Age Discrimination In The Workplace

Both older and younger workers experience age discrimination in the workplace. Australian law generally prohibits employers from discriminating on the basis of age during the recruitment, training, promotion, and termination of employees. This article explains the federal regulations relating to age discrimination in the workplace in Australia, with reference to recent case law.

Age Discrimination

Australian employers are legally prohibited from direct or indirect discrimination on the basis of age or age group. Employers are not only responsible for their own behaviour, but also have vicarious liability for the unlawful conduct of their management staff. An employer can defend a vicarious liability allegation by establishing that they took reasonable precautions to avoid age discrimination in the workplace.

Direct And Indirect Discrimination

Direct discrimination occurs when an employer treats or proposes to treat a worker less favourably than another worker due to a protected attribute. For instance, it is direct discrimination if an employer tells a younger employee they cannot access a training course because it is only for older team members.

An employer is guilty of indirect discrimination if they impose work conditions that are more burdensome for someone with a protected attribute. For example, if an employer brings in mandatory team-building rugby matches, older workers may struggle to comply due to their age. Unless this type of rigorous activity was a reasonable expectation of the role, this is indirect age discrimination.

A company policy may seem like indirect discrimination when it is, in fact, legally permissible. For instance, if an employer brings in a policy that mandates overtime every day, this may indirectly discriminate against older workers who will struggle with the physical demands of a longer working day. However, this would only constitute age discrimination if the overtime was not a reasonable requirement of the role.

Legislation

Prior to the introduction of the Age Discrimination Act 2004, an employee could only seek legal remedy through state and territory general anti-discrimination laws. Today, these broader state anti-discrimination laws act in concert with the targeted federal legislation.

Federal protections apply to all workers, including full-time, part-time and casual employees, contractors and agents. Under federal law, age need only be at least one of the reasons for the discriminatory act. State and territory legislation requires age to be a substantial reason for the discrimination.

Due to the two systems, an employee can choose to make a complaint either through the applicable state or territory law or the federal statute. It is important to note that a person who makes a complaint under state law cannot then make a complaint under federal law. However, a complaint commenced under federal law can later be taken up under the relevant state or territory law.

A complainant who experiences age discrimination in the workplace can also make a claim under provisions of the Fair Work Act 2009. The “General Protections” provisions in this Act prevent an employer from taking adverse action against a prospective or current employee on the basis of a person’s age. Adverse action, in this case, includes unfair dismissal, demotion, unfair treatment, or refusal to employ a person because of their age.

Onus Of Proof

Under the General Protections of the Fair Work Act, employers carry a reverse onus. This means that the court or Commission will presume that an employee’s allegation of adverse action due to age discrimination is true unless the employer can prove otherwise. For example, if a complainant alleges that the employer did not recruit them because of their age, the employer must prove that age was not a factor in their recruitment decision.

Exceptions

There are exceptions to age discrimination laws. Broadly speaking, age discrimination is legal when it is reasonable. For instance, an employer can pay workers under twenty-one according to their age and positively discriminate to give an advantage to underrepresented age groups. It is also legal to discriminate on age when recruiting domestic workers of childcare providers.

There is also a significant exemption under federal law if the job’s ‘inherent requirements’ require age discrimination. For instance, a liquor store can stipulate that they only employ workers over the age of eighteen. This exemption applies only to recruitment and termination of employment.  An employer cannot rely on the ‘inherent requirements’ exemption to treat an employee less favourably because of their age during their employment.

Remedies

The Fair Work Commission (FWC) generally hears accusations of age discrimination. Employees can elect to proceed instead to the Federal Court or Federal Circuit and Family Court of Australia, except in cases of unfair dismissal, which require a mandatory hearing before the FWC. The FWC and the Courts can order employee reinstatement or compensation. When reinstatement is not possible, there are maximum penalties for corporate employers and individuals per breach of age discrimination law.

For instance, in Fair Work Ombudsman v Theravanish Investments [2014], the Federal Circuit Court ordered that a restaurant pay an aggrieved employee almost $40,000 in penalties after the employer contravened age discrimination laws. The employer had a policy of not employing retirement age staff and terminated a long-term employee when he turned sixty-five.

The commercial law team at Armstrong Legal can help if you are facing age discrimination in your employment. Please phone 1300 038 223 or use this online form to get in touch with our specialist solicitors.