You’ve just conducted an interview with a prospective employee. Bill had everything you were looking for – strong technical ability, industry experience, his own client base, a commitment to the job and you really liked his personality. There’s only one issue for you – Bill’s age. As Bill waves goodbye, you find yourself wishing he was 20 years younger. You don’t offer Bill the job, you offer it to someone 20 years younger, with less experience, no client base and mediocre technical skills. The only reason you discriminated against Bill was because he was simply ‘too old’. This is illegal.

As Australia’s birth rate declines and greater demands are placed on a decreasing workforce, it is anticipated that one issue for employers will be the retention of great staff, and not just younger employees. So employers will need to look at the often overlooked demographic – the older worker. The Federal Treasurer, Peter Costello, has indicated that the traditional retirement age of 65 may need to be readjusted because many people will, our of necessity, be required to work longer to support themselves.

The Age Discrimination Act (“the ADA”) passed the Senate on 15 June and was given royal assent on 22 June 2004. This is the first federal Act directed at discrimination since the Disability Discrimination Act was enacted in 1992. The other federal legislation in this area is the Race Discrimination Act in 1995 and the Sex Discrimination Act of 1994/

What does this mean for employers?

In order to retain older employees, it is predicted that employers will have to consider flexible work practices such as:

• working less than the standard full time week
• requests to work from home
• job-sharing

There have been a large number of cases in which parents, particularly of very young children, have sought flexible work practices. Consequently there has been an increase in the claims of discrimination on the grounds of pregnancy and family responsibility. Similarly, we anticipate an increase in cases relating to older workers or their carers.

However, given that age discrimination has been prohibited under State legislation and unemployment rates are high, particularly for men in the 50+ age bracket, realistically it is likely to be the shortage of labour which will ultimately impact on the rates of age discrimination.

FURTHER INFORMATION

This Information Outline is provided courtesy of McKean & Park Lawyers & Consultants who are experienced in this area of law. They are located at 405 Little Bourke Street MELBOURNE VIC 3000 or call them on (03) 9670 8822 if you would like more information on the legal topic, or you wish to obtain formal advice regarding your situation.

McKean & Park was established in 1863 by James McKean and thrives today with 20 professionals specifically in all major areas of practice including Workplace Relations and Anti-Discrimination Law. The firm is proud of the fact that many of its Lawyers are accredited specialists approved by the Law Institute of Victoria. McKean & Park is committed to providing clients with comprehensive and innovative legal services delivered promptly in a professional and cost effective way.