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Both the Equal Opportunity Act 1984 (SA) and the Age Discrimination Act 2004 (Cth) prevent employers from age-based discrimination. These Acts apply whether an employee or prospective employee is young or mature-aged. They apply to workers as well as those who apply for employment. General Protections, which include anti-discrimination rights, are also afforded to every Australian worker under the Fair Work Act 2009 (Cth).

What classifies as discrimination?

Direct discrimination is where one employee is treated less favourably than another employee because of their age or a quality shared by people of their age.

For example: Sandy, who is 55, applies for a job as an office administrator. Even though her qualifications are excellent as she has 30 years of experience, she is told that a person of her age is too old to work with computers.  Sandy could claim that she was discriminated against because of her age.

Indirect discrimination is where employers impose unreasonable conditions that affect employees of one age group more than they affect employees of a different age group.

For example: a company requires candidates to pass a fitness test suitable for young employees, when being fit is not a mandatory or preferred requirement of the job. This could be an example of indirect discrimination.

Employee complaints

Complaints can be made to the Equal Opportunity Commission, the Australian Human Rights Commission and the Fairwork Commission. Time limits usually apply in these jurisdictions.

Complaints made to the Equal Opportunity Commission must be made within 12 months of the alleged act of discrimination. Complaints under the General Protections regime must be made within 21 days.

There is no statutory time limit within which to make a complaint to the Australian Human Rights Commission, but complaints should always be made as soon as is practicably possible following the alleged incident or discrimination, noting that personal injury claims must be made within 3 years of the date of injury.

All regulatory bodies will attempt to resolve the problem by mediation and or conciliation, specifically by bringing the employee and employer together to try and reach an agreement that is mutually acceptable to both parties. If this does not resolve the problem, either party can progress the matter to the relevant Court or Tribunal.

To ensure that your company is complying with the relevant anti-discrimination legislation, or to discuss any aspect of business or personal law contact Julia Adlem or Alisha Thompson at Pace Lawyers on (08) 8410 9294 or send an email via this form.