Australians, young or old, have the right to be treated fairly and equally. Age cannot be a basis for discrimination. Every year, Australia loses immense talent and energy through age discrimination in the workplace—even though numerous studies highlight the positive qualities of older workers.

If you’re experiencing age discrimination in the workplace, or want to know how to prevent it, read on to learn more. You can also speak to the experienced employment lawyers at Owen Hodge for legal advice.

Age Discrimination in the Workplace

Age discrimination occurs when a person is discriminated against (treated less favourably) or not given the same opportunities because they are either too young or too old.

In general terms, age discrimination can be classified into two types.

  • Direct discrimination – occurs when a person is treated less favourably than others because of their age or on the basis of some characteristic that generally relates to their age group.
  • Indirect discrimination – occurs when someone discriminates against the aggrieved person on the ground of their age by:
    • Imposing or proposing to impose a condition, requirement or practice;
    • The condition, requirement or practice is not reasonable; and
    • The condition, requirement or practice has or is likely to have the effect of disadvantaging persons of that age.

Age discrimination legislation NSW

In Australia, age discrimination in the workplace is goverened by the following:

The Age Discrimination Act operates concurrently with the Anti-Discrimination Act (NSW). So when filing a complaint, the person must decide whether to bring it under the former or latter. A discrimination lawyer at Owen Hodge can assist you with this.

Learn more: age discrimination legislation

In Australia, it is illegal to discriminate against anyone in the workplace because of their age. This includes hiring, layoffs, promotions, pay and benefits. If you’re experiencing ageism in the workplace, you can take the following steps.

1. Speak to your employer

If you still work for the company, try voicing your concerns to your supervisor or the human resources department. When a worker highlights the differential treatment from the supervisors, sometimes they do not even realise at the time that they were treating the worker less favourably. Sometimes you can correct the situation internally without resorting to legal action.

2. Make a complaint

If you cannot resolve the issue with your employer, you can make a formal complaint through either the ADB or AHRC in NSW.

The ADB and the AHRC are government organisations that deal with age discrimination complaints. They do not make decisions about what happened, who was right or wrong or whether the law has been breached. Their job is to help you sort out your complaint. The ADB and the AHRC are not Courts and cannot enforce the law.

To make a complaint about age based discrimination, you have to choose between the ADB and the AHRC. This is called ‘electing jurisdiction’. You cannot lodge a complaint to both of them about the same problem. Knowing whether to choose the ADB or AHRC can be complicated, so it is important to get legal advice before you make your decision to lodge a complaint.

3. Carefully consider buyout offers

Workers can be asked to waive their right to pursue age discrimination charges in exchange for a buyout, severance pay, or an early retirement incentive offer. Oftentimes, these types of agreements are accompanied by or include agreements not to sue the company for claims that could have been raised at that time. Seek legal advice if you think you were singled out because of age.

4. Take legal action

If the matter cannot be resolved through the ADB or AHRC, you may wish to seek legal action. If you find yourself in this situation, please contact the employment lawyers at Owen Hodge as soon as possible.

NB: Know the time limit

An age discrimination charge must be filed with the Fair Work Commission within 21 days of the date of the alleged violation under the Fair Work Act 2009.

If you think you were laid off or denied a promotion unfairly because of your age, you will generally need proof. Collect documents that indicate you performed at least equally as other employees on the job. Keep a record of performance evaluations and gather what evidence you can to see if you were treated differently than similarly paid workers.

As an employer, you have a legal responsibility to prevent age discrimination in the workplace. You can do so by:

  • Developing an anti-discrimination policy and enforcing it
  • Undertaking discrimination and diversity training
  • Remaining vigilant and being able to identify the signs of age discrimination in the workplace
  • Cultivating an environment where employees are comfortable in speaking up
  • Rethinking how you advertise jobs (i.e. write job descriptions with age neutral language, be upfront with salary ranges)

Owen Hodge is here for you

Dealing with ageism in the workplace can be traumatic, and affect you mentally and emotionally. At Owen Hodge, sensitivity, care and compassion is of the utmost importance in the way we interact with our clients.

If you feel you have been unlawfully discriminated against on the basis of age, please feel free to approach Owen Hodge Lawyers. Our team of experts will make every effort to get you the best outcome from your complaint. Keep in mind that time limits apply. Therefore you should act quickly and seek legal advice in making a complaint.

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