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The Age Discrimination Act: liability & beyond ...: speech at the Marcus Evans: Managing the Ageing Workforce Conference, 7 April 2005



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The Age Discrimination Act: Liability & Beyond …

Speech by Pru Goward, Federal Sex Discrimination Commissioner at the Marcus Evans: Managing the Ageing Workforce Conference, Sydney Harbour Marriott Hotel, Thursday 7 April 2005.

� Ladies and Gentlemen.

� Thank you for inviting me here today.

� As Australia prepares for the baby boomers to go from being our largest

group of tax payers to the group most likely to be dependent on tax payers, we are faced with a demographic shift that has everyone - from the prime minister to the baby boomers themselves - talking, planning and preparing. � The level of concern surrounding this shift is understandable.

� There are implications for our economic future, public policy planning and

for the workforce. � Australia is one of only a few OECD countries projecting continued labour

force growth over the next 40 years.[1] � This growth however, is only at a rate of 14 per cent over that same 40

year period. � Significantly, those aged 55 to 64 are expected to be the fastest growing

group of labour force age over the next two decades, with an expected increase of more than 50%.[2] � Conversely, the age group expected to experience the smallest labour

force growth between 2000 and 2016 are those aged 20-24.[3] � And over the next four decades, the proportion of that is very old, that is

over 85 years of age, is expected to triple.[4] � Traditionally labour force growth relies on the young to enter the workforce

but with our shrinking fertility rate, we can no longer afford to. � So how do we go about increasing our labour force participation rates into

the future? � One approach is to focus on keeping older people in the workforce.

� The government has already committed itself to continued employment for

older workers as being part of the solution with the introduction of its new age discrimination legislation. � It is this new piece of legislation, now in its tenth month of operation, that I

would like to take a closer look at today. � The Federal Age Discrimination Act, enacted in June 2004, prohibits

discrimination on the basis of age in areas of public life including areas of employment, education, accommodation, the provision of goods, services and facilities, the administration of Commonwealth laws and programs, access to premises, selling or other dealings with land and requests for information on which unlawful discrimination might be based. � In general, these areas reflect those proscribed in other federal anti-

discrimination legislation, the Sex Discrimination Act, the Racial Discrimination Act and the Disability Discrimination Act. � There are a number of features of this Act however that differentiate it from

other federal anti-discrimination law and it is these aspects I think worth exploring. � First, the Act includes a ‘dominant reason' test - something not previously

seen in other federal anti-discrimination law. � The dominant reason means that where an action is done for two or more

reasons, it will only be discriminatory under the Act if the person's age was

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the dominant reason for the action. � However, under the Sex Discrimination Act for example, a person need

only show that the ground of sex was a reason for the less favourable treatment received, regardless of whether or not it was the dominant or substantial reason. � In practice, the inclusion of the ‘dominant reason test' in the Act is likely to

make it harder for people to make successful complaints of discrimination on the basis of age, as it is likely to be difficult to show that discrimination occurred on the basis of one discrete personal attribute. � Establishing age as the dominant reason for an action can potentially be

quite problematic. � The second feature of the Act worth noting is the allowance of positive

measures or positive discrimination on the basis of age under certain conditions. � This positive discrimination exemption is broader than the special

measures provision that appear in the Sex Discrimination Act, the Racial Discrimination Act and the Disability Discrimination Act, designed to achieve substantive equality. � This is because the Age Discrimination Act authorises positive measures to

be taken for purposes other than that of achieving substantive equality. � For example, under this provision it is permissible for hairdressers to offer

discounts to persons holding a Seniors card or similar card for services. � Further, the Act does not impose any requirement that those measures be

reasonable, nor does it require that such measures be limited in time. � Third, this Act is notable for the number of exemptions it contains - I will

briefly try to cover the extent of these for you. � In the area of employment, it is not considered unlawful discrimination to

deny someone a job if the person is unable to carry out the ‘inherent requirements' of the particular position because of their age. � In determining whether a person is unable to carry out the inherent

requirements of a particular position, a number of factors may be taken into account: � The person's past training, qualifications and experience relevant to

the employment; � The person's performance - if the person is already employed by the

employer in a different role; � And all other relevant factors that it is reasonable to take into

account.

