• Specific Year
    Any

Encel, Sol --- "Age Discrimination in Law and in Practice" [2004] ElderLawRw 7; (2004) 3 Elder Law Review 13

AGE DISCRIMINATION IN LAW AND IN PRACTICE

SOL ENCEL[1]

Age discrimination has a much lower profile than discrimination on the grounds of gender or racial origin, which generate much higher levels of complaint. However, this is likely to change as public concern with the ageing of the workforce becomes more urgent. This paper reviews the development of age discrimination legislation in Australia. Three recent state and Commonwealth reviews have examined the effectiveness of anti-discrimination legislation. There is evidence that employers continue to discriminate against older workers, in spite of the fact that they generally recognise the value of experience, reliability and stability. Effective policies against age discrimination should be seen as part of a wider strategy designed to maximise the contribution of older people to the economy and to society in general.

A. Introduction

Anti-discrimination law has established itself in all jurisdictions in Australia since the 1 970s. It may be seen as the culmination of a process that began with English philosophers of the 17th century, such as John Locke, who saw government as the guarantor of individual rights. Locke’s ideas were central to the American Declaration of Independence, which was also based on the concept of ‘inalienable’ rights, picked up a few years later in the French Declaration of the Rights of Man and the Citizen. A century and a half later, similar principles were incorporated in much greater detail in the Universal Declaration of Human Rights and in subsequent UN conventions concerning rights for women, children, refugees and other groups. As a result, the terminology of ‘human rights’ and ‘human rights abuses’ has become part of the common stock of public discourse.

Unlike the Americans, the drafters of the Australian federal constitution did not insert any guarantees of human rights into their document. Of the Australian states and territories, the Australian Capital Territory is unique in its new Bill of Rights, which came in to force with the Human Rights Act 2004. The absence of a Bill of Rights federally and in the other states and territory reflects the continuing influence of British jurisprudence (although the British situation has changed with the UK’s membership of the European Union). In the absence of a Bill of Rights, partial guarantees have developed, of which anti-discrimination legislation is a prominent example.

Anti-discrimination law operates through the settlement of individual complaints, mostly by conciliation but occasionally through a judicial determination. The legalistic framework means that the great majority of complaints are not proceeded with, as we shall see below. We may now turn to a sketch of the historical development of the legislation at the state level, which has now been complemented by federal legislation: the Age Discrimination Act 2004 which became law in June 2004.

B. Historical Development of Age Discrimination Legislation

Age discrimination has a much lower profile than discrimination on the grounds of gender or racial origin, which generate much higher levels of complaint.[2] In a sense, the pressure to act against gender discrimination has been the motive force in this area of public policy, and the recognition of gender discrimination, especially in employment, occurred considerably earlier than action against age discrimination.[3]

The issue of age discrimination was raised in the Henderson report on poverty in 1976. The report drew attention to the connection between poverty and enforced unemployment due to age. [4] A decade later, another major review of the social security system recommended that age should be introduced as a ground for complaint against discrimination into existing state legislation.[5]

The first general piece of legislation to ban discrimination in employment and other areas was passed by the NSW Parliament in 1977. The original Bill, which included age as a prohibited ground of discrimination, was passed by the Legislative Assembly, but an amendment in the Legislative Council, where the Government did not have a majority, removed this provision. Instead, the Anti-Discrimination Board (ADB) set up under the legislation was required to conduct an assessment of the impact of age discrimination. In 1980, the ADB’s review supported the introduction of age into the legislation, but recommended the retention of compulsory retirement. Ironically, a subsequent state government acted first to outlaw compulsory retirement, and only later, in 1993, to amend the Anti-Discrimination Act 1977 and add age as a ground for complaint against discrimination.

This time, the Bill passed through both houses of Parliament, despite some last-minute lobbying by employers’ organisations (which had lobbied, successfully, against the legislation in 1977). Part 4G of the Act makes it unlawful to discriminate, directly or indirectly, on the basis of age in work, access to places and vehicles, education, provision of goods and services, accommodation and registered clubs. There are provisions for exemption, some of which are discussed below. The amendments came into effect on July 1, 1994.

