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Patterson, Rachael --- "The Eradication of Compulsory Retirement and Age Discrimination in the Australian Workplace: A Cause for Celebration and Concern" [2004] ElderLawRw 10; (2004) 3 Elder Law Review 65


THE ERADICATION OF COMPULSORY RETIREMENT AND AGE DISCRIMINATION IN THE AUSTRALIAN WORKPLACE:
A CAUSE FOR CELEBRATION AND CONCERN

RACHAEL PATTERSON[*]

Earlier this year the Age Discrimination Act 2004 was passed by the Commonwealth government. This paper provides an overview of the Age Discrimination Act 2004 and critically examines whether it is likely to be successful in eradicating compulsory retirement and age discrimination within the workforce. Empirical studies suggesting that law reform alone is insufficient to eliminate ageist employer behaviour are discussed as is the need for public awareness campaigns. Given that compliance with the law is closely linked with normative belief, this paper also considers whether a moral duty to refrain from age discrimination can be grounded within the natural law ethic.

A Introduction

Over the past three decades Australia has made significant progress in protecting employees from discrimination on the basis of race, sex, and marital status. Commonwealth legislation prohibiting racial discrimination was first introduced in 1975 with the Racial Discrimination Act 1975. Two years later NSW enacted the Anti-Discrimination Act 1977 and in the early 1980s federal legislation addressing sex discrimination was introduced with the Commonwealth Sex Discrimination Act 1984. When it has come to protecting mature age workers against age discrimination, however, the law has shamefully lagged behind.[1]

Although provisions providing for compulsory retirement were removed from the Commonwealth Public Service Act in 1999, it was not until 2001 that it was more generally abolished in the federal public sector when the Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 was passed. A federal prohibition of age discrimination was achieved only this year with the recent implementation of the Commonwealth Age Discrimination Act 2004 (the Age Act).

Although many states enacted provisions prohibiting compulsory retirement prior to this, the legislation tended to be piecemeal and inconsistent. In New South Wales, for example, age discrimination was made unlawful only in 1994 with the Anti-Discrimination (Amendment) Act 1994. Although compulsory retirement was prohibited in NSW at an earlier date, this initial protection did not extend to those in partnerships nor did it prohibit voluntary retirement schemes based on age.[2]

The Age Act is a welcome and much needed addition to our slate of anti-discrimination laws. The fact remains, however, that even with these legislative initiatives, older people and mature age workers will still be subject to ongoing hidden discrimination. Research shows that mature age workers are least preferred for employment and most likely to be targeted for retrenchment.[3] Attitudes such as these mean that people aged 45 years and over are more likely than younger persons to remain unemployed for longer periods of time.[4]

Ageist stereotyping is in a large way to blame for this, with older people often being seen as ‘stupid, decrepit, feeble, or unusually eccentric, wise or sweet natured, and in any event to be patronised’.[5] In the workplace mature age workers are perceived as ‘not likely to change’, ‘not open to new skills’, unable to ‘catch up on computer literacy’ and more likely to ‘get sick’. [6] Research, however, indicates otherwise.

The prevalence of ageist stereotypes indicates our lack of willingness to recognise older people as a diverse group of people with a wide array of skill sets. That it was almost 30 years after the implementation of the Racial Discrimination Act 1975 that the Commonwealth finally enacted the Age Act indicates how lowly we prioritise the prevention of age discrimination. This is cause for considerable concern.

Whilst it is possible to coerce people into refraining from directly discriminating against mature age workers, in order to eradicate the more insidious and hidden forms of age discrimination in the workplace, it is important, firstly, to source our legal imperatives within a normative understanding of the issue and, secondly, to encourage people to see it as a normative issue with extensive public awareness campaigns on the deplorability of age discrimination. Research has shown normative belief to be closely linked with compliance with the law. People do not obey the law simply because it is in their self-interest to do so but because they also believe it is morally proper to do so.[7]

This paper provides an overview of the relevant provisions of the Age Act and existing state law on compulsory retirement and age discrimination within the workplace. Part three critically examines the reforms and assesses whether the Age Act is likely to achieve its objectives. Of particular concern is the vulnerability of some mature age workers not protected by the provisions due to exemptions in the Age Act, and the fact that, of those who are, many are still subject to hidden discrimination and constructive compulsory retirement. Given that compliance with the law is closely linked with normative belief, part four of the paper sets out a normative basis for why age discrimination and compulsory retirement are wrong.

B Age Discrimination Act 2004

In the second reading speech for the Age Act, the then Attorney General, Daryl Williams, argued that age discrimination against older workers was prevalent and caused by negative stereotyping. Williams claimed that it was important for Australia to avoid the social and economic costs of age discrimination by ensuring ‘full participation in public life by order persons’.[8] This, however, would require the removal of barriers to older people participating in society, particularly the workforce. The Age Act, he observed, would assist with the removal of these barriers and ‘send a powerful message about the importance of eliminating unfair age discrimination’.[9]

In furtherance of these objectives, the Age Act prohibits direct and indirect discrimination against people on the basis of age under a number of circumstances including employment, education, access to premises, access to goods, services and facilities, accommodation, land and requests for information.

1 Direct and Indirect Discrimination in the Age Act

Section 14 of the Age Act defines direct discrimination as occurring when the discriminator treats the aggrieved person less favourably than someone of a different age because of:

(i)the age of the aggrieved person; or
(ii)a characteristic that appertains generally to persons of the age of the aggrieved person; or
(iii)a characteristic that is generally imputed to persons of the age of the aggrieved person.

Indirect discrimination is defined by section 15 as when, because of a person’s age, a discriminator:

(a)... imposes, or proposes to impose, a condition, requirement or practice; and
(b)the condition, requirement or practice is not reasonable in the circumstances; and
(c) the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.

The Explanatory Memorandum to the Age Act explains that in the case of indirect discrimination, a person of a particular age is disadvantaged because the person is unable to meet a condition, requirement or practice that, although apparently neutral, is more difficult for people of that age to meet. Unless the discriminator is able to show that the condition is reasonable in the circumstances, it will constitute unlawful discrimination.[10]

For an action to constitute indirect discrimination it must be done by reason of the complainant’s age. However, where some other reason is involved, section 16 of the Age Act provides that the act (being either direct or indirect discrimination) will still be taken as being done by reason of the person’s age where ‘one of the reasons is the age of the person’ and ‘that reason is the dominant reason for doing the act’.

2 The Age Act and Discrimination in the Workplace

Although the Age Act is quite broad in its application, Division 2 of Part 4 deals specifically with age discrimination in the workplace. Section 18(1) prevents employers from discriminating against a person on account of their age when offering employment or determining the terms and conditions of employment. Section 18(2) makes it unlawful for an employer to discriminate against a person on the basis of age by ‘dismissing’ that person, failing to offer them ‘opportunities for promotion, transfer or training ... or any other benefits associated with employment’, or subjecting them to some form of ‘detriment’.

It is too early for any cases to have been brought before the courts pursuant to the Age Act. Even so, many of its terms have been judicially considered within the context of other anti-discrimination laws. Accordingly, the term ‘detriment’ has been given a broad definition that includes any kind of non-trivial disadvantage.[11] In O’Callaghan v Loder, for example, Mathews DCJ treated the term as ‘requiring that a complainant has been placed under a disadvantage in comparison with employees of the opposite sex’. Applying this definition within the context of age discrimination would mean that a detriment is suffered when an employee is ‘placed under a disadvantage’ in comparison with employees of a different age. The word ‘benefit’ has also been widely construed by the court as meaning ‘any advantage or opportunity generally provided by the employer to an employee’.[12]

The effect of section 18(2) is to prohibit compulsory retirement not only in the case of public servants but for all other employees as well. Provisions similar to section 18 applying to commission agents (section 19), contract workers (section 20), partnerships (section 21), and qualifying bodies (section 22) are also included in the Age Act.

3 Exemptions to the Prohibition on Compulsory Retirement

Despite the general prohibition on compulsory retirement, it is not unlawful for an employer, partnership, principal or employment agency to discriminate against another on the ground of age (being an employee, partner, commission agent, contract worker or applicant), if that other is unable to carry out the ‘inherent requirements’ of the particular position because of his or her age.

In deciding whether a person is unable to carry out the inherent requirements of his or her employment, section 18(5) specifies that the following should be taken into account:[13]

(a) the person's past training, qualifications and experience relevant to the particular employment;

(b) if the person is already employed by the employer, then that person's performance as an employee; and

(c) all other relevant factors that it is reasonable to take into account.

