Qantas Airways Ltd v Christie

123. The legislation provided an exemption if the reason for the termination was based on "the inherent requirements of the particular position" (s 170DF(2)). Two points have been argued in the appeal which comes from the Full Court of the Industrial Relations Court of Australia [105] . The first is whether the employer in question "terminated" the employee's employment or whether (as the employer asserts) such employment expired by effluxion of time. (The termination point.) The second is whether, if there was a termination, it was for a reason based on the "inherent requirements of the particular position". (The discrimination point.)

1. Christie v Qantas Airways Ltd (1996) 68 IR 248; 138 ALR 19.

124. The primary judge (Wilcox CJ) found for the employee on the termination point but for the employer on the discrimination point. Relief was therefore denied [106] . On appeal, the judges constituting the Full Court divided. One [107] found against the employee on both points. However, a majority [108] confirmed the primary judge's decision on the termination point but reversed him on the complaint of discrimination. In the result, a declaration was made that the employer had contravened the legislation [109] . The proceedings were remitted to the primary judge for consideration of the appropriate relief [110] . Now, by special leave, the employer appeals to this Court.

1. Christie v Qantas Airways Ltd (1995) 60 IR 17, per Wilcox CJ. 2. Spender J. 3. Gray J and Marshall J. 4. Christie (1996) 68 IR 248 at 275-276; 138 ALR 19 at 46. 5. Pursuant to the Act, s 170EE.

125. Captain John Christie joined Qantas Empire Airways Ltd (now Qantas Airways Ltd) in 1964. His letter of appointment stated that he was engaged "as a Pilot for duty as required by the Company in any part of the world, including Flight Engineering and Navigational duties as directed". The letter made no mention of a compulsory retirement age. But it did provide for termination:

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] 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.

126. Before Captain Christie's engagement, the retirement age for Qantas' pilots had been progressively extended [111] . In the year in which he joined Qantas it was increased to fifty-five years. Thereafter, by steps which it will be necessary to mention, Qantas extended the "normal retirement age" of its pilots, ultimately to the pilot's sixtieth birthday. In Captain Christie's case that fell on 21 September 1994. In accordance with the established procedure, he signed forms presented to him by Qantas, the last of which stated:

By advice of this letter, I elect to extend my employment to 21.9.94 being my 60th birthday. That letter was acknowledged by Qantas. Captain Christie continued to perform his duties. However, on 6 July 1994, he wrote to Qantas: My current retirement date is 21.9.94 my sixtieth birthday. I believe recent legislation may now over-ride 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 such restrictions.

Due to the relatively short time available before 21.9.94 I trust that you can give me an early reply.

The legislation to which Captain Christie referred was the Industrial Relations Reform Act 1993 Cth. This amended the Industrial Relations Act 1988 Cth (the Act) by inserting in it the provisions which are in question in this appeal. Relevantly, the principal provision made unlawful the termination by an employer of the employment of an employee for reasons of age (s 170DF(1)(f)). Qantas was an employer bound by the Act. Captain Christie was an employee. The amendments came into force on 30 March 1994. 1. It was age forty-five in 1946; age fifty in 1955: see 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 p 34 .

127. Qantas clearly realised the significance of Captain Christie's request. It had previously been involved in protracted litigation concerning alleged discrimination in the retirement of flight attendants [112] . Contemporaneous with Captain Christie's inquiry was a request, similar to his, by a pilot (Captain Dallas Allman) then employed by "Qantas Domestic" [113] . Qantas replied to Captain Christie on 8 September 1994:

As you know, the International Airline Pilots' Agreement and the Company's policy requires that pilots retire no later than upon reaching the age of 60 years.

Insofar as this is a matter of policy, it is based on safety and operational considerations. It reflects the particular requirements of and qualifications for the position of pilot[s] within the employ of Qantas.

The Agreement and the policy are still appropriate and remain operative. Accordingly, it is necessary that your retirement take effect as planned on 21st September, 1994.

1. Squires v Qantas Airways Ltd [No 1] (1985) 12 IR 21 and Squires v Qantas Airways Ltd [No 2] (1985) 12 IR 30; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. 2. Formerly Trans-Australia Airways and Australian Airlines Ltd. See Christie v Qantas Airways Ltd (1995) 60 IR 17.

128. Pursuant to this letter, Captain Christie's employment with Qantas ceased (to use a neutral word) on his sixtieth birthday. He was one of Qantas' most senior pilots licensed to fly its B747-400 aircraft. There were 113 pilots so licensed. He enjoyed a wealth of flying experience. His health was good. He continued to hold a Class I licence. He objected to having his employment "terminated", as he saw it, for a reason so arbitrary as the sixtieth anniversary of his birthday. So keen was he to continue flying that he offered to work as a First Officer, as a Captain on Qantas Domestic services, or even to work part-time [114] . His offers were rejected. Along with Captain Allman, Captain Christie's employment with Qantas ceased on his sixtieth birthday. However, he and Captain Allman challenged Qantas in the Industrial Relations Court.