NSW was not the first state to ban age discrimination. In 1984, the South Australian parliament passed the Equal Opportunity Act 1984 (which replaced an earlier law banning gender discrimination in public employment). The Act creates an Equal Opportunity Commission to enforce its provisions. In 1990, the Act was amended to prohibit age discrimination. South Australia was followed by Queensland (1992), Western Australia (1993), NSW (1994), the Northern Territory (1994), the A.C.T. (1996), Victoria (1996), and Tasmania (1999). Age discrimination in employment was also prohibited by the Commonwealth Workplace Relations Act 1996.

Companion legislation abolishing compulsory retirement (apart from a few categories such as judges, police, and coal miners), was also passed by each jurisdiction during the 1990s, starting with NSW (1990). In 1999, Tasmania was the last to follow suit. In the same year, the Commonwealth Public Service Act 1999 was amended to ban compulsory retirement in Commonwealth employment. Federal legislation has recently been enacted following a report from the Human Rights and Equal Opportunity Commission: the Age Discrimination Act 2004 (see below).

Australian legislation generally recognises the existence of both direct and indirect discrimination. The Equal Opportunity Act 1984 in South Australia is most explicit on this point, defining direct discrimination as occurring when ‘a person treats another unfavourably because of the other’s age or if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other age group.’[6]

The South Australian Act also defines indirect discrimination as occurring when there is a particular requirement, the nature of which

is such that a substantially higher proportion of persons of a different age group complies, or is able to comply, with the requirements than those of the other’s age or age group, and the requirement is not reasonable in the circumstances of the case.[7]

The NSW Act also recognises the role of indirect discrimination, for example in section 49ZU (3), which prohibits an employer from using age as a pretext for inducing an employee to retire.[8] The 1980 report of the NSW ADB also recognises the role of indirect discrimination by stressing that ‘people should not be treated less favourably in employment, provision of goods and services or accommodation because of their chronological age.’[9]

Generally speaking, the various Acts prohibit a range of discriminatory arrangements or actions in the workplace or place where a person is seeking employment. Such actions include the following:

advertising of vacancies;
decisions about offers of work;
terms and conditions of employment;
decisions on promotion, training, transfer or other work-related benefits;
termination of employment or other unfavourable actions;
decisions concerning access to guidance, apprenticeship or training programs or other occupational training or re-training;
variation of the terms of employment or the terms of work performance.

The various Acts also include definitions of employer and employee. Apart from the straightforward situation of a full-time paid employee, some of the prohibitions in the legislation extend to the following situations:

independent contractors or contract workers;
partnerships;
agents paid by commission;
membership of industrial organisations, including trade unions and professional associations;
qualifying bodies with the power to confer, extend or renew qualifications or authorisations to engage in a trade or profession;
employment agencies which provide services for finding employment, or finding prospective employees for employers. [10]

Another legislative strut was added to the legal framework in 1974, when the Australian Government acceded to ILO Convention (No.111), which outlaws discrimination in ‘employment and occupation’.[11] The text of the convention became Schedule A of the Industrial Relations Act 1988 and remains part of the Workplace Relations Act 1996, which replaced the earlier legislation. These provisions relate to industrial situations covered by federal awards or agreements.

To fulfil the obligations required under the Convention, the Government established national and state committees on discrimination. The reports of these committees indicate increasing awareness of age discrimination during the 1 980s.

The 1983-84 report of the National Committee on Discrimination and Equal Opportunities noted the growing difficulty faced by older workers in obtaining re-employment after losing their jobs.

These committees were abolished in 1986, but nothing took their place until 1991, when the Human Rights and Equal Opportunity Commission (HREOC) was given jurisdiction in relation to age discrimination. A comprehensive inquiry by HREOC into age discrimination is described below.

C. Reviews of Age Discrimination Legislation

Three recent reviews have examined the effectiveness of anti-discrimination legislation.

1 The NSW Law Reform Commission

In 1999, the NSW Law Reform Commission published the results of a lengthy inquiry into the operation of the Anti-Discrimination Act 1977. The LRC noted the difficulties associated with a general prohibition against age discrimination, particularly because of the numerous exemptions built into the law. These exceptions are more numerous in the case of age than with any other form of discrimination. The report considers that both the range of issues and the range of exemptions are too wide, and expresses a strong preference for restricting the coverage of age discrimination legislation to the sphere of employment, which is by far the largest area of complaint. The report advocates a move towards the US pattern.

