The age of reason: sorting out the Federal Age Discrimination Bill 2003

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The age of reason: sorting out the Federal Age Discrimination Bill 2003

Not many people would argue that preventing age discrimination was a bad thing, but getting agreement on how far age discrimination laws should go was another matter.

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Not many people would argue that preventing age discrimination was a bad thing, but getting agreement on how far age discrimination laws should go was another matter.

The Human Rights and Equal Opportunity Commission and the Australian Chamber of Commerce and Industry have lodged submissions to the Senate Legal and Constitutional Committee Inquiry into the Age Discrimination Bill 2003

HREOC welcomed the Federal Age Discrimination Bill, but took issue with some provisions and called for amendments.

On the other hand, ACCI chief executive, Peter Hendy believed the ‘Bill is well intended but remained flawed’.

According to the ACCI submission to the Senate Inquiry, ‘In terms of both risk and cost this proposal has the potential to act against decisions to employ mature-aged persons, and thereby act against their interests in the first place.

‘It would be perverse if, with the best of intent, the Parliament was to introduce age discrimination laws to try to help mature-aged people once they are in jobs if only to find that it is harder for employers to get them in jobs in the first place.’

A spokesperson for the Shadow Federal Attorney General, Robert McClelland said that while the ALP supported the Bill, it had amendments in mind and might consider more after it reviewed the Senate Committee report on the Bill.

A spokesperson for the Federal Attorney General Darryl Williams said the Government would consider the recommendations of the Senate inquiry, when its report is released.

The Senate Inquiry is expected to deliver its findings on September 18, 2003.

Meanwhile, the Bill is listed for debate in the House of Representatives today.

Extending discrimination

The HREOC submission to the Senate Inquiry expressed a desire to bring the Bill into line with other federal legislation that made it unlawful to discriminate against a person because of their associates or relatives.

In the workplace, for example, employees could not be discriminated against due to the age of their relatives or associates.

Clarifying guidance

Generally, however, HREOC expressed concern that the Bill lacked guidance - evident in the Sex Discrimination Act - on what to take into account when determining ‘if a condition, requirement or practice is reasonable in the circumstances’.

The inclusion of such guidance would help HREOC administer the legislation and provide guidance to complainants.

Youth wages

In relation to youth wages, HREOC did not support a permanent exemption and believed youth wages should be dealt with by special measure provisions.

‘Special measure provisions are preferred because they are more flexible andtargeted than specific fixed exemptions.

‘They ensure that only those programs and policies that are designed and targeted to address disadvantage by a particular group are exempt from the operation of the legislation.

'Once the disadvantage that the program or policy has been set up to address has been remedied, then the program or policy would no longer be a special measure and exempt from the operation of the age discrimination legislation.

‘In Age Matters, the Commission recommended that a number of specialmeasures aimed at mature agejob seekers and older workers either be continued or implemented.’

No Defence force exemption

HREOC made it clear the defence forces should not be allowed an exemption from provisions of the Bill, except in relation to enlistment and cadet ages.

‘As an employer, the Commission considers that the inherent requirements provisions should be the appropriate exception for any of the current age-based criterion used by the defence forces including those for entry for particular positions, transfer, promotion and retirement.’

Dominant reason test

HREOC expressed concerned that the inclusion of a dominant reason test would make it difficult to make successful age discrimination complaints.

Anyone making a claim would have to show that age discrimination was the dominant reason ‘not just the reason or a substantial reason for the less favourable treatment’.

'This test could also invite litigation focusing on the interpretation of the term ‘dominant reason’ and whether a reason was a dominant or a secondary one.

‘The Commission also notes that where the evidence in a case may establish that a prohibited ground is only one of two or more reasons for a particular act, the fact that the prohibited ground is not necessarily the dominant or substantial reason has been acknowledged in some cases decided under current federal anti-discrimination legislation in the award of damages made by the decision maker.’

Disability overlap

HREOC was not opposed to the Bill’s provision for positive age discrimination to reduce the disadvantage of an age group.

But it was concerned the provision went too far and could have the effect of undermining the objective of the Bill in relation to eliminating age discrimination. 

Definition of employment

The Australian Chamber of Commerce and Industry was not happy with the broad definition of work proposed by the Bill.

ACCI said in its submission to the Senate Inquiry that it did not want laws relating to employment extended beyond the contract of employment between employers and employees.

‘Relationships between principals and contractors are commercial relationships (contracts for services) and not in the same class as employer/employee relationships.’

Nor did ACCI support applying the provisions to unpaid work.

‘It is undesirable for impediments to be placed that could inhibit the opportunities for volunteers to provide their services in the community.

‘An organisation securing services of a volunteer may think twice before doing so if they are at risk of an age discrimination complaint from that person down the tack.

‘Given that many of these organisations are community-based and not for profit then it would seem unnecessary for the proposal to have this reach without fully exploring the consequences.’

