Age Discrimination (SA)

In South Australia, discrimination on the basis of age is prohibited under the Equal Opportunity Act 1984. The Act also prohibits discrimination on other bases, such as race, sex and disability in certain areas of life, including employment, accommodation and education. This article deals with age discrimination in South Australia.

State or federal law?

Age discrimination is also prohibited under federal law.  A person in South Australia may be able to take action in relation to age discrimination under federal law, under state law, or under either scheme, depending on the circumstances.

When a complaint arises at work, which anti-discrimination scheme applies depends on the size and nature of the employer.  Employees at state government agencies are covered by the state legislation, while federal government employees are covered by the federal scheme. Small business are within the ambit of the state legislation, whereas large companies fall under the federal laws.

If you are unsure whether to lodge your age discrimination complaint under state or federal anti-discrimination law, seek specialist legal advice to ascertain which is the more appropriate forum.

What is age discrimination?

Age discrimination occurs when a person treats another person unfavourably because of their age or because of a characteristic of people of that age – for example, refusing to hire a job applicant because they are over 50.

Age discrimination also occurs when a person treats another person unfavourably because they do not comply with a requirement that is harder to comply with for people of their age group, and the requirement is not reasonable in the circumstances – for example, requiring all employees to have graduated prior to 2000.

When is age discrimination unlawful?

Age discrimination in prohibited in work, including in job applications and in the terms on which employment is offered, the conditions of employment, by denying opportunities for promotion or by dismissal.

Discrimination against agents and contractors in also unlawful.

Industrial awards and agreements must not impose a compulsory retirement age or require a person’s employment to be terminated on the basis of their age.

Age discrimination is also prohibited in partnerships, in education, in accommodation and in the provision of goods and services.

Exceptions

The Act provides for a number of exceptions to the prohibition on age discrimination. These are areas where discrimination on the basis of age is not unlawful because it is justified in the circumstances.

Children

The prohibition on age discrimination does not affect the operation of laws around the legal capacity of children.

Charities

Charities may give benefits to persons of a particular age group.

Projects

Projects may be carried out for the benefit of persons of a particular age group in order to meet the needs of that particular age group.

Sport

Sporting activities may be held for particular age groups and may exclude people who do not fall into those age groups.

Insurance

Insurance or annuities may be offered on different terms depending on a person’s age. Membership of superannuation funds may be offered on different terms depending on a person’s age.

Complaints about age discrimination

A person may make a complaint about age discrimination to the Equal Opportunity Commissioner. The complaint must be made within 12 months of the last incident that is being complained about. The Commissioner may investigate the complaint and may refer it to conciliation if he or she thinks it may be resolved that way.

If the Commissioner requires parties to attend conciliation, they must comply. Failure to comply is an offence punishable by a fine of up to $2,500.  

The Commissioner may decline to accept a complaint if it is frivolous or vexatious or if the complainant is unable to be contacted or has failed to co-operate.

If a complaint cannot be resolved through conciliation, it may be transferred to the South Australian Civil and Administrative Tribunal (SACAT) for determination after a hearing. If, after hearing evidence from both parties, the Tribunal is satisfied that age discrimination occurred, it may make one or more of the following orders:

• An order that the respondent refrain from further discriminatory conduct;
• An order that the respondent pay compensation to a person for loss or damage, including injury to feelings;
• An order that a person do specific acts to redress loss or damage resulting from the discriminatory conduct;

Appeals

A party can appeal against a decision of SACAT to the Supreme Court of South Australia. The Supreme Court may affirm, vary or quash the Tribunal’s decision. It may also substitute or add any order that should have been made by SACAT.  

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.