1. Christie v Qantas Airways Ltd (1995) 60 IR 17 at 56.

129. The challenges were heard together. The two fundamental issues (the termination point and the discrimination point) were common to each case.

130. So far as the discrimination point was concerned, Qantas asserted that it did not fall within the statutory prohibition because its policy was based on "the inherent requirements of the particular position". To support its adherence to the Rule of 60, Qantas called medical and other expert evidence. By this it sought to establish that the prohibition on pilots flying beyond the age of sixty years was justified. This was the issue which occupied most of the time at trial. Qantas laid emphasis upon the company's enviable safety record, "fail-safe philosophy", elimination of risks and conviction that the retirement of pilots at age sixty was necessary and prudent. It sought, by evidence, to prove that mental acuity, physical dexterity and capacity for judgment, necessary for the position of a pilot, deteriorated with age. Its expert supported Qantas' adherence to the Rule of 60 on health and safety grounds. He did so by reference to papers which were described and analysed in the reasons of the primary judge [115] .

1. The Kulak Report 1971; the Booze Report 1977; the NIA Report 1981 and the OTA Report 1990, all described in the judgment of Wilcox CJ (at 30-44). He also relied upon a Report by Dr Castello-Branko and a Report of 1985 by Dr Geoffrey Holt: see Christie v Qantas Airways Ltd (1995) 60 IR 17 at 38-43.

Captains Christie and Allman relied on a more recent report [116] undertaken for the United States Federal Aviation Authority. This was highly critical of the methodology and data of Qantas' expert. The employees called their own experts with medical and aviation experience. They expressed the opinion that, with advances in motor and psychological testing techniques, it was feasible to design a reliable means of identifying inability to meet the high standards required for Class 1 medical certification necessary to be a pilot. One of these experts stated, in evidence which the primary judge accepted [117] :

There is no logic or scientific data which allows the medical profession to make the assumption that when an individual turns sixty years of age the individual immediately fails to meet either the operational standard or medical standard required for Class 1 medical certification. The very fact that the medical surveillance system operating through routine pilot aircrew medicals and self referral identifies individuals who fail to meet the medical standard before the sixtieth birthday resulting in denial of medical certification testifies to the fact that age alone is an unreliable indicator as to an individual's ability to meet the required standard There is no evidence to suggest that at upon obtaining the age of sixty years that all individuals who have met the required standard up to that point will suddenly cease to meet the medical requirements for certification. 1. The Hilton Report 1993-1994. 2. Christie v Qantas Airways Ltd (1995) 60 IR 17 at 48-49.

The primary judge gave numerous and convincing reasons as to why he rejected the attempt by Qantas to justify on medical and safety grounds its Rule of 60 [118] . He concluded [119] :

[I]ndependently of general practice and the policy of the particular employer, but looking at the question in a practical, commonsense way, is it a necessary qualification for the particular position that an incumbent be less than sixty years old? So far as the medical issue is concerned, this question must be answered in the negative. What follows for the effective operation of anti-discrimination law must proceed from that finding which is not challenged. 1. Christie v Qantas Airways Ltd (1995) 60 IR 17 at 52. 2. Christie (1995) 60 IR 17 at 53.

The primary judge ordered Qantas to reinstate Captain Allman as a pilot of Qantas' domestic passenger aircraft for which he was licensed. But there was a point of distinction in Captain Christie's case which, it was held, resulted in the failure of his claim. It was the matter adverted to in Captain Christie's letter to Qantas in which he referred to "overseas regulations" and his preparedness to "bid around" the restrictions created by them.

The primary judge examined the international rules and practices concerning the entitlement of pilots to fly B747-400 aircraft in, or through, the airspace of certain overseas countries served by the Qantas international network. He considered whether the difficulties undoubtedly presented to Qantas by the restrictions imposed by such international rules and practices could be satisfactorily circumvented, as Captain Christie proposed, by an adjustment of the rostering system whereby pilots bid for the allocation of flights.

