Posted on September 30, 2016. Filed under: Uncategorized |
A conscientious viewer of the Victims of CSIRO website has requested that we post the following piece in relation to Redundancies and Age Discrimination. We would of course, implore those facing redundancy to seek independent advice in relation to their circumstances (and entitlements) as CSIRO are far from perfect (some might use far stronger language) when it comes calculating entitlements or even complying with their obligations under the Enterprise Agreement or other instruments. One only has to look at previous breach notifications issued to CSIRO in relation to matters of employment!
Many of our readers have faced redundancy whilst at the same time attempting to undertake rehabilitation in relation to workplace injuries sustained as employees of CSIRO and it is timely to remind them (and CSIRO) the the obligation of the CSIRO to assist an injured employee does not simply cease with the termination of the employee. Under the Safety, Rehabilitation and Compensation Act (Cth), CSIRO has an ongoing obligation to the injured employee until that employee has been returned to pre-injury or equivalent duties.
Be very wary of Rehabilitation Case Managers who unscrupulously attempt to coerce injured parties into signing off on rehabilitation plans which have not been satisfactory undertaken or completed.
Do you have more information in relation to CSIRO redundancies or other matters of concern? Contact us at victimsofcsiro@gmail.com
Recent redundancies at CSIRO
Officers should seek professional legal advice if any of the matters mentioned below are relevant to their circumstances.
My own experience alerted me to potential age discrimination several years after I went through the redundancy process. While many people are aware that race and sex discrimination are unlawful in public life, many are unaware that age discrimination is also unlawful. Union representatives do not appear to be alert to age discrimination either, and I missed an opportunity because my particular situation was overlooked by the union representative. I believe my situation was actionable under the Fair Work Act 2009 s 351 and/or the Age Discrimination Act 2004. Age discrimination suffers from a low profile within the community, and this needs to change because of the double whammy of legislated increases to the pension age and rampant workplace ageism. The commissioner has recently attempted to do this, see the “Willing to work” report here:
https://www.humanrights.gov.au/our-work/age-discriminationEarlier this year I made a request to CSIRO Corporate HR for data regarding the age profiles of officers made redundant over the last 5 years. Senior management stonewalled and obfuscated, and finally delivered a three line email containing no meaningful data, with words to the effect that they could not see any evidence of bias in redundancies against those aged over 45 years.
At the same time I made requests for data to the CPSU. The CPSU are entitled to receive this data as of right as part of the EA bargaining process. My initial enquiries were again disregarded, but after calling on some old contacts to pull strings, data was eventually delivered. I can make it available upon request. It represents the age and CSOF level statistics for redundancies across various sites over the period identified above.
****I strongly suspect that redundancies during the last 5 years have disproportionately impacted officers over the age of 45 years.****
Age discrimination in the workplace is unlawful under the Age Discrimination Act 2004 (Cth). It is also unlawful under the general protections identified in s 351 of the Fair Work Act 2009 (Cth). The rights of older CSIRO officers stand to be trammelled under Silicon Larry’s watch, unless those surviving officers are vigilant.
In establishing that there has been age (or sex or race) discrimination in a redundancy process, the court will need statistics describing the age (or sex or race) composition of the workplace prior to the sackings, plus the the statistics for all the officers sacked, and will make a comparison for the purpose of assessing each officer’s circumstances and the conduct of management when identifying officers for retrenchment.
There is a 12 month limitation period for lodging a complaint in the AHRC, starting from the time the conduct (unlawful sacking) takes place, although an extension of the limitation period may be arguable, based on ignorance of the law. Anecdotally, I have heard that it is more difficult to be granted an extension to bring an action under the Fair Work Act: the complaint period is relatively inflexible. For this reason, I would recommend affected officers seek advice about collective actions in the AHRC, unless they have been made redundant within the last month. In that case, an action under the Fair Work legislation might still be possible. Check with your legal advisor.
The evidence I have been given suggests that ageism is a live issue at different CSIRO sites, and elsewhere in the public service. There may also be race biases when identifying officers for redundancy.
Finally, officers should not be dissuaded from possible action because their manager said they were made redundant for “operational reasons”. If it can be demonstrated that there were reasons in addition to simply identifying certain officers for retrenchment from a pool of site employees e.g. if the officer was targeted because they were older than other staff eligible to be made redundant, then there are still grounds for age discrimination. This will depend on the composition of the site workforce at the time, and the ages of any other officers made redundant. Certain provisions in the legislation may apply in instances when there is more than one reason for redundancy (which includes the officer’s age), and when these deeming provisions apply, the court will assume that the unlawful reason (officer’s age) was the only reason for the redundancy, and that the retrenchment is discriminatory.
I strongly recommend that officers in doubt about the legality of their redundancy seek professional legal advice.
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