Is there a serious question to be tried?
74 Captain Summers submitted that there is a prima facie case of both direct and indirect discrimination on the ground of age.
75 As to direct discrimination, he pointed to the fact that Qantas has proposed to terminate his employment because he would turn, or was, 65 years of age and it has not proposed to terminate the employment of pilots who have not turned 65. This, he argued, constitutes differential treatment on the ground of age.
76 As to indirect discrimination, he pointed to the imposition by Qantas of two conditions or requirements: first, a condition or requirement that he is able to meet the ICAO Rules and second, a condition or requirement that he is able to participate in a shared blank line roster. He submitted that each of these conditions or requirements is likely to disadvantage other pilots of the same age and is unreasonable.
77 It is unnecessary to consider the merits of any of these submissions since Qantas did not engage with them. Doubtless this was because, even if they have merit, they will be defeated if s 18(4) of the Age Discrimination Act applies. Qantas's focus was therefore on s 18(4). In effect, Qantas proceeded on the assumption that it had discriminated against Captain Summers on the ground of his age but that it was not unlawful because of the exemption in s 18(4). Qantas relied on Qantas Airways Ltd v Christie (1998) 193 CLR 280, which it claimed was relevantly indistinguishable, and based on that case argued that Captain Summers' case had no reasonable prospects of success.
78 Before considering the respective arguments, it is useful to see what was actually decided in Christie.
79 Christie concerned a Qantas pilot who was dismissed after 30 years' service because he had reached the age of 60. Mr Christie sued Qantas in the Industrial Relations Court of Australia claiming that the termination of his employment was in breach of s 170DF(1)(f) of the Industrial Relations Act 1988 (Cth) (IR Act) which provided that an employer must not terminate an employee's employment by reason of age. By s 170DF(2), however, a matter referred to in para (1)(f) was not prevented from being a reason for terminating employment "if the reason [was] based on the inherent requirements of the particular position". In the present case, both parties considered that s 170DF(2) of the IR Act was relevantly indistinguishable from s 18(4) of the Age Discrimination Act, despite the reference in the latter subsection to "the particular employment" rather than "the particular position". This approach is questionable. In X v The Commonwealth (1990) 200 CLR 177 at [150] Kirby J remarked that the word "employment" is "somewhat broader".
80 Mr Christie had been employed as a pilot of B747-400 aircraft that were used for flying international routes. As was the position with Captain Summers, his letter of appointment and the relevant industrial agreements stipulated that he would be required to perform duties as required by Qantas in any part of the world where Qantas may from time to time be operating.
81 Under the terms of an agreement between the Australian Federation of Airline Pilots (later the Australian International Pilots' Association) and Qantas, the retirement date for pilots was set at 55. Pilots were able to extend their employment but not beyond the age of 60. At this time the Convention prohibited State parties from allowing a pilot who had attained that age to act as a pilot in command of an international air service and gave State parties the power to refuse entry to aircraft piloted by such a person. This was known as the Rule of 60 and it was the law in most of the countries on the routes flown by Qantas. Indonesia, Fiji and New Zealand were the only exceptions.
82 At first instance in the Industrial Relations Court, Wilcox CJ held that the rostering and bidding system employed by Qantas and the effect of the laws which had been enacted in most countries on Qantas routes to prevent pilots over the age of 60 from entering their airspace meant that it was an inherent requirement of Mr Christie's position that he had not attained the age of 60. Accordingly, his Honour dismissed the application. On appeal, the Full Court of the Industrial Relations Court, by a majority, set aside his Honour's order, holding that age was not an inherent requirement of the particular position.
83 By a majority, Kirby J dissenting, the High Court allowed the appeal, holding that there had been no breach of s 170DF(1)(f).
84 It was apparently uncontroversial that the particular position occupied by Mr Christie at the time of his termination was that of a captain of B747-400 aircraft flying international routes. Kirby J said at [164] that there was no doubt that the requirements of that particular position included the requirement that he be able to fly that aircraft anywhere in the Qantas network. Gummow J at [114] defined it more narrowly, however, as "the particular bundle of contractual rights and obligations, supplemented … by the operation of statute".
