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HRC Report No.11

Report of an
Inquiry into a Complaint of Discrimination in Employment and Occupation

Discrimination
on the Ground of Age

HRC Report No.11

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available in PDF Document for DownloadPDF
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Contents

1.
Introduction

1.1 The Commission's jurisdiction
1.2 Outline of the complaint
1.3 Findings and recommendations
1.4 Actions taken by the respondent as a result of my findings and recommendations

2. The
inquiry process

2.1 The complaint
2.2 The response
2.3 The complainant's reply
2.4 Conciliation
2.5 Preliminary finding of discrimination
2.6 Submissions and evidence

3.
Findings and recommendations

3.1 Issues to be determined

3.2 Whether there was an act or practice
3.3 Whether the act or practice arose in employment or occupation
3.4 Whether there was a distinction, exclusion or preference based on
age
3.5 Whether the distinction nullified or impaired equality of opportunity

3.6 Whether the distinction was based on the inherent requirements of
the job 3.7 Consideration of recommendations

4. Notice
of findings and recommendations of the Commission

Appendix
A: Functions of the Human Rights and Equal Opportunity Commission

Endnotes


1.
Introduction

1.1 The Commission's jurisdiction

This is a report
to the Attorney-General on inquiries made by the Human Rights and Equal
Opportunity Commission into a complaint made under the Human Rights and
Equal Opportunity Commission Act 1986 (Cth) (the Act) of discrimination
in employment on the ground of age. The complaint was made by Ms Akiko
Ishikuni against the Japan Travel Bureau (Australia) (JTB).

The jurisdiction
of the Human Rights and Equal Opportunity Commission (the Commission)
in relation to complaints of discrimination in employment and occupation
was described in my first report to Parliament on complaints in this area.(1)That
description is set out in Appendix A to this report. In 1989 the Human
Rights and Equal Opportunity Commission Regulations declared a number
of additional grounds of discrimination for the purposes of the Act with
effect from 1 January 1990.(2) The subject of this
Report, age discrimination, is one of those grounds.

I have reported
to the Attorney General on issues concerning age discrimination in employment
on a number of previous occasions, most recently in HRC 9, a report concerning
age discrimination in the Australian Defence Force. I have also reported
generally on age discrimination in Age Matters: A report on age discrimination,
a report tabled in Parliament in June 2000. In that report, I made a number
of recommendations for change including recommendations concerning community
awareness, the review of age based distinctions in Commonwealth laws and
policies and the enactment of a more rigorous and effective legal regime
to prevent and remedy acts of discrimination based on age. I draw those
recommendations to the attention of the Attorney-General and the parliament.

1.2 Outline of the complaint

In 1995 Ms Akiko
Ishikuni made a complaint alleging discrimination on the basis of her
age in respect of her employment. She alleged that she had been employed
on a casual basis with JTB since 1987 as a travel guide and interpreter
for Japanese tourists visiting Melbourne. She alleged that a reduction
in 1994 in the work allocated to her and subsequent decline in income
amounted to discrimination on the basis of her age.

1.3 Findings and recommendations

On 22 June 2000 I
issued a notice of my findings and recommendations in relation to the
complaint under s.35(2) of the Act. I found that the complainant had been
subjected to discrimination in employment within the terms of the Act
and I recommended that the respondent pay the complainant the sum of $43,385
being damages for loss of income. I further recommended that all future
decisions with respect to the allocation of work to the complainant be
made without discrimination on the ground of her age

1.4 Actions taken by the respondent
as a result of my findings and recommendations

Under s.35(e) of
the Act I am required to state in my report to the Attorney General whether
the respondent has taken or is taking any action as a result of my findings
and recommendations.

I am very pleased
that on 3 August the respondent's solicitors advised that the respondent
accepted my recommendations in full. Accordingly the respondent will pay
the sum of $43,385, less tax, to Ms Ishikuni by 31 August 2000. The respondent's
solicitors also advised that the respondent was "committed to conducting
business in a manner so as not to discriminate against any employee on
the basis of age or on any other improper ground".

JTB is to be congratulated
on this. It is a model for other respondents, including the Commonwealth,
that are often far less willing to accept the Commission's recommendations.
I regret only that the complainant and the respondent were unable to settle
this matter through conciliation.

2.
The inquiry process

2.1 The complaint

On 25 November 1995
Ms Ishikuni lodged a complaint alleging discrimination on the basis of
her age. At the time of lodging the complaint, Ms Ishikuni was aged 64.

The complainant
has been employed on a casual basis with Japan Travel Bureau (JTB) since
2 December 1987 as a travel guide and interpreter for Japanese tourists
visiting Melbourne. The complainant continues to be employed by JTB.

The complainant alleges
that a reduction in 1994 in the work allocated to her and subsequent decline
in income amounts to discrimination on the basis of her age.

In particular the
complainant alleges that from mid-1994 instead of being allocated three
'large jobs' a week, which is what she had been allocated previously,
she was allocated only 'optional tours'. It appears that 'large jobs'
were 'full tours' which involved greeting tourists at the airport, showing
them the city sights and joining them for meals. The remuneration for
one of these tours was $381.

The complainant alleged
that in approximately 1990 or 1991, four to five years before lodging
the complaint, the in-bound Manager for JTB, Mr Ue, had told her that
she should not be doing large jobs because she was too old. Mr Ue also
allegedly told her that JTB was looking for young people and that she
should go to JTB's subsidiary, Travelbox, which ran the optional tours.
The optional tours were 'City Sights' tours and the remuneration for one
of these tours was $173. Mr Ue allegedly later apologised for making these
comments.

