Ratified treaties;¹ Instrument not subject to ratification²

Discrimination based on age/ Dismissal/ Reference to international law in order to clarify the meaning of the applicable national provisions/ Use of international law as a guide for interpreting domestic law

A pilot who was dismissed on the day of his 60th birthday had sued his employer, Qantas Airways Ltd (hereafter “Qantas”), claiming that his dismissal was a discriminatory measure on grounds of age that violated the Industrial Relations Act 1988 (Cth) (hereafter “the Act”), which provides that an employer must not terminate the employment relationship for reasons of age.³

In order to establish whether the Act was applicable to the dispute, the Australian High Court first determined whether there had been a case of “termination of employment” within the meaning of the Act. It then clarified the meaning of the term “inherent requirements”, since it is not illegal under domestic law to terminate the employment relationship on grounds of age if the employee’s age is considered to be an inherent requirement of the post.⁴

With regard to these two points, three of the five judges of the Court relied on international law in order to interpret domestic legislation and thus settle the dispute. Commenting in general on the interpretation of the national legislative provisions in the light of international instruments, Justice Kirby held that:

“Where, as here, national law contains words derived from international sources, it is legitimate for a court to have regard to those sources in assigning meaning to these words. Not only is this a proper approach mandates by the authority of this Court. In the instant case, it derives specific endorsement, so far as the Termination of Employment Convention is concerned, from the provision of the Act whereby an expression in the one is to have “the same meaning” as in the other”.⁵

The judges then referred to international law to interpret the national provisions governing the settlement of the dispute.

As for the question of whether the termination constituting the object of the dispute was subject to the provisions of national law on termination of employment, Justice Gummow found that:

“Section 170CB provides that an expression has the same meaning in Div 3 as in the Termination of Employment Convention 1982, which is set out as Sched. 10 to the Act. Article 3 states: “For the purpose of this Convention the terms “termination” and “termination of employment” mean termination of employment at the initiative of the employer.””⁶

Relying on that source of law in particular, the judge concluded that Qantas had indeed terminated the pilot within the meaning of the Act and that that Act was thus indeed applicable to the dispute.

With regard to the term “inherent requirements”, Justice McHugh stated that:

“Although s 170 DF(1)(f) prohibits termination of employment for reason of age, s 170 DF(2) makes this prohibition inapplicable where the reason for termination is based on “the inherent requirements of the particular position”, a phrase whose meaning is to be ascertained by reference to its meaning in the Convention provisions which are the basis of the termination of employment provisions of the Act. The relevant Convention provision is Art. 1(2) of ILO’s Convention No. 111. It provides: Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.”⁷

The judge established that in this instance the age of the pilot could be an inherent requirement of his post, since he would no longer be legally capable of piloting the majority of the international flights run by Qantas as of the age of 60. For, with the exception of three States, all of the States where Qantas ran flights were parties to the Convention on International Civil Aviation, under which it is prohibited for pilots of over 60 years of age to be at the controls on international flights.

Reliance on ILO Convention No. 158 enabled the Australian High Court to clarify the meaning of the domestic law applicable to the dispute, and it thus ruled that in the present case an employment contract had indeed been terminated but that age could constitute an inherent requirement in the case of an air pilot. On these grounds the Court ruled that the termination of the employment contract had not been discriminatory.