In the United States, Congress passed the Age Discrimination in Employment Act (ADEA) in 1967. The stated purposes of the Act were to promote employment of older persons based on their ability rather than age, to prohibit arbitrary age discrimination in employment, and to help employers and workers to find ways of meeting problems arising from the impact of age on employment. The ADEA was amended in 1978 and again in 1986. The amendments included the abolition of compulsory retirement.[12]

The LRC report observes that

Such an approach is justifiable because there is a volume of evidence to support the view that older workers are not routinely treated on their merits but, as a class, suffer from prejudice and stereotyped assumptions. As age is an immutable human characteristic, it should not be permissible to treat people detrimentally on that ground. On the other hand, the evidence to suggest that age is inappropriately used as a basis for discrimination in other areas is limited and equivocal.[13]

An area of the law which has led to a number of court cases concerns the issue of ‘genuine occupational qualifications’ (GOQ), also known overseas (eg in Canada) as Bona Fide Occupational Qualifications (BFOQ). Provisions providing exemption from anti-discrimination law on the ground of GOQ apply in all states. The LRC report quotes Section 49ZYJ (2) of the NSW Act, which provides that

Being a person of a particular age or age group is a genuine occupational qualification for a job if either of the following requirements is satisfied:

(a) in dramatic performances or other entertainment, the essential nature of the job calls for a person of that age or age group for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a person of another age or age group ;

(b) the holder of the job provides persons of that age or age group with services for the purpose of promoting their welfare or furthering their education and those services can most effectively be provided by a person of a particular age or age group.[14]

In other words, we are unlikely to see a 70-year-old actor complaining that he was passed over for the role of Puck in A Midsummer Night’s Dream solely because of his age. The Equal Opportunity Act 1995 in Victoria is particularly clear on this point, providing for exemption in relation to ‘a dramatic or artistic performance, entertainment, photographic or modelling work or any other employment, if it is necessary to do so for reasons of authenticity or credibility.’[15]

The LRC report deals not only with the law, but also with implementation procedures. It noted some important defects, including lack of clarity in procedures for handling complaints; bias in favour of complainants; lack of support for complainants; persistent delays, which drive people to seek redress by other methods, to accept unsatisfactory offers of settlement, or to abandon the complaint.

In its evidence to the LRC, the ADB acknowledged that there was generally a period of six to eight months between the time of a complaint being lodged and its consideration by an ADB official. Inevitably, shortage of resources was blamed for much of the problem. However, the report also points out the shortcomings of the complaints-based system, observing that it

requires individuals or groups to identify isolated acts of discrimination and presumes that discrimination can be corrected by providing redress to those individuals. This results in a reactive and piecemeal approach to achieving equal opportunity which neglects the need to deal with systemic discrimination....Depending on individuals who are often in positions of disadvantage to bring complaints also means that if such persons are unaware of their rights or are not willing to mobilise the process for fear of victimisation, lack of support or understanding of the process, no complaint is made.[16]

The LRC report contains a draft Bill for amendments to the Anti-Discrimination Act 1977. Since the report was received, it has been the subject of scrutiny by a number of government agencies, and at the time of writing the various submissions made by these bodies were in the hands of the NSW Cabinet Office. It is understood that some of the amendments proposed in the draft Bill will be accepted, including a recommendation that the current time limit of six months between an initial inquiry and a formal complaint should be extended to twelve months.

2 The Commonwealth Review

The NSW LRC report was followed in 2000 by a report from HREOC entitled Age Matters, covering a wide range of issues including superannuation, insurance, workers’ compensation and the need to combat popular stereotypes. The basic recommendation of the report was that the Australian Government should introduce national legislation, either in the form of a comprehensive Anti-Discrimination Act or an Age Discrimination Act. The report drew attention to inconsistencies between the anti-discrimination laws in various states, and also to the fact that the 1986 Act which established HREOC only gave it the authority to record complaints, but not the authority to act on them.

