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8 Legal and policy framework

The following section outlines the relevant legal and policy framework, including the international human rights framework.

8.1 International legal framework

The rights of older persons are protected by a number of key international human rights treaties.[27] However, there is no specific United Nations convention on the rights of older persons.[28]

Some of the key rights protected under international human rights law are:

  • The right to work;[29]
  • The right to just and favourable conditions of work, including equal pay and conditions for equal work, safe and healthy work conditions, and equal opportunities for promotion in the workplace;[30]
  • The right to an adequate standard of living and to enjoyment of the highest attainable standard of physical and mental health;[31] and
  • The right to enjoy all other rights without discrimination;[32]

The United Nations Principles for Older Persons (1991) does not have the legal status of a convention but addresses the employment rights of older persons directly.[33] For example, the principles state that older persons should:

  • have the opportunity to work or have access to income-generating opportunities;[34]
  • be able to participate in determining when and at what pace their withdrawal from the labour force takes place;[35]
  • remain integrated in society, participate actively in the formulation and implementation of policies that directly affect their well-being and share their knowledge and skills with younger generations;[36] and
  • be able to pursue opportunities for the full development of their potential.[37]

The right to work is more than the right to earn money, though that is important. The United Nations Committee on Economic, Social and Cultural Rights has said the right to work ‘forms an inseparable and inherent part of human dignity’ and is essential for realising other human rights.[38]

As mentioned in Section 6, workplaces and communities benefit from the continuing engagement of older persons in the workforce. Unemployment, underemployment and low labour force participation deprive societies of older persons’ energies and skills.[39] The United Nations Committee on Economic, Social and Cultural Rights has emphasised that ‘it is desirable to employ older workers in circumstances in which the best use can be made of their experience and know-how’.[40]

8.2 Domestic legal framework

The domestic legal framework consists of anti-discrimination legislation at both Commonwealth and state/territory levels, and Commonwealth workplace relations laws – all of which prohibit discrimination on the basis of age in the context of employment.

(a) Age Discrimination Act 2004 (Cth)[41]

The Age Discrimination Act 2004 (Cth) (ADA) makes it unlawful to treat a person unfairly because of their age.

Discrimination includes direct and indirect discrimination.[42]

Direct discrimination involves treating a person less favourably than a person of a different age in the same or similar circumstances.

Indirect discrimination occurs when there is a rule or policy that is the same for everyone but has an unfair effect on people of a particular age.

The ADA protects people in a range of different areas of public life, including: employment, the provision of goods and services, education, accommodation, access to premises, disposal of land and the administration of Commonwealth laws and programs.[43]

In the workplace, the ADA covers situations where a person has been: refused employment; given less favourable terms or conditions of employment; denied opportunities for promotion, transfer, training or other benefits; dismissed; or subjected to any other detriment on the basis of the person’s age.[44]

Exemptions

Like other anti-discrimination laws, the ADA says that in some circumstances treating someone less favourably because of their age is not unlawful. It is not unlawful to discriminate on the ground of age (directly or indirectly) if a person is unable to carry out the inherent requirements of the particular job.[45]
There are also a number of other exemptions in the ADA.[46]

(b) Fair Work Act 2009 (Cth)

The Fair Work Act 2009 (Cth) (FWA) provides that an employer must not take adverse action against an employee or prospective employee because of their age (or any other protected attribute, such as race, sex, disability).[47] Adverse action includes such things as dismissing an employee, altering an employee’s position to their detriment or refusing to employ a prospective employee.[48]

The FWA covers discrimination occurring: to someone applying for a job as an employee; to a new employee who has not started work; or to an employee at any time during employment.

(c) Other laws

Other laws and regulations interact with the anti-discrimination and employment laws above. These include regulatory frameworks around:

  • superannuation;
  • retirement ages;
  • licensing or re-qualification requirements;
  • workers’ compensation schemes; and
  • work, health and safety laws.

(d) Remedies

If a person feels that they have experienced discrimination on the ground of age in the context of employment, there are several ways of pursuing a complaint.
The different forums for complaining about discrimination in the workplace on the ground of age include:

  • The Australian Human Rights Commission. For more information visit the Commission’s complaints portal: https://www.humanrights.gov.au/complaint-information. If a complaint is not resolved by the Commission, it can be taken to the Federal Circuit Court or the Federal Court of Australia.
  • State or territory anti-discrimination agencies.[49] If a complaint is not resolved by those agencies, it can be taken through the administrative law tribunal and court system.
  • The Fair Work Commission. If a complaint is not resolved by the Fair Work Commission, it can be taken to the Fair Work Division of the Federal Circuit Court or the Federal Court of Australia.
  • The Fair Work Ombudsman, if the employer is a ‘national system employer’ under the FWA.

Discussion questions

  1. How adequately do existing laws protect older Australians from employment discrimination? How effective are the legal remedies for older workers who have experienced discrimination? How could existing laws be amended or supplemented?
     
