantas argued. A report to the International Labour Conference of the Committee of Experts surveying the operation of Convention 111 and Recommendation 111 makes it plain that the language of the latter already required that attention be given to the essential tasks of the job in question[221]. According to one report, apparently approved by the experts, the enterprise "may base job requirements only on the job's essential tasks". Therefore, the Convention and Recommendation, as interpreted, appear to involve the same particularity as Qantas urged to be necessary to the meaning of s 170DF(2) of the Act.
[221] International Labour Office, Equality in Employment and Occupation: General Survey of the Reports on the Discrimination (Employment and Occupation) Convention (No 111) and Recommendation (No 111), 1958, Report III (Part 4B) (1988) at par 132; cf at 133.
Qantas submitted that the majority in the Full Court had wrongly identified the "particular position" as no more than that of a "pilot" or "B747-400 pilot". If that had been done, it would indeed have been a mistake. Clearly, the "position" which Captain Christie enjoyed at the time of his termination was that of a B747‑400 pilot employed by Qantas to fly international routes as required by it. But that leaves the identification of "the inherent requirements" of such position. It is here, I believe, that Qantas' arguments fall down. My reasons are as follows:
1.The adjective "inherent" qualifies the noun "requirements". The meaning to be given to the word "inherent" may be assisted by resort to dictionaries of the English language. The Oxford Shorter English Dictionary defines "inherent" as "sticking in; fixed, situated, or contained in something ... existing in something as a permanent attribute or quality; forming an element, esp an essential element, of something; intrinsic, essential". The Macquarie Encyclopaedic Dictionary of Australian English confirms the notion of the permanency of the inherent characteristic. "Inherent" is defined as "existing in something as a permanent and inseparable element, quality, or attribute". These dictionary meanings reinforce my own understanding of the word. They are appropriate to the context of s 170DF(2) of the Act. Thus the "inherent requirements" of the particular position must be those which can be regarded as permanent and integral. This fits comfortably with the case law to which Gummow J has referred. The requirements are not those which are transient, subject to change, geographically limited or otherwise temporary. The word "inherent" imports those features of the requirements for the particular position as are essential to its very nature.
2.This differentiation between "inherent" and "non-inherent" requirements is particularly appropriate to the context of s 170DF(2) for two reasons. The first is a verbal reason. If it had been intended to permit transient or changing requirements to be taken into account, it would have been possible for the drafter to drop the word "inherent", in the present context. There is no doubt that the "requirements of the particular position" which Captain Christie held included the requirements that he be able to fly a B747-400 aircraft anywhere in the Qantas network. But it is necessary for the word "inherent" to be given work to do. This enlivens the second argument. It is one derived from the context. The purpose of identifying the prohibited reason of discriminatory termination is obviously to prevent such decisions being made on arbitrary or stereotyped grounds, including by reference to age[222]. The provisions of s 170DF(2) must be read in such a way that the sub-section does not undermine the achievement of that purpose. That is why the adjective "inherent" has been added. It is not any "requirement of the particular position" which will prevent a matter from constituting an unlawful reason for termination of employment. To be within the sub-section, it is necessary to show that the requirements of the particular position relied upon are inherent, ie that they involve permanent features of the position and thus not such features as vary in time and place.
3.When the phrase, so understood, is applied to the evidence as found in this case, even when the definition of the "particular position" is extended to that of an international pilot flying B747-400 aircraft for Qantas, it cannot be said that the "inherent requirements" of that position exclude reaching a given age. Numerous elements of the evidence demonstrate that this is so. The age of sixty can scarcely be described as "permanent". The evidence shows that the retirement age for Qantas pilots has varied over time, including by the increase from fifty-five to sixty years during Captain Christie's service[223]. The same aircraft may be flown domestically by a pilot as a sector of an international trip. Accordingly, the "requirements" are not "inherent" at that time. The evidence also demonstrated that for some international routes there was no impediment by reference to the Rule of 60. The disqualification upon the pilot is thus shown to be connected with geography and rostering. It is not an "inherent", ie a permanent, requirement of the particular position.
4.This approach to s 170DF(2) of the Act is confirmed if the requirements of the sub-section are contrasted with the language used in the legislation of other jurisdictions providing for exceptions from the primary prohibition on termination of employment for discriminatory reasons. Thus the Sex Discrimination Act 1975 (UK) introduced an exception for the case where "[b]eing a man is a genuine occupational qualification" because "the essential nature of the job calls for a man for reasons of physiology", authenticity or because the job needs to be done by a man to preserve decency or privacy[224]. In the United States of America, the exception is commonly expressed in terms where the prohibited ground "is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business"[225]. The introduction of notions of reasonable accommodation in such legislation permits courts to evaluate the burdens which it would be appropriate to impose upon employers for the achievement of the objectives of the legislation[226]. Such notions introduce less stringent standards than appear in s 170DF of the Act. There, the Australian Parliament has prohibited an employer from terminating an employee for specified reasons, including age. It has given relief from that prohibition but only if the reason for termination is based "on the inherent requirements of the particular position". There is no mention of bona fides. There is no reference to reasonableness. There is no consideration of business necessity. Operational requirements (referred to in the immediately preceding section) are not an excuse. Instead, attention is focused upon the inherent, ie permanent, requirements of the particular position. In the face of the evidence accepted in the present case, it would be a bold person who asserted that being under the age of sixty was a permanent requirement of the particular position which Captain Christie enjoyed at termination. It is a present requirement. But, even then, only in some parts of the world. It is not a requirement for domestic sectors or for certain international flights. It cannot therefore be described as an "inherent" requirement of the position.
