Equal Opportunity Tribunal of New South Wales CITATION: Blatchford -V- Qantas Airways Limited [1997] NSWEOT COMPLAINANT: Richard Blatchford RESPONDENT: Qantas Airways Limited NUMBER: 92 of 1995 Mr Geoffrey Bartholomew ( Judicial Member ) TRIBUNAL: Ms L Farmer OAM Mr M Luger GROUNDS OF COMPLAINT: Discrimination on the ground of age in the area of employment DATES OF HEARING: 02/17/1997; 02/18/1997; 02/21/1997 DATE OF JUDGMENT: 06/10/1997 Complainant: Mr R Reitano (Counsel) W G McNally & Co (Solicitors) LEGAL REPRESENTATIVES: Respondent: Mr I Neil (Counsel) Minter Ellison (Solicitors) JUDGMENT IN FAVOUR OF: The Complainant, Mr Richard Blatchford, is an Australian born on 21 September 1949 who is seeking employment as an airline pilot with the Respondent. The Respondent, Qantas Airways Ltd. is body corporate capable of being sued in and by its corporate style and title. Mr Blatchford complains that the respondent discriminated against him in dealing with his application for employment on the ground of age contrary to section 49ZYA and 49ZYB of the Anti-Discrimination Act 1977, which sections provide as follows: 49ZYA(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if, on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group; or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1)(a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group. 49ZYB (1) It is unlawful for employer to discriminate against a person on the ground of age: (a) in determining the arrangements the employer makes for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment; or (c) in the terms on which employment is offered. (2) it is unlawful for an employer to discriminate against an employee on the ground of age: (a) in the terms or conditions of employment that are offered to the employee; or (b) by denying or limiting access to opportunities for promotion transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee or subjecting the employee to any other detriment. Mr Blatchford lodged his complaint with the Anti-Discrimination Board on 15 February 1995. After failure of attempted conciliation the President of the Board transferred the complaint to the Equal Opportunity Tribunal on 22 September 1995. The complaint was listed before the Tribunal for preliminary directions on 1 November 1995. The matter was re-listed for further directions on 6 March 1996 and 26 June 1996. The matter was re-listed for final hearing over five days between 17 and 21 February 1997. It was re-listed for yet further directions on 19 November 1996. The Tribunal turns to set out the background of Mr Blatchford's complaint, and in doing so omits detailed reference to his application to Qantas in 1989 which forms no part of the present complaint. So far as the present complaint is concerned, it is necessary to go back no further than 4 November 1994 when the Respondent advertised that it was seeking to establish a hold file for future pilot recruitment. The terms of the advertisement, which are material, were as follows: PILOTS Qantas Flight Operations is seeking to establish a hold file for future pilot recruitment. Subject to the requirements of the airline such positions may become available in 1995. All pilots join Qantas as pilots under initial training and upon successful completion of an intensive training program graduate as Second Officers. Applicants who meet the minimum criteria may be invited to undertake Stage One of the Qantas selection program and if successful at this stage will be placed on the hold file. The second stage of the selection program will be undertaken if recruitment is required. Minimum Criteria Age: 21 at time of application. Education: Higher school Certificate or equivalent with passes in English, Mathematics and Science. Residency: Hold an Australian passport or permanent residential status. Hours: Minimum 500 hours in command. Qualifications: Commercial Pilots licence Multi-Engine Endorsement Command Instrument Rating Airline Transport Pilots Licence Theory subjects credits Applicants wishing to be considered should apply to the following address enclosing photocopies of the criteria documents, including full details of education and hours flown. Applicants who do not meet the minimum criteria, or whose application does not contain all the required information will not be considered . Only those applicants who meet the requirements will be contacted over the next three months. On 7 November Mr Blatchford responded to this advertisement and on 18 November the Respondent, through Captain Tylor, advised Mr Blatchford that he met the minimum criteria and "having been successful this far in the selection process". Captain Tylor's letter informed Mr Blatchford that the next phase of the required two days of testing at the Qantas Centre and added: "If you are selected for this testing process you will be contacted in due course". On 24 November Captain Tylor wrote to Mr Blatchford informing him that: A large number of applications have been received and this has made each stage of the selection process very competitive. At this time other candidates have been found to more closely meet our requirements and I therefore regret to advise you that at this stage your application has been unsuccessful. Captain Tylor added that the details of Mr Blatchford's application would be kept on file to review for future requirements. Subsequently, as Mr Blatchford alleges, he telephoned Captain Tylor in "late November". According to Mr Blatchford's affidavit, this telephone call was made: "after receiving some information from an acquaintance who works for Qantas". Who this acquaintance was and what was his information neither party sought to elucidate. Whether this telephone call was made and just what was alleged to have been said was the subject of conflicting evidence. Mr Blatchford, in his affidavit, recalled the conversation thus: B. I understand that you are using age in the selection process T. Yes. Your age is against you. B. That's discriminatory. You can't do that. T. I disagree. That's the way we do it. Your age is against you in the rating process. You're