CEPAR releases fact sheet on mature workers' legal rights

Employers can now access a fact sheet explaining how workplace health and safety (WHS) and anti-discrimination laws relate to mature workers in Australia.

The fact sheet, released by the ARC Centre of Excellence in Population Ageing Research (CEPAR), looks at challenges associated with an ageing workforce, which workers are covered by the Fair Work Act, what constitutes discrimination, how employees can take action, employees’ right to flexible work and employers’ WHS obligations.

According to the fact sheet, almost 20% of Australian workers are over the age of 55 and this proportion will rise as the population ages. However, many older workers find the labour market unwelcoming and those who do not retire early often face unemployment longer than younger workers.

CEPAR Chief Investigator and Professor of Gender and Employment Relations at the University of Sydney Business School Marian Baird said: “Ageism and rigid work arrangements that don’t enable flexibility are two major barriers to older people remaining in, or re-entering, the workforce.

“Policymakers have recognised that mature workers need special protections,” she added, with the fact sheet explaining that age discrimination laws apply to all stages of the employment process — including recruitment and selection, employment terms and conditions, training and development, promotion and transfers, and termination of employment.

These prevent employers from treating people unfairly compared to others because of their age, or implementing policies and practices that seem to be the same for everyone but are unreasonable for certain people because of their age — such as implementing unnecessary fitness tests during recruitment. Not only does this protect mature workers’ employment rights, but also, their mental health.

Additionally, mature workers have the right to request flexible work, based on age, so long as they have continually worked for an employer for more than 12 months. Employers must seriously consider these requests and — as of 2018 — must discuss the request with the employee to determine the employee’s needs, consequences for the employee if the request is refused and any reasonable business grounds for refusing the request. If the employer refuses the request, the written response must include reasons for refusal and potential alternative working arrangements the business can offer. Employees can dispute employers’ decisions with the Fair Work Commission if employers have failed to genuinely follow these protocols.

Finally, the fact sheet looks at work safety. Under model workplace health and safety (WHS) laws, which most states and territories and the Commonwealth have implemented, persons conducting a business or undertaking (PCBUs) are obligated to eliminate, or if not possible, minimise so far as reasonably practicable, any risks to health and safety arising from work. This means employers may need to accommodate declining physical abilities of mature workers, including: glare reduction, increasing font size on printed materials, eliminating unwanted noise to prevent hearing loss and minimising night shift work where possible.

Employers can access the full fact sheet via CEPAR’s website.

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