Qantas Airways Ltd v Christie [1998] HCA 18

High Court of Australia Brennan CJ Gaudron, McHugh, Gummow and Kirby JJ Qantas Airways Ltd v Christie (S194/1996) [1998] HCA 18

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Industrial Relations Court of Australia and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur adv vult

The following written judgments were delivered:—

19 March 1998 Brennan CJ.

1. I am in respectful agreement with what Gaudron J has written except in relation to the final, and critical, question of fact, namely, whether it was an inherent requirement of the position which Mr Christie occupied as a pilot of Qantas B747-400 aircraft that such a pilot should not be excluded from flying those aircraft to or over those countries which enforce the Rule of 60. In particular, I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee's position. 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.

2. Evidence is not needed to show that the commercial operation of an international airline requires the efficient deployment of B747-400 aircraft to meet customer demand. The employment of pilots to take those aircraft on the routes selected is a necessary aspect of the undertaking. So too is the allocation of pilots to the scheduled flights. The evidence showed that the method of allocating pilots to particular flights had been established by practice between Qantas and the Pilots Association in 1987. It was a preferential bidding system which discriminated among pilots only on the basis of seniority of service. One element of that practice was that pilots could not bid for more than two one-day flights in any eight-week period. 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.