WHY THE RETIREMENT AGE LIMITATION SHOULD NOT BE REMOVED

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1 Appendix 5 1 APPENDIX 5 WHY THE RETIREMENT AGE LIMITATION SHOULD NOT BE REMOVED Introduction The ACTU s claim 1. The ACTU is seeking the removal of the existing provision that limits severance payments to the amount a retrenched employee would have earned if their employment with their employer had proceeded to its normal retirement date. 2. This retirement age limitation provision, inserted in the TCR standard in 1984, takes the following form: Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee s normal retirement date. 3. To justify its removal, the ACTU argues that this provision is no longer needed since the concept of a normal retirement date is ceasing to have relevance: The current limitation on the payment of severance pay to amounts which would have been earned to the normal retirement date if the employment had continued is inappropriate in an environment where the whole concept of a normal retirement date will cease to have relevance because of an ageing workforce and the passage of age discrimination legislation. 1 The Commonwealth s position 4. The Commonwealth opposes removing the retirement age provision. 5. The Commonwealth supports the general principle articulated by the original TCR case Full Bench in 1984 and subsequently endorsed through a series of other Commission decisions that is, the general principle that employees who are retrenched just prior to their projected 1 ACTU s Contentions volume 1 paragraph 46.

2 Appendix 5 2 retirement date should not receive more than they would have earned had they remained employed until retirement. 6. This principle is sound the amount of money paid to a retrenched employee by way of severance pay should not cause that individual to be better off than if they had never been retrenched. 7. The TCR provision that implements this principle will remain valid while ever employees have retirement dates that are known in advance. This will continue to be the case in two sets of circumstances: where a particular occupation or industry continues to have a fixed retirement date; and where employees and employers continue to reach agreements in advance about specific retirement dates. 8. It is where employees and employers agree in advance to a retirement date that the principle underlying the current provision will continue to be most universally relevant in the future. It is common practice for employees and employers to discuss and plan retirement dates in advance. Where they do so, the principle underlying the existing age retirement provision is highly relevant if the employee is retrenched before the agreed retirement date, severance pay should be capped so that the employee does not receive more than if the employee worked through to the retirement date. 9. In the remainder of this section, the Commonwealth will substantiate that this provision remains highly relevant through: identifying why the existing provision was established in 1984; showing that the provision is not age discriminatory; demonstrating that the proposed federal age discrimination legislation does not abolish all compulsory retirement dates; and showing that this proposed legislation will not prohibit agreed retirement dates.

3 Appendix 5 3 Issues The general principle behind this provision 10. In the original TCR case the Full Bench considered the situation of employees retrenched close to their anticipated retirement date: In addition, we are of the opinion that where termination is within the context of an employee s retirement, an employee should not be entitled to more than he/she would have earned if he/she had proceeded to normal retirement The Commission s general principle here is quite clear. It would have been absurd to set up a severance pay regime that in certain circumstances paid retrenched employees more money than they would have received had they not been retrenched. The Commission clearly recognised this was the case in 1984 and so accordingly inserted the current limiting provision into the TCR standard. The provision is not discriminatory 12. The ACTU is arguing that this limiting provision is discriminatory. This is not the case. 13. This provision has been subject to review in a number of Commission cases and all have reinforced its appropriateness. For example, the Full Bench in the Award Simplification Decision was charged with the task of examining allowable award matters and related issues. 3 In relation to test case provisions, the Full Bench confined itself to two matters: the need to confine the provisions to allowable award matters and those coming within s.89a; and the requirements of Items 49(7) and (8). 14. Of particular relevance here was Item 49(8) of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act This item requires the Commission to review an award to make sure that it 2 8 IR 34, IR 272.

