The Hon Mark Dreyfus QC MP: speech at the launch of ‘Access All Ages’

30 May 2013, Parliament House, Canberra.

I would start by acknowledging the traditional owners of the land on which we meet, and pay my respects to their elders, past and present.

And Rosalind probably acknowledged everyone here, so I won’t do that again, but I would generally acknowledge distinguished guests.

I’m very pleased to be here to launch the Australian Law Reform Commission’s report,Access All Ages—Older Workers and Commonwealth Laws.

The Australian Law Reform Commission plays an important role in independently researching, consulting on, and evaluating Australia’s laws and legal frameworks.

I would like to thank the Commission for its work on this report.

I want to acknowledge and thank the Age Discrimination Commissioner, Susan Ryan, for agreeing to work on this project as a part time Law Reform Commissioner. 

It’s a practice of the Law Reform Commission to seek out people with particular expertise and sometimes people with particular statutory responsibilities, as in this case because Susan is of course the Age Discrimination Commissioner.

And I very much appreciate your contribution, Susan. I know your expertise was invaluable to this inquiry and it demonstrates the merits of this Government’s decision back in 2011 to appoint you as Australia’s first Age Discrimination Commissioner.

One of the main objectives of Susan’s appointment was to strengthen Australia’s anti-discrimination framework for older people.

This report also highlights what can be achieved when Government agencies work in partnership. I am fortunate that such relationships are very common across my portfolio.

I have to confess to a very, very longstanding interest in this area. One of the first professional jobs I had was as a research fellow at the National Research Institute of Gerontology and Geriatric Medicine. A very long time ago in 1982 I wrote a little report on law and older people and I’ve followed the progress of this particular inquiry by the Law Reform Commission with tremendous interest.

As a result I can say that back in 1982 age discrimination legislation was simply a hope and of course while other countries, including the United States already had some kind of age discrimination protections, Australia had none.

It took us quite a long time to get there – until 2004, in fact. But we got there and as this report demonstrates there is still quite a lot of work to be done.

One of the recommendations in this report goes to something of particular professional and now portfolio interest to me, which is the retiring age for judicial officers. It’s something of an irony that the last time there was a successful referendum in Australia, 1977, was to insert in the Constitution a compulsory retiring age of 70 for Federal judges.

And as this report indicates, and the discussion in the report indicates, it’s something that at least some people are expressing now some regret for the inclusion of that retiring age. Judges, in particular, when they reach the retiring age often refer to having reached the age of statutory senility, which they say with a not altogether happy irony, it’s a rather bitter irony, because very many people at 70 are just hitting their stride.

And the contribution that in a sense we missed out on from quite a number of judges that I can point to is perhaps self-evident.

I’m proud to be part of a government that has made a priority of addressing the implications of an aging population.

The Government also wants to ensure that older Australians are not discriminated against in employment, in promotions or accessing training and educational opportunities.

With those issues firmly in mind, the Age Barriers to Work inquiry was announced by my predecessor in late 2011 and commenced in February 2012.

It aimed to identify legal and policy barriers to people aged 45 years and over participating in the workforce or other productive work.

In just 12 months the Commission has delivered a high quality and accessible report, with a clear set of recommendations to government.

The Government knows that the Commission thinks deeply and consults widely before making recommendations and for that reason, its reports are persuasive, and demand proper and detailed policy consideration.

I, and my Ministerial colleagues, will closely consider these recommendations. We know the importance of these issues for Australia and for the long term future of the Australian workforce and economy.

It is crucial to our economy that older Australians are able to participate in productive work. Growth depends upon strong labour force participation.

Excluding older Australians also does our workplaces a disservice.  Older Australians are a source of wisdom and experience.

Workplaces that draw on a variety of perspectives, experiences and skills are more likely to be innovative and productive.

The Government also believes that older Australians deserve the same opportunities as others to gain the personal satisfaction, sense of community and financial security that a job can bring.

We must look to remove the barriers to continued participation in the workplace—whether it is through increasing opportunities or removing disincentives in Australia’s laws and legal frameworks.

The Government is confident that the right steps are being taken to address discrimination and barriers faced by older Australians in the workforce.

The Government will continue to pursue this important objective. This report provides further scope to do just that. 

Once again, the Australian Law Reform Commission has made an important contribution to our collective thinking on an issue of national importance. 

I would like to thank everyone who was involved—everyone who made submissions, attended hearings, researched the law – thank you to all of you for preparing this important report.

The Hon Mark Butler MP, Minister for Mental Health and Ageing. Transcript of address at the launch of Access All Ages—Older Workers and Commonwealth Laws, 30 May 2013, Parliament House, Canberra.

Thank you to the Attorney-General and Professor Croucher for hosting today’s event, and Susan Ryan for coming along and continuing the extraordinary work you’ve done in a relatively short period of time as the Age Discrimination Commissioner.

This for me as the Minister for Ageing is another report that confirms that we are a society that undervalues age in Australia. We’re a society that does not accord proper respect to older Australians, respect for the contribution that they’ve made over a very long period of time, raising their families, working hard and paying taxes, and building the community and the society that we enjoy today; but also respect for the contribution that older Australians can continue to make, and are continuing to make to our society irrespective of their age.

When I was first appointed Minister for Ageing by the Prime Minister a few years ago, my first interview was on a radio station in Adelaide. I was askedwhat are we going to do about the problem of ageing? I’ve since been asked how are going to deal with the burden of ageing? I’ve been asked by other journalists, how are we going to fix ageing? We have a very serious challenge in our community about the attitude we take to the extraordinary demographic shift that is underway.

The World Health Organisation, by contrast, describes the ageing process of communities, the fact that we are living about 25 years longer than we did 100 years ago, as one of humanity’s greatest triumphs. That is the work that Susan is trying to do, to try and get that frame, that picture across as a reflection of our appreciation of ageing.

There is, perhaps, no more significant aspect of our society in which there continues to be stigma, mythology, discrimination around ageing than Australian workplaces. Bill Shorten has had a lot to say about that as Minister for Workplace Relations over a long period of time.

