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 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 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 between 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 accept statistical evidence when considering whether discrimination has occurred. In Virgin Blue Airlines Pty Ltd v Stewart & Ors (2007) EOC 93-457, flight attendants complained that Virgin discriminated against them on the ground of age in their job application selection process. The process included testing for ‘behavioural competencies’, one of which was described as having ‘Virgin flair’ (i.e. making the flying experience fun for the customer). The Queensland Anti-Discrimination Tribunal examined statistical evidence of Virgin’s competency-based selection results and found that they were not age-neutral, as only one employee over 35 (aged 36) had ever been hired. The tribunal concluded on this basis that Virgin’s recruitment process was discriminatory. The decision was upheld by the Queensland Supreme Court: Virgin Blue Airlines Pty Ltd v Hopper & Ors  QSC 75.
Are there any specific exceptions in your law?
Not all discrimination on the basis of age is unlawful. There are a number of areas of exception under the AD Act, including:
· Employment for domestic duties in private households;
· Superannuation, insurance and credit;
· Migration and citizenship;
· Pensions, allowances and benefits;
· Some health programmes;
· Certain acts of religious and voluntary organisations;
· Compliance with specified laws (for example, occupational health and safety legislation);
· Youth wages or compliance with industrial agreements and awards; and
· Positive discrimination (for example, discrimination in the provision of education or health services which provide a bona fide benefit to persons disadvantaged on the grounds of age).
In addition, under the AD Act a significant exemption is available in respect of discrimination in employment. It is not unlawful to refuse to employ a person, or to terminate a person’s employment if they are unable to perform the ‘inherent requirements’ of the particular job because of their age. This exemption only applies to recruitment and termination of employment. Accordingly, during the employment relationship, an employer cannot rely on the ‘inherent requirements’ exemption to treat an employee less favourably because of their age.
The State and Territory laws provide similar exemptions in the area of age discrimination.
The exemptions to the General Protections and unlawful dismissal provisions under the FW Act include:
· Action that is not unlawful under State or Federal anti-discrimination law;
· Action that is taken because of the ‘inherent requirements’ of the position; and
· Action that is taken in accordance with particular religious beliefs in order to avoid injury to the religious susceptibilities of adherents to the religion.
Finally, certain age-based discriminatory practices are permitted by the FW Act, such as special rates of pay for junior employees in awards and enterprise agreements. Otherwise, discriminatory clauses in awards and agreements are unlawful and unenforceable: see e.g. Re Black Coal Mining Industry Award 2010  FWCFB 2192, relating to a clause limiting retirement benefits once an employee reached the age of 60.
The AD Act does not expressly proscribe compulsory retirement, although compulsory retirement is expressly unlawful across various State and Territory jurisdictions. However, another common exemption – otherwise discriminatory conduct undertaken to comply with another law- has the effect that age discrimination legislation operates subject to laws prescribing compulsory retirement ages for certain public officials, judicial officers and other statutory appointees.
Generally, complainants wishing to bring a claim under the AD Act, alleging act discrimination on the basis of having been compulsorily retired from work, would need to utilise the general prohibition against age discrimination in employment.
Alternatively, at federal level, a complainant may bring a claim under the General Protections Provisions or unlawful termination provisions of the FW Act.
In Qantas Airways Limited v Christie  HCA 18, the only High Court of Australia decision to date concerning age discrimination, the Court considered the scope of the ‘inherent requirements’ exemption. In this case, Qantas argued that its policy requiring pilots to retire at the age of 60 was a genuine and reasonable inherent requirement of being a pilot because:
· There were safety concerns associated with allowing pilots to continue to work after turning 60; and
· The Convention on International Civil Aviation barred captains aged 60 or over from flying many of the routes which Qantas pilots might be asked to fly.
The High Court found in Qantas’ favour on the basis of the second argument – that is, it was an inherent requirement of a pilot’s position to be able to fly over countries which were signatory to the Convention.
This decision is important because it establishes the principle that the ability to perform the inherent requirements of the position is not limited to being able to physically perform the duties. The High Court held that the ability to perform the inherent requirements of the position also required the employee to do the job within the particular operational setting of the employer.
In another case involving Qantas, Blatchford v Qantas Airways Limited (1997) EOC 92-888, it was held that selection criteria for new employees which are based on age are likely to be found discriminatory. In this case, applicants for the position of pilot were subject to a particular criterion which assigned points to the applicants based on their age (applicants aged 21-24 years scored four points; those aged 32 years and over scored one point). Qantas argued that older applicants would have a shorter period of employment and so the airline would have less opportunity to recoup its training costs. In concluding that application of this selection criterion involved unlawful age discrimination, the New South Wales Equal Opportunity Tribunal concluded that anti-discrimination law did not make any exceptions for economic rationalism.
In another case considering the legality of recruitment criteria, Dewan v Main Roads WA (2005) EOC 93-362, the Western Australian Equal Opportunity Tribunal held that a job advertisement that sought to recruit ‘recent graduates’ did not amount to age discrimination against graduates over 25, even though a majority of recent graduates would be younger than 25. Accordingly, the Tribunal dismissed a complaint from a 45 year-old engineer of indirect age discrimination. The Tribunal found that the emphasis on recent graduation could apply to different age groups and did not necessarily demonstrate an intention to recruit young employees.
Other recent Australian age discrimination decisions include:
· Talbot v Sperling Tourism and Investments Pty Ltd  NSWADT 67: successful age discrimination claim by bus driver told to cease driving once he reached his early 70s.
· Willmott v Woolworths Limited  QCAT 601: large national employer’s recruitment application form, requiring applicants to provide their date of birth, found to be discriminatory under Queensland age discrimination prohibition.
Allen v Newlands Coal Pty Ltd & See (No 2)  QCAT 522: mine worker failed to substantiate claim that employer denied him training opportunities on the basis of being over 50 years of age.