The complainant
further alleges that, after she returned from Japan from a three week
holiday in 1994, she received only small jobs for the following five months.
Later that year, just before Christmas, she was allegedly told by the
assistant to the General Manager, Mr Jojima, that her employment would
be terminated in June 1995 on the basis that everything had changed and
she was too old to work. Mr Jojima allegedly apologised for saying this
a couple of days later.

However, according
to the complainant, when she approached the General Manager, Mr Hanamo,
in July or August 1995, about the lack of jobs being allocated to her,
he allegedly told her that she was not allocated jobs because she was
no longer young.

The complainant states
that her income decreased significantly and provided the following figures:

  • 1992: $40,731
  • 1993: $40,484
  • 1994: $39,250
  • 1995: $16,925.

The complainant provided
income tax returns for the financial years ending 30 June 1992 and 1993
and a group certificate for the financial year ending 30 June 1995.

2.2 The response

In a letter to the
Commission dated 6 September 1996, the respondent denies discriminating
against Ms Ishikuni on the basis of her age. It states that it had had
concerns over the previous few years about her work performance. It says
that management was aware of times where the complainant had failed to
carry out her duties properly, including meeting clients, checking out
from hotels and conducting tours.

The respondent further
states that these concerns were made clear to the complainant. In doing
so there may have been a reference to age but this was simply a method
to indicate the complainant's failure to carry out her job function effectively
and to express concerns about her health and physical ability to meet
the requirements of tours.

The respondent specifically
denies the allegations regarding Mr Ue's comments and his alleged apology.

The respondent also
denies the allegation regarding Mr Hanamo's comments to the effect that
work was not distributed to the complainant because of her age. However,
Mr Hanamo admits to expressing concerns about the complainant's health
and ability to carry out the work. Mr Hanamo further states that when
the complainant approached him regarding her lack of work he did not regard
it as a complaint but as "a matter raised in passing which was dealt with
appropriately".

The respondent raises
doubts as to the complainant's ability to undertake early starts and late
finishes or to handle large groups which move quickly and which may have
large volumes of luggage with which a guide would be expected to assist.

The respondent states
that the difficulty it had was not with age as much as with the complainant's
ability to carry out the inherent requirements of the position. The respondent
further notes that the complainant's age considerably exceeded the average
age of the guides employed with JTB. It states that age was only important
in the context of physical ability, health, competence and overall fitness
to carry out the job and meet its physical and mental demands.

The respondent submits
that there has been no discrimination but rather an appropriate matching
of the inherent requirements of the position with the abilities of a casual
employee. The complaint should therefore be declined as lacking in substance
and/or misconceived.

The respondent provided
the following material in its response:

  • Anti Discrimination
    Policy for JTN Oceania Pty Ltd issued 1st January 1995
  • lists of tourist
    guides employed by JTB showing the respective ages of all guides
  • profiles of the
    work offered to all casual tour guides in JTB's Melbourne office over
    the six month period beginning January 1996 and ending June 1996
  • an undated statement
    of Mr Hanamo in response to the complainant's allegations concerning
    comments made by him.

2.3 The complainant's reply

The complainant filed
a response to some of the issues raised by the respondent by letter dated
17 October 1996.

In relation to the
complainant's ability to carry out the inherent requirements of the position,
the complainant states that the principal role of a tour guide is to attend
to the needs of tourists in a foreign country and inform them about Australia
and their surroundings. The principal tool of a guide is familiarity with
the language and customs of both the Japanese tourists and the host Australians.

The complainant further
states that the job is not physically demanding. In particular, she states
that there is no obligation on tour guides to assist with heavy luggage.
She further states that the most physically demanding aspect of the job
is walking with the tourists and that she has no trouble walking.

The complainant further
states that her interpretation or guide skills are not affected by her
age. She also considers that her mental faculties enable her to keep on
top of her job and that no complaint has ever been made by the respondent
regarding instances where she has failed to perform the job properly.

In relation to the
Anti Discrimination Policy provided by the respondent, the complainant
claims that she has never seen a copy of the policy.

In relation to the
profiles of work offered to all casual guides at the Melbourne office,
the complainant states that it shows that she was receiving considerably
less work than her fellow guides who were also available for work seven
days a week. The complainant further states that she has previously been
allocated more hours. In the absence of any notices to the complainant
regarding poor work performance, the complainant alleges that the only
reason for the reduction in allocated work was her age. The complainant
states that the focus of all discussions with the complainant has been
her age and not her work performance. She says that she has been performing
satisfactorily.

The complainant provided
the Commission with the following additional material: - an analysis of
the profiles of work offered to all casual guides at the Melbourne office
- details of income earned in the financial year ending 30 June 1996 being
$8,990.00. The complainant also provided a copy of a letter to her dated
3 December 1996 from Mr Hanamo regarding her poor work performance.

2.4 Conciliation

The Commission persisted
through 1996 and 1997 in attempts to conciliate this complaint but its
attempts were unsuccessful.

2.5 Preliminary finding of
discrimination

As a result of inquiries
and investigation into this complaint I made a preliminary finding on
27 October 1997 that the act and practice complained of by the complainant
constituted discrimination on the basis of age.

