Pod Rights Transcript

20. The Grey Areas: Age Barriers to Work inquiry

Graeme Innes: Hello, and welcome to Pod Rights, a series of podcasts from the Australian Human Rights Commission.  I'm Graeme Innes, the Disability Discrimination Commissioner.

One of the arguments for allowing more people to migrate to Australia is that there is a skills shortage that we're alleged to have in our workforce. Yet, for many people - older Australians, people with disability, just to name two groups - this large pool of jobs doesn't seem to translate to wages going into their bank accounts. 

This is an area about which the commission has been concerned for some years, and recently my colleague, Age Discrimination Commissioner Susan Ryan has done some further work in this area, and that's what we're going to talk about on Pod Rights this week.  So, welcome back, Susan.

Susan Ryan: Hi Graeme.

Graeme Innes: Susan, as I said in the speech which I gave to the Council on the Aging in Western Australia just recently, which we featured on Pod Rights a couple of weeks ago, employment is a key area when it comes to age discrimination, isn't it?  Can  you tell us why that is, and what some of the biggest issues are in relation to employment?

Susan Ryan: Well, yes I would say employment discrimination is the key discrimination area for older people, and I say that because all the evidence is there's a great deal of it, from the ABS statistics to our own complaints - employment discrimination complaints that we receive here at the commission.  We see the same picture; there is a lot of age based discrimination, which results in people being forced out of their employment, possibly in their 50's - even earlier, sometimes.

Now, why that's my main target for action, is that well, you just think of what happens to someone who loses their job say at 52; they find it very, very difficult to get re-hired.  They might spend a couple of years applying for jobs.  Nobody wants them.  They can't get a straight answer often from the recruiting firms, or from the employers.  They're just told oh, we're looking for someone energetic and dynamic, or you're over-qualified.  They get all these put-off things, but what's that person to do?

They can't draw down their superannuation, even if they've got much, and of course, they're years off being eligible for the age pension.  So the only thing they can do is apply for Newstart, and I think we all understand Newstart is a very, very low payment, currently under review by a senate committee, and for older people, they're not just unemployed for a few weeks, like a younger person might be - they can be unemployed for years.  So any savings they have, they use up.

The other thing is that the job support programmes that go with Newstart are not designed for the older worker.  They're designed for people with other employment problems.  So the whole situation is very dire, and many people become ill.  They become depressed and anxious.  They get serious health problems and may have to end up on a disability pension.

Graeme Innes: This is such a parallel with the disability field, Susan.  I find this fascinating, because it's exactly the same experience that people with a disability have, and yet both for older Australians and Australians with a disability, there's a great pool of experience there that employers could be using, isn't there?

Susan Ryan: Absolutely, and in your opening remarks you referred to the claim for more skill migration that employers large and small are constantly making.  Now, look we all understand that skilled migration is an important part of our economy, but a recent research project by national seniors discovered that there are about two million people over 55 who are well, who would be interested in working, but who cannot find work.  Now that's a huge number.  That's a huge talent pool just to neglect.

Also, as the more, I guess strategic employers are coming to understand, experience counts for a lot.  If you've got somebody who knows your firm, who's been a very good worker over a number of years, why waste all that experience, not to mention loyalty, by giving someone a package at 52, and then you've got to train someone in their 30s all over again?  So we're actually wasting that talent as well of course, creating huge hardship for the individuals concerned.

Graeme Innes: I don't get that, because I know I'm a better worker now than I was 20 or 30 years ago, and I think that's probably true of most of us.  I just don't get why employers don't want to take advantage of that experience.

Susan Ryan: Look, I agree with what you said, and I think most people would say oh yes, at 50 you know a lot more than you did at 20, and considerably more than you did at 40, and you know how to pace yourself, you know how to manage your work programme, you're probably better at work life balance than you were when you were a young worker, and I think that's the general experience.  Now, why don't employers get - look, it's a very deep seated prejudice. 

In our whole society really, there is a deep seated prejudice about older people, and a deep seated negative stereotype about what older people can do.  For example, a lot of employers think that older workers will have more accidents and be off work more.  The evidence we've got is to the contrary - that in fact, older workers have fewer sick days, they are off work less.  We are looking for more evidence of course, because we believe the evidence will build up our case to stop this discrimination, but in fact it's a firmly held view by employers that oh, if you hire someone in your 50s they'll be off sick a lot, whereas that's not the case.

Graeme Innes: That's just not the case, yeah.

Susan Ryan: So we're dealing really with prejudice here, and not with facts.

Graeme Innes: Well, Susan you and other organisations are looking to do something about this, and earlier this year you were appointed as a part time commissioner to the Australian Law Reform  Commission, to work on their grey areas - age barriers to work inquiry.  Can you tell us about the inquiry?

Susan Ryan: Yes.  That inquiry came about as a reference from the Australian Attorney General, and the terms of reference are that the inquiry is to look at all commonwealth policies and laws that have the effect of creating barriers for older people to continue participating in the paid workforce or other valuable work - other productive work.

