Recruitment

4.4 Mature age job seekers face multiple and intersecting difficulties in entering or re-entering the paid workforce.[3] Once unemployed, mature age job seekers experience longer periods of unemployment[4] and are more likely to become discouraged job seekers than their younger counterparts.[5] Recruitment agencies can play an important role in facilitating the employment of mature age workers. However, recruitment practices and personnel may also operate as a barrier to mature age workforce participation, as ‘recruitment agencies often perform a gate-keeping function that can exclude mature age workers’.[6]

4.5 There are a range of both government funded and private ‘intermediaries between job seekers and employers’.[7] The focus of this section is on private recruitment agencies and the role such agencies play in the recruitment of mature age job seekers.[8]

4.6 The key concerns that emerged in course of this Inquiry were:

  • perceived discrimination against mature age job seekers by some recruiters and recruitment agencies;

  • limited understanding of obligations under anti-discrimination law among some recruiters;[9] and

  • lack of awareness by some recruiters of the benefits of employing mature age job seekers, or of ways to engage appropriately and constructively with mature age job seekers.

4.7 To address such concerns, the ALRC makes a number of recommendations that focus on recruitment agencies and consultants. These involve the development and provision of ongoing education, training and guidance material, as well as the recognition of best practice in the recruitment of mature age job seekers. In addition, the ALRC recommends increased regulation, specifically by way of amendment to industry codes of conduct.

Regulatory framework

4.8 While private recruitment agencies operate under contractual arrangements with individual employers, a number of regulatory frameworks are relevant, including anti-discrimination and industrial relations legislation, industry codes of practice and state and territory licensing regimes.

4.9 Recruitment agencies are required to comply with all relevant statutory obligations, including in relation to age discrimination under Commonwealth, state and territory anti-discrimination legislation and the Fair Work Act 2009 (Cth). Where recruitment agencies discriminate against mature age job seekers, through their own practices or by aiding or permitting an employer to do so—for example by following an employer’s discriminatory requests or practices—they may face potential liability under anti-discrimination law.[10] In addition, the general protections provisions under the Fair Work Act extend protection from discrimination on the basis of age to prospective employees.[11] As a result, recruitment agencies that discriminate against a prospective employee on the basis of age are in breach of their obligations under both anti-discrimination law and the Fair Work Act.

4.10 A number of Australian states and territories have licensing regimes in place for employment agents. Requirements vary between jurisdictions and there is no Commonwealth licensing regime.[12] Stakeholders such as Jobwatch and the Law Council of Australia suggested that one regulatory approach could involve requiring the recruitment industry to ‘comply with licensing requirements under a federal licensing regime, similar to other industries that provide services to the public’.[13] While the ALRC is of the view that greater consistency across jurisdictions in this area would be favourable, proposing a new Commonwealth licensing regime for the recruitment industry is a systemic reform that is wider than the scope of this Inquiry. However, some elements of such a regime suggested by stakeholders, including regular training and education about statutory obligations, addressing negative stereotypes, and outlining the benefits of employing mature age workers, are incorporated into the recommendations the ALRC makes below.

Review and amendment of codes of conduct

4.11 There are two key recruitment industry codes of conduct. The ALRC considers that reviews of both codes provide opportunities for considering amendment to promote better engagement with mature age job seekers.

4.12 All members of the Recruitment and Consulting Services Association (RCSA)—recruitment agencies and agency personnel—are bound by its Code for Professional Conduct (RCSA Code) and associated Disciplinary and Dispute Resolution Procedures.[14]

4.13 The RCSA Code contains both general principles and a number of specific principles, including respect for laws, and requires members to

observe a high standard of ethics, probity and professional conduct which requires not simply compliance with the law; but extends to honesty, equity, integrity, social and environmental responsibility in all dealings and holds up to disclosure and to public scrutiny.[15]

4.14 Australian Human Resources Institute (AHRI) members—in-house human resources practitioners—are also required to comply with a Code of Ethics and Professional Conduct (AHRI Code).[16] The AHRI Code outlines a number of specific principles, including lawfulness and justice, and provides that

AHRI members will foster equal opportunity and non-discrimination and seek to establish and maintain fair, reasonable and equitable standards of treatment of individuals by their employer and by all employees in the organisation, through their own behaviour and through the policies and practices of their employer.[17]