This is in no-ones interest. It is most importantly not in the interests of older Australians themselves. Increasingly research and anecdotal evidence tells us that older Australians want more choice about how they interact with workplaces into their 60s and 70s. Recent research indicates that 60 per cent of people approaching the age of 65 would like to continue to work beyond the typical retirement age. Not necessarily in the same way or with the same hours that they worked through most of their employment, but often at a lower level of hours, and with more flexibility. But the message is that many want to continue to work.

The Human Rights Commission released research a year or two ago that indicated that the average older worker is worth about $2000 per year more than younger workers to employers because of lower absenteeism and better rates of retention. It’s not in the interests of individual employers to discriminate in the way we know too many employers do against people aged over 45. And for our broader employer community, it is not in their interests. Seven years ago, about 40,000 or 50,000 Australians reached the age of 65 every year. From 2011 onwards, that rate is more like 120,000 to 140,000 per year because of the ageing of the baby boomer generation. Increasingly if we are going to have a proper labour market supply for the next two or three decades, we are going to have to give people in their 60s more opportunity to continue to work if that is what they want to do. And the employer community needs to wake up to that.

But most importantly I think from a broader societal point of view, and Bill Shorten referred to this in the context of mental health, the greatest tragedy around this extraordinary achievement we’ve made as a society to live longer, to add these 25 years of life expectancy, would be if older Australians spent those 25 years feeling undervalued. Feeling like they didn’t have real choice about how to spend those years of retirement, including if they want to continue to be able to participate in the workforce.

Workplaces are a very clear reflection of our broader society. The composition of our workplaces and the values pursued in workplaces are a reflection of our society. This report confirms that we still have a lot of work to do in the area of older workers. Thankfully, Susan Ryan and Noeline Brown, our Ambassador for Ageing, and many, many like them , many represented in this room, are working day in and day out to change this ongoing cultural stigma we have in Australia around age, and this report’s a wonderful addition to that understanding.

Thank you very much for coming along today.

Speech by Professor Rosalind Croucher, President, Australian Law Reform Commission at the launch of final report, Access All Ages—Older Workers and Commonwealth Laws, at Parliament House, Canberra, 30 May 2013.

Introduction to event and welcome

Good morning and welcome to this important event. I am Professor Rosalind Croucher, President of the Australian Law Reform Commission, and it is my very great privilege to welcome you to the launch of the Australian Law Reform Commission’s latest report, Access All Ages—Older Workers and Commonwealth Laws.

• Attorney-General Mark Dreyfus QC MP,
• Minister Shorten, Minister Butler,
• Commissioner Susan Ryan,
• all of you here who assisted us so willingly and well throughout the inquiry,
• ALRC colleagues—the Age Barriers team,
• friends.

In the presence of such eminent guests and especially the first law officer of the Commonwealth, may I begin by acknowledging the Ngunnawal and Ngambri peoples, who are the traditional custodians of the land on which we meet—and I pay my respects to their elders, both past and present and acknowledge Indigenous guests attending today.

The trigger for all of us being here today is the fact that Australia’s population is ageing. ‘Older’ in this context means 45 plus—something that caused somewhat of a frisson among those we consulted, many of whom realised they were already in ‘that’ group.  In 2011, persons aged 45 years and over made up 39.3% of the Australian population—up from 38.1% in 2006. Looked at over a longer timeline the shift is indeed stark: in 1901 only 4% of the population was over 65; in 2011 it was 14%. Expanding the workforce participation of older Australians is one strategy that fits within wider concerns about the implications of an ageing population. Developing law reform recommendations focused on older workers is a reflection of such concerns.

Much energy and activity—nationally and internationally—has been directed towards encouraging mature age people to remain in, or re-enter, paid work. The ALRC’s Inquiry into how to remove the barriers to this goal that are found in Commonwealth laws also contributes to finding answers.

How do you break down the barriers to workforce participation faced by mature age people? What are the barriers that stand in the way? What can law and legal frameworks do about it? These were the key challenges for the ALRC in this Inquiry.

What the ALRC contributes in this Inquiry is a range of 36 targeted recommendations that capture the momentum for reform, complementing other work in the broader area of policy development affecting mature age people. The ALRC also gives voice to wider concerns where those have been highlighted throughout the Inquiry. I will speak more in depth about the answers we reached, but first I want to invite the Attorney-General, Mark Dreyfus to officially launch this, our 120th report since our foundation in 1975.

Attorney-General—

[Following after the Attorney-General’s comments.]

Summary of the report

Thank you, Attorney-General and Minister Shorten and Minister Butler, for your kind words. I would like to follow these with a short summary of the key ideas and recommendations that the ALRC puts forward in the report. (I should note that the report is presented with its own short summary in the form of the Summary Report, a publication which now accompanies all ALRC reports in our commitment towards improved accessibility of our work.)

In developing a reform response we talk to a lot of people. We listen to a lot of people. And a lot of people put in submissions. Commitment to widespread consultation is a hallmark of best practice law reform—and this inquiry was no exception.

We conducted two national rounds of stakeholder consultation meetings, forums and roundtables following the release of each of the consultation documents—the Issues Paper and the Discussion Paper. The ALRC also received 101 submissions from a wide range of participants. A number of you are here today—thank you for your contribution.

In our travels we heard about difficulties older people faced in relation to work and we had to confront tensions within some of the key ideas that we were grappling with. Let me give you a few examples:

The tensions within the idea of ‘work’ 

The ALRC was asked to look at participation in the ‘workforce or other productive work’. How do you untangle this?  What about caring? Isn’t this productive? But is it ‘work’?

Caring sits outside the labour force in ABS definitional terms. It is valuable—no one can doubt this—as caring facilitates the economic contribution of others, or relieves economic burdens that might otherwise be borne by the State. But caring can also be a ‘barrier’ in a sense to those carers participating in the workforce. It is especially the case for women—and mature aged women in particular. Caring for persons with disability. Caring for grandchildren.

