By Matthew Arentz, a Partner at DBH Lawyers, boasting more than 20 years of legal expertise.
The Act is designed to mirror international commitments against ageism which allows people to access work and to maintain meaningful engagement in the workforce.
Although there are not many cases available for consideration, there has been a big win for an older worker recently. Mr Alex Gutierrez won his case after a long legal battle. Mr Gutierrez’s employer sought to make him retire at 65 despite a long and successful employment relationship and no question as to the capacity for him to undertake his duties. He won his case on appeal and was awarded over $230,000.00 in compensation.
The most obvious examples of age discrimination in the workplace are:
- Stereotyping based on age.
- Advertising for roles in a manner that is limited or restrictive based on age (“join our young and vibrant team”).
- Non-recruitment based on age.
- Denying of promotional, transfer or training opportunities based on age.
- Forcing retirement or targeted redundancy.
- Termination based on age.
The Age Discrimination Act 2004 allows individuals to enforce their rights by way of a complaint to the Australian Human Rights Commission. The Commission will try to assist the parties to resolve the matter through conciliation in the first instance. If this cannot be achieved, the matter can proceed to Court. The Fair Work Act 2009 is also a piece of Commonwealth legislation that seeks to protect employees by preventing age-related discrimination.
If you feel you have been discriminated against, you can make a complaint to the Fair Work Ombudsman who may choose to investigate and initiate litigation against an employer for contraventions of the Fair Work Act 2009.
Alternatively, you can make your own application to the Fair Work Commission. The Fair Work Act also allows older workers to seek reasonable modifications or flexible working arrangements. There are also state-based laws that aim to prevent unlawful discrimination based on age.
If you think you have been the subject of age discrimination, you should seek advice from a lawyer or your union or employee association.
DBH Lawyers is at 66 Wright St, Adelaide or visit dbh.com.au
