Discrimination can be defined as a consideration or treatment, which can be favorable or discriminatory against an individual, by being a part of a group or category or on the basis of attributes like the race, color, belief, age, gender, faith, sexual orientation, religious belief or a disability, amongst the other things. When a person is treated differently, on the basis of their age, or in other words, when an individual is stereotyped on the basis of their age, it is known as age discrimination (Becker, 2010). Age discrimination is often directed towards the elderly or the young people. In case of age discrimination, a person is treated in a less favorable manner in comparison to a person in the similar circumstances, just because of difference in age of the two people. Only when a person is treated in an unfavorable manner, is a case of age discrimination raised (Australian Human Rights Commission, 2017).
Even the workplaces are not safe from age discrimination and it is often stated that there is a presence of age employment discrimination in Australia (Sargeant, 2016). In the following parts, the presence of age discrimination in the nation has been highlighted, and the requisite safeguards provided to the individuals, along with the success or failure of such safeguards, has been evaluated.
Presence of Age Discrimination
On April 15th, 2015, “Willing to Work” programme was launched by the Australian Human Rights Commission, which was a national inquiry with regards to the employment discrimination which the older people and the people with disabilities faced in Australia (Australian Human Rights Commission, 2016). This national inquiry acknowledged that older people were discriminated against and this was a systematic problem which was a major barrier in the enjoyment of such elderly people’s human rights (Jones, 2015).
As per one of the recent reports, the workers in the nation were more likely to face age discrimination, translating into carrier barriers, as compared to USA or UK. 4,500 global job seekers were polled by the ManpowerGroup Solutions in which 37% of the Australians firmly perceived that their age held them back, and this percentage for the people of USA was only 26 and for UK, it was 34. In view of Dianne Fletcher, who is the chief executive of Sarina Russo Job Access believed that the stereotyping on the basis of age stems from a person’s bad experience, rather than research or facts. It is often believed that the elderly are over qualified and cannot work as quickly as the young people and also have issues in adapting to the latest technology. Similar negative stereotypes have been formed about the young workers, who are believed to lack the right skills when they come straight out of schools and are always looking to move on towards the next big thing. It is also assumed that the young people are not ready to take instructions or buckle down and also lack the appropriate manners (Burgess, 2017).
Another survey was conducted in this regard where nearly one third of the Australians believed that age related discrimination started as early as forty-five years of age, and this perception was for the employees looking for work or already employed people during the past twelve months. This was a national survey in which a mix of 2,100 men and women over the age of 45 were the respondents, in addition to the 100 telephonic interviews. The participants of this survey also stated that the promotion or training opportunities were limited or nil and the organizations in which they worker, always undervalued them as a result of their age. This was in addition to difficulty they face in securing work as a direct result of their age. The reasons were held to be similar in this survey also, where the old people were considered to have outdated skills, coupled with the lack of desire to learn new things, and even when such desire was present, the speed was too slow to present the opportunity to the old people. And in forming such opinion, the capabilities and experiences of the aged people were out rightly rejected (Irving, 2017).
As per one of the reports, the companies are bribed by the government to take the older workers and the companies are paid $10,000 per old employee. Even though the government hoped to attract over 32,000 people to take benefit of this scheme, less than 3,000 got involved. The intergenerational report of the government shows clearly that the older people are required to work for longer duration. This is considered as a financial imperative which is required to boost the productivity. One of the strategies of the government is to increase the pension age of individuals from July 2025 would increase from sixty seven years by 6 months in every 2 years, till the time, this age reaches seventy in the July of 2035. However, a flaw in this grand plan is that the older workers are being reduced at an alarming rate from the workforce. And once an elderly leaves the job, it becomes difficult for them to get back in the workforce due to the widespread discrimination, which led to their retention in the very first place. And the employment discrimination has been acknowledged by the government, which has the possibility of derailing its plans (Brice, 2016).
