Regulation and monitoring framework

4.113 There are a number of bodies within the employment law framework that have responsibility for regulation and monitoring of obligations and requirements under legislation such as anti-discrimination and industrial relations legislation. In this section the ALRC examines the role of the FWO and recommends that in conducting national campaigns and audits the FWO should consider issues relating to mature age workers. The ALRC also considers the potential role of a new reporting framework or body, like that of Workplace Gender Equality Agency, with respect to age.

A role for the FWO

4.114 The ALRC recommends that the FWO build into its national campaigns and audits, consideration of employment practices that affect mature age workers and job seekers.

4.115 The ALRC considers that the FWO is well placed to play a key role in this area. The FWO is an independent statutory office created by the Fair Work Act.[170] The primary aim of the FWO is to promote harmonious, productive and cooperative workplace relations and compliance with the Act, through education, assistance and advice. The FWO also plays a role in monitoring compliance, carrying out investigations and, in some cases, commencing proceedings or representing employees or outworkers in order to promote overall compliance.[171] In particular, the FWO can undertake:

  • investigations—into industries or workplaces, either in response to a complaint or self-initiated, which involve examination of employment records and documents to determine whether relevant parties have complied with Commonwealth workplace laws; and

  • targeted campaigns and audits—where the FWO targets a particular industry, usually involving the employment of vulnerable workers, and in conjunction with industry associations assists employers to ensure compliance with Commonwealth workplace laws.[172]

4.116 Research undertaken by the Centre for Employment and Labour Relations Law at the University of Melbourne concluded that the FWO has ‘been active and innovative in performing its function of promoting compliance’ with the Fair Work Act,[173] including through targeted compliance and audit campaigns. In addition, in October 2012, the FWO launched its first age discrimination prosecution.[174]

4.117 In the Discussion Paper, the ALRC proposed that the FWO ‘should undertake a national recruitment industry campaign to educate and assess the compliance of recruitment agencies with workplace laws, specifically with respect to practices affecting mature age job seekers and workers’.[175]

4.118 A number of stakeholders supported the proposal.[176] However, the FWO submitted that it

conducts four national campaigns per year. In order to ensure that these campaigns provide the most benefit for the community, the FWO prepares a four year, evidence based, targeted campaign strategy focusing on high risk industries.[177]

4.119 While the recruitment industry was not identified as a high risk industry and is currently not included in the four year plan, the FWO indicated that it will ‘consider opportunities to address recruitment practices during targeted campaigns in priority industries’.[178] The FWO suggested that it could ‘address non-compliant recruitment practices affecting mature age job seekers and workers in the course of compliance and education activities’.[179]

4.120 The FWO can play a role in examining and addressing employment practices that affect mature age job seekers and workers across a range of industries. The ALRC recommends that in conducting its campaigns and audits, the FWO should consider issues relating to mature age workers and job seekers.

Recommendation 4–13 In conducting national campaigns and audits to ensure compliance with Commonwealth workplace laws, the Fair Work Ombudsman should ensure issues relating to mature age workers and job seekers are considered.

New reporting framework or body

4.121 In the Discussion Paper, the ALRC asked whether the Australian Government should establish a body or reporting framework with respect to mature age workers similar to that of the Equal Opportunity for Women in the Workplace Agency, now the Workplace Gender Equality Agency (WGE Agency), or its reporting framework.[180]

4.122 The WGE Agency is a statutory authority with a role in administering the Workplace Gender Equality Act 2012 (Cth) (WGE Act). It focuses on promoting gender equality, including through education, supporting employers to remove barriers to the full and equal participation of women and through fostering workplace consultation.[181]

4.123 Under the WGE Act, employers with over 100 employees must report annually against ‘gender equality indicators’, which relate to the gender composition of employees and governing bodies, remuneration, flexible working arrangements, consultation on gender equality issues and sex-based harassment and discrimination.[182] In addition, from the 2014–15 reporting period, evidence-based minimum standards will apply. The agency also has an ‘Employer of Choice for Women’ citation which acknowledges organisations that are recognising and advancing women in their workplace.[183]