4 The Meaning of ‘the inherent requirements of a particular employment’

The term ‘inherent requirements’ was considered by the High Court of Australia in Qantas Airways Ltd v Christie.[14] In this case a pilot’s employment with Qantas was terminated after he reached 60 years of age. Qantas successfully argued that it was not in breach of the Commonwealth Industrial Relations Act 1998 because, given that many jurisdictions require a pilot entering its airspace to be under 60 years, it was an inherent requirement of the position. Although no one definition was agreed upon, a majority of the Court held that an ‘inherent requirement’ is something that is an essential and permanent aspect of the position or job.[15]

For Justice Gaudron a ‘practical method of determining whether or not a requirement is an inherent requirement is to ask whether the position would essentially be the same if that requirement were dispensed with’.[16] This test was not, however, adopted by the majority. In fact Justice Brennan stressed that he wanted to refrain from providing too final a definition.[17]

In their judgments, Justices McHugh and Gummow distinguished between the inherent requirements of a ‘job’ as opposed to a ‘position’. The inherent requirements of job, they said, are primarily determined by the particular work or tasks that a person must perform. On the other hand, the inherent requirements of a particular position concern rank and status in addition to the tasks to be performed, and may include ‘qualifications that are not concerned with physical or mental capacity to perform the tasks involved in the position’. This is relevant for the Age Act which provides exemptions on the basis of the ‘inherent requirements of the particular employment’.

Employment is defined by the Australian Oxford Dictionary as being the ‘state of being employed’ and ‘work done as an occupation or to earn a livelihood’. Properly understood, therefore, it encompasses aspects of the meanings of both ‘job’ and ‘position’. People are employed to fulfil various tasks but are also appointed to a particular position. This means, therefore, that in addition to the tasks and skills specified for in the employment contract, other considerations ought to be relevant in determining the inherent requirements of a particular employment. These requirements should not, therefore, be determinable with reference solely to the terms of the employment contract.[18]

Despite the merits of this approach, the Federal Court held in Cosma v Qantas Airways Ltd that the expression ‘particular employment’ describes ‘the actual employment which the relevant employee was required to perform pursuant to his contract of employment’.[19] Elaborating further, the full Federal Court explained that

Some employees may be employed to perform specific duties. Others may be employed to perform unspecified general duties, depending upon what needs to be done at a particular point in time. There will also be cases in which a person, who was originally employed to perform particular duties, will come to perform quite different duties as the result of an express or implied variation to the contract of service. In each case the actual duties of the employee at the relevant time must be determined as a matter of fact, by reference to the original contract of service and any such variations. When an employee has been employed to perform specific duties, there may be little difference between, on the one hand, his or her specific employment, described by reference to those duties and, on the other, the inherent requirements of that employment. Both specific employment and inherent requirements of that employment are primarily questions of fact.

C A Critical Assessment of the Age Act

It has been argued that the implementation of the Age Act will require little change to the way employers hire and fire given that most business are already governed by similarly worded state legislation and that some protection for mature age workers already exists at the federal level.[20]

In NSW, for example, section 49ZYB (2) of the NSW Anti-Discrimination Act 1977 provides that

it is unlawful for an employer to discriminate against an employee on the ground of age:
(a)in the terms or conditions of employment that are afforded to the employee, or
(b)by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c)by dismissing the employee or subjecting the employee to any other detriment.

Compulsory retirement is specifically dealt with in section 49ZV of the Anti-Discrimination Act 1977 (NSW) which specifies that it is unlawful for a person:

(a)to retire an employee from employment, or
(b)to require an employee to retire from employment, or
(c)to threaten to retire an employee from employment, or
(d)to engage in conduct with a view to causing an employee to retire from employment,
on the ground of the employee’s age.

Similar provisions are enacted in Victoria, Queensland, Western Australia, South Australia and the ACT.

In Tasmania and the Northern Territory, however, compulsory retirement is lawful. Section 35 of the Tasmanian Anti-Discrimination Act 1998, for example, provides that a ‘person may discriminate against another person on the ground of age in relation to (a) voluntary or compulsory retirement; or (b) voluntary severance’ whilst section 36 of Anti-Discrimination Act 1992 (NT) specifies that a ‘person may discriminate on the grounds of age by imposing a standard age for commencement of work or a standard retirement age’. The Age Act now means that compulsory retirement is also specifically prohibited within Tasmania and the Northern Territory.

At the federal level, termination of employment on the ground of age has been prohibited since March 1994 when the Commonwealth Industrial Relations Reform Act 1993 came into effect. Originally the prohibition was contained within 1 70DF of the Industrial Relations Act 1988 but, when this was repealed, the provision was re-enacted in section 170CK (2) (f) of the Workplace Relations Act 1996. This section is provides that ‘an employer must not terminate an employee's employment ... for reasons including ... race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin’. An exemption is created for terminating employment where the reason is based on the inherent requirements of the particular position concerned.

Although this section prevents employers from terminating employment on the basis of age, it does not specifically prevent age discrimination in other workplace practices. Nor does it provide any protection to contractors, agents or those in partnerships. This means that, under the Workplace Relations Act 1996, older workers who ‘voluntarily’ leave or retire, having been subtly targeted for retrenchment, and who receive inferior payouts because of their age, have little protection. Likewise, members of partnerships who are forced out because of their age receive no protection under the Workplace Relations Act 1996. Pursuant to the Age Act, however, such practices constitute age discrimination and are now unlawful.

It could be argued that the operation of the Workplace Relations Act 1996 is in fact wider than this since it has been held that the phrase ‘termination of employment’ in anti-discrimination law extends to when an employee is forced to leave employment on the basis of a discriminatory retrenchment policy.[21] It has also been held to include instances when an employee leaves employment ‘without an express act or enunciation of “dismissal” by the employer ... if the employer has behaved towards the employee in a way that entitles the employee to treat the employment at an end’.[22] When constructive dismissal occurs on account of age, termination will fall foul of section 170CK of the Workplace Relations Act 1996. Even given this, however, the protection offered to older workers pursuant to the Age Act is undoubtedly more extensive and comprehensive than previously in existence at the Commonwealth level.

1 Ongoing Age Discrimination in the Workplace

Despite the fact that the majority of businesses in Australia are subject to laws prohibiting compulsory retirement, research suggests that age discrimination continues to exist within the workplace environment. This conclusion has been reached by an overwhelming number of reports over the last five years.[23] Many of these reports make reference to the 1999 research published by Drake Personnel in which it was found that mature age workers are least preferred for employment and most likely to be targeted for retrenchment.[24]

Other evidence exists in support of this data. A 1997 survey of Australian companies, for example, indicated that bosses consider the ideal employee age to be between 25 and 35 year and perceive workers over 40 as less flexible in their work practices.[25] Such attitudes mean that employers are reluctant to hire older workers. As a result, people aged 45 years and over are less likely than younger persons to be successful jobseekers and more likely to remain unemployed for longer periods of time.[26] In 1999 the average duration of unemployment for those over 55 years of age was 104 weeks for men and 107 weeks for women.[27] The average period of unemployment experienced by younger people at this time was significantly less.[28]

Negative attitudes about older workers have also been found to effect employer firing practices as well as the way in which they hire. In the 2001 report by the NSW Committee on Aging, Too Young to Go, it was found that ‘from the age of fifty, employers are more likely than younger workers to lose or leave a job ... and the older the person, the less likely he or she is to return to employment after leaving a job’.[29] In support this report cited data from an unpublished survey in 2000 showing that, of the reasons given by men aged between 45 and 69 years for leaving a job, 45% were because of job loss including retrenchment, redundancy, dismissal, business failure, downsizing, restructuring, short term contracts or business moving. [30]

Similar statistics have been published by the Australian Bureau of Statistics (ABS). In its paper ‘Work - Not in the Labour Force: Retirement and Retirement Intentions’ (published as part of the ABS report Australian Social Trends 2000), the ABS found that of the men who retired in 1997, 17.9% of those aged 60-64 years and 64.9% aged 65-69 years did so because they reached the compulsory age for retirement.[31] Even given that at this time many employees within the public service were subject to compulsory retirement requirements, these figures indicate that such practices were also occurring in the private sector despite legislation to the contrary.