Virgin Blue Airlines, in 2005, was held to have discriminated against 8 of their female flights attendants who were between the ages of 36 and 56, when their application for the cabin crew position was held as unsuccessful by the company (Sasphire Legal, 2016). It was held by the QCAT, i.e., the Queensland Civil and Administrative Tribunal that the recruitment process, along with the selection criteria of the company, contained an unconscious biasness against the old job applicants. The applicants in this recruitment were required to have the Virgin Flair, was per which they needed to have the ability of having fun. The preference in applications was given to those, who were young (Australasian Legal Information Institute, 2006a). Due to the presence of age discrimination, the applicants were awarded compensation ranging from $7,000 to $12,000 (Australasian Legal Information Institute, 2006b). And this decision was upheld by the Queensland Supreme Court on an appeal (Australasian Legal Information Institute, 2014).
The Age Discrimination Act, 2004 is an act of the Commonwealth and is a federal law of the nation, which puts a prohibition on age discrimination. Before this act was formulated, in cases of age discrimination, the remedies were available under the Territory or the State law related anti-discriminatory laws (Cobb, 2017). Presently, these State and Territory laws operate in a concurrent manner, to the Commonwealth act. It prohibits indirect and direct form of discrimination with regards to the age of an individual; and in defining the age the age group is also included. So, the discrimination does not specifically have to be against a particular age, and can be against an age group (Perlitz and Hutton, 2010).
An incident of direct discrimination takes place when an individual is treated or is proposed to be treated in a less favorable manner in comparison to the manner in which another person in similar circumstances is treated, and the only difference between the two individuals is the age of the individual. This occurs in such a manner that the aggrieved person feels discriminated and becomes aggrieved, owing to a partial treatment, based on the person’s age. An incident of indirect discrimination takes place when an individual is discriminated against by the imposition of a practice, condition or practice, which is not reasonable ad which has the likely effect of being detrimental or putting the individual in a disadvantageous position (O’Loughlin, Browning and Kendig, 2016).
Earlier, this act required the aggrieved party to show that the age was a dominating reason for the discrimination which took place. However, in the year of 2009, this test was removed so that the onerous evidentiary burden could be removed. Now, the age only has to be a substantial reason, instead of being the dominating reason for the undertaken discrimination (Aged Care Insite, 2011). Apart from choosing between the application of the State of Territory anti-discriminatory laws, and the Commonwealth act, the applicants are also required to make a claim under the Fair Work Act 2009, which is another Commonwealth Act, for the discrimination which took place in the context of employment (Corrs Chambers Westgarth, 2016).
The Fair Work Act, through its general protections prevent the employers from undertaking such action, which can be deemed as adverse, against a prospective or a present employee, for the reasons of the age of the person. For instance, refusal of employing a person on the basis of their age, or altering their position in a prejudicial manner, would be deemed as workplace discrimination. A claim of unlawful termination can also be made by an individual when he/she has been terminated due to their age (Hor and Keats, 2009).
The Age Discrimination Act disallows a person from discriminating other based on their age, with regards to the disposal of land, education, provisions of accommodation, facilities, goods and services, access to premises, and all of the aspects of employment, which include termination, recruitment practice, access to training and promotion opportunities and the conditions of employment. The protection under this act is available to all kind of workers, including agents and contractors, casual and part time employees and the full time employees as well (Cobb, 2017).
The Age Discrimination act does not provide any remedy for the age discrimination. An applicant is required to give a written complaint as per this act and get the same investigated and resolved by a cost-free informal process whereby the matter is conciliated through the Australian Human Rights Commission (AHRC). The power of determining the occurrence of unlawful discrimination is not available with this agency. Though, in case a matter remains unresolved after a complaint has been made to the AHRC, the matter can be pursued by the applicant in the Federal Circuit Court or in the Federal Court (Corrs Chambers Westgarth, 2016).
The provisions pertaining to the remedies can be found in the Human Rights and Equal Opportunity Act 1986 (Cth). Hence, an order can be made by the court after establishing the presence of unlawful age discrimination. The defendant may be required to pay the damages to the plaintiff; to discontinue such discriminatory behavior; re-employ or employ the plaintiff; perform the reasonable course of conduct for addressing the damages or losses which the plaintiff suffered; and lastly, the termination of agreement or contract to be ordered to be varied. Similar remedies are provided through the State or Territory based anti-discriminatory laws. Though, in Western Australia and in New South Wales, a cap has been placed over the amount of damages, which is $40,000 and $100,000, respectively (Corrs Chambers Westgarth, 2016).
