Today’s question relates to age discrimination within the NSW Rural Fire Service.  My correspondent says:

In this district there is a district rule that only members aged over 25 will be supported by the service to get their MR licence (effectively for free). Members under 25 are not supported to get their heavy vehicle licence. There is a provision for members under 25 to get their licence (supported by the service) if they apply directly to the district manager and pass a driving aptitude test.

This is independent of the members category of licence (Ls, Ps, etc) and their years of driving experience.

Discrimination on the grounds of age is prohibited by the Age Discrimination Act 2004 (Cth) and the Anti-Discrimination Act 1977 (NSW).  The reason for both Commonwealth and state legislation is to ‘cover the field’. There are constitutional limits on what each legislature can regulate so the Commonwealth Act applies to areas within the Commonwealth’s legislative responsibility and the state Act applies to areas within the state’s legislative responsibility and between them all manner of employers, service providers and others are bound by anti-discrimination laws.   As the RFS is a state agency, I’ll refer to the state Act.

The Anti-Discrimination Act 1977 (NSW)

The Anti-Discrimination Act 1977 (NSW) s 49ZYA defines age discrimination as:

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of age if the perpetrator:

(a) on the ground of the aggrieved person’s age … treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group…

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

I infer from the question that a member aged under 25 can get support to obtain a Medium Rigid (MR) licence but he or she has to make an application and pass an aptitude test, criteria that do not apply to a person aged 25 or over.  Prima facie (ie on the face of it) that sounds like age discrimination but that does not make it unlawful.

A volunteer with the RFS is not ‘at work’ so the provisions relating to discrimination in work do not apply.  Section 49ZYN says:

It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:

(a) by refusing to provide the other person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

Arguably one could argue that by providing the training the RFS is providing a service, but I think that’s a long bow – one does not look to the RFS as a driver training provider.  The RFS provides rural fire services to the community so the RFS cannot refuse to provide say firefighting services to a farm operated by young people on the basis that they are young and fit and should be able to deal with the fire themselves. That’s not the same as saying ‘as a service we require people under 25 to demonstrate different eligibility requirements for training that a person over 25 doesn’t need to meet’.

Let us assume, however, that this discrimination in the provision of services, even that is not enough to make it unlawful.  First there is an exemption for safety reasons – section 49ZYV says:

Nothing in this Part renders unlawful discrimination against a person on the ground of age with respect to:

(a) the manner in which fitness to control a vehicle or a class of vehicle is assessed, or

(b) the terms and conditions on which and the length of time during which a licence to drive or ride a vehicle is provided or made available,

as the case requires, if that manner is, or those terms and conditions and length of time are, imposed in order to meet safety considerations that are reasonable in the circumstances.

That could be on-point.  I would think s 49ZYV(a) is directed to things like a driving test.  Asking an older person to pass a test that a young person can pass but which fails to take into account the older person’s diminished capacities is not unlawful and thankfully so.  Equally giving an older person a licence valid for one year whereas a younger person gets a 5-year licence and requiring the older person to pass a test to renew their licence is not prohibited.

Arguably too, asking a younger person to pass an aptitude test may be a way for the RFS to assess a person’s ‘fitness to control a vehicle or a class of vehicle’ that is not imposed on older persons.  The RFS are not ‘providing’ the licence so I don’t think paragraph (b) is relevant.  If the RFS did want to rely on that provision, then they would need to demonstrate why that was a reasonable response to legitimate (not just perceived or believed) safety considerations.

There is an exemption for ‘voluntary bodies’ (s 57).  Because the RFS is established by an Act of Parliament (‘the Rural Fires Act 1997 (NSW)’) the RFS does not meet the definition of a ‘voluntary body’ so that exemption is not relevant.

The Age Discrimination Act 2004 (Cth)

One might be able to bring the matter under the Commonwealth law if there was a relevant link to the Commonwealth’s constitutional authority, eg if the RFS were considered a trading corporation (and note that Victoria’s CFA has been held to be a trading corporation – see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014)) or if it could be shown that the actions put the RFS in breach of an international agreement such as the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.  I can’t see how requiring a person aged under 25 to make an application and pass an aptitude test would be a breach of either of those agreements so I will assume the Commonwealth Act doesn’t apply. Even if it did there would be the same hurdles as there are with the State Act.

Rural Fire Service – Service Standard 1.1.42: Respectful and inclusive workplace

The RFS says Service Standard 1.1.42, at [1] (emphasis added) says:

The NSW Rural Fire Service (NSW RFS) is strongly committed to providing and maintaining a respectful and inclusive workplace, where all members are treated with dignity, courtesy and respect at all times and in all work locations. Bullying, discrimination, vilification and/or sexual harassment have no place in a respectful and inclusive workplace.

At [3.21] the Service Standard says:

Discriminating against a member of the NSW RFS in any of the following ways is against the law and will not be tolerated.

(a) Age discrimination occurs when someone is treated less favourably because of their age.

However, at [3.25] ‘An action may not be considered discrimination when it is: a. permissible under NSW anti-discrimination laws…’

Discussion

Asking ‘members under 25 to … apply directly to the district manager and pass a driving aptitude test’ when that is not required of members aged 25 and over is clearly discriminating on the grounds of age.  The younger members are asked to meet a further criterion because of their age and no doubt because of a belief that younger drivers pose a greater risk than the older drivers.

But that does not make it unlawful.  Discrimination on the grounds of age is unlawful in employment (ss 49ZYB to 49ZYK), education (s 49ZYL), the provision of goods and services (s 49ZYN), accommodation (s 49ZYO) and in registered clubs (s 49ZYP).  There could be an argument that this discrimination is discrimination in the provision of services (s 49ZYN) but I don’t really think that is the case.

To say that the RFS is not prohibited from discriminating against its volunteers does not mean that they should do that.  As noted, the RFS says that it does not tolerate discrimination including discrimination on the ground of age.

The RFS could, arguably, rely on the exemption in s 49ZYV but it seems clear that this exemption is intended to apply to say the Roads and Maritime Services that does discriminate on the grounds of age eg by requiring older drivers to pass annual tests.  Even if s 49ZYV was applicable the question would be whether the extra burden of requiring a younger driver to pass an aptitude test is ‘imposed in order to meet safety considerations that are reasonable in the circumstances’.

Conclusion

It seems to me axiomatic that asking a driver aged under 25 to ‘apply directly to the district manager and pass a driving aptitude test’ and not imposing those conditions on a driver aged 25 and over is to discriminate on the grounds of age.

That may not be unlawful because the member is a volunteer or because a legitimate response to a safety issue but I confess I find it hard to believe that could be established (but perhaps it can be). If the discrimination would not be lawful if the member were an employee then the RFS should not tolerate that discrimination with respect to a volunteer.

How my correspondent might deal with that is a more complex issue.  The first step would be to raise it with a district manager and if that did not achieve an acceptable outcome raise the matter with RFS HQ in accordance with the RFS internal procedures.