2.6 Submissions and evidence

Following this preliminary
finding I made directions for the provision of further evidence and submissions
by the parties. Pursuant to sections 33 and 27 of the Act I invited the
parties to make submissions orally or in writing or both.

The complainant elected
not to make any submissions, written or oral, but reserved her right to
make submissions in response to any submissions made on behalf of the
respondent.

On 27 February 1998
the respondent filed written submissions. The parties then spent some
time further attempting to conciliate the matter, again without success.
On 4 February 2000, the complainant filed submissions in reply and further
submissions in relation to quantum. On 8 March 2000, the respondent filed
submissions in reply in relation to quantum only.

2.6.1 Further submissions
of the respondent

The respondent submits
that the complainant's ability to meet the physical and mental demands
of the position as full time tour guide is limited. The physical and mental
aspects are critical to the proper performance of the duties including
early morning and late night work, assisting tourists to move heavy luggage,
continual embarkation and disembarkation of coaches and management of
large groups which are difficult to lead or control.

The respondent further
reiterates its concerns about the complainant's ability to undertake early
starts and late finishes and about not placing her under unnecessary stress
or strain.

The respondent provided
the Commission with

  • a series of photographs
    of a group of students in Melbourne from 22 to 24 February 1998, showing
    the size of the group and the demands placed on the guide to maintain
    control and assist with luggage
  • a sample of travel
    itineraries detailing tour schedules and
  • a job description
    for tour guides.
2.6.2 Submissions
of the complainant in reply and as to quantum

The complainant states
that it is not the role of a guide to carry the bags of tourists. She
says that she was not made aware of the existence or terms of an equal
opportunity employment policy submitted by the respondent and believes
it was not made known to other staff.

With respect to quantum,
the complainant states that income earned in the 1998 and 1999 financial
years ($39,961 and $33,457 respectively) was earned for the most part
by undertaking less remunerative and more demanding tours. The complainant
states that this is evidence of the fact that she is capable of meeting
the inherent requirements of the position.

The complainant further
claims that, as it has not been submitted that there was a shortage of
work in the period 1994 to 1998, she should receive compensation of $67,
828 for lost earnings being the difference between $40,000, her approximate
earnings before 1995 and after 1997, and her actual earnings in 1995 ($16,
925), 1996 ($8,990) and 1997 ($26,257).

The complainant also
seeks $6,750 in legal costs.

2.6.3 Submissions
from the respondent in relation to quantum

The respondent submits
that the complaint was employed as a casual employee and the extent of
her workload depended on factors such as the number of tours, the nature
of tours and the availability of other tour guides at the time.

Changes in the overall
trend of tours since 1992 required the combining of tours and has led
to the need for fewer tour guides, with effects on the work available.

The respondent denies
the complainant's further allegation that her income in the 1998 and 1999
financial years was earned working on less remunerative work and more
demanding tours. The only change in tours is that they have been combined
to enable the respondent to give more cost effective tours priced in accordance
with changes in tour trends since 1992.

In relation to the
complainant's submission that her higher level of income for the 1998
and 1999 financial years shows that she is capable of meeting the inherent
requirements of the position, the respondent states

  • the complainant
    was aware of the respondent's belief regarding the difficulties she
    faced in carrying out her position
  • other staff were
    involved in a co-operative working arrangement to ensure that tours
    were run efficiently and without incident and
  • the complainant's
    difficulties were not raised as a formal matter of deficiency in performance
    but rather were "managed" with a view to protecting the company's reputation
    and efficient operation.

The respondent states
that the complainant's earning patterns are and were within the range
and patterns as other guiding staff. Some staff earn consistently more,
some earn consistently less, some earn more in one year and less in others,
all guides being subject to a variation in the income they receive. The
respondent submits that it is not possible to establish any economic loss
arising out of any discrimination.

The respondent provided
data showing

  • the variation
    in the number of guides from 1994 to 2000
  • the number of
    tours and the number of passengers from 1994 to 2000
  • the taxable income
    of all JTB Melbourne guides for 1993 to 1995 and 1996 to 2000

3.
Findings and recommendations

3.1 Issues to be determined

The Act requires
me to inquire into acts or practices that may constitute discrimination
(s.31(b) of the Act). Discrimination is defined in s.3 of the Act as follows:

'discrimination'
means:

(a) any distinction,
exclusion, or preference made on the basis of race, colour, sex, religion,
political opinion, national extraction or social origin that has the
effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation; and

(b) any other distinction,
exclusion or preference that:

(i) has the effect
of nullifying or impairing equality of opportunity or treatment in
employment or occupation; and

(ii) has been
declared by the regulations to constitute discrimination for the purposes
of this Act, but does not include any distinction, exclusion or preference:

(c) in respect
of a particular job based on the inherent requirements of the job; or

(d) in connection
with employment as a member of the staff of an institution that is conducted
in accordance with the doctrines, tenets, beliefs or teachings of a
particular religion or creed, being a distinction, exclusion or preference
made in good faith in order to avoid injury to the religious susceptibilities
of adherents of that religion or creed.

As previously noted,
regulation 4(a) of the Human Rights and Equal Opportunity Commission
Regulations
declares age as an additional ground of discrimination
for the purposes of the Act.

