Federal Court of Australia

Summers v Qantas Airways Limited [2021] FCA 391

ORDERS

THE COURT ORDERS THAT:

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

(a)    withdrawn pursuant to s 46PG of the Act;

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

(c)    the Court otherwise orders.

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

3.    The respondent pay the applicant’s costs.

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

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    The Age Discrimination Act 2004 (Cth) relevantly prohibits discrimination in employment on the basis of age, including by dismissing an employee or subjecting the employee to any other detriment, unless the employee is unable to perform the inherent requirements of the particular position because of his or her age.

2    Paul Summers is an airline pilot currently employed by the respondent, Qantas Airways Ltd. On 17 February this year he turned 65 and on 18 December 2020 Qantas informed him that, as a long haul pilot subject to mandatory retirement on attaining the age of 65, he was unable to carry out the inherent requirements of his position and, in effect, invited him to show cause why his employment should not be terminated. He took issue with a number of the matters raised in Qantas’s show cause letter but Qantas stood its ground and on 5 March 2021 it advised him that it had decided to terminate his employment on 9 April 2021, which it described as “5 weeks’ notice of … termination”.

3    Three days later, Captain Summers lodged a complaint of age discrimination with the Australian Human Rights Commission and now applies under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for an interim injunction to restrain Qantas from giving effect to its decision until his complaint has been withdrawn or terminated. The application was supported by two affidavits sworn by Captain Summers on 6 and 13 April 2021. Qantas relied on an affidavit affirmed by Captain Matthew Hicks, its manager of Base Operations (Sydney Domestic), on 12 April 2021. Neither deponent was required for cross-examination.

The relevant statutory provisions

4    It is convenient at this point to refer to the relevant statutory provisions in order to give context to the evidence.

5    Section 18 of the Age Discrimination Act relevantly provides that:

…

(2)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s age:

…

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.

…

Exemption for inherent requirements

(4)    Paragraphs … and (2)(c) do not make it unlawful for an employer to discriminate against another person, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of the particular employment because of his or her age.

(5)    In deciding whether the other person is unable to carry out those requirements because of his or her age, take into account:

(a)    the other person’s past training, qualifications and experience relevant to the particular employment; and

(b)    if the other person is already employed by the employer—the other person’s performance as an employee; and

(c)    all other relevant factors that it is reasonable to take into account.

6    Age discrimination is defined in ss 14 and 15. Section 14 deals with direct discrimination, s 15 indirect discrimination.

7    Section 14 provides that:

For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:

(a)    the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and

(b)    the discriminator does so because of:

(i)    the age of the aggrieved person; or

(ii)    a characteristic that appertains generally to persons of the age of the aggrieved person; or

(iii)    a characteristic that is generally imputed to persons of the age of the aggrieved person.

8    Section 15 provides that:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:

(a)    the discriminator imposes, or proposes to impose, a condition, requirement or practice; and

(b)    the condition, requirement or practice is not reasonable in the circumstances; and

(c)    the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.

(2)    For the purposes of paragraph (1)(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.

9    Section 16 provides that if an act is done for two or more reasons and one of the reasons (whether or not it is the dominant or substantial reason) is the age of a person, a characteristic that appertains generally to persons of a certain age, or a characteristic generally imputed to persons of a certain age, then the act is taken to be done because of the person’s age.

10    A person aggrieved by an alleged act, omission or practice of unlawful discrimination may lodge a complaint with the Commission (AHRC Act, s 46P(2)) within six months of the alleged unlawful discrimination (s 46PH(1)(b)). The Commission must refer the complaint to the President (s 46PD), who must inquire into, terminate, or inquire into and attempt to conciliate, the complaint (s 46PF). A complainant may withdraw the complaint with the leave of the President and the agreement of all the affected persons (s 46PG). The circumstances in which the President may terminate a complaint are set out in s 46PH(1) and (1A). The circumstances in which the President must terminate a complaint are set out in s 46PH(1B) and (1C). For present purposes it is sufficient to note that, amongst other reasons, the President may terminate a complaint if she is of the opinion that it involves an issue of public importance such that it should be considered by this court or the Federal Circuit Court and, amongst other reasons, she must terminate a complaint if she is satisfied that there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1B)) or there would be no prospect that either court would be satisfied that the alleged acts or omissions or practices are unlawful discrimination (s 46PH(1C)).

11    Section 466PP provides that:

(1)    At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain:

(a)    the status quo, as it existed immediately before the complaint was lodged; or

(b)    the rights of any complainant, respondent or affected person.

(2)    The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)    The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

(4)    The court concerned may discharge or vary an injunction granted under this section.

(5)    The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

12     “Complainant” is defined in s 3, in relation to a complaint, as a person who lodged the complaint, whether on that person’s own behalf or on behalf of another person or persons, and “respondent” is defined as the person or persons against whom the complaint is made.

