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Federal Court of Australia |
Last Updated: 19 October 1998
HUMAN RIGHTS - Alleged discrimination in employment opportunities - Age limit for applicants for appointment as Army Specialist Service pilots - Applicant informed of age limit and provision for waiver but that waiver would not be available and, consequentially, made no formal application - Whether applicant suffered discrimination in employment - Whether Commissioner posed wrong question in relation to exception dealing with "inherent requirements of the job" - Whether findings made without evidence.
Human Rights and Equal Opportunity Commission Act 1986 - ss3 and 31
Qantas Airways Limited v Christie [1998] HCA 18; (1998) 152 ALR 365 considered
COMMONWEALTH OF AUSTRALIA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND ROBERT BRADLEY
NG286 of 1998
JUDGE: WILCOX J
PLACE: SYDNEY
DATE: 16 OCTOBER 1998 IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: Applicant AND: First Respondent
ROBERT BRADLEY
Second Respondent JUDGE:
NEW SOUTH WALES DISTRICT REGISTRY NG286 of 1998
COMMONWEALTH OF AUSTRALIA
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
WILCOX J DATE OF ORDER: 16 OCTOBER 1998 WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The application for review filed by the Commonwealth of Australia be dismissed.
2. The Commonwealth of Australia pay the costs incurred in connection with that application by the respondents, Human Rights and Equal Opportunity Commission and Robert Bradley.
3. The application for review filed by Robert Bradley be dismissed, with no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG286 of 1998 |
|
BETWEEN: | COMMONWEALTH OF AUSTRALIA
Applicant |
|
AND: | HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent
ROBERT BRADLEY Second Respondent |
|
JUDGE: | WILCOX J |
| DATE: | 16 OCTOBER 1998 |
| PLACE: | SYDNEY |
The facts
Mr Bradley complained to the Commission that the Commonwealth discriminated in employment on the basis of age in that it declined to regard persons over 28 years of age as being eligible for appointment to the Army's Specialist Service Officer ("SSO) Pilot Scheme.
Mr Bradley is an experienced helicopter pilot. On 22 April 1993 he attended the Army recruiting unit in Townsville to inquire about entry into the SSO Scheme. He was then 37 years old. Mr Bradley was interviewed by Corporal Keith Chambers. Corporal Chambers told Mr Bradley the eligibility requirements for SSO entry, including that recruits be aged between 19 and 28 years on the date of appointment. However, it seems Corporal Chambers indicated a possibility of the Army waiving this requirement and suggested Mr Bradley contact Captain Dan Cullen of 5 Aviation Unit Townsville. Mr Bradley did this. He had two conversations with Captain Cullen. Apparently, Captain Cullen gave Mr Bradley to understand there might be a possibility of an age waiver but was unable to be clear about this.
Mr Bradley telephoned Corporal Chambers, on 6 May 1993, and explained the position. Corporal Chambers said he would contact the officer-in-charge of aircrew arrangements in Canberra, Major Power. Subsequently, Mr Bradley was advised by Corporal Judith Pitson that Major Power had asked her to advise Mr Bradley he was unsuitable for appointment due to his age; the maximum entry age was 28 years. Apparently, Corporal Pitson had passed on to Major Power Mr Bradley's inquiry about a waiver but Major Power was unwilling to offer that prospect. Corporal Pitson quoted a comment of Major Power about the Army's ability to be selective due to the availability of suitably aged applicants.
Understandably in the circumstances, Mr Bradley did not make a formal application for appointment to the Scheme. Believing there was no chance of this and that the Army's policy was discriminatory, on 11 May 1993 he made a formal complaint to the Regional Director of the Commission. Mr Bradley attached to his letter a copy of a document issued by the Army explaining the SSO Scheme. It included the following information:
ARMY PILOT
The Specialist Service Officer (SSO) Pilot Scheme is a scheme to produce sufficient pilots on short service commissions to operate the Army's aircraft. The scheme is open to civilian and Service applicants.
Applicants are not required to hold any professional qualifications and prior flying experience is not necessary. Successful applicants will be taught to fly and, if successful, will be employed for the remainder of their appointment flying Army aircraft.
The quality of training and experience gained in demanding flying and the number of flying hours accrued on at least one Army aircraft type is sufficient to qualify for a civil commercial pilot licence and with further study, a senior commercial pilot licence.
To be eligible for appointment applicants must:
a. be an Australian citizen or be eligible to become one;
b. have a minimum four subject passes in Year 12, or equivalent, which include English, mathematics and physics (physics pass may be at Year 11 level);
c. meet the Army Aviation medical and dental requirements;
d. meet the current security clearance and civil check requirements;
e. be aged between 19 and under 28 on the date of appointment; and
f. be assessed as suitable by a Selection Board.
Successful applicants will be appointed for an initial period of six years with the first 12 months being a probationary period. Selected pilots may be offered a further five years appointment at the completion of the initial appointment period.
Whilst undergoing training SSOs will hold the rank of Officer Cadet. Upon graduation as a pilot you will be commissioned as a Lieutenant in the Australian Army."
In his letter Mr Bradley wrote:
"After explaining my flying training & experience to Corporal Chambers and Captain Cullen, both indicated it may be possible to have an `age waiver' applied through entry as a Specialist Service Officer Army Pilot.