Clearly policy making in this area must navigate the complexity of the interaction between paid workforce participation and unpaid work. With an ageing population, demands for care are likely to increase—and policy decisions will affect the shape of the work/care regime.

Our recommendations therefore focus on maintaining workforce attachment, recognising the compatibility of paid work and caring responsibilities and supporting flexibility in work. The extension of the right to request flexible working arrangements on the basis of caring responsibilities will be particularly important to mature age people, and especially mature age women. And limitations on the ability to engage in work or study while in receipt of Carer Payment need attention to assist recipients to combine work and care, or to equip them to engage in paid work after they cease caring.

Another conceptual challenge was querying the very idea of ‘retirement’

Who has ‘retired’? Does this include a person who can’t find work? In 2011 over half of discouraged job seekers (56%) were aged over 55 years.

As National Seniors said to us during the inquiry, it’s really about a ‘work-retirement continuum’, rather than a clear shift of gear. “For up to 20 years, a person’s level of engagement in the workforce may cycle between periods of no paid work, full-time work and various levels of part-time paid work”.

So, how could we respond to issues like these?  Enhancing capacity to be able to do the various things that older people want to do—to work in the ways they want to and the ways they envisage ‘work’—paid and unpaid; to help them get into or back into paid work if they want. Our recommendations seek to achieve both goals.

About getting back into work—a real barrier appears to be the recruitment process

Achieving cultural change, and particularly in recruitment, was singled out by stakeholders in the Inquiry as crucial for reform. It is ‘the real game changer’, as the National Welfare Rights Network told us.

Some examples from the AHRC’s work on age discrimination in 2010:

A 58 year old applied for a store position and was asked questions in the interview about whether he could work with young people and how long he planned to work for. He was unsuccessful in getting the job.

A 50 year old applied for a position with a company. During the interview a panel member asked ‘what do you want this job for at this late stage of your life?’ The person was unsuccessful in getting the job.

I note in relation to the problem of stereotyping that is reflected in these examples the work that Susan Ryan’s unit in the Human Rights Commission is doing, in the project addressing the stereotyping of mature age persons. A number of the recommendations in our report also focus on promoting awareness of mature age workers’ rights and entitlements—by recruiters, by job services providers, by employers, and by mature age workers themselves.

What if you are a person with disability and want to participate in paid work?

Disability is clearly a mature age issue as rates of disability increase with age. In 2011, 67.5% of DSP recipients were mature aged. Recent changes allow DSP recipients to work up to 30 hours per week and remain on the DSP. But DSP recipients are concerned that any increase in their earnings may trigger a review of their qualification for the payment, and we heard that this was acting as a disincentive to taking up work.  

Here the ALRC recommended that the Guide to Social Security Law be amended to provide that undertaking paid work for fewer than 30 hours per week will not trigger a review of qualification for DSP.

Approach to reform

There were many other complex questions and issues that we had to confront and untangle during this inquiry. How does law reform address such problems? In developing our recommendations for reform we began by defining the conceptual framework upon which we would shape our ideas. Our recommendations were developed in the light of six interlinking principles:

• Participation—all Australians should feel valued and have the opportunity to participate fully in the life of our society.
• Independence—older persons should have the ability to make genuine choices about the form of participation they wish to make, including the capacity to determine when and at what pace withdrawal from paid employment takes place.
• Self-agency—an individual should have the right to make decisions about matters affecting him or her.
• System stability—laws and systems that are complex should remain stable and predictable.
• System coherence—systems should be consistent, simple and transparent for individuals. Complexity may cause disengagement in paid work.
• Fairness—national resources should be distributed fairly and responsibility should be balanced between individuals and government; and between generations—that is, ‘intergenerational equity’.

These reform principles guided the development of the targeted set of recommendations addressing the Terms of Reference in this Report.

Summary of recommendations

The Terms of Reference required the ALRC to review a number of distinct and discrete areas of Commonwealth law, to identify potential barriers to mature age persons’ workforce participation, and to recommend law reform solutions.

The approach to law reform in this Report includes a mix of strategies, directed, for example, at legislation, codes of practice, guidelines, education and training. Although the Report is presented to the Attorney-General, some of its recommendations are directed to other government agencies and bodies, professional associations and institutions, for action or consideration.

Looking at it altogether, the ALRC considers that the net effect of our recommendations will be: 

First—to provide a coordinated policy response to enabling mature age workforce participation—through a major coordinating initiative in the form of a National Mature Age Workforce Participation Plan. This will be big tapestry in which our work sits. The other recommendations will amount to specific strategies in the implementation of the National Plan, with the aim that, eg, the social security and superannuation systems do not discourage or prevent workforce participation and policy responses are guided by relevant reviews taking into account mature age workers.

Second—to provide consistency across Commonwealth laws and between Commonwealth and state and territory laws to support mature age workforce participation—eg, Commonwealth workers’ compensation laws and the insurance exceptions in Commonwealth, state and territory anti-discrimination legislation.

Third—to address age discrimination through specific amendments and through reviews (eg, compulsory retirement ages of judicial and quasi-judicial appointments, and military personnel and licensing or re-qualification requirements, with the Australian Human Rights Commission facilitating the development of guidelines to assist; and the insurance exceptions under Commonwealth, state and territory anti-discrimination legislation).

Fourth—to provide a greater awareness of mature age workers’ rights and entitlements: by recruiters, by job services providers, by employers, and by mature age workers—eg, through codes of conduct; guidance material and recognition of best practice. Mature age workers also need information that supports their ability to make choices in employment. They need to know what rights and entitlements they have to make such choices.

Fifth—to provide support for maintaining attachment to the workforce for mature age persons: eg, by ensuring that insurance coverage is available and appropriate for continued participation in work or other productive work; there are no gaps under the Commonwealth workers’ compensation schemes and that injured mature age workers remain connected to rehabilitation and return to work support services. Recommendations are also directed towards improving employment services for unemployed mature age people, acknowledging that recruiters are key gatekeepers in the employment process. And there are specific recommendations directed towards enabling carers to retain an attachment to the paid workforce—recognising the compatibility of paid work and caring responsibilities; and supporting the flexibility in work that enables choices to be made in relation to caring.