not a good investment for us. Why don't you apply to the commuter companies since they hire the older pilots? Captain Tylor, in his affidavit, deposed that he had no recollection of any such conversation, adding: In late November 1994 I was dealing with scores of telephone enquiries about applications every day. I did not make notes of those conversations. Reading paragraph 19 of Mr Blatchford's affidavit does not bring any conversation with him to mind. I have no other means of refreshing my recollection. I am therefore unable to deny that I had a telephone conversation with Mr Blatchford. However, if I did have a conversation with him, then I consider it very unlikely that I would have used the words that he attributes to me. Following this alleged telephone conversation Mr Blatchford claims that he telephoned Mr Hailes, Manager for Flight Operations for Qantas. Mr Blatchford's recollection of the conversation, as set out in his affidavit is as follows: B. You're using age in your selection process and you can't do that. It's discriminatory. H. No, it's not, because it's age versus flying experience. Mr Hailes, in his affidavit stated that he had no recollection of any such conversation. On 19 January 1995 Mr Blatchford again spoke to Mr Hailes on the telephone. On this occasion Mr Hailes does recall the conversation. Mr Blatchford's recollection of the conversation, as set out in his affidavit, was as follows: H. Your Higher School Certificate results gave you a lower ranking. B. What about my University results? H. Did you put that information in your application? B. Yes H. Did you send photocopy evidence? B. No, because it wasn't required by the Advertisement H. It was, if you send in proof of your University results now I will re-grade your education ranking. Mr Hailes' recollection of the conversation was, with the limits of normal recollection of such matters, substantially to the same effect: H. Look, what is holding you back is your education. There is no doubt about your flying experience. But your education is not putting you in the right ball park. B. But I have almost completed a degree. H. Well, have you told us that, because there is nothing in my computer which shows that you've got a degree? B. I did At this point Mr Hailes, according to his affidavit, examined Mr Blatchford's file and then returned to the telephone and the conversation resumed thus: H. Well, there is nothing here to show your university studies. B. Well, I haven't got a degree - but I've nearly completed one. H. Can you send me your results? B. Sure. H. If you send me your uni results we'll have a look at your education score. According to the documents annexed to Mr Hailes' affidavit which included the documents attached to Mr Blatchford's application, there was a reference to the fact that he had attended Macquarie University but had discontinued his studies to follow a career in aviation. No details of his results at Macquarie University, however, were attached although the advertisement had required "full details of education" to be submitted. On the same day, 19 January 1995, Mr Blatchford wrote to Mr Hailes by facsimile enclosing his university results, and on the following day, 20 January, according to Mr Hailes, Mr Blatchford telephoned Mr Hailes and the following conversation ensured: B. Did you get my fax? Did you look at my score? H. Yes. I've re-rated you for education to 75%. You are now a four. That means you will be in the system and will be called in for Stage One testing. Mr Blatchford in his recollection of the conversation, which he alleges took place on 19 January stated in his affidavit that Mr Hailes said to him words to the following effect: "If you send me proof of your University education I will upgrade your education score. You will get a maximum score." It should perhaps be added that subsequently, on 29 January, Mr Hailes sent a "diary note" to Captain Tylor in which he stated that he had re-ranked Mr Blatchford to three for education. In either event the re-rating meant that Mr Blatchford would be called in for further testing. Having been told by Mr Hailes, according to Mr Hailes' affidavit, that he would be called in for further testing, Mr Blatchford waited about three weeks before taking further steps for, according to Mr Hailes on or about 14 February 1995 Mr Blatchford's solicitor phoned him and the following conversation ensued: Solicitor: I'm Richard Blatchford's solicitor. I'm ringing up to find out why you haven't employed this highly competent pilot. I believe you are discriminating against him on the basis of his age. H. If you want to take that attitude then the number of our legal people is ... and you can talk to them. I have spoken to Richard Blatchford and I have told him that he is in the system. Mr Blatchford's account of this, as set out in his affidavit, is as follows: When I did not receive any further communication from Qantas and after a reasonable period time had elapsed, I asked my solicitor to contact Mr Hailes on my behalf and to ascertain the status of my application. The answer my solicitor received made me realise that nothing was going to happen so on 15 February 1995 I wrote to the Anti-Discrimination Board of New South Wales in regard to the use of age discrimination by Qantas in regard to Pilot selection. Thus the background of the complaint up to the date of its being lodged with the Anti-Discriminate Board, although it should perhaps be added that on the following day, 16 February, Qantas wrote to Mr Blatchford inviting him to undertake Stage One testing. At this point it seems desirable to set out the Qantas selection process as it operated in 1994. The structure of this process was not in dispute and the following account is based largely on that given by Mr Hailes in his affidavit. The selection process consisted of two stages. Stage One consisted of three Phases. In Phase Zero, to adopt the convenient terminology of Professor McNeill, the application was checked to ensure it satisfied Qantas' minimum requirements as set out in the advertisement. Any application that did not