4 Appendix 5 4 does not contain provisions that discriminate against an employee because of, among other things, age. 15. In its examination of the standard redundancy provisions as part of the award simplification case, the Commission retained the provision dealing with the age retirement cap in the form it appears in the TCR standard. 16. The Full Bench evidently did not consider that the provision was discriminatory. 17. This issue has also been dealt with extensively in relation to the Coal Mining Industry (Production and Engineering) Consolidated Award In this case a Full Bench of the Commission, in a decision relating to an appeal from a decision by Commissioner Harrison regarding the second stage of the simplification of the award, referred the matter to Commissioner Wilks to determine whether the retrenchment pay cap in the award was discriminatory. 18. Commissioner Wilks found that: the clause is applicable to all employees. There is no different formulae applied to any employee on any of the bases which would be prohibited by the definition of direct discrimination. For example, if an employee retires at the normal retiring age of 60 years, he or she could not earn more than that. It follows therefore, that the clause is intended to avoid the potential for employees to obtain an unintended or windfall gain from being made redundant at a point where he or she is coincidentally nearer to the normal retirement age than another employee who, for no different reason is also made redundant, but may be much further from the normal retiring age Any differential in monetary entitlement is a function of the point in time at which the retrenchment occurs and is not based on some formula which relies upon the age of the individual concerned to differentiate directly. Accordingly, I find the clause does not involve direct discrimination Commissioner Wilks further found that the provision did not involve indirect discrimination either, on the basis that the provision is, in all of the circumstances, reasonable. He concluded that the provision did not discriminate against an employee because of age, but: 4 AW Print S8070, 13 July 2000.

5 Appendix 5 5 Rather, it exists to ensure that no employee will derive an economic benefit arising from redundancy or retrenchment which would not otherwise have been available to him or her had retrenchment not occurred. Equally, the clause acts to protect employers against possible economic cost which it would otherwise be required to bear The precise provision which was considered by Commissioner Wilks in the case referred to above had also replaced the more general normal retirement date with a reference to a specific age for retirement, in this case 60 years. In this respect Commissioner Wilks noted that, for practical purposes, there is no difference between the two provisions. In the case before him a reference to age 60 was reasonable as it is the normal retiring age for workers covered by the award. He also noted that any ambiguity is avoided by retaining it. 21. President Giudice considered Commissioner Wilks decision in a matter concerning simplification of the Metropolitan Daily Newspapers Redundancy Award That award included the following provision: No employee shall be entitled under these provisions to a payment greater than he/she would have received in wages had they remained in employment until the age of 65 years After considering Commissioner Wilks coal industry decision and the Award Simplification Decision, President Giudice concluded that he doubted whether the above clause discriminates on the basis of age so as to offend item 51(7)(f) of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act He went on to further conclude that Commissioner Wilks reasoning seemed applicable to the provision currently under consideration. Proposed federal age discrimination legislation will not abolish all compulsory retirement dates The Commonwealth s age discrimination legislation 23. The Commonwealth is developing age discrimination legislation. On 9 January 2003 the Attorney-General, the Hon Daryl Williams AM QC MP, released an Information Paper on Proposals for Commonwealth Age Discrimination Legislation, inviting comments on the age discrimination 6 Ibid. 7 Print S8526, 25 July 2000.

6 Appendix 5 6 reforms set out in that paper. (A copy of the Information Paper is at Attachment A.) 24. Submissions on the Information Paper closed on 12 February In general, the proposals in the Information Paper have been welcomed by the community. Subject to the necessary approvals, it is intended that the Bill will be introduced into Parliament this year. Once introduced it is likely that the Senate Legal and Constitutional Legislation Committee would consider the legislation. 25. The age discrimination legislation will directly respond to demographic changes by removing barriers to older people participating in society particularly in the workforce. The proposed legislation will aim to challenge and change negative stereotypes about older Australians, so that a person s capacity to do the job at hand is the relevant consideration. 26. The proposed legislation will prohibit age discrimination in key areas of public life, including employment. It will also include a balanced package of exemptions. The exemptions will recognise that there are instances in public life where a distinction based on age is fair and legitimate, and should therefore be allowed. The Commonwealth s response to the ACTU s argument regarding the proposed age discrimination legislation 27. The ACTU argues that the passage of the Commonwealth s proposed age discrimination legislation will render irrelevant the concept of a normal retirement date. This is not the case. 28. As noted above, there are two sets of circumstances in which retirement dates will be known in advance, namely: where a particular occupation or industry continues to have a fixed retirement date; and where employees and employers continue to reach agreements in advance about specific retirement dates. 29. Contrary to the ACTU s argument that the proposed legislation will render irrelevant the concept of a normal retirement age, the exemptions in the legislation will enable particular occupations or industries which have fixed retirement dates to continue to have such dates. For example,

