I welcome the opportunity to have this discussion with you today on the topic of age discrimination, a waste of human resources.

As HR professionals, you are key to stopping this waste. You are ideally placed to bring about change strategies to stem that waste and create a productive culture in relation to the millions of Australians who are kept out of work because they are considered “too old”.

I hope we can work together on this objective, crucial as it is for individuals suffering from this awful prejudice, and vital also to expanding the skills and talent pools available for business growth.

My core role as Age Discrimination Commissioner at the Australian Human Rights Commission is to protect individuals in our society against age discrimination. Along with my five fellow Commissioners, I have a general responsibility to improve protection of fundamental human rights for everyone.

Our motto at the Commission is: human rights for everyone, everywhere, every day. The special focus for me is to assist everyone to exercise the right to be free of age discrimination.

The Age Discrimination Act, ADA, 2004 is the main legal instrument available to combat illegal age discrimination in so far as it affects individuals.

My job is to inform the community about the Act and inform individuals who have experienced such discrimination about the options and the processes of bringing a complaint to the Commission, should they wish to do so.

As well as promoting the ADA, I use all kinds of public discussion, the media, community education, and advocacy with decision makers in government and business to challenge and try to reduce age prejudice generally.

Age discrimination means treating someone less favourably just because of their age.

In terms of the ADA, the areas covered include employment, training, education, finance, goods and services and other commonwealth laws.

The purpose of the ADA when introduced in 2004 was to tackle behaviour that treats people less favourably because of their age. In particular the law was framed to deal with the increasing age discrimination in employment, a practice that leads to able and willing workers being pushed out of paid work far sooner than they are ready, without economic security and deprived of social purpose.

I expect that in this audience you are aware of how this happens, but perhaps not aware of how widespread it is, and how, amongst other negative effects, the practice of age discrimination puts Australian business in a less competitive global position.

In 2008, Australia ranked 13th out of the 34 OECD countries in a study that measured labour force participation rates in the over 55s.

National Seniors Australia have reported that in 2009, nearly two million older Australians were willing to work, could be encouraged to work, or were unemployed and looking for work.

One out of three unemployed people aged between 55 and 64 years are long-term unemployed. This long-term rate is more than double the rate for younger age groups. In September 2009, the average number of weeks a 15-19 year old was unemployed for was 30.5 weeks, compared with 77.5 weeks for someone aged 55 years and over.

Research conducted by the Brotherhood of St Laurence found that for many older people, unemployment or early retirement is not a personal choice. One out of five people aged between 45 and 64 in 2008 were not working because they had either been forced out, confined by disabilities or by carer duties.

Indeed, the research found that over half of all 60-64 year old Australians were not in jobs. This is before the ‘standard’ retirement age of 65 for males.

Current eligibility for the age pension is 65 years, but that is going up to 67 years by 2023.

What happens to these people who are unemployed between the years of 45 and 65? Not much. People who lose their jobs in this age group have huge difficulties finding another one, and the stats show that many don’t.

What do they live on? Personal savings, super if they have any and can access it? Newstart?

This picture explains the extent of poverty and homelessness, both, growing among older Australians.

So many people want to work longer and need to work longer– what is stopping them? Age discrimination.

It appears we have a serious disjunction between the policy of raising the pension age, the needs of the economy and the persistence of age discrimination in the workforce.

The Commission’s complaint statistics show older workers being pushed out of the labour market, well before the current age pension age, leaving a growing gap as we move towards 67, of workers facing years of unemployment before they can qualify for this basic income support.

For the period 1 July 2011 to 31 October 2011 complaints lodged about age discrimination increased by 44% compared to the previous reporting year and enquiries about discrimination on the basis of being too old were up 78%. The majority of enquiries received about age discrimination related to employment, 66%.

According to 2010 ABS data, one in five older Australians aged 55 years or older, who were actively looking for more hours claimed that their age was a major preventative factor, explaining that they were considered “too old” by employers.

For unemployed people aged 45 years and over the main difficulty in finding work (accounting for 18 per cent of cases) was reported as being “considered too old by employers”.

Recent research from the Financial Services Council provides an instructive snapshot of the experiences of discrimination against older workers, from the perspective both of employees and employers. Of the 500 older workers surveyed, almost three in ten report some form of discrimination, the most common being made redundant or laid off before others. This view was backed up by the responses from employers, who noted that this was by far the most common form of discrimination they observed. Also highlighted by the mature age workers were a lack of training opportunities, verbal abuse and inflexibility towards health and physical needs.

Adding to these problems, age bars still exist in some relevant laws and policies. While the concept of the ‘mandatory retirement age’ was mostly abolished in Australia with the introduction of the Age Discrimination Act in 2004, aspects continue. A structural lag allows the continued application of age bars in some laws and policies that fall outside the protections of the Age Discrimination Act. These bars act as a de facto ‘retirement age’.

