Summers v Qantas Airways Limited

Link copied
Case Copied 52 min read

FEDERAL COURT OF AUSTRALIA

Summers v Qantas Airways Limited [2021] FCA 391

File number: NSD 301 of 2021
Judgment of: KATZMANN J
Date of judgment: 21 April 2021
Catchwords: HUMAN RIGHTS — age discrimination — application for interim injunction under s 46PP of Australian Human Rights Commission Act 1986 (Cth) to restrain respondent from terminating applicant’s employment until complaint withdrawn or terminated by President — where respondent proposed terminating applicant’s employment at age 65, whether prima facie case of unlawful discrimination under s 18 of Age Discrimination Act 2004 (Cth) — whether balance of convenience favours relief — whether relief should be refused on discretionary grounds
Legislation:

Age Discrimination Act 2004 (Cth) ss 14, 15, 16, 18

Australian Human Rights Commission Act 1986 (Cth) ss 3, 46P, 46PD, 46PF, 46PG, 46PH, 46PO, 46PP

Cases cited:

Australian Broadcasting Commission v Lenah Game Meats Pty Limited (2001) 208 CLR 199

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Carlsson v Ford [2019] FCA 584; 371 ALR 382

Commonwealth of Australia v Human Rights & Equal Opportunity Commission (1996) 70 FCR 76

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electrix Pty Ltd [2018] FCA 1879

Daccache v BOC Limited [2020] FCA 485

Qantas Airways Ltd v Christie (1998) 193 CLR 280

Samsung Electronics v Apple (2011) 217 FCR 238

Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71

Spencer v Commonwealth (2010) 241 CLR 118

Wilson v Britten-Jones [2019] FCA 747

Watts v Australian Postal Corporation (2014) 222 FCR 220

X v The Commonwealth (1990) 200 CLR 177

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 135
Date of hearing: 14 April 2021
Counsel for the Applicant: A B Gotting
Solicitor for the Applicant: Toomey Pegg Lawyers
Counsel for the Respondent: R Dalton QC
Solicitor for the Respondent: Herbert Smith Freehills

ORDERS

NSD 310 of 2021
BETWEEN:

PAUL THOMAS SUMMERS

Applicant
AND:

QANTAS AIRWAYS LIMITED (ACN 009 661 901)

Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

21 APRIL 2021

THE COURT ORDERS THAT:

1.On the undertaking of the applicant that he will inform the Australian Human Rights Commission of these orders within 24 hours, that he will seek the expedition of the conciliation of the complaint he lodged with the Commission on 8 March 2021, and that he will provide all assistance he can to enable the Commission to handle the complaint expeditiously, pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) the respondent be restrained from terminating the applicant’s employment until the applicant’s complaint is:

(a)withdrawn pursuant to s 46PG of the Act;

(b)terminated by the President pursuant to s 46PF(1)(b) or 46PH; or

(c)the Court otherwise orders.

2.For the duration of order 1, the applicant remain stood down unless the respondent is able to redeploy him to short haul…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Summers v Qantas Airways Limited and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] FCA 391
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Captain Summers sought an interim injunction to prevent Qantas Airways from terminating his employment, which was scheduled to occur upon his reaching the age of 65. The court needed to determine if there was a prima facie case of unlawful age discrimination under the Age Discrimination Act 2004 (Cth), and whether the balance of convenience favoured granting the injunction. Furthermore, the court had to consider if relief should be refused on discretionary grounds.

The court examined the legal issues by considering the provisions of the Australian Human Rights Commission Act 1986 (Cth) and the Age Discrimination Act 2004 (Cth). It assessed whether Captain Summers had established a prima facie case of discrimination, which would require Qantas to demonstrate a legitimate, non-discriminatory reason for the termination. The court also weighed the balance of convenience, which included factors such as the potential harm to both parties if the injunction was or was not granted. Finally, the court considered any discretionary grounds that might affect the decision to grant the injunction.

The court concluded that Captain Summers had established a prima facie case of unlawful discrimination and that the balance of convenience favoured granting the injunction. The court emphasised that the injunction should be granted on the condition that Captain Summers would ensure the expeditious handling of his complaint to the Australian Human Rights Commission. The court also decided that during the period of the injunction, Captain Summers should remain stood down unless he could be redeployed to short haul flights or another suitable position. This decision ensured the preservation of the status quo until the complaint was resolved, while also facilitating the conciliation process and minimising inconvenience to Qantas.

The final orders of the court included restraining Qantas from terminating Captain Summers’ employment until his complaint was withdrawn, terminated by the President, or otherwise ordered by the Court. Captain Summers was to remain stood down unless redeployed to short haul flights or another suitable position. Qantas was ordered to pay Captain Summers’ costs, and liberty was granted to either party to apply in the event of a significant change of circumstances or delay by the Commission.

Orders

Orders of the court

1. On the undertaking of the applicant that he will inform the Australian Human Rights Commission of these orders within 24 hours, that he will seek the expedition of the conciliation of the complaint he lodged with the Commission on 8 March 2021, and that he will provide all assistance he can to enable the Commission to handle the complaint expeditiously, pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) the respondent be restrained from terminating the applicant’s employment until the applicant’s complaint is:

(a) withdrawn pursuant to s 46PG of the Act;

(b) terminated by the President pursuant to s 46PF(1)(b) or 46PH; or

(c) the Court otherwise orders.

2. For the duration of order 1, the applicant remain stood down unless the respondent is able to redeploy him to short haul flights or to some other position for which he is qualified.

