2.4 Mature age job seekers face multiple and intersecting difficulties in entering or re-entering the workforce and often utilise either the national employment services system or the services of private recruitment agencies. Increasingly, private recruitment agencies are playing a role as ‘intermediaries between job seekers and employers’. However, stakeholders have expressed a number of concerns about this role. For example, stakeholders have noted perceived discrimination by some recruitment agencies against mature age job seekers. Stakeholders have also highlighted that some recruitment agencies and recruiters appear to have limited understanding of the benefits of employing mature age workers or their obligations under anti-discrimination law.
2.5 Addressing such concerns requires attitudinal and cultural change as well as regulatory change. The ALRC makes a range of proposals which combine the development and provision of ongoing education, training and guidance material for recruitment consultants and recognition of best practice with increased regulation. In the regulatory context, the ALRC proposes that the Fair Work Ombudsman (FWO) conduct a national campaign focused on the recruitment industry, and that industry codes of conduct be reviewed with a view to incorporating clauses with respect to client diversity and constructive engagement with mature age job seekers.
Recruitment barriers to mature age participation
2.6 At a general level, unlawful age discrimination in recruitment has been described as ‘rampant, systemic and the area of employment decision-making where managers use age to differentiate between people most extensively’. More specifically, a number of bodies and key academics have emphasised that recruitment ‘operates as a major barrier for mature age workers seeking employment, and recruitment agencies often perform a gate-keeping function that can exclude mature age workers’.
2.7 This sentiment was echoed in submissions from stakeholders like the South Australian Government, which noted that
in reality, the discrimination on the basis of age is a prominent issue in the recruitment practices of many Australian private recruitment agencies. The recruiters may fail to provide an appropriate level of service to an older worker, or fail to put forward an older applicant to a potential employer.
2.8 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’.
2.9 The results of a 2012 survey of recruitment professionals conducted by the Australian Human Resources Institute (AHRI) indicate approximately one-third of respondents (35%) believe their organisation is biased to some extent against the employment of mature age workers.
2.10 However, as National Seniors acknowledged, it appears to be unclear whether this reluctance to engage mature age workers and discriminatory practices arise as a result of recruiters’ ‘own view of older workers or under instructions (implicit or otherwise) from their clients’, or both.
2.11 While private recruitment agencies operate under contractual arrangements with individual employers, a number of elements of the regulatory framework are relevant, including anti-discrimination and industrial relations legislation, industry codes of practice and state and territory licensing regimes.
2.12 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).
2.13 Where recruitment agencies discriminate against mature age job seekers, whether 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—such agencies may face potential liability under anti-discrimination law. In addition, the general protections provisions under the Fair Work Act extend protection from discrimination on the basis of age to prospective employees. As a result, recruitment agencies that discriminate against a prospective employee on the basis of their age are in breach of their obligations under both anti-discrimination law and the Fair Work Act.
Code of Conduct
2.14 All members of the Recruitment and Consulting Services Association (RCSA) are bound by its Code for Professional Conduct and associated Disciplinary and Dispute Resolution Procedures, which are authorised by the Australian Competition and Consumer Commission. The RCSA Code 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.
2.15 Similarly, AHRI members are required to comply with a code of ethics and professional conduct.
2.16 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.
2.17 The Law Council of Australia suggested 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’.
2.18 While the ALRC is of the view that greater consistency between jurisdictions in this area would be favourable, proposing a new Commonwealth licensing regime for the recruitment industry is a systemic reform which goes beyond the scope of this Inquiry.
Approach to reform
2.19 A number of stakeholders in this Inquiry have emphasised the difficulty of bringing successful claims of age discrimination, because ‘age discrimination can often be subtle and disguised as conduct taken for other reasons’. This difficulty has been highlighted in the recruitment context. As a result, some stakeholders advocated for greater regulation to tackle particular approaches that may mask discrimination on the basis of age. For example, the South Australian Equal Opportunity Commission suggested the introduction of provisions precluding recruitment agencies from ‘asking for certain information’, for example information about ‘age and history of WorkCover claims’.
2.20 However, COTA Australia (COTA) submitted that increased regulation of recruitment agencies beyond existing provisions would be difficult, and a number of stakeholders opposed increased regulation. For example, the Business Council of Australia expressed the view that such regulation ‘unnecessarily duplicates existing legislation’. The Australian Industry Group (Ai Group) opposed increased regulation on the basis that the regulatory burden is already ‘substantial’ and that it would not be ‘an effective means of removing barriers to mature age employees entering or re-entering the workforce’, instead favouring consultative and educative approaches.
2.21 The key concerns expressed by stakeholders focused on non-compliance and lack of awareness by recruitment agencies and recruiters of existing legislative obligations, rather than the content of the obligations under anti-discrimination law and the Fair Work Act. For example, JobWatch noted that many ‘recruitment agencies do not know or understand their legal obligations’.
