en the time of the dismissal and the time of reinstatement. In some cases reinstatement is ordered without back pay.
The Office of the Fair Work Ombudsman (FWO) monitors and enforces employer compliance with the FW Act. It has been instrumental in regulating discriminatory behaviour as it has the power to prosecute employers on behalf of individual employees. In resolving complaints concerning age discrimination, the FWO has flexibility to enter into Enforceable Undertakings with employers who agree to a range of remedies as an alternative to litigation. However, the FWO’s jurisdiction is limited to investigation of age discrimination in the workplace as defined under the FW Act, and only where state and federal laws do not exclude the operation of the FW Act.
The FWO conducted its first successful age discrimination litigation in 2014. Federal Circuit Court proceedings in Fair Work Ombudsman v Theravanish Investments  FCCA 1170 resulted in orders against a restaurant operator and its directors for almost $40,000 in employee compensation and penalties. The Court found that the employer had contravened age discrimination and record keeping laws after terminating the service of a long-serving employee when he turned 65 years of age, due to its policy of not employing retirement age staff.
How common are claims?
The AHRC received 184 complaints in the 2013-14 reporting year, and has received between 100-200 age discrimination complaints every year since 2004. 60% of these complaints are from complainants aged 45 years and above. However, age discrimination complaints have consistently comprised less than 10% of total discrimination complaints received by the AHRC, compared to disability discrimination complaints (approximately 40%) and sex discrimination complaints (20%).
Approximately 45% of finalised age discrimination complaints undergo conciliation every year. Of conciliated cases in 2013-2014, around 75% were settled through conciliation while a quarter remained unresolved.
In 2015, the AHRC carried out a national survey on age discrimination in the workplace and found that while over a quarter of Australian workers aged 50 and above had experienced some form of discrimination, more than 40% of them did not take any action in response, and only a very small proportion made formal age discrimination complaints.
What claims are most common and what are the trickiest issues for employers?
Over the last five years, approximately 60% of age discrimination complaints to the AHRC have been in the area of employment. Approximately a quarter of complaints are in relation to the provision of goods, services and facilities.
Under the FW Act General Protections Provisions, a challenging issue for employers is that they carry a ‘reverse onus’. This means that where an employee alleges that he or she has suffered adverse action for a prohibited reason (i.e. age), the court will presume that this is the case unless the employer can prove otherwise. For example, if an employee alleges that they were not recruited because of their age, the employer must prove that age had no part in the decision not to recruit that employee.
A reverse onus of proof also applies in unlawful termination cases. The employer must, by leading evidence, exclude the possibility that termination occurred because of the employee’s age. Several decisions in this area establish that the employer must ‘eliminate the prospect’ that the termination was effected by a prohibited reason (i.e. age).
Another significant issue for employers is vicarious liability. Under the AD Act, where the unlawful conduct is done by one person on behalf of an employer (for example, by an employee), the employer may be vicariously liable for the conduct and orders may be made against the employer.
The employer will be able to defend an allegation of vicarious liability if it can establish that it took reasonable precautions and exercised due diligence to avoid the unlawful conduct occurring.
An additional difficulty facing employers is the potential for discrimination tribunals to accep