t statistical evidence when considering whether discrimination has occurred. In Virgin Blue Airlines Pty Ltd v Stewart & Ors (2007) EOC 93-457, flight attendants complained that Virgin discriminated against them on the ground of age in their job application selection process. The process included testing for ‘behavioural competencies’, one of which was described as having ‘Virgin flair’ (i.e. making the flying experience fun for the customer). The Queensland Anti-Discrimination Tribunal examined statistical evidence of Virgin’s competency-based selection results and found that they were not age-neutral, as only one employee over 35 (aged 36) had ever been hired. The tribunal concluded on this basis that Virgin’s recruitment process was discriminatory. The decision was upheld by the Queensland Supreme Court: Virgin Blue Airlines Pty Ltd v Hopper & Ors  QSC 75.
Are there any specific exceptions in your law?
Not all discrimination on the basis of age is unlawful. There are a number of areas of exception under the AD Act, including:
· Employment for domestic duties in private households;
· Superannuation, insurance and credit;
· Migration and citizenship;
· Pensions, allowances and benefits;
· Some health programmes;
· Certain acts of religious and voluntary organisations;
· Compliance with specified laws (for example, occupational health and safety legislation);
· Youth wages or compliance with industrial agreements and awards; and
· Positive discrimination (for example, discrimination in the provision of education or health services which provide a bona fide benefit to persons disadvantaged on the grounds of age).
In addition, under the AD Act a significant exemption is available in respect of discrimination in employment. It is not unlawful to refuse to employ a person, or to terminate a person’s employment if they are unable to perform the ‘inherent requirements’ of the particular job because of their age. This exemption only applies to recruitment and termination of employment. Accordingly, during the employment relationship, an employer cannot rely on the ‘inherent requirements’ exemption to treat an employee less favourably because of their age.
The State and Territory laws provide similar exemptions in the area of age discrimination.
The exemptions to the General Protections and unlawful dismissal provisions under the FW Act include:
· Action that is not unlawful under State or Federal anti-discrimination law;
· Action that is taken because of the ‘inherent requirements’ of the position; and
· Action that is taken in accordance with particular religious beliefs in order to avoid injury to the religious susceptibilities of adherents to the religion.
Finally, certain age-based discriminatory practices are permitted by the FW Act, such as special rates of pay for junior employees in awards and enterprise agreements. Otherwise, discriminatory clauses in awards and agreements are unlawful and unenforceable: see e.g. Re Black Coal Mining Industry Award 2010  FWCFB 2192, relating to a clause limiting retirement benefits once an employee reached the age of 60.
The AD Act does not expressly proscribe compulsory retirement, although compulsory retirement is expressly unlawful across various State and Territory jurisdictions. However, another common exemption – otherwise discriminatory conduct undertaken to comply with another law- has the effect that age discrimination legislation operates subject to laws prescribing compulsory retirement ages for certain public officials, judicial officers and other statutory appointees.
Generally, complainants wishing to bring a claim under the AD Act, alleging act discrimination on the basis of having been compulsorily retired from work, would need to utilise the general prohibition against age discrimination in employment.
Alternatively, at federal level, a complainant may bring a claim under the General Protections Provisions or unlawful termination provisions of the FW Act.
In Qantas Airways Limited v Christie  HCA 18, the only High Court of Australia decision to date concerning age disc