Peggie v Qantas Airways Limited T/A Qantas and "inherent requirements"

Peggie v Qantas Airways Limited T/A Qantas [2021] FWC 5458

The COVID-19 pandemic has had a serious impact on workers in a large number of industries, perhaps none more so than those working for commercial airlines.

In Peggie v Qantas Airways Limited t/a Qantas, the Fair Work Commission dismissed applications brought by two pilots who were dismissed after reaching 65 years of age. The judgment revisits the earlier Christie decision and meaning of "inherent requirements", but with a number of added complications associated with the COVID-19 pandemic.

The judgment has useful commentary on "inherent requirements" and, perhaps unsurprisingly, notes that the inherent requirements of a role, while not static, will not materially change due to a temporary change in circumstances (such as the COVID-19 pandemic).

Background

Both Andrew Peggie and Geoffrey King commenced employment with Qantas as long-haul pilots in 1984 and remained employed until their dismissals in November 2020 and December 2020.

A well-known restriction in the aviation industry is the ICAO restriction on being an international pilot once over the age of 65. Mr Peggie turned 65 in August 2020 and Mr King turned 65 in July 2020. Prior to this, on 21 March 2020, both pilots were stood down because of COVID-19.

In advance of their 65th birthdays, both Mr Peggie and Mr King advised Qantas that they wished to transfer to short-haul operations (domestic flights, to which the ICAO restrictions do not apply). This is a common transfer for pilots who wish to continue flying once they reach 65.

In the correspondence leading up to their dismissals, Mr Peggie and Mr King were informed that:

• upon turning 65 years of age, they were unable to perform the inherent requirements of their positions due to ICAO restrictions
• although each of them had indicated a preference to transfer to short haul, this request could not be accommodated because there were no pilot vacancies available (at the time or in the reasonably foreseeable future) due to the significant reduction in domestic flying due to COVID-19
• there were no alternative roles into which the pilots could be redeployed.

Mr Peggie and Mr King commenced unfair dismissal proceedings and sought reinstatement to their long-haul positions in the hope that they would remain employed (while stood down) long enough that when an availability arose within short-haul operations, they could transfer and continue to fly as Qantas pilots.

Age discrimination and Christie

The Age Discrimination Act 2004 (Cth) prohibits discrimination in employment on the basis of age unless the employee cannot perform the inherent requirements of the particular employment because of their age.

A well-known case on age discrimination in the aviation context is Qantas Airways Limited v Christie 193 CLR 280.

Christie concerned a pilot who was dismissed after 30 years of service because he had reached the age of 60. Mr Christie sued Qantas and claimed that the termination of his employment was in breach of the Industrial Relations Act 1988 (Cth), which provided that an employer must not terminate an employee’s employment by reason of age. However, dismissal on the grounds of age was lawful “if the reason [was] based on the inherent requirements of the particular position”.

Mr Christie sought reinstatement on the basis that a special rostering arrangement could be put in place so that he could legally continue to fly on a small number of routes that were in the domestic or local regional airspace (which at the time included Australia, Indonesia, Fiji and New Zealand) after his 60th birthday.

The initial trial judgment was for Qantas but a majority on appeal found for Christie. The High Court was of the unanimous view that an inherent requirement is essential, intrinsic, or indispensable to the position. However, the views of the Judges differed as to whether or not Mr Christie was able to fulfil the inherent requirements of his position. The majority of the Judges focused on an ability to participate in the rostering process (as it then existed) as the relevant inherent requirement and that, given Mr Christie's age, he was unable to fulfil this inherent requirement. Other reasoning included the ability to fly to most of Qantas' overseas destinations, which was precluded by Mr Christie's age. Ultimately, the High Court found in favour of Qantas (Kirby J dissenting).

Arguments

In Peggie, Qantas' position was that a Qantas long-haul employee cannot perform the inherent requirements of their position upon reaching 65 years of age because of the ICAO rules, which preclude pilots from operating aircraft within most of the foreign jurisdictions in which Qantas operates.

While Mr Peggie and Mr King were seeking reinstatement to their long-haul positions, this was only until such time as they could transfer to short-haul flights. Unlike in Christie, both pilots accepted that they were unable to fly long haul once over the age of 65.

Qantas acknowledged that a long-haul pilot could bid for a vacancy in short haul, however, this was dependent on there being a vacancy and the pilot's seniority at the relevant time. Qantas also argued that there is no right to a short-haul vacancy, notwithstanding the fact that Qantas has been able to accommodate bids in the past. A concern for the two pilots was that, were it not for COVID-19, there would have been a high likelihood that a short-haul vacancy would exist and that they could have either transferred prior to their 65th birthdays, or used leave entitlements until a training opportunity arose for short haul.

On the issue of "inherent requirements", the pilots noted that the aircraft they previously worked on was grounded and would not operate again until 2023. They therefore argued that the earliest time during which they would be unable to fulfil the inherent requirements would be 2023.

Decision

The Commission accepted that if the termination of employment was founded on unlawful age discrimination, then the dismissals would be unfair.

The Commission noted that essential to the consideration of this matter was the meaning of inherent requirements. The Commission did not accept the applicants' arguments on this point. It said that the inherent requirements of a role do not fundamentally change because of a temporary change in circumstances (Qantas not presently flying internationally), nor do contractual obligations. If the Commission was to accept the applicants' argument, this would mean that because there is no flying being undertaken by international pilots, there are currently no inherent requirements of a long-haul pilot's role – which could not be correct.

The Commission noted that the standing down of international pilots by Qantas had not changed the requirements to fly as international pilots. For this reason, the Commission found that the applicants' inability to perform the inherent requirements of their positions on Qantas’ international routes (because they had both reached the age of 65) was a valid reason for the dismissal. The Commission also noted that, even if it was wrong in coming to that conclusion, reinstatement into positions that were currently stood down was not an appropriate remedy in the circumstances.

Given the length of service of the applicants, the Commission noted that it would have been nice if Qantas had continued to "warehouse" them until they found positions in the domestic network. However, the fact that Qantas decided differently did not render the dismissals unfair.