My helicopter training is of particular relevance to this application as I was trained by ex-Australian Army helicopter instructors. I required this military standard of training as I purchased my own small helicopter in 1982 to specialise in flying agricultural and confined area operations shortly after completing my training. To safely engage in these activities would not have been possible if I had not been trained to a military standard.
Further to training, I draw your attention to attachment page 3 paragraphs c & d and estimate the combined cost of training to be $87000. Accordingly, I believe my conversion to military standard on these aircraft could be achieved for $18000 approximately for both c & d.
I request your assistance in this matter as I have been denied the opportunity to adequately demonstrate my qualifications and experience due to a lack of lateral thinking both commercially and operationally. Please contact me should you required further explanation of details."
The Commission advised the Australian Defence Force of Mr Bradley's complaint. In a letter dated 10 November 1993, Wing Commander R J Johns confirmed the requirement that SSO appointees be under 28 years at the date of appointment. He said:
"3. ... the upper age limit was set to enable an officer to have a structured career progression and an opportunity to reach higher ranks. This upper age limit also supports the Army promotion system which uses promotion zones. An Army officer is only considered for promotion over a period of two to three years which guarantees the youth of officers entering the next higher rank. Use of specific entry ages therefore ensures equitable promotion chances.
4. The Director of Army Aviation has advised that from a technical training perspective `... learning is defined as a relatively permanent change to behaviour which is the result of re-enforced practical experience. Obviously the younger a trainee the more adaptable to learning he or she is. Some experienced commercial pilots have not been able to modify their behaviour to meet the military requirement.'
5. Waiver approval may be sought for an applicant who does not meet the selection criteria (whether through age, medical fitness etc) but who is considered to possess special skills or qualifications which may warrant waiving one or more of the initial criteria. An applicant has no entitlement to have a waiver request processed. That is a decision made by recruiting staff on the basis of vacancies and suitable applicants. Should Army be unable to fill vacant positions with applicants who meet the initial selection criteria, then the recruiting staff may seek approval from Army Office in Canberra to grant a waiver.
6. The possession of flying skills is not a guarantee of the successful completion of the demanding pilot training course. It appears from Mr Bradley's letter that he expected to transfer directly into the services as a qualified Army pilot without undergoing the basic flying training (his quote on costs and misinterpretation of the advertisement.) Also, Mr Bradley refers to being trained to military standards and having significant operational experience. He may have been trained by ex military instructors, but that is not the same thing as being trained to military standards. Experience has shown that individuals with a significant civilian flying background can have difficulties adjusting to the military aviation environment."
The Commission endeavoured to conciliate the complaint but without success. On 31 May 1994, after the conciliation conference, Wing Commander Johns wrote a further letter in which he provided the following information:
"Inherent Requirements of Military Flying
2. The specific purpose of the SSO pilot entry scheme, for which Mr Bradley made application, is to bring in to the Army and train personnel for employment as line pilots in one of the Aviation Regiments. The Army has no need to recruit pilots specifically for employment as flying instructors, as there is an adequate pool of pilots who have gained experience in the Regiments from which to select flying instructors at an appropriate time in their flying careers.
3. As Lieutenant Colonel Brock and I tried to explain during the course of the conference, military flying cannot be related to any form of civilian flying, even the relatively adventurous type of flying that Mr Bradley has been performing. With few exceptions, military pilots are required to undertake tactical flying under combat conditions. The effect of this is that the inherent risks in the type of flying undertaken by, say, agricultural pilots are compounded several fold by the following factors involved in flying military helicopters:
a. the aircraft is likely to be under direct fire from enemy forces;
b. missions are carried out in relatively high performance aircraft operating close to the ground, in adverse weather and environmental conditions at any hour of day or night;
c. the mission is likely to involve a number of aircraft operating together in close proximity;
d. the pilot is required to maintain an awareness and appreciation of the tactical situation affecting his or her own and other aircraft;
e. the pilot is operating in a multi-crew environment;
f. the aircraft is likely to be carrying passengers and/or dangerous cargo; and
g. the pilot can be required to live in and operate from arduous field conditions.
4. This type of flying requires a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved. The training involved to enable an entrant to reach the standard required for a military pilot, and an Army officer in the general sense, is long and intensive in both the physical and mental demands.
5. Combat flying has been described as a young person's game. As can be seen by the description of the inherent requirements, the stresses, both physical and mental, on a combat pilot are considerable. The following factors, gained through medical data and experience in the ADF and a number of overseas military organisations, establish a direct correlation between the age of pilots and their ability to safely and effectively perform in a combat flying environment:
a. Medical Fitness. A considerable bank of data is available to establish that, on a statistical basis, a high percentage of persons in the 35 year plus age bracket develop one or more medical conditions which disqualify them or severely restrict their capacity to maintain a medical flying category suitable to military aviation (common are eyesight deterioration, hearing loss, degenerative back problems, particularly in rotary wing pilots, cardiovascular disease and hypertension);
b. Physical Performance. Medical data shows that, for persons in excess of 35 years of age, there is a marked deterioration in reaction time and the capacity to withstand and recover from the stresses involved in military flying;
c. Training Failures. Experience in Australian and overseas armed forces has shown that mature aged qualified pilots encounter a high incidence of difficulty in `unlearning' acquired habits and skills to adapt to the unique requirements of military aviation. Also the physical, psychological and social stresses encountered during training are such that an older entrant would be a very high risk of failure;
d. Peer Group Integration. The average age of line pilots in the Army's two Aviation Regiments is around 23 years and the actual deviation from that mean is small. Consequently, someone who is almost a generation older would inevitably experience problems in integrating with that group where teamwork, mutual trust and acceptance can literally be a matter of life or death; and
e. Return on Investment. Even if a person of Mr Bradley's age could meet all requirements for entry as a pilot, and successfully complete the training, the likelihood of him developing some disqualifying medical condition in the near future is very high, with the consequential effect that the Army would not recoup sufficient service from him to justify the very high cost of training.
