Your right to work

Age Discrimination Commissioner, Susan Ryan, explains your rights.

Your right to work

Experience – and sometimes wisdom – comes with older age so why retire if you still have much to offer your employer? Age Discrimination Commissioner, Susan Ryan, explains your rights and what you can do if you are wronged at work.

Too often, older Australians who are still working start to be asked rather unsubtly when they think they’ll retire. Some older Australians report feeling forced into retirement by constant negative references in their workplace to the fact that they are getting older. These kinds of experiences can constitute unlawful age discrimination.

Our research, Fact or Fiction? Stereotypes of Older Australians, found that one in ten business respondents have an age above which they will not recruit – and the average age is 50 years. This was supported by the 35 per cent of Australians aged 55-64 years and 43 per cent of Australians aged 65+ who reported experiencing discrimination because of their age – being turned down for a position being the most common type of discrimination.

Age discrimination can happen directly: you might be refused training by an employer because it’s assumed you will retire soon; or you aren’t considered for a job because it’s assumed you don’t have up-to-date skills. In a recent landmark case taken to court by the Fair Work Ombudsman, the court found that an employer who formally advised an employee that he had to leave because he had turned 65 was found to have broken the law. The employee was awarded significant compensation and had his costs met by the discriminating employer.

Discrimination can also arise indirectly, through policies or practices that unfairly impact upon people of a particular age group.

Age discrimination is not always unlawful. It may be lawful when acts are done to comply with Commonwealth, state or territory laws; or when a person’s age means they are unable to perform the inherent requirements of a job.

Older workers now have the right to request flexible work arrangements. Under new amendments to the Fair Work Act 2009 (Commonwealth), those over 55 can ask their employer for a change in working arrangements. Employers may only refuse on reasonable business grounds.

If you feel like you have experienced discrimination, you may want to deal with the situation by raising it directly with the person or people involved or with a supervisor or manager. You may also make a complaint to the Australian Human Rights Commission (AHRC).

At the AHRC, approximately two thirds of the complaints that we receive in the area of age discrimination are employment related. For substantial complaints that go to conciliation, 76 per cent were resolved successfully.

For example, a 52-year-old woman was employed as a travel agent for nearly five years. She alleged that she was not given opportunities for career development because of her age, and that she was excluded by other staff in the workplace. Following conciliation, her former employer agreed to provide her with substantial financial compensation.

At the end of the day, all people have the right to work and to seek work without discrimination on the basis of their age.

MORE
You may like to read the AHRC’s guide Your Rights at Retirement. Limited stocks of hard copies will be available on request. Ph 1300 369 711

If you experience age discrimination you may make a complaint to the AHRC. Complaints are confidential and free of charge. Phone the Complaint Info Line on 1300 656 419 or email complaintsinfo@humanrights.gov.au





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