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		Academic Staffing Implications of Age Discrimination Legislation for Australian Universities
		97/17 Barry A. Sheehan Ian R. Dobson Donna F. Smith February 1998
		Evaluations and Investigations Program Higher Education Division Department of Employment, Education, Training and Youth Affairs

©Commonwealth of Australia 1998

ISBN 0 642 23707 7

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Executive Summary

Chapter 1: The Context

All Australian universities must now accommodate to the reality that discrimination on the basis of age is proscribed by both state and federal legislation. As a consequence, both state (with the exception of Tasmania) and federal legislation may impose different obligations on universities and other employers with respect to the same subject matter.

The Workplace Relations Act (WRA) outlaws termination of employment on the ground of age. As a result, compulsory retirement is no longer considered fair and reasonable. Employees who believe they have been forced to retire because of their age may turn to the Workplace Relations Act and those who believe they have been discriminated against on the basis of age during employment will turn to their relevant state anti- discrimination legislation. The ‘age of retirement’ is but a sub-set of the issues emerging from state-based age discrimination legislation.

The practical outcomes of the removal of compulsory retirement age for universities cannot be known with certainty, but there is a commonly expressed concern that if determination of retirement age rests entirely with the individual, the interplay of this discretion with tenure for academic staff could create difficulties for universities. There are strong contrary arguments as well, and both sides of the argument in the literature are characterised by generalisations that are difficult to sustain with evidence.

This paper attempts to examine and report the salient points in the legal framework underpinning age discrimination legislation in the Australian states and unfair dismissal on the grounds of age at the Commonwealth level, and the legal interplay between them; examines demographic/statistical issues in relation to the staffing profile at the system level; develops a model which can project tables for any retention rate by age/rank/gender/discipline combinations at both the system and institutional levels; and explores a range of approaches that the higher education sector and individual universities could consider in developing their own approaches to career-long academic staff management through the latter years of service to final severance from institutional employment.

In order to come to grips with the implications of age discrimination legislation for universities, some important features of the academic culture, the way academics typically think about themselves as employed professionals, their work and their careers are examined.

A number of characteristics have traditionally underpinned the professional consensus of academics. Research has been regarded as the central professional endeavour and focus of academic life, together with the pursuit of knowledge for its own sake; the maintenance of quality in the profession by peer review and professional autonomy; the pursuit of knowledge organised by discipline; reputations established in national and international professional associations; rewards and mobility accruing to those who persistently accentuate their specialisations; and the pursuit of cognitive truth as the distinctive task of the academic professional. Many senior academic staff who now head departments and influence tenure and promotion carry this or a similar set of assumptions that shaped their socialisation into a powerful and enduring professional vision.

The Dawkins reforms in higher education attracted much attention, but it is clear in retrospect that, while academic staff priorities, expectations and rewards were conditioned over a lengthy period to move in one direction, system and institutional developments were inexorably headed in another.

The ‘shape’ of the typical academic career is bound to change, but although the meaning of scholarship is under continuous debate, and has changed over time, little has yet occurred to restructure the framework of academic staff careers. Further, it is likely that continuing employment will be offered on a various fractional time basis to professionals in other occupations, or to academics from other universities locally, nationally or internationally.

Of special importance in the development of a successful academic career is the role of critical academic scrutiny and commentary on the work of the individual in both teaching and research. Publication in its various forms has to date been at the very heart of the intellectual culture. It is also evident that an academic who is recognised as a very good teacher and scholar in one institution may not be even close to meeting the requirements of a position at a similar level in another. Definitions of and emphases on research, in particular, create a strong differentiating mechanism between universities.

Chapter 2: Effects of Uncapping Retirement

To provide universities the ability readily to calculate patterns of appointment, promotion and separation for their own academic staff, a software package has been written. This software allows users to compare their staff data files from two years to establish the various rates of staff movement in, within, and out of the institution.

In 1994, for the system as a whole, just under one-third of teaching staff were aged over 50, but this result was not uniform across the disciplines. The ‘young’ disciplines were mathematics/computing, health sciences and administration/business/economics/law, with 27 per cent, 26 per cent and 23 per cent respectively of their teaching academics being aged over 50 years. Education had the highest proportion of over 50s (45 per cent), followed by science (39 per cent), humanities (38 per cent), built environment (38 per cent), engineering/processing (35 per cent) and social studies (30 per cent). Sixty-nine per cent of academic staff held tenured positions, with the untenured category being relatively youthful.

Part of this study is about the propensity of staff to remain in the higher education system and aims to develop a model which would calculate the size of the teaching academic staff every five years, with calculations being based on a simple interest concept. The methodology used produces simulated projections based on extreme assumptions, in order to establish the range of possible outcomes.