The existence of age discrimination in the way companies hire and fire are borne out by complaints made to bodies such as the Human Rights and Equal Opportunity Commission (HREOC). In Age Matters, a report put out by HREOC in 2000, it was noted that many of the complaints brought before HREOC concerning age related to stipulations in job vacancies, compulsory retirement practices, discrimination by trade unions and discrimination in the offer of redundancy packages and the monetary value of such packages by employers.[32] Further, in 1998 when people where given the opportunity to call and complain about discrimination issues to the Australian Office of the Ageing and Queensland Anti-Discrimination Commission, 76% of the callers claimed to have been subject to age discrimination in the workforce. Of these callers 34% were told by prospective employers were too old whilst 16.5% were informed of this by other employees.[33]

One result of the prevalence of age discrimination within the workplace is that we have a culture geared towards early retirement. Over the past two decades the average retirement age has decreased. A 2003 report by Professor Jeff Borland indicates that the effective average retirement age is now only 61.[34] Things do not look likely to improve anytime soon. A 2001 survey commissioned by the Association of Super Funds of Australia, for example, found the average age that respondents aged 35-54 expected to retire was only 58.[35] In other research, over 50% of women surveyed indicated that they wish to retire before age 45.[36]

It could be argued that the decreasing age of retirement is explainable with reference to the fact that individuals are simply choosing to retire at an earlier age on a voluntary basis. There is some data to support this position. The ABS, for example, published material this year showing that in 2000 the most popular reason for why men in the 60-64 age group retired was because they felt they had reached an appropriate age for retirement (26.7%).[37]

It is not likely, however, that such decisions are always voluntary or entirely free from at least subtle, if not overt, coercion. Research shows that mature age workers are most likely to be targeted for retrenchment and that there is a positive correlation between likelihood of retrenchment and age. [38] A study covering 4000 firms from 1990-1998 found, for example, that exit rates increased steadily with age, from 36% at age 20 to 42 % at age 60.[39] Furthermore, according to ABS data for the period 1994-1997, retrenchment and redundancy rates were at their minimum among workers aged 3 5-44 but were significantly higher for both 15-24 and 55-64 year olds. In fact, whilst the retrenchment rate was 9% for 35-44 year olds, it was nearly 13% for 18-24 and 55-64 year olds.[40]

Qualitative research into the issue has shown that subtle pressure is often placed on older workers to retire. In Age Limits, a study published by the Victorian, South Australian and Western Australian Equal Opportunity Commissioners, it was found that stereotyped expectations regarding age place cumulative and often covert pressure on older workers to retire. Such pressure ‘whittle[s] away the confidence of the older person that he/she has the right to remain employed’ and leads them to ‘adopt negative stereotypes of age and blame themselves, or they could accept the common social view that they should not be working by the time they are 65 and, if they can afford to, should leave work as soon as possible after 50’.[41] Unfortunately such attitudes contribute towards a self-sustaining vicious cycle since when companies make downsizing and restructuring decisions ‘[a] lot of people apologise for being old and come across as lacking confidence and self-esteem. They come across as a blubbering mess and have ruined their chances’.[42]

It does not help, of course, that negative stereotypes about older workers are adopted by employers and can directly (as well as indirectly) influence the way they approach downsizing or restructuring. Employers were quoted in the report as stating that ‘[a]ge is used as a proxy for a downsizing strategy’ and when ‘the organisation asks how best will we survive - by re-grouping and restructuring? They ... sack all men with grey hats’.[43]

Similar conclusions where reported in Age Matters where HREOC noted that ‘older workers are frequently targeted for redundancy based on the unsupported assumption that they are less productive and more out-dated in their work practices’.[44] The report cited a number of newspaper articles describing the experiences of various workers targeted for redundancy and employment agencies, including the following:[45]

Morgan and Banks’s 1998 national employment survey of 3,500 employers showed that about a third of the companies had replaced workers over 45 with younger staff. A growing number of workers are being forced out of their jobs. An employment agency for mature workers, DOME (Don’t Overlook Mature Expertise), said, “We’re told that when companies are looking to downsize, it’s the mature age people who put their hands up. But that’s not our experience. We find that these people are edged out. They are pressured into taking a package.” (The Advertiser, 13 November 1998)

Research indicates ‘early retirement ... to be a psychological defence against the stigma of being unemployed’.[46] Early retirement provides the unemployed with a means of redefining themselves in a more positive light – they are not ‘retrenched’ or job-less’ but have ‘retired’ being an exercise in self-empowerment.[47] Given such experiences, it has been suggested that rather than ‘early retirement’, the better phrase to use is ‘early exit’.[48]

2 What Hope is Offered by the Age Act?

With the introduction of the Age Act uniform protection is offered to a broader range of workers (i.e. not just employees) from both direct and indirect discrimination in the workplace. Finally, but for a number of exemptions, a comprehensive ban against compulsory retirement and age discrimination in the workplace has been achieved on a national basis. Formerly unprotected workers in Tasmania and the Northern Territory are now free from the spectre of forced retirement. This is a definite advantage and the passing of this legislation should mark out age discrimination issues as an important issue to the government and people of Australia.

Unfortunately, however, research has shown that legislation prohibiting age discrimination has little influence on how employers actually hire or fire. In other words, despite the fact that the law prohibits compulsory retirement and age discrimination in the workplace, many employers will continue engaging in these practices. These findings correlate with that experienced by other countries.

In Finland, for example, it was found that although age discrimination was prohibited in law, it continued to exist with employers remaining reluctant to hire older workers.[49] In response the Finnish government implemented the National Ageing Program. Forming part of this program was a public awareness campaign on age discrimination and the inappropriateness of ageist stereotypes. Research subsequent to the campaign suggests that age discrimination has diminished and public attitudes toward older people have improved.[50]

In the Netherlands age discrimination continues to be widespread despite legislation to the contrary. It was reported, for example, that 8% of job advertisements still specify age limits.[51] Although this figure relates to hiring practices, it indicates that legislation alone is an insufficient means of eradicating age discrimination. If age discrimination exists in how employers hire, it is also likely to be present in firing and retrenchment practices as well since it is unusual to have one without the other. In Australia, for example, 39% of the age discrimination complaints dealt with by the NSW Anti-Discrimination Board between 1994-1997 related to hiring whilst 27% pertained to dismissal or retrenchment.[52]

3 What More Should Be Done?

Overwhelmingly the consensus seems to be that age discrimination will continue to occur despite the existence of legislation to the contrary because of the negative stereotypes associated with older people and mature age workers. It would seem then that, by itself, the Age Act will not be sufficient to meet its objectives and eliminate age discrimination and compulsory retirement.

Research suggests that rather than simply passing legislation, a multitude of approaches, including public awareness campaigns and more proactive monitoring of discrimination, is needed.[53] In addition to the Age Act, therefore, other programs should be put in place. Of particular help would be education campaigns targeting employers.

4 Some Important Facts About Mature Age Workers

Any awareness campaign on this issue will need to focus on dispelling a number of myths associated with mature age workers. One problem is the tendency to perceive mature age workers or older people as a homogenous group of people with similar weakness and strengths. It is important that older people are seen as a diverse group of people with a wide array of different skill sets and abilities.[54]

It is also important for employers to be challenged bout their understanding of mature age workers. Whilst older workers are valued by employers for their loyalty, experience, work ethic, confidence, interpersonal skills and reliability, they are also seen as less able to accept new technology, adapt to change or grasp new ideas, less receptive to directions and deteriorating in their physical and mental capabilities.[55] Comparative studies of attitudes towards older workers indicate that future managers (MBA students) hold even more negative views about older workers than existing management, considering them more likely to take things easy, less likely to be conscientious, less able to work well in teams and less able to accept change, undergo training or adapt to new technologies.[56]

(a) Abilities of Mature Age Workers

Many of the assumptions underlying such attitudes, however, are misplaced. Longitudinal studies have shown that the primary mental abilities increase until the late 30s or early 40s from which time they remain stable until the mid-50s or early 60s.[57] In fact studies reveal that ‘the incidence of significant decrement in individuals is limited until age 60, effects less than a third ... until age 74, and even by age 81 affects only between 30 and 40% of ... persons’.[58]

Other data exists indicating that, overall, senescent changes in certain auditory and visual functions are only observed in the oldest age group of those over 80 years of age.[59] No significant negative relationship has been found between age and ‘primary memory’ or ‘complex reasoning’ although age-related deficits have been documented in relation to ‘episodic memory’, ‘semantic memory’, ‘short-term memory’ and ‘procedural memory’.[60] Psychometric assessments have found that whilst speed in tasks testing efficiency of current processing declines with age, this deterioration begins early at age 30 and there is no age relationship for speed in tasks relying primarily on accumulated knowledge.[61]

The evidence suggests that overall productivity and job performance is maintained or increases with age for most types of employment with the exception of those jobs that require constant physical effort (given a negative correlation between age and motor control).[62] Even here, however, it has been found that where there is an identified decline in some aspect of performance because of age (such as physical strength), this may be offset by a range of other skills and experience related qualities in the older employee.[63]

Research considered in Planning for Retirement, a 2003 report by the Australian Senate Select Committee on Superannuation, suggests that mature age workers tend to stay in a position for longer and have lower absenteeism rates than younger employees.[64] Data obtained from the ABS and World Health Organisation was cited in the report revealing that attendance records are better for mature age workers (with Australian employees aged over 55 years accounting for only 14% of employees absent on sick in 1988) and that they are more likely to remain in a job for longer than younger employees (the report notes that there is a 25% greater turn over of jobs in the 20-24 age group compared with the 5 5-69 age group).[65]

(b) Impacts of Forced Retirement

An assumption often made about older workers is that retrenchment will impact them less than younger workers. Unfortunately, older people can be just as hard hit by a loss of employment as younger people. Having to retire early can have serious financial and emotional ramifications for the mature age worker.