13    In Wilson v Britten-Jones [2019] FCA 747 at [42] Nicholas J said that it was clear that the rights mentioned in paragraph 46PP(1)(b) are rights under the AHRC Act which may ultimately be recognised or enforced by orders made by the Court pursuant to s 46PO(4). Those powers are very broad (“the court may make such orders … as it thinks fit …”) but expressly include the following orders or orders to a similar effect:

(a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

  (c)    an order requiring a respondent to employ or re-employ an applicant;

(d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)    an order declaring that it would be inappropriate for any further action to be     in the matter.

The relevant facts

14    The evidence establishes the following facts.

The terms and conditions of employment

15    Pilots are employed by Qantas pursuant to letters of appointment and the terms of their employment are governed by the applicable industrial instrument as amended from time to time.

16    Captain Summers has been employed by Qantas for over 32 years, beginning on 26 July 1988. He was promoted to captain in 2003. His letter of appointment set out the conditions of his employment. The first of those conditions was this:

As a pilot you will be required to perform duties as required by the Company from time to time, including flight engineering and navigational duties, and to undertake such duties in any part of the world. Your home base will be Sydney and you will be expected to reside in the metropolitan area of that city.

17    Another required that he “observe and comply with the Company’s regulations” and specified a number in particular, including “the Flight Administration Manual”.

18    He was informed in the same letter that his general conditions of employment were set out in the International Airline Pilots’ Agreement 1984 as varied from time to time, that Qantas and the Australian International Pilots’ Association were the parties to the Agreement, and that he would be expected to join the Association. He was also informed that his “normal retirement date” was the first day of July after his 55th birthday but that he could elect to extend his employment “on a year by year basis” until his 58th birthday. From 14 January 1991, however a long haul pilot could elect to extend his or her employment on a year to year basis until attaining the age of 60.

19    The current industrial agreement detailing the general conditions of employment is the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (LHEA), which was approved by the Fair Work Commission on 28 April 2020 and commenced on 5 May 2020. The LHEA covers Qantas, the Australian and International Pilots Association, and all long haul pilots employed by Qantas who are members or eligible to be members of the Association. There was no dispute that the parties were bound by its terms.

20    Clause 15.4.2 of the LHEA states that:

The Company may employ its pilots, and the pilots will serve the Company, in any part of the world where the Company may from time to time be operating.

21    Captain Hicks deposed that, where a pilot is required to undertake duties in any part of the world, the pilot must be able to operate freely and without restriction in all international airspaces within which Qantas operates.

22    Clause 15.1.1 of the LHEA also requires that:

A pilot will:

…

(b)    observe instructions and requirements contained in Company manuals.

23    “Company manuals” are defined at cl 14 of the LHEA to include “the Flight Administration Manual”.

24    Clause 4.6 of the Flight Administration Manual stipulates that:

A Flight Crew member who has reached their 65th birthday shall not operate or be rostered to operate as an A380, A330, B747 or B787 pilot crew member.

25    The genesis of this requirement appears to be Article 2.1.10 to Annex 1 of the Convention on International Civil Aviation (now in its 9th edition), which provides that:

A Contracting State, having issued pilot licences, shall not permit the holders thereof to act as pilot of an aircraft engaged in international commercial air transport operations if the licence holders have attained their 60th birthday or, in the case of operations with more than one pilot, their 65th birthday.

26    With the exception of a few countries, including Australia and New Zealand, most of the countries to which Qantas flies have adopted these restrictions as part of their domestic law.

27    At the time he was hired, Qantas was exclusively an international airline but it merged with Australian Airlines in about September 1992 after which it also serviced domestic routes. From that time onwards pilots were engaged either as long haul or short haul pilots. Flights across the Tasman to and from New Zealand were treated as domestic routes.

28    The distinction between long haul and short haul positions was described by Captain Hicks in the following way:

(a)    a pilot’s employment will be governed by either a long haul enterprise agreement (currently the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (LHEA)) or a short haul enterprise agreement (currently the Qantas Airways Limited Pilots (Short Haul) Enterprise Agreement 2020 (SHEA)). They set out the different terms of employment for long haul and short haul pilots (for example, rostering, pay and conditions). …

(b)    the LHEA and SHEA each contain clauses (clause 20 in the LHEA and clause 21 in the SHEA) which permit a long haul pilot to transfer to short haul, or a short haul pilot to transfer to long haul, in particular circumstances;

(c)    a long haul pilot can only operate an aircraft which primarily or exclusively services international routes, being the A380, B747 (which has been retired), A330 (the aircraft currently occupied by the Applicant) or the B787 (see clause 17.4 which sets out the categories held by a long haul pilot covered by the LHEA). A short haul pilot can only operate the B737, being the aircraft which is overwhelmingly used to service domestic routes (see clause 7 of the SHEA which sets out the categories held by a short haul pilot covered by the SHEA). A long haul pilot will be unable to (and cannot be directed or required by Qantas to) operate the B737 aircraft used to service domestic routes as they would not be trained to fly that particular aircraft; and

(d)    although generated using the same programs, separate bidding systems and rosters are maintained for long haul and short haul pilots, and separate rosters are maintained for every “category” … and are entirely independent of one another.