6. The ADF, like other defence forces, does have personnel in Mr Bradley's age bracket who are employed as pilots, some of them flying high performance aircraft. But, without exception, such personnel are in managerial and supervisory positions. While they maintain currency on a particular aircraft type in order to carry out their supervisory and evaluation responsibilities, their role is not that of a line pilot whose prime task is to fly combat missions.
7. Military aviation is a hazardous and stressful occupation, with no comparable equivalent in civil aviation. Considerations of operational effectiveness and the duty of care to all personnel involved in military aviation, including non-aircrew personnel who are required to fly as passengers in military aircraft, are paramount. Such considerations, in the face of specialist medical advice, coupled with the requirement to cost effectively employ public funds allocated for Defence, make the enlistment of `older' personnel for pilot training an unacceptable risk."
This letter was referred to Mr Bradley. On 9 June 1994 he responded:
"1. It is my understanding there is no definition of `Inherent Requirement' in the `Act' covering age discrimination. Accordingly, in the absence of a definition I do not accept their rejection based on inherent requirement.
2. From a helicopter pilot's perspective, there is nothing in the response that leads me to think I could not perform the same `line' (combat) pilot duties as a 23 year old individual with no aviation background prior to training.
3. In essence the response lacks substance and as they have decided upon rejection then I request you pursue compensation negotiations through your Commissioner with the Federal Attorney General."
The Commission inquiry
The complaint was referred to the Human Rights Commissioner, Chris Sidoti. After reaching a preliminary view that the refusal to accept Mr Bradley into the SSO Scheme constituted discrimination, Mr Sidoti conducted a hearing on 3 and 4 February 1997. Mr Bradley appeared in person and the Department of Defence was represented by counsel and a solicitor. Counsel for the Department adduced telephone evidence from five witnesses.
On 5 March 1998 Mr Sidoti issued a decision in which he upheld Mr Bradley's complaint and recommended he be awarded $5,000 compensation. In his reasons for decision, Mr Sidoti noted four issues:
"- whether there is an act or practice under the Act 1986
- whether the act or practice arises in employment or occupation
- whether there was an [sic] distinction based on age
- whether the distinction nullified or impaired equality of opportunity."
Mr Sidoti added:
"If I find that the complaint involves an act or practice arising in employment or occupation and that there was a distinction based on age which nullified or impaired equality of opportunity, then I must consider whether the distinction was based on the ability of the complainant to fulfil the inherent requirements of the job."
Although Mr Sidoti did not at this point refer to the definition of "discrimination" in s 3 of the Human Rights and Equal Opportunity Commission Act , he obviously had it in mind. That definition relevantly reads:
" `discrimination' means:
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(b) any other distinction, exclusion or preference that:
(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;
but does not include any distinction, exclusion or preference:
(c) in respect of a particular job based on the inherent requirements of the job; or
(d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed;"
Regulation 4(a)(i) of the Human Rights and Equal Opportunity Commission Regulations declares "any distinction, exclusion or preference made on the ground of age" constitutes discrimination for the purposes of the Act.
Mr Sidoti also no doubt had in mind his function under s 31(b) of the Act "to inquire into any act or practice that may constitute discrimination".
In relation to the first of the issues he had identified, Mr Sidoti noted Mr Bradley's claim "there was both an act and practice of discrimination by the respondent on the basis of age". He said the respondent did not dispute this claim.
In relation to the question whether the act or practice arises in employment or occupation, Mr Sidoti referred to a contention by the Department that Mr Bradley had no standing to complain because he had not made a formal application for appointment to the training scheme; he had merely made preliminary enquiries. It was argued it followed Mr Bradley was not a person who had suffered loss or damage as a result of any act or practice of the respondent in employment. Mr Sidoti dealt with the submission in this way:
"The Act does not require the complainant to be an aggrieved party in the sense that other Commonwealth anti-discrimination legislation requires a complainant to be personally aggrieved by the conduct complained of. Further, it is reasonable that a person, after inquiring about a position and being told he or she was unsuitable because of a characteristic that cannot be changed, such as age, would not proceed to lodge a written application. The circumstances would be different where someone was told he or she was unsuitable to apply for a position because, for example, of insufficient experience. If there had been a misunderstanding at the time of inquiry about the applicant's level of experience, the applicant could then address his or her experience in a written application. However, where someone asks for information about a position and is told an age criterion precludes a successful application, it would be an improper restriction on the application of this legislation to then hold that by not proceeding to lodge a formal application the person's complaint did not arise in the context of employment.