7 Appendix 5 7 fixed retirement dates would be allowed if any of the following exemptions in the proposed legislation applied: exemption for awards and agreements; exemptions for certain Commonwealth laws (including certain Commonwealth laws with compulsory retirement age provisions and age-based licensing provisions); exemption for all State and Territory laws; or exemption for inherent requirements of the job. Exemptions for awards and agreements 30. The proposed age discrimination legislation will exempt acts that are done in direct compliance with industrial instruments, such as certified awards or agreements or other orders made by a court or tribunal with the power to fix minimum wages. 31. The proposed legislation will therefore allow compliance with agebased provisions in industrial awards and agreements, such as the retirement age limitation provision in the TCR standard. Exemptions for certain Commonwealth laws including certain laws with compulsory retirement age provisions and age-based licensing provisions 32. The proposed age discrimination legislation will exempt acts done in direct compliance with certain Commonwealth laws, some of which include compulsory retirement provisions. 33. Compulsory retirement for Commonwealth public servants and most statutory office-holders has been abolished. The proposed age discrimination legislation will exempt certain Commonwealth laws that still contain compulsory retirement ages. For example, the Federal Magistrates Act 1999 sets an age limit of 70 for Federal Magistrates and the Defence Force Discipline Appeals Act 1955 sets an age limit of 70 for Defence Force Discipline Appeals Tribunal members. Compulsory retirement ages under Defence laws will also be exempted.

8 Appendix 5 8 Exemption for all State and Territory laws 34. The proposed age discrimination legislation will exempt acts done in direct compliance with State and Territory laws. This will include compulsory retirement provisions under State and Territory laws, and age-based licensing laws. This exemption is subject to a Commonwealth power to prescribe exceptions to this exemption in the event that future State and Territory laws include any inappropriate age-based distinctions. 35. Some State and Territory legislation currently allows compulsory age-based retirement. For instance, most employees in Tasmania and the Northern Territory may still be compulsorily retired. Tasmania s Anti- Discrimination Act 1998 permits discrimination against another person on the ground of age in relation to compulsory retirement [section 35]. The Northern Territory s Anti-Discrimination Act permits discrimination on the ground of age in relation to any imposition of a standard retirement age [section 36]. 36. Queensland s Anti-Discrimination Act 1991 permits compulsory retirement for various categories of employees including firefighters, police, railway workers and university staff members [section 106A], if the compulsory retirement age is imposed on or before 30 June 1994 (including under an Act, award, certified agreement, enterprise flexibility agreement, industrial agreement under the Industrial Relations Act 1999, or certain policies, standards or other instruments). These groups of employees are still subject to a compulsory retirement age of 60 years (police) or 65 years (firefighters, railway workers, and those university staff members who were engaged prior to 30 June 1994). 37. Furthermore, the Northern Territory Public Sector Redundancy Provisions Award 2001 refers to income maintenance payments after the employee has reached the maximum retiring age applicable to their class of employees, or in any other case the employee reaches the age of 65 years (clause 13). The maximum retiring age for Northern Territory public servants is set at 65 years in section 36 of the Northern Territory s Public Sector Employment and Management Act. Exemption for inherent requirements of the job 38. The proposed age discrimination legislation will also exempt age discrimination where a person is unable to carry out the inherent requirements of the particular employment, taking into account the training, qualifications, experience and performance standards relevant to