(Emphasis in original)

29    As I indicated earlier, it is uncontroversial that Captain Summers is a long haul pilot and that his employment was covered by the LHEA.

30    Since 10 July 2016, Captain Summers has been flying A330 aircraft both domestically and internationally as captain and, although not rated to do so, he has also flown other aircraft on international routes.

31    Qantas allocates work for pilots on a roster system. The evidence does not disclose when the roster system was introduced but it does reveal that it has been in place throughout the period of Captain Summers’ employment. Captain Summers deposed that from the time he started working for the company Qantas has prepared a roster for each base and he has participated in the roster for the Sydney base.

32    The roster records flights, known as “patterns”, designated duty free days, and any allocated leave during a bid period, with the overall pattern of work and days off described as a “bid line”. The roster operates in relation to “bid periods”. As Captain Hicks explained it:

At a general level, the Qantas network team plans projected flights for a bid period. The projected A330 flights are loaded into a bidding system and a long haul pilot will be able to place their bids electronically for patterns of flying on their fleet for an upcoming 56 day block (otherwise known as a bid period). To “bid”, the pilot can nominate destinations they want to fly, days they want off during the bid period, and particular trips they want to fly.

33    Captain Hicks deposed that the rosters for long haul pilots are constructed pursuant to the Rostering Manual in Schedule 2 to the LHEA (see from page 164), which refers to the need to “promote the most efficient and economical operation of flights for the Company and favourable working conditions for pilots” (see RM2.1).

34    The Rostering Manual requires pilots to place a sufficient number of bids to enable the allocation of a bid line constructed in accordance with those bids and the pilot’s seniority (RM12) and “the bid line allocation process” then allocates patterns accordingly (RM16). In some circumstances, set out in the Rostering Manual, flying can be pre-allocated outside the bidding system, but the Rostering Manual does not provide for pre-allocations to cater for a pilot who has attained 65.

35    The next phase of the system is described as the “optimisation” phase which ensures that the rosters can meet the operational needs of the network and that flights are sufficiently crewed. This process may result in some pilots not securing their preferred bids, although at this stage too seniority is given preferential treatment where possible. After optimisation, any unallocated flights are placed in an “open time” pool. Pilots may bid on these flights but the flights are usually awarded or assigned later in accordance with procedures set out in the LHEA.

36    There are also “blank line” rosters, which Captain Hicks described as rotating rosters for pilots who are not awarded any particular routes, but are on stand-by to cover any operational needs that might arise such as where a pilot calls in sick or new patterns of flying are introduced in the middle of a live bid period due to increased demand. The blank line roster is “awarded” (in longest-since order, giving priority to those who have had the longest time since last being on the blank line roster) but is more commonly assigned (in longest since order and then in reverse seniority order). The blank line rotational system is required by the terms of the LHEA. Captain Hicks deposed that the blank line system is an essential part of the rostering system, because it provides necessary coverage for long haul flights.

37    Most pilots are rostered on a blank line approximately once every 12 months. The company’s objective is that each pilot be on a blank line every 12 to 16 months, but it can occur more frequently.

38    Captain Summers has been assigned to a blank line on a number of occasions. His estimate was once every 12 to 16 months. The last occasion was in November 2020. Given that there are approximately 75 captains for the A330 aircraft based in Sydney and each roster period is 28 days, he estimated that he would not be assigned to a blank line until at least the middle of next year. According to Captain Hicks, however, the uncertainty created by the COVID-19 pandemic makes this unpredictable.

39    Another feature of the roster system designed to ensure that all flights are covered is the “pattern protection” system (defined at RM39 of the LHEA). Pattern protection operates by basically crediting a pilot flight hours when through no fault of their own they are unable to fly all or part of a pattern such as when a flight is cancelled. In these circumstances Qantas is able to require the pilot to offset their pattern protection by offering and awarding or assigning open time flying or, in some instances, other duties (see RM 43). While there are only limited circumstances in which a pattern protection does not need to be offset, a pilot may decline to accept an assigned pattern or duty but this will result in the loss of the pattern protected credited hours (see RM43.6.5 and 43.11).

40    Captain Hicks deposed that under the LHEA the rostering system “must be applied uniformly for all pilots” and that it “does not contemplate or permit the creation of special exceptions for specific pilots due to their inability to fly to certain locations”.