Since the complaint arises in relation to inquiries about an employment opportunity I am satisfied that the act or practice complained of arises in employment."
It was conceded the distinction made by the respondent was based on age and that it nullified or impaired equality of opportunity.
Mr Sidoti then turned to the major issue before him: whether the distinction was based on the inherent requirements of the job. In discussing that issue he referred to two authorities: Qantas Airways Ltd v Christie (1997) 138 ALR 19 (Full Court, Industrial Relations Court of Australia) and Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 (Full Court, Federal Court of Australia, "the HIV case"). After summarising the submissions placed before him by the parties, Mr Sidoti went on:
"I am satisfied from the submissions put by the respondent and the oral evidence adduced at the hearing that the respondent included the stipulated age range in the application criteria as part of a genuine attempt to ensure that applicant pilots would be physiologically and psychologically equipped to complete their training successfully and that they would do so at an age where the respondent would be able to recoup its training expenditure. However, I am not satisfied that the exclusion of persons such as the complainant from employment as military line pilots based only on the fact that they fall outside the age range of 19 to 28 years is non-discriminatory on the basis that the age-bracket is an inherent requirement of the job of a military line pilot.
Being within the stipulated age bracket is but one of several criteria stipulated by the Army for eligibility for appointment. The other criteria could most probably be defended as inherent requirements: that an applicant must be an Australian citizen or be eligible to become one; that an applicant must have a minimum of four subject passes in Year 12, or equivalent, which include English, mathematics and physics (physics pass may be at Year 11 level); that an applicant must meet the Army Aviation medical and dental requirements: that an applicant must meet the current security clearance and civil check requirements and be assessed as suitable by a Selection Board.
The concerns raised by the Army to justify the age criterion are arguably met by these other selection criteria, in particular the medical criterion. For this reason the age criterion is not necessary to achieve the Army's purpose in imposing the criterion. In its defence of the age criterion the respondent stated that the nature of military flying requires a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved. There is no direct correlation between a person's age and medical fitness. In any event, the requirement that applicants meet the Army Aviation medical and dental requirements would achieve the maintenance of the Army's medical and fitness standards directly, more assuredly and more appropriately than an arbitrary age requirement.
I am also not satisfied of the relevance of age to the other factors raised by the respondent. It argued that these factors established a direct correlation between the age of the pilots and their ability to perform safely and effectively in a combat flying environment. As in relation to the medical fitness requirement these other criteria are better assessed directly rather than indirectly through the arbitrary use of age as a proxy. As with medical fitness, the other criteria need to be assessed individually for all applicants. Physical performance and reaction time should be individually assessed in the medical or aptitude examinations.
I also consider that the respondent's Assessment Board would be able to assess an applicant's suitability for `unlearning' acquired habits and skills to adapt to the requirements of military aviation and for peer group integration. Again, while these may be inherent requirements of the job, I find that there is insufficient evidence to establish a direct correlation between an applicant's age and the ability to meet these criteria. The respondent does not need to use age to achieve the ends sought. Indeed doing so may well have the very opposite effect to that intended. It may well result in unsuitable people being recrated simply because they are under the designated age.
The respondent also argued that the age criterion is necessary to ensure the respondent's return on investment. It asserted that the likelihood of an older trainee developing some disqualifying medical condition in the near future is very high with the consequential effect that the Army would not recoup sufficient service from him or her to justify the very high cost of training. While return on investment is obviously relevant this consideration cannot form the basis for making age an inherent requirement of the position. I note that the ILO Committee of Experts states in its Report that `exclusively economic reasons do not constitute a justification'. Consideration of the potential for return on investment could form part of the criteria used by the Assessment Board when assessing an applicant's overall suitability but it should be assessed directly and not assumed because of the individual's age.
I do accept that in some circumstances it may be appropriate to use age as a proxy. For example, it would be futile to require the respondent to assess persons below fifteen years or over seventy years for acceptance to the SSO scheme. However, it is only acceptable to use an age proxy where there is no, or so little, possibility of someone in that age group being able to comply with the inherent requirements of the job that to require the respondent to expend resources on assessing the applicant through the selection process would be unreasonable.
It may be that, as the respondent argues, more persons outside the stipulated age bracket may fail to meet the admission standards. However, these applicants are entitled to be assessed on their individual merits and, if they fail, to fail on the basis of their failure to meet specific medical or fitness or suitability standards that apply to all applicants, and not because they fall within a stipulated age bracket, regardless of their ability to meet the other criteria. Conversely, applicants outside the stipulated age bracket who can meet the other selection criteria ought to be able to be admitted for training and not excluded on the basis of an arbitrary age distinction.
I am not satisfied that the exclusion of persons, such as the complainant, outside the age range of 19 to 28 years from employment as military line pilots is based on the inherent requirements of the job of a military line pilot. Accordingly, I find that the acts and practices complained of by the complainant constitute discrimination in employment based on age."
After referring to Mr Bradley's submission concerning compensation, Mr Sidoti concluded:
"I do not consider that it is appropriate that I make the recommendation proposed by the complainant. There is no evidence that, even if the respondent had accepted the complainant's application to join the scheme, the complainant would have ultimately been accepted into the scheme. His loss, therefore, is the loss of the opportunity to be assessed on his individual merits. This loss has been seen in other matters as justifying a small award or recommendation of damages. I do recommend that the complainant be awarded compensation for his loss as a consequence of the discrimination in the sum of $5,000."
