What is the Age Discrimination Act 2004 Australia?
|
In Australia, it is unlawful to discriminate on the basis of a number of protected attributes including age, disability, race, sex, intersex status, gender identity and sexual orientation in certain areas of public life, including education and employment. Australia's federal anti-discrimination laws are contained in the following legislation: Show
The department also administers the Australian Government Guidelines on the Recognition of Sex and Gender. The guidelines outline a consistent gender classification system and standard of evidence required to establish or change gender on personal records for Australian Government departments and agencies. Standards under the Disability Discrimination Act 1992The Attorney-General's Department assists the Department of Infrastructure, Regional Development and Cities; Department of Industry, Innovation and Science; and Department of Education and Training in the administration of the standards under the Disability Discrimination Act 1992. The standards concern public transport, access to premises and education:
The disability standards are regularly reviewed by the relevant departments. More information is available from the following links:
Complaints of unlawful discriminationThe Attorney-General and the Attorney-General's Department cannot provide legal advice to the public and cannot investigate any complaints of unlawful discrimination or alleged breaches of human rights. Complaints of unlawful discrimination can be lodged with the Australian Human Rights Commission and relevant state and territory agencies. The Australian Human Rights Commission has the statutory power to receive, investigate and conciliate complaints of unlawful discrimination under Australia's anti-discrimination legislation. If you believe you have been unlawfully discriminated you can lodge a complaint with the commission. More information about the complaints process, and contact details, can be found on the Australian Human Rights Commission website. States and territoriesEach state and territory has also enacted anti-discrimination legislation. Individuals can lodge complaints about discrimination, harassment and bullying at the state and territory level depending upon the circumstances of the complaint with the relevant agency in that state or territory. For more information, select the relevant state or territory below: Despite existing State and Territory laws, age discrimination is an increasingly significant problem for Australian society. In the year 2000, the Human Rights and Equal Opportunity Commission's report "Age Matters: A Report on Age Discrimination" identified many areas in which age discrimination occurs. This report and many others highlight the negative consequences of age discrimination on both the economy and on the health, financial and psychological well-being of individuals. The Federal Government going back as far as the 2001 election gave an election commitment to develop legislation to prohibit age discrimination and to eliminate, as far as possible, age discrimination in key areas of public life. The Federal Government announced in August 2002 that it would seek to enact legislation regulating age discrimination to compliment existing legislation prohibiting disability discrimination, sex discrimination and racial discrimination. Taken together with a substantial ageing inAustralia's working population, the then proposed legislation was to put the issue of age discrimination at the forefront of employment law issues. Older workers are choosing to stay on longer in the workforce. Recent figures show that most men in their early 60's are now choosing to stay in the workforce in a historic reversal of the previous trend towards early retirement. Bureau of Statistics Data show dramatic changes in the number and proportion of people in their 50's and 60's who are staying at work. Despite the increase in older persons remaining in the workforce, significant cultural change is needed to break down stereotypes about, in particular, older workers and retirement, if Australia is to respond effectively to the challenges of dealing with older workers remaining in the workforce. For too many older workers, retiring early is not always voluntary � older workers, particularly men, have been vulnerable to downsizing and restructuring. In addition to downsizing and restructuring, there is a general perception in the community that age is a barrier to employment prospects. Recruitment is the stage where age discrimination is most visible. Many older workers perceive that their applications are filtered out on the basis of their age. Anecdotally, some recruitment companies have indicated to applicants to leave their age off their job applications. This is of real concern. Need for Age Discrimination Legislation The concept of age discrimination is not new. All States and Territories have for some years, made discrimination on the ground of age unlawful through anti-discrimination and equal opportunity laws. The Workplace Relations Act 1996 (Cth) ("the WR Act") also provides some redress where a person's employment is terminated because of their age (see section 170 CK (2)). Section 170 CK(2) of the WR Act states that an employer must not terminate an employee's employment for one of the stipulated reasons or for reasons including any one of the stipulated reasons, which include: "(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin". Since 1990 the Human Rights and Equal Opportunity Commission ("HREOC") has had the power to inquire into and attempt to conciliate complaints alleging age discrimination in employment. However, unlike complaints made under the Disability Discrimination Act 1992 (Cth), Sex Discrimination Act 1994 (Cth) and Racial Discrimination Act 1975 (Cth), complaints of age discrimination do not currently give rise to an enforceable legal right or remedy. If HREOC finds that an act or practice constitutes age discrimination, action taken by HREOC is limited to preparing a report with