Watch for expanded application of age discrimination laws

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Watch for expanded application of age discrimination laws

Although evidence suggests that age discrimination in employment is commonplace and becoming more so, age discrimination legislation has a lower profile than other types of anti-discrimination laws. However, new provisions in the Fair Work Act 2009 may mean that this situation is about to change.

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Although evidence suggests that age discrimination in employment is commonplace and becoming more so, age discrimination legislation has a lower profile than other types of anti-discrimination laws. However, new provisions in the Fair Work Act 2009 may mean that this situation is about to change.
 
The reasons were discussed at the 2010 Workplace Research Centre (WRC) Labour Law Conference, held in Sydney on 10 June 2010.
 
Therese MacDermott, from Macquarie Law School, noted that only 8% of complaints made to the Commonwealth Human Rights Commission during its last reporting year were about age discrimination, compared to 43% for disability discrimination, 24% for sex discrimination and 18% for race discrimination. Despite this statistic, MacDermott argues that there is more scope for age discrimination to occur.
 
For example, a person’s age is still used to define a person’s phases of life — education until late-teens/early 20s, then work, then retirement in a person’s 50s or 60s. Many age-based assumptions are made about people’s physical fitness, maturity, experience, wisdom and ability to learn, and there are many age-based restrictions in the community, such as minimum ages for voting and driving licences, junior pay rates, and maximum ages for other things. A ‘mature age worker’ is defined by most sources as someone aged 45 years or older.
 
Overall, the problem is not age itself, it is the many assumptions made about age. MacDermott commented that ‘The Age Discrimination Act does not provide an exception for economic rationalism’.
 
Impact of the aging population and workforce
 
An aging population has made it imperative for business to increase the participation rate of mature-age workers in the workforce. This approach means that the business case for avoiding discrimination and the human rights case for avoiding it are now coming together, which will give avoiding discrimination a much higher profile. However, MacDermott believes it will be very hard to break down the current discrimination against mature age employees.
 
Shortcomings of Age Discrimination Act
 
In the six years of operation of the federal Age Discrimination Act 2004, there has not been one successful court case, although there have been some under state Acts, most notably a widely-publicised case against Virgin Blue Airline. MacDermott commented that the problem with most types of ‘soft-touch’ legislation (privacy being another example) is that it assumes all discrimination is unintentional, and that people will always do the right thing if they are told what to do.
 
In addition to that, she claimed that the Act has/had the following shortcomings:
  • There is no separate Age Discrimination Commissioner, the position is part of the Sex Discrimination Commissioner’s role.
  • Until 2009, it was necessary for age to be the ‘dominant’ reason for discrimination before a complaint under the Act could be made. This was very hard for a complainant to substantiate. Now, age only has to be one of the reasons for discrimination.
  • There is no legislative requirement for employers to make reasonable adjustments to the workplace to accommodate an employee’s age, unlike the Disability Discrimination Act 1992. 
  • Complainants have to provide evidence of a link between their age and discriminatory treatment, which is very difficult for mature-age employees to do.
  • The Act contains a very large number of exceptions (more than 20).
 
Why the Fair Work Act may change this
 
MacDermott said that the Fair Work Act has expanded the opportunities for discrimination claims to succeed. Firstly, unlike the former Workplace Relations Act 1996, claims are not restricted to unlawful termination of employment, but may cover job applications and incidents that occur during work, such as terms and conditions of employment, promotion, demotion, transfers, etc. [See s351.]
 
Another advantage is that it is cheaper to pursue a claim under the Fair Work Act than under equal opportunity legislation, particularly if the employee is represented by a union.
 
Other issues include:
  • Age does not have to be the sole or dominant reason for discrimination.
  • Injunctive relief is available pending the resolution of a matter.
  • The onus of proof is shifted. The respondent employer is required to show that an employee’s age was not a reason for his/her treatment. Unlike the employee, the employer has access to relevant background information behind the treatment, and can say: ‘This is why I did it.’
  • The Fair Work Ombudsman can investigate and act on a matter of age discrimination. MacDermott likened the Ombudman’s role to that of bodies such as the ACCC, which can act ‘in the public interest’. The parties also have the option of deciding whether Fair Work Australia can arbitrate a dispute.
  • The risks are greater for employers. A corporation can be fined $33,000 for a breach, which is higher than most damages payouts in equal opportunity cases. This is seen as an extra incentive to resolve complaints at the conciliation stage.
 
An audience question queried whether the Fair Work Act provisions were mainly a duplication of equal opportunity law, with similar defences and exceptions available. MacDermott suggested that it was illogical to have new provisions and qualify them in the same way as existing ones, therefore the Act’s provisions were likely to be interpreted more broadly. However, ‘wait and see’ is the current advice.
 
Conclusion
 
The business and economic imperatives to increase the workforce participation of mature-age workers mean that age discrimination issues will have a higher profile from now on, and people will be more likely to attempt to assert their rights. Until now, most have been rather passive about it.
 
But people have to be convinced that it’s the morally right thing to do. Changing hearts and minds will not be enough, however, actual employment practices must change as well.
 
Further information
 
Further information about the conference is available from the WRC website
 
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