The report also criticised the failure of successive federal governments to deal with age discrimination. It contrasted the treatment of age discrimination with complaints based on race, gender and disability. Under its Act, HREOC can refer complaints on these grounds to the Federal Court, but this is not the case with age discrimination in employment. Although the Workplace Relations Act 1996 made it unlawful to terminate employment on the ground of age, this applies only to some areas of employment-specifically, to employees covered by industrial awards made by the Australian Industrial Relations Commission. It does not protect a range of casual, fixed-term or probationary employees. Age discrimination is not unlawful in contracts and consultancies for government-funded programs, or in the provision of services to government.

The HREOC recommended that national age discrimination legislation should deal with a wide range of issues, including employment, employment-related entitlements, the actions of employment and recruitment agencies, and vocational training, as well as a number of other matters such as health care and the provision of goods and services.[17] After almost two years of consideration, the Commonwealth Government accepted one of HREOC’s recommendations, and produced an information paper in December 2002 setting out the provisions of an Anti-Discrimination Act.

Finally, the Age Discrimination Act 2004 became law in June 2004. It prohibits discrimination in a range of areas including employment, education, access to goods and services, accommodation, and the administration of Commonwealth laws and programs. It also provides for exemptions in a variety of matters including positive discrimination, superannuation and pensions, acts carried out in compliance with laws of the Commonwealth, States and Territories, and acts done in compliance with awards and agreements.

One of the gaps filled by the legislation relates to Commonwealth laws and programs which are not covered by previously existing State and Territory legislation. On the other hand, criticism of the law has come from several sources. One major employers' association, the Australian Chamber of Commerce and Industry, opposed it on the grounds that the law 'could hurt efforts by business to get the best from employees'. This stand is consistent with a long history of employer opposition to anti-discrimination legislation. For example, in the case of the NSW legislation, age discrimination was omitted from the original Anti-Discrimination Act of 1976 after lobbying by employers' organisations. By contrast, the Council on the Ageing expressed concern that the legislation provides an excessively wide range of exemptions, especially those relating to the Commonwealth Government as an employer.

The Human Rights and Equal Opportunity Commission was also critical of some aspects of the legislation, including the lack of coverage of clubs, incorporated associations, and sport. It also commented that the definition of employment was insufficiently broad, especially in the light of experience that new forms of employment are developing which are likely to fall outside the definition used in the new Act. Unpaid workers are also not covered.

The Act takes notice of State and Territory legislation, which will continue, except that no complaint of discrimination may be taken twice. A choice must be made at the time of making a complaint as to which legislation should form the basis of the complaint. No one may be punished twice with respect to the same action.

3 The Three State Reviews

A third review of the effectiveness of age discrimination legislation was undertaken jointly in 1998 by three of the state Equal Opportunity Commissions-Victoria, South Australia and Western Australia. Its report, Age Limits, was published in 2001. The report covered a number of areas, including the utilisation of age discrimination laws in Australia and overseas. It concluded that

Older people and employers are unclear about their rights and responsibilities under the law. Older people are often unsure about procedures such as disclosure of their age in job applications and how to write a CV that presented their experience in a positive manner. Employers were often unsure about the implementation of procedures which comply with the legislation. There is a lag between the legislative abolition of compulsory retirement and community attitudes. Covert and overt pressures exist towards early retirement, commonly justifies by ageist stereotypes. Despite the abolition of compulsory retirement, employers expect workers to retire no later than age 65 and preferably earlier.[18]

D Discrimination in Practice

The actual incidence of age discrimination has been examined in a number of studies since the late 1980s, including a report by a Senate committee in 1995 and a House of Representatives committee in 2000. The latter report noted, in particular, that long-term unemployment was disproportionately concentrated among older workers:

Though the unemployment rate for mature aged people is lower than that of the general population, the rate of long-term unemployment is much higher, representing the tip of an iceberg of quiet anguish.[19]

Evidence contained in the official reports and in a number of academic studies underlines the fact that mature-age workers experience systematic discrimination on the part of employers, who will almost invariably appoint younger candidates in preference to older persons with similar skills and more experience. A high degree of consensus, both in Australia and overseas, may be found on the following points

Employers continue to discriminate against older workers, in spite of the fact that they generally recognise the value of experience, reliability and stability;
Employers consider that older workers are more difficult to train or retrain, and that it is not worth their while to invest in training;
Legislation to ban age discrimination has had little effect on improving job opportunities for older workers;
There is a disproportionately high concentration of older workers among the long-term unemployed;
Downsizing affects older workers disproportionately;
Recruitment agencies are reluctant to accept older workers as clients, and correspondingly reluctant to recommend them to employers;
There are relatively few success stories that give favourable accounts of positive policies by employers.

