The National Prevalence Survey of Age Discrimination in the Workplace (2015) found that 27% of workers over the age of 50 in Australia experienced age discrimination. 40% of these workers experienced age discrimination but did not bring formal action or make a discrimination complaint. 33% of these workers gave up looking for work after experiencing age discrimination. Only about 5% of employees who experienced age discrimination filed a complaint.
When Can Age Discrimination Occur?
Age discrimination is difficult to recognise even by people who are victims of it. It can happen at the recruitment and selection stage and it can also happen when the employer offers terms, conditions, and benefits as part of employment. It may also occur when employers are considering or selecting employees for training, further education, transfer or promotion and when considering whom to select for redundancy or dismissal.
Who Is Protected Against Age Discrimination?
Employees are protected from age discrimination under both the Age Discrimination Act 2004 and the general protections provisions of the Fair Work Act 2009 which penalise employers who commit acts of direct or indirect discrimination or take adverse actions against their employees based on their age. The laws also provide protection for workers who experience harassment from employers or co-employees because of their age. These protections apply to all employees and workers including those working full time, part time, casual or probationary employees, apprentices, trainees and employees hired for fixed periods or fixed tasks.
Contractors are protected from age discrimination under the Age Discrimination Act 2004. The general protections provisions, relating to age discrimination, under the Fair Work Act 2009 do not apply to contractors.
What Is Direct Age Discrimination In The Workplace?
Section 14 of the Age Discrimination Act 2004 provides that direct age discrimination is present when an employer (also called a discriminator) treats or proposes to treat a job seeker or an employee (called the aggrieved person) less favourably:
- than others whose circumstances are the same or not materially different except for the age of the aggrieved person; or
- because the aggrieved person possesses characteristics that are generally true of persons of the age of the aggrieved person or because the aggrieved person possesses characteristics which are generally imputed to persons of the age of the aggrieved person.
In Blatchford v Qantas Airways Limited (1997) EOC 92-888, a group of men applying for the position of pilots were assigned points based on their age. The applicants who were younger than 25 scored 4 points and those over the age of 32 scored only 1 point. When the applicants filed a complaint for age discrimination, Qantas argued that if they hired older men, they would not be able to recoup their investment in training the older pilots who would not work as many years as the younger applicants. The Equal Opportunity Tribunal of New South Wales ruled that the point system directly discriminated against applicants based on their age.
What Is Indirect Age Discrimination In The Workplace?
Under section 15 of the Age Discrimination Act 2004, indirect discrimination exists when the employer or discriminator imposes or proposes to impose a requirement, condition or practice that is not reasonable under the circumstances and will likely result in some disadvantage to the aggrieved person.
Some examples of discrimination are those acts of employers or managers that limit the opportunities for employment, training, or promotion of employees because of the employee’s age. Other examples are when employers or managers vary the terms or conditions of work or compensation based on the age of the employee. Other examples are making jokes or derogatory comments about the employee because of his or her age.
In Virgin Blue Airlines Pty Ltd v Hopper & Ors  QSC 075, job applicants for the position of flight attendant were assessed for “behavioural competencies”. One of the test items was having ‘Virgin flair’ or possessing personality traits that made the flight experience ‘fun’ for their customers. 8 job applicants filed a complaint against the airline company claiming that the ‘Virgin flair’ test discriminated against them. The Queensland Supreme Court ruled that while the behavioural competencies test was not inherently discriminatory, it was found that only one job applicant above the age of 35 was offered a job based on the Virgin flair behavioural competency test, thus, it indirectly discriminated against applicants based on their age.
What Is Age Discrimination Through Adverse Action?
The Fair Work Act 2009 protects employees from discrimination in the workplace when the employer takes adverse action against an employee or prospective employee because of their age.
Adverse action includes when an employer threatens or organises to dismiss an employee, injure an employee, alter the employee’s position, discriminate between one employee and other employee, refuse to employ a prospective employee or discriminate against a prospective employee in the terms and conditions offered.
