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Age Discrimination Act 2004 - Youth is no longer to be wasted on the young |
Can an employer appoint someone because they are young and energetic? |
The Age Discrimination Act 2004 (Cth) (the Act) became law on 22 June 2004 making direct or indirect discrimination on the basis of a person's age unlawful. It covers:
- employment and related matters;
- education;
- access to premises;
- provision of goods;
- services and facilities; and
- provision of accommodation.
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| Other Acts, in previous decades, making discrimination unlawful included the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, and the Disability Discrimination Act 1992. Each State and Territory also has anti-discrimination legislation that includes provisions prohibiting discrimination on the ground of age, but as we live in an aging population and we are now facing the impact of aging on our workforce and other areas of public life, there is a need for the federal government to combat age discrimination. This is also evidenced by the fact that age discrimination complaints (under state legislation) already make up a significant proportion of all discrimination complaints received. |
The Act concerns itself with not only employees but also people working on commission, contract workers, partnerships, qualifying bodies, registered organisations and employment agencies. The Act, however, does not cover domestic duties in private households |
The Act prohibits an employer from discriminating against a person on the basis of age when:
- offering employment;
- setting employment terms and conditions;
- promoting, training or offering other benefits; or
- dismissing an employee.
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| The Act states that it is lawful to discriminate against a person on the basis of their age if they cannot satisfy the inherent requirements of an employment position because of their age. In deciding whether or not someone can satisfy the inherent requirements of a position an employer has to consider that person's training, qualifications and relevant experience, their performance in the position (if they are already in it), and all 'other relevant factors' that it may be reasonable to take into account. So, you cannot simply appoint someone because he or she is young, although if an enthusiastic personality is an inherent requirement of a job, you could appoint an enthusiastic person regardless of age. |
The Act also contains a number of general exemptions to these changes in the areas of charities, superannuation, tax, pensions and health. |
Age discrimination legislation at the federal level will introduce a nation-wide complaint-handling, education and awareness-raising regime for age discrimination. It will also send a strong message to the whole community that age discrimination is not to be tolerated and it will be a powerful tool for changing negative attitudes about particular age groups, both young and old. |
The effect of the new federal legislation will be different in each state. For example, the major impact in New South Wales will be to give employees an extra six months to lodge a complaint, since the current time limit for complaints to the NSW Anti-Discrimination Board is six months, compared with 12 months for complaints to the Commonwealth Human Rights and Equal Opportunity Commission. |
Unlike state legislation, the Act uses a 'dominant reason' test, which requires age as the main reason for the discrimination. Under most state legislation, it is enough if age is just one reason for the discrimination. As a result, many complainants may still prefer to use state laws. |
Also, as for other claims for discrimination, compensation is capped at $40,000 per claim under the New South Wales Anti-Discrimination Act 1977 and the Western Australian Equal Opportunity Act 1984. Under the Northern Territory's Anti-Discrimination Act 1972 the ceiling is $60 000, whereas damages are unlimited under federal legislation |
Although a spate of complaints under the new Act is unlikely, given existing age discrimination laws, employers should revisit their practices to ensure that they conform with both state and federal requirements. |
peter.mcnamara@cmlawyers.com.au
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