A return to mandatory retirement? It’s possible that age 70 could become the new 65, says Kenneth Thornicroft a lawyer, author and professor of law and employment relations at the University of Victoria’s Gustavson School of Business.CHAD HIPOLITO/The Globe and Mail
It used to be workers expected to retire from their jobs at 65, whether they wanted to or not.
Prior to the late 1990s, "mandatory retirement was the norm in Canada," says Kenneth Thornicroft, a lawyer, author and professor of law and employment relations at the University of Victoria's Gustavson School of Business.
These days that's no longer the case. Over the past two decades – due to a series of landmark court cases challenging what many saw as age discrimination under human rights legislation, and a large, active and politically powerful population of baby boomers bent on determining their own career fate – mandatory retirement has been abolished in all 13 Canadian provinces and territories.
Or has it?
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Dr. Thornicroft says that perception is not quite accurate.
His newest paper, The Uncertain State of Mandatory Retirement in Canada, published in Labor Law Journal, finds that there are still many legal exceptions providing for mandatory retirement across a wide variety of professions, from commercial pilots to police officers and firefighters.
Dr. Thornicroft goes a step farther in his latest academic submission. He suggests that mandatory retirement may be making a comeback.
Notably, he says young workers are at the heart of the resurgence of the discussion.
Currently, one-third of Canada's nearly 36 million people is between age 50 and 74 with those born between 1945 and 1960 making up the largest part of this group.
Given the greying of the work force, he notes, "it is hardly surprising that the general abolition of mandatory retirement was spearheaded by the baby boom generation, particularly as the early boomers edged ever closer to the age of 65."
But the force of millennials is also hard to ignore, especially as they continue to make their way into the work force. Dr. Thornicroft foresees the possibility of intergenerational resentment building up among younger workers as their own ascension in the professional ranks is stymied by a lack of movement by senior colleagues, often in better paid and higher-level positions.
"Younger workers may support mandatory retirement so that they are not foreclosed from future occupational opportunities," he concludes.
So-called "double dipping" by older workers who continue to work while also collecting a pension will serve only to ratchet up tensions between the generations (though Dr. Thornicroft believes that's unlikely to play a significant role in the debate. More likely, he says, "as long as generous pensions are there, most people are prepared to leave the work force and take their pension, even if they like their job, and then maybe look for part-time employment.")
In safety-sensitive positions, both employers and employees concerned about working with older people who may not be up to the demands of the job may also press for mandatory retirement provisions.
Already several professions are required to adhere to mandatory retirement ages and, says Dr. Thornicroft, "I don't see any move afoot to take those away."
Supporters of mandatory retirement hold that the practice is not discriminatory because everyone is subject to the same law. Employers, meanwhile, tend to like it because it allows for more effective workplace planning and eliminates the need to continually test older workers to ensure their competence.
Opponents, however, argue that such a provision unfairly robs society of valuable human capital.
Moreover, many say laws mandating retirement are unnecessary since most employees retire at a conventional age anyway.
Dr. Thornicroft himself believes there is merit to the latter argument, referencing 2015 Statistics Canada data that puts the average age of retirement in Canada at 63.5 years. In the same year, public sector workers (and those most likely to have a retirement plan) retired, on average, at 61.4, while those employed in private business left the workplace, on average, at 64.1. Self-employed workers remained in the work force the longest, retiring, on average at 66.7.
Currently, there is no real need to push for mandatory retirement, he says. But that could change, depending on what happens.
"It will depend on how the second and third wave of baby boomers react to the labour market, and whether they are going to hang in and clog up middle- and higher-level positions so that younger employees are denied access," he says.
Dr. Thornicroft adds, regardless of whether provinces decide to return to mandatory retirement, millennials can likely bank on remaining in the workplace longer than their parents and grandparents.
If the move goes ahead, Dr. Thornicroft says it's possible that 70 will become the new 65.
"The courts, to date, have held that there is no Charter violation if mandatory retirement is in place and while legislatures have removed the 'age 65' limit in their human rights laws, there is nothing in law preventing legislatures from re-enacting, in effect, a mandatory retirement age at, say, age 70," he says.
On the other hand, with several polls showing young adults are failing to adequately save for retirement, and with fewer opportunities than previous generations to rely on a good pension plan from work, he says, "a lot of younger employees now are not going to be able to afford to retire."