Lastly—to provide work environments, practices and processes that are appropriate for mature age workers, eg by ensuring that health and safety issues affecting mature age workers are considered in implementing the Australian Work Health and Safety Strategy 2012–2022; included in Safe Work Australia’s research and evaluation strategy and work plans; and acknowledged through recognition of best practice.

Thank yous

An inquiry such as this requires many ‘thank yous’.

First, I thank the Attorney-General for agreeing to launch the report. Next a huge vote of thanks to all those with whom we consulted—all over the country—and to those who put in submissions. The depth of engagement reflected in this process of consultation is the hallmark of best practice law reform and the ability of governments to implement them. The ALRC appreciates the work, the time and the effort that goes into both consulting with us and responding to our many questions and proposals so thoughtfully in your submissions. Your generosity in engaging with us on this, and indeed on many of our inquiries, is very much appreciated and lies at the heart of all that we do and achieve.

Our Advisory Committee members, many of whom provided specialist comment and in-depth advice over several months, made an invaluable contribution to this inquiry, and I can’t overstate how much their expertise and sound counsel has guided the ALRC and provided quality assurance to this work. Thank you all for your generous participation in this inquiry.

I must also thank the wonderful work of the team: the legal officers of the ALRC—Amanda Alford, Dr Julie McKenzie, Robyn Gilbert, Krista Lee Jones, Sara Peel (two of whom went on maternity leave during the inquiry—doing their bit to address the ageing population—not one of our recommendations!); the production team, under the leadership of ALRC Executive Director, Sabina Wynn, with Tina O’Brien once again providing key support as Project Coordinator and typesetting everything under the sun; and Marie-Claire Muir—our one-woman website ‘team’.

Finally, a profound tribute to the Hon Susan Ryan AO—a wonderful colleague and formidable ally in wearing her second hat as a part-time Commissioner of the ALRC for this inquiry.

Thank you all for joining us here today. Copies of the report and summary are available on the ALRC website. Thank you Attorney-General. Now I hope you will stay and enjoy some morning tea with us. Good morning.

Photo: (left to right) Professor Rosalind Croucher, Minister Butler, Minister
Shorten and Commissioner Susan Ryan at the launch of Access All Ages.

Access All Ages—Older Workers and Commonwealth Laws

The Australian Law Reform Commission (ALRC) today released the final Report for its inquiry into legal barriers to older persons participating in the workforce and other productive work,Access All Ages—Older Workers and Commonwealth Laws (ALRC Report 120, 2013). The Report makes 36 recommendations that address the areas of recruitment and employment, work, health and safety, workers’ compensation, insurance, social security, and superannuation. The keystone recommendation in the Report is for a National Mature Age Workforce Participation Plan to provide a coordinated policy response to address barriers to participation by mature age people in the Australian labour market.

ALRC President Professor Rosalind Croucher said “These recommendations have been developed in the light of six interlinking principles—participation, independence, self-agency, system stability, system coherence, and fairness—that assisted in balancing a range of competing priorities.  The ALRC suggests that a combination of legislative and regulatory reform is needed, together with measures to increase education and awareness and address perceptions and stereotypes surrounding mature age workers.

Finding the answers to enabling workforce participation and maintaining workforce attachment by older Australians requires a broader focus than just on law. The ALRC considers that a major coordinating initiative, the National Mature Age Workforce Participation Plan, will provide the focus and impetus both to the recommendations of this Report and the considerable activity that is also occurring across Government, industry and the community.”

The ALRC was assisted in this Inquiry by the Hon Susan Ryan AO, Age Discrimination Commissioner. Commissioner Ryan said, “Australia needs the continuing contribution of older people, as workers or as volunteers. Most older people want to continue contributing. Many need to for their financial and personal wellbeing. The Australian Government, along with all employers large and small, should act on the recommendations and insights of this report and immediately start tearing down barriers.”  Commissioner Ryan called on the community as a whole to abandon negative stereotypes of older people and support their access to jobs and other productive work.

The ALRC considers that the Report’s recommendations, taken together, will provide: 

• a coordinated policy response to enabling mature age workforce participation;
• consistency across Commonwealth laws and between Commonwealth and state and territory laws to support mature age workforce participation;
• a reduction in age discrimination;
• a greater awareness of mature age workers’ rights and entitlements;
• support for maintaining attachment to the workforce for mature age people; and
• work environments, practices and processes that are appropriate for mature age workers.

The Report and Summary Report can be viewed, downloaded or purchased on the ALRC website. The Report is also available for free as an ebook, for use in mobile devices such as smartphones and tablets.

Transcript

SW: I’m Sabina Wynn, Executive Director of the Australian Law Reform Commission, and I’m here today with the President of the ALRC, Professor Rosalind Croucher, who was the lead Commissioner in the Age Barriers to Work inquiry, and Amanda Alford, a legal officer working on the inquiry. So Professor Croucher, what’s the background to the Inquiry?

RC:  The background to this Inquiry is really the fact that Australia’s population is aging. I’ll give some numbers that put this into really clear perspective. In 2011, about 40% of the population was 45+, and that’s the mature-age cohort that we were looking at. And 14% of that were 65 and over. Now, if you look a century ago, it was only 4% in that group. And if we look ahead, by 2050 the scary number is that there’ll only be 2.7 people of working age to support those who are over 65. Back in 1970 there were 7.5 people of working age, so that’s a fairly dramatic shift in the population. And so one of the solutions is clearly to expand the workforce participation of those who are older, reducing the burden, it would seem, on those who are younger. And so that kind of demographic shift was the key thing that sat behind the work of the ALRC and other bodies. The ALRC’s work clearly fitted into that agenda and what we were asked to do was have a look at barriers in laws and legal frameworks that might prevent people from fully participating in the workforce and to try to devise some solutions to remove those barriers.

SW: And what were the laws that you actually looked at?

RC:  The ALRC works under Terms of Reference from the federal Attorney-General and the terms for us included a list of specific laws. They key ones were employment, social security, insurance, compensation and superannuation.

