Introduction
The ageing workforce
Age Discrimination
But what if you’re not as quick as you used to be?
Age has nothing to do with it
Proving it
Never let them say you’re over the hill
Exceptions
The future
Introduction
The social and economic effects of an ageing workforce have been prominent in the media recently. Older workers are being urged to delay retirement but age discrimination makes it difficult for older people to get and retain employment. Margaret White, one of the Board’s senior workplace relations consultants, discusses the issues.
Not long ago, the Board received an enquiry from a woman who had applied for a job in a newsagency. She had been made redundant when the newsagency she managed for 20 years was sold to a family who would manage it themselves. She was well qualified and had excellent references.
Failing to get the position, she presumed it had gone to someone better qualified. Imagine her surprise to see it re-advertised the following week! Could the fact that she was 65 have had something to do with it?
The ageing workforce
Concerns about the social and economic implications of an ageing workforce are being expressed increasingly. The Commonwealth Government’s Management Advisory Committee, for example, has warned that as older workers retire, the Australian public service could lose nearly a quarter of its workforce. The Federal Treasurer has urged the population to delay retirement and has pledged legislation to counter any age bias.
But will people have a choice in the matter? Age discrimination still makes it extremely difficult for older people to obtain and retain employment.
Age Discrimination
Age discrimination and compulsory retirement are unlawful in NSW. Section 49ZV of the Anti-Discrimination Act, 1977, makes it unlawful for a person:
(a) to retire an employee from employment, or
(b) to require an employee to retire from employment, or
(c) to threaten to retire an employee from employment, or
(d) to engage in conduct with a view to causing an employee to retire from employment, on the ground of an employee’s age.
In a case that went to the Tribunal Mrs. G. claimed she had been compulsorily retired because of her age. She had worked for the company for six years but it claimed that she was inefficient, incompetent and the office was overstaffed.
There was a trainee in the office whose traineeship was due to end soon after Mrs G. lost her job. She said that the Managing-Director told her “I think you should consider early retirement. We want to keep the young one.” He also allegedly said to the trainee, “Annette is getting older and her health is not good. We want someone younger. You can do the same job that she did.” The Managing Director denied this.
The tribunal decided in favour of Mrs G. It rejected the employer’s claims that the office would be overstaffed and that Mrs G. was inefficient or incompetent.
As no other justification for her termination was established, the Tribunal awarded her $12,499.95.
Goodworth v Marsdens Motors Pty. Ltd. (No 1) [1996] NSWEOT; EOC 92-837.
But what if you’re not as quick as you used to be?
In another case Mr G. (no relation to Mrs G.) was a butcher. He worked for the same company for over 28 years. Then, he claimed, it tried to get him to retire.
His employer said he was “slow” and had trouble managing his workload. Mr G. was transferred, this reduced his overtime and income.
The employer argued that if Mr G. had stayed at the shop, he would have been sacked for slowness. It had allegedly arranged the transfer to try and keep him in employment.
The Tribunal found that the transfer was aimed at causing the complainant to retire because of his age. It didn’t believe he was transferred for being too slow.
It said it was not enough to allege slowness: “A person may well be slower than another but not so slow as to put his employment in jeopardy.” Mr G. was awarded $14,139.33 in damages.
Gilshenen v PD Mulligan (Newcastle) Pty. Ltd. (1995) EOC 92-781.
In a case involving Australia Post, retirement was suggested in relation to disability. As part of its change from “a public service over the counter type of organisation into a more retail oriented” one, Australia Post banned workers sitting on stools. It said stools were an OH&S matter because people might trip over them.
Ms D. needed to sit on a stool because of osteoarthritis, varicose veins & heel spurs. She was put on compulsory sick leave and asked when she would retire.
She claimed disability discrimination
The tribunal decided that Ms D. could do the inherent requirements of her job.
It wasn’t impressed by the OH&S matter, pointing out that over 10 years, no one had ever tripped on Mrs D.ís stool. Providing a stool was, it said, a reasonable accommodation for her disability. Furthermore, asking about her retirement was “confrontational” and demonstrated a view that she was not the kind of person considered suitable to serve behind an AP counter.