In deciding whether
the matters complained of constitute discrimination within the terms of
the Act I must consider five main issues:

  1. whether there
    was an act or practice under the Act
  2. whether the act
    or practice arose in employment or occupation
  3. whether there
    was a distinction, exclusion or preference based on age
  4. whether the distinction,
    exclusion or preference nullified or impaired equality of opportunity
    or treatment
  5. whether the distinction,
    exclusion or preference in respect of the particular job was based on
    the inherent requirements of the job.

3.2 Whether there was an act
or a practice

The respondent has
not challenged the existence of a relevant act or practice. However, the
precise nature, time, dates and duration of the discriminatory conduct
alleged have not been clearly particularised by the complainant.

In considering the
precise nature of the act or practice that was allegedly discriminatory,
I make the following findings.

Work allocation

  • Ms Ishikuni was
    employed by the JTB as a travel guide from 2 December 1987.
  • The complainant
    alleges that she received "small jobs" only from around May 1994 until
    September 1994. No independent evidence of this is presented but it
    is not denied and I am prepared to infer from the complainant's drop
    in income over this period that some change in the work allocated to
    her did occur (see table below).
  • The schedule of
    tours allocated for the period January 1996 to July 1996 provided by
    the respondent indicates that Ms Ishikuni was allocated less work than
    other tour guides.
  • The respondent
    has not denied that it allocated less work to Ms Ishikuni but has stated
    that Ms Ishikuni was being allocated less work because of concerns regarding
    her poor work performance and her ability to respond to the inherent
    requirements of the position.

Comments allegedly
made by the respondent

  • During the 1991-92
    financial year Mr Ue allegedly told the complainant that she should
    not be doing jobs because she was too old. The making of this statement
    is denied by the respondent. I am unable on the material before me to
    make any finding on the balance of probabilities that this statement
    was made.
  • The complainant
    alleges that in December 1994 Mr Jojima told her that her employment
    would be terminated in June 1995 on the basis that everything had changed
    and she was too old to work. The respondent concedes that some discussion
    did occur concerning her continued employment at JTB and that some comments
    were made concerning her age. The respondent places the comments in
    the context of concerns about her health. I find that Mr Jojima did
    make comments about the complainant's age but I am unable to make any
    findings about the precise nature of this conversation.
  • In July or August
    1995 the complainant complained to Mr Hanamo about the lack of work
    being allocated to her. Mr Hanamo says that he did not treat this as
    a complaint but rather as a management matter, expressing his concerns.
    He says that he did not refer to age. However, the respondent concedes
    that some comments regarding age were made and explains its view of
    the context. In light of this and Ms Ishikuni's submission, I accept
    that age was referred to in this conversation.

Work performance

  • In November 1995
    the complainant lodged her complaint with the Commission.
  • In December 1996,
    a year after her complaint to the Commission, the complainant received
    a letter from Mr Hanamo detailing various instances of poor work performance.
    The letter brings to her attention four instances of neglect of her
    duties in November 1996, October 1996, January 1994 and December 1993.
  • I note that the
    letter was sent to Ms Ishikuni only after the complaint and the investigation
    pursuant to it were in train. There is no evidence that these matters
    were raised in any formal way with Ms Ishikuni prior to this.

Income of the
complainant

  • The income of
    the complainant for the financial years from 1991-92 to 1998-99 is set
    out in the following table
Financial
year
Earnings
Evidence
1991
- 92
40,731 Income
Tax Return
1992
- 93
40,484 Income
Tax Return
1993
- 94
27,030 There
is some dispute over this figure. The complainant alleges that her
income in this year was $39,250. However, no Income Tax Return or
group certificate was provided to verify this. The respondent's material
setting out employee earnings indicates that her gross income was
$27,030 for this period and, in the absence of any other material,
I must accept this figure.
1994
- 95
16,925 Income
Tax Return
1995
- 96
8,990 Complainant's
submissions verified by respondent's material setting out employee
earnings
1996
- 97
26,258 Group
Certificates
1997
- 98
39,961 Complainant's
submissions verified by respondent's material setting out employee
earnings
1998
- 99
33,457 Group
Certificate

General Findings

  • Over the period
    1994 to 1996, a number of comments were made by different people in
    managerial positions at JTB regarding the complainant's age. I am unable
    to find precisely when these comments were made or precisely what they
    were.
  • The respondent
    concedes that references may have been made to Ms Ishikuni's age. I
    am not satisfied that such references were simply a method to express
    concerns regarding the complainant's health and physical ability to
    meet the requirements of the tour.
  • Ms Ishikuni suffered
    very significant decreases in income in the 1994-95 and 1995-96 financial
    years and lesser decreases in income in the 1993-94 and 1996-97 financial
    years.
  • Ms Ishikuni's
    decrease in income was due to less work being allocated to her as a
    travel guide.

I therefore find
that the respondent engaged in a series of acts or a course of conduct
amounting to a practice which could amount to discrimination on the basis
of age when it reduced significantly the work allocated to Ms Ishikuni
in the period between approximately January 1994 and December 1996.

3.3 Whether the act or practice
arose in employment or occupation

The act or practice
complained of clearly arises in employment or occupation. No issue was
raised as to this.

3.4 Whether there was a distinction,
exclusion or preference based on age

Ms Ishikuni must
establish on the balance of probabilities that the treatment she experienced
amounts to a distinction, exclusion or preference made on the basis of
age. The acts or practices of the respondent in allocating Ms Ishikuni
a reduced workload from 1994 to 1996 amounts to a distinction. Was this
distinction made on the basis of Ms Ishikuni's age?

