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Managing without default retirement in universities: a comparative picture from Australia

Published online by Cambridge University Press:  02 January 2018

Alysia Blackham
Alysia Blackham*
Affiliation:
University of Cambridge
*
Alysia Blackham, Faculty of Law, University of Cambridge, 10 West Road, Cambridge CB3 9DZ, UK. Email: apb69@cam.ac.uk
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Abstract

The abolition of the default retirement age is creating challenges for UK employers, and universities in particular. Operating without mandatory retirement may have consequences for performance management, the creation of opportunities for new generations of workers, the scope for workforce planning and employment costs. Drawing on comparative experiences of Australian universities, which have been operating without mandatory retirement since the 1990s, this paper critically examines whether these consequences have materialised in Australia. It draws out a number of lessons for UK universities from the Australian experience.

Type
Research Article
Information
Legal Studies , Volume 35 , Issue 3 , September 2015 , pp. 502 - 531
Copyright
Copyright © Society of Legal Scholars 2015 

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Footnotes

*

Turpin–Lipstein Fellow and College Lecturer in Law, Clare College and Affiliated Lecturer, Faculty of Law, University of Cambridge; Honorary Fellow, Faculty of Law, The University of Western Australia. The author would like to thank Professor Catherine Barnard, Dr Dominique Allen and Dr Shelda Debowski for their insightful contributions and suggestions.

References

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10. [2012] 2 CMLR 50 (‘Seldon’).

11. Regulation 30, which established the DRA, provided that employees at or over the age of 65 could be dismissed on the basis of retirement. In the Seldon case, the firm's partnership deed applied to partners (not employees). Therefore, the DRA and reg 30 did not apply.

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18. Ibid, at [77].

19. Ibid, at [92].

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55. Manfredi and Vickers, above n 3, at 347.

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69. Manfredi and Vickers, above n 3, at 364.

70. However, with the low employment rates for older academics in the UK, this only equates to 330 academics.

71. Rosenman and McDonald, above n 2. See eg Industrial Relations Reform Act 1993 (Cth), Anti-Discrimination (Amendment) Act 1994 (NSW), Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 (Cth), Age Discrimination Act 2004 (Cth).

72. While some state and territory legislation still contains mandatory retirement as an exception to the principle of age equality (see Anti-Discrimination Act 1998 (Tas) s 35; Anti-Discrimination Act (NT) s 36), the passage of the Age Discrimination Act 2004 (Cth) has probably rendered the sections irrelevant: Rees, N, Rice, S and Allen, D Australian Anti-Discrimination Law (Annandale: Federation Press, 2nd edn, 2014) pp 61–62. See further Age Discrimination Act 2004 (Cth) ss 10, 12; Australian Constitution s 109.Google Scholar

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74. The Fair Work Act 2009 (Cth) also prohibits modern awards and enterprise agreements from containing clauses that discriminate on the basis of age: ss 153, 194; see Australian Catholic University Limited T/A Australian Catholic University [2011] FWA 3693 (10 June 2011).

75. In relation to practical and interpretative issues associated with relying on the Fair Work Act 2009 (Cth) as a means of addressing age discrimination, see MacDermott, above n 73. Judges and military personnel may still be subject to compulsory retirement: see Australian Law Reform Commission ‘Grey areas – age barriers to work in Commonwealth laws’ (Sydney, 2012) Discussion Paper 78, paras 2.105–2.116. These provisions have led to some indirect legal challenges: see Commonwealth of Australia v Human Rights & Equal Opportunity Commission [1999] FCA 616 (11 May 1999); Re Peter Albert Langman and Defence Force Retirement and Death Benefits Authority [1987] AATA 184 (12 May 1987).

76. See eg Ivory v Griffith University [1997] QADT 4 (30 January 1997); Re The Queensland Anti-Discrimination Act 1991 [1997] QSC 71 (29 April 1997).

77. Rosenman and McDonald, above n 2, at 63.

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82. In this paper, a classification scheme is used to enable the broad identification of universities while still maintaining source and case study anonymity. Universities have been classified as being part of the Group of Eight (G8) or Australian Technology Network (ATN) and allocated a letter (from ‘a’ to ‘d’). So the first Group of Eight university is identified with G8a.

83. See Patton, above n 79, p 467.

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90. Ibid, p 17.

91. Hugo, above n 86, at 327.

92. Ibid, at 340. These concerns have been resoundingly rejected by the NTEU. See further section 4(b)(VI).

93. Ibid. Indeed, there is recognition that higher teaching loads are more likely to be managed successfully by experienced academic staff: ibid.

94. One university did not centrally monitor workforce demographics, though each academic manager would know the statistics for their employees (G8b).

95. Bexley et al, above n 88, p 4.

96. Ibid.

97. Though this is still a reduction from the average of 57.53% in 2008: Andrews, S, Wong, H and Gullo, D ‘Universities Hr benchmarking program 2013: companion report’ (Melbourne, 2013) at 5.Google Scholar

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105. Ibid.

106. This may also reflect institutional limitations: the two-stage enforcement model for discrimination claims in Australia may reduce the number of cases: see further Rees et al, above n 72, p 8.

107. Victorian Equal Opportunity and Human Rights Commission, above n 103, at 44.

108. [2004] NSWADT 14 (21 January 2004).

109. [2012] FMCA 735 (10 October 2012).

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116. Morris et al, above n 115, at 1, 4.

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118. Morris et al, above n 115, at 1.

119. Morris, above n 50, at 388.

120. Sharrock, above n 110, at 87; Morris et al, above n 115, at 3.

121. Morris et al, above n 115.

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124. Andrews et al, above n 97, at 6.

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127. Bexley et al, above n 88, p 4.

128. However, government reforms have removed or are removing many of these disincentives, to encourage individuals to remain in employment for longer. This is likely to reduce the usefulness of pension schemes for workforce planning.

129. These practical strategies for managing an ageing academic workforce will be discussed in a separate paper.

130. According to a Universities Australia survey, six.

131. For some of the challenges associated with workforce planning, see Higher Education Funding Council for England, above n 60, s 3.

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133. Andrews et al, above n 97, at 5.

134. May et al, above n 132, p 195.

135. Ibid.

136. Ibid, p 196.

137. See further ibid, p 192.

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139. Andrews et al, above n 97, at 6.

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