The Convention on International Civil Aviation, to which Australia is a party, provides for the adoption of uniform international standards for civil aviation to "facilitate and improve air navigation" (Art 37). One object of these standards is to deal with matters concerned with safety (Art 37). Provision is made for the endorsement of pilot licences in the case of any person holding a licence who does not satisfy in full "the conditions laid down in the international standard relating to the class of licence of certificate which he holds" (Art 39(b)). The Convention also provides that no personnel, having certificates so endorsed, should participate in international navigation, except with the permission of the State whose territory is entered (Art 40). The Convention establishes the International Civil Aviation Organisation (ICAO) (Art 43). The council of that body (Art 50) is obliged to adopt international standards and recommended practices (Art 54(1)). These become annexes to the Convention (Art 54(1)). Annex 1 titled "Personnel Licensing" contains provisions for "Curtailment of privileges of pilots who have attained their 60th birthday" (Par 2.1.10 of Annex 1). The relevant sub-paragraph reads (Par 2.1.10.1 of Annex 1):

A Contracting State, having issued pilot licences, shall not permit the holders thereof to act as pilot-in-command of an aircraft engaged in scheduled international air services or non-scheduled international air transport operations for remuneration or hire if the licence holders have attained their 60th birthday. There follows a recommendation that Contracting States should not permit such persons to act as co-pilots [120] . 1. Par 2.1.10.2 of Annex 1.

Notwithstanding these provisions, several countries have removed, or modified, the age restriction there stated. According to the evidence, some have substituted another age for the Rule of 60 [121] . Others leave it to the pilot's own licensing country [122] . Still others have removed the arbitrary age requirement altogether. Thus, the Civil Aviation Authority of New Zealand wrote to Captain Christie [123] :

From a pilot licensing point of view there is no requirement for permission to be granted to persons who are over the age of 60 years and who wish to fly into or over New Zealand. Should you wish to fly an Australian registered aircraft in NZ you may do so, age is of no consequence [S]o long as a person is medically fit and meets the other licence currency requirements, he or she may fly here regardless of age. 1. Iran (61); Finland (63); Germany, Switzerland and the United Kingdom (65); Sweden (66) (depending on size of aircraft). 2. Austria, Cyprus, Hungary, India and the Netherlands. 3. Annex C3 to the affidavit of J B Christie.

Despite this enlightenment, several countries continue to adhere strictly to the Rule of 60. These include some [124] which control the airspace of or near primary destinations of the Qantas international network. Thus, although Captain Christie could pilot a B747-400 aircraft into and through much of European airspace, the prohibitions imposed by Singapore, Thailand and the United States (including Guam) would effectively prevent Captain Christie from piloting or co-piloting such aircraft on the long haul routes which constitute the bulk of Qantas' international business. The position of South Africa and Zimbabwe was not disclosed by the evidence, presumably because Captain Christie's sixtieth birthday fell in 1994 when flights there were limited. The case was therefore conducted upon the basis that, effectively, there were only three international destinations to which he could fly the B747-400 aircraft for Qantas, namely Denpasar (Bali) in Indonesia, Fiji and New Zealand [125] . Even Fiji presented some difficulties because of the schedules by which flights to that country frequently proceed across the Pacific into United States airspace. There was no difficulty in Captain Christie's piloting aircraft within Australia. A proportion of flights assigned to international pilots comprise domestic sectors [126] . Qantas submitted that Captain Christie could not be accommodated without his being required, impermissibly, to fly as a pilot to or over a country which would not accept a Qantas aircraft flown by anyone over sixty years of age.

1. eg, Singapore, Thailand and the United States of America. 2. Christie v Qantas Airways Ltd (1995) 60 IR 17 at 54. 3. According to the respondent this was 19 per cent of hours of international flying. According to Qantas it was 4.48 per cent of hours.

138. Much evidence at the trial was devoted to Qantas' rostering system. It is referred to in an agreement between Qantas and the Australian International Pilots' Association (the pilots' association), certified by the Australian Industrial Relations Commission [10] . According to the findings of the primary judge, Qantas determined the routes which it wished to fly and the planes to operate those routes. It then allocated aircraft to such flights on a principle aimed to ensure the most efficient use of its aircraft. A computer programme adjusted to these considerations statutory and award requirements affecting air crew. The product was called a "slip pattern". Each of these slip patterns represented one trip which might be as short as four hours (Sydney/Melbourne/Sydney) or as long as twelve days (Sydney/Bangkok/London/Bangkok/Sydney). Slip patterns were then combined into eight week periods, for which crew, including pilots, were entitled to submit their bids. The bids were then determined according to seniority. They were allocated to pilots and other crew. A roster was prepared on the basis of the successful bids. It could be altered. But normally it would govern the allocation of employment duties. Qantas imposed a rule upon the bidding system by which a pilot could not bid for more than two one day trips in an eight week period. There was some dispute concerning the interpretation of the evidence about the application of this rule. But its existence was not doubted. Flights within Australia and to New Zealand were used to reach the allocated flying hours in a bid period.

1. The certified agreement had the force of law; see the Act, s 149(2); but cf the Act s 170HA (inconsistent awards and orders).