4.15 In 2013, the RCSA is conducting a review of its Code. The ALRC’s proposal that the review consider ways in which the RCSA Code could emphasise client diversity, constructive engagement with mature age job seekers and age-related anti-discrimination and industrial relations legislative obligations,[18] was supported by a number of key stakeholders.[19] For example, the South Australian Government supported including the ‘principle of respect of client diversity and other minimum standards of professional and ethical conduct that discourage age discrimination practices across the recruitment industry’ in the RCSA Code.[20] Adage suggested that

every opportunity should be taken to leverage this review to campaign for mature age workers and making this audience a feature of the review—even a review is a marketing opportunity.[21]

4.16 The Code of Professional Practice developed by the Recruitment and Employment Confederation (REC) of the United Kingdom (UK Code) represents a useful model.[22] The UK Code is binding on all corporate members of the REC and their associated companies.[23] Principle Four of the UK Code provides:

Principle 4—Respect for diversity

a. Members should adhere to the spirit of all applicable human rights, employment laws and regulations and will treat work seekers, clients and others without prejudice or unjustified discrimination. Members should not act on an instruction from a client that is discriminatory and should, wherever possible, provide guidance to clients in respect of good diversity practice.

b. Members and their staff will treat all work seekers and clients with dignity and respect and aim to provide equity of employment opportunities based on objective business related criteria.

c. Members should establish working practices that safeguard against unlawful or unethical discrimination in the operation of their business.[24]

4.17 The RCSA stated that it was committed to actively considering ‘ways in which the Code may further emphasise diversity, engagement with mature aged workers and responsibilities within its upcoming review’.[25] In addition, AHRI submitted that ‘there could be some value for AHRI to undertake an equivalent code-of-conduct review or a survey on the matter with our members, and we will look at the matter’.[26]

4.18 Conducting a review of industry codes of conduct would provide a useful opportunity to consider amendments, including to address barriers to workforce participation faced by mature age job seekers in the context of recruitment. In the ALRC’s view, the most useful additions to such codes relate to diversity, engagement with mature age job seekers and legislative obligations. Such reviews also provide a timely opportunity to consider intersectional discrimination and difficulties faced by Indigenous mature age job seekers as well as those from culturally and linguistically diverse communities and job seekers with disability.

Recommendation 4–1 In 2013, the Recruitment and Consulting Services Association of Australia and New Zealand is conducting a review of its Code of Conduct. The review should consider ways in which the Code could emphasise:

(a) the importance of client diversity, including mature age job seekers;

(b) constructive engagement with mature age job seekers; and

(c) obligations under age-related anti-discrimination and industrial relations legislation.

Recommendation 4–2 The Australian Human Resources Institute should review its Code of Ethics and Professional Conduct to consider ways in which the Code could emphasise:

(a) the importance of client diversity, including mature age job seekers;

(b) constructive engagement with mature age job seekers; and

(c) obligations under age-related anti-discrimination and industrial relations legislation.

Education, training and guidance material

4.19 The ALRC recommends that industry bodies such as AHRI and the RCSA provide recruitment consultants with ongoing training and guidance material about engaging constructively with and recruiting mature age job seekers. The training should be regular, consistent and targeted. This work should be conducted with support from the Australian Government, Australian Human Rights Commission (AHRC), unions, industry bodies and community organisations.

4.20 The results of a 2012 survey of recruitment professionals conducted by AHRI indicated approximately one-third of respondents (35%) believed their organisation was biased to some extent against employing mature age workers.[27] The survey also found that 56% of respondents considered negative perceptions of mature age people influenced employment decisions to some extent in their organisation or were unsure whether employment decisions were influenced by such perceptions.[28] This was echoed in submissions to this Inquiry. For example, the South Australian Government, expressed the view that ‘discrimination on the basis of age is a prominent issue in the recruitment practices of many Australian private recruitment agencies’.[29]

4.21 In addition, JobWatch noted that many ‘recruitment agencies do not know or understand their legal obligations’,[30] and the Diversity Council of Australia expressed the view that ‘there is clearly evidence of poor levels of compliance [with anti-discrimination legislation] in the private recruitment sector’.[31] AHRI conceded that ‘some organisations could be more conscious of their legal obligations in the area of workplace age discrimination’.[32]

4.22 However, it appears that discriminatory practices and reluctance to engage mature age workers may arise as a result of recruiters’ ‘own view of older workers [as well as] under instructions (implicit or otherwise) from their clients’.[33] The ALRC makes a number of recommendations with respect to employers later in this chapter.