satisfy those requirements was returned: those that did satisfy them passed to Phase One of the process. In this Phase the applicant was assessed with reference to three criteria; flying experience, education and age. With respect to each criterion the applicant was marked on a scale of 1-4. With respect to flying experience and education the assessment, as Mr Hailes admitted, involved a subjective element. Thus, with respect to flying experience both the number of flying hours and the type of aircraft flown were taken into account. With respect to age, however, the following schedule was applied: Age Points 21-24 4 25-28 3 29-31 2 32 and over 1 After the assessments had been completed the applicant's scores for each of the three criteria were combined and averaged. The average was the applicant's score for Phase One. Any applicant who did not achieve 2.33 or over was rejected. The others passed on to Phase Two. In Phase Two the applicant was required to complete spatial ability and psychological tests and to undergo the "initial interview". For each of the tests and for the interview, the applicant was assigned a score of one out of four. These scores together with the scores for Phase One were aggregated and their average became the applicant's final score for Stage One. According to Mr Hailes, as he deposed in his affidavit: At the initial interview, each candidate was told that they would be contacted within five weeks if they had not meet Qantas' requirements at the end of Stage One. This would ordinarily occur when a candidate's psychological or spatial abilities test results were unsatisfactory or if the overall score at the end of Stage One was so low that it was thought that the candidate would not successfully proceed. Applicants who completed Stage One were ranked on a list according to their final score for that Stage. Applicants were added to the list as and when they completed Stage One in a position determined by their Stage One score, not according to the chronological order in which they passed through that Stage. Thus the relative position of each applicant was constantly changing. Applicants were taken from the list to begin Stage Two of the selection procedure in the order in which they appear on the list. Stage Two comprised a flight simulator test and a final interview, and for each, the applicants were assigned a score out of four. The scores obtained for the flight simulator test and the final interview, together with their previous scores for Stage One were combined and the average was the applicant's final score. Applicants who achieved a final score of between three and four and were judged to be suitable by the Pilot Selection Board, were recommended to the Chief Pilot, his being the final decision as to whether any applicant should be employed by the Respondent. An applicant approved by the Chief Pilot was then placed on the "hold file"; their position on that file being determined by their final score, so that the relative position of those on the "hold file" was therefore necessarily changing. Those on the "hold file" were offered employment by Qantas in the order in which they appeared on the file as positions became available. Mr Hailes, commenting in his affidavit on the selection process notes that: In my experience it can take as little as 3 months for a candidate who tests well to move through the complete selection system or it may take years. Qantas has recently offered employment to two pilots who originally applied in 1994, that is it took them over two years to progress through the system. The Tribunal now turns to collate, as it were, Mr Blatchford's experience in relation to the selection procedures as set out above. As already noted Mr Blatchford succeeded in satisfying Phase Zero of Stage One as was so informed by the Respondent on 18 November 1994. His application was then assessed in Phase One of Stage One. He was assessed as 4/4 for flying experience, 1/4 for age and 1/4 for education. Since this gave a score of less than 2.33 Mr Blatchford was informed that he had not been successful in Phase One. This was followed by telephone calls between Mr Blatchford and the Respondent referred to earlier which resulted in Mr Blatchford's sending to the Respondent, on 19 January 1995, further information regarding his education qualifications. As a consequence Mr Hailes revised Mr Blatchford's score for education from one to four according to Mr Hailes' affidavit (or from one to three according to the letter Mr Hailes subsequently addressed to Captain Tylor). In either event this raised Mr Blatchford's total score for Phase One to more than 2.33. Turning now to Mr Blatchford's affidavit, he there deposed: When I did not receive any further communication from Qantas [i.e. after he had submitted the further evidence relating to his education] and after a reasonable time had elapsed, I asked my solicitor to contact Mr Hailes on my behalf and to ascertain the status of my application. The answer my solicitor received made me realise that nothing was going to happen so on 15 February 1995 I wrote to the Anti-Discrimination Board of New South Wales in regard to the use of age discrimination by Qantas in regard to Pilot selection. Subsequently, on or about 17 February Mr Blatchford received a letter from the Respondent asking him to undergo Phase Two testing for two days commencing 16 March. The matter was now, however, before the Anti-Discrimination Board and the complaint had already been lodged. The question before the Tribunal at this stage is whether the Respondent had discriminated against the Complainant on the ground of his age. Counsel for the Complainant made it clear in his written submission that Mr Blatchford relies, in his complaint on sections 49ZYA(i)(a) and 49ZYA(i)(b) of the Anti-Discrimination Act, but as counsel pointed out if Mr Blatchford succeeded in respect of section 49ZYA(i)(a) it would be unnecessary for the Tribunal to deal with his complaint under section 49ZYA(i)(b). The Tribunal therefore turns to consider Mr Blatchford's complaint under section 49ZYA(i)(a) which as noted above