Workers' Compensation and Age Discrimination in Australia1
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
| DOI | 10.1177/135822910600800302 |
| Author | Robert Guthrie |
International Journal
of
Discrimination and the Law, 2006,
Vol.
8, pp. 145-168
1358-2291/2006 $10
© 2006 A B Academic Publishers. Printed
in
Great Britain
WORKERS' COMPENSATION AND AGE
DISCRIMINATION IN AUSTRALIA1
ROBERT GUTHRIE
Curtin
University
of
Technology,
Western
Australia
ABSTRACT
In 2005 the Australian Government created the Australian Safety
and
Compensa-
tion Council. The Council's agenda includes examination
of
the issues concerning
Australia's ageing workforce.
Of
particular relevance are the age-based limitations
on the continuation
of
workers' compensation payments, which apply in almost all
Australian States and Territories. Provisions in most States and Territories require
that payments either cease
or
be reduced
at
65 years
of
age
or
a notional retirement
age. These provisions either directly
or
indirectly conflict with State, Territory
and
Federal anti-discrimination laws, which operate to prevent employers from
discriminating against workers on the grounds
of
age. The workers' compensation
laws, however, are quarantined from the effects
of
the age discrimination
provisions. This represents an asymmetry between different government policies:
one that works to discourage older people from staying in the workforce; another
that attempts to encourage workers to remain longer in the workforce
on
account
of
the ageing workforce. This article explores the policy implications
of
this
asymmetry and signposts areas for future research and proposed changes to policy.
Q
My
workers' compensation was cut
off
when I turned 65. Is this unlawful
discrimination?
A
Not
if
it was done pursuant to the provisions
of
the Workers' Compensation
and Rehabilitation Act. Something done
in
relation to age discrimination
pursuant to the provisions
of
another
Act
is
exempt.
(Equal Opportunity Commission Western Australia 2006)
INTRODUCTION
Most
Australian
States
and
Territories
and
the
Commonwealth
have
legislated
to
either cease
or
reduce
payments
of
workers'
compensa-
tion
to
injured
workers
when
they reach
the
age
of
65.
Other
than
as
prescribed in
the
exemptions
under
State,
Territory
and
Federal
anti-discrimination statutes,
it
is unlawful
to
discriminate
on
the
grounds
of
age
in
a
host
of
employment-related
areas.
Compensation
payments
have
traditionally
been
linked
to
a
notional
retirement;
however,
the
rationale
for
an
age-based cessation
of
payments
is
146
no
longer
valid, given
the
pressures
internal
and
external
to
Australia
that
push
for
workers
to
remain
in
the
workforce
for
as
long
as
possible.
There
is
now
an
obvious
asymmetry
in
legislative
intent
between
the
two
areas
which
results,
on
the
one
hand,
in
a
lack
of
income
protection
for
injured
older
workers
and,
on
the
other,
the
drive
for
longer
working
lives.
The
following discussion is presented
in
two
parts.
The
first
part
will review issues
in
relation
to
the
ageing
workforce
and
then
consider
the
data
on
work
injuries
and
disease
to
examine
the
rate
of
claims
by
workers
with
regard
to
their age.
The
second
part
will
review
the
workers'
compensation
provisions
in
Australia
and
determine
whether
those
provisions discriminate
against workers
on
the
grounds
of
age.
This
section will include reference
to
the
anti-discrimination laws
operating
in
Australia.
It
will also examine
any
case decisions
that
relate
to
the
issues
of
age discrimination
and
workers'
compensation.
The
discussion concludes
with
comments
on
the
relationship between respective anti-discrimination
and
workers'
compensation
laws
and
suggests
some
research
and
policy
directions.
PART
ONE
SOME
HUMAN
RESOURCE
ISSUES
ARISING
FROM
AN
AGEING
WORKFORCE
The
ageing
population
is a worldwide
phenomenon.
The
Australian
Bureau
of
Statistics (1999) review, Australian Social Trends 1999,
projects
in
the
chapter
on
Our
Ageing
Population
that,
from
1997
to
2051,
demographic
changes will require considerable policy
adjustment
and
planning.
This
data
shows
that
the
number
of
people
aged
over
65 years will
more
than
double
in
the
next
half
century-
it
is
estimated
that,
by
2031,
more
than
25%
of
the
Austra-
lian
population
will
be
aged
over
65 years.
At
the
same time there will
be
a
reduction
in
the
relative
number
of
individuals
under
the
age
of
65.
The
fastest
rate
of
growth
for
this
period
will
be
in
the
number
of
people
aged
over
85
years.
Mcdonald
(2005) observes
that
...
the
potential
retirement
of
so
many
from
Australia's
workforce
threatens
a
labour
shortage which has been a focus
of
Government
policy over recent years. Policies aimed
at
retaining mature-age
workers
(those between 45
and
64) include gradually increasing the
age
at
which
women
can
access the age pension, increasing
the
mini-
mum
age
for
accessing
superannuation
benefits,
and
the
introduction
of
incentives
for
workers
who
stay in employment
beyond
the age
pension age
through
the Pension Bonus Scheme. Some people retire
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