Given that older workers are generally less educated and less likely to engage in employer supported training than younger workers, their prospects are worse off in the event of retrenchment.[66] When an older worker is retrenched, he or she is much less likely to resume full-time employment than a younger worker.

Since length of participation in the paid workforce is a key determinant in a person’s financial wellbeing following retirement, forced retirement or retrenchment may mean that a person’s superannuation entitlements will be less than expected. Depending on when retirement takes place, it is possible that for some, superannuation entitlements will depleted sooner than planned (being of a lesser amount than if the worker had remained in the workforce for a longer period) resulting in earlier dependence on the pension.[67] In fact it has been found that involuntary retirees are at least twice as likely to depend on social security at retirement as are voluntary retirees.[68]

In addition to the financial benefits that accompany remaining in the workforce, research indicates that mature age workers also consider there to be a number of quality of life benefits associated with employment. These include keeping fit and active, and maintaining a good self-esteem.[69] Such views are supported by empirical data showing that whilst retirement has a favourable impact on the cognitive abilities of those who hold routine or less stimulating jobs, it accelerates age related deterioration for those who retire from more complex jobs.[70]

Early retirement also has negative implications for the general community as a whole. Given that those subject to constructive compulsory retirement are more likely to depend on social security than those who voluntarily retire, the cost to society of an early exit from the workforce (where the person’s job has been made redundant) involves a double burden – society must support an additional welfare recipient but with less income tax revenue.[71] Other secondary costs include increased pressure on government expenditure as a result of the individual’s reduced capacity to fund such things as private health insurance, repay Higher Education Contribution Scheme debt, meet mortgage repayments, care for elderly parents, provide financial assistance to other family members or invest.[72]

A recent report by the Commonwealth Treasury, for example, indicates that in 2004 ‘taxpayers will provide almost $19 million to fund Age Pensions and a further $11 billion for superannuation through tax concessions’.[73] In addition to this, a further $6 billion will be spent on income support payments to people aged 55 to 64 years.[74] This expenditure will increase as Australia’s population continues to age.

Forced retirement also impacts on the national economy in other ways. It has been found, for example, that an annual growth of 180,000 in the labour force is required between 2020 and 2030 to sustain an annual GDP growth of 2-3%. Given that over the next 40 years the projected proportion of Australia’s population older than 65 years of age will double to 25% and that growth in the ‘traditional workforce age’ is expected to slow to almost zero, this may not be feasible.[75] There is good reason, therefore, for keeping mature age workers in the work force for longer periods of time.[76]

5 What Is Being Done?

(a) Public Awareness Initiatives

In conjunction with the passing of the Age Act, the Commonwealth government has implemented a number of complementary programs designed to create public awareness and educate all Australians about age discrimination. The 2001 National Strategy for an Ageing Australia, which outlines the Commonwealth Government's strategic response to the ageing of the Australian population, notes that if barriers to the continued participation of mature age workers in the workforce are to be removed, an employment system that ‘recognises the importance of retaining mature age workers in light of the future predicted decline in new entrants to the workforce’ must be achieved. Actions required to meet these goals are listed as including: [77]

‘Raising the profile of the ageing of the workforce and the emerging shortage of younger workers’;
‘Increasing recognition of the importance and benefits of training and participation in the workforce by mature age workers for future productivity and economic growth’;
‘Changing the culture in the workplace, and in the wider community to the role and continued contributions of mature age workers’;
‘Increasing the opportunities for ongoing training and professional development of mature age workers appropriate to their needs’;
‘Establishing partnerships between employers and employment service providers to improve employment opportunities for mature age workers’;
‘Removing barriers and providing opportunities for mature age workers to make a successful transition from paid work to retirement’;
‘Promoting and facilitating life planning by individuals’;
‘Removing incentives for early retirement’; and
‘Supporting the income, career and job search needs of mature age workers displaced from the workforce while they seek to regain employment’.

Of particular importance to the elimination of age discrimination within the workforce is the recognition that a change in workforce culture through education and improved access to training by older workers is required. To a large degree much of the required work identified by the National Strategy for an Ageing Australia will be undertaken by HREOC. The Commission's responsibilities are listed as including public awareness and education, anti-discrimination and human rights complaints, human rights compliance, and policy and legislative development.[78] Accordingly, in addition to being responsible for dealing with enquires and complaints about age discrimination, HREOC has a role under the Age Act in overseeing public awareness campaigns promoting the objectives of and compliance with the Act and in proposing enactments or legislative reform where appropriate.[79] Whilst HREOC does not yet appear to have implemented a formal or strategic public awareness approach to the issue of age discrimination it is significant that the Age Act allows for it.

Fortunately, similar initiatives have also taken place at the state level. In Victoria, for example, a program called ‘Working for Ages’ has been launched with the aim of bringing together key decision makers to develop strategic approaches to overcoming the systemic and cultural barriers faced by older workers. Projects under the program include: [80]

The development of educational and information products designed to raise awareness of and improve adherence to Equal Opportunity legislation and ‘debunk ageist stereotypes in employment’;
Exploring ‘the capacities of workers over 45 and promote the positive contribution they make in employment’;
A study of the ‘demographic and economic impacts of an ageing population and its likely impact on business’;
The development of ‘a forum for feedback to the various levels of government on policies related to an ageing workforce’; and
The development and dissemination of ‘international and Australian examples of business best practice’.

(b) Policy Change

The Treasury has also announced a number of changes to the retirement income system to remove incentives for early withdrawal from the labour market and to encourage people to extend their working lives.[81] The Treasury recognises that an important balance needs to be obtained ‘between continuing provision of a safety net for those in need while maintaining appropriate emphasis on the value of being part of the workforce and incentives for each of us to make sufficient provision for our own retirement’.[82] In furtherance of this end, in 1997 the Commonwealth government raised the preservation age (being the age at which people can access their superannuation benefits) from 55 to 65 years of age. It was feared that people would see 55 as the appropriate age for retirement and prematurely run down their savings resulting in them having to rely more heavily on the Age Pension. [83]

The government has also initiated a number of changes to the superannuation system to increase its efficacy and attractiveness. Such changes include:[84]

‘raising the tax deductible threshold for [superannuation] contributions by the self-employed from $3,000 to $5,000’;
‘providing a rebate for [superannuation] contributions made on behalf of a low-income spouse’;
‘ensuring that the effective tax rate on the excessive component of an eligible termination payment from a superannuation fund does not exceed 47 per cent’;
‘a Government co-contribution of up to $1,000 per year to match eligible personal superannuation contributions by lower and middle income earners’; and
reducing the superannuation surcharge rate from 15% to 12.5% over three years.

More recent proposals for change include removing the work test for superannuation contributions before the age of 65. [85] Before 1 July 2004, a person below 65 years of age must have worked at least 10 hours in a week in the past two years to make superannuation contributions. This limitation has been removed.[86] In addition to this, there has been a simplification of the work test for those aged over 65.[87] The contribution and cashing rules for people aged 65 to 74 have been changed to an annual work test with people now allowed to make contributions until 75 (thereby providing them with the benefit of superannuation tax concessions).[88]

Despite these changes the government will need to undertake a more aggressive reform of the Age Pension and income support system if it is to significantly discourage early retirement. It is observed in the Treasury report, Australia ’s Demographic Challenges, for example, that nearly 30% of ‘of 50 to 64 year olds receive income support’, that ‘[v]ery few who claim income support after the age of 50 will ever go off benefits’ and that ‘[w]e have one of the highest rates of growth in the number of disability pensioners among developed countries’.[89] Unfortunately implementing successful reforms in this area will be extremely difficult given both the imperative to ensure that those in need are adequately provided for and the possible political repercussions of such reforms.

More significant are the policies the Commonwealth government has put in place to assist older people with remaining in the workforce. To assist mature age job seekers with regaining entry into the work force, Job Network members have access to a Training Account through which they can undertake work related training. Further assistance is provided through the Transition to Work program. This program ‘offers a range of individual and flexible assistance to help parents, carers or mature age people aged 50 years and over who are looking for paid employment or planning to join or rejoin the workforce after an absence of two or more years’.[90] The primary objectives of the program include providing ‘preparatory assistance to an individual that builds self esteem and addresses confidence issues and improves the individual’s prospects of obtaining paid employment through assessment, skills training, support and advice on how to get into the job market’.[91] Despite the merits of this program, however, more could be done by the government in this area to facilitate career longevity for mature age workers.