85 The Court was of the unanimous view that an inherent requirement is one which is essential, intrinsic, or indispensable to the position: Christie at [1] (Brennan CJ), [34] (Gaudron J), [74], [86] (McHugh J), [114] (Gummow J) and [164] (Kirby J). Each member of the Court except for Gaudron and Kirby JJ held that the termination of Mr Christie's employment because he had reached the age of 60 was lawful because he was unable to fulfil the inherent requirements of his particular position but their views differed as to the reason he was unable to do so. Brennan CJ at [3] considered that it was because he was unable to participate effectively and equitably in the bidding system, McHugh J at [86] because he was unable to fly to a reasonable number of the airline's overseas destinations, and Gummow J at [117] because availability for international service was an inherent requirement of the position according to his contract.
86 Gaudron J remarked at [36] that a practical way of determining whether a requirement is inherent is to ask whether the position would be essentially the same if the requirement were removed. In that case, therefore, the question was "whether the position would be essentially the same if it involved flying B747-400 aircraft only on those routes which remain available by reason of the enforcement of the Rule of 60". Her Honour held at [38] that, notwithstanding the limited destinations to which he could now fly, his position would be essentially the same as that he had previously occupied if he were able to comply with the Qantas roster system. Her Honour did not answer the question, however. Her Honour's view, which was not shared by the other members of the bench, was that the question could only be answered if the matter were remitted to the Full Court to answer the question whether Wilcox CJ had erred in holding that Mr Christie would need to use a large proportion of short flights that would otherwise be used to make up the hours of other captains flying the same aircraft.
87 Brennan CJ agreed with Gaudron J except in relation to the critical factual question. His Honour held at [2]-[3] that the ability to participate effectively in the bidding process on an equal footing with other Qantas international pilots of similar seniority was an inherent requirement of Mr Christie's position. Later, at [5] his Honour said:
The question is not whether Mr Christie would need to use a large proportion of short flights to make up his hours but whether he would necessarily make up his hours by excluding from his bids flights to or over those countries which apply the Rule of 60. As Mr Christie would be constrained to exclude flights to or over some countries from his bids, he could not participate equally with other pilots of similar seniority in the bidding system. His exclusion from flights to and from some destinations would require other pilots to be selected for duty on those flights more frequently than if Mr Christie had been available for that duty. Even if, the Rule of 60 apart, Mr Christie's seniority would have allowed him to exclude those flights from his bids which filled the required number of flying hours, that hypothetical exclusion would have been made in exercise of his rights as an equal participant in the bidding system. There would have been a continuing possibility of bidding successfully for the flights from which he is now compulsorily excluded. But his inability to bid and to be selected for some flights skews the equitable operation of the system.
88 For this reason, his Honour said that it was unnecessary to pursue the "large proportion of short flights" issue and a remittal to the Full Court was unwarranted.
89 McHugh J held at [42]-[43] that the age of an employee can be an inherent requirement of the particular position within the meaning of s 170DF(2) and at [86] that it was an inherent requirement of Mr Christie's position as a Qantas captain of international B747-400 routes that he have the physical, mental and legal capacity to fly B747-400 flights to any part of the world. His Honour went on to say at [86]-[87]:
It is true that a contractual requirement does not necessarily equate to an "inherent" requirement. However, it was essential that, at the very least, a pilot in Mr Christie's position should be able to operate a sufficient number of flights to meet the requirements of his employment with Qantas as an international pilot. It is probably the case, having regard to the terms of the employment contract, that the Captain of a Qantas B747-400 flying internationally should be able to fly to every Qantas destination. It is unnecessary, however, to decide that point in this case.
When Mr Christie turned sixty, he was unable to perform a large and essential part of his duties. Whether an inherent requirement of his position is identified by reference to his age or merely by reference to an ability to fly to a reasonable number of Qantas' overseas destinations is immaterial, as the former necessarily incorporates the latter. It is unnecessary to determine what conclusion might be reached if only a small number of countries imposed the sixty year age ban.