� The Disability Discrimination Act and Industrial Relations Act also contain

similar provisions. In relation to these, the High Court has held that the ‘inherent requirements' of a particular employment means ‘something essential' to a particular position. � In the provision of education, it is not unlawful to discriminate against

students on the basis of age where an educational institution is established for persons of particular ages, for example a primary school or high school. � In the provision of accommodation, it is not unlawful to discriminate on the

basis of age where accommodation is provided by a person who lives on the premises or whose near relative lives on the premises, where the accommodation is offered to three or fewer persons. � In relation to dealings with land, it is not unlawful to discriminate on the

basis of age where the giving of land is specified in a will or given as a gift. � There are also a number of general exemptions. These include:

� an exemption for youth wages (relating to persons under 21 years of

age); � exemptions in relation to specific health programs, for example, a

scheme that provides free influenza vaccines to older people on the basis of evidence showing that older people are at greater risk of complications arising from influenza than are people of other ages; � Further, acts done in direct compliance with legislature are not

covered by the Act, including the Citizenship Act, Migration

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legislation, taxation and social security laws. � Superannuation and insurance are not covered, which means it continues

to be legal to discriminate in these matters under federal law, and charities, religious and voluntary bodies are also not covered. � While all federal anti-discrimination legislation contains some similar

exemptions, this Act is unique in both the number and breadth of its exemptions. � So what role does the Human Rights and Equal Opportunity Commission

play? � The role of the Commission under the Act is similar to its role under other

federal anti-discrimination laws, with two notable exceptions. � First, the Act does not make provision for the appointment of an ‘Age

Discrimination Commissioner' in the same way that the Sex Discrimination Act for example, makes provision for the appointment of a Sex Discrimination Commissioner. � Second, the Commission does not have an amicus curiae function as it

presently does for matters brought under other federal anti-discrimination legislation. � Under the other Acts, the Commissioner is able, with leave of the court, to

participate in proceedings to assist the court. � What the Commission can do is:

� Inquire into complaints of age discrimination and attempt to

conciliate them; � Promote understanding and acceptance of and compliance with the

Act;

� Disseminate information of age discrimination and the responsibility

of persons and organisations to avoid such discrimination; � Undertake research and education programs to promote the objects

of the Act; � Intervene, with leave of the court, in proceedings that involve issues

of age discrimination; and � Grant temporary exemptions to the operation of the Act.

� The implication of the Act's differences from other anti-discrimination

legislation, namely the dominant reason test, the allowance of positive discrimination, the number of exemptions and the absence of a dedicated Commissioner, is to potentially make it difficult to sustain a complaint. � Despite these hurdles, since the enactment of the Act last year, the

Commission has received 58 complaints of age discrimination (to March 1st, 2005). � Of these, the majority, 76%, were complaints of age discrimination in the

area of employment. This was followed by 14% in the provision of goods and services. � 5% of complaints were in insurance, 2% each in education and clubs and

1% were found not to be covered by the Act. � You may be interested in the gender breakdown - 35% of complaints were

lodged by women and the majority, 65%, by men. � While it is still early days in terms of complaints received under the Act, the

numbers are really too small to draw any conclusions from. � However, these initial statistics may give an indication of trends.

� The government has clearly stated that it wants people to stay in the

workforce for longer. � However, the latest data released from HILDA - the Household, Income

and Labour Dynamics in Australia Survey - shows that rather than wanting to stay in the workforce most people, 77% of the HILDA respondents who are currently in the workforce and over 45 years of age, expect to be retired by age 65. � In fact, more, 81%, would choose to retire earlier than age 65 if they could

afford to do so. � No wonder then that we have such low workforce participation rates for

people aged 55-64, just 49% compared with 60% in the US.[5]

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� The HILDA survey data confirm this trend. Among people in their late 50s

at present, 31% were already retired and 12% were ‘partly' or ‘semi' retired. � By their early 60s a majority were retired, 58% - and 16% were partly

retired. � And for those over 65 years of age the figure climbs to 86% in full

retirement and a further 5% who are partly retired. � However, an astounding third of all those currently retired said they were

pressured or forced to retire. Almost half of these of these unwilling retirees said the pressure came from their employer! � Other reasons cited include medical advice, health reasons and pressure

from their partner. � These statistics then, are undoubtedly of concern to policy makers,

struggling with the challenge of maintaining if not increasing the country's workforce participation. � In my new project, Striking the Balance: Women, men, work and family, I

hope to address some of these ‘choices' faced by both men and women when it comes to balancing their unpaid caring responsibilities and their paid work. � And I'm not just talking about the care of infants, toddlers and young

children - significant and consuming as this responsibility is. � Increasingly with our ageing population, we are also talking about the

pressure on workers to care for their elderly parents. � Elder care is in fact, the next frontier in the work and family debate. And as

usual, this debate is highly gendered. � Of parents currently receiving primary care, 88.5 per cent are cared for by

their daughters.[6] � With a generation of women raised to expect many years of education, a