6 The Feminist Perspective

Some have argued that we should not be worried about age discrimination in the workforce or strive to eradicate compulsory retirement since such practices create room for women to advance professionally.[92] This argument is unsound and logically inconsistent. Concern for women in the workplace should not form a basis for objecting to the elimination of age discrimination in how people are hired or fired.

Firstly, this argument ignores the fact that older women are harder hit and face even worse discrimination in the workforce than older men. The majority of Australia’s older population are women – in fact they account for 56% of people age 65 or older and 65% of Australians aged 85 or over.[93] On the whole mature age women have lower education levels and are less likely to be economically secure than men.[94] They are more likely to have intermittent work patterns dispersed with caring duties and high rates of participation in part time or causal work.[95] Women also have a longer life expectancy and can therefore be expected to be ‘retired’ for a longer period of time.[96]

What this means is that mature age women are more vulnerable to long term unemployment and that the consequences of age discrimination in the workplace are, on the whole, more severe for older women than for men. This has been borne out in a number of empirical studies. It was reported that in 2000, for example, 56% of Australian unemployed women over 55 were long-term unemployed compared to only 45.5% of unemployed men in the same age group and 28.3% of unemployed women in the 25-54 age group.[97] Similar figures exist for most OECD countries including the UK and USA.[98]

Secondly, this approach is philosophically unsound. If women are to be treated equally and with respect regardless of gender because of their own inherent worth and dignity, then the same should go for age. It is hypocritical to ask people to refrain from discriminating on the basis of sex but not age. Given these double standards it is not surprising that many young women reject such feminist ideology.

D A Normative Basis for Condemning Age Discrimination

Whilst educating people on the problems of age discrimination will be helpful and may result in a significant shift of attitudes and reduction in discriminatory practices, more is required. At the core of the age discrimination problem is a lack of respect for older people. If people are to be motivated to abide by the law and treat older workers with the respect they deserve, they need to perceive a certain moral worth in older people and believe that it is morally the right thing to do. In other words, compliance needs to be induced by founding it within a normative ethic.[99]

One normative approach capable of establishing a moral duty to treat older with respect and refrain from engaging in age discrimination is the natural law tradition.

1 First Principles of Natural Law: the Basic Goods

The most general (or first) principles of the moral law prescribe the things (goods) that are essential for human life. These goods constitute basic reasons for action or omission. This is because they are fundamental to human life and of intrinsic worth. They constitute complete and morally sufficient reasons for action because they are worth obtaining simply in and of themselves.

The basic goods are discoverable through reason because they shape man’s natural inclinations and may be identified when an accurate understanding of what is required for man to survive and flourish is obtained. Aquinas writes that ‘there is in man an inclination to good, according to the nature of his reason, which nature is proper to him: thus man has a natural inclination to know the truth about God and to live in society; and in this respect, whatever, pertains this inclination belongs to the natural law, for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination’ (emphasis added).[100]

It might be argued that because everyone has different views and people often act inconsistently, basic goods do not exist and cannot be identified; there are no goods that direct everyone’s natural inclinations in all places and at all times. This, however, misunderstands the propositions put forward by the natural law theorists.

Goods are not identified as basic because they shape at all times and in all places the motivations and inclinations of all people. Nor are they identified as basic because they are numerically the most common reasons for action. People often act in ways that are irrational and contrary to the requirements of human flourishing out of ignorance, laziness, selfishness or stupidity. The natural law distinguishes between the reasons of such people and the reasons of those who act in a perfectly rational manner and who align their practical reasoning in a way that respects and inclines towards the basic goods. It is the actions and reasons of the latter, and not the former, which illuminate the constituency of the basic goods and various aspects of human nature.

In support of this argument Thomas Aquinas cites, as an example, the ‘ancient Germans who failed to recognise theft as contrary to justice ... even though it is an explicit violation of natural law’.[101] Aquinas explains that the Germans failed to recognise that theft was wrong because ‘some men have a reason that has been distorted by passion, or by evil habits, or by bad natural relations’.[102] Although ‘natural law in its first common principles is the same among all men, both as to validity and recognition’, this distortion of reason means that ‘certain proper or derived norms [of natural law] ... may prove defective both as to validity because of certain particular impediments ... and also as to recognition’.[103]

In his text, Natural Law and Natural Rights, John Finnis identifies and describes a number of basic goods, including (but not restricted to):

life: this value corresponds to the drive for self preservation but includes more than just the physical for it signifies ‘every aspect of the vitality ... that puts a human being in good shape for self-determination’;[104]
practical reasonableness: that is, ‘the basic good in being able to bring one’s intelligence to bear effectively ... on the problems of choosing one’s actions and lifestyle and shaping one’s own character;[105]
knowledge: meaning finding out or truth;[106]
play: some activities, such as attending a play or ballet or giving a performance, may be enjoyed for their own sake with there being no other reason for engaging in the activity but for its own intrinsic value;[107]
friendship: this is the value of sociability which is realised, for example, when humans coexist in peace and harmony, and when people partake of friendship;[108]
religion: Finnis does not identify a particular set of beliefs as exclusively making up this basic good but provides for a plurality of different beliefs;[109] and
aesthetic experience: by this Finnis means that there are things of beauty (such as in nature) that may be valued simply for their beautiful form on the outside and for the inner experience of appreciation that they induce in an observer.[110]

Germain Grisez conceptualises the various categories of basic goods differently to that of Finnis in Natural Law and Natural Rights. Grisez distinguishes between substantive and reflexive basic goods.[111] While substantive basic goods provide reasons for choosing, ‘their instantiations do not themselves include choices’. Among such goods Grisez includes bodily integrity and health, knowledge of truth, aesthetic experience, play and skilled performance in work.

The reflexive goods are those that are achieved when people, without any ulterior reason, strive to ‘avoid or overcome various forms of person or interpersonal conflict – or, to put the matter positively, to foster various forms of harmony within themselves and between themselves and other’.[112] So, Grisez explains, the reflexive goods are ‘certain forms of harmony, whose instantiations necessarily include the choices by which one participates in them’.[113] They include living at peace with others, neighbourliness, friendship, inner consistency and marriage.

According to the natural law tradition as revised by Grisez, Finnis, Robert George and Joseph Boyle, the basic goods are open-ended and never fully realised. As a basic aspects of the human good they are not considered to be ‘like the definitive objectives of particular objects’ but are participated in.[114] This is what is meant by Finnis when he states that to regard ‘human life as a basic reason for action is to understand it as a good in which indefinitely many beings can participate in indefinitely many ways, going far beyond any goal or purpose which anyone could envisage and pursue, but making sense of indefinitely many purposes, and giving rational support to indefinitely many goals’.[115]

Finnis argues that it is a mistake to consider the achievement of the basic goods as a process or recipe akin to that of cooking a pancake, which may be merely a means to an end and which has only instrumental worth.[116] The intrinsic value of the basic goods means that the very achievement of one of these goods is valuable in and of itself. Furthermore, the basic goods are also considered to be aspects of the human persons who participate in them. Finnis claims that they are ‘instantiations in particular persons’. What Finnis means by this is that ‘the basic aspects of human well-being are ... not abstract forms. They are analytically distinguishable aspects of the well-being, actual or possible, of you and me – of flesh and blood individuals’.[117] That is, they are not extrinsic to the persons in whom they are instantiated, but are intrinsic aspects of those persons and their flourishing. A person’s life, as such, is an instantiation of the basic value of life. It is of intrinsic worth and an ultimate intelligible reason for action. As an ultimate reason, a person’s life is incommensurable with that of another.

2 The Basic Good of Practical Reasonableness

A central tenet to natural law theory is that one is to act in a way that respects the various basic goods. On this basis Aquinas states the first principle of natural law as being that good is to be done and evil avoided.[118] This means that basic goods (being of intrinsic worth) should not be used instrumentally as a means to some other end. The problem with subjugating a basic good is that one acts irrationally. Whenever a person performs an act or omission they do so in pursuit of some imagined or real good. That is, they see some good to be gained in pursuing a particular course of action. Remembering that the most basic principle of natural law theory is that ‘good is to be pursued and evil avoided’, deliberately choosing to contravene a basic good cannot be supported with recourse to reason given that such things are able to be inarticulately known as intrinsically good and worth pursuing (i.e. the basic goods are self-evidently good).

When one acts in a way that respects the basic good, he or she can be said to be practicably reasonable. The natural law tradition requires that people act and reason, at all times, in accordance with practical reasonableness. Practical reasonableness is ‘reasonableness in deciding, in adopting commitments, in choosing and executing projects, and in acting in general’.[119] While there is no one first principle or requirement of practical reasoning (there are many), of central concern is the protection and promotion of the conditions necessary for human flourishing and the requirement that people act rationally.