Daghlian v Australian Postal Corporation FCA 759 32/7/03
Age has nothing to do with it
Apart from a few exceptions (see below) age, by itself, is not relevant to the question of whether or not a person is the best applicant for a job or any other workplace benefit. Factors such as health, experience, availability and qualifications may be, but decisions should not be made on the basis of chronological age.
In another case, the complainant applied for a job as a pilot with Qantas.
Applicants were assessed on flying experience, education and age. Qantas argued that an older pilot might work for a shorter period of time and Qantas would have less time to recoup money spent on training. Qantas submitted that it was reasonable to take age into account.
But the Tribunal held:
“... on the principles of economic rationalism, it is reasonable, certainly where there is a costly training programme involved to take age into account in any selection process, but the Act provides no exceptions for economic rationalism...”
Qantas was ordered to consider the complainant’s job application without taking his age into account. It was also ordered to revise its selection procedure.
Blatchford v Qantas Airways Ltd. (1997) EOC 92-888
Proving it
To succeed in a complaint of age discrimination, however, you have to have enough evidence to satisfy the tribunal that, because of your age, you were treated less favourably than others in the same or similar circumstances.
Mr P. taught at a high school where student numbers had fallen and three teachers had to be transferred. He was nearly 54 and alleged that he was nominated for transfer because of his age. Each of the teachers transferred were the oldest in their respective faculties.
The Tribunal heard that all staff, excluding the Head Teacher, were considered for transfer. The Head Teacher prepared a profile of each teacher for the Principal. The Principal then made his decision based on the profiles, his own knowledge of the teachers, and further discussions with the Head Teacher.
The Tribunal decided that Mr P. was not treated any differently than a person not his age in the same or similar circumstances. It found that he was nominated in accordance with the Department’s Guidelines which did not have any age requirements.
Plancke v Director General, Department of Education and Training [2001] NSWADT 137
Never let them say you’re over the hill
Just as people with disabilities are entitled to reasonable accommodations to enable them to fulfil the inherent requirements of a job, so the law does not expect older workers to retain the vigour of their youth.
The Lightning Bolt company sacked two workers, allegedly to cut costs, then employed two younger men. The tribunal said the dismissals were based on age and associated characteristics, such as lack of fitness.
The company appealed. It said it wanted to employ people who were ambitious and who could be part of a trained pool eligible for promotion. The Supreme Court, however, agreed with the tribunal. It said it doesnít matter why the company dismissed the workers, if they were treated differently because of their age.
Lightning Bolt Co. Pty. Ltd. v Skinner & Anor [2002]
Exceptions
There are exceptions to the general rule that a person cannot be treated less favourably than others in the same or similar circumstances because of their age. Under Section 49 ZYR of the Act, it is not unlawful to provide services and programs to people to meet their special needs or to promote equal or improved access for them to facilities, services and opportunities. Other exceptions include:
- Provision of insurance (s.49ZYT)
- Credit applications (s.49ZYU)
- Safety procedures (s.49ZYV)
- Sport (s.49ZYW)
- genuine occupational qualification (s.49ZYJ)
- voluntary retirement or severance schemes (s.49ZYK)
Some of these exceptions can prove to be almost insurmountable barriers to the continued participation of older people in the workplace. In an effort to test the limits of these exceptions, a barrister argued that the Barrister’s Sickness and Accident Fund’s refusal to cover people over 70 was age discrimination.
He argued that the exception for insurance companies was limited to the “terms” on which insurance was provided not a refusal to provide it.
The tribunal said that the exception did cover refusal to insure and in this case refusal was based on actuarial data and was reasonable.
Leslie v Barristerís Sickness & Accident Fund Pty. Ltd. [2003] NSW ADT 216
The future
Anti-discrimination legislation won’t, by itself, provide a cure for age discrimination. There will have to be a significant change in attitude on the part of both employers and employees to the benefits of keeping older people in the workforce. The Business Council of Australia and the Australian Council of Trade Unions, in a joint report, described some necessary changes:
- A widespread understanding of anti-discrimination legislation and itís implications
- Retirement policies that encourage, not discourage, staying at work
- An integration of government policies, and
- “far-reaching cultural change”
Another popular suggestion is phased retirement, allowing people to gradually reduce their hours in the workforce.
Meanwhile, some are quietly confident that, as more baby boomers approach retirement age, commerce and industry will quickly realise that they can’t do without them!