To test the effects of a variety of changes in patterns of retention/separation, it was assumed that the size of the higher education academic teaching pool will stay at the overall 1994 level, which was 18 109 full-time equivalent. In effect, the methodology seeks to establish the theoretical number of ‘vacancies’ which will occur, under various patterns of separation, at five-year intervals over the next 20 years. Alternative assumptions can be applied to the model. Three scenarios were tested at the system level to prove the model.

Simulations for the system gloss over the mass of transactional activity between universities as staff leave one to join another, and within universities as staff change ranks and tenure status. With these matters in mind, the software package is comprised of a windows-based program which uses DEETYA-format staff files from any two years to calculate numbers of staff movements in, out and within universities and to simulate future staff numbers and age structures. Application of this software to institutional academic staff profiles will assist in producing sophisticated ‘back of the envelope’ calculations to model the university’s future academic staff profile.

Chapter 3: The Operational Impact

The workplace is in the midst of dramatic change, with major corporations and government departments recently ‘downsizing’ or ‘rightsizing’ and restructuring. In this context, as well as in terms of anti age discrimination, tenure has become a significant issue. Much has been made of tenure as an individual right; too little has been made of it as a genuine professional responsibility, with stress upon what that responsibility should involve.

The attitude towards tenure as an industrial right has lead to the development of distinct classes of academic staff in most universities in Australia. Male teaching and research academics in the 45–55 years age range, recruited to academia on the crest of a massive wave of expansion in the higher education system, predominate in the ‘privileged’ tenured class. While tenured staff can with difficulty be made involuntarily redundant, it is contract staff, no matter how good they are relative to their tenured colleagues, who are always vulnerable when staffing adjustments are made. In major research universities, research only staff, who may number more than one-third of all academic staff, and who are integral to the success of this kind of institution, have never had the luxury of tenure.

The paper suggests a more rational approach to tenure, arguing that sufficient protections are built into the common law and industrial law and practice to ensure protection for tenured and non-tenured academics alike. Employment in the higher education sector could become more like that in the private sector, in that, as long as a staff member is performing well and the job is there to be done with the resources to do it, the staff member stays. There is, however, the requirement for a major exception to the private sector model if true academic freedom which should apply as much to limited term academic staff as it does to tenured staff is to be protected. Academic staff should have protected freedom to discuss and debate ideas, and action to dismiss staff for the legitimate expression of controversial ideas on matters of academic or public interest is not acceptable.

The concerns about the significance of an uncapped retiring age when related to tenure brings some urgency to the current tenure debate. It is not yet known what will be the group characteristics of those who will seek to stay beyond ‘normal’ retirement age. Several hypotheses are advanced in this paper to stimulate debate, raise awareness and encourage thought to be given to legitimate strategies in which the employment of academic staff is not seen as an end in itself, but is structured to ensure the survival and continued development of a healthy higher education sector.

The question of gender is considered in connection with the uncapping of the compulsory retirement age. If appropriate affirmative action strategies can be put in place, and less productive academics, irrespective of age or gender, can be dispensed with, then not only might the best female role models be retained, but the gender profile at the senior end could improve. On the other hand, the view which women reportedly have of work and current retirement patterns also considerably influences the possibilities inherent in the new situation. Much may depend on the choices that demonstrably successful women themselves make.

Does Academic Productivity Decline with Age?

Before strategies for coping with the overall situation in relation to tenure and age can be considered, it is necessary to consider what is known and not known in respect of age and performance and to recognise possible opportunities for strengthening our universities.

Anyone in a good university can point to notable exceptions to the assertion that productivity declines with age, and great care must be taken not to assign to any individual the asserted characteristics of the group, even where those characteristics are identified as a result of systematic research.

Teaching Productivity

This section examines the available research on the relationship between age and teaching effectiveness, much of which is strong on polemics and weak on evidence. A major exception to this is the work of Kinney Smith, which is reported in detail, although the study is limited to a single comprehensive research university in the United States. Their two major questions are: ‘whether academic staff performance declines with age’ and ‘whether the retirement decision is connected with relative vitality by directing attention toward a measure of teaching effectiveness and considering its relationship to age and to the timing of the retirement decision’.

One of the most common means of evaluating teaching effectiveness is systematic student ratings. A number of studies identify factors that influence such ratings, but are beyond the control of the teacher and also confirm the reliability of student ratings in evaluating teaching. Individual student ratings correlate strongly within classes and over time. A common finding is that years of teaching experience of the teacher affects student evaluations positively up to about 10 years. Beyond that the evaluations tend to fall back to about the same level as for staff with around three years’ experience.

