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Age discrimination​

image of old lady with eyes close 

    What does the law say about age discrimination?

    It is generally against the law in NSW to treat you unfairly or harass you because of your age, or because of the age of any of your relatives, friends, associates or work colleagues.

    Indirect age discrimination is also against the law. This occurs when there is a rule or requirement that disadvantages people who are in one age group rather than another - unless the person or organisation can show that the rule or requirement is 'reasonable in all the circumstances'. Some examples of indirect discrimination are included in the following sections.

    When does this law apply?

    Age discrimination is generally against the law in the following areas:

    • in employment - when you apply for a job or for a licence or registration to perform a job, when you are at work, or when you leave a job;

    • when you get or try to get most types of goods or services - for example, from shops, banks, lawyers, government departments, police, public transport, local councils, doctors, hospitals and other medical services, hotels, sporting venues and entertainment venues;

    • when you apply to get into or study in any State education institution, which includes any government school, college or university;

    • when you rent accommodation such as houses, units, hotel or motel rooms and commercial premises; and

    • when you try to enter or join a registered club, or when you get services from one. A registered club is a club that sells alcohol or has gambling machines.

    There are some exceptions to the age discrimination law. These generally apply in common sense situations that most people will agree with. They are described at the relevant points in this factsheet.

    What are my work rights?

    Applying for a job

    image of pizza delivery boyYou have the right to apply for most jobs and to be fairly considered for them, no matter how old you are, or how old any of your relatives, friends or associates are, including your children. This also applies to apprenticeships and traineeships, and to bodies which issue licences to perform particular jobs, for example taxi licences or registration to practice as a nurse.

    In general, all jobs, apprenticeships and traineeships must be open to people of all ages, and job advertisements must not specify a particular age group. You must not be prevented from applying for a job or refused a job just because of your age (or the age of any of your relatives or associates).

    For example, an employer or employment agency mustn't refuse to interview you because they consider you to be too old or too young for a particular position, or because you have young children.

    Also, an employer or employment agency must not require a fixed number of years of experience, or qualifications that take a certain time to get, unless these are absolutely necessary for the job in question. This is because younger people may not be able to meet these requirements as easily as older people.

    Exceptions

    There are some exceptions to the general rule that all jobs must be open to people of all ages. It is OK for an employer to do the following:

    • advertise for and employ a 'junior' and pay them at junior rates, as long as they are under the age of 21;

    • advertise for and employ someone of a particular age if age is an essential and relevant part of the job - for example to act the part of a young person in a play, or to provide welfare or support services for a particular age group; and

    • refuse to employ children under the age of 14 years and nine months, unless the child has permission to leave school early. Employers can only employ children under this age as casuals if they have a licence to do so.

    During employment

    You generally have the right to be trained, promoted, and get all other work benefits, no matter how old you are, or how old any of your relatives or associates are, including your children. All other rules in the workplace should also be applied in the same way to people of all ages.

    In some cases, work benefits that are based on the number of years you have been in a job may be against the law. This is because older people may be more likely to get the benefits. However, if an employer can demonstrate that years of service are a reasonable basis for that benefit then it wouldn't be against the law.

    Exception

    The main exception to this is that 'juniors' aged under 21 can be required to follow different rules from other employees, and can get different benefits.

    You also have the right not to be harassed at work because of your age, or the age of your relatives or associates, including your children.

    Dismissal

    You have the right not to be dismissed, retired or made redundant because of your age, or the age of your relatives or associates, including your children.

    In general, you should only be dismissed if you are no longer able to do your job properly, or the job no longer exists. Your age must not be used as a reason to dismiss you, retire you or make you redundant. However, employers are allowed to limit voluntary retirement or voluntary redundancy schemes to people who have worked for a certain length of time.

    Compulsory retirement

    It is generally against the law in NSW to force people to retire if they don't want to. This means that most employees can continue working beyond any compulsory retirement age that applied in the past.

    What is compulsory retirement?

    Compulsory retirement is when an employer tells you that you must retire because you have reached a certain age. It can also occur if they threaten to retire you without actually doing so, or do anything else to try to make you retire.

    Following are examples of things that may be compulsory retirement, depending on the circumstances:

    • offering essential training to younger employees and not to older ones;

    • giving an older employee less work, work that is of a lower status than they were doing previously or work that is demeaning;

    • using performance reviews or medical assessments as a way of retiring older employees - for example making an older employee pass a medical assessment that younger employees don't have to pass. Assessments should only relate to a person's ability to perform the tasks of their particular job, regardless of their age. If you have a disability, employers should generally provide you with the services or facilities you need to do your job;

    • putting older employees on fixed term contracts, where younger people are not; or

    • withdrawing financial benefits such as increments or bonuses from older people, when younger people are still receiving them.