Any concerns the
respondent may have had about Ms Ishikuni's health or physical ability
to perform the job were not adequately communicated to her. Ms Ishikuni
states, and the evidence does not refute, that she was ready, willing
and able to perform her duties as a tour guide. The respondent says that
it referred to Ms Ishikuni's age as a "shorthand" to indicate her failure
to carry out her job effectively and to express concerns regarding her
health and physical ability to perform the job.

The respondent submits
that there were a number of other factors involved in the allocation of
work, such as the number of tours, the nature of tours and the availability
of other tour guides at the time. However, Ms Ishikuni was clearly distinguished
from other travel guides because of her age. Certain assumptions were
made about a person of her age - assumptions concerning her health and
her work capacity - and these assumptions were never tested to see whether
they were valid. For example, had the respondent had concerns about the
complainant's capacity to perform heavy lifting work, it could have sought
advice concerning her health. It did not do this. Instead, it relied on
stereotypical assumptions about the health, strength and capacity of a
person of a certain age. As Chief Justice Black on the Full Federal Court
said in Commonwealth v HREOC and Others (1999) 167 ALR 268 at 284
(Bradley's case), also in the context of age discrimination,

"respect for human
rights and the ideal of equality - including equality of opportunity
in employment - requires that every person be treated according to his
or her individual merit and not by reference to stereotypes ascribed
by virtue of membership of a particular group, whether that group be
one of gender, race, nationality or age".

I find that the
respondent, through its managers, judged Ms Ishikuni incapable of adequately
performing her job because of her age. I find that the respondent's acts
or practice in reducing the allocation of work to Mrs Ishikuni in 1994
to 1996 was a distinction made on the basis of her age.

3.5 Whether the distinction
nullified or impaired equality of opportunity

For an act or practice
to be discriminatory, the Act requires the complainant to show that the
distinction, exclusion or preference has had the effect of "nullifying
or impairing the equality of opportunity or treatment".

There was no suggestion
from either party that Ms Ishikuni did not wish to work or was not available
to work. It is also clear that Ms Ishikuni did receive some work which,
she states, were smaller jobs the remuneration for which was less than
the larger "full tour" jobs.

I therefore find
that the act of allocating a reduced workload to Ms Ishikuni nullified
or impaired her equality of opportunity or treatment in that she was not
allocated work for which she was available and which she was able to perform
and wished to perform.

3.6 Whether the distinction
was based on the inherent requirements of the job

Not all distinctions,
exclusions or preferences are discriminatory within the meaning of the
Act. Under the Act an employer does not discriminate on the basis of age
if the distinction, exclusion or preference "in respect of a particular
job [is] based on the inherent requirements of the job".

In its submissions
dated 6 September 1996 the respondent states that its difficulty is not
with age as much as it is with the complainant's ability to respond to
the inherent requirements of the position.

It is for the Commission
and not for the employer to determine what is an inherent requirement
(X v The Commonwealth (1999) 167 ALR 529 (X's case) per McHugh J at 538).
I must consider whether a distinction on the basis of age in respect of
the job of tour guide is based on the inherent requirements of the particular
job.

Inherent requirements
are those which are "characteristic or essential requirements of the employment
as opposed to those requirements that might be described as peripheral"
(X's case per Gummow, Hayne JJ at 553; Qantas Airways Limited v Christie
(1998) 152 ALR 365).

In its submissions
the respondent does not set out the claimed "inherent requirements" of
the position of tour guide. In its letter dated 27 February 2000, however,
the respondent highlights four particular aspects of the job as examples
of the physical and mental demands that must be met as part of the proper
performance of the duties of tour guide. These are

  • early morning
    and late night work
  • assisting tourists
    to move heavy luggage
  • continual embarkation
    and disembarkation of coaches and
  • management of
    large groups which are difficult to lead or control.

In the usual course
I would have to consider whether these requirements constitute inherent
requirements
of the position. However, for present purposes I do not
think it necessary to do so, as even if they were inherent requirements,
I consider that the distinction made by the respondent in reducing the
work allocated to the complainant was not based on those requirements.

As Chief Justice
Black stated in Bradley's case, "[a] distinction, exclusion or
preference will only be justified by reference to the inherent requirements
of a given position if it corresponds objectively and closely to those
requirements, and if it takes account of individual capacities" (at 285).

The respondent submits
that the complainant has limited ability to meet the physical and mental
demands of the position, particularly those outlined above. However, there
has been no objective assessment as to whether Ms Ishikuni could actually
meet the physical and mental demands of the position, or at least those
aspects of the position outlined by the respondent. Without making any
findings as to whether those aspects identified by the respondent are
inherent requirements of the position, I note the following about each
aspect.

Early morning
and late night work

In relation to early
morning and late night work, the sample travel itineraries detailing tour
schedules indicate that some tours require early mornings and late nights.
The itineraries further suggest that the full day tours are lengthy in
duration (approximately 14.45 hours) and operate to a tight schedule.
It seems a reasonable conclusion therefore, that where full day tours
are being conducted, the tour guide would be required to be able to rise
early and finish late at night to carry out the job properly.

However, there is
no evidence that the complainant has been unable to handle early mornings
and late nights. The respondent's letter to the complainant dated 3 December
1996 refers to one instance in January 1994 when the complainant did not
arrive in time for an assigned job. However, no reference was made as
to whether this was an early morning job. In addition, in the context
of an almost 12 to 13 year employment history, I cannot conclude that
one late arrival constitutes an inability to perform the requirement of
attending early mornings and late nights. Consequently, there is no evidence
to conclude that the distinction drawn by the respondent in reducing Ms
Ishikuni's work allocation was based on the complainant's inability to
meet the requirement to attend early mornings and late nights.