Other results as reported are mixed:

The age variables lose significance in all models except that for the physical and biological sciences . . . This loss in significance is not surprising given that the influence of age on teaching effectiveness at later ages was shown to be of very small size. In the humanities regression, the effect of late retirement is negative and significant at the 99 per cent level, suggesting that the self-selection is in the reverse direction from that sought. However, the size of this effect is again small: courses taught by those who retire at the mandatory age tend to be rated 0.19 points below those taught by professors who choose to retire early. Thus this finding tempers somewhat the earlier conclusions: although teaching effectiveness appears to improve with age, the teachers rated as most effective seem to retire early so that the remaining pool of professors will be of lower average effectiveness rating.

Research Productivity

Most research on research productivity focuses on publication outputs. While there is clearly a positive relationship between productivity and quality in most disciplines, there are wide individual differences between academics. Where one researcher may publish very many articles reflecting low quality work, another may publish but a few papers, all of which may be of seminal importance to the progress of the discipline. Publication rates are therefore of limited value. There is agreement among scholars that, among groups of scientists rather than individuals, there is a positive correlation between high numbers of publications and the significance of the authors as deemed by their colleagues. The more productive researchers will in general contribute quantitatively more to the stock of knowledge than the less productive scientists.

There is agreement with the conclusion of Linke that:

If there is any single generalisation to emerge from [the literature] it is that age alone is not a major determinant of research performance . . . There is a predictable rise in performance at the beginning of a professional career as the research becomes established, and in some fields, and on average, a slight but noticeable decline towards the end . . .

An individual’s performance in earlier years provides a better guide to subsequent productivity, but for various reasons even this is often unreliable . . . While it is possible that increasing years may bring decline in certain aspects of intellectual capacity (in particular those normally associated with creativity in science) and that this might be associated with some qualitative change in research and publication output, there is no evidence of any uniform decline in total productivity . . .

The authors conclude that, except for inexperienced commencing staff, the best predictor of research productivity is likely to be immediate past productivity.

Chapter 4: Conclusion

The reseach does not give any clear indication as to the effects of uncapping the compulsory retirement age in Australia. Depending upon the decisions made by individuals to stay on, and the effectiveness of performance management processes, it is possible that the effects could be negligible. On the other hand, the effects on a given department or unit if just one individual were to stay ‘too long’ may be very damaging.

It is performance at the level expected by the university in terms of its mission, goals and developmental plans and in relation to the rank of the staff member which should govern employment. If a university is better for hiring a higher proportion of older staff and finds little to recommend the ‘new blood’ argument (or can successfully maintain a short-term bi-modal distribution between bright new blood and highly productive older staff), then why would it not do so?

Where significant proportions of staff do stay on, however, and there are not strong performance assessment and severance processes (regardless of age), there may be implications for a university’s commitment to achieving excellence, which will be undermined not only because the university will have fewer resources to employ new academic staff with fresh ideas, but because the university will also face increased staff-related costs. Performance management is fundamentally a developmental and supportive process. In many cases, a failure of the managed reflects also a failure of the manager. It is extremely important, therefore, for managers at all levels to be well selected in the first place and well trained in their people-management roles.

It is argued that successful recruitment and selection initially is the most effective form of performance management, but also that induction and mentoring, probation and confirmation, incremental progression and promotion decisions and the like are all part of what should be a coherent pattern of regular developmental support and counselling during an academic’s career through an effective system for the management of performance which will end with a mutually agreed date for the retirement of the staff member.

In any event, the decision or requirement to retire is intensely personal and important to the individual. Universities should be seeking to provide a helpful and open system of retirement management where staff approaching retirement are given complete information and access to advice.

A ‘menu’ of strategies for the management of the age at which academic staff retire is explored. It is anticipated that universities will explore, amend and develop only some of these approaches and create others to suit their own circumstances.

Superannuation arrangements are needed which support institutional and system goals. The most appropriate nature of superannuation for university staff is a matter of continuing debate. On balance, it seems likely that from a system perspective a shift to an accumulation scheme might better cope with unfolding circumstances. A straight accumulation fund, however, is easy to manipulate in funding terms, and there is need for a structure that would protect it from political whim.

Many academics believe that their investment in superannuation will be insufficient to maintain them at a reasonably comfortable level in retirement. Assistance could be given to those who wish to secure their financial future in the latter years of their employment by packaging into superannuation a large percentage of their normal salary in years close to retirement in order to secure a higher level of benefit. Under current conditions this may still be tax-beneficial for many employees. It is important to note, however, taxation law and the views of the Australian Taxation Office and appropriate specialist advice is always necessary.

Many positive incentives for retirement are considered. Some have met with considerable success in US universities. Some do not involve significant cost, and include flexible phasing out arrangements; ‘rehearsal’ retirement; bridging programs; a tuition reimbursement program; and senior scholar schemes.

Other strategies for universities to protect their long-term staffing flexibility, where that may be seen as necessary, are explored. For the most part these imply significantly changed employment practices and, in particular, affect the tenure relationship. These therefore have implications for industrial relations and include contingency contracts, incentives for foregoing tenure; and the introduction of reversionary tenure.

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