provides that one person discriminates against another person on the ground of age if on the ground of that other person's age he: "treats the aggrieved person in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age". Counsel further stressed that the Complainant need not be employed for the discrimination to be unlawful because section 49ZYB(i) further provides that it is unlawful if the discrimination occurs: "(a) in the arrangements the employer makes for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment". Counsel further argued that the circumstances of other younger applicants were not in any way materially different from those of Mr Blatchford (a point which counsel for the Respondent was vigorously to contest) yet counsel for the Complainant pointed to evidence indicating that other younger pilots had been appointed during the relevant period. Counsel argued that the scoring scheme in the assessment at Stage One Phase One was obviously and manifestly discriminatory and further stressed that the mark awarded for age at that stage had a continuing effect on Mr Blatchford's progress through the selection process because of the fact that the marks for Phase One were aggregated with those for Phase Two and again with those for Stage Two. The Respondent argued that the selection process was not discriminatory despite the use of an age criterion in Stage One Phase One of the selection process. Counsel for the Respondent's main argument relied on two distinct but inter-related submissions. The first stage of counsel's argument relied on the statutory requirement of section 49ZYA(i)(a) that the person discriminated against must be in the same circumstances or circumstances which are not materially different from persons of a different age. Having stated what the Act provides counsel then proceeded: Circumstances will be materially different, I submit, if they are sufficiently significant as to be likely to influence the treatment afforded to the Complainant on the one hand and the person with whom he is being compared unless, presumably, of course, the circumstance was one which the Act makes clear cannot be taken into account or one directly related thereto, for that would be to exclude the very cases that were intended to be within the Act. Counsel continued, however, It is inconceivable, in human experience, that everyone can be treated in an identical manner in every particular and I make that observation, with respect, not only to the Respondent but to every employer, with respect, not only to the position of pilot but to that of any position. No one could suggest that it is an object or a result of the Anti-Discrimination Act that absolute uniformity of treatment be afforded to everyone in every circumstance. The Act concentrates on differences of treatment on particular grounds. It is only when applicants are eliminated from the comparison that the Tribunal can judge whether the differences in the Complainant's treatment, whatever they might be, are on the ground of his age. That proposition necessarily follows from the proposition that I made a moment ago. If it be accepted as, for the reasons I submitted earlier, it must be accepted that everyone will be treated differently in some respect it follows that in order to exclude irrelevant and perhaps misleading comparisons it is essential to exclude from the comparison any one whose circumstances are materially different from those of the Complainant. Now taken by itself the above is quite unexceptionable. The problem is, of course, who can be excluded because their circumstances are materially different. In other words what is the criterion of materiality, and in this context it is important not to use a criterion which is directly related to the ground of discrimination. At this point Respondent's counsel invoked the decision of Mahoney JA in Tullamore Bowling and Citizens Club Ltd v Lander [1984] 2 NSWLR 32 in which the complaint was one of sexual discrimination. The facts, briefly were that in Tullamore there were two Bowling Clubs, a men's club and a women's club. The T ullamore Bowling and Citizens Club was the men's club which admitted women as associate members and of which Dr Lander was an associate member. The female associate members of the Tullamore Bowling and Citizens Club were for the most part members of the women's club and it was through their membership of the women's club that they were able to enjoy the bowling facilities of the men's club. Dr Lander applied for membership of the women's club and was rejected. She therefore lodged a complaint of discrimination against the men's club. The Court of Appeal held that the men's club was not guilty of discrimination. Their Honours held that the Act did not require the men's club to undertake positive action in the matter and the appeal from the Equal Opportunity Tribunal was allowed. Counsel for the Respondent in the present matter relied principally on the following passage from the judgment of Mahoney JA: The subsection required that, for the purpose of considering whether there has been treatment that is less favourable within its terms, it must be possible to find actually applying to both males and females "the same circumstances" or (if the actual facts are not such) it must be possible to hypothesize "circumstances which are not materially different. But three things may be said about this. First, it is not always possible, and it is not in my opinion possible in this case, to find or hypothesize such a set of circumstances ... Similarly in the present case, there is no association which offers common membership to both male and female members of bowling clubs: the men's association offers membership for males and the women's association for females. There is in my opinion, no situation which involves "the same circumstances" or "circumstances which are not materially different" by reference to which a decision as to whether the club's treatment is less favourable, can be made. The Tribunal can find little assistance in the judgments in the case at this stage, but to stay with counsel for the