Assisting tourists
with heavy luggage

In relation to assisting
tourists with heavy luggage, the respondent provided evidence in the form
of photographs which appear to show two different guides moving luggage.
While this alone is not conclusive of the requirement to assist with heavy
luggage the respondent has also provided a job description for a tour
guide which lists the "ability to carry luggage and equipment" as a "Job
Requirement" and the responsibility "for handling customers baggage eg.
at/to/from hotels, coaches, airlines" as a "Specific Responsibility".
Subject to what I say below I therefore accept that assisting tourists
with their luggage is a task guides are required to perform. However,
there is no evidence that the complainant is unable to so assist. As far
as I am aware, none of the photographs provided by the respondent shows
the complainant herself having difficulty moving the luggage. There is
also nothing in the way of medical or other expert report to show that
the complainant is unable to perform that duty. There is no evidence to
conclude that the distinction drawn by the respondent in reducing Ms Ishikuni's
work allocation was based on her inability to meet the requirement to
lift luggage. Rather it seems that the distinction was based on a stereotypical
assumption that a person of her age is unable to carry or handle luggage.
It is precisely this type of assumption, lacking objective assessment
of a person's actual capacity, which the Act is intended to address.

Continual embarkation
and disembarkation

With respect to
the continual embarkation and disembarkation from buses I accept that
this would be a requirement of the job. The travel itineraries indicate
at least three stops on full day tours in addition to initial embarkation
and final disembarkation. It is not unreasonable to accept that the tour
guide would have to embark and disembark frequently and comfortably to
perform his or her job function properly.

However, there is
no evidence to show that the complainant has difficulty with this particular
aspect of the job. The respondent submits by way of evidence photographs
to show the steepness of the steps onto the bus. I can accept that the
steepness of the steps would make embarkation and disembarkation difficult
for someone who is incapacitated. However, it is not the respondent's
submission that the complainant is physically incapacitated and there
is no evidence at all that she had any difficulty with embarkation or
disembarkation of the bus. Again, there is no evidence that the distinction
drawn by the respondent in reducing Ms Ishikuni's work allocation was
based on her inability to meet the requirement to embark and disembark
the bus.

Management
of large groups

With respect to
the management of large groups I accept that some tours require tour guides
to manage large groups. The photographs submitted by the respondent provide
an example of one such large group of 180 students, requiring five guides.
While the photographs are not conclusive that all groups which tour guides
are required to manage are large, the respondent has also provided data
on the number of tours and passengers for 1994 to 2000 and on the number
of tour guides working for the respondent. Certainly some tours would
be quite large and the number of tourists for each guide quite large.
I am therefore prepared to accept that tour guides sometimes have to manage
large groups.

However, there is
no evidence that the complainant is unable to manage large groups. Those
instances of alleged poor work performance which have been brought to
the attention of the complainant do not relate any instances of mismanagement
of a large group. In the respondent's letter to the complainant dated
3 December 1996, the respondent refers to an instance in December 1993
when the complainant forgot to transfer two customers to the airport but
no reference is made to the size of the group of which those customers
were a part. Once again, it is simply not possible to conclude that the
distinction drawn by the respondent in diminishing Ms Ishikuni's work
allocation was based on her inability to meet the requirement to manage
large groups.

As noted, I make
no specific findings about whether these requirements are "inherent requirements"
according to the tests in X's case and Qantas v Christie. I do not need
to do so because I am not satisfied the distinction in this case can be
said to be based on all or any of these requirements. I am not satisfied
that the complainant is in fact unable to perform these requirements or
that any real attempt was made in practice to ascertain whether or not
she could perform them.

There is a complete
lack of evidence to support the respondent's submission that the complainant's
ability to perform the identified requirements is limited. The only conclusion
I am able to reach on the evidence is that the distinction on the basis
of age was not based on the various identified inherent requirements of
the position (assuming they could be said to be inherent requirements).
I am not satisfied that the respondent's concerns about the complainant's
ability to meet the physical and mental demands of the job were not, in
the words of Chief Justice Black, "founded upon assumptions about the
capacities of a person in a particular age bracket rather than upon the
actual capacities of that person" (Bradley's case at 284). The only basis
for the distinction was the complainant's age.

3.7 Consideration of recommendations

Having found the
reduced allocation of work to the complainant in 1994 to 1996 was discriminatory
under the Act, I am required to consider what recommendations I should
make.

The Act does not
make it unlawful to discriminate on the ground of age. However, the division
of the Act under which I am conducting this inquiry is directed to the
elimination of discrimination in employment and occupation. Section 35(2)
expressly provides that, where an act or practice is found to constitute
discrimination, the Commission may make such recommendations, including
compensation, as it considers appropriate in relation to a person who
has suffered loss or damage as a result.

3.7.1 Recommendation
of compensation

The complainant is
seeking compensation in the amount of $67,828, being compensation for
lost earnings calculated by reference to the difference between a base
figure of $40,000 and her reduced earnings in 1995 ($16,925), 1996 ($8,990)
and 1997 ($26,257). The complainant also seeks $6,750 in legal costs.

