NEW AGE discrimination laws are said to be the primary cause of increased age discrimination complaints by The Australian Human Rights and Equal Opportunity Commission (HREOC) for the reporting year 2004-05.
Out of 1,241 complaints, 78 age-bias complaints were received, according to the report, with almost half of these deriving from people aged between 45 and 64.
While agreeing that the new Federal age discrimination laws have some part to play in the rising number of age complaints, Alison Monroe, director of SageCo, believes that increased publicity of the issue is another factor to be considered. “We’ve particularly seen increased media and social commentary on the aging of the workforce over the past two years. This is educating employer groups about the need to act, but also it is raising the level of awareness among the mature workers in Australia that in fact there is an injustice here to some degree and that they do deserve a fair go when applying for jobs along with their younger cohorts. I think that increased visibility and awareness is lending itself to this increase in the number of complaints,” she said.
Baker & McKenzie partner Michael Michalandos, in the firm’s employment litigation group, said that they too have seen an influx of age discrimination cases. However, despite his acknowledgement of the impact that new laws may have on the number of age-bias cases, Michalandos said he is surprised by the conclusion of HREOC, as age discrimination is something that has been around for quite some time.
Michalandos suggests that the popularity of age discrimination in terms of litigation are also due to holes in unfair dismissal legislation. He said the removal of unfair contract rights for executives earning more than $200,000 in NSW during 2002 has had an impact, leading executives to use discrimination, as they are unable to run an unfair contract claim.
Secondly, Michalandos argues that WorkChoices and the removal of unfair dismissal rights is a factor, “I suspect that under WorkChoices employees will no longer be able to access unfair contract rights in NSW and other rights across Australia, so the only ability for employees to challenge the grounds for termination if they fall outside the unfair dismissal legislation is going to be discrimination and I think we’re going to find that employees that are grieved by a termination will see discrimination as a first resort,” he said.
As a majority of age discrimination complaints are deriving from mature age workers “it is indicative of a culture of phasing out in the latter parts of your career and there’s very much a culture of early retirement that has been driven over the past 20 years. Organisations have in fact provided incentives for individuals to leave the workforce early, both in the public and private sectors and super has also driven the exodus from the workforce because there can be financial disincentives for people continuing to work beyond 55,” said Monroe.
Perhaps more worryingly is the fact that this up turn in discrimination against mature aged workers flies in the face of obvious advantages to organisations to retain their more experienced staff.
Given the aging customer base, shareholders and the broader community, if you can reflect that within your own workforce then you can only stand to benefit, according to Monroe.
Both Monroe and Baker & McKenzie’s Michalandos believe there has not been enough focus on age discrimination and that corporate Australia has been slow to acknowledge the Acts. Better management of age discrimination and a more concentrated focus on the issue is seen as vital in helping reduce claims of age bias in the Australian work force.
“I think most employers have fairly rigorous equal opportunity policies in place, but haven’t yet concentrated on age discrimination as an issue. They’ve concentrated more so on sex discrimination and family responsibilities and I think it is a challenge for employers because often employers that don’t have a sophisticated performance management system in place tend to use age as an out,” said Michalandos.
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