Respondent's argument he continued: I submit the circumstances of this complaint must be materially different to those of any other applicant who is younger than he. That submission invites an examination of what is it that happens when someone applies for employment, or as here, where someone applies for a place on a holding file from which employees are taken. That examination, upon which I might now embark hopefully in relatively short terms, is one that I put at first on a general footing and will than come to look at the way in which it applies to the Complainant. Every applicant, it must be accepted, brings to his or her application different qualities. That is every applicant for employment brings to their application a mix of advantages and disadvantages for their prospective employer. The whole nature of an application for employment is that it's an offer of those qualities to the prospective employer. It is for the employer to decide which of those qualities it wants, how it values those qualities and, at the end of the day, how much it's prepared to pay for them. Again all quite unexceptionable when it is expressed in general terms and counsel develops his argument at some length before turning to its application to the present matter saying: The evidence, I submit, compels a finding of fact that the one quality that the Complainant brought to his application was that his employment by the Respondent was likely to cost more to the Respondent than that of a younger pilot and this leads to the second aspect of his argument which was to the effect that the employment of older applicants, who might have a shorter period of employment with Qantas did not justify the costs involved in training them. This argument was adumbrated by Captain Tylor who, in his affidavit, deposed as follows: I wish only to add an explanation of my reasons for including age as an element of Phase One Stage One. Age was used as a guide to the length of service that Qantas might be able to obtain from a successful applicant. I consider that the amount spent of training by Qantas needs to be recouped. This takes time. I also consider that the future of Qantas depended on its having enough pilots who had the time in service to be trained and come through the system from Second Officer to Captain. Counsel for the Respondent developed this argument in his final submission and relied heavily on the affidavit of Dr William Mitchell the gist of whose conclusions are set out in the Executive Summary of his Report: 6. It is shown that when there are significant fixed costs of hiring the rational firm which aims to minimise its costs and hence maximise its return to capital will have to consider the future as well as the present. 7. Such a firm is shown to prefer hiring younger trainees who will maintain a long term relationship with the firm, rather than an older applicant who will, in the ordinary course, not have as long an attachment to the firm. 8. Thus a preference for younger trainees is properly and reasonably explained as a rational economic strategy. 9. We conclude that when there are hiring and training investments involved in the employment decision, firms have legitimate economic reasons for preferring to hire applicants who have a longer expected tenure or working life. Dr Mitchell's report analyses the situation of Qantas in relatio n to this point of view. Counsel for the Respondent supported his submissions on this point by a reference to the decision of the New South Wales Court of Appeal in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 in which the court decided that an employer's decision not to employ a married female on the ground of the possibility that she might disclose, whether by inadvertence or otherwise confidential information of the emp loyer to her competitor employed husband. Counsel for the Respondent specifically relied on the following passage from the decision of Mahoney JA: But at least two things emerge from s.39(1). First, the two paragraphs do not in my opinion, require that the employer ignore characteristics which a Complainant in fact has merely because they are characteristics that in fact appertain generally to, or are generally imputed to persons of the relevant martial status. The words of the paragraphs are capable of meaning that, if the Complainant has in fact the relevant characteristic, the employer cannot take it into account if that characteristic is one which in fact appertains generally to (or is generally imputed to) persons of the relevant marital status. But I do not think that the paragraphs should be so construed. Thus, if it be assumed that disclosure of confidences which should not be disclosed was a characteristic within pars (b) or (c), if the complainant in fact had that characteristic, ie she did in fact disclose such confidences, the employer would not be prevented by the paragraph from taking that into account in his treatment of her. And again: And, second, the paragraphs do not, in my opinion, require that the employer, in what he does, treats the Complainant as if, contrary to the fact, she was not married or in the relevant cohabitation. T he Act requires that each person, in the relevant sense, be dealt with by reference to her individual characteristics; it does not require that she be treated as if she has characteristics which she does not have. Counsel also relied on the decision of the Federal Court in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1991) 32 FCR 468 in which the complaint arose under the Commonwealth Sex Discrimination Act and in which Davies J discussed the criteria that "the discriminator treats the aggrieved person less favourably than the discriminator treats or would treat a person of different marital status" and that such treatment be "in circumstances that are the same or are not materially different". His Honour stated: As to the first of these criteria, it seems to me that it involves or may involve matters of fact. It is not sufficient that the treatment in the terms and conditions of employment be different; it is necessar y that the treatment be less