139. Captain Christie's case was that, by a rearrangement of this roster, Qantas could allow him to fly domestically and on the sectors to New Zealand, Indonesia and Fiji or elsewhere where his age was no barrier. Qantas' case was that, especially if more B747-400 pilots insisted on flying after their sixtieth birthday, there were insufficient sectors available to constitute the minimum flying hours. The disruption to the rostering system would be serious. The situation would get worse as more international pilots followed Captain Christie's lead.

140. The primary judge rejected the submission that these difficulties were merely administrative problems within the control of Qantas itself [11] . This opinion led the primary judge to conclude that the termination of Captain Christie's employment was based on "the inherent requirements of the particular position". His claim was therefore dismissed.

141. The differences between the judges in the Full Court were marked. Spender J supported the conclusion last stated. Moreover, unlike the primary judge, he was of the opinion that there had been no termination of Captain Christie's employment [12] . It simply expired according to its terms.

1. Christie (1996) 68 IR 248 at 254; 138 ALR 19 at 25.

142. Gray J held that Qantas had terminated Captain Christie's employment. He rejected the argument that the successive collective agreements as to retirement had been incorporated into the contract between Qantas and Captain Christie [13] . Even on the footing that the retirement age of sixty had become incorporated in the contract, Gray J considered that the amendments to the Act [14] operated [2] "to make any term of the appellant's contract requiring his retirement at a particular age a term on which the respondent could not insist, unless it had the protection of subs (2)". Upon this basis, Gray J concluded that the difficulties presented by countries which adhere to the Rule of 60 and the readjustment of Qantas' roster system were irrelevant to the "inherent requirements" of Captain Christie's particular position [3] .

1. Christie (1996) 68 IR 248 at 258-259; 138 ALR 19 at 30. 2. Notably s 170DF(1)(f). 3. Christie (1996) 68 IR 248 at 259; 138 ALR 19 at 30. 4. Christie (1996) 68 IR 248 at 260-261; 138 ALR 19 at 32.

143. Marshall J substantially followed the approach of the primary judge on the question of "termination". He concluded that Captain Christie's contract of employment did not end by lapse of time but was terminated on the initiative of Qantas [4] . On the discrimination point, he rejected the conclusion that it was an "inherent requirement" of a position as a B747-400 Qantas Captain that Captain Christie be under sixty years of age [5] :

It was possible and remains possible for Mr Christie to be rostered so that he is able to perform his duties as a B747-400 captain. The very characterisation of the issue by Wilcox CJ as "an operational issue" illustrates, with respect, an incorrect approach to the resolution of the issue. A matter that goes to operational requirements is not necessarily a matter that bears upon the inherent requirements of the particular position. It was in this way that Captain Christie gathered the majority in the Full Court to make the orders which Qantas now challenges. 1. Christie (1996) 68 IR 248 at 275; 138 ALR 19 at 45. 2. Christie (1996) 68 IR 248 at 269; 138 ALR 19 at 40.

144. Following the amendments to the Act in 1993 there was included amongst the Act's objects (s 3(g)):

(g) helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

145. Division 3 "Termination of employment" was inserted into Pt VIA. Subdivision (A) contained certain objects and provisions on interpretation. By s 170CA(1) it was stated that the object of the Division was to give effect to the Termination of Employment Convention and the Termination of Employment Recommendation 1982 [6] . Section 170CA(2) provided:

Without limiting subsection (1), the references in paragraph 170df(1)(f) to sexual preference, age and physical or mental disability, have been included in order to give effect, or further effect, to:

(a) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and

(b) the Recommendation referred to in paragraph 170ba(c).

Section 170CB provided that an expression in the Division had the same meaning as in the Termination of Employment Convention. Specific provision was made for the regulations in certain cases to exclude specified employees. There were no regulations relevant to international pilots. Section 170DE forbade termination of an employee's employment unless there was a valid reason connected with the employee's capacity or based on the operational requirements of the employer's undertaking. The critical provisions of the Act are now reached. They appeared in s 170DF. That section specified certain grounds for which an employer was not to terminate the employment of an employee. These included temporary absence from work for illness or injury, union membership or non-membership, acting as a representative of an employee or filing complaints against an employer. There then appeared the important provisions (emphasis added): 170df(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(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.

1. Rec No 166 adopted by the General Conference of the International Labour Organisation on 22 June 1982. The English text of this is reproduced in Sch 11 of the Act. See also Section 170BA which provides: "The object of this Division is to give effect, or further effect, to: (a) the Anti-Discrimination Conventions; and (b) the Equal Remuneration Recommendation, 1951 and (c) the Discrimination (Employment and Occupation) Recommendation, 1958."

