Melbourne Law School - Research Publications

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    COVID-19 and the Australian labour market: how did older Australians fare during 2020?
    Fry, J ; Temple, J ; McDonald, P ; Blackham, A (Australian Population Studies, 2021)
    Background   In analysing the effects of the COVID-19 pandemic on the labour market, attention has focussed on younger people, leaving a research gap when it comes to outcomes for older Australians aged 50 years or over, in terms of employment, unemployment, underemployment and hours worked. Aims   To describe levels of labour force participation, unemployment, underemployment, and hours worked by older workers and job seekers during 2020. Data and methods   Using Australian Bureau of Statistics data, we perform descriptive analyses of variations in labour market outcomes by geographic areas, public and private sector employment, industry of employment and demographic characteristics. Results   Older employment fell in April but recovered by December. As the full-time share initially increased, average hours worked decreased due to reductions in hours offered to workers, increasing the underemployment rate. There was little recovery of employment in metropolitan Melbourne due to prolonged lockdown conditions. Of the largest industries, retail trade and manufacturing were worst affected.
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    GUEST EDITORIAL Introduction to the Special Issue Using Transparency to Achieve Equality
    Allen, D ; Blackham, A (La Trobe University, 2021-09-09)
    This Guest Editorial introduces a Special Issue of Law in Context which considers how the collection of large-scale data by government entities and organisations might advance the equality agenda across diverse areas of public life, and how best to manage the risks of this emerging strategy. Drawing on interdisciplinary perspectives and the insights of policymakers, the articles and comments listed below seek to develop new principles to guide government and organisational activity in this novel endeavour.
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    Addressing Age Discrimination in Employment: a report on the findings of Australian Research Council Project DE170100228
    Blackham, A (University of Melbourne, 2021)
    This project aimed to research the effectiveness of Australian age discrimination laws. While demographic ageing necessitates extending working lives, few question the effectiveness of Australian age discrimination laws in supporting this ambition. This project drew on mixed methods and comparative UK experiences to offer empirical and theoretical insights into Australian age discrimination law. It sought to create a normative model for legal reform in Australia, to inform public policy and debate and improve responses to demographic ageing, providing economic, health and social benefits.
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    Positive Equality Duties: The Future of Equality and Transparency?
    Blackham, A (La Trobe University, 2021)
    Transparency is a radical expectation in the context of equality law. In a system highly dependent on individual en-forcement, the lack of transparency in individual claiming dramatically limits the potential of equality law to achieve systemic change. Overcoming discrimination that is systemic, embedded, and pervasive requires moving beyond confidential mechanisms for addressing discrimination. Given that the implementation of workplace equality law occurs in practice at the organisational level, there is a growing need to focus on what employers are actually doing to achieve equality, and how their practices are accountable to those affected and the broader community. In this paper, drawing on case studies from the United Kingdom and Australia, I consider how corporate and governmental transparency might be extended to equality and discrimination, by embedding such obligations within positive equality duties. I consider how the publication of equality information under the Public Sector Equality Duty in the UK, and more limited gender pay gap reporting in the UK and Australia, have promoted transparency and addressed inequality. Considering theories of targeted transparency and action cycles, I put forward five key criteria to make transparency via positive equality duties effective. I consider the limitations of existing models, and put forward suggestions for how transparency might be better embedded and enacted in future positive equality duties.
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    Working at the edges of legal protection: Equality law and youth work experience from a comparative perspective
    Blackham, A ; Stewart, A ; Owens, R ; O’Higgins, N ; HEWITT, A (Edward Elgar Publishing Ltd, 2021)
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    Non-discrimination on the grounds of age
    Blackham, A ; Garben, S ; Adams-Prassl, J ; Purnhagen, K (Oxford University Press, 2021)
    ‘Direct discrimination’ means treating someone less favourably than another person ‘is, has been or would be treated in a comparable situation’ on the grounds of age; ‘indirect discrimination’ means applying an ‘apparently neutral provision, criterion or practice’ which would put persons of a particular age ‘at a particular disadvantage compared with other persons unless … that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. ‘Harassment’ is a type of discrimination which occurs ‘when unwanted conduct related [age] takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment’
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    Does removing default retirement ages benefit individuals? A comparative empirical case study of the university sector
    Blackham, A (SAGE Publications, 2021)
    In 2011, the UK government abolished the national default retirement age. While this could support extended working lives and promote individual choice, it could also be a neoliberal ‘ploy’ to individualise the risks of old age. The question, then, is what impact does the removal of mandatory retirement have in practice: does it help to promote individual choice and autonomy? Or does it simply lead to work intensification and the individualisation of the risks of demographic change? Or both, perhaps simultaneously? Drawing on original qualitative and quantitative empirical data from UK and USA universities, this article considers the impact of removing mandatory retirement ages on individual workers in higher education. It argues that legal reform may have promoted or encouraged work intensification in universities, including through an increased focus and use of performance management. Thus, in practice, the consequences of removing retirement ages for individuals are mixed.
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    Enforcing Rights in Employment Tribunals: Insights from Age Discrimination Claims in a New ‘Dataset’
    Blackham, A (Cambridge University Press (CUP), 2021)
    The online publication of Employment Tribunal (ET) decisions in England, Wales and Scotland marks a watershed moment, opening up new innovative avenues for legal research, and promoting transparency in labour law decision-making. Drawing on this ‘dataset’, and using age discrimination decisions as a lens to facilitate analysis, this paper reflects on the advantages and limitations of using online ET decisions as a data source to support labour law research. By considering matters of time in age discrimination decisions – both in relation to time limits for bringing a claim, and ET delays – this paper uses innovative empirical findings to map the limits of the individual enforcement model adopted by discrimination laws, and illustrates some of the barriers to successfully bringing a claim for discrimination.
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    Pensions and the Modern Workforce
    Blackham, A ; Agnew, S ; Davies, P ; Mitchell, C (Hart Publishing, 2020)
    Old age pensions play a fundamental role in ensuring adequacy of income for the elderly into old age. While pensions fulfil a key social and economic role, there is increasing concern that pension systems in developed countries are not sustainable in the face of demographic ageing and following poor investment returns during the financial crisis. Drawing on trends in pension law and policy in the UK and Australia, this chapter commences with a discussion of how we might conceive of pensions from a theoretical perspective (part II), and considers the emerging challenges to established pension systems from the changing nature of work and social and demographic shifts (part III). The chapter argues that existing pension systems are not yet able to accommodate the changing nature of work, and puts forward normative criteria for evaluating and developing more appropriate pension systems for the modern workforce (part IV). It then maps emerging trends in pension reform (part V), and considers the tensions that are playing out in trying to navigate these normative criteria. Part VI concludes.
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    Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework
    Blackham, A ; Temple, J (Law School, University of New South Wales, 2020)
    Australian equality law is still largely dependent on individual enforcement to achieve systemic change. The degree to which discrimination law acknowledges and accommodates intersectional discrimination is a question of growing pertinence. This article bridges theoretical scholarship on intersectionality and empirical statistical evidence of how people experience discrimination in Australia, drawing on data from the 2014 General Social Survey, to critically evaluate the extent to which Australian discrimination law is able to accommodate intersectional experiences of discrimination. We argue that there is a fundamental disconnect between the legal framework, which focuses on separate and distinct ‘grounds’ of discrimination, and how people actually experience discrimination in practice, which is multiple and overlapping. This article offers concrete suggestions for how the legal framework and data collection could be improved to better integrate intersectionality in Australian discrimination law.