Indirect discrimination and productivity

ACCI expressed concern that the Bill would prohibit indirect as well as direct discrimination.

In particular, certain productivity standards could be classified as indirect discrimination and there was a reverse onus of proof on the employer to prove otherwise.

‘It is quite conceivable that, without proper exemptions in place, generally accepted and currently operating performance or productivity criteria in industry would be exposed to complaint or challenge under the indirect age discrimination concept.’

ACCI felt these provisions would lead to situations where employers would be less likely to employ older workers, and might have to provide light or limited duties to a particular age group to avoid complaint or litigation.

Exemptions should be put in place that didn’t interfere with performance and productivity benchmarks.

There was also concern the Bill would make it harder to dismiss older workers whose performance might deteriorate because of advancing age.

If the Bill couldn’t be amended to include only direct acts of discrimination it should provide time for employers to get used to the idea, ACCI said.

‘This would enable employers to assess the potential impact of the legislation on work practices and policies.’

However, ACCI was clear when it came to working out practice guidelines in relation to indirect discrimination - it didn’t want HREOC to be given the task alone, ACCI wanted industry input.

ACCI was not satisfied that work practices, performance and productivity criteria could be dealt with by the inherent requirements exemptions included in the Bill.

ACCI wanted to see a specific exemption ‘relating to reasonable productivity or performance criteria that is established in the workplace’.

Awards and agreements

Provisions in the Bill relating to the exemption of acts done in accordance with awards and agreements should be extended to cover state agreements, ACCI said.

Currently the provisions only covered federal awards and agreements and state awards.

ACCI also wanted acts of age discrimination covered by exclusion provisions ‘pursuant to’ award provisions, and not ‘in direct compliance with’ award provisions.

This would ensure that indirect acts of award compliance would also be covered.

‘Whilst a statutory note indicating that this is the statutory intent may be of assistance (and should be considered) a preferable approach is to use a broader expression such as ‘acts done pursuant to awards and agreements’ in framing this exemption.’

AIRC relationship

Although ACCI conceded in its submission that HREOC took into account AIRC proceedings when dealing with age discrimination claims, this was only custom and practice.

It wanted the practice formalised.

‘It is preferable that industrial disputes (individual or collective) which have an age related component to the complaint (e.g. a complaint of indirect discrimination arising from a work practice) be dealt with (if there has to be intervention at this level) by the AIRC rather than HREOC.’

However, ACCI added that the best way to deal with such matters was at the workplace through the applicable dispute resolution process.

Harassment

Although ACCI believed the victimisation provisions of the Bill did not extend to age harassment, it indicated that it did not support a separate cause of action relating to such.

‘As the January 2003 Information Paper noted, employers and business groups are of the view that the concept is too vague and could give rise to spurious complaints about legitimate workplace requirements.

‘State and Territory legislation, to the extent that it is relevant does not go this far.

‘Is it ‘harassing’ for an employer of a young apprentice to give the young apprentice the menial jobs that arise in the workplace, in preference to older more experienced workers getting the ‘better’ type of work?

‘Is it ‘harassing’ for one employee to tell another employee ‘you’re younger - you lift this’, and then expose the employer to liability under vicarious liability principles?’

Vicarious liability

However, ACCI was concerned the codified vicarious liability provisions of the Bill went too far.

Advertising jobs

ACCI was concerned that the Bill appeared to make it unlawful to advertise for older workers.

But it appeared employers could still advertise for younger employers in relation to the youth wage.

If this was the case, ACCI was concerned it sent a conflicting message to  employers - on one hand they were being encouraged to hire more mature workers, but on the other they weren’t allowed to advertise for them.

If age related advertising was prohibited, time and education rather than ‘heavy-handed prosecution’ would be required to help employers and individuals understand the laws, ACCI said.

Health and safety

Although ACCI conceded the Bill’s proposed provisions to exempt acts done to comply with State and Territory laws might address concerns arising from OHS laws, ACCI still wanted specific OHS exclusions to be included in the Bill.

‘If for example employees of a particular age are not offered work of a particular kind or are required to work under differential work practices because that is necessary to meet the duty of care, then employers should not be exposed to a breach of age discrimination law.

‘This is a particular concern given that OHS laws require an employer to actively put in place policies and work practices that prevent workplace injuries - hence employers will act to develop work requirements that eliminate risk factors or exposure to risk factors. This is not an issue dealt with in the Information Paper, but needs to be.’

Age versus disability

To make sure the Disability Act was not utilised when acts were exempted under the Age Discrimination Bill, ACCI suggested the Disability Act be broadened.

ALP amendments

Like the HREOC suggestions, McClelland’s spokesperson said the ALP wanted the Bill to make it unlawful to discriminate against a person because of their associates or relatives.

In opposition to ACCI, the ALP rejected the dominant reason test and wanted to include a section on age-based harassment.

For more information go to the Parliament of Australia website.

 

 

 
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