(Emphasis added.)
90 Gummow J said at [117] that the contractual requirement to be available for service in any part of the world where Qantas from time to time operates was a property or attribute that gave to any tasks and responsibilities which made up Mr Christie's duties their particular character. His Honour held that termination of employment at the age of 60 was therefore incidental to the requirement to be available for international service.
91 The following year, in X v The Commonwealth, the High Court considered a case of alleged disability discrimination in which an issue arose about the application to a soldier infected by HIV of the expression "unable to carry out the inherent requirements of the particular employment" in s 15(4) of the Disability Discrimination Act 1992 (Cth).
92 By this time the composition of the bench had significantly changed. Of the members of the majority in Christie, only Gummow and McHugh JJ remained. In X v The Commonwealth, the majority held that the inherent requirements of a particular employment are not confined to the performance of the tasks or the use of the skills for which the employee is specifically prepared (at [100] per Gummow and Hayne JJ, Gleeson CJ, McHugh J and Callinan J agreeing at [8], [30]-[37], and [170] respectively).
93 McHugh J explained at [35]-[36] that Christie stands for the proposition that the legal capacity to perform the employment tasks is, or at all events can be, an inherent requirement of employment and that in determining what the inherent requirements of a particular employment are it is necessary to take into account the surrounding context, unless context is excluded from consideration by statute or agreement. And what is an inherent requirement of a particular employment will usually depend on the way the employer has arranged its business. His Honour went on to say at [37] that "unless the employer's undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment". His Honour stated that "appropriate recognition" must be given to the business judgment of the employer in organising its undertaking and in regarding certain requirements as essential to the particular employment. For this reason his Honour explained, in Christie Qantas had no obligation to restructure the roster and bidding system it used for allocating flights to its pilots in order to accommodate Mr Christie.
94 Gummow and Hayne JJ, with whom Gleeson CJ and Callinan J agreed, confirmed at [102] that the reference to "inherent" requirements is a reference to "the characteristic or essential requirements of the employment" rather than those which might be described as "peripheral". Their Honours emphasised, however, that "the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee …". Wilcox CJ had made a similar point at first instance in Christie, in a passage cited by Gummow J in Christie at [117].
95 Their Honours held at [103] that it follows from the reference to both "inherent requirements" and "particular employment" that, in considering the analogous provisions of the Disability Discrimination Act, "it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on" (Gummow and Hayne JJ at [103]). Thus their Honours held at [106] that the identification of inherent requirements must begin with the terms and conditions of service.
96 The burden of proving that Captain Summers is unable to carry out the inherent requirements of his employment rests with Qantas: see, for example, Commonwealth of Australia v Human Rights & Equal Opportunity Commission (1996) 70 FCR 76 at 87-88 (Cooper J); Watts v Australian Postal Corporation (2014) 222 FCR 220 at [50] (Mortimer J); Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71 at [128] (Katzmann J). While none of these cases concerned s 18(4), they were all concerned with similarly worded provisions.
97 Despite Christie, Captain Summers submitted that he has a prima facie case that he is able to carry out the inherent requirements of his particular position for the following reasons.
98 First, the particular employment is that of captain of an A330 aircraft. That includes flying on domestic routes. Currently, flying on domestic routes occupies a significant proportion of flying time. He has the physical, mental, and legal capacity to fly on domestic routes. While the particular employment also includes flying on some international routes serviced by Qantas, it does not involve flying on every, or most, of those international routes. He has the physical, mental and legal capacity to fly on a reasonable number of those international routes.
99 Second, the particular employment includes participation in a roster system. That involves adjustments or allowances to reflect anti-discrimination principles.
