This article provides an overview of the Australian legislation on age discrimination. The Age Discrimination Act 2004 (ADA) makes it unlawful to discriminate against individuals based on their age in various contexts, including employment, education, access to premises, provision of goods and services, accommodation, land, and administration of Commonwealth laws and programs.
What is age discrimination?
The ADA recognises two forms of age discrimination: direct and indirect.
Under section 14 of the ADA, direct age discrimination occurs when a person is treated, or proposed to be treated, in a manner that is less favourable than someone of a different age in similar circumstances based on the age of the individual concerned or a characteristic that is associated with their age.
Section 15 of the ADA defines indirect age discrimination as the imposition of conditions, requirements, or practices that are unreasonable in the circumstances and are likely to cause disadvantage to individuals of a specific age group.
Section 18 of the ADA specifically addresses age discrimination in employment. It mandates that employers cannot discriminate against employees based on their age when making decisions related to employment, such as determining who should be offered a job, the terms and conditions of employment, or opportunities for training, transfer, or promotion.
Employers are also prohibited from dismissing an employee or subjecting them to any other form of detriment based on their age.
To comply with the Act, employers must take reasonable steps to prevent age discrimination from occurring. This may involve implementing policies and procedures to create a work environment free from discrimination.
Goods and services
Section 28 of the ADA prohibits age-based discrimination in the provision of goods, services, or facilities. This means that it is unlawful to deny individuals access to these services based on their age, or to provide these services on unfavourable terms or in a discriminatory manner.
Section 29 of the ADA makes it illegal to discriminate against a person based on their age in relation to accommodation. This includes refusing to provide accommodation, imposing discriminatory terms or conditions, or giving the person a lower priority when considering their application. Additionally, a person cannot be evicted from accommodation, denied access to benefits associated with accommodation, or subjected to any other disadvantage because of their age. The Act seeks to ensure that individuals are not denied equal access to housing based on their age.
Despite the prohibition against age discrimination in the ADA, there are some exceptions. These are situations where discrimination based on age is not illegal.
The ADA recognizes that age-based discrimination may occur to provide a benefit exclusively for persons of a particular age. For instance, offering discounts exclusively to senior citizens is not considered age discrimination under the Act.
While the ADA prohibits age discrimination in the workplace, it allows for certain exceptions. One such exception is the payment of a youth wage to workers under 21, which is not considered discrimination. However, dismissing a worker solely on the basis of them reaching the age of 21 is illegal under the Act.
Providing assistance or benefits to people of a certain age as part of the work of a registered charity is not age discrimination under the Act.
Compliance with laws
The ADA allows for age-based discrimination in some cases where it is required by state, territory, or commonwealth laws. For instance, it is not considered discrimination for an employer to refuse to hire bar staff who are under 18 in compliance with relevant laws.
Inherent requirements of the job
Under the ADA, it is not discriminatory for an employer to decline to hire an applicant if they are unable to perform the essential job duties, even where this is due to their age.
Complaints about Age Discrimination
To report age discrimination, a person can file a complaint with the Australian Human Rights Commission (AHRC), as per section 46P of the Australian Human Rights Commission Act 1986. The complaint must be in writing, and it can be lodged via the AHRC’s website or by post or fax, providing details such as what occurred, where it happened, and who was involved.
Once the complaint is received, the AHRC will investigate and seek resolution through conciliation. In case the issue is not resolved via conciliation, the matter can be escalated to the Federal Court of Australia.
It’s illegal to retaliate against someone who files or intends to file an age discrimination complaint with the AHRC.
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