Dooley Blog

Medical research is encouraging the aging workforce to remain employed to keep their brains sharp. Psychiatrist Ian Hickie of the University of Sydney’s Brain and Mind Research Institute says "Work is your own personal cognitive training program because it keeps you challenged and engaged" and says mental and physical health is better in those employed as opposed to the unemployed. He adds, “the brains of many modern 65 to 70 year olds are in pretty good shape compared to those of previous generations and as such are often too young to be retired.”

Added to this medical research is the fact that both men and women born after 1957 are not eligible for the Age Pension until the age of 67. As such, staying employed for many is not necessarily a choice but a necessity yet many older workers find themselves rejected by the modern workplace. Participants in a recent national survey reported encountering “discriminatory practices in recruitment and promotion, as well as harassment, bullying and pressure to retire” is still being experience by people in our workforces. By way of example, retrenchment and restructure programs frequently target older workers.

Age discrimination is becoming more of an issue for both employers and employees. Figures released last week from the Australian Bureau of Statistics revealed 18 per cent of unemployed people, aged 45 years and over, said the main reason they had difficulty finding work was because employers considered them too old.

These statistics reveal that age discrimination is very prevalent in our society. This may be difficult to believe given the degree of protection employees have against discriminatory conduct of their employer. In particular the Age Discrimination Act 2004 which helps ensure that employees are not treated less favourable based on their age. The Act protects against discrimination in many areas of public life, including getting a job, terms and conditions of a job, training, promotion, dismissal and redundancy.

In addition the Fair Work Act prohibits an employee taking Adverse Action against an employee for amongst other things the employee’s age. Adverse Action includes for example; terminating the employee, demoting the employee or discriminating between the employee and another employee when promoting. An employer who breaches the legislation can find themselves before Fair Work Australia and/or being investigated by the Fair Work Ombudsman.

However, the employer cannot be held solely responsible for an older employee and employees need to also ensure they remain employable and are viewed by the employer as an asset, regardless of age. Mark Miller of Reuters Money offers the following to assist older workers enhance their job security:-

• Be vigilant about appearance
• Stay tech savvy
• Seek situations where you can have greater proximity to revenue
• Build and maintain relationships
• Involve yourself in critical long-term projects and programs
• Be a reputation-enhancer
• Play your strong card, which is experience

• Look beyond the horizon to the future

Everyone at some point in their life will be facing the issue of aging in their employment. The focus needs to be on ensuring that everyone has the opportunity to work with respect and dignity into their senior years with all parties acting responsibly and supportive to achieve positive outcomes for all.

If you would like some legal assistance with your employment situation, please contact us. 

Governments across Australia have always and continue to take a firm approach towards discrimination in our society. Laws, including the Racial Discrimination Act, Anti-Discrimination Act, Sex Discrimination Act and Equal Employment Opportunity Act (to name a few) were introduced, and continue to operate, for the main purpose of protecting individuals and groups in society from various forms of unfairness, prejudice and discrimination based on cultural factors, race, religion, gender, ethnicity, age and class.

The Issue

Despite the existing laws and safeguards, discrimination has continued to be a prevalent issue in society, particularly in the workplace. This has continued to be the case, in part, due to changing society and the emergence and development of new forms of discrimination. Discrimination continues to be a problem in our society and is as always a challenging issue. In more recent times discriminators have been aided by the rapid advancement of electronic communication and the rise of high speed and easy to access social media.

The Solution

In an effort to respond to changing society and continue a strong approach against discrimination, the Federal Government introduced the Sex and Age Discrimination Legislation Amendment Bill 2010 (Cth) (“the Act”) on 24 May 2011.

The Act seeks to bolster the existing discrimination laws, with the aim of eliminating discrimination, facilitating greater legal protection for vulnerable individuals and groups, and promoting gender equality. The Act focuses largely on age and sexual discrimination in the workplace (mainly direct discrimination) and the responsibility of employers to protect their staff.

Most notable of the Act’s amendments include the following:

• making it unlawful to discriminate against both men and women based on their family responsibilities in all areas of employment not just in relation to termination;

• making it unlawful to discriminate against a person who is breastfeeding in the workplace or in public;

• broadening the protections against sexual harassment in the workplace, treating sexual harassment as a form of unlawful discrimination, extending workplace sexual harassment to include sexual harassment from a customer/consumer;

• broadening the protections for students against sexual harassment within and outside their educational institutions; and

• strengthening protections against sexual harassment in workplaces and schools conducted via new technologies, such as the internet, social networking mediums and mobile phone texting.

The New Commissioner

In addition to the changes noted above, the Act will also introduce a new Age Discrimination Commissioner to sit in the Australian Human Rights Commission. The new Commissioner will have the responsibility of raising awareness and educating the community about all areas of discrimination, particularly age discrimination, which along with our ageing population seems to be on the rise. The Commissioner will also implement strategies for the elimination of discrimination in all levels of society.

What can you do?

Employers

As an employer it is your responsibility to ensure that your business is complying with all the new changes.

We suggest that you take the time to carefully review your current employment contracts and existing policies and procedures to make sure they take into account and are in line with the new changes and bring into effect proper business practices to ensure that you meet your obligations and responsibilities under the Act.

Business changes to consider may include:

• notifying and training your current staff in relation to the recent changes and their respective rights and obligations under the Act;

• implementing new grievance and complaints procedures to assist with cases of sexual harassment in the workplace;

• implementing more stringent Information and Technology policies and procedures;

• implementing greater flexibility for staff in relation to family commitments;

• implementing new breastfeeding provisions and policies to existing employment agreements particularly for those on Parental Leave; and

creating new facilities for breastfeeding to occur in a comfortable and flexible manner.

Employee

As an employee it is important for you to ensure that you understand your rights and obligations under the Act. You should take the time to review and familiarise yourself with the new changes and make sure you discuss any concerns with your employer or your solicitor.

Next Steps

Whether you are an employer or employee, we are here to assist you understand the new provisions of the Act and ensure that you meet your respective obligations and ensure that your rights are protected against unlawful discrimination.  Please contact us if you have an enquiry.