    Of course, you can still choose to stop working at the compulsory retirement age that applied in the past, or at any other age. In general, it must be your choice and not your employer's choice when you retire, as long as you are still capable of doing your job.

    An employer can't use the excuse that a State industrial award or agreement says they must retire you. The law against compulsory retirement overrides these. It also overrides NSW Acts and Regulations applying to public sector employees.

    Exceptions

    Following are examples of people who can still be compulsorily retired in NSW:

    • judges and magistrates

    • an officer not appointed for a fixed term, who can only be removed from office by Parliament.

    What are my rights to goods and services?

    You have the right to:

    • get most goods or services no matter how old you are, or how old any of your relatives or associates are, including your children; and

    • get most goods and services on the same terms as people of other ages - for example you must not be charged higher prices, or have to meet different rules.

    • You also have the right not to be harassed while getting goods and services because of your age, or the age of your relatives or associates, including your children.

    Exceptions

    • legal age limits still apply for things like drinking, getting a driver's licence, sexual activity, marriage, voting, watching films with different ratings, buying cigarettes and alcohol, giving consent for tattoos, adopting a child, getting age-related social security benefits, needing to be accompanied by an adult for safety reasons, and so on;

    • insurance, superannuation and credit providers can discriminate on the basis of age if there is good statistical evidence to support their decision, or if another law says that they must discriminate on the basis of age;

    • benefits, concessions or services can be offered to help specific age groups, such as children or the elderly;

    • holiday tours can be offered for specific age groups;

    • sporting activities can be offered for specific age groups;

    • driver's licences can have restrictions based on age; and

    • wills can say that people can only get money or other things when they are a certain age.

    What are my rental accommodation rights?

    You have the right to:

    • rent accommodation no matter how old you are, or how old any of your relatives or associates are, including your children. For example, a real estate agent or landlord can't refuse you accommodation just because you have children, or because they think you are too old or too young to look after the property. Generally, they can only refuse to rent to you if the accommodation is not large enough for your family or group, or you can't pay for it, or your references don't check out; and

    • rent accommodation on the same terms as people from other age groups - for example you should not have to pay a higher rent because you have young children.

    You also have the right not to be harassed while renting accommodation because of your age, or the age of your relatives, friends or associates, including your children.

    Exceptions

    • shared accommodation in a private household. If you share facilities with the owner of the accommodation or their close relative, and the shared accommodation is for six or less people, then they are allowed to specify the age of their tenants. This does not apply if the accommodation is self-contained and does not share facilities;

    • accommodation can be specially designed to meet the needs of a particular age group such as the elderly or young people; and

    • if the accommodation is on licensed premises, people under 18 can be refused access to the licensed areas, and any mini-bar in their room can be locked or removed.

    What are my State education rights?

    State education includes education at any State university, State college, TAFE or State school. Independent, private and/or religious-based educational institutions are not covered by the age discrimination law, so they can discriminate on the basis of age if they choose to.

    Generally you have the right to apply for and get education, and any related benefits, at any State educational institution - no matter how old you are, or how old any of your relatives or associates are, including your children.

    Exceptions

    • there is a minimum school entry age;

    • generally schools are intended for children aged 18 and under, and TAFE colleges for people over 18 who want to study the school curriculum. However individual situations are dealt with on a case-by-case basis;

    • other State educational institutions can refuse you admission if you are below the age they have set for the type of education you are applying for (for example a mature-age entry program). However there is no upper age limit on entering or staying on at any State educational institution; and

    • benefits can be provided to help students in particular age groups, such as mature age students or school students in particular grades.

    What are my registered club rights?

    Registered clubs include any clubs that sell alcohol or have gambling machines - for example RSL clubs, workers clubs, most ethnic clubs and sporting clubs. Voluntary clubs such as Rotary and Lions are not registered clubs and can therefore discriminate on the basis of age if they choose to.

    You have the right to:

    • be a member of a registered club no matter how old you are (as long as you are at least 18). If you are 18 or over, your age must not be used as a reason to refuse you membership or take away your membership. (Sporting clubs can also give junior membership to people aged under 18);

    • get benefits and services from a registered club on the same basis as people from other age groups (aged 18 or over).

    Exceptions

    • registered clubs can be set up specifically to cater for a particular age group;

    • registered clubs can have different categories of membership based on age; and

    • registered clubs can provide benefits to members based on age.