146. Specific provision was made for the onus of proof in proceedings between an employer and employee. By s 170EDA(2), where the employee alleged termination on a ground in s 170DF(1), such termination was taken to have contravened that sub-section unless the employer proved that the employment was not terminated for the particular reason so specified or that the reason or reasons were those to which, relevantly, s 170DF(2) applied. There was a definition of termination of employment in s 170EDA(3). However, apart from making it plain that the termination had to be by the employer, this provision did not elaborate the elements required for the purposes of the Act.

147. Section 170EE provided for the remedies which the Court might grant where termination of employment of an employee contrary to the Act was established. The Court could order the employer to reinstate the employee (s 170EE(1)), as was done in the case of Captain Allman. But if the Court considered that reinstatement was impracticable, it could "make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate" (s 170EE(2); see also sub-ss (3), (4), (5)). It was made clear by s 170EG that a contravention of Subdiv B (containing ss 170DE and 170DF) was not a criminal offence.

148. Because of the express references in the Act to a number of "anti-discrimination conventions", and the stated objects relevant to the provisions in question (s 170CA(1), (2)), it is appropriate to examine those provisions in the context of the international measures to which reference may be made in elucidating their meaning and purpose [7] .

1. Gerhardy v Brown (1985) 159 CLR 70 at 124; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-231, 239-241, 294-295.

149. General provisions against discrimination were contained in the Universal Declaration of Human Rights 1948 (Art 7), the International Covenant on Economic, Social and Cultural Rights 1966 (Art 2.2; see also Art 6.1.) and the International Covenant on Civil and Political Rights 1966 (Art 2.1). Specific instruments dealing with discrimination on grounds of race [8] and sex [9] have been adopted. The International Labor Organisation (ILO) has had a longstanding involvement in the removal of discrimination in matters relevant to its field of competence [10] . The International Labour Conference had adopted several relevant Conventions and Recommendations addressed to equality of opportunity in the context of employment. The most important of these is the Discrimination (Employment and Occupation) Convention and Recommendation (No 111) 1958 ("Convention 111" [11] and "Recommendation 111" [12] ). According to a commentator, the number of ratifications of Convention 111 place it "among the most widely ratified conventions by countries from all regions of the world" [13] . It has been ratified by Australia. It is the Convention referred to in s 170CA(2)(a) of the Act [14] . Section 170DF is substantially based upon Art 5 of the Convention. However, age was not referred to in that Article as a prohibited ground of termination of employment. That ground was introduced by Art 5(a) of Recommendation No 166 [15] which provides:

In addition to the grounds referred to in Article 5 of the Termination of Employment Convention, 1982, the following should not constitute valid reasons for termination:

(a) age, subject to national law and practice regarding retirement

1. Convention on the Elimination of All Forms of Racial Discrimination (CERD), 1965. 2. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979. 3. Nielsen, The Concept of Discrimination in ILO Convention No 111, International and Comparative Law Quarterly, vol 43 (1994) 827, at pp 827-828 : "Equality of opportunity and treatment has been one of the objectives of the International Labour Organisation (ILO) since its foundation by the Peace Treaty of Versailles in 1919. The principle was recognised in Art 41(2) of the original Constitution of the ILO and was re-stated by the International Labour Conference (ILC) in its 1944 Declaration of Philadelphia concerning the future aims and objectives of the ILO" (footnotes omitted). 4. Found in Human Rights and Equal Opportunity Commission Act 1986 Cth, Sch 1. 5. Found in the Act, Sch 9 (now repealed, and not reproduced in the Workplace Relations Act 1996 Cth). 6. Nielsen, The Concept of Discrimination in ILO Convention No 111, International and Comparative Law Quarterly, vol 43 (1994) 827, at p 828 . 7. See also the definition of discrimination in s 3 of the Human Rights and Equal Opportunity Commission Act 1986 Cth. 8. Found in Sch 11 to the Act (now repealed, and not reproduced in the Workplace Relations Act 1996 Cth).

150. Although age is likewise not specifically included in Convention 111, that Convention refers to a number of the grounds included in s 170DF(1)(f) [16] . It also prohibits other distinctions which have the "effect of nullifying or impairing equality of opportunity" (Art 1.1). It states the exemption which is obviously the source of the provision in s 170DF(2) of the Act. Convention 111 provides (Art 1.2):

Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. 1. Such as "race, colour, sex, religion, political opinion, national extraction or social origin".