The A330 network

41    Qantas’s A330 fleet consists of 28 planes. Before the COVID-19 pandemic, the A330 network comprised domestic flights within Australia and between Australia and New Zealand, and international flights to China, Hong Kong, Indonesia, Japan, Philippines, Singapore and Thailand. Qantas apparently intends to introduce new international destinations to the A330 network at some point in the future. But there was no evidence about when that might be or which destinations were in contemplation.

The impact of COVID-19

42    In the 12-month period ending 30 March 2020, Captain Summers flew A330 aircraft for Qantas between Australian ports on 33 occasions, between an Australian port and Auckland on six occasions, between an Australian port and Denpasar twice, between an Australian port and Osaka on 22 occasions, between an Australian port and a Chinese port on 12 occasions, between an Australian port and Bangkok on seven occasions, between an Australian port and Honolulu twice, and between an Australian port and Manila twice. Captain Hicks explained that in terms of flying hours, which is how the roster is constructed, approximately 77% of the total hours flown during that period constituted international flying.

43    With the advent of the COVID-19 pandemic, flights were drastically reduced. At present, A330 aircraft hours are 25 to 30% of pre-COVID flying time.

44    On 30 March 2020, Captain Summers, along with many other employees, was stood down from his employment.

45    In April 2020, as a result of the pandemic, Qantas made some temporary changes to the rostering process. The most important change is that there is now a rotational stand down system for long haul pilots with only small groups of pilots able to fly during a given bid period. To fill the available positions, Qantas sends out an expression of interest (EOI) to all pilots for a shorter bid period of 28 days. Pilots who are interested in bidding confirm their interest and interested pilots are ranked in order of longest time since last operation of an aircraft. The successful pilots in the EOI stage then bid in accordance with the pre-COVID electronic bidding system. Once the bids have been made, Qantas splits the list into domestic and international groups by order of seniority and bid preference, taking into account quarantine requirements. This ensures that international flights are adequately staffed, given that currently the overwhelming preference of pilots is for domestic flight patterns.

46    At around this time Captain Summers had a telephone conversation with Douglas Alley, the Head of Base Operations for Qantas “around mandatory retirement age of pilots aged over 65 years”. In that conversation Captain Summers raised an objection to mandatory retirement. As he recalled it he said to Mr Alley: “Don’t come and tap me on the shoulder in February, Doug, because there will be so much flying available for me to do”. Mr Alley replied: “No, you would not be able to fill the requirements in respect of shared blank lines”.

47    Captain Summers was assigned some work during a four-week period in May/June 2020, flying A330 aircraft on various domestic routes, but was stood down again on 22 June 2020.

48    On 10 July 2020 Captain Summers received a circular from Mr Alley offering all pilots a suite of options in order to manage “current pilot surplus”, particularly in long haul, during the recovery. Those options were voluntary redundancies or early retirement for eligible long haul pilots and leave without pay. Pilots who did not accept one of those options were advised that they would continue to be stood down where no useful work was available. About three weeks later, on 6 August 2020, Captain Summers received another circular from Mr Alley advising, amongst other things, that Qantas was proposing that “pilots [who] will reach the mandatory retirement age of 65 in long haul operations on or before 1 July 2021 would be eligible for a three month ex gratia payment” and had applied to the Australian Taxation Office for concessional taxation rates for the ex gratia payment. On 8 October 2020 Captain Summers was advised that the ATO had issued a ruling the effect of which was that he would not be eligible for full concessional taxation treatment if he were to retire before he turned 65.

49    On 18 December 2020 Captain Summers received the show cause letter. It was signed by Captain Hicks.

50    Captain Summers was reminded of the Rule of 65, and informed that, effective from 17 February 2021 when he would turn 65, he would no longer be able to operate on Qantas long haul services because he would be unable to meet the inherent requirements of his position. The letter set out three options for future employment with the company:

(1)    retiring when he turned 65, noting that he had not indicated his intention to do so;

(2)    bidding for a transfer to a position as a pilot of an aircraft on a short haul fleet unaffected by the ICAO rules, noting that there had been a significant reduction in demand for domestic flying and that as a consequence no pilot vacancies were available in the short haul now or in the reasonably foreseeable future; and

(3)    redeployment to alternative roles, but advising that, in view of the dramatic reduction in flying across the network, Qantas was unable to identify any alternative roles that were vacant or likely to become vacant in the reasonably foreseeable future.

51    The stated purpose of the letter was to provide Captain Summers with an opportunity to respond to the proposed termination including any additional information or other alternatives Qantas should consider. A response from Captain Summers was requested by 31 December 2020 and Captain Summers was advised that he would be informed of the result shortly thereafter.

52    Captain Summers replied by email on 4 January 2021. No complaint was made about the slight delay. In that email Captain Summers disputed the need for him to be terminated or retire on his next birthday, questioned Qantas’s efforts to identify alternative roles, suggested that he could be redeployed as a flight instructor or to a position in which his degree in political science would be of some use, and insisted in any event that he could usefully fulfil his present role as an A330 captain. He asked Qantas to “revisit” its proposal that he retire at 65. Mr Alley acknowledged receipt of the email on 8 January 2021, but three months passed before Qantas provided a substantive reply.

