o discriminate against a person on the ground of age in the following areas of public life:
· All aspects of employment including recruitment practices, termination, conditions of employment, access to promotion and training opportunities;
· Access to premises;
· Provision of goods, services and facilities;
· Provision of accommodation;
· Disposal of land;
· Administration of Commonwealth laws and programs; and
· Requests for information on which age discrimination may be based.
The AD Act’s coverage of education, goods and services, and accommodation broadly overlap with state and territory legislation. While the AD Act’s protections against age discrimination in employment covers all types of workers including full-time, part-time and casual employees, agents and contractors, some state and territory jurisdictions do not cover agents and/or contractors. The extent of coverage of prohibitions against age discrimination in relation to access to premises, land, administration of government laws and programs and requests for information differs across various state and territory jurisdictions.
What enforcement/remedies exist?
The AD Act does not provide for remedies for age discrimination. A complainant may make a written complaint of discrimination under the AD Act to have his or her complaint investigated and resolved through an informal, cost-free process of conciliation by the AHRC. This agency does not have the power to determine if unlawful discrimination has occurred. However, if the AHRC cannot resolve a complaint, the complainant may pursue the matter in the Federal Court or the Federal Circuit Court.
Relevant remedy provisions are found in the Human Rights and Equal Opportunity Act 1986 (Cth). A Court may make any one or more of the following orders when unlawful age discrimination is established. A Court may order that a respondent:
· Pay damages to the applicant;
· Not repeat or continue the discrimination;
· Perform any reasonable act or course of conduct to address any loss or damage suffered by an applicant’
· Employer or re-employ an applicant; or
· Vary the termination of a contract or agreement.
The State and Territory anti-discrimination laws provide for similar types of remedies, although in New South Wales and Western Australia the amount of damage is capped at $100,000 and $40,000 respectively.
An award of damages is the most common remedy in discrimination complaints, although ‘softer’ remedies such as public apologies and development or review of policies and procedures by the respondent appear increasingly common. Damages are awarded as a remedy to place the complainant in the position that they would have been had the discrimination not occurred. Compensation is awarded under two heads – special damages and general damages.
Special damages compensate for quantifiable economic loss. For example, if a complainant can establish that their employment was terminated because of discrimination, then the complainant can claim for past and future loss of wages.
General damages are awarded to compensate the complainant for the hurt, humiliation and loss of dignity suffered.
Disputes involving an alleged contravention of the General Protection Provisions under the FW Act will generally be dealt with at first instance in a conference by the Fair Work Commission. However, employees can elect to go directly to the Federal Court or the Federal Circuit Court if they wish (except where the alleged discrimination takes the form of a dismissal, in which case a conference by the Fair Work Commission is mandatory). Where the matter proceeds to court, the maximum penalty payable is $54,000 for a corporate employer and $10,800 for an individual in respect of each breach. Compensation or reinstatement of the employee may also be ordered.
In related to general protection remedies for age discrimination resulting in dismissal, the main remedies are reinstatement, often with back pay, or monetary compensation. If reinstatement and back pay are ordered, a Court must have regard to the employee’s income or likely income betwe