2.22 The content and operation of anti-discrimination provisions with respect to age will be examined in the course of the process to consolidate Commonwealth anti-discrimination legislation. In addition, the ALRC notes the work being undertaken by the Age Discrimination Commissioner, the Hon Susan Ryan AO, who is involved in discussions with the recruitment industry around constructive and supportive approaches to the recruitment of mature age job seekers. Rather than proposing the imposition of additional regulatory requirements under legislation, the ALRC therefore considers that the most appropriate approach to reform involves: education, awareness and training; investigation and auditing of recruitment practices; and additional provisions in industry codes of conduct.
Investigation and auditing of recruitment practices
2.23 The FWO is an independent statutory office created by the Fair Work Act. 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. 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.
2.24 Academic Therese MacDermott has expressed the view that the FWO could usefully play a role in ‘targeted and sustained work on exposing age discrimination in recruitment, and the development of more transparent selection processes’. In particular, she suggests that the FWO could play a role in education and the development of guidance material, and that such approaches should be ‘supplemented with other measures, such as investigating and auditing of such practices’.
2.25 A number of stakeholders supported this type of approach. For example, the Law Institute of Victoria suggested—in the context of anti-discrimination legislation—that, ‘in order to ensure compliance with a more regulatory approach … random audits could be conducted by the Federal Government’.
2.26 JobWatch submitted that the FWO should increase its educative role in this area, focusing on the rights and obligations of employers, workers and recruitment agencies under Commonwealth, state and territory anti-discrimination legislation regarding age. It noted that the FWO should be ‘adequately funded to provide free, ongoing community education and training programs’.
2.27 The ALRC considers that the FWO is well placed to play a key role in this area. 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, including through targeted compliance and audit campaigns. The ALRC therefore proposes that the FWO undertake a targeted national campaign in the recruitment industry that includes education, awareness raising, and auditing.
Proposal 2–1 The Fair Work Ombudsman 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.
Review of the RCSA Code of Conduct
2.28 In 2013, the RCSA is conducting a review of its Code of Conduct. This review provides an opportunity for the RCSA to consider amendments to the Code of Conduct, including addressing barriers to workforce participation faced by mature age job seekers in the context of recruitment.
2.29 A number of key stakeholders suggested that the practices of recruitment agencies and recruiters could be regulated ‘by the implementation of codes of conduct, guidelines, or minimum standards which could provide guidance about how to constructively engage with and employ’ mature age persons. The South Australian Government submitted that any such code of conduct should ‘emphasise the principle of respect for client diversity’ and ‘include a clause relating to an appropriate engagement with mature age job seekers’.
2.30 In the course of the review of the Code, the ALRC proposes that the RCSA should consider ways in which the Code could: emphasise the importance of client diversity; promote constructive engagement with mature age job seekers; and outline obligations under anti-discrimination and industrial relations legislation with respect to age.
2.31 The Code of Professional Practice developed by the Recruitment and Employment Confederation (REC) of the United Kingdom (UK Code) represents a useful model that potentially could be incorporated into existing industry codes of practice or form the basis of a new code of conduct. The UK Code is binding on all corporate members of the REC and their associated companies. 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.
Proposal 2–2 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 can 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
2.32 In addition to any national recruitment industry campaign lead by the FWO, there was significant support by stakeholders for education, training and the development of guidance material for the recruitment industry. The Ai Group expressed the view that ‘consultative and educative approaches are more likely to achieve a shift in practices by recruiting agencies and their clients’.
2.33 The Brotherhood of St Laurence submitted that there is a need for a
a targeted campaign focusing on recruitment agencies reminding them of their legal obligations and the discrimination legislation that applies to their business in relation to mature workers. Campaigns combating discrimination against older workers need to be supplemented by targeted training for recruitment agents, HR managers and employers to educate them on the economic and other benefits of a diverse workforce.
2.34 The Diversity Council of Australia suggested that such education ‘should be developed following industry research undertaken in partnership with recruitment agents and their clients’.
2.35 Comcare pointed to the National Australia Bank (NAB) experience as a model for the practices of private recruitment agencies:
NAB established a process of mandatory training for all recruitment agencies used by NAB. Through their contractual agreement with the recruiting agencies, NAB requires completion of mandatory age stereotype ‘myth busting’ training. This forms part of their MyFuture: a pathway to 2020, an interactive leadership forum that looks at the challenges and opportunities of an ageing workforce, and creates a culture that values experience and maturity.
2.36 Queensland Tourism referred to a pilot study undertaken in 2011, which sought to identify the reasons underlying mature age persons not applying for positions in the hospitality industry. The findings from the study indicated that:
the two main factors that emerged as barriers to mature age employment were perception and awareness.It was identified that age-friendly recruitment practices need to be adopted and promoted in the recruitment process. Education around where to source workers, the wording of job adverts, the interview process and the composition of the interview panel was also critical.