53    In the meantime, on 6 January 2021 all A330 crew, including Captain Summers, were invited by email to provide expressions of interest for flying in the forthcoming bid period from 1 to 28 February 2021. The email requested that an EOI form be completed by 11 January 2021. Captain Summers replied to that email before 11 January 2021 indicating that he would be available to fly in February 2021.

54    On 27 January 2021 he received a further email addressed to all A330 crew inviting expressions of interest for the bid periods from 1 to 28 March 2021 and 29 March to 25 April 2021. The following day, Captain Summers completed and submitted an EOI for those periods. That same day he received a letter from Andrew David, Chief Executive Officer, Qantas Domestic and International, addressed to him personally. The letter attached a notice, also addressed to him personally, advising that he would be stood down for the whole of February as he could not be usefully employed but that, if circumstances changed, he would be notified of a time and date to return to work. On 22 February 2021 he received another stand down notice from Mr David in similar terms. This one advised that he would be stood down on and from 1 March 2021 until and including 25 April 2021 but again indicated that he would be notified of a time and date to return to work if circumstances changed.

55    On 25 February 2021 Qantas issued a media release. It relevantly stated:

•    Flights to most international destinations to now resume late October 2021

•    Trans-Tasman flying to ramp up from July 2021

•    New flexibility for international bookings, with unlimited flight date changes

Qantas and Jetstar are now planning to restart regular international passenger flights to most destinations from 31 October 2021 - a four month extension from the previous estimate of July, which had been in place since mid-2020.

The date change aligns with the expected timeframe for Australia's COVID-19 vaccine rollout to be effectively complete.

Capacity will be lower than pre-COVID levels, with frequencies and aircraft type deployed on each route in line with the projected recovery of international flying. International capacity is not expected to fully recover until 2024.

…

Qantas network

Qantas is planning to resume flights to 22 of its 25 pre-COVID international destinations including Los Angeles, London, Singapore and Johannesburg from 31 October 2021.

Qantas won't initially resume direct flights to New York, Santiago and Osaka, but remains committed to flying to these three destinations. In the meantime, customers will be able to fly to these destinations under codeshare or oneworld arrangements with partner airlines.

…

Trans-Tasman

Qantas and Jetstar are planning for a significant increase in flights to and from New Zealand from 1 July 2021.

The Group has the ability to respond to travel bubbles that may open.

(Emphasis added.)

56    I interpolate that a travel bubble is an exclusive agreement between two or more countries which allows for unrestricted travel across each other’s borders.

57    On 5 March 2021, more than two weeks after his 65th birthday, Captain Summers received the termination letter. It was signed by Mr Alley. He advised that Qantas had had regard to all the matters Captain Summers had raised in his 4 January 2021 email but its position remained unchanged. He maintained that Captain Summers was unable to meet the inherent requirements of his position as a long haul pilot from 17 February 2021 because he would then be unable to participate equally with other long haul pilots in the bidding system and be able to operate in international airspaces. He also said that “there are currently no vacancies in short haul”, advised that it was uncertain when any might become available, and said that the company had been unable to identify any alternative roles which were available and would suit Captain Summers’ background and experience. In the circumstances, he informed Captain Summers that, Qantas had decided to terminate his employment on 9 April 2020, some five weeks’ hence. At the same time, however, Mr Alley held out some hope that Captain Summers may be able to find a suitable position within Qantas. Earlier in the letter he had written that, despite the inability of the company to identify any suitable alternatives:

[T]he Company encourages you to review the internal Workday system on the Company's intranet where current job opportunities within the Qantas Group are advertised. Should you identify a vacant role that you consider to be suitable for redeployment, please bring this to our attention for our consideration as a matter of priority.

58    Three days later, on 8 March 2021, Captain Summers lodged his complaint with the Commission. It is clear from the complaint that he was assisted at that time by his current solicitors, Toomey Pegg.

59    Toomey Pegg wrote to Qantas on 22 March 2021 advising that Captain Summers had lodged a complaint with the Commission and that they were instructed to apply to this Court for an injunction under s 46PP of the AHRC Act. The letter requested that Qantas provide written undertakings to the effect of the interlocutory relief presently sought in order to obviate the need to approach the Court.

60    On 26 March 2021 the solicitors representing Qantas, Herbert Smith Freehills (HSF), replied, indicating that Qantas had been unaware of the complaint until it received the 22 March letter and refused to give any undertaking. HSF then set out Qantas’s position. They contended that it would be premature to bring legal proceedings until Captain Summers had provided a detailed response to the matters raised in their letter and asserted that any application for interlocutory relief would be opposed.