151. Qantas emphasised the differentiation between the language of Convention 111 and the language of the Act. It was suggested that the use of the indefinite article (a) and the more general word (job) in Convention 111 was to be contrasted with the use of the definite article (the) and the more specific word (position) in the Act. Qantas submitted that this differentiation meant that part only of the international obligation was implemented by the Act, qualifying the use which might be made of international material in elaborating its meaning and purpose [17] . Clearly, there is a differentiation of language. But it is not, ultimately, a crucial one. The critical words in both Convention 111 and the Act are "termination" and "inherent requirements". They are common to both texts. They determine the outcome of this appeal.

1. cf The Commonwealth v TasmaniaTasmanian Dam Case (the) (1983) 158 CLR 1 at 233-234, 268; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 487-488.

152. The following rules govern the approach to ascertaining the meaning of the provisions of the Act applicable in this case:

Purposive construction of legislation: A court must give meaning to legislation according to its terms. This is as true of anti-discrimination legislation as of any other. At the end of its analysis, the court holds that the Act "means what it says" [18] . However, different eyes can see the same words and derive different meanings from them. In the attempt to reduce such disparities, courts have accepted rules of construction. However, even these do not eliminate the differences entirely. In recent times, courts, including this Court, have placed increasing emphasis upon adopting a purposive and not an unduly literal approach to the task of statutory construction [19] . Once the object or purpose of the legislation is defined, the duty of a court is to give effect to it, so far as the language permits [20] .

Beneficial construction of anti-discrimination legislation: Remedial legislation, designed to achieve the high public purpose of upholding equal opportunity, should be construed beneficially and not narrowly. Any other approach risks frustrating the will of Parliament [21] . So long as that will is expressed in valid legislation, it is the function of courts to give effect as far as they can to its purpose, particularly where that purpose is designed to protect and advance basic rights [22] . This approach should be adopted, and there should be no faltering, where the object relates to less familiar grounds of discrimination (such as age, sexual orientation (sexual preference) and handicap) as for the more familiar grounds (such as "race, colour and sex"). Each ground is accorded equal status in the Act. Each is derived from successive elaborations of international standards.

Use of international instruments: Where, as here, the Act contains words derived from international sources, it is legitimate for a court to have regard to those sources in assigning meaning to the words of the Act. Not only is this a proper approach mandated by the authority of this Court [23] . In the instant case, it derives specific endorsement, so far as the Termination of Employment Convention is concerned, from the provision of the Act whereby an expression in the one is to have "the same meaning" as in the other (s 170CB).

Derogations to be construed narrowly: A question arises as to whether the provision of s 170DF(2) of the Act dealing with "inherent requirements of the particular position" is to be viewed as an exception to the impermissible reasons for termination of an employee's employment or as an elaboration of the definition of discrimination, marking out the forbidden territory. Qantas argued for the latter approach based upon the language of the sub-section. However, whether it is properly described as an exception or an exemption matters not. Clearly, the primary rule is that contained in s 170DF(1)(f). The provision of s 170DF(2) constitutes a derogation from that primary rule. In the United States of America, the Supreme Court has held that the analogous derogation for "bona fide occupational qualification" [24] is to be treated as "an extremely narrow exception to the general prohibition" [25] against age discrimination contained in the equivalent United States legislation. The international experts have emphasised that "exceptions" to the main rule must be consistent with, and proportional to, adherence to the primary requirement which is designed to diminish discrimination on arbitrary grounds and to secure the object of equal opportunity [26] .

Contracts which provide for compulsory retirement: Meaning must be given to the concept "termination" of employment in the context, and for the purposes, of the forbidden reasons for termination, including age. It must be assumed that the Parliament, by enacting the provisions of s 170DF(1)(f) in relation to age, intended to address the position of persons already in employment whose employment was brought to an end unilaterally on the arbitrary ground of age. The link between the various forbidden reasons in par (f) is, and is only, the existence of a stereotype with no inherent relevance to the capacity of the employee to perform the duties of the employment in question. It must also be assumed that, by the inclusion of the reference to age, the Parliament intended to afford effective protection. It should not be assumed that it was intended that par (f) could so easily be circumvented by the simple expedient of presenting an "agreement" whereby the employment would "expire" by reference to age without a need for "termination". This is the kind of "misfiring" of legislation, once quite common, which courts are now enjoined, wherever possible, to avoid [27] .

The employer's intention is irrelevant: The absence of a subjective intention to discriminate does not convert discriminatory conduct into neutral policy [28] . The Act operates in the highly practical circumstances of an employment relationship. This warrants the adoption of a commonsense approach to the statutory requirements [29] . The Act is fundamentally designed to achieve social change by the removal of artificial stereotypes. Unless otherwise excused, it requires, in effect, the assessment of an employee's capacities upon that employee's individual merits. Requiring this approach has a price. In part, that price is economic, involving various adjustments to accommodate the needs of particular employees [30] . In part, the cost may involve a challenge to the political, moral or other biases of the employer. The Parliament must be taken to have accepted that, to conform to Australia's international obligations and to achieve the objectives which they set, such costs must be borne unless the employer is exempted [31] or excused [32] .