The Age Limits report gives several examples of the difficulties faced by older applicants for jobs. A recruitment consultant interviewed by the researchers commented that older workers were often advised to truncate their work history in order to disguise their age. One of the unemployed workers interviewed in the study observed that ‘recruitment agents are going through the motions of recruitment according to an Identikit picture of what employers want.’[20]

Lawyers drew attention to the problem of onus of proof, which makes the complainant’s task very difficult. A human resources manager commented that:

The legislation tells employers what they can’t say and provides the reason for evasion. The policies and structures can be in place, but what in reality we are doing is different.[21]

One study of anti-discrimination cases using information provided by the NSW ADB, illustrates the difficulties entailed in pursuing complaints. In the first year after the Anti-Discrimination Act 1977 was amended to include age (1994-95) the Board received a total of 16,000 inquiries, but only 1,508 complaints were proceeded with. This proportion has remained roughly the same in succeeding years. Age accounts for a small proportion of complaints, fluctuating between 5 and 8 per cent. Except for the first year after age became a ground of complaint, when complaints concerning goods and services were almost equal to those relating to employment (85 compared with 79), the commonest topic for complaints has related to employment, which generally accounts for about two-thirds of age-based complaints.[22]

The reality of discrimination is attested by a number of studies. In a survey of 38 older workers in NSW in 1996, most of the respondents claimed that they had been discriminated against solely on the basis of age. This is borne out by the large number of unsuccessful applications reported: in one case, 300 applications with no interviews, and in another, 403 applications with 12 interviews. Paradoxically, those who were placed in jobs on a trial basis were accepted very readily by their new employers and proceeded to become highly valued workers.[23]

The impact of downsizing is illustrated by the case of a bank official, HB, aged 56 at the time of the interview, who had worked for the same bank for 36 years. The bank went through a process of restructuring, which included a program of vocational testing by a team of management consultants. HB was informed that he had scored well in the tests, but he was also told that he was not flexible enough. He was then offered a contract position, working 20 hours per week, but refused. While seeking another job, he applied to a number of employment agencies, but none of them responded to his inquiries. He was convinced that this was solely because of his age.[24]

Women face a particular problem in that ageism is reinforced by sexism-what a British author has described as ‘gendered ageism’.[25] In a study of 90 women aged between 43 and 67, it was found that age discrimination was reported by nearly all the participants.[26] As one recalled, ‘nobody wanted a 40-year-old housewife with a BA’, while a 47-year-old former school teacher was told by an employment agency that ‘you’re so old, you’re redundant’. In a number of cases, employment agencies evaded the possible accusation of age discrimination by asking life history questions, for example, when the applicant had left school.[27]

In a more recent study of 163 mature-age workers, age discrimination was again identified as the main obstacle to obtaining employment.[28] Some examples of the actual experience of discrimination may be quoted:

‘Being asked my age by an employer, and when answering honestly having him laugh like a jackass down the phone.’ (female respondent)
‘I am 59 years old and live on the edge of poverty. The manager at a Job Network agency told me “you are too old despite your experience and skills” ’ (female respondent)
‘My worst experience was dealing with job agencies that treat anyone over 35 as not worth worrying about.’ (male respondent)
‘My worst experience was having my resume ripped up in my face.’ (gender not identified).

The negative attitudes of employers and recruitment agencies have induced the Business Council of Australia, representing many of the largest corporations in the country, to call for a ‘cultural change’. In 2003 the BCA, in conjunction with the Australian Council of Trade Unions, published a report that examined the issue of age discrimination by employers.[29]

In a subsequent report addressed to employers, the BCA notes

clear evidence that age discrimination persists in recruitment notwithstanding the existence of anti-discrimination legislation in all States and Territories...Often discrimination is implicit and subtle. It can result from the language and placement of advertisements, the screening phase and in the context of interviews. [30]

E. Case Law

The operation of anti-discrimination law has been marked by a number of court cases. Some examples of special interest are quoted below.