One first principle of practical reasonableness is that people should have a coherent plan of life. Natural law theorists state that it is ‘unreasonable to live merely moment to moment, following immediate cravings or just drifting’.[120] One must have a harmonious set of purposes, principles and orientations that they follow and which order their life. To be able to do this requires direction and control of impulses. [121] One must be able to undertake specific projects, redirect inclinations, reform habits, abandon old projects and adopt new initiatives.[122] This, however, requires the harmonization and ordering of all one’s deep commitments for which there is no simple recipe on account of the fact that the basic aspects of life are participated in and not merely obtained.[123]

Practical reasonableness also demands impartiality towards (a) basic goods and (b) human beings.[124] Since each basic good is incommensurable and fundamental to human flourishing, there is no objective hierarchy between the goods – basic goods should not, therefore, be considered as instrumental in the pursuit of another.[125] Unless discriminated between on the basis of a subjective scale of assessment (for example, according to one’s taste or time constraints etc) it is irrational to arbitrarily discount or devalue a basic good in one’s practical reasoning. In relation to (b) practical reasonableness requires that one’s reasoning be free from egotistical or group bias. Although reasonableness allows for self-preference in one’s practical reasoning, this is limited to the extent that it is necessary for one’s own participation in the basic goods. [126]

3 Why Age Discrimination is Problematic

Age discrimination involves acting against the interests of another at least in part because of his or her age. The selection of age as a criterion for such treatment is arbitrary and incompatible with the demands of practical reasonableness which holds that there is no objective hierarchy between persons and which requires impartiality in our behaviour towards others.[127] It is irrational to act against a basic good (something we can all inarticulately, and without the need for deduction, know to be good) and human beings instantiate the basic good of life.[128] Ageism, therefore, is morally unreasonable (irrational) and itself contrary to the basic good of practical reasonableness.

E Conclusion

With the implementation of the Age Act our anti-discrimination laws have been brought up to scratch and a much needed national prohibition against age discrimination and compulsory retirement has been introduced. In the past, however, laws against forced retirement and age discrimination in the workplace have been ineffective in eradicating these practices. For age discrimination to become a thing of the past, people need to be convinced that equal treatment of people regardless of age is the morally right thing to do. This will require both public awareness campaigns as well as the grounding of anti-discrimination laws within a normative ethic. In terms of the first, the government has undertaken, through HREOC, to implement education and public awareness measures on the content and importance of the Age Act. Whether age discrimination in how employers hire and fire is reduced will depend in part on how successful HREOC is in carrying out its role. As for the second, this paper has shown that a moral norm against age discrimination may be grounded within the natural law ethic and, as a result, that there is a moral duty to refrain from engaging in discriminatory behaviour.

BIBLIOGRAPHY

1 Articles/Books/Reports

Andrews, K, ‘A Changing Workplace’ (2001) National Strategy for an Ageing Australia: An Older Australia, Challenges and Opportunities for All <http://www.ageing.health.gov.au/ofoa/agepolicy/nsaa/nsaabk5 .htm> at 25 August 2004.

Aquinas, Summa Theologica, Ia. Iiae. Q94 Art 2.

Australian Bureau of Statistics, ‘Work - Not in the Labour Force: Retirement and Retirement Intentions’ (2000) Australian Social Trends 2000 <http://www.abs.gov.au/Ausstats/abs@.nsf/0/a2 1 3a7a76d0 1 f6bdca256a7 1001 88a6c?OpenDo cument> at 15 August 2004.

Australian Bureau of Statistics, Australian Social Trends 2004: Mature Age Workers (2004) <http://www.abs.gov.au/Ausstats/abs@.nsf/46d1bc47ac9d0c7bca256c470025ff87/3c 1b29bbc 2c1d573ca256e9e00288ddf!OpenDocument> at 10 August 2004.

Backman, L, et al., ‘Aging and Memory: Cognitive and Biological Perspectives (2001) in James Birren and Schiae (eds), Handbook of the Psychology of Aging, 349.

Bishop, B, National Strategy for an Ageing Australia: Employment for Mature Age Workers Issues Paper (1999) 19 <http://www.ageing.health.gov.au/ofoa/documents/pdf/employ.pdf> at 25 August 2004.

Costello, P, Intergenerational Report: 2002-2003 Budget Paper No. 5 (2002) <http://www.budget.gov.au/2002-03/bp5/html/index.html> at 31 August 2004.

Cross, D, and Louise, K, ‘New Age-Discrimination Legislation’ (2004) Allens Arthur Robinson <http://www.aar.com.au/pubs/wr/fowrjul04.htm> at 25 August 2004.

Encel, S, Age Can Work: The Case for Older Australians Staying in the Workforce (2003) Australian Council of Trade Unions and the Business Council of Australia <http://www.bca.com.au/upload/AGEDOCfinal22.04.03 .pdf> at 15 August 2004.

Fels, A, ‘Now is the Time to Raise the Retirement Age’ (26 December 2003) The Age <http://www.theage.com.au/articles/2003/1 2/25/107230862661 4.html?from=storyrhs> at 10 August 2004.

Finnis, J (1980) Natural Law and Natural Rights, Oxford University Press.

Finnis, J, ‘The Authority of Law in the Predicament of Contemporary Social Theory’ (1984) 1 Notre Dame Journal of Law, Ethics & Public Policy 115

Finnis, J, ‘Natural Law and Legal Reasoning’ (1992) in George (ed), Natural Law Theory, 135.

Fozard, J, and Gordon-Salant, S, ‘Changes in Vision and Hearing with Age’ (2001) in Birren and Schiae (eds), Handbook of the Psychology of Aging, 241.

Grisez, G, ‘Symposium on Natural Law and Human Fulfilment: Natural Law, God, Religion, and Human Fulfilment’ (2001) 46 American Journal of Jurisprudence 3

House of Representatives Standing Committee on Employment Education and Workplace Relations, Age Counts: An Inquiry into Issues Specific to Mature-Age Workers (2000) Australian Parliament <http://www.aph.gov.au/house/committee/edt/Owk/report/> at 15 August 2004

Human Rights and Equal Opportunity Commission, ‘Report of Inquiry into Complaints of Discrimination in Employment and Occupation: Redundancy Arrangements and Age Discrimination’ (1997)

<http://www.humanrights.gov.au//pdf/human_rights/redundancy_arrangments.pdf> at 20 August 2004.

Human Rights and Equal Opportunity Commission, ‘Report of Inquiry into Complaints of Discrimination in Employment and Occupation: Compulsory Age Retirement’ (1997) <http://www.humanrights.gov.au//pdf/human_rights/compulsory_retirement.pdf> at 20 August 2004.

Human Rights and Equal Opportunity Commission, Age Matters: A Discussion Paper on Age Discrimination (1999) <http://www.hreoc.gov.au/pdf/human_rights/age_report_2000.pdf> at 15 August 2004.

Human Rights and Equal Opportunity Commission, ‘Report of an Inquiry into a Complaint of Discrimination in Employment and Occupation Discrimination on the Ground of Age, Report No.11’ (2000) <http://www.humanrights.gov.au//human_rights/human_rights_reports/report-11 -apr.pdf> at 20 August 2004.

Human Rights and Equal Opportunity Commission (2001) ‘Functions and Powers’ <http://www.hreoc.gov.au/about_the_commission/functions/index.html> at 27 August 2004.

Ketcham, C, and Stelmach, G, ‘Age-Related Declines in Motor Control’ (2001) in Birren and Schiae (eds), Handbook of the Psychology of Aging, 313.

Laurent, C, ‘Time to Listen’ (1990) 86 (8) Nursing Times 20.

Lyon, P, and Pollard, D, ‘Perceptions of the Older Employee: Is anything Really Changing?’ (1997) 26 (4) Personnel Review 245.

Madden, D, ‘Speed and Timing of Behavioural Responses’ (2001) in Birren and Shiae (eds) Handbook of the Psychology of Aging, 288.

NSW Committee on Ageing, Too Young to Go: Mature Age Unemployment and Early Retirement in NSW (2001) <http://www.maca.nsw.gov.au/pdf/too_young_to_go.pdf> at 15 August 2004.

Peetz, D, ‘Retrenchment and Labour Market Disadvantage: The Role of Age, Job Tenure and Casual Employment’, in Reflections and New Directions: AIRAANZ Conference 2003, Volume 2: Non-Refereed Papers, Association of Industrial Relations Academics of Australia and New Zealand (Melbourne, February 2003).

Pickersgill, R, et al., Productivity of Mature and Older Workers: Employer’ Attitudes and Experiences, Monograph no 13 (1996) 9.