2.37 The Investing in Experience Toolkit, a practical guide developed in partnership with the 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 which provides a useful model for guidance material.
2.38 In the ALRC’s view, industry bodies such as AHRI and the RCSA, with support from the Australian Government, Australian Human Rights Commission (AHRC), unions and employer organisations, should develop and provide regular, consistent and targeted ongoing training as well as develop guidance material for recruitment consultants in relation to engaging constructively with, and recruiting, mature age job seekers.
Proposal 2–3 In order to assist recruitment agencies and consultants to engage constructively with, and recruit, mature age job seekers, 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.
Recognition of best practice
2.39 A number of stakeholders emphasised the importance of best practice approaches in the recruitment of mature age workers. Formal public recognition of employers, recruitment agencies or consultants who develop initiatives or workplace processes geared towards mature age job seekers and workers is desirable. The potential development of an age-related reporting and recognition framework similar to Equal Opportunity for Women in the Workplace Agency is discussed later in this chapter.
2.40 Both AHRI and 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. 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.
2.41 The ALRC proposes that both AHRI and RCSA should recognise excellence in initiatives and programs involving the recruitment of mature age workers, including in such awards.
2.42 The work of mature age-specific recruitment initiatives and agencies are also an important development in supporting workforce participation by mature age persons.
Proposal 2–4 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.
 The national employment services system is discussed in Ch 5.
 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.
 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.
 Australian Human Rights Commission, Age Discrimination—Exposing the Hidden Barrier for Mature Age Workers (2010), 12.
 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.
 Government of South Australia, Submission 30.
 Diversity Council of Australia, Submission 40.
 Australian Human Resources Institute, Mature Age Workforce Participation: HR Pulse Survey Report (2012), 5.
 National Seniors Australia, Submission 27.
Age Discrimination Act 2004 (Cth) s 56. Also for example, by analogy through the reasoning in Elliot v Nanda (2011) 111 FCR 240.
Fair Work Act 2009 (Cth) s 341.
 Recruitment and Consulting Services Association of Australia and New Zealand, Code for Professional Conduct, General Principle 1.
 Australian Human Resources Institute, By-Law 1: Code of Ethics and Professional Conduct.
 For example, in SA, WA and ACT specific registration legislation requires licensing., however in Queensland there is just a Code of Conduct: Private Employment Agents (Code of Conduct) Regulation 2005 (Qld); 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).
 Law Council of Australia, Submission 46. See also JobWatch, Submission 25.
 See, eg, Victoria Legal Aid, Submission 34.
 ACTU, Submission 38.
 The South Australian Equal Opportunity Commission, Submission 11.
 COTA, Submission 51.
 Business Council of Australia, Submission 19.
 Australian Industry Group, Submission 37.
 See, eg, Law Council of Australia, Submission 46; JobWatch, Submission 25.
 JobWatch, Submission 25.
 See discussion in Ch 1.
Fair Work Act 2009 (Cth) s 681.
 Ibid s 682(1).
 Fair Work Ombudsman, Investigations <www.fairwork.gov.au/about-us/investigations/pages/default
.aspx> at 13 September 2012; Fair Work Ombudsman, Audits and campaigns <www.fairwork.gov.
au/about-us/audits-and-campaigns/pages/default.aspx> at 13 September 2012.
 T MacDermott, ‘Challenging Age Discrimination in Australian Workplaces: From Anti-Discrimination Legislation to Industrial Regulation’ (2011) 34(1) UNSW Law Journal 182, 209.
 Ibid, 209.
 Law Council of Australia, Submission 46.
 JobWatch, Submission 25.
 Centre for Employment and Labour Relations Law, University of Melbourne, Submission to Fair Work Act Review (17 February 2012), 9.
 Fair Work Ombudsman, Audits and campaigns <www.fairwork.gov.au/about-us/audits-and-campaigns/pages/default.aspx> at 13 September 2012.
 Law Council of Australia, Submission 46. See also Diversity Council of Australia, Submission 40; Government of South Australia, Submission 30; JobWatch, Submission 25.
 Government of South Australia, Submission 30.
 The Recruitment and Employment Confederation (UK), REC Code of Practice.
 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 13 September 2012.
 The Recruitment and Employment Confederation (UK), REC Code of Practice, Principle 4.
 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.
 Australian Industry Group, Submission 37.
 Brotherhood of St Laurence, Submission 54.
 Diversity Council of Australia, Submission 40.
 Comcare, Submission 29.
 Queensland Tourism Industry Council, Submission 28.
 COTA, Submission 51; Comcare, Submission 29.
 Australian Human Resources Institute, Age Diversity in the Workplace Award <www.awards.ahri.
com.au/diversity/winner_orgn_age_diversity.php > at 13 September 2012.
 AARP, Best Employers for Workers Over 50 Award–International <http://aarpinternational.prod.
bridgelinesw.net/aarp-international/best-employers—international> at 14 September 2012.
 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 13 September 2012.