SW: Amanda, you specifically worked in the area of employment. That included recruitment, insurance and workplace laws. What were the barriers that were identified in these areas?

AA: There are a number of key barriers across the employment and recruitment sphere. For example, the right to request flexible working arrangements emerged as a really key issue, and in fact the ability to work part time or flexible hours was really one of the most important facilitators after good health for mature-age people remaining in the workforce and working beyond what we’ve considered the retirement age. I suppose some of the others are in relating to notice of termination for employment. We identified that I economic downturns or where times were difficult often mature-age people were targeted. And because they remained unemployed for longer we made a recommendation that the government consider amending the Fair Work Act to changing the minimum period of notice for mature-age workers. We also made a range of recommendations in relation to compulsory retirement. Compulsory retirement has been abolished for most Commonwealth statutory office holders and public servants, but still remains an unofficial compulsory retirement in terms of the need to requalify in certain industries. So we made a recommendation that the Australian Human Rights Commission should develop some guidelines to really allow these industries to look at their practices and whether or not they can substitute age for capacity. We also recommended there should be independent inquiries into compulsory retirement ages for judges and for Defence Force personnel.

One of the other key areas was work health and safety and workers’ compensation. Now the real barrier in workers’ compensation is that there are two categories of mature age workers under Commonwealth workers’ compensation law. The first is those people who were injured before age 63 or 64 who are entitled to incapacity payments, that is instead of their wages, up until age 65. There is a second group who are injured after age 63 or 64 and they are only entitled to entitled to up to one or two years of incapacity payments, whether consecutive or not. That may pose a problem for those who were injured at work, and had they not been injured were intending to work for longer. The really key element of staying attached to the workforce in terms of workers’ compensation is the rehabilitation and support attached to workers’ compensation. So we made a number of recommendations in workers’ compensation around extending the incapacity payment period under commonwealth workers compensation legislation, about amending it to align retirement provisions with the increased age pension age, and in relation to consistency across commonwealth workers compensation legislation. I suppose the other key areas was insurance. The key barriers we identified in insurance were predominantly in relation to income protection insurance. So if an older worker, for example, wants to leave a waged job and start out on their own business, something like income protection insurance can be incredibly important. Also things like travel insurance and volunteer insurance. The concerns here are really related to the availability and information about insurance products for mature age people, and the transparency and accessibility of the actuarial and statistical data upon which age-based insurance underwriting processes occur. To facilitate the provision of clear and simple information about available insurance products we made a number of recommendations around which the insurance reform advisory group and similar bodies could consider publication of accrued statistics and information and the provision of a type of portal where mature age workers can access information about available insurance products. We also recommended a review of the insurance exceptions under commonwealth, state and anti-discrimination legislation. So they were the key things in terms of recruitment, employment, workers compensation and insurance.

SW: And Ros, what do you think would be the key recommendation in this report?

RC: Amanda’s given a lot of detail of the specific recommendations we made, and we made 36 recommendations in the report. Thirty-five of them are very targeted, like the ones that Amanda has talked through. But if I were going to identify the key recommendation, I think it would have to be the first recommendation, which is about the development of a national mature-age workforce participation plan. The idea of that really is to capture all of the activity that’s happening in the mature age worker space. There’s been activity at the high level by Treasury through intergenerational reports, the Productivity Commission and a number of targeted panels on the economic potential of senior Australians now articulated into an advisory panel on positive aging. That kind of activity plus the work of the ALRC and the work of many seniors and other organisations needs to be captured in some way as a coherent whole. And so we thought that the missing piece in that very big picture is clearly a plan that pulls it all together. And so, the other 35 targeted recommendations then sit as very specific strategies in that big plan. It will provide the big picture and will be, we think, a necessary major coordinating initiative.

SW: And in making all these recommendations, what is the ALRC hoping to achieve.

RC: There are a number of key things I think that we would say that we’re trying to achieve. If I were going to describe it very broadly I’d say we’re trying to shift the focus from discrimination to capacity. The first real landmark work in the area of mature age people was the age discrimination legislation, which was a necessary check against specific discrimination in employment and other areas. But if we’re really going to move the activity and move the appreciation we need to shift towards a lens on capacity that emphasises choice and flexibility. So … the broad things we were hoping to achieve. First, a coordinated policy response. The national plan clearly is an expression of that coordinated policy response. Secondly, to achieve consistency across commonwealth laws and between state and territory laws. The area of workers comp that Amanda talked about is clearly an illustration of that kind of area. And insurance, where there is a need to get that coordination across the commonwealth and state and territories. There are also areas of specific age discrimination like the compulsory retirement and licensing that Amanda referred to. There again we want to make the focus on capacity. The next thing is to have a greater awareness of mature age workers rights and entitlements. And this is really about achieving a cultural shift, to enable choices and again to enhance capacity. The next key thing, and I think it’s a really central one, is maintaining an attachment to the workforce. So many of the people we spoke to through the inquiry spoke of the difficulties once people were out of the paid workforce to get back in. So the key thing is actually maintaining that attachment, to stay in the workforce or to be able to rearrange one’s work, both paid and unpaid, in a way that suits the needs and desires of a person for participating and also to manage independent choices in later life. We also want to achieve work environments, practices and processes that are appropriate for mature age workers. And that’s not just about targeting mature age workers: it’s about improving the whole work environment for everyone. So I think, looking at that level, shifting towards an emphasis on capacity and maintaining workforce attachment will be real achievements when the package of reforms are implemented.

SW: Well the report is now tabled and was launched in Parliament House by the Attorney-General in the presence of both Minister Shorten and Minister Butler. What happens next?

RC: When the ALRC finishes a report, the formal stage of the process is ended with the tabling in Parliament. But there is much that the ALRC likes to do to try and assist in the implementation of our work. And we do that through preparing some fact sheets that might be relevant to particular sectors that have been involved with us. We also are very willing and active in writing short articles and making presentations. So, we try and keep the conversation going, in that informal, communicative network that the ALRC is intent to foster. But from a formal point of view, it’s now over to government.

