Mixed findings on Federal Age  Discrimination Bill

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Mixed findings on Federal Age Discrimination Bill

A Senate Committee report into the Age Discrimination Bill 2003 tabled mixed findings in Parliament last week. The Senate Committee report recommended that anti-age discrimination in the workplace was necessary, but supported age discrimination exemptions.

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A Senate Committee report into the Age Discrimination Bill 2003 tabled mixed findings in Parliament last week.

The Senate Committee report recommended that anti-age discrimination in the workplace was necessary, but supported age discrimination exemptions.

The Committee report also indicated more national uniformity in anti-discrimination laws was needed.

The Democrats and the ALP supported the Bill in principal, but issued dissenting Senate Committee reports.

Anti-age discrimination with exemptions

According to the Senate Committee report, ‘Anti-age discrimination in the employment context is a desirable means to influence employers to focus on the abilities of individual employees rather than those generally imputed by membership of an age.’

But the Committee report saw no reason to prohibit discrimination in relation to unpaid work.

Nor did it appear to offer a view on the exemption of youth wages - the Bill sought to exempt discriminatory conduct in relation to the remuneration of employees under 21.

The Committee report accepted provisions that created exemptions from liability for age discrimination, on the grounds a person was unable to carry out the inherent requirements of their job because of their age.

And wanted the Government to consider the exemption of age discrimination acts carried out in direct compliance with State agreements.

In the current drafting of the Bill, acts done in direct compliance with Federal and State awards and Federal agreements were exempted.

Also, the Committee report said it was necessary to support provisions in the Bill that exempt ‘circumstances in which age-based distinctions are legitimate’, such as age limits in the defence force and superannuation.

According to the Attorney Generals Department, ‘…the defence situation is particularly concerned with establishing and maintaining a fit and, inevitably, youthful fighting force’.

In addition, age-based superannuation restrictions were necessary to ensure superannuation was used appropriately for retirement.

The Committee report also found in favour of the positive discrimination provisions.

Indirect discrimination

While the Committee report supported the Bill’s concepts of direct and indirect discrimination, it recommended additional provisions ‘specifying factors to be taken into account when considering whether a condition, requirement or practice is reasonable in the circumstances’.

Vicarious liability

The Committee report found the vicarious liability provisions not to be onerous - employers should be held liable for discriminatory acts of their employees.

In relation to protecting employees from employers trying to recover costs of defending an action, the Committee indicated the Bill’s victimisation clause addressed this. 

Casuals

Of concern to the Committee report was the definition of employment. The Bill did not mention casuals. The Committee urged the Government to ensure casuals would be protected under the Bill.

HREOC and funding

The Committee report agreed with provisions of the Bill that prevented the employment of specialist age discrimination Commissioners within the Human Rights and Equal Opportunity Commission.

Age discrimination, the committee believed, cut across the boundaries of existing specialisations.

However, the Committee report conceded that HREOC would have increased responsibilities under the Bill and asked the Government to consider additional funding.

HREOC and the AIRC

The Committee report agreed with the Bills' stance to maintain the status quo of HREOC dealing with complaints which may be dealt with through both the AIRC and HREOC.

Disability overlap

The Committee report rejected concern over the provision that prevented a second avenue of complaint for disability discrimination.

The provision provides certainty in relation to age and disability discrimination, the Committee report said.

‘A reference to discrimination against a person on the grounds of age is taken not to include a reference to discrimination against a person on the grounds of a disability of the person.’

Age of associates

The Committee report recommended that a new provision be inserted prohibiting discrimination on the basis of the age of a person’s relatives or associates.

No harassment

However, the Committee report did not think it necessary that including an offence of harassment was consistent with the Bill’s objective of achieving attitudinal change toward age discrimination.

Dominant reason test rejected

The Bill’s dominant reason test was rejected by the Committee report.

According to the report, the dominant reason test had been included without broad consultation.

It also recommended the scope of the dominant reason test be more clearly defined and the onus for who must prove the reason be specified.

A similar test was no longer in the Federal Racial Discrimination Act because it was impractical, the Committee report said.

‘In the Committee’s view, the proposed tests inconsistency with other anti-discrimination law will present significant problems for the Bill, particularly in achieving the aim of attitudinal change.

‘A more stringent test than other anti-discrimination law signals to the community the lesser importance of age discrimination when compared with other prohibited discriminatory conduct.’

Democrats' dissent

In a dissenting Democrats’ Senate Committee report it was recommended: 

  • replacing the dominant reason test with a test similar to that in s8 of the Sex Discrimination Act 1984, which was a more detailed exposition of what constituted discrimination;
  • prohibiting age discrimination in unpaid work;
  • removing the youth wages exemption;
  • removing the inherent requirements of the job exemption, but including an alternate defence;
  • limiting industrial award and workplace agreement exemptions to a period of two years;
  • establishing an Age Discrimination Commissioner within the Human Rights and Equal Opportunity Commission;
  • allowing claims under either age or disability legislation; and
  • clearly defining prohibition against age related harassment.

ALP dissent

In a dissenting ALP Senate Committee report it was recommended: 

  • replacing the dominant reason test with a test similar to s8 of the Sex Discrimination Act;
  • reviewing age discrimination exemptions in two years;
  • providing adequate funding to the Human Rights and Equal Opportunity Commission; and
  • including a prohibition on aged-based harassment.

For more detail see the Senate Committee report.

 

 

  

 
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