3. The respondent pay the applicant’s costs.

4. Liberty be granted to either party to apply on 24 hours’ notice in the event of a significant change of circumstances or any significant delay by the Commission in the handling of the complaint.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In Wilson v Britten-Jones [2019] FCA 747 at [42] Nicholas J said that it was clear that the rights mentioned in paragraph 46PP(1)(b) are rights under the AHRC Act which may ultimately be recognised or enforced by orders made by the Court pursuant to s 46PO(4). Those powers are very broad (“the court may make such orders … as it thinks fit …”) but expressly include the following orders or orders to a similar effect:(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;(c) an order requiring a respondent to employ or re-employ an applicant;(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;(f) an order declaring that it would be inappropriate for any further action to be in the matter.The relevant facts The evidence establishes the following facts.The terms and conditions of employment Pilots are employed by Qantas pursuant to letters of appointment and the terms of their employment are governed by the applicable industrial instrument as amended from time to time. Captain Summers has been employed by Qantas for over 32 years, beginning on 26 July 1988. He was promoted to captain in 2003. His letter of appointment set out the conditions of his employment. The first of those conditions was this:As a pilot you will be required to perform duties as required by the Company from time to time, including flight engineering and navigational duties, and to undertake such duties in any part of the world. Your home base will be Sydney and you will be expected to reside in the metropolitan area of that city. Another required that he “observe and comply with the Company’s regulations” and specified a number in particular, including “the Flight Administration Manual”. He was informed in the same letter that his general conditions of employment were set out in the International Airline Pilots’ Agreement 1984 as varied from time to time, that Qantas and the Australian International Pilots’ Association were the parties to the Agreement, and that he would be expected to join the Association. He was also informed that his “normal retirement date” was the first day of July after his 55th birthday but that he could elect to extend his employment “on a year by year basis” until his 58th birthday. From 14 January 1991, however a long haul pilot could elect to extend his or her employment on a year to year basis until attaining the age of 60. The current industrial agreement detailing the general conditions of employment is the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (LHEA), which was approved by the Fair Work Commission on 28 April 2020 and commenced on 5 May 2020. The LHEA covers Qantas, the Australian and International Pilots Association, and all long haul pilots employed by Qantas who are members or eligible to be members of the Association. There was no dispute that the parties were bound by its terms.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Qantas submitted that, in the absence of evidence as to what Captain Summers was doing to ensure that his complaint would be determined expeditiously, the Court could not be satisfied that he would prosecute his complaint expeditiously. At the hearing, however, as a condition of the grant of an interim injunction, Captain Summers, through his counsel, offered an undertaking to the Court that within 24 hours of the making of the order he would inform the Commission of its terms, that he would seek the expedition of the conciliation of the complaint, and that he would provide all assistance necessary to enable the Commission to handle the complaint expeditiously.Conclusion Taking all relevant matters into account and weighing them in the balance, I have concluded that an interim injunction should be granted to preserve the status quo until the complaint to the Commission is withdrawn by Captain Summers or terminated by the President. But it should be granted on the undertakings given by Captain Summers through his counsel. Furthermore, to facilitate the conciliation process and to minimise the inconvenience to Qantas, during the period of the injunction Captain Summers should remain stood down unless and until he can be redeployed to short haul flights or some other suitable position. Lest there be any doubt about the entitlement to do so, I will grant liberty to either party to apply on 24 hours’ notice in the event of a significant change of circumstances and I will also grant liberty to apply in the event of any significant delay on the part of the Commission. Costs should follow the event.

Ratio Decidendi

Legal Principle Established

Another required that he “observe and comply with the Company’s regulations” and specified a number in particular, including “the Flight Administration Manual”. He was informed in the same letter that his general conditions of employment were set out in the International Airline Pilots’ Agreement 1984 as varied from time to time, that Qantas and the Australian International Pilots’ Association were the parties to the Agreement, and that he would be expected to join the Association. He was also informed that his “normal retirement date” was the first day of July after his 55th birthday but that he could elect to extend his employment “on a year by year basis” until his 58th birthday. From 14 January 1991, however a long haul pilot could elect to extend his or her employment on a year to year basis until attaining the age of 60. The current industrial agreement detailing the general conditions of employment is the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (LHEA), which was approved by the Fair Work Commission on 28 April 2020 and commenced on 5 May 2020. The LHEA covers Qantas, the Australian and International Pilots Association, and all long haul pilots employed by Qantas who are members or eligible to be members of the Association. There was no dispute that the parties were bound by its terms. Clause 15.4.2 of the LHEA states that:The Company may employ its pilots, and the pilots will serve the Company, in any part of the world where the Company may from time to time be operating. Captain Hicks deposed that, where a pilot is required to undertake duties in any part of the world, the pilot must be able to operate freely and without restriction in all international airspaces within which Qantas operates. Clause 15.1.1 of the LHEA also requires that:A pilot will:…(b) observe instructions and requirements contained in Company manuals. “Company manuals” are defined at cl 14 of the LHEA to include “the Flight Administration Manual”. Clause 4.6 of the Flight Administration Manual stipulates that:A Flight Crew member who has reached their 65th birthday shall not operate or be rostered to operate as an A380, A330, B747 or B787 pilot crew member. The genesis of this requirement appears to be Article 2.1.10 to Annex 1 of the Convention on International Civil Aviation (now in its 9th edition), which provides that:A Contracting State, having issued pilot licences, shall not permit the holders thereof to act as pilot of an aircraft engaged in international commercial air transport operations if the licence holders have attained their 60th birthday or, in the case of operations with more than one pilot, their 65th birthday. With the exception of a few countries, including Australia and New Zealand, most of the countries to which Qantas flies have adopted these restrictions as part of their domestic law. At the time he was hired, Qantas was exclusively an international airline but it merged with Australian Airlines in about September 1992 after which it also serviced domestic routes. From that time onwards pilots were engaged either as long haul or short haul pilots. Flights across the Tasman to and from New Zealand were treated as domestic routes.