Events after termination not to be considered: The relevant date for a decision whether the termination which is impugned was based upon an unlawful reason, or excused as based on the "inherent requirements of the particular position", is the date of the alleged termination [33] . Thus, the prospect of future modifications of the Rule of 60 by ICAO or by Qantas is irrelevant. So is the willingness of the employee to accept duties different from those performed before termination [34] . In his decisions on these questions the primary judge was clearly right.

Consideration of employer's operational requirements: If discrimination involving a breach of s 170DF is established, it is not, as such, relevant that compliance would occasion inconvenience to the "operational requirements" of the employer. Such "operational requirements" may provide an answer to a complaint that an employer has terminated an employee's employment without "valid reason" (s 170DE(1)). However, they do not afford an answer to the provisions of s 170DF(1) forbidding termination of employment on discriminatory grounds. Such termination is prohibited whatever the "operational requirements" of the employer. This is plain from the juxtaposition of the two sections which immediately follow each other. Anti-discrimination legislation often contains an exemption for an employer where, to maintain the particular employee would impose "an unjustifiable hardship on the employer" [35] or where "services or facilities" required for the particular employee cannot reasonably be provided or accommodated [36] . For whatever reason, such an exemption finds no place in the Act under consideration here. A more stringent standard has been adopted, apparently deliberately. For most grounds of discrimination, there is no exemption at all once the unlawful reason is established. This structure of the section suggests the approach to be taken to the two derogations which are expressly provided (s 170DF(2), (3)). Unless such derogations apply, the only place for the consideration of questions of "reasonable accommodation" and "unjustifiable hardship" arises in the provision of the remedies envisaged by s 170EE. There the court has a wide discretion to order reinstatement or, if that is "impracticable", to order the payment of compensation (s 170EE(3), (4)) and damages (s 170EE(5)) as provided by the section.

The duty of courts: If such provisions are then considered an unreasonable burden on employers, it is appropriate to repeat the remark of Scalia J in the United States Supreme Court in Automobile Workers v Johnson Controls Inc [37] : "A legislative forum is available to those who believe that such decisions should be made elsewhere." Although the Act was repealed and its provisions substantially revised after this litigation began, the replacement Act makes no modifications of relevance to the provisions applicable in this appeal. As a matter of legal principle it is preferable to incorporate exemptions for "reasonable accommodation" or "unjustifiable hardship on the employer" rather than artificially to narrow the grounds of unlawful discrimination or to expand unduly the operation of the "inherent requirements of the particular position" [38] .

1. Automobile Workers v Johnson Controls Inc (1991) 499 US 187 at 211. 2. Bropho v Western Australia (1990) 171 CLR 1 at 20 applying Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, per McHugh JA. 3. Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424; cf Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-275. 4. IW v City of Perth (1997) 191 CLR 1 at 57-58. 5. Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 196-197; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359, 406-407. 6. Tasmanian Dam Case (1983) 158 CLR 1 at 93-94, 222-223; Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349, 356; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-231, 239-241, 294-295. 7. Contained in Age Discrimination in Employment Act 1967: 29 USC s623(f)(1). 8. Western Air Lines Inc v Criswell (1985) 472 US 400 at 412; cf Dothard v Rawlinson (1977) 433 US 321 at 334; Automobile Workers v Johnson Controls Inc (1991) 499 US 187 at 201; Nielsen, The Concept of Discrimination in ILO Convention No 111, International and Comparative Law Quarterly, vol 43 (1994) 827, at p 850 . See also Director-General Department of Community Services v Bowie (1990) 1 WAR 480 at 487. 9. International Labour Office, 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, Official Bulletin, Supp 1 (Series B) (1987), vol 70, pars 527-532 (esp par 531); cf Christie v Qantas Airways Ltd (1996) 68 IR 248 at 268-269; 138 ALR 19 at 39. 10. Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641, per Lord Macmillan; Lord Diplock, "The Courts As Legislators" in The Lawyer and Justice (1978), p 274, cited in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424, per McHugh JA. 11. IW v City of Perth (1997) 191 CLR 1 at 59-60; Alexander v Choate (1985) 469 US 287 at 295-296; Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 259. 12. Automobile Workers v Johnson Controls Inc (1991) 499 US 187 at 205-206, 212-213; Christie v Qantas Airways Ltd (1995) 60 IR 17 at 56. 13. For example particular adjustments for reasons of physical or mental disability, marital status, family responsibility or pregnancy or particular adjustments for prayers required for religious observance. 14. For example by s 170DF(2) relating to inherent requirements of the particular position. 15. For example by s 170DF(3) relating to staff of religious institutions. 16. Christie (1995) 60 IR 17 at 56. 17. Christie (1995) 60 IR 17 at 56-57. 18. Disability Discrimination Act 1992 Cth, s 15(4)(b). 19. Southeastern Community College v Davis (1979) 442 US 397; Alexander v Choate (1985) 469 US 287 at 300; Jamal v Secretary Dept of Health (1988) 14 NSWLR 252 at 262, 269 considering s 49I(1)(b) of the Anti-Discrimination Act 1977 NSW. 20. (1991) 499 US 187 at 223, citing Easterbrook J (diss) in International Union UAW v Johnson Controls Inc (1989) 886 F 2d 871 at 915. 21. See McCallum, Labour Law and the Inherent Requirements of the Job: Qantas Airlines Ltd v Christie - Destination: The High Court of Australia - Boarding at Gate Seven, Sydney Law Review, vol 19 (1997) 211.

