Commission submissions: Christie
Legal
IN THE HIGH COURT OF AUSTRALIA
SYDNEY
OFFICE OF THE REGISTRY
No.
S194 of 1996
BETWEEN:
QANTAS AIRWAYS LIMITED
ApplicantAND
JOHN BAILLIE CHRISTIE
Respondent
WRITTEN
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
1.
The Human Rights and Equal Opportunity Commission makes two submissions with respect
to the interpretation of s.170DF(2)(f) of the Industrial Relations Act
1988 (Cth). They are:
(a)
that s.170DF(2) be construed in a manner which gives effect to the objects of
the Industrial Relations Act 1988 (Cth); and(b)
that the terms of s.170DF(2) be construed in a manner which gives effect to its
meaning in international law.
OBJECTS
OF THE INDUSTRIAL RELATIONS ACT 1988 (CTH)
2.
To the extent that the issues in this appeal turn on the operation of those parts
of the Industrial Relations Act 1988 (Cth) which are concerned with the
minimum entitlements to be accorded to employees (see Part 4), it is submitted
that the Court should apply the accepted principle that human rights legislation
should be interpreted beneficially and broadly to give effect to the objects of
the legislation: Waters & Ors v Public Transport Corporation (1991)
173 CLR 349 at 359.4 per Mason CJ and Gaudron J and 394 per Dawson and Toohey
JJ, Australian Medical Council & Anor v Wilson & Ors (1996) 137
ALR 653 at 655.9 per Black CJ and Human Rights and Equal Opportunity Commission
& Anor v Secretary of Department of Immigration and Multicultural Affairs
(1996) 137 ALR 207 at 216.5 per Lindgren J.
3.
The objects of the Industrial Relations Act 1988 (Cth) are set out in s.3
and include the object of helping to prevent and eliminate discrimination on the
basis of age: s.3(g).
4.
A further object of the Industrial Relations Act 1988 (Cth) s.3(b)(ii)
is to give effect to Australia's international obligations as a member of the
International Labour Organisation and pursuant to various human rights treaties:
Victoria & Ors v The Commonwealth (1996) 70 ALJR 680, (1996) 138 ALR
129 at 148 - 150, 166 - 171.
THE
USE OF INTERNATIONAL LAW
5.
Where an Australian enactment refers to, or incorporates, an international instrument,
the meaning of the relevant provisions in the Australian enactment is to be ascertained
by reference to the meaning of the corresponding provision in the international
instrument: Gerhardy v Brown (1985) 159 CLR 70 at 124.1 per Brennan J and
Applicant A v Minister for Immigration and Ethnic Affairs and Anor (1997)
71 ALJR 381 at 383.2 per Brennan CJ, 388.4 per Dawson J and 419.2 per Kirby J.
6. To ascertain the meaning
of a provision in an international instrument, the Court may be assisted by the
Vienna Convention on the Law of Treaties 1969, in particular article 31, which
is declaratory of the international rules for the interpretation of treaties:
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 265.5, Gerhardy v Brown
at 124.2 and Applicant A at 383.2 per Brennan CJ and at 395.1 per McHugh J.
7.
In interpreting treaty provisions, the Court should adopt a holistic approach
and may consider both the text, and the objects and purpose of the treaty. The
task should not be one which adopts a rigid priority in the application of interpretative
rules: Applicant A at 383.4 per Brennan CJ and at 396 per McHugh J.
8.
In determining the objects and purpose of the treaty, regard may be had to extrinsic
sources, including:
(a)
the form in which the treaty is drafted;(b)
the subject to which it relates;(c)
the mischief that it addresses; and(d)
the history of its negotiation and comparison with earlier or amending instruments
relating to the same subject: Applicant A at 383.6 per Brennan CJ.
9.
In this case the relevant international instruments include the International
Labour Organisation's Convention Concerning Discrimination In Respect Of Employment
and Occupation 1958, ("ILO 111") and the International Labour Organisation's
Recommendation Concerning Discrimination In Respect Of Employment and Occupation.
10. Article 1(2) of ILO 111,
is transposed into Australian law in s.3(1) of the Human Rights and Equal Opportunity
Commission Act 1986 (Cth) and, subject to a minor distinction, into s.170DF(2)
of the Industrial Relations Act 1988 (Cth).
11.
The objects of ILO 111 are enunciated in its preamble which makes specific reference
to discrimination constituting a violation of the Universal Declaration of
Human Rights 1948. It also refers to the Declaration of Philadelphia
1944, [1] which affirms the right to pursue both material well
being and spiritual development in conditions of freedom and dignity, of economic
security and equal opportunity.
12.
The Universal Declaration of Human Rights [2] 1948 is
the pre-eminent international human rights instrument. In addition to providing
a freedom from discrimination (see Articles 2 and 7), it declares that everyone
has the right to work, to free choice of employment, to just and favourable conditions
of work and to protection against unemployment: see Article 23(1).
13.