Senate Select Committee on Superannuation, Planning for Retirement (2003) Australian Parliament

<http://www.aph.gov.au/Senate/committee/superannuation_ctte/retirement/report/contents.ht m> at 15 August 2004.

Schaie, K, ‘Intellectual Development in Adulthood’ in Birren and Schiae, Handbook of the Psychology of Aging (1996) 296.

Schiae, K, ‘The Impact of Longitudinal Studies on Understanding Development from Young Adulthood to Old Age’ (2000) 24 (3) International Journal of Behavioural Development 257 at 261.

Spirduso, W, and MacRae, P, ‘Motor Performance and Aging’ in Birren and Schiae (eds), Handbook of the Psychology of Aging (1996) 183.

The Australian Employers Convention, Retirement in an Era of Ageing: The Cost Impact of the Early Displacement of People from Work (2001) <http://www.businessworkageing.org/downloads/RETIRE_part1.pdf> at 20 August 2004.

Treasury, A More Flexible and Adaptable Retirement Income System (2004) Commonwealth of Australia

<http://demographics.treasury.gov.au/content/_download/flexible_retirement_income_system /flexible_retirement_income_system.pdf> at 31 August 2004.

Treasury, Australia’s Demographic Challenges (2004) Commonwealth of Australia <http://demographics.treasury.gov.au/content/_download/australias_demographic_challenges/ australias_demographic_challenges.pdf> at 31 August 2004.

Tyler, T, Why People Obey the Law (1990) 107.

Victorian, South Australian and Western Australian Equal Opportunity Commissioners, Age Limits: Age-Related Discrimination in Employment Afecting Workers Over 45 (2001) Equal Opportunity Commission of South Australia

<http://www.eoc. sa.gov.au/public/agelimits.html> at 15 August 2004.

Warr, P, ‘Age and Job Performance’ in Snel and Cremer (eds), Work and Ageing: A European Perspective (1994).

Working for Ages (2002) ‘The Project’ <http://eoc.vic.gov.au/workingforages/theproject.htm> at 20 August 2004.

2 Case Law

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165. Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587. Cosma v Qantas Airways Ltd [2002] FCAFC 425.

Leonard v Youth Hostels Association of Australia [1995] EOC 92-763.

O'Callaghan v Loder (1983) 3 NSWLR 89.

Qantas Airways Ltd v Christie (1998) 193 CLR 280.

R v Equal Opportunity Board; Ex p Burns [1985] VicRp 31; [1985] VR 317.

Smith v Frankl [1991] EOC 92-262.

Stoker v Kellogg (Aust) Pty Ltd [1984] EOC 92-021 at 75,489.

Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186.

3 Legislation

Abolition of Compulsory Age Retirement (Statutory Oficeholders) Act 2001(Cth).

Age Discrimination Act 2004 (Cth).

Anti-Discrimination Act 1977 (NSW).

Anti-Discrimination Act 1992 (NT)

Anti-Discrimination Act 1998 (Tas).

Anti-Discrimination (Amendment) Act 1994 (NSW).

Industrial Relations Act 1998 (Cth).

Industrial Relations Reform Act 1993 (Cth). Public Service Act 1999 (Cth).

Racial Discrimination Act 1975. (Cth).

Sex Discrimination Act 1984 (Cth).

Workplace Relations Act 1996 (Cth).

4 Other Sources

Drake Management Consulting (1999) Age Discrimination is Alive and Well, Submission to the House of Representatives Standing Committee on Employment, Education & Workplace Relations Inquiry into Issues Specific to Workers over 45 years.

Second Reading Speech, Age Discrimination Bill 2003 (26 June 2003) House of Representatives Hansard, 17623.


[*] Lecturer, Deakin University Law School

[1] Mature age workers are defined by the Australian Bureau of Statistics as those between 45 and 65 years of age. See Australian Bureau of Statistics, Australian Social Trends 2004: Mature Age Workers (2004) <http://www.abs.gov.au/Ausstats/abs@.nsf/46d1bc47ac9d0c7bca256c470025ff87/3c1b29bbc2c1d573ca256e9e00288ddf!OpenDocument> at 10 August 2004.

[2] This legislation has since been repealed.

[3] Drake Management Consulting (1999) Age Discrimination is Alive and Well, Submission to the House of Representatives Standing Committee on Employment, Education & Workplace Relations Inquiry into Issues Specific to Workers over 45 years.

[4] Australian Bureau of Statistics, above n 1.

[5] C Laurent, ‘Time to Listen’ (1990) 86 (8) Nursing Times 20.

[6] Victorian, South Australian and Western Australian Equal Opportunity Commissioners, Age Limits: Age-Related Discrimination in Employment Afecting Workers Over 45 (2001) Equal Opportunity Commission of South Australia <http://www.eoc.sa.gov.au/public/agelimits.html> at 15 August 2004.

[7] See Tom Tyler, Why People Obey the Law (1990) 107, 175-6.

[8] The Hon. Daryl Williams, ‘Second Reading Speech for the Age Discrimination Bill 2003(26 June 2003) House of Representatives Hansard, 17623.

[9] Ibid.

[10] Section 15(2) Age Discrimination Act 2004 (Cth)

[11] Leonard v Youth Hostels Association of Australia [1995] EOC 92-763; and O'Callaghan v Loder (1983) 3 NSWLR 89 per Mathews DCJ at 104-105.

[12] Leonard v Youth Hostels Association of Australia; R v Equal Opportunity Board; Ex p Burns [1985] VicRp 31; [1985] VR 317 at 323; and Stoker v Kellogg (Aust) Pty Ltd [1984] EOC 92-02 1 at 75,489.

[13] Similar criteria are also provided by sections 19-22 and 24 of the Age Discrimination Act 2004 (Cth)

[14] (1998) 193 CLR 280; 152 ALR 365.

[15] Ibid. See Gaudron J at [36], Gummow J at [114], Kirby J at [164] and McHugh J at [74].

[16] Ibid. See paragraph [36].

[17] Ibid. See paragraph [1].

[18] Ibid. See Brennan J at [1], Gaudron J at [37], and McHugh J at [73].

[19] [2002] FCAFC 425.

[20] See, for example, David Cross and Louise Keats, ‘New age-discrimination legislation’ (2004) Allens Arthur Robinson <http://www.aar.com.au/pubs/wr/fowrjul04.htm> at 25 August 2004.

[21] Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165; Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587 and Smith v Frankl [1991] EOC 92-262.

[22] Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186 at 226.

[23] See S Encel, Age Can Work: The Case for Older Australians Staying in the Workforce (2003) Australian Council of Trade Unions and the Business Council of Australia <http://www.bca.com.au/upload/AGEDOCfinal22.04.03.pdf> at 15 August 2004; House of Representatives Standing Committee on Employment Education and Workplace Relations, Age Counts: An Inquiry into Issues Specific to Mature-Age Workers (2000) Australian Parliament <http://www.aph.gov.au/house/committee/edt/Owk/report/> at 15 August 2004; Human Rights and Equal Opportunity Commission, Age Matters: A Discussion Paper on Age Discrimination (1999) <http://www.hreoc.gov.au/pdf/human_rights/age_report_2000.pdf> at 15 August 2004; NSW Committee on Ageing, Too Young to Go: Mature Age Unemployment and Early Retirement in NSW (2001) <http://www.maca.nsw.gov.au/pdf/too_young_to_go.pdf> at 15 August 2004; and Senate Select Committee on Superannuation, Planning for Retirement (2003) Australian Parliament <http://www.aph.gov.au/Senate/committee/superannuation_ctte/retirement/report/contents.htm> at 15 August 2004.

[24] Drake Management Consulting, above n3.

[25] D Peetz, ‘Retrenchment and Labour Market Disadvantage: The Role of Age, Job Tenure and Casual Employment’, in Reflections and New Directions: AIRAANZ Conference 2003, Volume 2: Non-Refereed Papers, Association of Industrial Relations Academics of Australia and New Zealand (Melbourne, February 2003) cited in Senate Select Committee on Superannuation, above n23.

[26] Australian Bureau of Statistics, above n1.

[27] Encel, above n23.

[28] House of Representatives Standing Committee on Employment Education and Workplace Relations, above n23.

[29] NSW Committee on Ageing, above n23, 35.

[30] Ibid 38.

[31] Australian Bureau of Statistics, ‘Work - Not in the Labour Force: Retirement and Retirement Intentions’ (2000) Australian Social Trends 2000 <http://www.abs.gov.au/Ausstats/abs@.nsf/0/a213a7a76d01f6bdca256a7100188a6c?OpenDocument> at 15 August 2004.