  2. What difficulties are there for employers in understanding and complying with legal obligations?

 

8.3 Policy

Currently, there is a fragmented strategic and policy framework relating to older workers in Australia. The Australian Law Reform Commission’s report, Access All Ages-Older Workers and Commonwealth Laws identified this as an issue and recommended that the Australian Government develop a National Mature Age Workforce Participation Plan. [50] The Plan would provide a coordinated policy response to the challenges of an ageing population and low labour force participation of older workers. [51]

(a) Past initiatives and activities

Past initiatives and activities which have attempted to raise awareness of the challenges and develop policy responses to the ageing population and the labour force participation of older Australians include:

  • The Treasury published intergenerational reports in 2002, 2007, 2010 and 2015. The Reports assess the long-term sustainability of Government policies and how changes to Australia’s population size and age profile may impact on economic growth, workforce and public finances over the next 40 years.[52]
  • In 2012, the Advisory Panel on Positive Ageing was established in response to a recommendation of the Advisory Panel on the Economic Potential of Senior Australians. The role of the Advisory Panel was to lead a national dialogue on ageing issues, improve coordination of policy design across portfolios, and work with the Government on implementation and design of ageing policy.[53] Australian Government funding for the panel was withdrawn in late 2013.
  • In 2011, the Advisory Panel on the Economic Potential of Senior Australians was established to examine how Australia could best harness the opportunities that older Australians can bring.[54] The Advisory Panel was located within Treasury and produced three reports.
  • In 2010, the Consultative Forum on Mature Age Participation was established to provide advice on practical solutions to address the barriers to employment participation for mature age people.[55]
  • In April 2005, the Productivity Commission released the report, Economic Implications of an Ageing Society which examined the productivity, labour supply and fiscal implications of likely demographic trends over the next 40 years in order to further improve understanding of the challenges and opportunities resulting from an ageing Australia.[56]

Between 2008 and 2010 a number of reviews into areas related to this Inquiry were conducted. These include the Tax Review[57], the Super System Review[58] and the Pension Review,[59] each of which made recommendations for reform.[60]

(b) Current policies and gaps

Current policies which are targeted to older Australians include:

  • In 2014, the Restart Wage Subsidy was introduced by the Department of Employment to advance the employment of older workers and provide financial support to employers who employ and retain eligible job seekers who are 50 years of age or older.
  • Increases in the qualification age for the Age Pension were also introduced in response to the growing population of older people and increasing life expectancy. In the 2009-2010 Budget the Australian Government announced that the qualification age for the Age Pension would be increased from the existing age of 65 years to 67 from July 2023.[61] This will gradually increase to 70 years by July 2035.[62]

As mentioned in Section 8.2, there are other regulations and policies which relate to older workers and have implications on their labour force participation. For example, workers compensation and income insurance schemes vary across the States and Territories and does not provide equal cover for workers once they turn 65. Age restrictions and limits to incapacity payments can be disincentives for older workers to remain in or re-enter the workforce.

Higher taxation of redundancy payments to people over 65 reduces savings for retirement and encourages people to leave the workforce if the opportunity to take a redundancy is presented to them before the age of 65.

There is also a lack of vocational education programs targeted to older workers, as well as opportunities for older workers to retrain and equip themselves for new jobs and careers. Research shows that outdated skills and experience can be a barrier to mature age employment.[63] These issues need to be addressed in order to maximise the potential of those who are willing and able to work.

[27] Including: International Covenant on Civil and Political Rights, 1966, articles 2 and 25(c); International Covenant on Economic, Social and Cultural Rights, 1966, articles 2, 6, and 7. See also, the Convention on the Elimination of All forms of Discrimination against Women, 1979 articles 2 and 11; and International Labour Organization, Discrimination (Employment and Occupation) Convention, 1958 (ILO 111), article 1. ILO111 does not specifically include age as a ground for discrimination but provides for possible additions to the list of grounds. The International Labour Organization, Older Workers Recommendation, 1980 (No.162) directly addresses older workers (but is not a convention).

[28] See, for example, Draft UN Declaration on the Rights of Older Persons, prepared by the Allard

K. Lowenstein International Human Rights Clinic, Yale Law School, with the International Longevity Center (3 June 2008). At http://www.globalaging.org/agingwatch/convention/modelconventions/ilc_draft_convention.pdf (viewed 5 April 2015). There is, however, a body of ‘soft’ law guiding the treatment of older women and men, including the United Nations Principles for Older Persons (1991) and the Madrid International Plan of Action on Ageing (2002).

[29] Article 6, ICESCR.

[30] Article 7, ICESCR.

[31] Articles 11 and 12, ICESCR.

[32] Article 2, ICCPR and article 2, ICESCR.

[33] United Nations Principles for Older Persons, adopted by the United Nations General Assembly in 1991, A/RES/46/91 (1991).

[34] Principle 2.

[35] Principle 3.

[36] Principle 7.

[37] Principle 15.

[38] Committee on Economic, Social and Cultural Rights, General Comment No. 18, Article 6: the equal right of men and women to the enjoyment of all economic, social and cultural rights (Thirty-fifth session, 2006), U.N. Doc. E/C.12/GC/18 (2006), para 1.