rewarding career, an equitable partnership, and children, if they choose, it is not clear whether they will be willing to continue this level of informal care, in effect to save their brothers the effort of caring.[7] � The economic and social value of informal care for older people, not to

mention those with a disability, is enormous. Without it, the costs of formal care for government and for individuals in their later years will be greatly increased. � We know that by 2044-45, one in four people in Australia will be 65 years

or over, double what it is today.[8] Formal aged care needs alone are projected to increase in the range of 180 per cent to 250 per cent between now and 2044-45.[9] This will equate to an increase in cost by about 2.5 times more than GDP growth.[10] � A large proportion of people, particularly women, in the labour force provide

care not only for children but for people with disabilities and older people, so our social policy response will need to consider employed carers.[11] � Caring responsibilities and the ability to engage in paid work are obviously

linked. Primary carers are much less likely to work than those who aren't caring for someone on a daily basis.[12] � Yet even so, almost 3 in 5 carers, both primary and non-primary, combine

caring with paid employment, with most carers located in older working age groups.[13] � Of primary carers, 1/5 of men and 4/5 of women in 1998 reported being in

paid employment while performing 40 hours or more of unpaid caring work per week.[14] That's quite a load with a full-time job! � With our ageing workforce, the tension between paid work and caring

commitments is likely to become an issue for more men and women who take on this role in the future. Caring for older people is not only an issue for women, even though most care overall is provided by women - women are nearly three times more likely than men to provide primary care to an older person or person with a disability.[15] � However, much informal care for older people is provided by both female

and male spouses. A significant number of male carers provide primary care for their partners.[16] The number of male carers is likely to increase in

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order to maintain current levels of care as the population ages. � Workplaces will need to be flexible enough to accommodate the family

responsibilities of older workers if these workers are to continue their labour force participation. � According to the Australian Institute of Health and Welfare, in 2000-01 the

imputed value of unpaid care in Australia was estimated to be at $28.8 billion.[17] � Putting aside the willingness of younger generations to care, if we are all

working until we are 70, we may not have the ability or the time to provide care. Without workplace flexibilities and quality part time work options for older workers, balancing paid work with caring for family members such as spouses, elderly parents and/or grandchildren will be a difficult task. � At the other end of the spectrum we have a fertility rate well below

replacement level. Despite a recent small rise in births, the fertility rate has remained steady at around 1.75 babies per woman for the last few years and has dropped significantly over the last few decades.[18] � Looking further into the future of elder care, it remains to be seen whether

fewer children per family will reduce the pool of willing and available elder carers.[19] � These issues are perhaps nothing new to many of us here today. What our

project will be doing is attempting to reconcile and incorporate various competing interests into a policy framework which would assist prevention in the discrimination against women and men on the basis of their family responsibilities. � Part of this will be appraising the availability of family-friendly industrial

provisions for both women and men. Some of these, such as flexible working hours and parental leave are not uniformly available across the workforce and as many of these are discretionary, access differs across industry, occupation and employer size. � Assessing the level of community support for a more even balance

between men and women of unpaid caring and domestic work will be one part of the process. � Drawing a broad range of issues together will be an important part of our

work. � As to how best to assist men and women to balance work and family

obligations, we will proceed as we did with paid maternity leave, by listening to what the various stakeholders and interested people propose once we release our discussion paper later this year. � We will begin, as always, by listening to what the community tells us. We

do not seek to ‘socially engineer', to use a public language cliché, although lets not kid ourselves by thinking that policy-makers and governments don't socially engineer. � They do it all the time, with work and family policies that manufacture a

greater or lesser degree of choice, depending on where you sit within the spectrum of Australian families. � The project will focus not on public policy pressure per se, but there will

certainly be public policy implications. � The decisions individual families make about paid and unpaid work

influence the outcomes that work and family policies aim to produce. � We won't necessarily make recommendations for regulations, but re-adjusting the policy mix for incentives for shared care may be one outcome of a robust national discussion we hope to have over the next 18 months.

Looking at the structures and social conditions that support or hinder choice in managing family responsibilities will be a big part of this conversation. � I will finish by posing some of the questions which will no doubt come up

across the life of the project. � First, and the question of perhaps most importance to government, is there

a net economic and social gain from a more equal balance between men and women of family responsibilities? � Determining the fiscal impact of supporting both men and women to meet

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their paid work and their family obligations will be a key question if we find that something more than awareness and cultural change is required. However in many ways the outcome of greater equality in this area is difficult to measure. � Second, we know that men's take up of already existing family-friendly

arrangements is low. Some will argue that consequently no further provisions are necessary, but perhaps the reason men don't use what they already have is because they have not been sufficiently tailored to their needs. � We know that men say their role in the workforce is the biggest barrier to

spending time with family. It may be that workplace culture is the key to understanding the barriers to men becoming more involved in family life. � Some commentators have suggested that workplace and managerial

cultures impede men's use of existing unpaid parental leave provisions, and have suggested that income maintenance may assist in encouraging fathers to take time out of the workforce for unpaid caring obligations.[20] � While men appear less likely to take periods of unpaid leave, it has been

suggested that they would be willing to use periods of paid leave. This has been attributed to an unwillingness or inability to forego income, particularly where men's income is generally higher than women's.[21] � With this project we aim to shed some light on these and other questions.