Robert Bradley, a helicopter pilot aged 37, applied for entry to the Specialist Service Officer scheme in the RAAF. He was denied entry by the authorities on the grounds that the upper age limit was 28. HREOC considered the complaint and found that there was insufficient evidence to establish a case of age discrimination. Bradley took the matter to the Federal Court, where a judge ruled in his favour. The Commonwealth appealed to the Full Bench, but lost.[31]

A Queensland case involved a salesman who was seeking a job with a particular company, and claimed that he had been refused because of his age. The matter went through a series of appeals, the last of which was before a Full Bench of the Queensland Supreme Court. The court found in favour of the company, in that no offer of work had actually been made. As it was only a hypothetical situation, there was no entitlement to compensation.[32]

Another Queensland case concerned a senior lecturer at Griffith University, Dr Ivory. His contract provided for mandatory retirement at age 65. The University agreed to waive the requirement, but then performed an about-face and insisted that he retire when he reached 65. Dr Ivory complained to the Anti-Discrimination Tribunal and won his case. The Tribunal awarded him $5,000 in compensation for pain and suffering, and criticised the University for ignorance of the law.[33]

A butcher in Newcastle, aged 64, was transferred by his employer, a meat processing company, from the butcher’s shop to a sausage-making factory. He claimed that this had been done deliberately to induce him to retire. The employer claimed that he was too slow at his job. The Equal Opportunity Tribunal found in the employee’s favour, and awarded him $15,000 in damages. [34]

Several cases have involved airline pilots. Richard Blatchford, aged 46, who held a commercial pilot’s licence, applied for a pilot’s job with Qantas Airways. His application was refused, although he met the specified entry requirements. The case came before the Equal Opportunity Tribunal in NSW in 1995. Qantas relied on an argument, which has been used by employers in other cases, namely, that age is a significant criterion because of the concern that the employer’s investment in training can only be recouped if the pilots are available for a sufficient time in the system. An economist called by Qantas as an expert witness argued that ‘a preference for younger workers is properly and reasonably explained as a rational economic reason for preferring to hire applicants who have a longer expected tenure of working life’. The Tribunal rejected the argument, observing rather sharply that:

The Tribunal is not directly concerned with the principles of economic rationalism, but with the principles of equal opportunity. The principles of economic rationalism are not enshrined in legislation; the principles of equal opportunity are, and it is the legislation that the Tribunal is called upon to apply.

The Tribunal concluded that Qantas was practising ‘systemic discrimination’ against applicants, and ordered that the company should cease to take age into account in selecting pilots to be placed on its ‘hold-list’ of available pilots.[35]

One case involving airline pilots went as far as the High Court. John Christie, a pilot on international Qantas flights, lost his job at age 60 because of international aviation rules which prohibit a pilot over 60 being in charge of an aircraft. After losing his case before the Industrial Relations Court, Christie appealed to the High Court, where the majority invoked the GOQ principle and ruled that the age limit was an ‘inherent requirement’ of the job. Kirby J. dissented, arguing that the criterion of inherent requirements should not be unduly expanded.[36]

F. Conclusion

Critics of anti-discrimination law clearly agree that its effects are limited. Official reports and academic studies are at one on this point. The most stringent critique is to be found in the writings of a legal academic, Margaret Thornton. She maintains that the principles embedded in the law depend upon the assumption that social change can be brought about by changing the ‘hearts and minds’ of individuals. She derides the ‘elusive marsh-mallow substance’ of individualist liberalism that lies at the core of anti-discrimination legislation. It maintains the asymmetry between employer and employee. Since employment is a contractual relationship, power resides in the employer who determines the substance of the contract, giving it a privileged status that is

resilient to challenge through anti-discrimination legislation....the ultimate power of the employer to hire and fire militates against an employee’s ability to resort to formal legal remedies.[37] (31).

