AHRC Release Report On Inquiry Into Employment Discrimination Against Older Australians

Monday 9 May 2016 @ 11.39 a.m. | Industrial Law | Legal Research

The Australian Human Rights Commission has released Willing to Work, the final report on its national inquiry into employment discrimination against older Australians and Australians with a disability.  The inquiry was commissioned last year by Attorney-General George Brandis, and involved 120 public consultations in cities and regional centres.  Introducing the report at Parliament House, Mr Brandis said:

“The right to work is one of the sources of human dignity. For older people who still have so much to offer, notwithstanding they are reaching the latter part of their working life, for people of all ages who suffer from a disability of some kind or another, work is a source of dignity and self-esteem as well, of course, of economic security. And it is very important that those who can work, and wish to work, should be able to work, that there shouldn’t be barriers to their participation in the workforce should they choose to do so.”

Terms of Inquiry

The inquiry was asked to investigate “practices, attitudes and Commonwealth laws that deny or diminish equal participation in employment of older Australians and Australians with a disability”, and to make “recommendations as to Commonwealth laws that should be made or amended, or action that should be taken, to address employment discrimination against older Australians and Australians with a disability.”

The Report’s Findings

The report found that “[p]eople aged 55 years and over make up roughly a quarter of the population, but only 16% of the total workforce.”  It also found that while mature-age people had a lower unemployment rate than younger people, the average duration of their unemployment was longer (68 weeks, compared with 30 weeks for 15-24 year olds).  A separate survey released by the Commission in April also revealed that 27% of people over the age of 50 experienced discrimination in the workplace, and one-third of those who experienced it gave up looking for jobs.  The report also found that the labour force participation rate for people with disability had not varied much over the last 20 years, and that having a disability meant Australians were more likely to be unemployed, and more likely to have to look for work for longer.

Recommendations

The report made a number of recommendations, which it grouped into three key themes: priority government commitments; improving existing systems; and what employers and business could do.

One key recommendation was  introducing a ministerial portfolio (the ‘Minister for Longevity’) to “address employment discrimination, the economic dimensions of longevity, drive the increase in labour force participation of older Australians, coordinate and monitor the implementation of the recommendations of this Report.”

Other recommendations made by the report ask the Government to:

  • Convene an expert panel to consider access to insurance products… for older Australians and Australians with disability. Following the panel’s advice the Australian Government consider limiting or otherwise changing the operation of the insurance exemption under section 37 of the Age Discrimination Act 2004 and under section 46 of the Disability Discrimination Act. (Recommendation 18).
  • Consider the taxation treatment of redundancy payments made to people over 65 years of age in light of changes to Age Pension qualifying age (Recommendation 19).
  •  Work with state and territory jurisdictions to review the evidence regarding the removal of age based limitations from workers compensation schemes, model any costs against the benefits of increased workforce participation of older people and ensure that, as a minimum, age based limitations and cut offs for workers compensation salary replacement payments are linked to the Age Pension qualifying age (Recommendation 20).  
  • ... further consider approaches to standing in federal discrimination law matters which provide consistency between who may bring complaints to the Commission and who may commence court proceedings. Any new approach to standing should promote access to justice without imposing undue regulatory burden. In particular, the Commission suggests consideration of provision for initiation of matters by representative organisations and other bodies with a sufficient interest, but only by leave of the court with regard to appropriate criteria (Recommendation 48).
  • That the Australian Government consider the benefits of a positive duty to promote substantive equality or eliminate discrimination being inserted in federal discrimination laws (Recommendation 49).
  • That the Australian Government consider amending federal discrimination laws to remove the comparator test in establishing direct discrimination and instead use the detriment test based on the Discrimination Act 1991 (ACT) (Recommendation 50).

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