With respect to damages
for lost earnings I have used the figures from the table in 5.2 above
to calculate the amount of damages. Before doing so I note the following
preliminary matters.

  1. While the evidence
    suggests a decrease in income, I am not satisfied that the decrease
    in income was due solely to discrimination on the basis of age.
  2. I accept the
    respondent's submission that the work allocated would depend on other
    factors such as the number of tours, the nature of the tours and the
    availability of other persons at the time. I also acknowledge the respondent's
    submission regarding the changes in the overall trend of tours in Melbourne
    since 1992 which have seen the combining of tours thus affecting the
    number of guide positions and the work available. Since income is dependent
    on the work allocated, a decrease or increase in income could therefore
    arise as a result of factors other than discrimination.
  3. I accept that
    the nature of the complainant's employment with JTB is that work is
    not always allocated on a consistent or regular basis.
  4. I accept that
    the income of all guiding staff fluctuates from year to year. In this
    respect the respondent has provided evidence in the form of graphs and
    tables. The respondent has also submitted that the charts show that
    some staff have earned consistently more than the complainant, while
    some have earned consistently less; some have earned more than the complainant
    in one year but less in others; all guides have been subject to considerable
    variation in the income they receive. It is difficult for me to accept
    this submission fully since there is no way of identifying the other
    staff in the tables provided.
  5. These uncertainties
    pose considerable problems in awarding an amount of damages for lost
    income. There is simply no way on the material before me that I can
    ascertain with any certainty what Ms Ishikuni would have earned but
    for the discrimination.

Calculation
of damages

I have calculated
damages for loss of earnings as follows.

1. The complainant
claims decreased earnings for 1996-97. However, the table shows that
her earnings for that year were similar to her earnings for 1993-94.
In her submissions the complainant puts her earnings in 1993-94 at $39,250.
However, as indicated in the table, in the absence of other evidence,
I have accepted that her income for 1993-94 was $27,030. This affects
both the period for which the complainant can be said to have suffered
a decrease in earnings and the base earnings from which the calculation
of damages can be made.

2. With respect
to decrease in earnings, the period I have taken into account as the
relevant period in which the complainant suffered a decrease in income
is the financial years ending June 1995 and June 1996, in which she
earned $16,925 and $8,990 respectively. This is because the complainant's
earnings in 1996-97 ($27,030) were consistent with her earnings in 1993-94
($26,258) and, as she makes no complaint about her income in 1993-94
decreasing due to discrimination, the level in the later year cannot
therefore be said to represent a decrease in income.

3. With respect
to the complainant's base earnings, I find there is insufficient evidence
of a consistent base of income of approximately $40,000. First, the
complainant's and other employees' incomes clearly fluctuate. Second,
no details of the complainant's earnings prior to 1992 have been provided
to show that the complainant consistently earned a base approximately
of $40,000. Had the complainant been able to verify that her earnings
for 1993-94 were in fact $39,250, this would have strengthened her claim
but in the absence of further evidence I am not satisfied the complainant's
base earnings were $40,000.

4. To ascertain
the complainant's base earnings I have excluded those years where her
income significantly decreased, 1994-95 and 1995-96, and taken an average
of her income for the financial years 1992, 1993, 1994, 1997, 1998 and
1999. The average figure is approximately $34,650. This reflects and
averages the fluctuations in work described by the respondent. 5. Taking
the average base at $34,650, the complainant suffered a loss of $17,725
for 1994-95 and $25,660 for 1996-97. This produces a total loss of $43,385.
6. I therefore recommend that compensation be payable to the complainant
in the amount of $43,385. I note that this is based on Ms Ishikuni's
gross income and may be subject to taxation.

Costs

With respect to costs,
I note that section 35(2) of the Act allows me to make recommendations
for the "payment of compensation to, or in respect of, a person who has
suffered loss and damage as a result of the act or practice". Legal costs
have been held not to fall within the scope of compensatory damages contemplated
by analogous provisions (see AMC v Wilson (1996) 137 ALR 653, per Heerey
J at 672 in respect of the Racial Discrimination Act 1975 (Cth)). I see
no reason why s.35(2) of the Act should be interpreted in any different
way (although I acknowledge that there is no analogous provision to s.25ZB
of the Racial Discrimination Act in the Act) and I decline to recommend
the payment of Ms Ishikuni's legal costs in addition to the recommended
compensation for loss of earnings.

3.7.2 Other recommendations

I further recommend
that all future decisions in relation to the employment of Ms Ishikuni,
including the allocation of work to her be made without discrimination
on the ground of her age.

4.
Notice of findings of the Commission

The Commission finds
that the act and practice complained of by the complainant, namely that
the respondent allocated a reduced work load to the complainant thus reducing
her annual income, constitutes discrimination in employment based on age.

This finding is made
for following reasons:

  1. The respondent
    engaged in a series of acts or a course of conduct amounting to a practice
    which amounted to discrimination on the basis of age when it reduced
    significantly the work allocated to Ms Ishikuni in the period between
    approximately June 1994 and June 1996.
  2. The respondent's
    act or practice in reducing the allocation of work to Ms Ishikuni in
    1994-95 and 1995-96 financial years was a distinction, exclusion or
    preference on the basis of age which nullified or impaired her equality
    of opportunity or treatment in employment or occupation.
  3. The distinction,
    exclusion or preference on the ground of age was not based on the inherent
    requirements of the position.