The application for review
On 6 April 1998 the Commonwealth filed an application for review of the Commission's decision, pursuant to the Administrative Decisions (Judicial Review) Act 1977 . The application cited five alleged errors of law:
"1. The first respondent erred in law by finding that a person who has not applied for appointment as a military line pilot suffered discrimination in employment.
2. The first respondent erred in law by posing for himself the wrong question, i.e. by inquiring into whether an age bracket is an inherent requirement of the job of a military line pilot rather than whether the exclusion of persons outside a particular age bracket is based on the inherent requirements of the job of a military line pilot.
3. The first respondent erred in law by informing himself, in the absence of evidence, that a medical and dental examination of an applicant would meet the concerns raised by the applicant's evidence regarding the development of disqualifying medical conditions in persons over the age of 35 years, and the marked deterioration in reaction time and recovery from stress in persons over the age of 35 years.
4. The first respondent erred in law by informing himself, in the absence of evidence, that an Assessment Board would be able to assess an applicant's suitability for `unlearning' acquired habits and skills, and capacity for peer group integration.
5. The first respondent erred in law by directing himself that it is only acceptable to use an age proxy where there is no, or so little, possibility of someone in the age group being able to comply with the inherent requirements of the job that to require the applicant to expend resources on assessing the applicant through the selection process would be unreasonable."
The hearing of this application was conducted by video-link between Sydney and Brisbane. Miss Rhonda Henderson, counsel for the Commonwealth, first argued ground 1 and then argued together grounds 2 and 5 and grounds 3 and 4. I will divide my consideration of her argument in the same way.
Mr Bradley responded to the Commonwealth's application by filing his own application for review. He suggested a breach of the rules of natural justice in relation to the assessment of appropriate compensation and sought review of the amount of compensation recommended to be paid. However, at the hearing, his counsel, Mr Dan O'Gorman, indicated Mr Bradley did not wish to press this application. He invited me to dismiss it in due course. I will do so.
The failure formally to apply
Commissioner Sidoti found, and it is common ground, that Mr Bradley did not make a formal application for appointment to the SSO Scheme. Miss Henderson argues it follows there was no basis for a finding by the Commission that he was the subject of discrimination as a result of an act or practice in relation to employment. In her written submissions, she said:
"A person who makes no application for employment, and therefore affords a prospective employer no opportunity to determine whether or not to employ him/her, cannot be said to have suffered discrimination in employment."
In oral submissions, Miss Henderson referred to evidence about the possibility of a waiver in Mr Bradley's case; but, she said, this possibility was not tested. Mr O'Gorman responded by drawing attention to the unchallenged claim of Mr Bradley about his conversations with Corporal Pitson. It seems clear these included reference to the possibility of an age waiver, but he was told Major Power was unwilling to entertain that possibility due to the number of suitably aged applicants. This was an indication of attitude at a very senior level.
Mr Sidoti dealt with this issue by holding that:
"where someone asks for information about a position and is told an age criterion precludes a successful application, it would be an improper restriction on the application of this legislation to then hold that by not proceeding to lodge a formal application the person's complaint did not arise in the context of employment."
I see no error in that approach. Although there was a theoretical possibility of waiver of the age requirement, it seems clear nobody exercising authority in the Army or Australian Defence Force was willing to give serious consideration to that possibility. The reason, no doubt, was that stated by Major Power; there were plenty of suitably aged applicants. Although Mr Bradley made no formal application for employment, he submitted a letter of complaint to the Commission on the same day he was told by Corporal Pitson that Major Power considered him unsuitable on account of age. Wing Commander Johns wrote a letter in response, dated 10 November 1993, in which he referred to the possibility of waiver of selection requirements but made it clear that a waiver approval would only be available if the Army were "unable to fill vacant positions with applicants who meet the initial selection criteria". Miss Henderson told me that, at the time of Mr Bradley's enquiry, there were about 350 suitably qualified applicants for the 19 vacancies in the SSO Scheme. It follows there would have been no possibility of an age waiver in Mr Bradley's case; it would have been futile to lodge a formal application. The age limit effectively deprived Mr Bradley of any chance of appointment to the SSO Scheme.
Whether the Commissioner asked the wrong question
Miss Henderson drew attention to the fact that, at the outset of his legal summary, Commissioner Sidoti said "an employer may discriminate on the basis of age where age is an occupational requirement justified by the nature of the job". She said this formulation of the issue led the Commissioner into the error of requiring the Commonwealth to demonstrate "that no person over 28, or an insignificant number of persons in that age group, could perform the work of Army pilots". She argued the error was made plain later in Commissioner Sidoti's reasons when he said:
"... it is only acceptable to use an age proxy where there is no, or so little, possibility of someone in that age group being able to comply with the inherent requirements of the job that to require the respondent to expend resources on assessing the applicant through the selection process would be unreasonable."
Miss Henderson submitted the issue that Commissioner Sidoti should have addressed was "whether the Army's practice of specifying that applicants for the Specialist Service Officer Pilot Scheme must be over 19 and under 28 was based on the inherent requirements of the job". She emphasised the words "based on", arguing they did not require a perfect correlation between age and fitness for the job.