favourable. Miss Pearson submitted that the treatment of the two officers was necessarily less favourable for that provided for married officers for they did not receive and could not receive the dwelling purchase or sale expenses allowance and were entitled only to a lesser allowance in respect of removal disturbance. However, it is not sufficient that single officers and married officers be treated differently. There must be discrimination as between married officers and single officers in "the terms or conditions of employment". The reference is not to a "term or condition of employment". Thus, if single persons are given other and equivalent benefits, it could be that they are not treated "less favourably". It could be relevant to inquire whether the Commonwealth provides accommodation that is to say board and lodging for single officers which is not provided to married officers. and again: The second criterion is also one which, in my view, was not but ought to have been the subject of discussion by the Commission. This issue was whether the discrimination occurred in circumstances which were the same or not materially different. This matter was not discussed by the Commission. Miss Pearson submitted that the Act intended that one should put out of mind as a relevant circumstance both marital status and any characteristic that appertains generally to persons of a particular marital status. However it is necessarily so that a characteristic that appertains generally to persons of a particular marital status cannot constitute a materially different circumstance for the purposes of s.61(1). When the context is the provision of accommodation, the circumstance that one person lives with a wife and children may be materially different from the circumstance of another person who lives alone. His Honour then referred to the provision of section 34(1) which made specific provision for the provision of accommodation. It should perhaps be added that his Honour also added: These are not matters on which I express any firm or concluded view. They are matters for the Commission in the first instance. However it seems to me that the two criteria were sufficiently open to debate that they ought to have been the subject of discussion and of findings by the Commission. The application of these decisions to the circumstances of the pres ent complaint seems to the Tribunal to be at best marginal, and indeed Commonwealth of Australia v Human Rights and Equal Opportunity Commission can be distinguished from the present complaint on the ground that defence personnel in that case must be either married or unmarried and a comparison may therefore be drawn between them. Applicants in the present matter have both age and flying experience so the comparison cannot be made on the sam e basis. Counsel then proceeded to a slightly different argument, namely, that, according to both Mr Hailes and Captain Tylor, the Qantas selection process had been designed to balance age against flying experience on the argument that if flying experience alone were taken into account younger applicants would be discriminated against and by giving consideration to both age and flying experience would balance one against the other. The argument seems to the Tribunal to be something of a double-edged sword. Thus the arguments for the Respondent. To take the last submission first, the Tribunal cannot accept this as an argument sustaining the view that the Qantas selection process was not discriminatory. Section 4A of the Act provides: If: (a) an act is done for 2 or more reasons; and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason If the use of the age criterion in the selection process was discriminatory within the meaning of the Act it does not become less so because it is combined with some other factor or factors. The Tribunal turns, therefore, to the Respondent's main argument to the effect that Mr Blatchford's circumstances were not the same or were materially different from that of younger applicants because owing to his age he would have the prospect of a shorter period of employment with the Respondent who would thus have a shortened opportunity of re-couping their investment in his training, and that it was only reasonable and rational to take this into account in the selection process. There can be no doubt, as Dr Mitchell deposed, that on the principles of economic rationalism, it is reasonable, certainly where there is a costly training programme involved to take age into account in any selection process, but the Tribunal is not directly concerned with the principles of economic rationalism, but with the principles of equal opportunity. The principles of economic rationalism are not enshrined in legislation: the principles of equal opportunity are, and it is the legislation that the Tribunal is called upon to apply. The Act provides no exceptions for economic rationalism, and the Tribunal must decide matters within the terms of the Act as it stands. The Tribunal would also stress that the Respondent did not suggest that age in itself was a factor which was relevant to flying competence, which would have been difficult in view of the fact that Qantas pilots are still flying well beyond Mr Blatchford's age. Again, the Tribunal was not convinced that the whole of the costs alleged to have been involved in the training of pilots would necessarily have been incurred in the training of a pilot of Mr Blatchford's experience. The Tribunal, whilst recognising that Australia is a party to international agreements specifying the age after which pilots may not fly on international routes, also notes that Mr Blatchford could still fly internationally with Qantas for more than a decade if appointed, and potentially, so the Tribunal was informed, for longer on domestic routes. That age was one of the factors taken into consideration in the Respondent's selection process is self-evident: that Mr Blatchford was treated less favourably than younger applicants follows from the fact that he received a lower score than he otherwise would have obtained and this slowed his progress