Qantas Airways Ltd v Christie

Qantas Airways Ltd v Christie - [1998] HCA 18 - HCA 1998 case summary — Zoe

[80]

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.

[101]

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.

[102]

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.

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Judgment (107 paragraphs)

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