9 Appendix 5 9 the particular employment (section 4.6 of the Information Paper). Existing Commonwealth, State and Territory anti-discrimination laws include exemptions of this sort. The inherent requirements of the job exemption in the proposed age discrimination legislation would apply to recruitment arrangements, offers of employment and dismissal from employment. 39. For example, it may be an inherent requirement of the job for an international pilot to be under the age of 60 because, in order to fly certain international routes, a pilot must comply with age limits in certain other countries. 40. The inherent requirements of the job exemption may also cover age-based licensing requirements if it were necessary to hold the licence in order to carry out a job. 41. So, the above exemptions in the proposed Commonwealth age discrimination legislation will ensure that there may continue to be employees who can still expect to only work up to a specific retirement age date. Proposed federal age discrimination legislation will not prohibit agreed retirement dates 42. The Commonwealth s proposed age discrimination legislation will not prevent employees and employers agreeing in advance upon a specific retirement age or date. 43. It is common for employees to discuss with their employer and reach some mutual understanding about when they plan to retire and leave their employment. Typically, retirement is something that involves a deal of forward planning, both for employers and employees. Employers in particular need sufficient notice of an employee s retirement to engage and train a replacement. Employees understand this. Such planning often results in an agreement between the employer and the retiring employee about a projected retirement date well in advance of the actual date. This practice of reaching agreed retirement dates will continue. 44. The proposed age discrimination legislation will not prevent such important workforce planning. However, it will prevent less favourable treatment in such arrangements unless one of the above exemptions applies.

10 Appendix 5 10 Conclusion 45. If this limiting provision was removed from the TCR standard, any employees retiring during a redundancy situation could receive a windfall gain in the form of an amount of severance pay additional to the amount of monetary recompense they would have earned had they proceeded to exit the workforce at their anticipated retirement date. 46. The ACTU has not attempted to challenge the original TCR Full Bench s rationale for including this restriction in the TCR standard. Instead, the ACTU raises arguments for its removal on the grounds of age discrimination and the phasing out of compulsory retirement ages. However, the ACTU has failed to show that the provision is discriminatory, and has failed to show that the provision is no longer relevant. 47. To the contrary, there will be two specific instances where employees will continue to anticipate retiring dates where compulsory retirement ages still apply in an industry sector or where employees have already agreed on a set retirement date with their employer. 48. As set out in detail above the proposed age discrimination legislation will continue to allow the concept of retirement age to be used if the exemptions discussed above apply. 49. A key objective of the proposed age discrimination legislation is to challenge and change negative attitudes about older people and focus instead on their capacity. However, contrary to the ACTU s claim, the package of exemptions in the age discrimination legislation will continue to recognise the concept of normal retirement dates in certain circumstances.

11 ATTACHMENT A 11 Information Paper Proposals for Commonwealth Age Discrimination Legislation Attorney-General s Department December 2002

12 ATTACHMENT A 12 Commonwealth of Australia 2002 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth Department of Communications, Information Technology and the Arts/National Office for the Information Economy. ISBN Acknowledgement This Information Paper is adapted from a Paper presented to the Attorney-General by the Core Consultative Group (see Attachment A) on the proposed age discrimination legislation. Both papers were written by the following officers from the Civil Justice Division of the Attorney-General s Department: Kathy Leigh, First Assistant Secretary; Renée Leon, Assistant Secretary; Catherine Hawkins, Principal Legal Officer; Matt Hall, Senior Legal Officer; and Scott Wilson, Senior Legal Officer.