through the selection process. Moreover, since the scores achieved were aggregated and then averaged at each stage, this less favourable treatment continued to operate at each stage. The Tribunal cannot but conclude that the Respondent discriminated against Mr Blatchford by taking his age into account in the pilot selection process. It should be stressed that this discrimination was not personally directed against Mr Blatchford. It was systemic discrimination that operated against all applicants. Since the Tribunal finds that direct discrimination has been established it is not necessary for it to consider the submissions in relation to indirect discrimination. The Tribunal turns therefore now to the remedies sought by the Complainant. Before considering in detail the orders sought by the Complainant it is convenient to note one development which took place after the Complainant lodged his complaint, namely that in April 1996 the Respondent changed the process of pilot selection. Thus Mr Hailes deposed: Captain Tylor and I reviewed the original system in April 1996 and, as a result, the revised system was introduced in April 1996. The revised system retains all the essential features of the original system that I described in paragraph 3 but for two: (a) Scores for each phase or stage are disregarded in the next. Thus, once candidates have passed into Phase Two of Stage One, as Mr Blatchford has done, their score for Phase One of Stage One is disregarded, so that their final score, and hence their place on the list of candidates waiting to begin Stage Two, is determined only by their results in Phase Two. (b) The score for the psychological test continues to be considered in Stage Two. Thus the final score for Stage Two is an average of the applicant's score for the flight simulator, the psychological tests and the final interview. Bearing this in mind the Tribunal turns to consider the specific orders sought. The Complainant sought a number of orders against the Respondent some of which appear to overlap. The orders sought are set out in paragraph 19 of the Complainant's amended points of claim. In paragraph 19(g) the Complainant seeks an order that: "the Respondent appoint the applicant to a position as a pilot with the status and seniority that he would have had but for the unlawful discrimination". This is an order that the Tribunal cannot make. It is not for the Tribunal to decide who the respondent should appoint as a pilot. Mr Blatchford is still undergoing the selection process, but has not yet completed it. The Tribunal is in no position to order the Respondent to appoint a person who has not yet completed the selection process. Admittedly Mr Blatchford has been discriminated against, but the effect of that discrimination has been to slow Mr Blatchford's rate of progress through the system: it does not entitle him to an appointment without completing the necessary tests. The appropriate order would therefore seem to be that the Respondent complete Mr Blatchford's selection process as soon as reasonably possible. Admittedly after the introduction of the revised pilot selection process the Respondent re-assessed Mr Blatchford, for as Mr Hailes deposed: Upon the introduction of the revised system all the outstanding applications, including Mr Blatchford's application, were brought under it. This was done by recalculating every candidate's score at the end of Stage One and Stage Two without including their scores for the preceding phase or stage. In Mr Blatchford's case, this meant that his final score for Stage One was recalculated without including his score for Phase One: his final score was therefore determined entirely by the results of his spatial abilities and psychological tests and his initial interview. As a result, he dropped several places in the list; when he was under the original scheme, the relatively high score that he had obtained in Phase One had ameliorated the effect of the relatively low scores that he had obtained in Phase Two for his spatial abilities and psychological tests. This may be so, but the list of those seeking to complete the selection process changes from week to week. Mr Blatchford's position on the list in 1996 is no indication of what his position would have been in, say, 1995 had age not been a factor which the Respondent took into account. It is not possible to say where Mr Blatchford would have been on the list at any time over the previous twelve months or so since the lists are not retained. Admittedly Mr Blatchford claimed that, given additional information, it would have been possible to reconstruct the lists and he relied on, Apollo Shower Screens v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 for the proposition that Qantas should have made such information available. The decision in the Apollo case is not to the point in this context since the Complainant sought an order from the Tribunal to obtain such information, and the order was refused. The current Tribunal cannot re-open that matter again. There appears to the Tribunal, however, a probability that the delay caused by the discrimination has disadvantaged Mr Blatchford. This probability suggests that as stated above, the appropriate order be that the Respondent complete Mr Blatchford's selection process as soon as reasonable, their final decision to be made in accordance with the revised selection procedure, that is to say, without reference to Mr Blatchford's age. In view of the above it would appear that additional orders that Mr Blatchford be re-assessed are unnecessary. The Complainant also seeks an order, as set out in paragraph 19(b) of his amended Points of Claim, that the Respondent; "cease and desist from applying age or potential length of service criteria in the selection of the applicant as a pilot". The Respondent, in his final submission, objected that the Tribunal had no power to make such an order. The Tribunal sees no difficulty in so ordering, not only in relation to the Complainant, but in relation to any other applicant. On the date that Mr Blatchford submitted his complaint he had been discriminated