61    Toomey Pegg replied on 30 March 2021 renewing their request that Qantas not terminate Captain Summers’ employment pending determination of the complaint and for a written undertaking, failing which they affirmed their intention to seek an interim injunction. HSF replied on 1 April 2020, disputing many of the factual matters in the letter and the characterisation of them and detailing Qantas’s position on a number of them. Their overall position was essentially that the status quo would not be maintained by the undertakings sought and instead Captain Summers would be able to selectively participate in the roster while the matter was before the Commission. They maintained their opposition to any application for interim relief.

The Rule of 65 and the current A330 flight patterns

62    The Convention explicitly states that the Rule of 65 only applies to “international commercial air transport” (emphasis added). Captain Summers deposed that since turning 65 he is still able to be a pilot in command on an A330 aircraft to and from each Australian port serviced by Qantas using the A330 aircraft, namely Sydney, Brisbane, Melbourne, Perth, Adelaide, Darwin and Cairns. Qantas is currently flying the A330 aircraft to and from each of these ports except Darwin.

63    The international ports to which the A330 flew before the outbreak of the pandemic included Auckland, Christchurch, Singapore, Jakarta, Denpasar, Osaka, Hong Kong, Shanghai, Bangkok, Honolulu and Manila. But Qantas is not currently flying the A330 to Jakarta or Denpasar or from Sydney to Osaka, Hong Kong, Bangkok, Honolulu or Manila.

64    While Japan has not adopted the Rule of 65, flights from Australia to Japan are still subject to the Rule because of the requirement by the Civil Aviation Safety Authority for an alternate en route airport to be specified and in the case of Japan the alternate en route airport is in Guam, which is a territory of the United States and therefore subject to the Rule. Of the international A330 flights pre-COVID, the Rule of 65 does not apply to air transport between Australia and New Zealand, Australia and Indonesia, and Australia and Singapore, as those countries have not adopted the Rule and there are no alternate en route airports which have adopted the Rule for those flights.

65    Captain Summers deposed that he will be able to fully participate in the current roster system as he is able to place bids for flights on domestic, Trans-Tasman, Sydney to Singapore, and Sydney to Indonesia routes once they are reopened. He also deposed that pilots often prefer to bid for bid lines involving international flights as the number of flight hours, and hence pay, are greater.

66    Captain Summers prepared a table summarising the recent flights and patterns available on the open time bidding web page which records the unallocated flights during the bid period from 9 February 2021 to 30 March 2021. Of the 94 patterns treated by Qantas as open flights in that bid period, he identified 88 (more than 93%) that he was able to fly.

67    Captain Summers contended that he would suffer significant disadvantages if an interim injunction were refused. I will refer to the substance of this contention in due course.

The relevant principles

68    Captain Summers seeks an interim injunction restraining Qantas from terminating his employment until his complaint to the Commission is withdrawn pursuant to s 46PG (that is to say, by the complainant with the leave of the President), terminated by the President pursuant to s 46PF(1)(b) (that is to say, without inquiry where the President is of the opinion that the complaint should be terminated) and 46PH (which sets out the grounds upon which the President may terminate a complaint), or the Court otherwise orders.

69    Ordinarily to obtain an interim or interlocutory injunction it is necessary that the applicant for relief demonstrate to the satisfaction of the court first, that he or she has a prima facie case and second, that the inconvenience or injury the applicant would be likely to suffer if the injunction were refused outweighs the injury which the respondent would suffer if an injunction were granted, in other words that the balance of convenience is in the applicant’s favour: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623 (Kitto, Taylor, Menzies and Owen JJ). Usually it is also necessary to demonstrate that damages would not be an adequate remedy: see, for example, Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J). To demonstrate that there is a prima facie case for relief an applicant need not show that it is more probable than not that he or she will succeed at trial; all the applicant need show is “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial”. The strength of the likelihood depends on the nature of the rights the applicant asserts and the practical consequences likely to result from the order he or she seeks. See O’Neill at [65] and [71] (Gummow and Hayne JJ). Ordinarily, an applicant must be able to show a sufficient colour of right to the final relief in aid of which the interim relief is sought: Australian Broadcasting Commission v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at [9] and [11] (Gleeson CJ).

70    The two questions are inter-related. The Full Court was at pains to emphasise in Samsung Electronics v Apple (2011) 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ) that the question whether there is a serious question to be tried or a prima facie case should not be considered in isolation from the balance of convenience as the apparent strength of the respective substantive cases “will often be an important consideration to be weighed in the balance”.

71    But the usual tests must be applied having regard to the particular statutory context: Carlsson v Ford [2019] FCA 584; 371 ALR 382 at [25]–[28] (Besanko J). See also Daccache v BOC Limited [2020] FCA 485 at [29] (McKerracher J).