Mr O'Gorman did not contend there must be a perfect correlation between age and fitness for the job; but he said the correlation must be close, otherwise the object of the legislation would easily be defeated. He submitted the Commissioner did not misunderstand the nature of the issue; he noted that, early in his reasoning, Commissioner Sidoti stated the issue in these terms: "whether the distinction was based on the ability of the complainant to fulfil the inherent requirements of the job".
In debating this issue, both counsel made reference to the decisions in Christie. Commissioner Sidoti mentioned only the Full Court decision in that case; the High Court decision upholding Qantas' appeal had not yet been given. Miss Henderson suggested Commissioner Sidoti followed what she called the "narrow construction" of the notion of inherent requirements adopted by the Full Court majority, but the High Court held that construction erroneous. I think there was a difference between the majority in the Full Court and the majority in the High Court as to what were the inherent requirements of Mr Christie's position. In the Full Court Gray J (138 ALR 19 at 31) took the characteristics of Mr Christie's position as being "that he was:
(a) employed by (Qantas);
(b) as a pilot;
(c) to fly internationally;
(d) as a captain;
(e) of B747-400 aircraft ..."
He said that, on that characterisation, it could not be said it is an inherent requirement of the position that its holder be aged less than 60; there were three overseas destinations (Denpasar in Indonesia, Fiji and New Zealand) to which Mr Christie could fly B747-400 aircraft for Qantas. It did not matter that he would be precluded from flying to or over countries on other Qantas routes. Nor did it matter that, as a result of that limitation, it would be difficult to accommodate the Qantas rostering system to Mr Christie's continued employment.
Marshall J at 40 adopted a similar approach. He rejected the view it was necessary for Mr Christie "to be able to fly to any part of the world in order for him to be a Qantas B747-400 captain". His Honour said:
"He was capable of being rostered so that his services were utilised in flying to locations where he was not prohibited from so doing by the laws of other countries. The difficulties which ensue for the respondent in organising its rosters do not mean that the s 170DF(2) defence is made out. Rather, they are difficulties that are relevant to practicability of reinstatement as a remedy pursuant to s 170EE of the Act."
The majority of the High Court Justices who sat in Christie thought the employer's manner of organisation was relevant. Brennan CJ said (152 ALR 365 at 366):
"The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation. In so saying, I should wish to guard against too final a definition of the means by which the inherent nature of a requirement is determined. The experience of the courts of this country in applying anti-discrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.
At 367 the Chief Justice referred to the bidding system and said:
"The essential requirements of the position were, apart from the necessary aeronautical skills and licences, a capacity to fly on Qantas' international routes and a consequential ability to participate effectively in the bidding process equally with other Qantas international pilots."
Gaudron J, with whom Brennan CJ agreed on this point, said at 374-375:
"There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas' international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as `the characteristic tasks or skills required in being a pilot', as did Marshall J in the Full Court, is to overlook its international character.
Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship."
Later her Honour said:
"A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with."
McHugh J at 383 drew a distinction between Mr Christie's "job" (which was to captain international flights) and his "position" (as captain of Qantas B747-400 aircraft flying internationally). [The provision under consideration in Christie, s 170DF(2) of the Industrial Relations Act 1988 , used the word "position" whereas para (c) of the definition of "discrimination" in the Human Rights and Equal Opportunities Act 1988 speaks of "the inherent requirements of the job"]. McHugh J went on:
"What is an inherent requirement of the position of captain of such an aircraft is not necessarily an inherent requirement of the tasks that the captain performs, and an inherent requirement of the tasks of that captain is not necessarily an inherent requirement of the position. In the report of the International Labour Organisation's Commission of Inquiry into the observance of the Discrimination Convention by the Federal Republic of Germany, `inherent' was interpreted to mean `existing in something as a permanent attribute or quality; forming an element, especially an essential element, of something; intrinsic, essential'. The term `inherent' in s 170DF(2) should be given the same meaning. Importantly, for the purposes of this case, that which is essential to the performance of a particular position must be regarded as an inherent requirement of that position."
Gummow J at 394 referred to "the primary requirement" of Qantas that Mr Christie be available for service in any part of the world. He said:
"This requirement of availability for service in any part of the world where Qantas from time to time operates was a property or attribute which gave to any tasks and responsibilities which made up the duties of Captain Christie their particular character."
Kirby J dissented. He thought the requirements of the particular position held by Mr Christie included "that he be able to fly a B747-400 aircraft anywhere in the Qantas network", but this was not an "inherent" requirement of the position: see 412.