against, and although the revised selection procedure has mitigated the effect of the discrimination, by removing its cumulative effect, it does not appear to have been removed entirely, and this would leave open the possibility of a low mark in Stage One, Phase One, due to a low mark in relation to the age criterion resulting in an applicant failing to obtain the minimum score necessary to pass that phase. Section 113(1)(ii) of the Act empowers the Tribunal to make an order: "enjoining the Respondent from continuing or repeating any conduct unlawful by this Act or the regulations". This seems to the Tribunal wide enough to order that the Respondent reconsider its selection procedure to ensure that age does not figure as a criterion to be taken into account in the selection of pilots, taking into account, of course, the effect of any international agreements relating to this matter having the force of law in Australia. The Tribunal must here point out that it is concerned only with applicants over the age of twenty-one. Applicants under that age are, the Tribunal understands, governed by other regulations, and in any case that matter was not argued before the Tribunal in this case. The Complainant also seeks damages in the amount of $40,000. The Complainant's counsel did not find it necessary to elaborate upon this matter beyond asserting that Mr Blatchford's loss was far in excess of $40,000 which is the maximum which the Tribunal can award. In the Complainant's written submissions it is claimed that: Captain Blatchford is also entitled to an order for compensation by reason of the substantial loss he has incurred to date. He has been deprived of the opportunity to obtain employment and has suffered loss for that - he should be compensated for that insofar as the Act allows. Whilst his loss far exceeds $40,000, the Act only permits an award in that amount. whilst in his supporting argument Mr Blatchford's counsel stated: We say that the effect of the discrimination has been to keep Captain Blatchford out of employment, at least from some point in the period up to April 1996 and prior to then to November 1994 when he made his application. He has had, I think on his evidence, six months employment as a pilot in that time which is a period now of something in the order of two and a half years. With this claim the Tribunal has considerable difficulty for it cannot see in what way the actions of the Respondent has deprived Mr Blatchford of opportunities for employment. When Mr Blatchford made his application to Qantas he was applying to be selected to undergo a selection process, in which if he was successful would result in his being placed on a "hold-file" for future recruitment. It was a process which Mr Blatchford was aware would take some time - months or possibly even years - as was indicated by his letter to Mr Hailes date 19 January 1995. He was not applying for a job to which he could reasonably expect to be immediately appointed. Whether he was employed or not at the time of his application was of no concern to Qantas, nor something for which they were responsible. Nor was it any concern of the Respondents if he continued unemployed, nor again something for which they were responsible. Mr Blatchford is still undergoing the selection process, a fact that may well be due to the fact that he was discriminated against on the ground of age, but hardly the basis for an award of damages. Whatever else Qantas may have been doing, they were not depriving Mr Blatchford of the opportunity of employment, but merely delaying his opportunity of employment with them. There was nothing whatsoever to prevent Mr Blatchford from seeking employment elsewhere while waiting the outcome of his application to be selected for the Qantas hold-file, and, indeed, it would only have been reasonable for him to have done so. Qantas can hardly be responsible for his not doing so. His claim for damages appears to be based on the assumption that, because of his experience, he is bound to be appointed, and that it is only the age discrimination that prevented his employment. This appears not to be the case. He still has successfully to pass the remaining tests in the selection process. The Tribunal cannot therefore see that Mr Blatchford has sustained his claim for damages, and the Tribunal therefore makes no award of damages. Finally the Complainant seeks costs. Here the Tribunal notes that this is a case of systemic discrimination and relies on the earlier Tribunal decision in Squires v Qantas Airways (1985) EOC 92-135 in which the Tribunal held that the general rule, as set out in section 114(1) of the Act, was displaced in the circumstances of that case. The Tribunal stated: Although Ms Squires lodged and pursued an individual complaint proof of her case necessarily involved exposure of a long standing structure of systemic discrimination by Qantas against all flight hostesses, not only the Complainant. In successfully attacking the system the Complainant achieved a result which will settle the question of liability for a large number of flight hostesses whose promotion prospects were similarly restricted and whose terms and conditions of work were similarly affected. It seems to the Tribunal that these remarks are similarly applicable to the present case. The Tribunal, therefore, orders that the Respondent pay the costs of the proceedings in this matter, the amount to be determined in accordance with the provisions of the Legal Profession Act. In the result the Tribunal makes the following orders: 1. That the Respondent, as soon as is practicable, arrange for the Complainant to complete the selection process and make their final decision without reference to the Complainant's age; 2. That the Respondent revise their selection procedure for pilots so that age is no longer taken into account in the selection of pilots to be placed on the hold-list for appointment; 3. That the Respondent pay the costs of these proceedings in an amount to be assessed in accordance with the provisions of the Legal Profession Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.