Following the government’s “Job” policy series of JobSeeker and JobKeeper, you may have heard about the JobMaker Hiring Credit scheme that was recently announced. Ths JobMaker Hiring Credit scheme is a program designed to help employers create new jobs for young people. 

While the program is aimed at benefiting young people, there have been concerns in the community about older workers being disadvantaged.  

If you run a business and are thinking of accessing the scheme, you might have some questions about discrimination laws, such as whether it is legal to advertise for roles for staff of a certain age without being discriminatory. 

What Is The JobMaker Hiring Credit?

The JobMaker Hiring Credit is a government program announced on 7 October 2020, aimed at encouraging businesses to hire young people affected by COVID-19. The legislation was just passed in parliament on 11 November 2020.

For each employee hired under this scheme, employers will receive:

  • $200 per week per new employee aged 16 to 29, and 
  • $100 per week per new employee aged 30 to 35.

The point of this scheme is to bring young people out of unemployment. So, to be eligible, candidates must be receiving Youth Allowance, JobSeeker or Parenting Payments before they’re hired.

The JobMaker Hiring Credit is not meant to replace existing workers, but to encourage businesses to create new jobs. To be eligible, the new position must start after the scheme’s announcement on 7 October 2020.

Understandably, some workplaces have already started advertising for staff who specifically meet the JobMaker Hiring Credit criteria. However, there’s been some uncertainty about how it interacts with discrimination laws.

At Sprintlaw, we’ve received a number of questions about whether it is legal to advertise for certain age brackets, and broader questions about age discrimination. We’ll run through these issues, with a particular focus on how they relate to the JobMaker scheme. 

What Is Discrimination?

To start with the basics, there are a number of laws in Australia that prohibit discrimination by employers. Broadly speaking, employers have a responsibility not to discriminate on the basis of a number of attributes: one of which is age.

It is unlawful for employers to use age as a basis to discriminate. Age-based discrimination can manifest itself in the following areas of employment:

  • Decisions about who should be offered employment
  • Terms or conditions of employment
  • Promotion opportunities
  • Employee benefits
  • Termination of employment
  • Bullying and harassment

How Do Discrimination Laws Work With The JobMaker Hiring Credit?

Given that it’s unlawful to discriminate against someone on the basis of age, what are the implications for making hiring decisions in accordance with the JobMaker Hiring Credit?

As explained above, ordinarily, it would be unlawful for a business to decide not to hire anyone above a certain age, purely based on age. That would be against the Age Discrimination Act 2004.

However, there are some exceptions set out in the Age Discrimination Act. One of the key exceptions is ‘positive’ discrimination. 

An action can be considered ‘positive discrimination’ by meeting any of the following criteria:

  • It provides a real benefit to people of a particular age
  • It is intended to meet a need that arises out of employees of a particular age.
  • It is supposed to reduce a disadvantage experienced by people of a certain age. 

This is also sometimes referred to as ‘affirmative action’, which means taking proactive steps to increase the employment opportunities of a group of people who are particularly disadvantaged. 

Some examples of positive discrimination that already occur are discounts given to customers who have a seniors card, or giving additional notice to older workers who are more disadvantaged by redundancy.

In the case of JobMaker, given that COVID-19 has particularly impacted youth employment, you could make the argument that the creation of jobs for this cohort is a form of positive discrimination.

Another exception set out in the Age Discrimination Act relates to exempted employment programs run by the Commonwealth government. 

In response to a recent Senate inquiry into JobMaker, a Treasury official has clarified that prospective employers may target employees who fit within such employment programs.

Can Employers Directly Advertise For Workers Of A Certain Age?

The statements by Treasury to the Senate Committee gives us some guidance on concerns around discrimination laws.

If you’re not sure how to advertise for roles, try and be generic and refer directly to the employment program. 

Having said that, this program has received quite a bit of political attention so you should be mindful of how you advertise for roles in accordance with the program. Even if you think you might legally fall within an exemption to discrimination laws, context matters and every workplace is unique.

This requires caution, and if you’re not sure about it, you should speak with an employment lawyer.

Can A Business Dismiss Older Workers To Hire Younger Workers Through The Scheme?

The government has not yet finalised the rules, but based on their announcements to date, a business can’t dismiss or reduce an employee’s hours so they can hire a new worker who fits the JobMaker criteria. 

Under their current proposal, the scheme requires the staff headcount to increase, so this would not make your business eligible. 

Also, all of the existing rights and safeguards in the Fair Work Act continue to apply, including protections from unfair dismissal.

There has been some debate going on in parliament as to whether a protection to prevent older workers being sacked or losing hours should be explicitly set out in the legislation, so we’ll be keeping a close eye on whether this will be included in the rules.

How Do I Calculate Headcount?

Based on the government’s current announcements, the employees you have as at 30 September 2020 will be your baseline headcount for an existing business. This means even if you already have staff who are of the eligible age group, they won’t count under the JobMaker scheme. You will have to hire new eligible staff to increase your headcount to be eligible. 

For new businesses created after 30 September 2020, or who had no employees as of 30 September 2020, your first employee won’t be eligible for the scheme but any other eligible employees you hire later do.

I Want To Get The JobMaker Hiring Credit: What’s Next?

The legislation has just passed but the full details of the rules are still being finalised. The government is seeking submissions on the draft rules until 27 November.

For now, we know that the payments will be made via the ATO system, similar to JobKeeper. According to recent government announcements, payments will be available from 1 February 2021.

The legislation is pretty light on detail and it’s expected that the government will introduce more detailed regulations closer to the commencement date. As these updates come in, we’ll be sharing them on our LinkedIn, blog and e-newsletter

The Takeaway

While businesses can certainly benefit from the JobMaker scheme, it’s important not to fall foul of discrimination laws. 

Hopefully, we’ll hear more news on the JobMaker scheme soon so that we can provide you with more details about how it’ll affect your business. 
But, in the meantime, if you need help navigating your business through the COVID-19 recovery, get in touch! Our expert, online lawyers can help with all your business legals. Reach out on 1800 730 617 or at team@sprintlaw.com.au for a free chat about your business.

About Sprintlaw

Sprintlaw is a new type of law firm that operates completely online and on a fixed-fee basis. We’re on a mission to make quality legal services faster, simpler and more affordable for small business owners and entrepreneurs.

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