Although Commissioner Sidoti did not have the benefit of the High Court Christie decision when he determined Mr Bradley's complaint, he did not, I think, interpret the phrase "inherent requirements of the job" inconsistently with the view of the High Court majority. Specifically, he took account of employment operational factors. He referred to the need for SSO pilots to possess "a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved". The reason why he determined the complaint adversely to the Department of Defence was that he saw "no direct correlation between a person's age and medical fitness". Commissioner Sidoti expressed the opinion that "the requirement that applicants meet the Army Aviation medical and dental requirements would achieve the maintenance of the Army's medical and fitness standards directly, more assuredly and more appropriately than an arbitrary age requirement'. Inferentially, he was saying the age distinction was not based on the inherent requirements (fitness etc) of the particular job. The critical matter was not the applicant's age but his or her possession of the required fitness characteristics; age was relevant, only as a "proxy", to the extent it can confidently be asserted that people above a certain age will not meet the required fitness standards. However, nobody suggested this could be said about 37 year olds. Indeed, there was evidence to the contrary. Colonel R E Walford of the Directorate of Aviation-Army has had 23 years experience as a qualified Army pilot and over 4,700 hours flying experience (including over 1,200 hours as a military flying instructor). During the course of his oral evidence, this dialogue ensued:
"THE COMMISSIONER: Are you saying that invariably a younger person will always present a lesser training risk than an older person; a younger person will always have instinctively quicker reactions than an older person; to refer to some of your criteria in paragraph 1, that a younger person will always cope better with prolonger periods of physical and emotional trauma and so forth?
COL WALFORD: Yes. Well, I must admit, to say `always' is pretty categoric and probably an unwise statement to make. I think it's an issue of relative performance for each individual as they age and I would imagine you have had evidence from medical and psychological people far more qualified to comment on that than myself. These comments that I have presented are ones which are based on a given individual and the fact that over time their reaction times will increase. Obviously there are some older pilots whose reaction times are so acute that they probably are faster than some younger pilots. I guess what we're talking about here is the average performance of a body of younger pilots versus a body of older pilots or the detriment in performance of younger pilots as they age.
There are always going to be older pilots who do things better than younger pilots in terms of manipulative skill, quick reaction and indeed in some cases, looking at some younger people nowadays, in terms of physical fitness. Some older people may well have better ability to cope with physical and emotional stress than younger people. What I'm referring to is the mean of the population, I suppose." (Emphasis added).
I have considered whether a distinction ought to be drawn between Christie and the present case because of differences in the statutory contexts of the term "inherent requirements of the job" (or position). In particular, is there any difference in the connotation, in the two contexts, of the words "based on"?
Christie was a claim of unlawful termination of employment. On the view adopted by the High Court majority, Qantas had terminated Mr Christie's employment because of his age (60 years). Section 170DF(1)(f) of the Industrial Relations Act proscribed the termination of an employee's employment for the reason of age unless - see s 170DF(2) - the reason for termination "is based on the inherent requirements of the particular position". In considering whether the s 170DF(2) defence is made out - the onus being on the employer: see s 170EDA(2) - the Court must consider the circumstances of the particular employee. It is not enough for an employer to rely on a generalisation like that embodied in the age 60 rule, relative to the "medical" justification for termination of Mr Christie's employment. Is the situation different in relation to the definition of "discrimination" in s 3 of the Human Rights and Equal Opportunity Commission Act 1975 ? I think not. It is true the definition uses nouns, "distinction", "exclusion" and "preference", that are capable of covering a general policy determination. But the definition requires attention to the application of those nouns to "a particular job" and its inherent requirements. That being so, the situation is not materially different from that which arose in Christie, where the Court was concerned about the application to a particular termination of a general policy concerning retirement.
The term "based on" requires more than a logical link. The Macquarie Concise Dictionary gives, as the meaning of the verb "base" when followed by "on" or "upon", "to establish, as a fact or conclusion". So the distinction, exclusion or preference must be established upon the inherent requirements of the particular job. The correlation must be, at least, close.
This understanding of the term is supported by the analysis of Sackville J, in Australian Medical Council v Wilson (1996) 68 FCR 46, of the use of the term "based on" in s 9(1) of the Racial Discrimination Act. That subsection makes it unlawful "for a person to do any act involving a distinction ... based on national ... origin". Sackville J said (at 76):
"The most obvious case of a distinction based on national origin is one where a distinction is imposed expressly by reference to a person's national origin. If, for example, a medical college explicitly denied admission to all persons of Indian origin, that act, or the distinction involved in the act, would clearly be based on national origin. ... Even where the act or distinction is not expressly based on national origin, if the criterion actually applied by the alleged discriminator is national origin that is enough to attract the legislation." [Original emphasis]
In the present case, there are policy reasons for requiring a tight correlation between the inherent requirements of the job and the relevant "distinction", "exclusion" or "preference". Otherwise, as Mr O'Gorman pointed out, the object of the legislation would readily be defeated. A major objective of anti-discrimination legislation is to prevent people being stereo-typed; that is, judged not according to their individual merits but by reference to a general or common characteristic of people of their race, gender, age etc, as the case may be. If the words "based on" are so interpreted that it is sufficient to find a link between the restriction and the stereo-type, as distinct from the individual, the legislation will have the effect of perpetuating the very process it was designed to bring to an end. So it is not appropriate to reason that, because extreme fitness is an inherent requirement of the job of an SSO pilot, and younger pilots tend to be more fit than older pilots, therefore the requirement that SSO pilots be under 28 years of age on appointment is "based on" the requirement of fitness. Unless there is an extremely close correlation between the selected age and the fitness requirement, so that the age may logically be treated as a proxy for the fitness requirement, the legislation will have the effect of damning individuals over 28 years by reference to a stereo-typical characteristic (less physical fitness) of their age group.
