 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 discrimination, the Court considered the scope of the ‘inherent requirements’ exemption. In this case, Qantas argued that its policy requiring pilots to retire at the age of 60 was a genuine and reasonable inherent requirement of being a pilot because:
· There were safety concerns associated with allowing pilots to continue to work after turning 60; and
· The Convention on International Civil Aviation barred captains aged 60 or over from flying many of the routes which Qantas pilots might be asked to fly.
The High Court found in Qantas’ favour on the basis of the second argument – that is, it was an inherent requirement of a pilot’s position to be able to fly over countries which were signatory to the Convention.
This decision is important because it establishes the principle that the ability to perform the inherent requirements of the position is not limited to being able to physically perform the duties. The High Court held that the ability to perform the inherent requirements of the position also required the employee to do the job within the particular operational setting of the employer.
In another case involving Qantas, Blatchford v Qantas Airways Limited (1997) EOC 92-888, it was held that selection criteria for new employees which are based on age are likely to be found discriminatory. In this case, applicants for the position of pilot were subject to a particular criterion which assigned points to the applicants based on their age (applicants aged 21-24 years scored four points; those aged 32 years and over scored one point). Qantas argued that older applicants would have a shorter period of employment and so the airline would have less opportunity to recoup its training costs. In concluding that application of this selection criterion involved unlawful age discrimination, the New South Wales Equal Opportunity Tribunal concluded that anti-discrimination law did not make any exceptions for economic rationalism.
In another case considering the legality of recruitment criteria, Dewan v Main Roads WA (2005) EOC 