4.23 Addressing discriminatory treatment of mature age workers primarily requires broad attitudinal and cultural change. Many of the measures necessary to facilitate such change require multifaceted solutions, and some go beyond the scope of a law reform project like this Inquiry. For example, several key reports and a number of stakeholders have emphasised the need to provide labour market information, re-training and skills development, career guidance and other job-readiness assistance to mature age job seekers.[34]

4.24 The ALRC suggests that the development and provision of education, training and guidance material for the recruitment industry about mature age job seekers may go some way to addressing these issues. This approach was supported by stakeholders.[35] It is designed to increase the awareness of those in recruitment of the benefits of mature age workers, the difficulties mature age job seekers may face, as well as recruiter obligations and can build on existing developments in this area.

4.25 Stakeholders outlined a range of existing initiatives that could be extended or adapted in implementing this recommendation. For example, the RCSA submitted that it has coordinated a number of education and training programs focusing on diversity, including working with mature age workers, and in 2013 will be rolling out a Participation Forum with the aim of engaging Government, recruiters, employers and candidates to increase workforce participation.[36]

4.26 AHRI noted it has

developed a workshop program on ‘Unconscious Bias’ that is marketed to organisations and individual practitioners and which takes up issues related to bias in recruitment, retention and promotion practices with respect to various sub-groups in the community such as those that relate to employment and ethnicity, religion, gender, disability, sexual preference and age.[37]

4.27 AHRI has also conducted workshops including ‘Older Workers and Younger Managers’ and runs an annual National Diversity and Inclusion Conference. In addition, the Investing in Experience Toolkit, a practical guide developed in partnership with the Australian Industry Group (Ai Group) and the Consultative Forum on Mature Age Participation, includes a chapter on ‘How to Recruit the Best Mature Age Workers’ and an advertising checklist that provides a useful model for guidance material.[38]

4.28 Both AHRI and the RCSA indicated they would be ‘open to developing other relevant intellectual property that could be used for training purposes in mature age employment’.[39] The RCSA indicated it proposes a ‘survey of members to gather information about workplace practices of members in working with mature aged candidates’.[40] In addition, the RCSA and AHRI Codes are supported by resource and education programs and the organisations have a Memorandum of Understanding in place that provides the basis for close cooperation between the two, including coordinated education and training programs.[41] This provides a solid basis for the development and provision of the recommended education, training and guidance material.

4.29 However, AHRI cautioned that

people often do not see this as a compliance area of HR practice despite the prevalence of anti-discrimination laws, and so getting engagement that amounts to course enrolments can be difficult.[42]

4.30 Adage emphasised that, in light of the high turnover of recruitment consultants, regular and consistent training is important, and that

we need to be careful we don’t feed into negative stereotypes of mature workers through dissemination of bulky, formal and outdated communications. The messaging and communication methods need to appeal to these individuals we are trying to influence.[43]

4.31 In addition, the Federation of Ethnic Communities’ Councils of Australia (FECCA) emphasised the barriers faced by particular groups of mature age workers, including for example those from culturally and linguistically diverse communities.[44] In the course of developing education, training and guidance material, ways these could appropriately address the barriers faced by Indigenous people, mature age job seekers from culturally and linguistically diverse backgrounds and those with disability should be considered.

Recommendation 4–3 The Australian Human Resources Institute and the Recruitment and Consulting Services Association of Australia and New Zealand should:

(a) develop and provide regular, consistent and targeted education and training for recruitment consultants; and

(b) develop a range of guidance material

to assist recruitment agencies and consultants to engage constructively with, and recruit, mature age job seekers.

Recognition of best practice

4.32 A number of stakeholders have emphasised the importance of best practice approaches in the recruitment of mature age workers.[45] The ALRC recommends that both AHRI and the RCSA should recognise excellence in initiatives and programs involving the recruitment of mature age workers, including in workplace awards.

4.33 Recognition of best practice is particularly important in light of evidence suggesting that some recruiters may fail to provide an appropriate level of service’ to mature age job seekers.[46] A 2012 survey of mature age job seekers conducted by Adage found that 88% of respondents were ‘dissatisfied with the level of response received from recruiters’.[47]

4.34 The work of mature age-specific recruitment initiatives and agencies are an important development in supporting workforce participation by mature age persons.[48] In addition, formal public recognition of employers, recruitment agencies or consultants who develop initiatives or workplace processes geared towards mature age job seekers and workers is important in engendering cultural and practical change.