The Attorney made that reference to the Australian Law Reform Commission because like all other MPs, I think the Attorney is very well that there are a lot of old fashioned policies and rules in place, including in the Commonwealth that have the opposite effect.  The government of the day, and any government says we want people to work longer.  There are so many benefits if they do.  We want them to work longer, and yet we're presiding over rules and policies that stop them from doing it.

So it's really an attempt to dig out all of those age discriminatory practices that the Commonwealth is directly responsible for, and then to recommend reforms in these areas.

Graeme Innes: Well that's a great initiative, because that will reduce the challenge.  What does your work involve, being a part time commissioner in that inquiry?

Susan Ryan: Well, I've been involved in meetings with the Law Reform Commission from the outset.  First of all we had a lot of discussion and consideration as to what would go into an issues paper, which goes out to the general public as well as employers and everybody else - sector groups, to say that we think these are the issues, and we covered superannuation, taxation, migration, social security payments, occupational health and safety - we covered all those areas.
Then, there were a lot of consultations.  The commission went round the countryside and had face to face consultations with people that are interested in talking. I did some of those - not all. Then, we looked at the results of what we've got and we developed what we've called a discussion paper, and that's recently gone out for more public consultation, and in that we've come to down to, I think it's about 32 proposals that we're not firmly recommending at this stage, but we're putting out saying well, what about this proposal?  Would this improve the situation? 

And, we're looking again for responses, and I'll be involved in further consultation meetings with the public.  Then, we'll sit down and draw up the final report and send that off to the Attorney General, and I have to say this work's very helpful to me in my main work as Age Discrimination Commissioner because it's focussing on the same problems, but probably in a more detailed way and of course, the Law Reform Commission has a lot of very high level legal expertise that they're bringing to bear on things like superannuation law, tax law and so forth, which helps me do my day job if you like, better.

Graeme Innes: Of course.  What led to this inquiry, Susan?  Was it exactly what you said earlier - that is, that the government realised that whilst they want older Australians to  have the opportunity to continue to work, there were regulations and policies that actually worked against that objective?

Susan Ryan: Look, they did come to that realisation, Graeme and I think a lot of the credit has to go to the NGOs that focus on seniors - national seniors, and Council for the Again, of whom you were recently a guest speaker.  Even before - I think quite awhile before I was appointed last year, they had said look, we really need to have a look at what the Commonwealth's doing in its own backyard, and so many laws and regulations of course are for the Commonwealth to change. 

A lot of discrimination of course happens out in the corporate sector, and it's not so easily amended by a regulation  or an act of parliament, but there is a lot that is, and I think there were a lot of representations to the government and to the Attorney in particular, and the Attorney recognised that this was a very important piece of work to do, because as we've agreed, the government really wants to remove those barriers because it's greatly in the interest of the public purse for a start, if people can stay in employment  - not to mention, the people themselves.

Graeme Innes: Well, good on the community sector, and it's great that the government is hearing that message, and it's fascinating Susan, because you outlined the further paralleling of this issue with the disability sector, because there's been real lobbying there, to address some of the Commonwealth practices, and I've certainly been one to say over the past few years, that the Commonwealth can't go and push private sector employers to employ people with disability if it's not doing a better job itself. 

Susan Ryan: Exactly.  I mean, I come from an era where we used to think the Commonwealth as an employer should have been a model employer.  I know that idea goes in and out of fashion generally.  It stayed in fashion with me, I have to say.  I think the Commonwealth is a huge employer.  There is so many different kinds of jobs, you know when you look at the Commonwealth - the public service, all the Commonwealth agencies and so on, and all of those people are paid for by taxpayer's money. 

So I think there's a very, very strong case to say that the Commonwealth as the employer should be leading the way on employment of people with disability, on removing barriers against people with - who are older and so forth, and I think you and I are at one on that.

Graeme Innes: Now of course, as you said, this also helps you with your day job, doesn't it, because you've been consulting with stake holder groups, with businesses, with older people themselves, since you've become Age Discrimination Commissioner.  What are some of the personal stories that people have been telling you about employment?  You outlined at the beginning, the things that happen to people, but have you heard some personal stories which really reinforce those concerns?

Susan Ryan: Oh yes.  Yes, I mean I think of one person I know quite well, and he came to me very - soon after I was appointed, and he's a person with legal qualifications and with a very good track record in company law.  Now, he lost his job in a big downsizing.  You know, these firms are always doing it. He took a long to time to get another one because he's an older person, with an unblemished record.  He was just about to start with that one, and then it got taken over. 

I mean, I shouldn't laugh, but it's sort of the bad luck of the thing, and he got a little bit of contract work, but every time he applied or was approached by an executive search firm, he'd go ahead and then he'd be told things like you're over-qualified, or your particular legal qualifications don't really fit with our kind of business, and look, I mean that - well, I'm calling him a young man too.  Compared with me, he is, but that man has undergone so much stress and strain. 

His wife's been fantastically supportive, but it's a huge burden to have someone go from a professional, well paid job that he loved and did well, to this is now about three or four years of knock-backs, and as far as I know, he's still looking, and I could tell you other stories, but I guess I find that one particularly distressing in that I know the fellow and know what a good worker he is, and we get many in the blue collar area too.