[39] Madrid International Plan of Action on Aging (2002), para 23.

[40] Committee on Economic, Social and Cultural Rights, General Comment No. 6, The economic, social and cultural rights of older persons (Thirteenth session, 1995), U.N. Doc. E/1996/22 at 20 (1996), para 23.

[41] For a detailed discussion on the ADA see Australian Human Rights Commission, Federal Discrimination Law (2011), Chapter 2. At https://www.humanrights.gov.au/our-work/legal/federal-discrimination-law-2011 (viewed 5 April 2015).

[42] Age Discrimination Act 2004 (Cth), sections 14 and 15.

[43] Age Discrimination Act 2004 (Cth), Part 4, Divisions 2 and 3.

[44] Age Discrimination Act 2004 (Cth), section 18.

[45] Age Discrimination Act 2004 (Cth), sections 18(4), 19(3), 20(2), 21(4), 24(2)

[46] The Australian Human Rights Commission can grant temporary exemptions from some parts of the ADA: section 44. Other exemptions to the ADA include: things done in compliance with Commonwealth laws; things done in compliance with state and territory laws; certain health and employment programmes; youth wages or direct compliance with industrial agreements and awards: Part 4, Division 4.

[47] Fair Work Act 2009 (Cth), section 351.

[48] Fair Work Ombudsman, Protections at work. At https://www.fairwork.gov.au/employee-entitlements/protections-at-work#adverse-action (viewed 11 May 2015).

[49] The state and territory agencies are: ACT Human Rights Commission, Anti-Discrimination Board of New South Wales, Anti-Discrimination Commission of Queensland, Equal Opportunity Commission Western Australia, Northern Territory Anti-Discrimination Commission, Office of the Anti-Discrimination Commission (Tasmania), South Australia Equal Opportunity Commission, Victorian Equal Opportunity and Human Rights Commission.

[50] Australian Law Reform Commission, Access All Ages – Older Workers and Commonwealth Laws (2013) Chapter 3. At http://www.alrc.gov.au/publications/access-all-ages-report120 (viewed 8 May 2015)

[51] Australian Law Reform Commission, Access All Ages – Older Workers and Commonwealth Laws (2013) Chapter 3. At http://www.alrc.gov.au/publications/access-all-ages-report120 (viewed 8 May 2015)

[52] The Treasury, 2015 Intergenerational Report (2015). At http://www.treasury.gov.au/PublicationsAndMedia/Publications/2015/2015-Intergenerational-Report (viewed 26 May 2015)

[53] The Treasury, ‘Advisory Panel on Positive Ageing’. At http://www.treasury.gov.au/Policy-Topics/PeopleAndSociety/positive-ageing (viewed 26 May 2015).

[54] The Advisory Panel on the Economic Potential of Senior Australians, Realising the economic potential of senior Australians: Turning grey into gold (2011). At http://epsa.treasury.gov.au/content/publications/grey_gold/downloads/grey_gold.pdf (viewed 26 May 2015).

[55] National Seniors Productive Ageing Centre on behalf of the Consultative Forum on Mature Age Participation Barriers to Mature Age Employment: Final Report of the Consultative Forum on Mature Age Participation (2012). At https://docs.employment.gov.au/documents/barriers-mature-age-employment-final-report-consultative-forum-mature-age-participation (viewed 22 May 2015).

[56] Productivity Commission, Economic Implications of an Ageing Australia (2005). At http://www.pc.gov.au/inquiries/completed/ageing (viewed 26 May 2015).

[57] The Treasury, Australia’s Future Tax System: Final Report (2010). At http://taxreview.treasury.gov.au/content/Content.aspx?doc=html/pubs_reports.htm (viewed 27 May 2015)

[58] Commonwealth of Australia, Super System Review: Final Report (2010). At http://www.supersystemreview.gov.au/content/content.aspx?doc=html/final_report.htm (viewed 27 May 2015)

[59] Commonwealth of Australia, Pension Review Report (2009). At https://www.dss.gov.au/about-the-department/publications-articles/corporate-publications/budget-and-additional-estimates-statements/pension-review-report?HTML (viewed 27 May 2015)

[60] Australian Law Reform Commission, Access All Ages – Older Workers and Commonwealth Laws (2013) p21. At http://www.alrc.gov.au/publications/access-all-ages-report120 (viewed 27 May 2015)

[61] Commonwealth of Australia, Budget Paper No 2: Budget Measures 2009-2010 (2009). At http://www.budget.gov.au/2009-10/content/bp2/html/index.htm (viewed 22 May 2015).

[62] Commonwealth of Australia, Budget Paper No. 2: Budget Measures 2014-2015 (2014). At http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm (viewed 22 May 2015).

[63] National Seniors Productive Ageing Centre on behalf of the Consultative Forum on Mature Age Participation Barriers to Mature Age Employment: Final Report of the Consultative Forum on Mature Age Participation (2012). At https://docs.employment.gov.au/documents/barriers-mature-age-employment-final-report-consultative-forum-mature-age-participation (viewed 22 May 2015).