4.35 Both AHRI and the RCSA host annual workplace awards. As part of the AHRI Diversity Awards there is an Age Diversity in the Workplace Award sponsored by National Seniors Australia.[49] The RCSA submitted that it will

actively consider the inclusion of a Workforce Participation Award within the awards program to provide public recognition of best practice from the recruitment industry in supporting workforce participation and diversity within the workforce, including mature aged workers.[50]

4.36 Internationally, organisations like AARP have awards including the AARP Best Employers for Workers Over 50 Award—International, which recognises employers outside the United States with innovative workforce or human resource practices aimed at issues relevant to mature age workers.[51]

Recommendation 4–4 The Australian Human Resources Institute and the Recruitment and Consulting Services Association of Australia and New Zealand should promote and recognise best practice in the recruitment of mature age workers, for example through their annual workplace awards.

[3] In many cases these difficulties are exacerbated for Indigenous mature age job seekers as well as job seekers from culturally and linguistically diverse backgrounds and those with disability: See, eg, Federation of Ethnic Communities’ Council of Australia (FECCA), Submission 80; Australian Federation of Disability Organisations, Submission 78.

[4] DEEWR, DHS and FaHCSIA, Submission 101.

[5] Australian Bureau of Statistics, Persons Not in the Labour Force, Australia, Sep 2011, Cat No 6220.0 (2012).

[6] T MacDermott, ‘Challenging Age Discrimination in Australian Workplaces: From Anti-Discrimination Legislation to Industrial Regulation’ (2011) 34(1) UNSW Law Journal 182, 208. See also National Seniors Productive Ageing Centre, Ageing and the Barriers to Labour Force Participation in Australia (2011), prepared for the Consultative Forum on Mature Age Participation.

[7] National Seniors Productive Ageing Centre, Ageing and the Barriers to Labour Force Participation in Australia (2011), prepared for the Consultative Forum on Mature Age Participation, 18; Australian Human Rights Commission, Age Discrimination—Exposing the Hidden Barrier for Mature Age Workers (2010), Ch 4. See also ACTU, Submission 38.

[8] The role played by Australian Government employment service is discussed in Chapter 7.

[9] See, eg, Brotherhood of St Laurence, Submission 54; Law Council of Australia, Submission 46; Diversity Council of Australia, Submission 40; ACTU, Submission 38; JobWatch, Submission 25.

[10]Age Discrimination Act 2004 (Cth) s 56. Also for example, by analogy through the reasoning in Elliot v Nanda (2011) 111 FCR 240.

[11]Fair Work Act 2009 (Cth) s 341.

[12] For example, in South Australia, Western Australia and the ACT, specific registration legislation requires licensing: Employment Agents Registration Act 1993 (SA); Employment Agents Registration Regulations 2010 (SA); Employment Agents Act 1976 (WA); Agents Act 2003 (ACT); Agents Regulations 2003 (ACT); Employment Services Code of Conduct (ACT). However, in Queensland there is a Code of Conduct: Private Employment Agents (Code of Conduct) Regulation 2005 (Qld).

[13] Law Council of Australia, Submission 46. See also JobWatch, Submission 25.

[14] The RCSA Code is a non-prescribed voluntary industry code of conduct. The Australian Competition and Consumer Commission provides guidance to industry associations developing such codes but has no formal enforcement role. For prescribed industry codes and ACCC enforcement powers see Competition and Consumer Act 2010 (Cth) pt IVB.

[15] Recruitment and Consulting Services Association of Australia and New Zealand, Code for Professional Conduct, General Principle 1.

[16] Australian Human Resources Institute, By-Law 1: Code of Ethics and Professional Conduct.

[17] Ibid.

[18] Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–2.

[19] National Welfare Rights Network (NWRN), Submission 99; Law Council of Australia, Submission 96; Recruitment and Consulting Services Association of Australia and New Zealand, Submission 90; ACTU, Submission 88; Australian Human Resources Institute, Submission 87; Brotherhood of St Laurence, Submission 86; DOME Association, Submission 62; JobWatch, Submission 60; Diversity Council of Australia, Submission 71.

[20] Government of South Australia, Submission 95.

[21] Adage, Submission 69.

[22] The Recruitment and Employment Confederation (UK), REC Code of Professional Practice.

