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.