In discriminatory complaints, the most common remedy is the awarding of damages. However, there are cases, where softer remedies are also awarded, for instance, offering public apology, reviewing or developing policies or procedures. The raison d'être behind awarding the awarding of remedies to the applicant is to take them in such position, where they would already have been, in case the discriminatory incident not taken place. So, the compensations are broadly awarded in two different heads, the general damages and the special damages. Under the general damages, the compensation is awarded for the loss of dignity, hurt or the humiliation which the applicant suffered. The special damages are awarded for the economic loss which is quantifiable. For instance, if an applicant can show successfully to the court that the reason for termination of employee was discrimination, in such cases, the applicant can apply for both past and the future loss of wages (Corrs Chambers Westgarth, 2016).
When the general protection provisions under the Fair Works Act are alleged to be contravened, the matter is initially considered by the Fair Work Commission. Though, the employees have an option of going directly to the Federal Circuit Court or in the Federal Court, in case they so wish, apart from such cases where the discrimination which has been alleged is in form of dismissal. This is because in such cases, it becomes mandatory to apply to Fair Work Commission. The maximum penalty which has to be paid for an individual, when the matter reaches court is $10,800 and for the corporate employer, the amount is $54,000. A reinstatement or a compensatory order can also be ordered in such cases. With regards to the general protection remedies pertaining to the age discrimination, which results from the dismissal of an individual, the leading remedies relate to the reinstatement, coupled with monetary compensation or back pay. The court has to regard the income of the employee along with the likely income at the time of dismissal and at the time of reinstatement, when a reinstatement or back pay is ordered. And the same can also be awarded without back pay (Corrs Chambers Westgarth, 2016).
The FWO, or the Office of the Fair Work Ombudsman, enforces and monitors the compliance of the employer to the Fair Work Act. FWO is instrumental in regulation of the discriminatory behavior as the same has the power of prosecuting the employers on behalf of the individual employees. The FWO also has the flexibility of entering into Enforceable Undertakings for resolving the complaints of age discrimination with the employers, who affirm to different remedies as being the opted alternative in place of litigation. The jurisdiction of FWO, though, is restricted to investigating the age discrimination, as claimed in the workplace, and as has been defined under the Fair Work Act, only when the federal and state laws do not exclude the act’s operation (Corrs Chambers Westgarth, 2016).
In 2014, the first successful litigation with regards to age discrimination was conducted by the FWO. The orders by Federal Circuit Court in Fair Work Ombudsman v Theravanish Investments  FCCA 1170 were given against the operator of the restaurant and the directors it for a value of around $40,000 in penalties and employee compensation (Fair Work, 2014). As the employer did not have an employee retirement policy, it had terminated the services of its long time serving employee, as soon as the employee turned 65 (Koelmeyer, 2016).
Commonality of Claims
As per the data, in 2013-14, 184 complaints were received by the AHRC; and since 2004 around 100 to 200 complaints of age discrimination are received by the body. 60% of the complainants are over the age of 45. Though, in comparison to disability discrimination complaints and sex discrimination complaints, which stood at 40% and 20% respectively, the age discrimination complaints amount to below 10% of to total discriminatory complaints. And in this, 45% go through conciliation each year. 75% of the conciliated cases for the period of 2013-14 were settled (Corrs Chambers Westgarth, 2016).
The above discussion throws a light over the age employment discrimination which is present in Australia. Numerous surveys have thrown light over the presence of age discrimination amongst the workforce in the nation and have even highlighted the efforts of the government in this regard. Through the various legislations, remedies are provided for age discrimination and up to a certain extent, these prove to be quite helpful, as most of the cases are resolved and remedies awarded. However, even though legislations protect from such discrimination, the incidents of age employment discrimination are continued and require more stringent steps to deal with the matter.
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