[23] The REC also has a Diversity Charter and a Diversity Pledge: The Recruitment and Employment Confederation (UK), Diversity Pledge <www.rec.uk.com/about-recruitment/diversity/diversity-signthepledge> at 21 March 2013.

[24] The Recruitment and Employment Confederation (UK), REC Code of Professional Practice, Principle 4.

[25] Recruitment and Consulting Services Association of Australia and New Zealand, Submission 90.

[26] Australian Human Resources Institute, Submission 87.

[27] Australian Human Resources Institute, Mature Age Workforce Participation: HR Pulse Survey Report (2012), 5.

[28] Australian Human Resources Institute, Submission 87.

[29] Government of South Australia, Submission 30. See also Brotherhood of St Laurence, Submission 54; Diversity Council of Australia, Submission 40; WA Equal Opportunity Commission, Submission 23.

[30] JobWatch, Submission 25. See also ACTU, Submission 38.

[31] Diversity Council of Australia, Submission 40. See also Law Council of Australia, Submission 46.

[32] Australian Human Resources Institute, Submission 87.

[33] National Seniors Australia, Submission 27.

[34] See, eg, National Seniors Productive Ageing Centre, Barriers to Mature Age Employment: Final Report of the Consultative Forum on Mature Age Participation (2012), prepared for the Consultative Forum on Mature Age Participation; Advisory Panel on the Economic Potential of Senior Australians, Realising the Economic Potential of Senior Australians—Turning Grey into Gold (2011); The Treasury, Intergenerational Report 2010—Australia to 2050: Future Challenges (2010).

[35] National Welfare Rights Network (NWRN), Submission 99; Law Council of Australia, Submission 96; Government of South Australia, Submission 95; National Seniors Australia, Submission 92; Recruitment and Consulting Services Association of Australia and New Zealand, Submission 90; ACTU, Submission 88; Australian Human Resources Institute, Submission 87; Brotherhood of St Laurence, Submission 86; Diversity Council of Australia, Submission 71; South Australian Equal Opportunity Commission, Submission 70; Adage, Submission 69; Queensland Tourism Industry Council, Submission 67; DOME Association, Submission 62; JobWatch, Submission 60; R Christiansen, Submission 58; Brotherhood of St Laurence, Submission 54; Law Council of Australia, Submission 46; Diversity Council of Australia, Submission 40; ACTU, Submission 38; Australian Industry Group, Submission 37; Queensland Tourism Industry Council, Submission 28; JobWatch, Submission 25.

[36] Recruitment and Consulting Services Association of Australia and New Zealand, Submission 90.

[37] Australian Human Resources Institute, Submission 87.

[38] Australian Government, Investing in Experience Tool Kit (2012).

[39] Australian Human Resources Institute, Submission 87.

[40] Recruitment and Consulting Services Association of Australia and New Zealand, Submission 90.

[41] Ibid.

[42] Australian Human Resources Institute, Submission 87.

[43] Adage, Submission 69.

[44] See, eg, Federation of Ethnic Communities’ Council of Australia (FECCA), Submission 80.

[45] Law Council of Australia, Submission 96; National Seniors Australia, Submission 92; ACTU, Submission 88; Brotherhood of St Laurence, Submission 86; Australian Federation of Disability Organisations, Submission 78; Diversity Council of Australia, Submission 71; South Australian Equal Opportunity Commission, Submission 70; Adage, Submission 69; DOME Association, Submission 62; JobWatch, Submission 60; R Christiansen, Submission 58; and importantly Recruitment and Consulting Services Association of Australia and New Zealand, Submission 90. See also: COTA, Submission 51; Comcare, Submission 29.

[46] Government of South Australia, Submission 30.

[47] Adage, ‘Mature Jobseekers Not Happy With Recruiters, Employers’ (Press Release, 13 November 2012).

[48] For example: Adage.com; Dome SA; GreyHairAlchemy; Miller’s Fillers; Over 40 Recruitment; and Silver Temp: Department of Education, Employment and Workplace Relations, Experience+ Private Recruitment Firms <www.deewr.gov.au> at 21 March 2013.

[49] Australian Human Resources Institute, Age Diversity in the Workplace Award <www.awards.ahri.com.au/diversity/age_diversity.php> at 21 March 2013.

[50] Recruitment and Consulting Services Association of Australia and New Zealand, Submission 90.

[51] AARP, Best Employers for Workers Over 50 Award—International <http://aarpinternational.prod.
bridgelinesw.net/aarp-international/best-employers—international> at 21 March 2013.