SW: Thank you.

Transcript

Sabina Wynn (SW): Hello. I’m Sabina Wynn, Executive Director of the ALRC, and I’m here with Rosalind Croucher, President of the ALRC, discussing some of the issues that have been raised in our Discussion Paper for the Age Barriers to Work inquiry. So, “age barriers to work” – what does this really mean?

Rosalind Croucher (RC): We’re looking at a range of things that might be barriers. Basically three things. First of all, you might be in work and want to keep working – so what would help you stay? Secondly, you may be out of work but want to work – so what would help you get there. And thirdly, you may be nearing retirement – what are the things that are pulling you out of paid work? It means all of those things.

SW: So, we’ve heard from someone, as an example, Marta, she is 64, and a job seeker. She has been looking for work as a personal assistant in any industry. She approached a recruitment agency about possible vacancies but before interviewing her, the agent asks Marta to provide a copy of her birth certificate. Marta is sure that the only reason for this request is that the agent wants to know her age before considering her for any job. Marta doesn’t think she will get any job if people know that she’s 64. Are any of the proposals in the Discussion Paper going to help people like Marta?

RC:  That’s a really good example, and it raises a whole range of issues. Most of them, though, are about perceptions – attitudinal and cultural issues concerning older workers. Some of these may be about what employers and recruiters think. Some of it may be about what Marta thinks herself.

If Marta experiences actual discrimination then this is a legal issue and work is going on at the same time as the ALRC’s inquiry looking at all the anti-discrimination legislation.

But if the issue is really the attitudes of people to older workers, that is harder to pin down as a legal issue.

SW: So, can you explain what proposals we’ve made in this regard?

RC: Yes. Because we are looking at legal frameworks – which is more than just specific legislation – we’ve got wider scope. So we have focused on things like the training of recruitment agencies, and employment service providers, but we’ve also looked at ways of recognising best practice through things like employer of choice awards.

SW: What about people who want to stay working – perhaps well into their 70s and beyond? Do we make any proposals that directly concern them?

RC: Flexibility is obviously the big issue here – we’ve heard that the ability to work part-time or flexible hours is crucial for mature age workers to work beyond retirement age. It is all the more important when we see that the likelihood of a person providing care to someone else increases with age and that the majority of carers in Australia are aged 45 years and over.

So what we are proposing, one of the examples, is that the right to request flexible working arrangements under the National Employment Standards be extended to all employees who have caring responsibilities, an amendment that is likely to predominantly benefit mature age workers.

SW: Perhaps it would be useful if you explain what we actually mean by flexibility?

RC: Well, it’s much more than reduced hours. Some want part-time work; some want casual work; and some want to work for blocks of time, take leave and return to work. Others may wish to scale-down and work fewer hours, allowing more time for recreation. But what is clear is that older workers want meaningful flexibility, determined around their capacity. An example, which is not of meaningful flexibility, is one that we heard from a woman called Sophia. She’s in the 60 plus age group and has worked for nearly 30 years as a food service attendant in a hospital kitchen. She is employed on a permanent part-time basis, which enables her at this stage in her life to undertake a number of caring responsibilities for her husband. There were changes made to Sophia’s shifts without consultation or discussion with her, and she lost the same days that she has been doing for almost 30 years. The problem is that on the two days that she had off, she cares for her husband and also attends appointments, which she now cannot attend because of the changes made to her shifts. That clearly is not the kind of flexibility employees would like.

SW: We’ve also looked at people who are on the Age Pension and want to work. Could you discuss the sorts of proposals we’ve made in this area.

RC: The main one we’ve looked at here is in relation to Work Bonus. Now this is something that is designed for people on the Age Pension who want to work in paid work, and not affect their means test, because it allows them to earn up to $250 per fortnight, without it being assessed as income under the Age Pension means test. The ALRC proposes that for that to continue to be a meaningful incentive to work, it needs to be indexed to keep pace with inflation.

SW: The ALRC is also looking at superannuation as a barrier to work.

RC: It may seem a little strange when it’s not a barrier, but as I said at the beginning, we’re looking at things that are also incentives to leave the paid workforce, not just specific barriers to staying. Superannuation has a number of age-based rules. It’s also a very complicated area.

SW: Have we made any proposals?

RC: One example, of a number, is that if people are still genuinely working, we ask – why shouldn’t they be able to keep contributing to their superannuation? We propose that they can.

SW: We are also looking at other areas such as workers compensation and insurance. Can you discuss what some of the issues are here?

RC: In the area of workers compensation, our key concern is to close any gap in coverage, particularly for workers who may not yet have reached Age Pension age.  In the area of insurance, the key concerns are that there is appropriate coverage and appropriate products available for older people. Some of this is about law; most, however, is about market.

SW: Thanks Ros. I think it’s important to say that this is the second stage in our process. Earlier in the inquiry process we released an Issues Paper, and now we’ve released our second consultation paper, a Discussion Paper. The things that you’ve been discussing are proposals and we’re really interested to get people’s feedback on the things that we’re proposing, and also perhaps to hear examples from people that may illustrate both the problems that they’re having and possible solutions.

RC: Most definitely.  The main thing we need is to get people involved, to let us know what you think, tell us your stories. Because community participation is really essential to all of the ALRC processes. So, subscribe to our e-newsletter, look at the Discussion Paper on our website – everything is available there free. If you want a hard copy you can ask and we’ll send one to you. We are also undertaking another round of national consultation in the latter part of October and through November until the submissions close. But the main thing is we want you involved. Thank  you for your work so far, and do get on board and help us with our work.

SW: So the closing date for submissions is 23 November. You can find out more information on our website at www.alrc.gov.au.

The Australian Law Reform Commission today released a Discussion Paper for its inquiry into legal barriers to older persons participating in the workforce and other productive work—Grey Areas: Age Barriers to Work in Commonwealth Laws (ALRC DP 78, 2012).