72    Section 46PP of the AHRC Act is intended to give the relevant courts the power to grant relief in an appropriate case to an applicant who has a pending complaint with the Commission and by reason of that fact is unable, at least in the ordinary case, to bring a substantive proceeding in the court. Ordinarily, an application to the Court cannot be made unless a complaint has been terminated by the President under s 46PE, 46PF(1)(b) or 46PH and the President has given notice under s 46PH(2) in relation to the termination: see AHRC Act, s 46PO. As McKerracher J observed in Daccache at [30], it is apparent that the purpose of the power in s 46PP is to protect the process of “complaint-making and resolution”. The Commission’s conciliation role is “facilitated by the interim preservation of the status quo, ensuring in an appropriate case, as close to a level playing field as possible, while attempts to achieve a conciliated outcome are pursued”: Daccache at [30]. The status quo to which the section is directed is “the employment status quo”; it is immaterial whether duties were still being undertaken: Daccache at [52]. In that case the applicant had not performed any duties for over a year.

73    In these circumstances it may be doubted whether an applicant for an interim injunction under s 46PP needs to demonstrate that damages would not be an adequate remedy. Both Besanko J and McKerracher J seem to have recognised this but both proceeded, without deciding the question, on the assumption that they would.

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.

Does the balance of convenience favour the applicant?

114    Captain Summers argued that the balance of convenience is in his favour for the following reasons.

115    First, he has a strong prima facie case.

116    Second, he is unlikely to obtain alternative employment as a pilot, especially in the current climate; he has ongoing liabilities and financial obligations he is unable to meet without employment; he will be unable to maintain his pilot’s licence if he is no longer employed, without access to simulator training; the injunction would only operate for a limited period; and damages would not be an adequate remedy since forced unemployment has a “personal and psychological impact”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electrix Pty Ltd [2018] FCA 1879 at [32] (Rangiah J).

117    On the other hand, Qantas submitted that Captain Summers has not established that he would suffer any detriment if the injunction were not granted but he were ultimately successful in his substantive claim. Qantas further submitted that damages would be an adequate remedy. As to Captains Summers’ contention that he cannot obtain alternative employment with Virgin Australia, Qantas noted that he did not give evidence about his ability to undertake other work, of searches he has undertaken on the matter, of his financial position, his sources of income or financial assistance, or of his ability to repay his home loan.

118    Qantas also submitted that for the reasons outlined in Captain Hicks’ affidavit it would suffer significant detriment which outweighs any detriment Captain Summers is likely to suffer. It summarised those reasons in this way:

a)    it is not in dispute that there are various destinations to which the A330 flies which the applicant will not be able to fly to;

b)    if the applicant is stood-up, then the respondent will need to stand up additional pilots to cover for the possibility of gaps being created if the applicant is rostered by the system onto a flight he cannot undertake, in which case the respondent will be paying the applicant but receiving no services from him in respect of flights he cannot undertake;

c)    on the other hand, if the respondent modifies its complex bidding and rostering system to accommodate the applicant’s position, then, in addition to the cost involved in doing so, the respondent will be exposed to liability for breaching its long-haul enterprise agreement by circumventing the seniority of other pilots.

119    Qantas went further, arguing that if an interim injunction were granted to Captain Summers, there is a real risk that other pilots at around the same age will seek similar relief in the future in which event Qantas would need to completely overhaul its bidding and rostering system to accommodate pilots who have reached the age of 65.

120    In any event, Qantas submitted that for discretionary reasons, the relief should be refused first because damages are an adequate remedy, second because the order Captain Summers seeks would be a departure from the status quo because under the terms of the order he proposes he would be stood up and selectively participate in the A330 roster, third because Qantas could not recover the additional amounts it would have to pay to him if he were stood up since an undertaking as to damages cannot be required, and finally because of his delay in making the complaint and applying for an interim injunction.

121    While I am satisfied that Captain Summers has a prima facie case, I am unable to conclude that it is a strong one. Further, if he succeeds in his claim, there is every likelihood that he would be reimbursed for his lost earnings and, contrary to his submission, his seniority would be restored if there were an order for his reinstatement. Moreover, I am not satisfied that he would be unable to service his mortgage if the termination of his employment were to take effect. No information was presented to the Court concerning his savings or assets or, for that matter, his liabilities.

122    Nevertheless, I have concluded that the balance of convenience is in Captain Summers’ favour.

123    First, I am not persuaded that damages would be an adequate remedy.

124    While his financial position is opaque and he offered no evidence about steps he might have taken to inquire about opportunities for work outside Qantas, in the present climate in particular the chances of a 65 year old pilot obtaining alternative work in the airline industry or elsewhere are likely to be poor. Not unreasonably it seems to me, he expressed concern that his lack of recent flying experience would make it impossible for him to work as a pilot for another employer. Moreover, he would still suffer the “personal and psychological impact” of forced unemployment to which Rangiah J referred in Electrix before the merits of his case are determined or the conciliation process has even begun.