What Is Age-based Harassment?
Workers can also experience age discrimination from colleagues at work who tell jokes, make derogatory comments or taunts, ask intrusive questions or send hateful, offensive or bullying emails or text messages about one’s age or characteristics stemming from one’s age.
Bullying co-workers can include yelling or screaming, intimidating or humiliating them, giving them impossible jobs or meaningless tasks, withholding information vital for work performance, excluding or isolating them.
In this case, the employer can be found vicariously liable for harassing or bullying acts committed by other employees in the workplace especially when the employer does not have policies in place that prohibit such behaviour.
Where Can An Employee File A Complaint For Age Discrimination?
- The employee can lodge a complaint to the Australian Human Rights Commission (HRC) for unlawful discrimination under the Age Discrimination Act 2004. The HRC can require parties to attend compulsory conference and attempt to resolve complaints of age discrimination through conciliation.
- The Federal Court and Federal Circuit Court can hear cases of age discrimination under the Age Discrimination Act 2004, generally, after the HRC has dealt with complaint.
- An employee can file a general protections claim or unlawful termination claim to the Fair Work Commission. The Fair Work Commission will conduct a conciliation. If the matter is not resolved at conciliation, the matter is progressed to the Federal Court or Federal Circuit Court.
- The Fair Work Ombudsman can help resolve workplace issues by providing information as well as tools to determine entitlements under the law. The Fair Work Ombudsman can also prosecute age discrimination claims on behalf of employees in certain circumstances.
An employee cannot generally make both a complaint to the HRC and Fair Work Commission – one jurisdiction needs to be picked.
Where Can A Contractor File A Complaint For Age Discrimination?
A contractor can file a claim with the HRC. If the claim is not resolved at that stage, it can be progressed to the Federal Court and Federal Circuit Court.
Are There Time Limits For Filing A Complaint For Age Discrimination?
Under section 46PH of the Australian Human Rights Commission Act, the President of the HRC may terminate a complaint for unlawful discrimination if it has been lodged more than 6 months after the alleged unlawful discrimination occurred. A complaint to the HRC should be lodged within 6 months of the discriminatory act occurring. The aggrieved party then has 60 days to file a complaint with the Federal Court or the Federal Circuit if the complaint does not resolve at the HRC.
If the aggrieved party experienced an adverse action, in the form of dismissal from employment, consequent to an unlawful discrimination, he or she must lodge a general protections application with the Fair Work Commission within 21 days after dismissal. The Fair Work Commission will conduct a conciliation. If the matter does not resolve, the employee must file the claim with the Federal Circuit Court or Federal Court within 14 days of the Fair Work Commission issuing a certificate.
If the aggrieved party seeks to complain about an adverse action that did not result in dismissal from his or her employment, the aggrieved party has 6 years within which to lodge a general protections application with the Fair Work Commission, Federal Circuit Court or Federal Court.
What Pay-outs Can I Expect If I File A Complaint?
During mediation and conciliation at the HRC or Fair Work Commission, the parties are free to reach outcomes that they can mutually agree upon. The aggrieved party and the employer can mutually agree to an apology, compensation, to reinstatement of employment, or to provide access to a job opportunity or service that was previously denied.
Under 46PO(4) of the Australian Human Rights Commission Act 1986, the Federal Circuit Court and the Federal Court can:
- declare that the discriminator has committed unlawful discrimination and direct them not to repeat or continue;
- order the discriminator to perform acts to redress loss or damage suffered by the aggrieved party;
- order the discriminator to re-employ a dismissed employee or employ the applicant or vary the terms and conditions of a contract of employment or employment agreement to redress any loss or damaged suffered by the aggrieved party;
- require the discriminator to pay the aggrieve part damages to compensate for loss or damage suffered by the aggrieved party because of the conduct of the discriminator
Special damages may be ordered paid to the aggrieved party to compensate quantifiable economic loss such as past and future lost wages. General damages may be ordered paid to compensate for the hurt, humiliation or loss of dignity suffered by the aggrieve party.
