ement or practice is not reasonable; and
· The condition, requirement or practice has or is likely to have the effect of disadvantaging persons of that age.
The AD Act previously required a complainant to prove that their age was a ‘dominant’ reason for discrimination. The ‘dominant reason’ test was removed in 2009 so as to present a less onerous evidentiary burden. The current test for age discrimination requires that if a discriminatory act is done for two or more reasons, one of those reasons is the age of the complainant. Similarly, most state and territory age discrimination statutes require only that age be a substantial reason and not a dominant reason for discrimination.
In addition to electing between the AD Act and State or Territory anti-discrimination laws, if the complainant alleges discrimination in the context of employment, the complainant may also elect to make a claim under the Fair Work Act 2009 (Cth) (‘FW Act’).
In broad terms, under the FW Act, the ‘General Protections’ provisions prevent employers from taking ‘adverse action’ (for example, dismissal, altering the employee’s position to his or her prejudice, discriminating between the employee and other employees, refusing to employer a prospective employee) against an employee, or prospective employee, because of the person’s age (‘General Protection Provisions’).
An employee who has their employment terminated because of age may also make an ‘unlawful termination’ claim under the FW Act.
In 2015, the federal government launched a national inquiry into age and disability discrimination in Australian workplaces. As part of this inquiry, the Australian Human Rights Commission (‘AHRC’) was tasked with making recommendations on legislative reform to existing federal anti-discrimination laws, in order to provide a more co-ordinated policy response to the challenges of Australia’s ageing population and low labour force participation among mature age workers. These legislative recommendations are expected by mid-2016.
The AD Act makes it unlawful to 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 ap