13 ATTACHMENT A 13 FOREWORD The Government believes that people of all ages should be able to participate in Australian life. Negative stereotypes should not prevent people from contributing to the workforce or enjoying all aspects of community life simply because of their age. The Government made an election commitment in 2001 to develop legislation to prohibit age discrimination. We undertook to work with business and the community to ensure that the legislation would be fair and balanced. I have consulted with a wide range of business and community representatives. On the basis of this consultation so far, I have developed proposals for age discrimination legislation to implement the Government s election commitment. Age discrimination legislation will be important for all Australians, particularly those who are either young or old. It will also be important for Australia. The Government recognises the challenges of the ageing population and the impact of this demographic change on the workforce and on social needs. The new age discrimination legislation is an integral part of a suite of Government policy approaches to this important demographic shift. These cross-government priorities include the National Strategy for an Ageing Australia, the issues arising from the Treasurer s Intergenerational Report, continuing welfare reform, and the new Ministerial portfolio responsibilities for Ageing, and for Children and Youth Affairs. Age discrimination legislation will help to change negative stereotypes about young people and older people, particularly in relation to their abilities in the workplace. This will directly contribute to achieving the Government s aim of encouraging mature age participation in the workforce. Age discrimination is a significant problem for older Australians, as well as for children and young people. However, age discrimination is not currently unlawful under Commonwealth legislation. The Government s commitment to develop Commonwealth legislation shows the high level of national importance we give to the prevention of age discrimination. I would like to thank the Core Consultative Group (CCG) on age discrimination reforms for their assistance in developing the detailed proposals set out in this Information Paper. The CCG comprised business and community representatives who worked intensively together to assist the Government s work on age discrimination reforms (see the membership list of the CCG at Attachment A). This Information Paper draws heavily on the CCG s proposals. The Government invites comments on the important age discrimination reforms set out in this paper. We look forward to broad public comment on these proposals. DARYL WILLIAMS, AM QC MP, ATTORNEY-GENERAL

14 ATTACHMENT A 14 TABLE OF CONTENTS FOREWORD...iii PURPOSE OF THIS PAPER PART 1 OVERVIEW SUMMARY OF THE KEY GOVERNMENT PROPOSALS.18 CONSULTATION PROCESS AND DEVELOPMENT OF PROPOSALS..22 PART 2 DETAILS OF THE AGE DISCRIMINATION LEGISLATION PROPOSALS INTRODUCTION DISCRIMINATION Direct and indirect discrimination Other definitional issues Characteristics Age or age group Relatives and associates The intersection of age discrimination and disability discrimination PROHIBITIONS ON AGE DISCRIMINATION AGE DISCRIMINATION IN WORK Prohibition of age discrimination Definition of employment Unpaid work Contract workers Youth wages, job training and younger workers Exemption for inherent requirements of the job Acts done in accordance with industrial awards and workplace agreements Vicarious liability Domestic employment AGE DISCRIMINATION IN RELATION TO GOODS, SERVICES AND FACILITIES Prohibition of age discrimination Exemption for superannuation Commonwealth superannuation requirements Exempt public sector superannuation schemes Commonwealth superannuation schemes Actuarial or statistical data, other data and any other relevant factors Closed superannuation schemes Superannuation issues for Indigenous people and people with disabilities Exemption for insurance Outline of exemption for insurance Definitions Other data Exemption for credit Prohibition in relation to access to health and medical goods and services Exemptions in relation to access to health and medical goods and services Situations in which age is an appropriate criterion Health insurance issues including Lifetime Health Cover and Community Rating Issues affecting Indigenous people and people with disabilities Young people and goods and services... 43