recommendations which is provided to the Attorney-General for tabling in Federal Parliament. Since 1996, a number of reports under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) concerning discrimination based on age in employment and occupation have been tabled. Although the Commonwealth has very broad powers, they relate mainly to the conciliation of discrimination claims and the promotion of educational programs. Enacting age discrimination legislation at the Federal level will not only introduce a consistent, 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 will be a powerful tool for changing negative attitudes about particular age groups, both young and old. The commitment to develop this legislation reflects the high level of importance that the Commonwealth Government gives to the prevention of age discrimination. The development of comprehensive national age discrimination legislation that protects persons of all ages in a range of areas of public life putsAustraliaat the forefront of international initiatives to eliminate age discrimination. New Law The Age Discrimination Bill 2003 was given Royal Assent on 22 June 2004 and is now law � the Age Discrimination Act 2004. What is Age Discrimination? Age discrimination occurs where an opportunity is denied to a person solely because of his or her chronological age where age is irrelevant to the person's ability to take advantage of that opportunity. Within employment, age discrimination commonly takes place in the context of recruitment, promotion, training, retirement and redundancy decisions. As will be seen further in this paper, stereotypes and negative attitudes towards mature workers often consciously and sub-consciously affect decision making choices in employment. Objectives of the Age Discrimination Act 2004 There are several objectives of the Commonwealth Government introducing this new legislation relating to age discrimination. A key objective is to promote attitudinal change across society. This attitudinal change is needed so that people are judged on their actual capacity rather then age being used as a proxy for capacity. A specific objective of the Age Discrimination Act (the AD Act) flowing from this general objective is to reduce the incidence of discrimination in the workplace. Further, another specific objective is to respond to demographic change by removing barriers to older people participating in society, particularly in the workforce and changing negative stereotypes about older people. The Occurrence of Age Discrimination Over the past few years, there has been a raft of official and unofficial reports and academic research that have documented the difficulties faced by older workers. A recent survey by Drake Personnel of the top 500 employers revealed that none would choose to employ managers and executives in their 50's, and 65% of employers said this group would be the first to go in the event of retrenchments. Research has similarly demonstrated that older workers often receive unequal treatment on a range of work practices such as lower levels of training and retraining, and lower promotion rates. Why does Age Discrimination Occur? Discrimination against older persons is generally based on stereotypes and assumptions about their fitness and ability. Common stereotypes among employers include perceptions that the skills of mature-age job seekers are outdated and that older people are harder to train. Many employers also assume that mature age persons are technologically illiterate and are either unable or unwilling to adapt to new technology or the ongoing changes that are inherent in the current work environment. Another common reason for discrimination against mature age workers is the perception that they will not fit into the "young and dynamic" image that the company wishes to project. Unfortunately, encounters of age discrimination create and reinforce perceptions among mature workers that employers find them too old, that their skills are outdated, and that they are unwanted in the workforce. In addition to the personal, emotional consequences that such a perception has for an individual, it discourages many older persons from attempting to remain in or re-enter the workforce and becomes another means by which mature age workers are arbitrarily denied employment opportunities. Areas that are covered by the Age Discrimination Act 2004 The AD Act prohibits discrimination on the basis of age in key areas of public life including:
Nature of Prohibited Discrimination The AD Act prohibits direct and indirect discrimination on the basis of age along with other discrimination already prohibited in legislation including the Disability Discrimination Act 1992 (Cth), Sex Discrimination Act 1994 (Cth) and Racial Discrimination Act 1975 (Cth). Direct age discrimination occurs where, because of a person's age, the discriminator treats the aggrieved person less favourably than they would treat a person of a different age. Indirect age discrimination occurs where the discriminator requires a person to comply with a requirement or condition with which a substantially higher proportion of persons of a different age are able to comply, which is not reasonable, having regard to the circumstance of the case, and with which the aggrieved person does not or is not able to comply. Importantly, the AD Act defines "age" to include an age group, so that an act of discrimination need not be linked to a specific age but can be related to the age group of a person. The AD Act recognises that discrimination on the ground of age includes situations where discrimination is based on a characteristic that is generally imputed to a person of that age. An example, referred to earlier, is where a characteristic generally imputed to an older person is lack of computer skills. Broad Definition of Employment Whilst a number of areas of public life have been targeted (see below), a particular focus of the AD Act is employment and related matters. The reason for this is that this is one of the most problematic areas for age discrimination. Employment is broadly defined and includes "recruitment, training, promotion, redundancy and retirement". As with State and Territory anti-discrimination legislation, the AD Act extends to contract workers and industrial organisations. It also applies to employment agencies as a result of the growth in their use in more recent times. The definition of employment is broad and includes:
Exemptions Inherent Requirements of the Job Age is a factor that in some circumstances may be a reasonable basis upon which to base an employment decision. An obvious example of this is where physical fitness is a requirement of the job which a higher proportion of younger employees would be able to fulfil. For this reason, the AD Act includes an express exemption for age discrimination in relation to employment that is based on the "inherent requirements" of the job. This is consistent with current State and Territory anti-discrimination laws. The AD Act states that in deciding whether the person is unable to carry out those inherent requirements because of his or her age, the following should be taken into account:
Junior Employees Youth wages (that is to persons who are under 21) are also maintained to protect the position of junior employees in the labour market. Acts done in accordance with Industrial Awards, certified Agreements and Workplace Agreements. Further, acts done in accordance with industrial instruments including awards and certified agreements will also be exempt. This could include, for example, a provision in an award or certified agreement which seeks to benefit employees in a particular age group such as in redundancy or severance schemes. Positive Discrimination This is where age is used to address disadvantages or to meet the particular needs of any age group. Some age discrimination has a beneficial purpose, such as to alleviate, disadvantage or to meet the special needs of a particular age group. An example would be extra help to find work for an older person who has been unemployed for a long period of time. There are many Commonwealth Government initiatives such as labour market participation programs which do exactly that. As the legislation is intended to be beneficial legislation, it is not desirable to override such positive measures. Similar exemptions are provided in all current State and Territory anti-discrimination laws. Vicarious Liability The provisions of the AD Act include "vicarious liability" provisions. In simple terms, the vicarious liability provisions attribute most acts of discrimination done by employees or agents in the course of their employment to the employer unless the employer took all reasonable steps and exercised due diligence to prevent the employee or agent from doing the act in question. Similar general principles underline all Federal, State and Territory anti-discrimination legislation. Offences Victimisation The AD Act makes it an offence to victimise individuals who make, or intend to make, or otherwise support, a complaint of age discrimination, in a similar fashion to the offences for victimisation under existing Federal, State and Territory anti-discrimination legislation. Advertising The AD Act makes it an offence to publish or display an advertisement that indicates an intention to discriminate on the ground of age. Overlap with Disability Discrimination The AD Act will not create a second or alternative avenue for complaints about disability discrimination where the complaints are properly covered by the Disability Discrimination Act 1992 (Cth). An overlap between the two pieces of legislation is possible where a person has a disability that is, or could be related to their age, such as impaired hearing or mobility. In these cases, the complaints must be dealt with under the Disability Discrimination Act 1992 (Cth). However, if a person is discriminated against on the grounds of both disability and age (in a way that is not related to disability) then he or she may initiate complaints under both Acts. Human Rights and Equal Opportunity Commission HREOC's responsibilities and functions broadly stated, are:
The AD Act confers similar powers on HREOC in respect of the age discrimination as it does in respect of racial discrimination, sex discrimination and disability discrimination under Federal legislation. This means in effect that complaints under the age discrimination legislation will be referred to HREOC in a similar way to complaints under other Federal anti-discrimination legislation. Conclusion However great the need was for the Commonwealth Government to introduce this comprehensive, measured and for protection from age discrimination in the form of the Age Discrimination Act 2004, there is no doubt that this need will only become greater in the future. One thing is clear above all overs � every Australian, at some point in their lives, will benefit from this legislation. DISCLAIMER This seminar paper is provided by Middletons for the Television Education Network Pty Ltd. It represents a brief summary of the law as at August 2004 and is not intended to be a complete statement of the law or practice and should not be relied upon as such. Why is the Age Discrimination Act 2004 important?A primary purpose of the Act is to raise awareness that people of all ages have the same fundamental rights to equality before the law regardless of age and to eliminate unlawful age discrimination within our community.
What is the Anti discrimination Act 2004?The Age Discrimination Act 2004 protects people from age discrimination in employment, the provision of goods and services, education and the administration of Commonwealth laws and programs.
Who does the Age Discrimination Act protect?The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.
What is the Age Discrimination Act 2003?It makes it illegal for an employer to discriminate against an employee on the basis of age with respect to who is employed, how they are employed (e.g. terms and conditions, training etc) and the termination of employment (proposed section 18).
|
