Compulsory public sector retirement not discrimination

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Compulsory public sector retirement not discrimination

Source: Australian Business Ltd The Federal Court has dismissed a claim that a legislative requirement that certain federal public servants retire at 65 years of age was in breach of anti-discrimination laws.

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Source: Australian Business Ltd

 

The Federal Court has dismissed a claim that a legislative requirement that certain federal public servants retire at 65 years of age was in breach of anti-discrimination laws. The Court found that the public sector legislation was not displaced by federal equal opportunity legislation.

Private sector employment would seem unaffected by this decision. There is no legislation requiring compulsory retirement in relation to the private sector in Australia. As a result, employers may have policies promoting and assisting employees to make sound decisions about retirement. However,  they cannot require employees to retire simply on the ground that a 'retirement age' has been reached.

Background

The public servant was employed as the director of psychology with the Navy. He sought to continue working past the defence department's compulsory retirement age of 65. The retirement age was set under s76V(2) of the Public Service Act 1922.

Retirement was required by statute on attaining age of 65 years unless a decision made by the Secretary to retain an officer on the basis that it was desirable in the interests of the Commonwealth, that the officer continue in service.

The complaint had been considered by the Human Rights Commissioner, who found in favour of the employee.

Justice Wilcox of the Federal Court then found that the Commissioner had made an error of law and found for the Commonwealth. Justice Wilcox stated:

'Although many would now contend that sound personnel management practices involve an absence of discrimination on grounds, including age, irrelevant to work performance, the Public Service Act cannot be construed without regard being had to the terms of s76V(1). It would not be a lawful exercise of the discretionary powers of a Secretary under s76V(2) for such powers to be used for the purpose of undermining the intention of Parliament as disclosed by the terms of s76V(1). That intention appears plainly enough to be to ensure that in the ordinary course an officer of the Australian Public Service is to retire upon attaining the maximum retiring age….

… [his] employment had been swept onto the rock called s76V(1). He was not in competition with any other officers who might have been approaching the age of 65 years and seeking extensions. There was no question of [his superior] denying Mr Peacock's equality with such persons.'

Decision of Justice Moore

The matter then went to Justice Moore, via a separate application, who supported Justice Wilcox.

Justice Moore found:

'His Honour was, in effect, accepting the submission the Commonwealth had made, namely that comparison was required, the relevant comparators might be officers of the same age seeking extensions, but that it was a legally irrelevant comparison because the applicant and the comparators were of the same age'.

Justice Moore dismissed the application with costs. 

See: Peacock v Human Rights & Equal Opportunity Commission [2002] FCA 984 (8 August 2002) - Federal Court (Moore J).

 
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