[32] See also Human Rights and Equal Opportunity Commission, ‘Report of Inquiry into Complaints of Discrimination in Employment and Occupation: Redundancy Arrangements and Age Discrimination’ (1997) <http://www.humanrights.gov.au//pdf/human_rights/redundancy_arrangments.pdf> at 20 August 2004; Human Rights and Equal Opportunity Commission, ‘Report of Inquiry into Complaints of Discrimination in Employment and Occupation: Compulsory Age Retirement’ (1997) <http://www.humanrights.gov.au//pdf/human_rights/compulsory_retirement.pdf> at 20 August 2004; and Human Rights and Equal Opportunity Commission, ‘Report of an Inquiry into a Complaint of Discrimination in Employment and Occupation Discrimination on the Ground of Age, Report No.11’ (2000) <http://www.humanrights.gov.au//human_rights/human_rights_reports/report-11-apr.pdf> at 20 August 2004.

[33] Cited in House of Representatives Standing Committee on Employment Education and Workplace Relations, above n23.

[34] Cited in Alan Fels, ‘Now is the Time to Raise the Retirement Age’ (26 December 2003) The Age <http://www.theage.com.au/articles/2003/12/25/1072308626614.html?from=storyrhs> at 10 August 2004.

[35] Ibid.

[36] Encel, above n23, 3.

[37] Australian Bureau of Statistics, above n1.

[38] Ibid.

[39] Cited in Encel, above n23, 17.

[40] Cited in NSW Committee on Ageing, above n23, 35.

[41] Victorian, South Australian and Western Australian Equal Opportunity Commissioners, above n6.

[42] Ibid.

[43] Ibid.

[44] Human Rights and Equal Opportunity Commission, above n23, 24.

[45] Ibid.

[46] The Australian Employers Convention, Retirement in an Era of Ageing: The Cost Impact of the Early Displacement of People from Work (2001) <http://www.businessworkageing.org/downloads/RETIRE_part1.pdf> at 20 August 2004.

[47] Ibid.

[48] Encel, above n23, 7.

[49] Ibid.

[50] Ibid 33.

[51] Ibid.

[52] Ibid 18.

[53] Ibid 1.

[54] Research indicates that not all individuals decline in ability at the same rate, age or in the same way. Motor performance variability, for example, increases with each decade such that any description of ‘average’ behaviour for a specific age group grows less and less accurate for an individual’s performance as the age of the group increases. It has also been found that with regard to productivity or ability, the variations within an age group far exceed the average differences between age groups. See K Warner Schaie ‘Intellectual Development in Adulthood’ in Birren and Schiae, Handbook of the Psychology of Aging (1996) 296; K Warner Schiae, ‘The Impact of Longitudinal Studies on Understanding Development from Young Adulthood to Old Age’ (2000) 24 (3) International Journal of Behavioural Development 257 at 261; Waneen W Spirduso and Priscilla Gilliam MacRae, ‘Motor Performance and Aging’ in Birren and Schiae (eds), Handbook of the Psychology of Aging (1996) 183; and P Warr, ‘Age and Job Performance’ in Snel and Cremer (eds), Work and Ageing: A European Perspective (1994).

[55] Phil Lyon and David Pollard, ‘Perceptions of the Older Employee: Is anything Really Changing?’ (1997) 26 (4) Personnel Review 245 at 248. See also Human Rights and Equal Opportunity Commission above n23, 64; and Richard Pickersgill, Chris Briggs, Jim Kitay, Shannon O’Keeffe and Alban Gillezeau, Productivity of Mature and Older Workers: Employer’ Attitudes and Experiences, Monograph no 13 (1996) 9.

[56] Lyon, above n55, 248.

[57] Schaie (1996), above n54.

[58] Ibid.

[59] James L Fozard and Sandra Gordon-Salant ‘Changes in Vision and Hearing with Age’ (2001) in Birren and Schiae (eds), Handbook of the Psychology of Aging, 241.

[60] Lars Backman, Brent J Small and Ake Wahlin ‘Aging and Memory: Cognitive and Biological Perspectives (2001) in James Birren and Schiae (eds), Handbook of the Psychology of Aging, 349; and Pickersgill, above n55, 11.

[61] David J Madden, ‘Speed and Timing of Behavioural Responses’ (2001) in Birren and Shiae (eds) Handbook of the Psychology of Aging, 288 and Senate Select Committee on Superannuation, above n23, 33.

[62] Pickersgill, above n55, 12 and Caroline J Ketcham and George E Stelmach ‘Age-Related Declines in Motor Control’ (2001) in Birren and Schiae (eds), Handbook of the Psychology of Aging, 313. In Warr, above n54, no significant overall difference between the job performance of older and younger workers was found.

[63] Pickersgill, above n55, 12.

[64] Senate Select Committee on Superannuation, above n23, 34.

[65] Ibid.

[66] NSW Committee on Ageing, above n23, 46.

[67] The Hon. Bronwyn Bishop, National Strategy for an Ageing Australia: Employment for Mature Age Workers Issues Paper (1999) 19 <http://www.ageing.health.gov.au/ofoa/documents/pdf/employ.pdf> at 25 August 2004.

[68] P Gallagher and B Bacon, Early Retirees – Trends and Their Use of Superannuation Benefits and Social Security Payments (1995) cited in The Australian Employers Convention, above n46.

[69] Bishop, above n67, 35.

[70] R Dutta, J E Schulenberg and T J Lair, ‘The Effect of Job Characteristics on Cognitive Abilities and Intellectual Flexibility’ (1986) cited in Schaie (1996) above n54, 300.

[71] The Australian Employers Convention, above n46.

[72] Ibid.

[73] Treasury, Australia’s Demographic Challenges (2004) Commonwealth of Australia <http://demographics.treasury.gov.au/content/_download/australias_demographic_challenges/australias_demographic_challenges.pdf> at 31 August 2004.

[74] Ibid.

[75] The Hon. Peter Costello, Intergenerational Report: 2002-2003 Budget Paper No. 5 (2002) <http://www.budget.gov.au/2002-03/bp5/html/index.html> at 31 August 2004.

[76] Cited in Encel, above n23, 29.

[77] The Hon Kevin Andrews, ‘A Changing Workplace’ (2001) National Strategy for an Ageing Australia: An Older Australia, Challenges and Opportunities for All <http://www.ageing.health.gov.au/ofoa/agepolicy/nsaa/nsaabk5.htm> at 25 August 2004.

[78] Human Rights and Equal Opportunity Commission (2001) ‘Functions and Powers’ <http://www.hreoc.gov.au/about_the_commission/functions/index.html> at 27 August 2004.

[79] Section 53 of the Age Discrimination Act 2004.

[80] Working for Ages (2002) ‘The Project’ <http://eoc.vic.gov.au/workingforages/theproject.htm> at 20 August 2004.

[81] Treasury, above n73; and Treasury, A More Flexible and Adaptable Retirement Income System (2004) Commonwealth of Australia <http://demographics.treasury.gov.au/content/_download/flexible_retirement_income_system/flexible_retirement_income_system.pdf> at 31 August 2004.

[82] Treasury, above n73.

[83] Ibid.

[84] Treasury, above n8 1.

[85] Ibid.

[86] Ibid.

[87] Ibid.

[88] Ibid.

[89] Treasury, above n73.

[90] Ibid.

[91] Ibid.

[92] See, for example, Human Rights and Equal Opportunity Commission, above n23, 30.

[93] Ibid.

[94] Bishop, above n67, 15.

[95] Ibid.

[96] Ibid.

[97] Encel, above n23, 12.

[98] Ibid.

[99] Tyler, above n7.

[100] Aquinas, Summa Theologica, Ia. Iiae. Q94 Art 2. 101 Ibid.

[102] Ibid.

[103] Ibid.

[104] John Finnis (1980) Natural Law and Natural Rights, 86.

[105] Ibid 188.

[106] Ibid 61.

[107] Ibid 87.

[108] Ibid 88.

[109] Ibid 90.

[110] Ibid 88.

[111] Germain Grisez, ‘Symposium on Natural Law and Human Fulfilment: Natural Law, God, Religion, and Human Fulfilment’ (2001) 46 American Journal of Jurisprudence 3, 7.

[112] Ibid.

[113] Ibid.

[114] Ibid 104

[115] John Finnis, ‘Natural Law and Legal Reasoning’ (1992) in George (ed), Natural Law Theory, 135.

[116] John Finnis, ‘The Authority of Law in the Predicament of Contemporary Social Theory’ (1984) 1 Notre Dame Journal of Law, Ethics & Public Policy 115 at 121.

[117] Ibid.

[118] Aquinas, above n100.

[119] Ibid, 12.

[120] Finnis, above n104, 104.

[121] Ibid.

[122] Ibid.

[123] Ibid.

[124] Ibid, 105.

[125] Ibid.

[126] Ibid 106.

[127] Ibid 105.

[128] Ibid 106.


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