4.124 Stakeholders expressed differing views on the appropriateness of introducing an age-related reporting or best practice recognition framework, or a body responsible for monitoring such a framework. For example, the ACTU expressed its support for the establishment of an age-related body or framework suggesting that it would be likely to

encourage employers to monitor and analyse the employment patterns of older workers, any impact existing workplace policies, procedures and practices may have on older workers and the effectiveness of programs used to eliminate discrimination and promote equal employment opportunity for older workers.[184]

4.125 Similarly, Adage expressed the view that such a body or framework would ‘incentivise organisations to change behaviour in a productive and positive way’.[185]

4.126 Other stakeholders preferred a broader approach. They highlighted the Canadian model outlined in the Discussion Paper, the aim of which is to ensure that federally regulated employers provide equal opportunities for employment to four designated groups: women, Aboriginal peoples, persons with disabilities, and members of visible minorities.[186] Stakeholders suggested that the existing WGE Agency framework be expanded to include age and a range of other attributes, such as in Canada.[187]

4.127 However, some stakeholders opposed the establishment of a new body or framework, expressing concerns about the regulatory burden and cost implications of this approach.[188] The Ai Group expressed the view that such an approach may also ‘encourage negative stereotypes’ about mature age workers and may ‘shift the focus from developing positive and flexible management practices to the burden of complying with a reporting framework’.[189]

4.128 An alternative approach was recommended in a 2000 report by the House of Representatives Standing Committee on Education, Employment and Workplace Relations:

The inclusion of the age profile of employees in the annual reports of all listed companies would draw attention to firms which do not have a normal diversity of age groups in their workforce. This should prompt employers to consider whether their recruitment practices, perhaps inadvertently, involve some form of age discrimination. The Committee is aware that age discrimination might occur unintentionally or sub-consciously. The availability of such profiles would also make possible greater scrutiny by shareholders and other interested parties, providing an added spur for employers to give proper consideration to employing mature-age job seekers.[190]

4.129 Following the introduction of the new framework under the WGE Act, it is necessary to allow time for monitoring and evaluation of its operation. However, following such monitoring and evaluation, the ALRC suggests that the Australian Government should consider extending the framework to include age (and potentially a range of other attributes). This approach would ensure adequate consideration of the operation of the existing framework, limit compliance costs and avoid duplication.

[170]Fair Work Act 2009 (Cth) s 681.

[171] Ibid s 682(1).

[172] Fair Work Ombudsman, Investigations <> at 21 March 2013; Fair Work Ombudsman, Audits and Campaigns <> at 21 March 2013.

[173] Centre for Employment and Labour Relations Law, University of Melbourne, Submission to Fair Work Act Review (17 February 2012), 9.

[174] FWO, ‘Court Action Over Restaurant’s Response to Employee’s Request for Long Service Leave’ (Press Release, 9 October 2012).

[175] Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–1.

[176] National Welfare Rights Network (NWRN), Submission 99; Law Council of Australia, Submission 96; Government of South Australia, Submission 95; ACTU, Submission 88; Brotherhood of St Laurence, Submission 86; Australian Federation of Disability Organisations, Submission 78; Diversity Council of Australia, Submission 71; DOME Association, Submission 62.

[177] Fair Work Ombudsman, Submission 100.

[178] Ibid.

[179] Ibid.

[180] Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Question 2–3.

[181]Workplace Gender Equality Act 2012 (Cth).

[182] Ibid. See also Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No 1) which establishes the specific reporting matters for the reporting period 1 April 2013 to 31 March 2014.

[183] At the time of writing, the Employer of Choice for Women citation criteria were under review and were expected to be announced in September 2013.

[184] ACTU, Submission 88.

[185] Adage, Submission 69. See also Australian Federation of Disability Organisations, Submission 78.

[186]Employment Equity Act 1995 SC c 44 (Canada).

[187] DOME Association, Submission 62.

[188] Australian Industry Group, Submission 37. See also Suncorp Group, Submission 66; Diversity Council of Australia, Submission 40.

[189] Australian Industry Group, Submission 37.

[190] House of Representatives Standing Committee on Education, Employment and Workplace Relations, Age Counts: An Inquiry into Issues Specific to Mature-Age Workers (2000), 4.17.