In doing so, we hope that researchers, policy makers, service providers and the broader community will join us in ensuring that Australian families are supported in their choices now and into the future. � Thank you

1. The Department of Treasury Intergenerational Report 2002 -03 at http://www.budget.gov.au/2002- 03/bp5/html/index.html 22. 2. The Department of Treasury Intergenerational Report 2002 -03 at http://www.budget.gov.au/2002- 03/bp5/html/index.html 22. 3. Labour force predictions from beehive/coffin presentation based on ABS Labour force survey (2000 statistic). The data for the 2016 projection is from ABS 6260 Labour Force Projections Australia 1999 -2016).

4. The Department of Treasury Intergenerational Report 2002 -03 at http://www.budget.gov.au/2002- 03/bp5/html/index.html 19. 5. S. Encel (2003) Age Can Work: The Case for Older Australians Staying in the Workforce, a report to the Australian Council of Trade Unions and the Business Council of Australia, page 29. 6. David de Vaus, Diversity and change in Australian families: Statistical profiles, Australian Institute of Family Studies, July 2004, p 252. 7. AIHW, Carers in Australia: Assisting frail older people and people with a disability, Aged Care Series, No. 8 Australian Institute of Health and Welfare, Canberra, October 2004, p 35.

8. Productivity Commission, Economic Implications of an Ageing Australia, Draft Research Report, Productivity Commission, Canberra, November 2004, p 1.1. 9. Productivity Commission, Economic Implications of an Ageing Australia, Draft Research Report, Productivity Commission, Canberra, November 2004, p xxxix. 10. Productivity Commission, Economic Implications of an Ageing Australia, Draft Research Report, Productivity Commission, Canberra, November 2004, p xxxix. 11. AIHW, Carers in Australia: Assisting frail older people and people with a disability, Aged Care Series, No. 8 Australian Institute of Health and Welfare, Canberra, October 2004, p 59. 12. Primary carers have a lower labour force participation rate at 39%, than people who are not carers at 68%. ABS Catalogue 4430.0 Disability, Ageing and Carers: Final Survey Results from ABS2003at http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/DAFD731067E636D3CA256F0F0079D6E3 13. Seniors and Means Test Branch, Australian Government Department of Family and Community Services, “The role of families in an ageing Australia” in Family Matters No. 66, Australian Institute of Family Studies, Spring/Summer 2003, pp 46-53 at p 49. 14. AIHW, Carers in Australia: Assisting frail older people and people with a disability, Aged Care Series, No. 8 Australian Institute of Health and Welfare, Canberra, October 2004, p 21. 15. David de Vaus, Diversity and change in Australian families: Statistical profiles, Australian Institute of Family Studies, July 2004, p 251. 16. David de Vaus, Diversity and change in Australian families: Statistical profiles, Australian Institute of Family Studies, July 2004, p 251. 17. Australian Institute of Health and Welfare, Australia ’s Welfare 2003, AIHW Cat. No. AUS 41 Canberra 2003, p 76. 18. ABS, Cat. No. 3301.0 Births, Australia, Australian Bureau of Statistics, 2004. There was only a slight increase in births in 2003 - 200 more births than 2002. 19. Richard Percival and Simon Kelly, Who ’s going to care? Informal care and an ageing population, Report prepared for Carers Australia, National Centre for Social and Economic Modelling, NATSEM, University of Canberra, June 2004, p 10. 20. John Buchanan and Louise Thornthwaite Paid work and parenting: Charting a new course for Australian families Chifley Research Foundation, University of Sydney, Sydney 2001, p 24. 21. Department of Workplace Relations and Small Business, Work and Family Unit, ‘Working fathers and working mothers - Do their needs differ? ’ Work and Family Insert No. 17, August 1998, and John Buchanan

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and Louise Thornthwaite Paid work and parenting: Charting a new course for Australian families Chifley Research Foundation, University of Sydney, Sydney 2001, 24.

  © Human Rights and Equal Opportunity Commission. Last updated 12 May 2005.

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