For example:

• Workers compensation – most workers compensation schemes contain an age bar, usually 65, where income replacement payments cease or are limited. While workers are covered for medical expenses and costs under the workers compensation system, if injured at work after the age of 65, most workers lacking independent income would be forced to retire;
• Income protection insurance– income protection insurance can provide payment of up to 75 per cent of income during a period of illness or incapacity. This insurance can cover those who are not covered under workers compensation schemes, such as self-employed, including tradespeople.However, most income protection insurance ceases at 65 years.
• Superannuation guarantee age limit –the payment of the superannuation guarantee is currently subject to an age limit for workers over the age of 70 years. In September 2011, in a welcome move, the Australian government delivered a long overdue equity measure by introducing a bill into parliament to abolish this age limit. This measure will come into effect on 1^st July 2013.

The Financial Services Council research found the experience and incidence of discrimination against older workers to vary greatly between sectors. Employers from the resources sector acknowledged they were struggling to retrain and recruit older workers. In government, especially at local and state levels, respondents cited statistics to back their claims that discrimination is a “non-issue” and also highlighted entrenched flexibility practices as a factor in this success.

I am happy to report I know of several future focused and successful employers who are right now moving away from the old stereotypes.

They are finding ways of using the talents and valuable qualities of employees regardless of age.

The result of these new approaches is that they are keeping their current older workers longer and even hiring older workers.

This approach is working, for the business as well as for the individuals.

What is this new approach?

Are we looking at some industrially complex, costly high risk strategy?

No.

The first thing, the starting point from a human resource management perspective, is to look closely at their own workforce. They need to drill down and discover who their employees are. How long have they been there? What are their roles, what skills and experience do they have, and, the key question, what are their intentions about retirement?

The companies I know of that are making progress have all consulted their workforce, especially about their intentions and wishes about a retirement point.

All of them have found one requirement stands out: flexibility.

Older workers usually are prepared to stay on if they can have some flexibility around hours worked or days worked.

Often they have caring responsibilities, for a frail parent, or grandchildren, or an ill partner, or an adult child with disability.

Just as over recent years parents of young children have been able to negotiate part time or flexible hours, to the benefit of their families and their employers, older workers with the cooperation of their employers, can do this.

Often too the older worker would like to transition slowly to retirement by changing their role in the company and taking on a role with lesser pressure, fewer hours but perhaps new mentoring responsibilities. They need to understand that such a new role would be paid at a lower rate, but from 60 on, individuals can top up this pay by drawing down some of their super, tax free.

Employers keen to maximise this pool of valuable labour often find that assisting employees to get independent financial advice helps. Many people need this advice to understand their true financial picture. It is sometimes only at that point that they realise that they cannot afford to retire for some years.

Upgrading of skills is often necessary and older workers need to take a positive attitude to training, and to new ways of doing things. Like all successful relationships, the successful relationship between the older worker and the employer is two way.

In recognition of the need for government in all its actions to be consistent with its policy of increased economic participation by older people, the Attorney General has asked the Australian Law Reform Commission to conduct an audit of all Commonwealth laws and policies that act as barriers to this aim. I have been appointed as a part time commissioner to the ALRC to take part in this relevant work.

I am progressing discussions with state and federal governments about lifting age bars that restrict workers compensation payments to below 65 years and am hopeful of improvements, even if they come slowly.

I have started discussions with providers of income insurance and am happy to report that some major providers are starting to offer this crucial product to people up to 67years.

Conclusion

As HR professionals you are all aware of the fundamental importance to any business or organisation of human talent. Skilled and motivated workers are necessary for success. The absence of such employees always results in failure.

In Australia now, in 2012, we are at a turning point for human resource management.

Since 1909 and the introduction of the age pension, we have not really adjusted our concept of old age in relation to work. With the dramatic demographic changes we have seen, and will see, we can no longer act in our employment practices as if most of us will be dead or useless by 65.

It is time to recognise and use the great change of our times: that most of us, compared with our great grandparents, have an extra life to live. Children born now will live into their nineties, as indeed will many of us here today. This is a wonderful opportunity, for our economy, our society and for all of us alive in Australia today. Instead of wasting millions of potential contributors to our economy, we can and must develop a new and relevant concept of the typical length of the working life. We must find new ways to provide capable individuals with jobs into their seventies and beyond if they choose.

Achieving these changes, and they are so achievable, would enhance the basic human rights of all of us.

The Hon. Susan Ryan AO is the Age Discrimination Commissioner at the Australian Human Rights Commission. This is an edited transcript of a speech given at the AHRI National President’s Networking Forum on 6 March 2012.