15 ATTACHMENT A AGE DISCRIMINATION IN RELATION TO COMMONWEALTH LAWS & PROGRAMS Prohibition of age discrimination Review of age criteria and restrictions in Commonwealth laws and programs Different exemptions for direct compliance with a law and discretionary acts Migration Citizenship and Multicultural Affairs Social Security legislation, Family and Community Services and related programs Defence legislation Health and medical programs Corporations Act 2001 repeal of age limit for directors Other Commonwealth laws and programs Indigenous issues AGE DISCRIMINATION IN OTHER AREAS Education Accommodation Land OTHER DISCRIMINATION ISSUES Harassment Cause, instruct, induce etc an unlawful act GENERAL EXEMPTIONS Exemption for positive age discrimination Acts done under statutory or other legal authority Exemption for acts done to comply with Commonwealth laws Exemption for acts done to comply with State laws Exemption for court orders and awards Exemptions for religious practices, voluntary bodies, and charitable benefits OFFENCES Victimisation Advertising HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FUNCTIONS HREOC power to grant exemptions Review of age discrimination provisions Participation in complaints and review processes ISSUES RELATING TO STATES AND TERRITORIES Exemption for acts done to comply with State and Territory laws Interaction with State anti-discrimination laws States and Territories to be bound ATTACHMENT A MEMBERS OF THE CORE CONSULTATIVE GROUP ON AGE DISCRIMINATION REFORMS 63 ATTACHMENT B INITIAL CONSULTATIONS ON AGE DISCRIMINATION LEGISLATION. 64 ATTACHMENT C PARTICIPANTS IN THE CCG WORKING GROUPS.. 71 ATTACHMENT D EXAMPLES OF SUPERANNUATION, INSURANCE AND CREDIT EXEMPTIONS IN COMMONWEALTH, STATE AND TERRITORY LAWS ATTACHMENT E SUMMARY OF COMMONWEALTH LAWS AND PROGRAMS WITH AGE- BASED PROVISIONS BY DEPARTMENT... 79

16 ATTACHMENT A 16 PURPOSE OF THIS PAPER The purpose of this Information Paper is to set out the Government s proposals for Commonwealth age discrimination legislation and seek comments about the detail of the proposals. Please send your comments on this paper by 12 February 2003 to: Ms Catherine Hawkins Principal Legal Officer Attorney-General s Department Civil Justice Division Robert Garran Offices National Circuit BARTON ACT 2600 Copies of this Information Paper are available on the Attorney-General s Department website at Submissions will be considered to be public submissions unless you request confidentiality.

17 ATTACHMENT A 17 PART 1 OVERVIEW Part 1 of this Information Paper sets out: a summary of the key parts of the age discrimination proposals, and the extensive consultation process so far that led to these proposals.

18 ATTACHMENT A 18 SUMMARY OF THE KEY GOVERNMENT PROPOSALS The Government has decided on detailed proposals for age discrimination legislation Age discrimination in public life will be unlawful It is proposed that the age discrimination legislation will prohibit discrimination based on age in a range of areas of public life: in employment; in the provision of goods, services or facilities; in access to premises, places or transport; in the administration of Commonwealth laws and programs; in education; in the provision of accommodation; in dealings with land; and in requests for information on which age discrimination might be based. Discrimination on other grounds, such as race, sex, or disability, is already prohibited in these kinds of areas of public life by existing Commonwealth anti-discrimination laws. It is proposed that these areas be defined essentially as they are in the existing anti-discrimination laws. However, in relation to discrimination in employment, this Paper seeks views about whether the prohibition should be extended to discrimination in unpaid work Direct discrimination The legislation will prohibit both direct discrimination and indirect discrimination, as do all other Australian anti-discrimination laws. Direct age discrimination occurs where a person is treated less favourably because of their age. For example, if an employer refused to employ someone simply because of their age, that would be direct discrimination on the basis of that person s age Indirect discrimination Indirect age discrimination occurs where a person of a particular age is disadvantaged because they cannot meet a condition that is neutral as to age on its face but people of that age are less likely to be able to meet that apparently neutral condition than people of another age. However, if such a condition is reasonable in the circumstances it will not be unlawful discrimination.