153. 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.

154. 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.

155. 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 [39] . 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" [40] . In such cases courts seek to discover where the initiative for ending the employment relationship arose and specifically whether the employee voluntarily left [41] . 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.

1. See s 170CB referring to the ILO Termination of Employment Convention and 170DF(1). 2. Mohazab v Dick Smith Electronics Pty Ltd [No 2] (1995) 62 IR 200 at 205. 3. 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, Australian Law Journal, vol 68 (1994) 494, at p 495 .

156. 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 [42] . 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 [43] . 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 [44] , 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 [45] .

1. Christie (1996) 68 IR 248 at 270-273; 138 ALR 19 at 41-43 (1974 letter); at 273-275; 44-45 (1991 letter). 2. Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 453-454. 3. Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 423-424. 4. Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422-424.

157. 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 [46] . By force of the Act (s 149(2)), 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.

158. 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.

159. 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?

160. 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 ) [47] . 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" [48] . 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 [49] . It is also to "prevent and eliminate discrimination on the basis of age" (s 3(g)). 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 [50] .

1. (1996) 187 CLR 416 at 520. 2. Industrial Relations Act Case (1996) 187 CLR 416 at 520. 3. By the operation of ss 170DF and 170EE. 4. cf McMorrow Retirement Incentives In The Twenty First Century: The Move Toward Employer Control Of The ADEA, University of Richmond Law Review, vol 31 (1997) 795, at p 813 ; see also Eglit, Age Discrimination in Employment Act, University of Richmond Law Review, vol 31 (1997) 579, at p 629 which notes that involuntary age-based retirement is now "virtually outlawed" by the Age Discrimination in Employment Act 1967 US.

161. 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.

162. 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 [51] . 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 [52] . 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.

1. Christie v Qantas Airways Ltd (1995) 60 IR 17 at 56, per Wilcox CJ; Christie (1996) 68 IR 248 at 255; 138 ALR 19 at 27, per Spender J (diss). 2. Relying on Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178.

163. 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 [53] . 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.

1. 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 (Pt 4b) (1988)>, par 132; cf p 133.

164. 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:

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.

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 [54] . 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.

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 [55] . 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.

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 [56] . 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" [57] . 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 [58] . 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.

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 [59] ) 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 [60] , 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 [61] : 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 [62] 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.

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" (s 170EE(1)). That point has not been reached in this case because of the conclusion of the primary judge, that considerations of the practicability or impracticability (s 170EE(2)) 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 (s 170EE(3), (5)) 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.

1. 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 (Pt 4b) (1988), par 132. 2. 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), p 34. 3. 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 (1997) 135 Law Ed 2d 735. 4. Age Discrimination in Employment Act 1967: 29 USC s>623(f)(1) (age discrimination); cf Civil Rights Act 1964: 42 USC s2000(e)-2(e). 5. Western Air Lines Inc v Criswell (1985) 472 US 400 at 407-408; Automobile Workers v Johnson Controls Inc (1991) 499 US 187 at 215. 6. Christie v Qantas Airways Ltd (1995) 60 IR 17 at 53. 7. Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94. 8. Christie (1996) 68 IR 248 at 269; 138 ALR 19 at 40. 9. Christie (1996) 68 IR 248 at 268-269; 138 ALR 19 at 39.

165. 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 [63] and re-enacted in 1996 [64] . It is the duty of this Court, the provisions of the Act being constitutionally valid, to give effect to the will of the Parliament.

1. In the Industrial Relations Reform Act 1993 Cth. 2. Workplace Relations Act 1996 Cth.

166. A notice of contention was filed for Captain Christie. It principally sought to rely upon the Anti-Discrimination Act 1977 NSW (Pt 4E) 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.