5.It seems clear from the heading which the primary judge used, in that part of his reasons where he came to his ultimate conclusion on this point ("The operational issue"[227]) that he took a different view of the meaning of "inherent". He regarded operational considerations as being involved in the "inherent requirements" of the particular position in question. In this, with respect, he erred. I agree with the majority of the Full Court. Any doubts about this conclusion are dispelled by contrasting ss 170DE and 170DF. Whilst it is true, as Qantas argued, that care must be exercised in the use of the expressio unius rule of construction[228], the particular mention of "operational requirements" in the immediately preceding section suggests (as the context of s 170DF confirms) that the anti-discrimination provisions were not to be watered down by reference to "operational requirements". If such factors could be cited in the case of age, they could equally be invoked for the other grounds in s 170DF(1). This would significantly erode the protections enacted. Operational requirements would be invoked to justify discriminatory terminations of employment on the grounds of sex, family responsibilities, pregnancy and so on. The law would return to the excuses of lack of toilets or other facilities which formerly met claims of discrimination. I agree with Marshall J in the Full Court[229]:
"The very characterisation of the issue by Wilcox CJ as 'an operational issue' illustrates, with respect, an incorrect approach to the resolution of the issue. A matter that goes to operational requirements is not necessarily a matter that bears upon the inherent requirements of the particular position".
I also agree with Marshall J's remark[230] that the logical consequence of Qantas' position was that Qantas would be entitled to terminate the employment of all of its female pilots if one or more foreign countries on its routing would not permit them to fly into their airports. Similarly if particular nations decided that pilots of a sexual orientation ("sexual preference") to which they objected would not be permitted to land aircraft at their airports or fly through their airspace. To allow such discrimination to operate would be to defy the purposes of the Act and of the international law to which it gives effect. This point was never satisfactorily answered by Qantas.
6.So far as the suggestion that Captain Christie is in a different class because of the large number of routes which he cannot now fly and that somehow this converts "requirements of the particular position" to "inherent" requirements, I consider that the answer given for the employee was entirely persuasive. Such considerations under the Act arise not at the point of determining whether the Act has been breached but when the court turns to consider the relief which it should order as "appropriate in all the circumstances of the case"[231]. That point has not been reached in this case because of the conclusion of the primary judge, that considerations of the practicability or impracticability[232] of reinstatement did not arise. It is possible that the court of trial could be convinced that reinstatement of Captain Christie is not practicable having regard to the amount of flying which he could perform, even if modifications of the rostering system were introduced to respond to his needs and those of other pilots in the same position after their sixtieth birthdays. But if reinstatement were not ordered, questions of compensation and damages[233] would remain. By such means a court could still vindicate the provisions of the Act although in circumstances which took into account the mitigating factors, including some of those upon which Qantas relied.
[222] International Labour Conference, Equality in Employment and Occupation: General Survey of the Reports on the Discrimination (Employment and Occupation) Convention (No 111) and Recommendation (No 111), 1958, Report III (Part 4B) (1988) at par 132.
[223] Human Rights and Equal Opportunity Commission, Report of Inquiry into Complaints of Discrimination in Employment and Occupation: Compulsory Age Requirement (HRC Report No 1) (1996) at 34.
[224] s 7(2). Discussed in Director-General Department of Community Services v Bowie (1990) 1 WAR 480 at 485-486; cf United States v Virginia 135 L Ed 2d 735 (1997).
[225] Age Discrimination in Employment Act of 1967: 29 USC §623(f)(1) (age discrimination); cf Civil Rights Act of 1964: 42 USC §2000(e)-2(e).
[226] Western Air Lines Inc v Criswell 472 US 400 at 407-408 (1985); Automobile Workers v Johnson Controls Inc 499 US 187 at 215 (1991).
[227]Christie v Qantas Airways Ltd (1995) 60 IR 17 at 53.
[228] Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94.
[229](1996) 138 ALR 19 at 40.
[230](1996) 138 ALR 19 at 39.
[231]s 170EE(1).
[232]s 170EE(2).
[233]s 170EE(3) and (5).
Unless the foregoing approach to the construction of the Act is adopted, there is a real risk that "operational issues" or "operational requirements" will be elevated to "inherent requirements" of particular positions to the destruction of the high purpose to which s 170DF of the Act is directed. Only by upholding the application of the Act is it likely that the employer would be persuaded to lend its support to the international review of the arbitrary and discriminatory standards of ICAO which help to sustain the attitudes of aviation authorities in some overseas countries in the Qantas network. The primary judge found that ICAO's standard was not justified by the medical or safety evidence which Qantas called. International law has advanced since the ICAO standard was first drawn up. So have the available physiological and psychological tests for determining pilot capability. So has the law of this country. Arbitrary standards should be replaced by rational criteria freed from stereotyping. That is the purpose of the Act. Until it is given effect by the courts, it is clear enough that there will be no real stimulus to Qantas either to promote change internationally or so to alter its international and domestic system as to conform to the anti-discrimination principles which the Australian Parliament adopted in 1993[234] and re-enacted in 1996[235]. It is the duty of this Court, the provisions of the Act being constitutionally valid, to give effect to the will of the Parliament.
[234]In the Industrial Relations Reform Act 1993 (Cth).
[235]Workplace Relations Act 1996 (Cth).
Conclusions and orders
A notice of contention was filed for Captain Christie. It principally sought to rely upon the Anti-Discrimination Act 1977 (NSW)[236] to render unlawful the application to any term of his employment of a policy of Qantas which required him to retire at age sixty. As I would hold the operation of that policy unlawful under federal law, this question does not need to be considered by me.
[236]Pt 4E.
The appeal should be dismissed with costs.
61
13
1