19 ATTACHMENT A 19 An example of indirect discrimination would be a condition of employment in a particular job that required a person to satisfy a demanding physical fitness test which more young people than older people could do. If the level of fitness required by the fitness test was not reasonable for the job in question, this could be indirect discrimination. For example, a demanding physical fitness test would probably not be reasonable if the job was a standard office job. A requirement that employees do a demanding fitness test is not direct discrimination because it does not actually relate to age. But, if the impact of such a test is that it effectively discriminates against people because of their age (in this example such a test would probably discriminate against older people) then it could be indirect discrimination. On the other hand, it would be reasonable for an adventure tour company to require its tour leaders to do a demanding fitness test even if that meant that less older people than younger people could meet the test. This could be the case where a tour leader was required to lead long hiking tours and other physically demanding tasks Age discrimination will be allowed in some circumstances exemptions The Government recognises that there are sometimes acceptable reasons to make distinctions based on age. Accordingly, there will be some exemptions from the prohibition on age discrimination, which will be specified in the legislation. Some of the proposed exemptions will apply to all areas of age discrimination Positive discrimination One key general exemption is for positive discrimination. This will allow favourable treatment for people of a particular age group, where the favourable treatment is to meet a particular need for people of that age group, or to redress disadvantage suffered by that age group, or to provide fair and legitimate benefits to people of that age group. For example, if people of a particular age are more likely to have difficulty getting work, extra employment assistance to people of that age would not be prohibited by the legislation. Also, the positive discrimination exemption would make sure that age-based activities (such as over 50s travel tours ) would not be affected by this age discrimination legislation because such tours meet the needs of a particular age group Exemptions to comply with other laws A second general exemption is for discrimination that occurs because of a need to comply with some other legal requirement, either in a law or in a court order or award. For example, if a court required people to comply with a contract they had made, even though complying would involve age discrimination, then this exemption would make sure the age discrimination legislation did not affect the court s order. It is proposed that compliance with State and Territory laws will be exempt from the Commonwealth prohibition on age discrimination, subject to a power to prescribe exceptions to that exemption in particular cases. For example, this means that State laws about the minimum age for driving will not be affected by the proposed Commonwealth age discrimination legislation. Compliance with State and Territory laws is already exempt under State and Territory age discrimination legislation.

20 ATTACHMENT A 20 It is also proposed that compliance with age-based provisions in specified Commonwealth laws will not be affected by the age discrimination legislation. A review of Commonwealth laws has identified a number of laws that have age distinctions that the Government considers are justified. For this reason the Government proposes that compliance with these laws will not be affected by the age discrimination legislation. For example, payment of the age pension under the Social Security Act 1991 will not be affected by these proposals. Also, there will be a two year temporary exemption for compliance with all other Commonwealth laws, to ensure that any other age-based distinctions are identified Exemptions for voluntary bodies and charitable benefits An exemption is also proposed for voluntary bodies and charitable benefits in the same way as is already provided in existing Commonwealth anti-discrimination laws. This Paper seeks views on the need for and extent of any exemption that should be provided for religious organisations Exemptions for employment The legislation will also contain exemptions that relate only to particular areas of discrimination. Some are about discrimination in employment. It is proposed that it will be permissible to discriminate on the basis of age where the discrimination is based on the inherent requirements of the job. As the Government announced at the time of its commitment to age discrimination legislation, youth wages will also continue to be permitted, as these are necessary to protect young people s competitive position in the labour market. It is also proposed to allow discrimination in employment in order to comply with industrial awards or workplace agreements. This Paper seeks comment on the extent of the exemption that should be allowed for discrimination that occurs in relation to awards and agreements Exemptions for goods and services Some exemptions are proposed that relate to the provision of goods, services or facilities. One exemption in this area is for discrimination in superannuation that arises from compliance with age criteria under the Commonwealth superannuation regime. This exemption recognises that retirement income policy is necessarily age-based to ensure that funds are accrued during working life for use in retirement. Exemptions are also proposed for discrimination in superannuation or insurance reasonably based on actuarial or statistical data or other factors on which it is reasonable to rely, and for discrimination in the provision of credit that is reasonably based on actuarial or statistical data only. The legislation will set out the circumstances in which age can be considered in health decisions. In relation to the provision of health goods or services to groups of people, such as Government health programs provided for specified age groups, it will be permissible to discriminate on the basis of age where that is reasonably based on clinical, medical or scientific

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