125    Second, in Dacacche at [36] McKerracher J observed that an adequate remedy in an employment matter for someone of the applicant’s age (62) and skill level was not necessarily measured only in money and that it was “a consideration…exacerbated by the prevailing economic and employment uncertainty”. His Honour accepted the applicant’s argument that the following factors weigh in favour of granting an interim injunction: the general personal importance of preserving a connection to employment for workers, particularly low skilled and older workers; the specific value of such connection to the applicant, a reasonably long serving employee who enjoyed and valued his job; the particular value of retaining such a connection while the matter is resolved, given the current economic uncertainty; the forthcoming potential financial benefit for the applicant in terms of access to federal wage subsidies, having regard to the foreshadowed package of Job Keeper legislation passed on the evening following the urgent hearing; the positive effect the order would have on supporting the complaints resolution process conducted by the Commission; by keeping the parties on an even playing field while the matter is conciliated (noting that the orders self-expire on termination or withdrawal of the complaint); and the general public interest in restraining, arguably, unlawful discrimination.

126    Most of these factors apply equally here.

127    Third, I consider that the detriments Qantas claims to face are overstated.

128    The announcement by Qantas that it was planning to resume regular international passenger flights to certain destinations was premised on the expectation that the vaccine rollout would be “effectively complete” by 31 October 2021. Recent events, including the recommendations limiting the AstraZeneca vaccine to people over the age of 50, the limited availability of other vaccines and the limited supply of vaccines to general practitioners, indicate that the chances that Qantas’s expectation will be realised are fanciful. In any case, of the destinations to which Qantas announced that it planned to resume flights, only one — Singapore — is serviced by the A330 and Singapore does not enforce the Rule of 65. Flights to and from New Zealand were to increase from 1 July 2021 but the recent announcement of the trans-Tasman bubble, which came into operation at 21:59 AEST on 18 April, makes it more likely than not that these flights will increase even earlier. Both these eventualities point to the likelihood of a significant increase in domestic flights, including short haul flights, in the short to medium term.

129    In any event, Captain Summers is currently stood down. That position will obtain at least until 26 April.

130    Fourth, I am unimpressed with Qantas’s arguments concerning the discretion.

131    As for the alleged delay, Captain Summers obviously knew when he would turn 65. The evidence indicates that in April 2020, if not earlier he also knew that Qantas at least had a policy about retiring pilots who attained the age of 65. He certainly could have complained to the Commission well before March 2021. But I do not consider that this delay is relevant since Qantas took no steps to terminate his employment before the show cause letter in December 2020. And that letter still held out to him the hope of alternative employment by inviting him to provide additional information or alternatives for its consideration. Moreover, after he responded in early January 2021, it invited him to lodge expressions of interest for flights that were to take place after his 65th birthday. It did not reply to his January email for three months. And when it did, it continued to hold out the prospect of redeployment.

132    But there has been some delay in seeking the interim injunction. It would have been prudent for Captain Summers to notify Qantas immediately that the complaint had been lodged with the Commission and to serve a copy at the same time. Yet Qantas was not served with the complaint until 22 March 2021, two weeks after it had been lodged. That delay has not been explained. But the subsequent delay has. It is apparent from the correspondence between the lawyers for the respective parties that that delay was caused because Qantas requested it. There is no reason to think that Captain Summers was responsible for any part of the delay that occurred from the time the complaint was lodged. Moreover, Qantas did not contend that it was prejudiced by the delay.

133    Qantas submitted that, in the absence of evidence as to what Captain Summers was doing to ensure that his complaint would be determined expeditiously, the Court could not be satisfied that he would prosecute his complaint expeditiously. At the hearing, however, as a condition of the grant of an interim injunction, Captain Summers, through his counsel, offered an undertaking to the Court that within 24 hours of the making of the order he would inform the Commission of its terms, that he would seek the expedition of the conciliation of the complaint, and that he would provide all assistance necessary to enable the Commission to handle the complaint expeditiously.

Conclusion

134    Taking all relevant matters into account and weighing them in the balance, I have concluded that an interim injunction should be granted to preserve the status quo until the complaint to the Commission is withdrawn by Captain Summers or terminated by the President. But it should be granted on the undertakings given by Captain Summers through his counsel. Furthermore, to facilitate the conciliation process and to minimise the inconvenience to Qantas, during the period of the injunction Captain Summers should remain stood down unless and until he can be redeployed to short haul flights or some other suitable position. Lest there be any doubt about the entitlement to do so, I will grant liberty to either party to apply on 24 hours’ notice in the event of a significant change of circumstances and I will also grant liberty to apply in the event of any significant delay on the part of the Commission.

135    Costs should follow the event.

Associate:

Dated:    21 April 2021