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Tackling Age Discrimination in the Labour Market: the role of the Australian Human Rights Commission

13 December 2011

Older Workers and Workability Conference

The Hon. Susan Ryan AO
Age Discrimination Commissioner
Australian Human Rights Commission

Rendezvous Hotel, 328 Flinders Street, Melbourne

Thank you for the invitation here today to talk about the critical issue of the labour force participation of older workers.

I start by acknowledging the Wurundjeri people of the Kulin nation, the traditional owners of the land upon which we meet. I pay my respects to their elders, both past and present.

In my role as Australia’s first Age Discrimination Commissioner, I have been asked today to talk about a specific barrier to older workers participation – age discrimination, and the role the Australian Human Rights Commission can play in tackling it.

Given the international nature of this conference, and the presence of many international guests in the audience, I will take a moment to describe my role and that of the Australian Human Rights Commission.

Since the 1970’s in Australia various forms of discrimination have been illegal: race, sex, disability and most recently age.

The Age Discrimination Act was legislated in 2004.

Despite these Commonwealth anti-discrimination laws, the elimination of discrimination in Australia remains unfinished business. This unfinished business represents the work of the Australian Human Rights Commission.

The Commission is made up of six Commissioners including the President.

We tackle discrimination through public education about human rights and the need to protect those rights. We do this by:

The creation earlier this year, for the first time, of the full-time office of the Age Discrimination Commissioner was an important step in developing on-going and specialist policy in the previously neglected area of age discrimination.

It creates a focus on the damaging effects of age discrimination across our society and throughout our economy.

This legislative reform reflected the Australian government’s awareness of the growing costs of age discrimination.

And I don’t expect that these are costs that are particular to Australia.

The age discrimination act applies to people of all ages and is the primary instrument for protection at the national level against unlawful age discrimination.

It protects against age discrimination in certain areas of public life, including employment; accommodation; education and goods and services. The primary aims of the Act are to raise awareness that people of all ages have the same fundamental rights, and to eliminate unlawful age discrimination within Australia.[1]

Despite these rights protections, age discrimination remains deeply entrenched across all areas of public life – and like other forms of discrimination, it damages individuals and it damages our economy.

It can deny people access to healthcare, to accommodation and to some of life’s most basic choices. In denying dignity and respect, it can destroy lives and hopes. One of the worst effects of age discrimination, an effect strongly born out in the commission’s complaints statistics, is the undermining of older people’s opportunities to participate in the workforce.

Over the last two years, most age discrimination complaints received by the Commission have been in the area of employment. Most of these complaints are on the basis of being considered ‘too old’. The most recent Commission complaints figures demonstrate an increasing trend in enquiries about age discrimination for the period 1 July 2011 – 31 October 2011 which were up 65% in comparison with the same period in the previous reporting year. For the same period complaints lodged about age discrimination have increased by 44% and the majority of enquiries about discrimination were on the basis of being too old (up 78%).

It is important to note that Australian workforce participation rates during the decade 2000-10 show an increase for older ages especially for women.[2] If the participation rates at ages 55 and over had remained the same as they were in 2000, there would have been 514 000 fewer workers at older ages in 2010.[3]

While this increase in the participation rate is encouraging, we must scrutinise the trend further. Are older workers getting the jobs they want? Are they getting quality jobs or jobs that require them to de-skill? Are they getting the hours they want or just the hours they can get? Is this employment providing permanent positions or insecure contract work?

When we look to Australia’s recent underemployment figures, we find that while older workers are less likely to be under-employed than younger workers, on average older workers tend to remain underemployed for longer.

In September 2009, 41 per cent of older underemployed workers had been underemployed for more than a year, compared with 30 per cent of younger underemployed workers. Among older underemployed workers, women were more likely to have been underemployed for more than a year (50 per cent) than men (33 per cent).[4]

While there are older workers who want reduced hours and duties, there will be others who want or need to work full-time.

We need a labour market that facilitates a full range of choices so that older workers have real options and can take their place as part of a fully utilised labour force.

That is the labour market that we need – but is that what we have got?

In 2009 the Australian government announced that the qualifying age for the age pension will increase to 67 years for both men and women by 2023.[5] The pension age for women has been rising from 60 years to 65 years. By 2013, Australian women will join Australian men in being eligible for the pension at 65. In 2017 the pension age will begin to rise again. The increase to 67 years will be fully implemented in 2023.[6] Over the same period that this change has been introduced, Australia has been experiencing skills shortages across the economy. Skills shortages together with the higher age pension eligibility age send a strong signal.

Workers must work longer.

But, can they? The Commission’s complaints statistics show older workers being pushed out of the labour market, well before the current age pension age, leaving a growing gap as we move towards 67 of workers facing years of unemployment before they can qualify for this basic income support.

It appears we have a serious disjunction between the policy of raising the pension age, the skills needs of the economy and the persistence of age discrimination in the workforce.

Of the barriers older workers face, age discrimination is the worst.

In my role I have already heard from many individuals about the discriminatory attitudes and negative stereotypes they experience in all aspects of employment.

In the recruitment context age discrimination has been described as ‘systemic’,[7] and we see job advertisements seeking applicants who are ‘young and dynamic’. We see practices of culling applications of ‘anyone over the age of 40 years’. Candidates are asked ‘what year did you graduate’ or ‘how old are your children’.