The Commission recommends
that the respondent pay to the complainant $43,385 being damages for loss
of income and that all future decisions with respect to the allocation
of work to the complainant be made without discrimination on the ground
of her age.


Appendix
A: Functions of the Human Rights and Equal Opportunity Commission

Part II Division
4 of the Act confers functions on the Commission in relation to equal
opportunity in employment in pursuance of Australia's international obligations
under ILO 111.(3)

The Commission can
inquire into complaints of discrimination in employment and occupation
against any employer and attempt to effect a settlement - s.31(b) and
s.32 (b).

Where conciliation
is unsuccessful or is deemed inappropriate, and the Commission is of the
opinion that an act or practice appears to constitute discrimination,
the Commission is required to provide an opportunity to the parties to
make written and/or oral submissions in relation to the complaint - s.27
and s.33.

Where, after the
inquiry, the Commission finds discrimination the Commission is required
to serve notice setting out the findings and the reasons for those findings
- s.35(2)(a). The Commission may include recommendations for preventing
a repetition of the act or practice and for the payment of compensation
or the taking of any other action to remedy or reduce the loss or damage
suffered as a result - s.35(2)(b) and (c).

However, it is not
unlawful to breach the principles of non-discrimination protected under
the Act and the Commission does not have power to enforce its recommendations.
If the Commission makes a finding of discrimination it must report on
the matter to the federal Attorney-General under s.31(b)(ii) who subsequently
tables the report in Parliament in accordance with s.46 of the Act. This
is effectively the only power which the Commission can exercise if a complaint
proves to be non-conciliable.

The Human Rights
Commissioner (the Commissioner) performs the Commission's function of
inquiring into any act or practice that may constitute discrimination
as defined by the Act - s.8(6).

Discrimination
in employment and occupation

Under the Act discrimination
means:

(a) any distinction,
exclusion or preference made on the basis of race, colour, sex, religion,
political opinion, national extraction or social origin that has the
effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation; and

(b) any other distinction,
exclusion or preference that:

(i) has the effect
of nullifying or impairing equality of opportunity or treatment in
employment or occupation; and

(ii) has been
declared by the regulations to constitute discrimination for the purposes
of this Act; but does not include any distinction, exclusion or preference:

(c) in respect
of a particular job based on the inherent requirements of the job; ...
(4)

ILO 111 prohibits
discrimination on certain specified grounds.(5)
Those grounds are contained in the Act in subparagraph (a) of the definition
of discrimination. ILO 111 also provides that ratifying States may address
discrimination on additional grounds.(6) The Act
provides in subparagraph (b)(ii) of the definition of discrimination for
the adoption of regulations to declare additional grounds in accordance
with this provision in ILO 111. Under this power the Human Rights and
Equal Opportunity Commission Regulations in 1989 declared age as a ground
of discrimination for the purposes of the Act with effect from 1 January
1990.(7)

It is an accepted
principle in domestic law that where a statute contains language that
derives directly from an international instrument, such as the Act does,
it should be interpreted in accordance with the interpretation the language
has been given at the international level.(8) The
comments of the International Labour Conference Committee of Experts on
the Application of Conventions and Recommendations (the Committee of Experts)
are relevant to the interpretation of the Act's definition of discrimination.

According to the
Committee of Experts there are essentially three elements to the definition
of discrimination in ILO 111

  1. an objective
    factual element, being the existence of a distinction, exclusion or
    preference which effects a difference in treatment in comparison with
    another in the same situation;
  2. a ground on which
    the difference of treatment is based that is declared or prescribed;
  3. the objective
    result of this treatment, that is, a nullification or impairment of
    equality of opportunity or treatment in employment or occupation.

Further the Committee
of Experts has expressed the view that "the adoption of impersonal standards
based on forbidden grounds" and "apparently neutral regulations and practices
[that] result in inequalities in respect of persons with certain characteristics"
also constitute discrimination.(9)

The Committee of
Experts has commented on the ILO 111 provision of "any distinction, exclusion
or preference in respect of a particular job based on inherent requirements
of the job". To be an inherent requirement the condition imposed must
be proportionate to the aim being pursued and must be necessary because
of the very nature of the job in question. The Committee stated for example
that the exception "refers to a specific and definable job, function or
task. Any limitation within the context of this exception must be required
by characteristics of the particular job, and be in proportion to its
inherent requirements."(10)

The Committee of
Experts has agreed that an intention to discriminate is not necessary
for a finding of discrimination under ILO 111. (11)


Endnotes

1.
Human Rights and Equal Opportunity Commission Report into complaints of
discrimination in employment and occupation: compulsory age retirement,
HRC Report No.1, 30 August 1996.

2.Notified
in the Commonwealth of Australia Gazette on 21 December 1989.

3.Ratified
by Australia in 1973.

4.S.3(1)

5.Art
1(1)(a).

6.Art
1(1)(b).

7.SR
1989 407, notified in the Commonwealth of Australia Gazette on 21 December
1989.

8.Koowarta
v Bjelke-Petersen & Others (1981) 153 CLR 168 at 265 (Brennan J); Minister
for Foreign Affairs and Trade & Ors v Magno and Another (1992) 112 ALR
529 at 535-6 (Gummow J).

9.International
Labour Conference, Equality in Employment and Occupation: General Survey
by the Committee of Experts on the Application of Conventions and Recommendations
ILO, Geneva, 1988, at 23.

10.Ibid,
at 138.

11.Ibid,
at 22.

Last
updated 6 March 2002.