One of the key issues being considered is that of age discrimination. On 15 April 2015, the Australian Human Rights Commission launched Willing to Work, a National Inquiry into employment discrimination against older Australians and Australians with a disability. The terms of reference of the National Inquiry acknowledge that discrimination against older people is a systemic problem and “a considerable barrier to their enjoyment of human rights”.
This article considers the issue of age discrimination for older people and how protection from discrimination is fundamental in removing barriers to participation in the workforce.
Legal framework for protection against age discrimination
In Australia there is a legal framework for the protection of older workers against discrimination. It is unlawful for an employer to discriminate against an employee on the basis of age. Age discrimination in the workforce can manifest in hiring and firing, in the terms and conditions of their employment, in promotion, transfers, training, or in subjecting the employee to any other detriment or less favourable treatment on the basis of age. At the federal level, this protection is enshrined in the Age Discrimination Act 2004 (Cth) (ADA). The ADA is the most recent of all the federal anti-discrimination laws and was specifically introduced as a response to Australia’s ageing population. Its principal objective is to eliminate discrimination on the basis of age, and directly address issues arising from “negative stereotypes about older people” and the way in which these stereotypes manifest in public life.
The ADA sought to align federal anti-discrimination laws with equivalent state and territory legislation, which all prohibit age discrimination in work and work-related areas. The Fair Work Act 2009 (Cth) (Fair Work Act) also prohibits adverse action on the basis of age in its general protection provisions.
Of course, exceptions apply. It is not unlawful discrimination to adopt special measures for older workers. For example, providing additional termination benefits to older workers as compensation for being terminated at an older age is not considered unlawful discrimination. This “positive discrimination” acknowledges the greater disadvantage older workers may face in seeking alternative employment. In the ADA and the Fair Work Act, it is not unlawful to discriminate if less favourable treatment on the basis of age relates to the inherent requirements of the employee’s position.
The Treasury 2015 Intergenerational Report highlighted that between the years 1978–79 and 2013–14, Australian workforce participation of people aged between 55 to 64 years increased from 45.6 per cent to 63.8 per cent. Moreover, while the overall proportion of the population in the workforce is likely to decline, workforce participation rates of people over 65 years is predicted to rise, from 12.9 per cent in 2014–15 to 17.3 per cent in 2054–55. This, in part, is due to changes in eligibility criteria for the Age Pension.
It is clear that as the workforce ages, people are engaging in paid employment for longer. Retaining the productivity of older employees is seen as an important factor in facing economic challenges resulting from a declining workforce. However, this brings additional challenges for employers in managing their workforce. These include addressing existing perceptions about older workers’ ability to adapt to change within the workplace, whether they can perform their daily tasks safely, maintaining their cognitive ability, and addressing widespread perceptions regarding “appropriate” retirement ages. The aforementioned National Inquiry has been specifically tasked with examining “practices, attitudes and Commonwealth laws that deny or diminish equal participation in employment of older Australians and Australians with a disability”.
Research by the Australian Human Rights Commission has confirmed anecdotal evidence that age discrimination for those over 50 years of age is widespread in Australia. The 2015 National Prevalence Survey of Age Discrimination in the Workplace found that age discrimination was indeed prevalent in the workforce: a quarter of those surveyed had experienced some form of age discrimination in the last two years, and 80 per cent suffered negative consequences of that discrimination. The survey also found that the situation was worse for job-seekers: 58 per cent of those surveyed experienced age discrimination in applying for work, and 44 per cent of those who were not working in the past two years experienced “negative perceptions of [their] skills and ability to learn”.
Perceptions of older workers and its impact on workplace participation are evident in several age discrimination cases where breaches of discrimination law were found, and older worker’s rights upheld. For example, in 2011, the New South Wales Anti-Discrimination Tribunal upheld a claim by a 75-year-old tour bus driver of age discrimination. The employee’s dismissal letter referred to his age and the employer’s view that it must be physically difficult for him getting in and out of large buses and driving for 12 hour shifts. His employer claimed his dismissal was due to poor performance as well as his age. However, neither warnings nor an opportunity to improve his performance had been provided to the employee, unlike other younger drivers with similar issues. The Tribunal considered his treatment demeaning, paternalistic, offensive, and disempowering. It awarded $5,323 for loss of income and $20,000 in general damages.
In 2005, Virgin Blue Airlines (Virgin) was found to have discriminated against eight female flight attendants aged between 36 and 56 years who applied for cabin crew positions with Virgin and were unsuccessful. The Queensland Civil and Administrative Tribunal (QCAT) considered that Virgin’s recruitment process and selection criteria amounted to unconscious bias against older job applicants. This bias was demonstrated in the requirement that applicants possess “Virgin flair” as outlined in selection criteria for cabin crew positions. “Virgin Flair” was defined by the company as “the ability to have fun”. The application of this criteria resulted in a preference to hire younger people around the same age as the employees who were involved in the recruitment process. Indeed, Virgin conceded that up until 2002, they had never hired a cabin crew member over the age of 36. The applicants were awarded compensation of between $7,000 and $12,000. The Queensland Supreme Court upheld the Tribunal’s decision on appeal.
In 1998, QCAT upheld a claim of age discrimination against a job applicant, who claimed that when he telephoned to arrange an interview, the employer asked for his age as, “we’ve only got a bunch of young blokes here”. When the applicant refused to disclose his age, he was told “if you don’t tell me how old you are we’ll call it quits right now”. QCAT awarded $11,000 in compensation for hurt and humiliation.
Each of these cases illustrate that employers held preconceived notions about the ability of workers’ performance based on older age. Correlations between the age of the employee and the laborious nature of the work, their ability to meet age-biased selection criteria, as well as their ability to fit in with younger workers were found to be in violation of their rights to actively participate in the workforce. Legal protection from age discrimination meant that these employees were able to seek redress and compensation for the conduct.
Older people face numerous challenges in the workplace due to perceptions and prejudices about their professional abilities, as well as their capacity to adapt and learn. Where those perceptions and prejudices manifest themselves in age discrimination, older workers are protected by law against such discrimination, unless an exception applies.
It is hoped that the National Inquiry will shed more light on this issue and provide robust recommendations for removing barriers for older people in the workplace, to best uphold their right to freedom from discrimination on the basis of age.
Jennifer Jones is a Senior Legal Adviser at the Victorian Equal Opportunity and Human Rights Commission. Any opinions expressed in this article are the authors’ own and do not constitute legal advice.
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