The rights enunciated in the Universal Declaration of Human Rights are
embodied in two international treaties - the International Covenant on Civil
and Political Rights 1966 [3] (see Articles 2(1) and 26)
and the International Covenant on Economic, Social and Cultural Rights
1966 [4] (see Articles 2(2) and 6). Australia has ratified both
covenants [5] and is bound by the obligations therein.
14.
It is submitted that the operation and meaning of the provisions in ILO 111 must
be understood in their true international human rights context. International
human rights law recognises a right to work and a right to be free of unlawful
discrimination.
15.
Article 1(2) of ILO 111 permits a derogation from these rights where the person
concerned is unable to meet the inherent requirements of a particular job. It
is submitted that any limitation on the enjoyment of these rights must be construed
narrowly and in a manner which does not frustrate the overall objects of ILO 111
and in this case the Industrial Relations Act 1988 (Cth): Waters v Public
Transport Corporation at 413.8 and the ILO Expert Commission of Inquiry decision
in the German Work Ban Case [6] at paras 530-532 at 230.1.
THE
PARTICULAR POSITION
16.
The inherent requirements exception in ILO 111 and the Industrial Relations
Act 1988 (Cth) differ in one respect. Article 1(2) of ILO 111 provides that
the inherent requirements relate to a particular job and s.170DF(2) of
the Industrial Relations Act 1988 (Cth) refers to the inherent requirements
of a particular position.
17.
It is submitted that there is no material difference between "position"
and "job": German Work Ban case at para 532 at page 230.5. In
any event, the expression must be interpreted consistently with ILO 111.
18.
With respect to the application of s.170DF(2), the first step is to identify the
particular position in which the individual is employed. The position in question
must be a specific and definable position: The Report of the ILO Committee in
Czech and Slovak Republic Case [7] at para 66 at page
20. Generally, it is for the employer to define the position by reference to its
essential tasks or goals in the context of the employer's business. Those tasks
or goals must be set, and assessed, objectively in the context of the employer's
business.
INHERENT REQUIREMENTS
19.
The word 'inherent' has been interpreted by the ILO Expert Committee in German
Work Ban case, having regard to its ordinary meaning as defined in the Oxford
English Dictionary as, "existing in something as a permanent attribute or
quality; forming an element, especially an essential element, of something; intrinsic,
essential" (para 531 at page 230.1).
20.
Having identified the particular position, the next inquiry is what skills, qualifications
or experience are required to perform the tasks and achieve the goals. The identification
of the skills, qualifications and experience are also matters to be assessed objectively.
21.
It is submitted that it is only those qualities which constitute the inherent
requirements of that position.
22.
In some cases, it may be a difficult question of fact to determine whether a particular
requirement of the position is inherent or merely desirable from the employer's
perspective. In this respect the employer's operational requirements should not
be confused with the inherent requirements of a particular position. Administrative
convenience, for example, does not convert a desirable quality into an inherent
requirement. The employer may specify requirements, which are desirable, but if
those requirements constitute discrimination, direct or indirect, they would not
be protected by the inherent requirements exception.
23.
In that context, if reasonable accommodation or adjustments can be made to enable
an employee to meet the requirements of the job, then such requirements cannot
properly be described as inherent. If the term were to be construed otherwise
the underlying human right, from which this constitutes an exception, would be
unjustifiably diminished.
Dated:23
May, 1997
Mark Nicholls
Counsel
for the intervener
1.
Article 1(1) of the ILO Constitution and the Declaration adopted on 10 May 1944
which is set out in the Annexure to the ILO Constitution - United Kingdom Treaty
Series No.59 (1961) Cmnd.1428.
2.
United Nations Document A/811 - adopted by a resolution of the General Assembly
of the United Nations on 10 December 1948 (Resolution A/RES/217A(III)) 48 votes
in favour and none against.
3.
United Nations Treaty Series Vol. 999 at page 171 - General Assembly Resolution
2200A(XXI) of 16 December 1966. The Covenant entered into force on 23 March 1976.
4.
United Nations Treaty Series Vol.993 at page 3 - General Assembly Resolution 2200A(XXI)
of 16 December 1966. The Covenant entered into force on 3 January 1976.
5.
The ICCPR was ratified on 13 August 1980 and the ICESCR was ratified on 10 December
1975.
6.
Appointed under article 26 of the Constitution of the International Labour Organisation
to examine the observance of the Discrimination (Employment and Occupation) Convention,
1958 (No.111) by the Federal Republic of Germany - ILO Official Bulletin Supplement
1, Vol. LXX, Series B, 1987.
7.
Report of the Committee set up to examine the representations made by the trade
union association of Bohemia, Moravia and Slovakia and the Czech and Slovak Confederation
of Trade Unions under article 24 of the ILO Constitution alleging non-observance
by the Czech and Slovak Federal Republic of the Discrimination (Employment and
Occupation) Convention, 1958 (No.111) - ILO Official Bulletin Supplement 1, Vol.
LXXV, Series B, 1992.
Last
updated 21 May 2003.