Similar remedies are available if an employee succeeds a general protections claim arising from adverse action (such as dismissal).
What’s An Example Of When Age Discrimination Did Occur?
Hopper and others v Virgin Blue Airlines Pty Ltd  QADT 9 (29 March 2006).
Ms Hopper and 7 other women between the ages of 36 and 56 applied for positions with the airline. All the women had been previously trained and employed as flight attendants, and showed experience that would have made them more likely to gain employment than applicants with no prior industry experience.
Although Virgin Blue Airlines does not have an inherent age requirement other than employees must be at least 18, it was statistically shown that out of approximately 750 successfully hired applicants, only one had been over 36 years of age. Older candidates were treated less favourably than younger ones, which is direct discrimination on the basis of age and a violation of anti-discrimination laws.
The women were awarded damages and interest in excess of $80,000, as well as costs for proceedings.
Willmott v Woolworths Ltd  QCAT 601 (11 November 2014)
In this case, the prospective employee was asked to provide his date of birth on an online job application for the position of console operator at a petrol station. It was established that it was not reasonably necessary for Woolworths to ask Mr Willmott about his age to consider him for employment, as the role did not inherently require him to be of a certain age to fulfil the duties. In addition to unlawful age based discrimination, Woolworths was found in contravention of discrimination laws for requiring unnecessary information.
Since the structure of the online application would not let Mr Willmott continue or submit without supplying this personal information, he was not able to be considered for the position. As he would have been otherwise reasonably qualified for the occupation, the presiding judge determined a loss of chance, and awarded the Mr Willmott compensation.
Dewan v Main Roads WA (2005) EOC 93-362
In this case, a 45-year old engineer lodged a complaint for indirect age discrimination against a construction company because it advertised positions for ‘recent graduates’. The Western Australian Equal Opportunity Tribunal held that this job advertisement was not an act of indirect discrimination. There was no demonstrated intention to recruit only young employees because new graduates of engineering can be of any age group.
Can An Employer Impose A Compulsory Retirement Age?
With the passage of the Age Discrimination Act 2004, the mandatory retirement age was abolished. This means that employers cannot force their employees to retire if they are still able and willing to do their job, except in limited circurmances.
One exception is when the age restriction is an inherent requirement of a job or the age limit is based on safety and operational considerations. An inherent requirement of a job is that which is essential to the effective performance of tasks related to a position.
For example, in Qantas Airways Limited v. Christie  HCA 18, a group of pilots filed a complaint for age discrimination because they were required to retire at age 60. The airline company reasoned that the pilots had to retire at that age because there are international treaties where Australia was a party and the treaties allowed only pilots below the age of 60 to fly airplanes into the other countries’ airspace. The Court upheld the position of the airline company and ruled that retirement at 60 was a genuine and reasonable requirement for being a pilot.
A few occupations have compulsory retirement ages which are specified in government legislation. For example, permanent members of the Australian Defence Force must retire at the age of 60 and reservists must retire at the age 65. The Australian Constitution specifies Federal judges must retire at 70.
Can An Employer Pay Young Workers A Lower Rate Of Pay?
Young workers below the age of 21 can be paid junior wages which usually amount to below 90% of adult rate (an adult in this situation is someone 21 years and over). This is usually permitted under the relevant modern award. This is not considered age discrimination as it is expressly permitted by law.
The government has determined that a lower wage for young workers encourages employers to create jobs for them that would not even exist if there was no incentive such as payment of a lower wage. The creation of jobs for young workers benefits them as these provide them an entry into the labour market.
Trainees and apprentices are generally paid lower than adult wage rates. This is because trainees and apprentices receive training and qualification that they can then use to better their employability.
How Can MKI Legal Help?
Should you feel that you have been discriminated against at work and you want to know what you can do about it, our team of employment law experts can help you. We can have a free, no-obligation and confidential discussion about your particular circumstance.