Forced into retirement? Understanding your rights as an older worker

Losing your job is tough to deal with at any age, whether you are young and just starting out on your chosen career path, or if you may be nearing retirement and considering what your life might look like once you have taken the leap and embraced the freedom that goes hand in hand with the life stage.

However, regardless of whether retirement is something you see happening in your near future, the prospect of being forced into retirement is a harsh reality than many older Australians are faced with, with some employers choosing to hire younger (and usually cheaper) members of staff.

Despite mature workers having a wealth of experience under their belt, some Australian companies are breaking the law and enforcing ‘age limits’ as part of their hiring and firing process. In fact, a shocking report published by the Australian Human Rights Commission last year revealed that 30 per cent of Aussie companies are not following the law, with two thirds of them admitting they draw the line at employing anyone over the age of 50.

If this is something that worries you, or perhaps you’ve found yourself on the receiving end of ageism in the workplace, here is an outline of the laws in place to protect you:

What laws protect older workers?

Under the Age Discrimination Act 2004 it is unlawful for work providers to discriminate on the basis of age with everything from recruitment arrangements and access to promotion to training opportunities and termination. This means, employers in Australia are not allowed to farewell a member of their staff just because they have reached a certain age with every person treated equally and given the same opportunities to succeed.

There are a number of exemptions to this law, one being if the different treatment received is an act of positive discrimination, meaning they are benefitted from the measure. Meanwhile, other general exemptions relate to charities, religious and voluntary bodies, a court order, or taxation or targeted Commonwealth employment programs, with the specifics all detailed in the Act.

Who is liable?

Both an individual or an organisation can be held legally responsible for unlawful actions when it comes to age discrimination in the workplace. This means a singular person or the company as a whole could pay compensation to the individual affected by their actions, assisting with any financial lost.

As detailed in the Act itself: “It is also important to note that an employer or other work provider can be vicariously liable for the actions of employees or agents where these amount to unlawful discrimination, or an unlawful request for information, unless they have taken reasonable precautions or conducted due diligence to prevent discrimination on the basis of age.”

How are older Aussies being impacted by unlawful actions?

Despite there being laws in place to prevent any kind of age discrimination in the workplace it seems it hasn’t stopped companies from breaking the rules and unfairly treating the particular generation. Speaking to Starts at 60 recently, Bruce Simmonds, litigation director at Parker Simmonds Solicitors and Lawyers, said he had received calls from at least 20 mature-age workers in the previous year looking to sue their former employers for putting them out of a job for what the workers felt was for no reason other than their age.

“I have quite a number of clients sharing the same experience,” he explained. “They are all in their late 50s or 60s, and have been made redundant from previous jobs and need to stay in the workforce. There are agencies that score thousands of dollars in government incentives to place these people in new jobs but too often the new jobs are a nightmare for the worker.”

According to Simmonds, many ostensibly respectable companies are hiring older workers, but paying them minimum wage and imposing unfair working conditions, with the workers left too scared to complain for fear of losing their jobs. “Older workers are the people with the least rights in the workplace and generally the unions can’t or won’t do anything to help them,” the lawyer said. “Part of the problem is the mindset of younger bosses who can’t relate to older workers or have no respect for them.”

The effects on retirees themselves

Many Starts at 60 readers report experiencing discrimination in the workplace, with some struggling to secure a job after reaching the age of 60, despite having the relevant skills and experience. Some were laid off suddenly after years with an employer or in an industry, and have found their extensive experience more of a hinderance than an asset when trying to obtain a new job. This often leads to money concerns with no income to rely on.

Starts at 60 reader Rae found herself out of a job early last year, but did not expect it to be too difficult to secure a new role, given that she had years of administrative work under her belt. But despite sending more than 60 job applications, she received just three invitations to an interview and remained unemployed months down the track, despite undertaking further study in horticulture and wine industry operation in hope of widening her skill base.

“I am deeply hurt and angry that I, at 63, am considered worthless as an employee, that I am either over skilled, or even more insulting, that I am under skilled for the position,” she told Starts at 60. “It is an obvious discrimination on the basis of my age – apparently over-60s have lost their marbles!”