Katrina Murphy – Talking about
Industrial Relations
In this regular column, our resident industrial
relations expert, Katrina Murphy will answer questions
on employment, employee relations and Industrial
Relations topics. This article looks at questions about
age discrimination.
Employment of Juniors
Q: We would like to employ two junior casuals in our
business to work two four-hour shifts each week during
the school holidays helping with minor administrative
tasks, such as sorting papers, archiving, filing and
running errands. We would like to specifically advertise
for junior clerks but are concerned that we may break
anti-discrimination legislation in doing so.
A: Under the Age Discrimination Act 2004 and State
legislation, it is not unlawful for an employer to
advertise for, employ and pay a person as a junior up to
the age of 21. It is against the law to dismiss a person
from employment because they turn 21.
Paying an Extra Week’s Notice of Termination
based on Age
Q: I have heard that under Fair Work Act, employers
must pay an extra week’s notice of termination if
someone is over 45. Is this correct and why is this not
age discrimination?
essential duties of the job because their age restricts
them from getting the necessary qualification to
perform them, then this is lawful discrimination.
Similarly, a 16 year could be refused a job as a bar
attendant in a licensed hotel.
Medical Examination for 60 Year Olds
Q: In the interests of health and safety, is it lawful for
our Company to make everyone undertake a fitness to
work test, when they turn 60? We want to look after
and retain our older workers. Our Company sees this
as a positive message. We know our older workers will
welcome this, as we intend to pay for the testing. We
will be sharing the results with them.
A: No, it is not lawful. It would be unlawful age
discrimination whether or not the employees agreed
to it, and whether or not the employer paid for the
testing. Employers cannot make assumptions on
fitness/medical characteristics/conditions on the basis
of age. Employers can require medical assessments
to be performed for someone to continue to work or to
return to work if there is specific evidence to support a
concern about their fitness (e.g. an employee has had
several severe dizzy spells at work over the past two
days and has reported severe pain and disorientation
at the time of those dizzy spells.) Specific evidence
cannot be age related.
Advertising
Q: Can I advertise a desired age range for a position if
the range is broad enough e.g. 25-45 years of age? I will
only say “desired” not that the age range is mandatory.
A: That is correct, but only if the employee has at least
two years continuous permanent service at the time
of termination (including their probation/qualifying
period.) This is because all anti-discrimination
laws have exceptions which include things done in
compliance with state, territory and Commonwealth
laws. Fair Work Act is a Commonwealth law. Modern
awards which contain junior rates of pay based on age
are also part of Commonwealth law, and are therefore
not unlawfully discriminatory. A: No, you cannot. This is unlawful age discrimination,
using the word “desired” or having a twenty year age
range makes no difference.
Not Able to Meet the Inherent Requirements of
the Job based on Age A: No, you cannot. You can specify that all applicants
must have completed their degree, that they must
provide evidence of completion and you can even
specify the type of degree you require. But you cannot
make any reference to age.
Q: I have heard that a person too young to get a driver’s
license cannot be refused a job as courier because this
would be age discrimination. Can this possibly be true?
A: No, it is not true. If a person cannot perform the
Qualifications
Q: Can I say that I require the successful applicant for a
Graduate Architect role to be 21 or over on the basis that
there is no possibility of them being younger than that
if they have completed their degree?
By Katrina Murphy. Managing Director Katrina Murphy
Industrial Relations Pty Ltd.
Autumn 2019 71