It’s a type of discrimination that has potential to affect us all – as the saying goes, growing old is inevitable (but of course, growing up is optional!). 

In April this year, a National Inquiry was launched into Employment Discrimination Against Older Australians and Australians with a Disability by the Australian Human Rights Commission (AHRC).[1]  The AHRC has just released anIssues Paper outlining the range of issues that will be examined by the Inquiry, due for completion in July 2016.

The launch of the Inquiry followed a national survey into age discrimination within the workplace by the AHRC.[2]  The survey found that 28% of workers over the age of 50 had experienced age discrimination and, interestingly, the prevalence of age discrimination increased as income levels decreased.  It also found that 58% of Australians over the age of 50 years looking for paid work had experienced age discrimination.

The recent release in March 2015 of the Intergenerational Report 2015 – Australia in 2055 also squarely put age discrimination on the table.  This report predicts that the number of Australians aged over 55 is expected to more than double by the year 2055.  Further, it stated that life expectancy will continue to increase, getting closer and closer to the age of 100.  If we continue to retire around the same age as we do currently, this will mean spending almost half of our lives in retirement!

However, the report predicts that employees will stay in employment longer [3] – and this will have a significant impact on the workplace.  These predictions mean that there will be an increasing focus on age discrimination within the workplace by the Federal Government and by regulatory bodies such as the Fair Work Ombudsman and the AHRC. 

In this Alert, partner Andrew Tobin and solicitor Adele Garnett consider relevant case law in the age discrimination space, and why employers need to keep it fairly and squarely on their radar. 

Relevant cases

Direct and indirect age discrimination within the workplace is unlawful (unless an exception or exemption applies).  Employees have a number of options to pursue remedies if they have been subject to such behaviour, including under the Fair Work Act 2009 (Cth), Age Discrimination Act 2004 (Cth) and the relevant state or territory anti-discrimination legislation.  Age discrimination case law reveals that discrimination can be blatant and direct, but also subtle and indirect and therefore difficult to prove. 

The decision in Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [4] provides an example of blatant age discrimination in connection with work.  In that case the employer was found to have unlawfully treated a long term employee adversely due to his age.  The employer, relying upon the advice of their accountant, stated in the employee’s termination notice that it was “the policy of the Company that we do not employ any staff that attains the retirement age which in your case is 65 years”.  The Company and its directors were ordered to pay penalties and compensation totalling nearly $40,000. 

However, in considering what penalties were appropriate, Judge Burnett noted that the breach reflected a “general misunderstanding within the community about retirement and the retirement age”.  He further stated that there may be some confusion within the community between compulsory retirement and the pension age which is currently 65 years of age.[5]  For most people, there is no compulsory retirement age in Australia, and it is unlawful to force retirement upon an employee because of their age.  There are some exceptions, for example, in the case of judges and international airline pilots.

More subtle and indirect discrimination can be a result of flawed processes or biases that are held by individuals, even sometimes unconsciously, which are more difficult to prove.  However, in Virgin Blue Airlines Pty Ltd v Hopper & Ors [6]the applicants successfully relied upon statistics to support their case of indirect discrimination – just one out of 750 applicants for flight attendant positions aged over 35 was successful in securing a job with the airline over a 12 month period.  The appeal court found that the selection criterion of “Virgin Flair” was a subjective measure which allowed inexperienced and young assessors to favour people who were similar to themselves.  Virgin Blue was ordered to pay each of the applicants between $7,000 and $12,000 in damages and to pay their legal costs. 

Interestingly, the collection of unnecessary information upon which discrimination might be based is also unlawful – even if there is no actual discrimination.[7]  In a more recent case, Willmott v Woolworths Ltd,[8] Mr Willmott claimed that Woolworths’ online job application system unlawfully and unnecessarily required applicants to provide their age.[9] Woolworths’ defence was that the information was reasonably required for a purpose that did not involve discrimination (a defence under the relevant Act), as some of their jobs can only be undertaken by people who are 18 years and over and there are differing rates of pay for those under 21 years. 

This was rejected by the Tribunal, which held that for positions that did require applicants to be over 18 years a simple question as to whether the applicant was over 18 years would suffice.  Further, there was no need for age related information for pay rates and entitlements until a person had actually been offered a position.  Mr Wilmott was awarded $5,000 in damages and Woolworths took steps to change their online application form and processes.

What do employers need to do?

With the predicted ageing workforce, there are significant gains to be made by employers who plan now for encouraging employees to continue working beyond traditional retirement ages.  The Intergenerational Report 2015 – Australia in 2055 predicts that there are gains to be made in GDP and income growth by removing barriers and supporting workforce participation in older age groups. 

This increasing focus on age discrimination both by governments and regulators means that now is the time to review your employment practices to ensure there is no underlying or unintended age discrimination and to prepare for the issues related to an ageing workforce and how best to utilise older Australians. 

What should employers consider in addressing these issues?

  • Review your recruitment forms and selection procedures to ensure that they are valid and defendable, and only ask for information that is required at the time it is required;
  • Consider developing policies regarding flexible working arrangements for older employees.  Under the Fair Work Act 2009 (Cth) employers are required to consider requests for flexible working arrangements for employees who are aged 55 or older – and such a request can only be refused for reasonable business grounds.[10]  Developing policies allows employers to plan for and manage such requests (which are likely to increase in years to come as the workforce ages!) and give guidance to employees as to what might be achievable for the business;
  • Recognise the value of your older employees.  The CSIRO Our Future World: Global Megatrends Report [11] has indicated that the ageing population is a “megatrend”, i.e. a trend that will significantly affect society in the coming decades. This report states that older employees are a “hidden treasure” who have a wealth of knowledge and wisdom and they should be seen as an asset.  This may require businesses to have changing models of retirement which include tapering retirement, and provide options for transition into alternative roles such as mentoring;
  • Ensure that you have appropriate injury prevention strategies (particularly in physically demanding or repetitive tasks) and that you have defendable processes for dealing with employees who are no longer able to do their job for health reasons. 

However, employers also need to note that there is little conclusive evidence to suggest that older workers are at a greater risk of injury, and actually the ABS Work Related Injuries report found that workers aged over 65 had the lowest rate of work-related injury of all the age groups.[12]  It will therefore be a matter of having injury prevention strategies for all employees, and then dealing with particular employees’ injuries/health on a case by case basis. 

As older workers’ representation in the workplace continues to increase, there will be significant benefits for workplaces who actively value and plan for retaining them.  Employers who are ahead of the game will ensure that they aren’t bitten by costly legal claims and are prepared for the Government’s increasing policy focus on the area – and you may also be setting in place policies which will help you in the years to come!