Managing the ageing workforce using statutory exemptions

By Hedy Cray.

Key Points:
The Tribunal determined that the exemption was appropriate and in the public interest as older employees have difficulties in gaining re-employment on redundancy compared to younger employees in the same position.

The Queensland Anti-Discrimination Tribunal has the discretion under the Anti-Discrimination Act 1991 (Qld) to grant an exemption from the operation of certain provisions of the Act.

Employers who wish to make an application to the Tribunal seeking an exemption from the operation of the Act with respect to matters which might otherwise be regarded as discriminatory will need to convince the Tribunal of the appropriateness of granting the exemption. The Tribunal will consider a range of factors in making its decision, including:

• The purpose of seeking an exemption. The Tribunal has previously determined that seeking an exemption to avoid difficult management responsibilities is not an appropriate basis for the Tribunal to exercise its discretion to grant an exemption.
• That the circumstances for which an exemption is sought might constitute discrimination to which the Act might apply.
• If the exemption, if granted, would conflict with the objects of the Act. The Tribunal has previously determined that an intent to gain a commercial advantage through use of the exemption creates such a conflict.
• The exemption cannot be made in a general way but has to be made with respect to a particular person or class of person.

Specifically with respect to work-related exemptions, the Tribunal has previously considered the effect of the exemption on those employees who are subject to the exemption and how (if at all) the remaining employees' employment, entitlements or work standards are impacted by the exemption.

If the Tribunal deems the exemption appropriate, reasonable and in the public interest, the exemption will be granted for a particular period of time no greater than five years.

AMCSU, QSU, FCUNQ v UNiTAB Limited

Having regard to the factors which the Tribunal will take into account, the recent decision of the Tribunal in AMCSU, QSU, FCUNQ v UNiTAB Limited [2007] QADT 18 presents an interesting use of a statutory exemption under the Act.

In that case the Tribunal granted an exemption allowing the employer to make higher severance payments on redundancy to older employees and those with longer years of service, without risk of discrimination claims ("redundancy clause").

This exemption was granted following an earlier decision by the Queensland Industrial Relations Commission that the redundancy clause was discriminatory and could not therefore be included in the agreement. The Commission cannot, under the provisions of the Industrial Relations Act 1999 (Qld), certify an agreement if discriminatory clauses are included.

The redundancy clause provided that an employee under the age of 35 is to receive 1.5 weeks' pay for each year of service, while employees between the ages of 35 and 50 would receive an additional 2.75 weeks' pay for each year of service between these years, and employees over the age of 50 would receive a further additional 3.7 weeks' pay for each of service over the age of 50.

In recognition of the difficulties faced by older employees in gaining re-employment on redundancy (compared to younger employees in the same position), the Tribunal determined that the exemption was appropriate and in the public interest and granted the exemption for a period of three years.

The Tribunal, in making its decision, also noted that such an application was not contrary to the objects of the Act.

Implications

This was a matter which very much turned on its facts and pertained to the certification of a workplace agreement under the State regime, prior to the commencement of the amendments to the Workplace Relations Act 1996 (Cth). In light of these amendments, workplace agreements previously certified under the State regime are now, if the employer is a constitutional corporation, subject to the certification requirements of the WR Act and the Workplace Relations Regulations 2006 (Cth).

The Workplace Relations Act and Regulations also exclude the inclusion of discriminatory terms in a workplace agreement, however certain exemptions apply, such as where the discrimination is on the basis of the inherent requirement of that employment. This provision has the effect, in contrast to the Queensland certification regime, that in certain circumstances discriminatory terms may be included in a workplace agreement, approved by the Workplace Authority.

If such exemptions are not applicable, however, Queensland employers (and employers in other state through analogous legislation in those States) may consider making exemption applications from the operation of the Act. Such an exemption may seek, for example, to facilitate ongoing employment (of varying degrees) for employees nearing retirement, as a means for assisting in workforce planning whilst minimising claims of discrimination.

In saying this, a decision by the Tribunal in relation to such an exemption application will very much require consideration of the circumstances justifying an exemption, and whether or not these circumstances conflict with the objects of the Act.

Thanks to Rebecca Taumalolo and Emily Tranter for their help with this article.

For further information, please contact Hedy Cray.