Age discrimination in a pandemic: COVID-19 and inequality at work (by Assoc Prof Alysia Blackham)

This latest guest contribution on the Labour Law Down Under Blog, by Associate Professor Alysia Blackham of Melbourne Law School, was first published in the University of Melbourne’s Pursuit publication: ‘Discrimination in a pandemic‘. 

Other guest contributions on this Blog are invited from the academic community, especially on issues relating to the impact of COVID-19 on work, workers and the regulatory framework for employment relations. Email me at: anthony.forsyth@rmit.edu.au

COVID-19 is fundamentally reshaping the economy and world of work. Mass layoffs – in tourism, bars, clubs, cafes and restaurants, cinemas and casinos, but also increasingly in professional services – have particularly affected workers in precarious or insecure work. While governments are scrambling to offer social security and ‘JobKeeper’ payments that compensate for some of these losses, there has been little acknowledgment of the potential inequities that accompany these broader trends. We know that the demands on carers are likely to significantly increase in this time – including for those helping children with remote learning, or supporting older people in self-isolation – but there has been less discussion of employment-based inequalities. My research says that we need to apply an intersectional age lens to these inequalities, recognising how different forms of disadvantage interact or compound, or we risk perpetuating long-term disadvantage in work and employment.

First, casual and insecure employees are far more likely to be affected by these employment ruptures, having few protections against a reduction in shifts or against dismissal. Women are less likely to have paid leave entitlements than men, and older and younger workers are disproportionately over-represented in insecure work. According to ABS data, in August 2019, there were 2,573,200 employees without paid leave entitlements in Australia, representing 24.5% of all employees, and 20.5% of all employed persons. For those of ‘prime age’, that is, 35–44, only 14.6% were in insecure work; for those aged 15–19, this raises to 73.9%, and to 43.1% for those aged 20–24. Insecure work also grows more prevalent for older workers, rising to 34.5% of those 65 and over. This means that the impacts of COVID-19 are likely to particularly affect women, younger and older workers, and there is increasing concern that youth employment will not recover quickly or easily after COVID-19. The ABS Labour Force data collected for February and March 2020 did not identify any notable impact from COVID-19; April 2020 data is likely to tell a very different story.

Second, while the government has developed the JobKeeper Payment scheme to keep people in work, this scheme does not extend to casuals with less than one year at an employer, or to migrant workers. On average, young workers have much shorter job tenure than older workers: McCrindle analysis of HILDA data estimates that average job tenure for those aged under 25 is only 20 months. Meeting the 12-month requirement for the JobKeeper payment is likely to disadvantage younger workers in particular.

Third, concern that older workers will experience more catastrophic COVID-19 symptoms may lead employers to resist putting older workers in customer-facing roles. Workers’ compensation claims have already been lodged in relation to COVID-19: this is likely to grow substantially over time. Employers obviously need to prioritise the health and wellbeing of their staff. The issue, though, is if older workers lose work due to fears for their health and safety. This risks putting older workers (and older women in particular) at significant financial risk.

This, of course, has been paired with the ability to draw down on superannuation to tide people over financially during COVID-19. This risks effectively draining the superannuation accounts of many workers, especially women. According to the Association of Superannuation Funds of Australia, the median superannuation balance at retirement (that is, for those aged 60–64) in 2017 was three times higher for men (at $110,000) than for women (at $36,003). In 2015–16, around 32.7 per cent of women reported having no superannuation, compared with 27 per cent of men. Further, the median superannuation balance for women aged 30–34 was $23,396, compared with $30,000 for men. Withdrawing up to $20,000 from your superannuation account, at a time when the share market is especially volatile, could have disastrous long-term consequences for many workers. Of course, it is difficult to think of the long term when we are just trying to get through each day.

If we ignore age in this crisis, we will not be attuned to the complexities of what is going on in the workplace. But age discrimination receives relatively little attention in our general lives, let alone in the chaos of a pandemic. My research has found that age discrimination cases are very rare, and women and young workers in particular are unlikely to assert their rights. The added pressures of a pandemic mean individual or collective claims or disputes are very unlikely in this area. This means equality law needs to operate more proactively to address the risks posed by this crisis.

Employers should be attuned to the equality impacts of their responses to COVID-19, especially if staff are being stood down, compelled or encouraged to take a pay cut, reduce their time fraction, or being made redundant. Anecdotally, cases are already emerging from the UK where all (young) apprentices have been made redundant, but older workers have been put on the UK Coronavirus Job Retention Scheme. We need the Fair Work Ombudsman and equality agencies in each jurisdiction to be actively monitoring employers’ responses to COVID-19. We also need to adopt a more proactive and preventative approach to addressing discrimination and inequality: the burden cannot be solely on the individual to seek a remedy. Positive duties, which require employers to consider, assess, and avoid discrimination in their operations, are the best way forward.