There are documented cases of older workers denied access to training and promotion opportunities or targeted for redundancy. They are reluctant to seek flexible work arrangements because they fear negative attitudes towards their unpaid caring responsibilities. We hear of age-based bullying and isolation being not only tolerated, but actively supported within the workplace.

Adding to these problems, age bars still exist in some relevant laws and policies. While the concept of the ‘mandatory retirement age’ was mostly abolished in Australia with the introduction of the Age Discrimination Act in 2004, aspects continue. A structural lag allows the continued application of age bars in some laws and policies that fall outside the protections of the Age Discrimination Act. These act as a de facto ‘retirement age’.

For example:

These are some of the challenges. What are the solutions?

As Age Discrimination Commissioner I have proposed a number of initiatives:

A critical review of laws and policies with the aim of eradicating age bars that force older workers out of the labour force and create a barrier to re-entry.

To this end, I have started discussions with relevant authorities and advisers about the removal of age bars in workers compensation and income protection insurance. By attracting widespread media coverage my comments on these particular age bars, I am able to get some vital information out to individuals, employers and authorities.

Along with other advocates, I have called for an audit of all national laws and policies of age bars that create disincentives to the extended workforce participation of older workers;

I am hopeful such an audit will soon be announced by the Australian Attorney-General.

The persistence of such out-dated age bars in Australian laws and policies is not I think a situation specific to Australia. I expect there is a need across the world’s economies to examine similar barriers.

We need to raise awareness in order to tackle age discriminatory attitudes –I am developing both community wide and employer specific strategies to raise awareness about these attitudes and to address them.

To assist in shifting negative attitudes towards older people and ageing i have recently launched an on-line ‘age positive’ initiative. I have invited people from anywhere in Australia to send in stories, with photos, of older people doing positive things: in their communities as volunteers, in the workforce, in the arts or with their families. Some of the stories have attracted the attention of mainstream media and in this way reached a wider audience.

We need to work together across sectors to address this issue

Recognising the importance of the challenge the Australian government has set up a number of advisory bodies including the Consultative Forum on Mature Age Participation.

This forum brings together high level government policy makers, industry bodies, unions and sector community peak bodies, as well as the Australian Human Rights Commission.

We report directly to the Treasurer.

At the forum we are well progressed in developing extensive advice, reflecting the members’ diverse experience and the results of comprehensive new research.

We will identify a raft of necessary changes to all aspects of employment practice.

These changes when made will result in significant growth in mature age work opportunities.

Not only will they will provide fairer and more opportunities for older workers, they will be effective in filling some of the big skills shortages holding back our national economic growth.

In defeating age discrimination we will not only advance the exercise of basic human rights by older Australians, we will enrich our society and grow our economy. Changes that allow older works to strengthen their financial circumstances and grow their retirement savings mean a diminution of aged poverty in Australia. Scarce public resources could then be used for constructive community activities, rather than needed for minimal public payments for people who are in fact capable and willing to work. And we know, older people in work have better health than those excluded from it - another national benefit as well as a positive for the individuals.

The strategies I have outlined for you today are realistic and supremely do-able.

At the Australian Human Rights Commission we are dedicated to such improvements. As we act to ensure the rights of older workers we add to the exercise of human rights across our entire society- our core business.

[1] See Age Discrimination Act 2004 (Cth), ss 3 (a), (b) & (d).
[2] Peter McDonald, ‘Employment at Older Ages in Australia: Determinants and Trends’, Australian Demographic and Social Research Institute, Australian National University in eds. Tabatha Griffin and Francesca Beddie, Older Workers: Research Readings, National Centre for Vocational Education Research (2011), p 26.
[3] Peter McDonald, ‘Employment at Older Ages in Australia: Determinants and Trends’, Australian Demographic and Social Research Institute, Australian National University in eds. Tabatha Griffin and Francesca Beddie, Older Workers: Research Readings, National Centre for Vocational Education Research (2011), p 26.
[4] Australian Bureau of Statistics, 4102.0 - Australian Social Trends, September 2010. At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features30Sep+2010 (viewed 2 November 2011).
[5] Ministers Wayne Swan and Jenny Macklin, ‘Secure and Sustainable Pension Reform: Age Pension Age’, Australian Government 2009. At http://www.treasurer.gov.au/DisplayDocs.aspx?doc=pressreleases/2009/056.htm&pageID=&min=wms&Year=&DocType=0 (viewed 6 December 2011).
[6] Australian Government Department of Human Services, Centrelink, Increase in age pension age. At http://www.centrelink.gov.au/internet/internet.nsf/individuals/ssp_age_pension.htm (viewed 20 September 2011).
[7] The Victorian, South Australian and Western Australian Equal Opportunity Commissions and the Australian Employers Convention, ‘Age Limits: Age-related discrimination in employment affecting workers over 45’ (2001) p5.
[8] Safe Work Australia, Key Workers Compensation Information Australia 2011, pp.14-15, At http://www.safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Documents/579/WC_Information percent20booklet percent202011_web.pdf (viewed 19 September 2011).
[9] See http://www.ratesonline.com.au/insurance/income-protection (viewed 1 December 2011).
[10] Commonwealth, Parliamentary Debates, House of Representatives, 2 November 2011, pp. 6-10 (The Hon Bill Shorten MP, Assistant Treasurer and Minister for Financial Services & Superannuation).