100 Third, he is able to participate effectively in the roster system in that:
(1) he is able to submit EOIs for a bid period;
(2) he is able to be allocated flying due to his seniority;
(3) he is able to place preferential bids for a bid period;
(4) he is able to be allocated domestic flying and international flying to a majority of ports currently serviced by Qantas using A330 aircraft in accordance with his preferential bids;
(5) he will be allocated his preferential bids for domestic flying and international flying due to his seniority;
(6) there is no basis to suggest that the allocation of preferential bids to him will preclude other pilots being allocated their preferential bids according to seniority;
(7) Qantas has previously operated the roster system without suggested difficulty for pilots over the age of 65;
(8) Qantas currently operates a roster system without suggested difficulty for pilots the subject of age restrictions; and
(9) in all likelihood he would not be required to participate in a blank line roster until mid-2022 but even if he were, he could do so without restriction in the Australia-New Zealand part of the roster and for the majority of flights, as reflected in his ability to fly 88 of the 94 patterns open for blank line pilots since February 2021.
101 Fourth, in any event the requirement to participate in the blank line roster is not an inherent requirement of the particular employment since pilots with carer responsibilities do not participate in it.
102 Fifth, his inability to fly on some international routes "will not cause great disruption to the roster system" because the preferential bid system is based on position on the seniority list and Qantas had previously accommodated two long haul captains who flew B767 planes after they turned 65.
103 Sixth, the particular employment would essentially be the same if both the conditions did not apply.
104 Qantas characterised the "particular employment" of Captain Summers as a long haul pilot and A330 captain. It was not in dispute that Captain Summers is a long haul pilot so I doubt that the difference in characterisation is significant. But there are some difficulties with Captain Summers' submissions.
105 First, the fact that Captain Summers has been flying predominantly domestic routes over the last 12 months or so is undoubtedly relevant to the balance of convenience but I cannot see how it is relevant to the inherent requirements of the particular employment.
106 Second, the reference to "adjustments or allowances" by Qantas to reflect anti-discrimination principles picks up paragraph 103 of Captain Summers' affidavit:
I understand that the Respondent exempts pilots with carer's responsibilities from assignment to a blank line. I am not aware of any requirement under the Civil Aviation Regulations for the Respondent to provide such an exemption. I understand that the Respondent elects to exempt pilots with carer's responsibilities from assignment to a blank line.
107 But this exemption is not or not merely Qantas's choice. It is a requirement of the LHEA. It is incorporated in cl 16.8.4 of the Rostering Manual, which is Schedule 2 to the LHEA. I was not taken to any provision of the LHEA which would accommodate an adjustment or allowance to assist someone in Captain Summers' position.
108 Third, I think it is unarguable that participation in the blank line roster is an integral part of the roster system and an indispensable part of Qantas's operations.
109 Fourth, there is a dispute about the position of the two B767 captains. Captain Hicks' evidence was that by the time they had turned 65, 99% of the B767 total block hours were domestic, save for three flights a week from Sydney to Honolulu. He claimed that the situations were not comparable because in these circumstances retaining the pilots in the service presented no difficulty for Qantas and was not unfair to other pilots.
110 Nevertheless, this case is not on all fours with Christie. Unlike Mr Christie, Captain Summers was not engaged solely in international flying and since he has been employed as an A330 captain he has undertaken a significant amount of domestic flying. Unlike the aircraft flown by Mr Christie, the Qantas A330 is flown on limited international routes and the evidence adduced on this application indicates that Captain Summers is physically, mentally and legally capable of flying on the majority of routes serviced by the A330 fleet. The inherent requirements of Captain Summers' position, according to the information posted by Qantas on the pilots' website, includes operating to the majority of ports to which Qantas operates. On the evidence before me there is at least a prima facie case that he can meet those requirements.
111 The significance of these differences and any greater flexibility in the roster system is a matter for determination at any trial.
112 Besides, more than 30 years have passed since Christie was decided. It is well to recall the comments made by French CJ and Gummow J in Spencer v Commonwealth (2010) 241 CLR 118 at [25], admittedly in the different context of summary dismissal for want of reasonable prospects of success:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law.
113 While the analogy is an imperfect one, these observations are apposite here where the respondent asserts there is no prima facie case because the applicant has no reasonable prosects of success and when there was a disparity in the reasons of the majority judges in the authority upon which the respondent relied.