Corrs Chambers Westgarth
The Age Discrimination Act 2004 (Cth) (‘AD Act’) is the Australian federal law that prohibits age discrimination. Prior to the commencement of the AD Act, remedies for age discrimination were only available under State or Territory anti-discrimination laws, which all prohibit discrimination based on a person’s age.
Generally, federal, state and territory age discrimination laws are interpreted to preclude discrimination on the basis of a person’s age and age group (indeed in some instances, the applicable legislation prohibits discrimination on the basis of age group as well as age).
Australian State and Territory anti-discrimination laws operate concurrently with the AD Act. Therefore, a person or group will have to decide whether to bring a complaint under the AD Act or the applicable State or Territory law. If a person or group makes a complaint regarding age discrimination under a State or Territory law, they will not also be able to make a complaint under the AD Act. However, if a complaint is first made under the AD Act, the complainant will usually not be prohibited from subsequently initiating a complaint under the applicable State or Territory law.
The AD Act prohibits both direct and indirect discrimination on the ground of age. Age is defined as including age group. Accordingly, an act of discrimination does not have to be linked to an exact age but can be related to the age group of a person.
Direct discrimination occurs when someone treats, or proposes to treat, the aggrieved person less favourably than it treats, or would treat, a person of a different age under circumstances that are the same or materially the same, if the discriminator does so because of the aggrieved person’s age or a characteristic that appertains or is generally imputed to a person of that age.
Indirect discrimination occurs when someone discriminates against the aggrieved person on the group of their age by:
· Imposing or proposing to impost a condition, requirement or practice;
· The condition, requirement 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 t