This inquiry was initiated as part of the Australian Government response to population ageing. The ALRC has been asked to consider Commonwealth legislation and related legal frameworks that either directly, or indirectly, impose limitations or barriers that could discourage older persons from participating, or continuing to participate, in the workforce or other productive work.

ALRC President Professor Rosalind Croucher said “Following a national round of consultations and having received over 60 submissions to the questions contained in the Issues Paper, the Discussion Paper highlights ALRC thinking to date and puts forward proposals for law reform in the areas of recruitment and employment, work health and safety, insurance, social security, and superannuation. Reform in this area is complex and must address multifaceted and interrelated barriers to workforce participation. The ALRC is suggesting the need for a combination of legislative and regulatory reform, together with measures to increase education and awareness and address perceptions and stereotypes surrounding mature age workers.”

The ALRC invites individuals and organisations to make submissions in response to the 36 proposals and 15 questions in the Discussion Paper to assist the ALRC develop recommendations for reform.

Part-time Commissioner for the inquiry and Age Discrimination Commissioner, the Hon Susan Ryan AO said, “This discussion paper provides the public with an important opportunity to shape proposed reforms aimed at improving the financial and personal wellbeing of older Australians. I hope all organisations and individuals committed to these aims will read the paper and send us their views.”

The Discussion Paper may be downloaded free of charge from the ALRC website.  Hard copies may be obtained on request by contacting the ALRC.  Submissions can be made using the ALRC online submission form at www.alrc.gov.au/content/age-barriers-work-discussion-paper. Written submissions via post, fax or email are also accepted.

Closing date for submissions is Friday 23 November 2012.

For further information about the ALRC inquiry, or to subscribe to the Age Barriers e-news, visit www.alrc.gov.au/inquiries/age-barriers-work.

The final Report is to be delivered to the Attorney-General of Australia by 31 March 2013.

Issue 6 | 2 October 2012  View original format

“Grey Areas” Discussion Paper released

The ALRC has today released its Discussion Paper—Grey Areas: Age Barriers to Work in Commonwealth Laws (ALRC DP 78, 2012). The Paper highlights ALRC thinking to date and puts forward proposals for law reform in the areas of recruitment and employment, work health and safety, insurance, social security, and superannuation. The ALRC suggests a combination of legislative and regulatory reform, together with measures to increase education and awareness and address perceptions and stereotypes surrounding mature age workers. 

We received more than 60 submissions to our first consultation paper, an Issues Paper, and we are extremely grateful for the time and effort that were put into these thoughtful responses. A national round of consultations—to Perth, Hobart, Canberra and Melbourne, on top of consultations held in Sydney— and an Advisory Committee meeting, also assisted us in our thinking. 
 
As we are aware of the time constraints on stakeholders and the impracticality of asking all respondents to tackle the full Discussion Paper, we have also produced a brief Summary document. It gives informed stakeholders easy access to the principles on which our ideas are based and what we are proposing.

Both the Discussion Paper and the Summary document can be downloaded free of charge from the ALRC website. If you require a hard copy, please contact us on (02) 8238 6333.

• Discussion Paper
• Summary document
• See full media release

Make a submission

With the release of the Discussion Paper, we invite you to respond to any of the questions and proposals relevant to you or your organisation. Submissions are crucial in assisting us to develop final recommendations for reform.

While we prefer to receive submissions through the ALRC online submission form, we also accept submissions via post, fax or email.

• Online submission form >>
• Find out more about making a submission >>

The closing date for submissions is Friday 23 November 2012.

Issue 5 | 8 August 2012  View original format

Month in summary

Since the last e-newsletter, the Age Barriers team have been busy with a further round of consultations —in Sydney, Melbourne and Hobart— as well as reading and analysing submissions received in response to the Grey Areas Issues Paper (not, as Associate Professor Rimmer quipped on Twitter, to be confused with another publication enjoying widespread circulation at the moment…)

We would like to thank everyone who made a submission in response to the Issues Paper. We received 59 submissions in all, from a range of organisations and individuals. These submissions can be viewed on the ALRC website.

The Age Barriers team have recently attended events relevant to the Inquiry. On 12–13 July, team members attended the Australian Colloquium of Superannuation Researchers. ALRC President, Professor Rosalind Croucher presented at the colloquium. On 2 August, Professor Croucher and Legal Officer Amanda Alford attended and presented at a travel insurance roundtable as part of the Insurance Reform Advisory Group. On 15 August, Professor Croucher and Legal Officer Dr Julie MacKenzie, will be attending the Prime Ministerial Advisory Council on Ex-service Matters (PMAC) meeting at Parliament House to discuss issues of particular interest to veterans. Professor Croucher is also presenting at the National Employment Services Association (NESA) National Conference in late August. 

The Discussion Paper is on its way

We plan to publish the Discussion Paper (DP) for the Age Barriers Inquiry at the end of next month – late September. The DP will be a more detailed document than the Issues Paper – bringing together the ALRC’s own research and stakeholder input from submissions and consultations. It will include draft recommendations for reform as well as a few more questions.

With the release of the DP, we will call for a new round of submissions. The closing date for submissions will be mid November, so please allow time for this in your schedule. We will, of course, let you know via this e-news as soon as the DP is published.

Other reviews relevant to Age Barriers

Review of Federal Workers’ Compensation Scheme

On 24 July 2012, the Hon Bill Shorten MP, Minister for Employment and Workplace Relations announced a review of the federal workers’ compensation scheme, in particular the Safety, Rehabilitation and Compensation Act 1988 (Cth). Mr Shorten says the aim of the review is to modernise the federal workers’ compensation scheme.  The review will be undertaken by Mr Peter Hanks QC and Dr Allan Hawke AC, supported by a Secretariat in the Department of Education, Employment and Workplace Relations.

The review will inquire and report on any legislative anomalies and updates that need to be addressed and the performance of the Comcare scheme and ways to improve its operation. The Terms of Reference include ‘ensuring the application of workers’ compensation legislation does not disadvantage workers over the age of 65 and there is no gap between the workers’ compensation age limit and the foreshadowed increase to the age pension eligibility age to 67 by 2023’. The ALRC welcomes this inclusion, in part as it builds on a potential option for reform raised in the Issues Paper.