Nevertheless, Thornton concedes that anti-discrimination law is important in establishing that equal treatment is a matter of public concern, and not merely the individual concern of those who are adversely affected. A similar view was expressed by another legal critic, Louise Thornthwaite, who analysed cases before the NSW Anti-Discrimination Board. She noted, in particular, the role of conciliation, which is able to resolve cases without resort to legal proceedings. In the case of complaints referred to the Equal Opportunity Tribunal (now the Equal Opportunity Division of the Administrative Decisions Tribunal), she observes that:

the opportunity for a hearing may give some relief to the complainants and many may also obtain private settlements prior to the inquiry commencing, when the threat of tribunal proceedings induces some respondents constructively to negotiate...The anti-discrimination machinery may also perform a substantial educational function through its involvement in dispute settling.[38]

Discrimination on the grounds of age is likely to come into sharper focus as public concern with the ageing of the workforce becomes more urgent. The two BCA reports, quoted above, indicate a rising level of concern among employers, and a number of recent public statements by the Prime Minister and some of his ministerial colleagues suggest that these concerns are shared at governmental level.[39] In this context, effective policies against age discrimination should be seen as part of a wider strategy designed to maximise the contribution of older people to the economy and to society in general.

BIBLIOGRAPHY

1 Articles/Books/Reports

Arber, S and Ginn, J, Connecting Gender and Ageing (1995)

Bennington, L and Calvert, B, ‘Anti-Discrimination Legislation and HRM Practice’, in Patrickson, M and Hartmann, L (eds), Managing an Ageing Workforce (1998)

Business Council of Australia, Age Can Work (2003)

Committee of Inquiry into Poverty in Australia (Henderson Report), Parliament of Australia, (1976)

Encel, S and Campbell, D, Out of the Doll’s House (1991)

Encel, S, Trenerry, M, and Studencki, H, Older Workers, Flexible Retirement and Age Discrimination (1992)

Encel, S and Studencki, H, Job Search Experiences of Older Workers (1996)

Encel, S and Studencki, H, Gendered Ageism: Job Search Experiences of Older Women (1997)

Encel, S, ‘Age Discrimination’, in Patrickson, M and Hartmann, L (eds), Managing an Ageing Workforce (1998)

Encel, S and Studencki, H, Over the Hill or Flying High? - An Analysis of Age Discrimination Complaints in NSW (1998)

Encel, S, ‘Age Discrimination in Australia: Law and Practice’ in Z Hornstein (ed), Outlawing Age Discrimination (2001)

Encel, S, Age Can Work (2003).

Encel, S, ‘Older Workers-Can They Succeed in the Job Market?’ (2004) 23 Australasian Journal on Ageing 34.

Equal Opportunity Commission of Victoria, Age Limits: Report by the Equal Opportunity Commissions of Victoria, South Australia and Western Australia (2001).

Foster, C, Towards a National Retirement Incomes Policy (Issues paper, Social Security Review (Australia); no. 6.) (1988)

House of Representatives Standing Committee on Employment, Education, and Workplace Relations, Parliament of Australia, Age Counts (2000)

Human Rights and Equal Opportunity Commission, Age Matters (2000) .NSW Anti-Discrimination Board, Discrimination and Age (1980).

NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977 (1999) Thornton, M, The Liberal Promise (1990)

Thornthwaite, L, ‘The Operation of Anti-Discrimination Legislation in NSW in relation to Employment Complaints’, (1993) 6 Australian Journal of Labour Law 31.

2 Case Law

Blatchford -V- Qantas Airways Limited [1997] NSWEOT

Commonwealth of Australia v HREOC and Bradley [1999] FCA 1524 (4 November 1999) Gilshenan v P.D. Mulligan P/L [1995] NSWEOT

Ivory v Grifith University [1997] QADT 4 (30 January 1997)

Qantas Airways Limited v Christie [1998] HCA 18 (19 March 1998)

Re McIntyre & Anor [1999] QSC 121 (7 June 1999)

3 Legislation

Age Discrimination Act 2004 (Cth)

Anti-Discrimination Act 1977 (NSW)

Equal Opportunity Act 1984 (SA)

Equal Opportunity Act 1995 (Vic)

Human Rights Act 2004 (ACT)

Industrial Relations Act 1988 (Cth)

Workplace Relations Act 1996 (Cth)

4 Treaties

ILO Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, ATS 1974 No 12 (entered into force 15 June 1974).


