New Age Discrimination Laws - employers need to be mindful of their obligations

by Victoria Hiley and Peter Wilson

Age discrimination and compulsory retirement are, in most circumstances, unlawful in Australia. Despite this, age discrimination still makes it extremely difficult for older people to obtain and retain employment. As Australia’s ageing population trend continues in the context of the introduction of new age discrimination legislation, employers need to carefully consider their responsibilities and actions when dealing with older staff members.

The Federal Age Discrimination Act 2004 came into effect on 23 June 2004. Under the Act it is unlawful to discriminate against a person on the basis of their age, or age group, in many areas of public life, including employment.

While the Act is relatively new, it’s only a matter of time before cases arise. The Act is a warning to employers to take steps now to prevent discrimination in the workplace on the basis of age if they have not already done so. Also, this new Act allows a Federal Court to award uncapped compensation, whereas the NSW Anti-Discrimination Act still caps compensation for age and other unlawful discrimination at $40,000.

Complaint procedures

Complaints lodged under the Act are handled in the same way as other complaints of unlawful discrimination on grounds of race, sex and disability.

Under the new Act, complaints are first directed to the Human Rights and Equal Opportunity Commission where the Commission tries to conciliate them. Most complaints can be conciliated and are terminated at that point and not reported. If the conciliation process fails, then the complainant can commence proceedings in a Federal Court such as the Federal Magistrates Court.

The Act specifically outlines situations in which employers can not discriminate against a person on the grounds of age. These include:
  1. In offering employment;

  2. In the terms and conditions of employment offered;

  3. In determining who should be offered employment;

  4. In providing opportunities for promotion, transfer or training or other benefits of employment;

  5. By dismissing an employee;

  6. By subjecting a person to any other detriment;

  7. In engaging a commission agent;

  8. In offering a partnership opportunity to another person where there are six or more persons in partnership; or

  9. In the offering of services by employment agencies.
Positive Discrimination

There are, however, exceptions to the Act including acts done by charities, religious organisations and voluntary organisations, where domestic duties are performed in a person's own home, when age is an inherent requirement for a job, and reduced youth wages. The Act also allows positive discrimination on the basis of age. For example, it can be lawful to provide older workers with additional notice if a redundancy arises, and to offer discounts to Seniors, or specific welfare services for youth.

In deciding whether or not to offer employment, employers must consider the applicant's past training, qualifications and experience relevant to the employment, performance and "all other factors that it is reasonable to take into account". Theoretically, if a 70-year-old is able to show the level of fitness and health required of an aerobics instructor then he or she should not be denied the position due to his/ her age.

The Best Applicant

Age, by itself, is not normally relevant to the question of whether or not a person is the best applicant for a job or any other workplace benefit. Factors such as, experience, availability and qualifications should be taken into account; decisions should not generally be made on the basis of age alone. It should also be noted that where there are two or more reasons for the discriminatory act, age must be the dominant reason. This is a stricter requirement for unlawfulness than the existing NSW age discrimination laws.

Other than the exceptions referred to above, the new Act has effect in relation to any industry or area of work. The more “closed minded” and the less flexible a profession or workplace, the more likely it is that discrimination will occur. Indeed, one of the stated objects of the Act is to challenge narrow mindedness where age is concerned.

While no Federal Court decisions have been handed down as yet in relation to discrimination on the basis of age, the potential exists for employers who publish advertisements that breach the new Act to be ordered to pay a fine of $1,000 and those who victimise a person who has lodged a complaint can be imprisoned for up to six months.

As more baby boomers approach retirement age, the reach of the new Act may be extended. In the meantime, employers who seek advice and ensure that their workplace policies and procedures are reviewed and updated on a regular basis will be much better placed than those who do not - particularly as new grounds of discrimination evolve and existing legislation is updated and amended.

Victoria Hiley and Peter Wilson are lawyers at Sydney employment law firm Toomey Pegg Drevikovsky.


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