It is expected that the review will report to the Government in February 2013.

Fair Work Act Review

On 2 August 2012, the Hon Bill Shorten MP, Minister for Employment and Workplace Relations, released the Fair Work Act Review Panel’s final report, Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation.

The key recommendations of potential relevance to the Age Barriers Inquiry include that:

• the right of employees to request flexible working arrangements should be extended to employees with a wider range of caring and other circumstances; 
• a range of changes should be made to individual flexibility arrangements in order to make them more accessible and transparent; and
• some changes should be made to the general protections provisions.

The Government is currently considering the report, and will respond in due course.

Inquiry into the adequacy of the allowance payment system 

The Senate Education, Employment and Workplace Relations Committees is conducting an inquiry into the adequacy of the allowance payment system for jobseekers and others, the appropriateness of the allowance payment system as a support into work and the impact of the changing nature of the labour market. Submissions closed on 03 August 2012, and can be viewed online. The reporting date is 1 November 2012.

Issue 4 | 1 June 2012  View original format

Since the release of the Issues Paper on 1 May the team has been busy consulting with stakeholders across Australia—in Perth, Melbourne, and Sydney. ALRC President Professor Rosalind Croucher gave a presentation about the Age Barriers Inquiry to the Diversity Council of Australia and also attended the COTA National Policy meeting in Canberra. There will be further consultations in Sydney, Melbourne and Hobart over the next couple of weeks.

Since our last e-news, Part-time ALRC Commissioner and Age Discrimination Commissioner, Susan Ryan, has published a couple of articles in the general media relating to the Age Barriers Inquiry:

• Beard gone all grey? It’s still your right to go to work – The Punch
• Removing the grey areas of age discrimination – The Drum Opinion (ABC)

We’d like to remind everyone who has not yet completed their submission to the Grey Areas Issues Paper, that the closing date—14 June—is fast approaching!

• Read or download the Issues Paper  >>
• Make an online submission >>
• View public submissions received so far  >>

A particular reminder to people who have started submissions using the online form. We can see that a few of you have begun answering the questions, and saved the form, perhaps intending to complete it at a later time. Please make sure that you complete the form and use the “submit” button on the final page, so that your submissions can be given full consideration.

Subscribers are probably aware that the Australian Government Budget for 2012-13 was handed down on 8 May. Some of the changes will impact on areas covered by the Grey Areas Issues Paper, such as superannuation, social security, tax and migration. Below we have outlined factors that may be of interest to stakeholders.

Superannuation

The 2012–13 Budget has introduced a change to the concessional contributions cap for persons aged 50 years and over.

There are ‘caps’ on the superannuation contributions that persons can make each year before they must pay excess tax. The cap on concessional contributions is currently $25,000 per year. Since 2007–8, a higher concessional contributions cap has applied to superannuation contributions made by persons aged 50 years and over. This was a transitional measure scheduled to expire on 1 July 2012. In the 2010–11 Budget, the Australian Government announced that, from 1 July 2012, a higher concessional contributions cap of $50,000 per year will continue for persons aged 50 years and over with superannuation balances below $500,000. In the Issues Paper, at Question 14, the ALRC asked whether the higher concessional contributions cap for persons aged 50 years and over affected mature age participation in the workforce.

In the 2012–13 Budget, the Australian Government announced that it will defer the 2010–11 Budget measure for two years. This means that the general concessional contributions cap of $25,000 will apply to all persons 50 years and over until 2014–15. The ALRC is interested in comments as to whether this measure, and its deferral, may affect mature age participation in the workforce.

Social security

The 2012–13 Budget has announced a Mature Age Participation – Job Seeker Assistance Program to begin on 1 January 2013. This Program will provide eligible job seekers aged 55 years and over with intensive job preparation assistance. The Budget also announced changes to the ‘Experience+’ suite of pilot programs (referred to in pars 170-171 of the Issues Paper). The Experience+ Career Advice Service has been extended beyond its original end date of 30 June 2014 to 30 June 2016.

The Government will not proceed with the ‘Experience+ Training’, ‘On‑the‑Job Support’ and ‘Job Transition Support’ programs. The training and support currently delivered by these programs will now be supported by the More Help for Mature Age Workers (MHMAW) program, which will be renamed as the ‘Investing in Experience — Skills Recognition and Training program’.  The Government will broaden the eligibility of this program and make changes to the payment structure to help address current levels of unmet demand.

The new program will be expanded to include mature age workers from non-trade occupations across all sectors of the economy, such as child care and business. (See, Australian Government, Budget Paper No. 2, Budget Measures 2012-13, (2012), 225).

Tax

The 2012-13 Budget introduces changes to tax offsets, which will commence on 1 July 2012.

The Mature Age Worker Tax Offset will be phased out. It will be maintained only for persons who are 55 or older on 1 July 2012. This measure implements a recommendation of the Australia’s Future Tax System review. Additionally, as the tax-free threshold will be more than tripled, the Low Income Tax Offset will be reduced.

In the Issues Paper, the ALRC asked how tax offsets, including the Senior Australians Tax Offset, Pensioner Tax Offset, Low Income Tax Offset and the Mature Age Worker Tax Offset, might be improved to encourage mature-age workplace participation. It also asked what disincentives may be created should these offsets be removed, as recommended by the Australia’s Future Tax System Review (Question 8). The ALRC is also interested in stakeholder comment as to the effect of the above measures in relation to mature age participation in the workforce. 

Migration

In the 2012–13 Budget there was a focus on measures designed to attract skilled migrants, particularly to regional and rural areas. In particular, the 2012-13 Migration Program planning levels were announced including an increase of 3,400 places as part of the Skill Stream level, with a ceiling set at 129,250 places. The Government’s aim in increasing these levels is to help fill skills shortages in parts of the Australian economy. (See media release: Targeted migration increase to fill skills gaps.) Additional funding has also been allocated to encourage more permanent employer-sponsored skilled migration.