[1] Emeritus Professor Sol Encel was professor of Sociology at the University of New South Wales from 1966 to 1990. He is currently an honorary visiting professor in the School of Sociology and Social Anthropology, and an Honorary Research Associate at the Social Policy Research Centre, UNSW.

[2] S Encel, H Studencki, Over the Hill or Flying High? - An Analysis of Age Discrimination Complaints in NSW (1998) 28.

[3] S Encel, D Campbell, Out of the Doll’s House (1991) 157.

[4] Committee of Inquiry into Poverty in Australia (Henderson Report), Parliament of Australia, (1976) 242.

[5] C Foster, Towards a National Retirement Incomes Policy (Issues paper, Social Security Review (Australia); no. 6.) (1988) 17

[6] Equal Opportunity Act 1984 (SA) s 85a.

[7] Equal Opportunity Act 1984 (SA) s 85a.

[8] Anti-Discrimination Act 1977 (NSW) s 49ZU(3)

[9] NSW Anti-Discrimination Board, Discrimination and Age (1980).

[10] L Bennington, B Calvert, ‘Anti-Discrimination Legislation and HRM Practice’, in M Patrickson and L Hartmann (eds), Managing an Ageing Workforce (1998) 136.

[11] ILO Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, ATS 1974 No 12 (entered into force 15 June 1974).

[12] S Encel, M Trenerry, H Studencki, Older Workers, Flexible Retirement and Age Discrimination (1992) 60

[13] NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977 (1999) 16.

[14] Anti-Discrimination Act 1977 (NSW) s 49ZYJ(2)

[15] Equal Opportunity Act 1995 (Vic) s 17(3)(a)

[16] NSW Law Reform Commission, above n 13, 17.

[17] Human Rights and Equal Opportunity Commission, Age Matters (2000).

[18] Equal Opportunity Commission of Victoria, Age Limits: Report by the Equal Opportunity Commissions of Victoria, South Australia and Western Australia (2001) 14.

[19] House of Representatives Standing Committee on Employment, Education, and Workplace Relations, Parliament of Australia, Age Counts (2000) ii.

[20] Equal Opportunity Commission of Victoria, above n 18, 15.

[21] Ibid 13

[22] S Encel, ‘Age Discrimination in Australia: Law and Practice’ in Z Hornstein (ed), Outlawing Age Discrimination (2001) 29.

[23] S Encel and H Studencki, Job Search Experiences of Older Workers (1996) 4.

[24] S Encel, ‘Age Discrimination’, in Patrickson and Hartmann, (eds), n 10, 43.

[25] S Arber and J Ginn, ‘Only Connect: Gender Relations and Ageing’, in S Arber and J Ginn, Connecting Gender and Ageing (1995) 7.

[26] S Encel and H Studencki, Gendered Ageism: Job Search Experiences of Older Women (1997) 3.

[27] S Encel, ‘Age Discrimination’, in Patrickson and Hartmann, (eds), n 10, 45.

[28] S Encel, ‘Older Workers-Can They Succeed in the Job Market?’ (2004) 23 Australasian Journal on Ageing 34.

[29] S Encel, Age Can Work (2003).

[30] Business Council of Australia, Age Can Work (2003) 10.

[31] Commonwealth of Australia v HREOC and Bradley [1999] FCA 1524 (4 November 1999)

[32] Re McIntyre & Anor [1999] QSC 121 (7 June 1999)

[33] Ivory v Grifith University [1997] QADT 4 (30 January 1997)

[34] Gilshenan v P.D. Mulligan P/L [1995] NSWEOT

[35] Blatchford -V- Qantas Airways Limited [1997] NSWEOT

[36] Qantas Airways Limited v Christie [1998] HCA 18 (19 March 1998)

[37] M Thornton, The Liberal Promise (1990) 114.

[38] L Thornthwaite, ‘The Operation of Anti-Discrimination Legislation in NSW in relation to Employment Complaints’, (1993) 6 Australian Journal of Labour Law 31.

[39] S Encel ‘Ageing, Pensions and Employment in Australia: Recent Developments’, (2004) 34 Geneva Association Newsletter 3.

Download

No downloadable files available