Treated differently at work because of your age? What the law says

What age discrimination looks like

Age discrimination at work means being treated less favourably because of your age, or because of something people assume about your age. It can affect older workers ("past their prime", "due to retire") and younger ones ("too inexperienced", "not a good fit for this team").

It can happen at any stage: a job advertisement aimed at a "young team", questions about your age at interview, being passed over for training or promotion, being picked first for redundancy, or being pressured to retire. This guide deals with the workplace and with federal law.

The federal laws that protect you

Two federal laws apply. The first is the general protections in the Fair Work Act 2009 (Cth). Section 351 says an employer must not take adverse action against an employee or prospective employee because of their age. Adverse action includes dismissing you, injuring you in your employment, altering your position to your prejudice, treating you differently from other employees, or refusing to employ you (s 342).

The second is the Age Discrimination Act 2004 (Cth). It covers both direct discrimination (being treated less favourably because of your age) and indirect discrimination (a rule or practice that looks neutral but is unreasonable and disadvantages people of your age). Unlike the Fair Work Act protections, it also covers contractors.

In Western Australia, the Equal Opportunity Act 1984 (WA) gives a third, state-based route. Each route has its own time limit and remedies, and you generally use only one for the same conduct.

Who has to prove what

In a general protections case the burden of proof is reversed. You must show what happened to you and that you have the relevant attribute, here your age. It is then presumed that the employer acted because of your age unless the employer proves otherwise (s 361). Age only needs to be one of the reasons, not the only one (s 360).

That reverse onus matters. In Carr v Blade Repairs Australia Pty Ltd (No 2) [2010] FCA 688, a wind farm technician said the man who had recruited him, and who decided to let him go, told him the client no longer wanted "young blokes" on its wind farms. He denied saying it and said the workers chosen were the least experienced, and that Mr Carr's work was not as good as the others'. Justice Tracey could not decide whose account to accept, but noted that the three employees let go were among the five youngest. Because the employer could not prove that age was not a reason, Mr Carr succeeded. He was awarded $24,607.72 in damages for breach of contract, and the employer was ordered to pay a $1,000 penalty. That case was run under the law before the Fair Work Act, but the same reverse onus applies today.

A forced retirement at 65

In Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170, a restaurant waiter who had worked for the business since 1996 was told in writing that his employment would end on his 65th birthday, because of his age. The company's accountant had wrongly advised that the law set a retirement age of 65. The employer admitted that it dismissed him because of his age, and that two of its directors were involved.

Judge Burnett of the Federal Circuit Court ordered the company to pay the worker $10,000 compensation, agreed between the parties. The company and the two directors were also ordered to pay penalties totalling $29,150, which covered the age discrimination and separate record-keeping contraventions. The case shows that there is no general retirement age in Australian employment law, and that directors who are involved can be personally liable.

The exceptions

Section 351 does not apply to action that is not unlawful under the anti-discrimination law of the state or territory where it happens, or to action taken because of the inherent requirements of the particular position (s 351(2)). There is also a narrow exception for some religious institutions acting in good faith.

Inherent requirements are read narrowly. In Qantas Airways Ltd v Christie [1998] HCA 18, the High Court accepted that being under 60 could be an inherent requirement of an international pilot's job, because rules in some countries then barred pilots aged 60 and over from flying in their airspace. Cases like that are the exception.

Youth wages are another: paying a worker under 21 the junior rate in their award is exempt from the Age Discrimination Act (s 25). The exemption covers the pay rate only, and the rate must be the correct award rate for the worker's age.

What you can do

If you have been dismissed because of your age, a general protections application to the Fair Work Commission must be lodged within 21 days after the dismissal took effect. Since 7 July 2026, it is enough at that stage to allege that you were dismissed. If you were not dismissed, or you are a contractor, the Australian Human Rights Commission or the WA Equal Opportunity Commission may be the better route, with longer time limits.

If something at work seems to turn on your age, write down what was said and done, and when. Because the time limits differ and the choice of route matters, it is worth getting advice early.