In his reasons for decision Mr Sidoti permitted himself some looseness of language. He said at one point that he needed to "consider whether the requirement that the applicant be aged between 19 and 28 years of age is an inherent requirement of the job". But that was not the way the Defence Department's case was put to him. According to that case the inherent requirements of the job included the specified high level of physical fitness, mental acuity etc; it was said the best method of ensuring that applicants would have these characteristics was to adopt the 28 year age limit.
If I thought this looseness in language had caused Commissioner Sidoti to ask himself the wrong question, I would be obliged to set aside his decision and remit the complaint for re-determination. But I do not. When the Commissioner's reasons are read as a whole, it becomes clear he correctly identified the true inherent requirements of the job and considered whether an age restriction was fairly based on them. Because of the poor correlation between the age restriction and the inherent requirements, he concluded it did not. It was not enough that "more persons outside the stipulated age bracket may fail to meet the admission standards"; applicants were entitled to be assessed on their individual merits rather than by reference to some preordained rule.
Absence of evidence
Grounds 3 and 4 of the application for review complain of an absence of evidence concerning two findings of Commissioner Sidoti. The first matter is not accurately stated in ground 3. Commissioner Sidoti said "the requirement that applicants meet the Army Aviation medical and dental requirements would achieve the maintenance of the Army's medical and fitness standards directly, more assuredly and more appropriately than an arbitrary age requirement".
Two comments may be made about ground 3. First, once Commissioner Sidoti found that a requirement that applicants be under age 28 at the time of appointment was not based on an inherent requirement of a job as an SSO pilot, it was not his obligation to tell the Army how best to ensure appointees met its demanding standards; that was a matter for the Army to determine. Commissioner Sidoti appreciated this. He did not attempt to specify what requirements should be imposed or what tests should be administered. He was concerned merely to make the point that, given the absence of what he called "a direct correlation between a person's age and medical fitness", the only way of ensuring individual applicants measured up to the onerous requirements of the job was to specify rigorous medical and dental requirements and ensure they were met. Although the witnesses called by the Department of Defence spoke of the deterioration in fitness that characterises the aging process, and remarked on the high incidence of medical problems after the age of 35 years, nobody suggested they were incapable of detection. Lieutenant Colonel J C D Turner of Headquarters Aviation Support Group, a person with qualifications and experience in aviation medicine and occupational health and safety, identified the likely problems:
"Most Army pilots over the age of 35 years have developed medical problems which are disqualifying or which warrant a restricted medical category. Such conditions as degenerative back pathology, prolapsed intervertebral disc disease and associated sciatica, gout, controlled hypertension, chronic knee pathology, migraine, eye pathology and high tone hearing loss are all common causes of medical disqualification or restricted flying category. Very few males over 35 years in the community are totally free of medical pathology, even of a minor medical nature."
Commissioner Sidoti did not need direct evidence to know these disabilities are all capable of being discovered on medical examination.
The second "absence of evidence" point concerns Commissioner Sidoti's comment about the Assessment Board being able to assess an applicant's ability to "unlearn" acquired habits and skills and integrate with peers. However, there was evidence from several witnesses that this is what the Board already does. It is sufficient for me to refer to the evidence of Lieutenant Colonel McBonner, a psychologist with Headquarters Aviation Support Group. Asked by Mr Nicholls, counsel assisting the Commissioner, about the screening of applicants aged less than 28 years, he said:
"During the selection procedure that we go through, which is a full day of selection procedures, based on assessment centre methodology, that's called the (indistinct) selection board, ... we look at every person going - coming into whatever officer stream we're taking about and we gauge their ability to operate within a group and one of the areas we look at is in a person who is quite dogmatic and is unable - appears to be in the selection procedure - to mould into the group and work towards the group needs and quite a few of the exercises we use are outdoor tasks that can only be achieved if the team works together. We look for that and that is a negative selection procedure, so that if they don't make the grade and we don't perceive that they would be able to operate in that group environment, then, certainly, no matter what age they are, we would take them out there as well and make non-recommendations there.
So it applies - the requirement to fit into the group is an absolute one for us and we would do that at the selection procedure, regardless of what age the person is that comes through. Our concerns are that, given the life experience, the likely independence, particularly if someone has worked as an independent operator, self-employed - would have that difficulty of subjugating themselves to the military experience, the military requirements of discipline, of a younger person disciplining them and also the military socialisation requirement both in a cockpit and outside of it." (Emphasis added.)
This evidence amply supports the conclusion that the Assessment Board would be able to assess an older applicant's suitability for unlearning acquired habits and skills and achieving peer integration.
Orders
I see no error of law in Commissioner Sidoti's decision. The Commonwealth's application should be dismissed with costs. As previously mentioned, Mr Bradley does not press his application for review. It, also, will be dismissed. As it seems this application did not occasion the incurring of any additional costs, there will be no order for the costs of that application.
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I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of the Honourable
Justice Wilcox |
Associate:
Dated: 16 October 1998
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Counsel for the Applicant: | Miss R M Henderson |
| Solicitor for the Applicant: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr D O'Gorman |
| Solicitor for the Second Respondent: | Townsville Community Legal Service Inc |
| Date of Hearing: | 3 September 1998 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/1998/1295.html