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Australia's ageing population, coupled with other economic factors, means many Australians are remaining in the workforce longer than previous generations. These changing workplace demographics have, and will continue to have, a substantial impact on employers, who have to adapt to the requirements and needs of their workforce.

According to a 2015 Commonwealth Government report, the number of workers over 65 will increase from 12.9% to 17.3% by 2023. Further, it has been predicted that Australian workers born between 1960 and 1980 will now (on average) continue working well into their 70s. Reflecting this trend, recent figures released by the Department of Education and Training show that more than half of workers in the higher education sector are aged over 45. This proportion of older workers is expected to increase, which means employers in the university sector must be aware of, and work to address, the specific kinds of issues or challenges that result from an ageing workforce. These issues are often exacerbated by misconceptions about the value and capacity of older workers to perform their roles safely and efficiently in a modern workplace.

Recent studies, including "Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability" conducted by the Australian Human Rights Commission, have highlighted a number of challenges confronting older workers in entering or maintaining their positions in the workforce including work health and safety (WHS) obstacles and discrimination.

WHS

Under WHS legislation, employers must ensure the health and safety of all workers while they are at work, so far as is reasonably practicable. To do this effectively, it is important for employers to understand the needs of their specific workforce and the associated risks. All individuals age differently and, in turn, it can be difficult to adopt a "one size fits all" approach to managing an ageing workforce. Employers should, however, take a proactive approach to managing WHS within their enterprise by identifying and assessing the risks that may arise based on their particular circumstances.

Recent guidance materials published by WHS regulators have highlighted that the most common workplace injuries for older workers relate to muscular stress (sprains and strains), bone fractures, spinal disorders and slips or falls. In many instances, these risks can be mitigated or eliminated by:

  • assessing the potential risk of such injuries occurring within the particular work environment
  • implementing reasonably practicable control measures to manage these risks, and
  • fostering a culture that encourages individuals to talk about concerns they may have about their wellbeing or their capacity to perform their work safely.

It's important to understand a person's age does not of itself give rise to a risk to health and safety. There is no prescribed age where a worker becomes incapable of working safely, nor is there a legal requirement for a worker to retire at a certain age.

Any queries that are raised about a worker's ability to continue employment must arise from the worker's capacity to perform their role's inherent requirements and not simply their age. If, for whatever reason, a worker is unable to perform the inherent requirements of their role, an employer must still assess whether it can implement any reasonable adjustments that would allow the employee to perform these inherent requirements before contemplating any significant changes to their employment status.

Unlawful discrimination

In all Australian jurisdictions it's unlawful to discriminate against a worker on the basis of age. This means a worker can't be treated less favourably or not given the same opportunities as others in a similar situation because they are too old or too young.

Age discrimination may occur during the recruitment process or in decisions giving rise to termination. However, it may also occur in circumstances where a worker is denied a promotion or career progression, or is subjected to adverse or less favourable treatment in the workplace (such as isolation and the unfair allocation of tasks). By way of example, in Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170 an employer terminated the employment of one of its workers when he reached 65. In doing so, the employer acted on the advice of their accountant and advised the employee that it was company policy not to employ workers over 65. The Court reflected on age-related stigma and observed the age at which a person qualifies for the pension is misconceived as the age for mandatory retirement. It found there was no legitimate basis for the employer to believe the worker could not perform his role's inherent requirements and awarded him compensation and pecuniary penalties totalling almost $40,000.

Risks and impacts

Failing to appropriately respond to challenges presented by an ageing workforce can expose an employer to significant risk. Legal claims can be commenced, which may result in the employer being ordered to pay compensation for the loss and damage suffered by the worker and pecuniary penalties of up to $63,000 per contravention for a corporate entity. Individuals who are involved in any breach of discrimination laws can also be held liable for the contravention. Further, if a breach of WHS legislation is alleged, employers risk regulatory investigations and significant criminal sanctions.

From a non-legal perspective, there's also the potential for reputational damage, the development of a harmful workplace culture, increased absenteeism, a disengaged workforce and an impact on the health and wellbeing of employees. This can have flow on effects to commercial relationships and arrangements.

Take home messages

Employers, such as universities, should ensure they adapt to their changing workforce to mitigate potential commercial and legal risks that may eventuate. Take appropriate action to facilitate and encourage the longevity of your workforce by:

  • identifying, assessing and implementing appropriate controls to assist in managing risks and challenges experienced by older workers
  • understanding workers' long-term goals and ensuring older workers who wish to stay in the workforce are provided appropriate support (i.e. flexible work arrangements and/or skills training)
  • conducting regular risk assessments to identify any foreseeable WHS risks and implementing reasonably practicable strategies to mitigate these risks, for example, by:
    • conducting ergonomic assessments and training around sedentary work - providing training to minimise age-related injuries - ensuring the workplace is accessible (ramps and hand rails)
    • encouraging employees to engage in regular exercise through employee benefit programs
    • implementing suitable workplace policies that emphasise inclusiveness and eliminate discriminatory conduct (particularly with a focus on recruitment and retention)
    • creating a positive workplace culture that emphasises inclusivity and encourages participation by older workers, and
    • providing a work environment that fosters open communication, education, training and workplace flexibility on equal employment opportunity principles.
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