Graeme Innes: Sure, and that synthesises the issues, doesn't it?

Susan Ryan: It does, and I point out to there too, that the recruiters or the executive search firms - they need to look again at what they're doing, and I do talk to them, because they often assume that the employer only wants really young people - under 40s.  Now, it is true that sometimes employers say don't send me anyone over 40, but I mean we're trying to break down that attitude on the employer's side, but also the recruiters, I believe often think well I'll place this person more easily if I send a young one, and then I get my fee - if I don't place the person, I don't get a fee. 

So there's a bit of pressure on them, but look we're talking to the nation body that represents the recruiting industry, and they have a code of conduct and we're talking to them about strengthening that and doing an education campaign among their members, because if employers and recruiters could judge the candidate by his or her capacity to do the job, then they would be placing more people in employment.  So their own business would be benefiting further.

Graeme Innes: Sure.  Susan, you've talked about all the positives of employing older Australians, and there are many of those.  Can you see any situation where any form of discrimination should be allowed in relation to older people and work?

Susan Ryan: Oh look, in principle I can't see a case for age discrimination.  What I can see is that in some areas capacity tests are appropriate, because there are very specific requirements.  Look, airline pilots are very well known one.  I mean, airline pilots have a younger force retirement age, and that goes to things like their eyes, their hearing - all of the other very specific skills.  So you can see why in certain occupations testing is justified, but again, if a person passes the test, they should be able to continue, regardless of age.

The building and construction area is another area.  You don't see many older building workers because the physical demands of their job are very great, and sometimes a guy can be fit and healthy, but he simply cannot do the extremely demanding work of working in the building industry, which isn't to say he can't have another job.  It's just that the particular job - there are physical limits, and I can understand that, but I still think they should be related to your capacity to do the job, rather than how many birthdays you've had.

Graeme Innes: Yeah, as it is with disability as well.  You know, if you can carry out the inherit requirements of the job then you shouldn't be treated less favourably on the basis of...

Susan Ryan: Absolutely, and we've still got to make a big break -  I know you've made many breakthrough's Graeme, but I think there are a few more we need to tackle.

Graeme Innes: Oh there's certainly no doubt about that Susan, and employment for you and for me is one of the big ones.  I mean, I can replicate what you're saying; half of the disability discrimination complaints are about employment of people with disabilities.  So we're not there on that one.  Where do you hope your work on this inquiry - the Law Reform Commission's inquiry will take us as a community?  What do you hope it will  mean for older people?

Susan Ryan: Well, I hope over the next couple of years we will see first of all, some changes in laws and regulations that are actually putting a barrier in people's way, and I hope we will see more leadership in the private sector.  We have some now.  We have some CEOs who understand that it makes good business sense to employ the people who are capable of doing the job rather than worrying about their birthdays.

I hope that it will catch on - that we will see more and more employers - smaller employers who of course need more support, because they haven't got the big human resources departments and so on, to assist them - that we'll see more and more older people in regular employment, and as that happens, then having the older worker as part of your team becomes a part of the norm. 

So that will break down the prejudices, as it does with disability.  If a person with disability is a part of a team in a workforce, well the rest of the team get used to work.  You know, they don't think it's an exception thing.  They might have particular admiration for the person in the way they go about their job, but they don't see it as something that shouldn't be happening and that we need to be daunted by. 

So I would like to see - well, people always ask me to put numbers on things, and I would say that instead of in people's mind, you know, 60 being the age at which you really start to move out of the workforce - that's if you're not sacked or given a redundancy - I would like to see that much more like 70, because I do think looking at health statistics, most people are still pretty well, and mentally alert and everything, at least - well, probably beyond 70, but at least, let's get that - close that ten year gap.  That's a sort of a personal target I've got.

Graeme Innes: No, well it's a good - and it's a good target to have.  Well, thanks Susan - an important area where many potential employees are missing out, and many employers are disadvantaged as a result.  So thanks for talking to me about it.

Susan Ryan: Thanks Graeme.

Graeme Innes: And thanks to all of you for listening to Pod Rights.  Remember, this podcast is for you.   So if you have a suggestion of someone with whom I should talk, or a comment on the Podcast, please email me at podrights@humanrights.govt.au, or find me and message me on Facebook or Twitter.  Just search for Graeme Innes.  G.R.A.E.M.E  I.N.N.E.S  Also, if you want to engage more on human rights issues, have a look at tellmesomethingidontknow.gov.au - our something in common project where you can read fascinating human rights facts and stories, participate in polls, add your own content and find out what you can do to advance human rights issues in Australia.

Talking about fascinating stories, I should just mention Susan, your age positive website, and there's some fascinating stories on there as well, and that's part of the commissions website.  So if you've got your own story or the story of a person that you know, you need to put it in 300 words with a photo, and email it to age.positive@humanrights.gov.au, or you can go to the age positive page on the website, which is www.humanrights.gov.au/age-positive, and there's a place there to put the story up, and keep you pod catchers ready for the next Pod Rights in the series, because human rights are for everyone, everywhere, every day.  I'm Graeme Innes.  Goodbye for now.

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