Our News

Older workers trapped in unemployment netherworld – Workplace Info

By Alan J. McDonald


McDonald Murholme Managing Director Alan McDonald discusses the rising number of employees over the age of 45 falling into the gap between work and retirement.

See below article for further details.

Older workers trapped in unemployment netherworld – Workplace Info

A rising number of people over the age of 45 are falling into the gap between work and retirement – too old for ageist employers yet too young to retire.

A recent study by the Brotherhood of St Laurence titled ‘Too old to work, too young to retire’ found that 40 per cent of clients who use employment services are mature aged Australians who have spent more than a year on income support.

Why are employers tempted to reject mature aged workers?
With the number of university graduates constantly increasing, mature aged workers with a wealth of experience, yet outdated qualifications, are overlooked. Instead, ageist employers favour flexible and hardworking graduates.

Employers are often reluctant to employ people over the age of 45 as they fear that many older people may have inflexible opinions, a higher risk of illness or injury and demand higher salaries because of their experience.

As a result, many mature aged workers must face the reality of opening their own one-person small business and manage an ABN number, self-promotion and the peaks and troughs of work.

What laws protect mature-aged workers from being discriminated against?
The Fair Work Act 2009 (Cth) provides many remedies against adverse action by employers.

Section 351(1) of the Fair Work Act 2009 (Cth) prohibits an employer from taking adverse action against an employee for reasons that include an employee’s age.

Moreover, there are certain Equal Opportunity laws that prohibit the discrimination of older employees.

In Victoria, section 18 of the Equal Opportunity Act 2010 (Vic) prohibits an employer from treating an employee unfavourably because of that employee’s age. At a federal level, section 18 of the Age Discrimination Act 2004 (Cth) similarly prohibits an employer from treating an employee unfavourably because of that employee’s age.

These laws apply to both employees and contractors. However, employers seem less fearful of these remedies being used by subcontractors because they can generally avoid ongoing costs including payroll tax. They are thus more likely to hire subcontractors as opposed to permanent employees.

What to do if you have been discriminated against for your age?
In the event that an employer discriminates against an employee because of their age or experience, an employee can make a claim under the Fair Work Act or the Equal Opportunity laws.

General protections provisions under the Fair Work Act protect older workers from being discriminated against during the recruitment process or having their duties significantly altered in order to force the long term employee out of the company.

The reverse onus will then be on the employer, to prove the discriminatory actions were not based on the employee’s age or length of service.

Mature aged workers may also make a complaint to the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 2010. This is in the event that they are dismissed because of age discrimination and past their 21 day deadline to file a general protections application under the Fair Work Act 2009 (Cth).

If you are an older worker who is being discriminated against because of your age, seek legal advice.

Alan McDonald is managing director of law firm McDonald Murholme.

Reference: ‘Older workers trapped in unemployment netherworld’, Workplace Info, 19 September 2016.