Diversity & equal rights

It is an indisputable fact that women are not equally represented in leadership roles or management positions in Australian companies and governments, not even close. Even in 2016, this is the case in almost all arenas of business and politics and is most certainly a global issue, although Australia even appears to lag in this indicator among developed nations. This flows through to an under-representation of women on boards of directors of Australian public companies. Earlier this year consultant Conrad Liveris found that there were fewer women in CEO and chair roles in ASX 200 companies than there were men named either John, Peter or David in such roles. What an alarming statistic! In this note we consider whether this under-representation is caused by a failure to recognise that women as much as men are able to achieve and sustain appropriate business outcomes and conclude that this is a matter that good corporate governance can resolve. Continue Reading A perspective on the unequal representation of women in leadership

As we celebrate International Women’s Day, the 2017 campaign message asks us to #beboldforchange and to “take action to drive change for women to forge a better working world”.

The campaign’s aims are admirable and worthy of support. But I find myself querying whether such a campaign really helps our workplaces become more holistically diverse and inclusive.

Much of the focus on “diversity” remains on women’s participation and inclusion in the workforce (undoubtedly a very important issue). Sadly, many organisations still have not moved beyond the numbers game – reporting annual statistics on the number of women in the workforce as a whole, on the senior management team and on the board of directors. This approach provides an easily measurable benchmark and is encouraged by compliance initiatives such as the ASX Corporate Governance Principles and the WGEA reporting obligations.

I accept that getting women in the front door is often the first challenge, and several of our clients are working on fabulous initiatives to address this challenge to achieve more gender diversity in their blue collar workforces. Ensuring sufficient numbers of women progress to senior leadership positions is also an ongoing battle.

However, does this narrow focus mean that many organisations are missing the bigger picture and the business imperatives for broader diversity and inclusion? What about ethnicity, age, national origin, disability, sexual orientation, educational background, religion, parental status and socio-economic status? How do employers bring together their diverse people resources for mutual benefit?

It is trite and well-trodden ground that without buy-in from the top, progress towards true diversity and inclusion will not be made. However, general statements of commitment at the Board or corporate policy level will also never lead to change without integration and implementation at each business function and unit level.

Our clients who are advancing the most in this space know that it is critical to create an environment at all levels of the company where diverse ideas, perspectives and backgrounds are harnessed to create value to the business. The long journey to achieving an inclusive workplace requires inquiry at every level about the specific and measurable actions to be taken to create and foster such an environment.

All easier said than done I know! We’d love to hear your thoughts on what it is for an organisation to #beboldforchange.

The Victorian Supreme Court recently issued a stunning decision awarding an employee over $600,000 comprising $210,000 for pain and suffering and the balance for lost past and future income, despite the employee having a significant pre-existing psychiatric illness and a finding that no bullying had occurred.   Continue Reading Damages in bullying claims – the stakes are rising even higher

The stakes are risingIn the world of anti-discrimination law awards of money against employers for psychiatric injury or illness caused by sexual harassment by one of their employees have been rare and low, typically in the range of $12,000 to $20,000. Similarly, the anti-bullying jurisdiction of the Fair Work Commission has seen limited orders made to prevent further bullying where claims have been made, and compensation is not available as a remedy for bullying behavior.

But things are changing, especially in the area of sexual harassment where awards of damages for psychiatric illness are increasing. This reflects change in societal attitude towards this type of conduct that has (finally) started to be reflected in judicial pronouncements.

The spectrum of mental harm that can be experienced by victims of sexual harassment or bullying covers depression, anxiety and post-traumatic stress disorder (PTSD) any of which can be debilitating for a significant period.

Continue Reading Damages in sexual harassment and bullying claims – the stakes are rising

Work imageWhat will work look like in the future and what lessons can employers take from that? Two recent reports have identified the trends in the way in which we will work in Australia over the next 20 to 40 years.

In the first, Tomorrow’s Digitally Enabled Workforce, the CSIRO looks at what they describe as six ‘megatrends’ for jobs and employment markets over the coming twenty years:

  1. The use of robotics to perform tasks more quickly, safely and efficiently than humans;
  2. The rise of digital technology and the new world of ‘platform economics’, which mean that jobs of the future are likely to be more flexible, agile, networked and connected;
  3. The need for many individuals to use entrepreneurial skills to create their own job;
  4. An ageing population, more diverse workforces and more diverse cultural backgrounds;
  5. A higher bar for skills required for entry-level positions; and
  6. Continued growth in the service industries, in particular education and healthcare – requiring social interaction skills and emotional intelligence.

The second, the NSW Government’s ‘Future State NSW 2056’ report, examines trends in workforce participation, living arrangements and productivity and projects them over the next 40 years. The report foreshadows a number of key developments in relation to the jobs of the future. These are remarkably similar to those identified in the CSIRO report:

  1. The decline in the ‘producer industries’ (manufacturing, construction and agriculture) in Australia and the continued rise of the services sector (health and professional services, such as engineers, computer designers, accountants, lawyers and scientists);
  2. Future sources of employment being in arts, engineering, AI, robotics, nanotechnology, 3D printing, genetics and biotechnology;
  3. The rapid growth of the peer-to-peer and freelance employment markets – which often means the outsourcing of work to specialist contractors and consultants, who are likely to work from home or use shared facilities;
  4. Workers having ‘portfolio careers’ (multiple jobs with multiple employers on a part-time basis); and
  5. Telecommuting and remote working becoming the norm (rather than the exception) in some industries.

While many of these trends are well known, they are potentially still very confronting for many workers – and businesses too. But what lessons can employers take from these trends? I think there are three:

  • Work will not involve, and workers will expect their jobs will not involve, just ‘doing’. The focus for the design of the jobs of the future will be around how workers can have creative input – in other words, workers will expect to use their abilities to ‘think’. Organisations will need to ensure that jobs create intellectual stimulation and challenge. Any process work will be done (if it is not now) autonomously by technology.
  • Workers will not have an expectation of a lengthy period of employment or engagement with one particular organisation, but they will have high expectations of the learning and development that they can obtain from that organisation. This will be a critical area of focus for organisations wanting to be leaders in their field – because it will be about finding the best talent, rather than the best talent finding you.
  • Organisations will have to develop ways of working with their workforce that take into account the diversity of the workforce and the diversity in the ways in which people will perform work – including by operating their own businesses. Your engagement with those who provide ‘labour’ to the organisation will need to be continuously innovative so that you can build resilience to ongoing rapid change.

FinanceScott Morrison’s first Federal Budget announced the creation of the ‘Youth Jobs PaTH’ (Prepare-Trial-Hire) program – a program designed to encourage up to 120,000 unemployed youth into the workforce through skills training programs, paid internships and incentive payments for prospective employers. While further details will come to light over the course of the Federal Election campaign, employers who want to participate will need to look before they leap, to make sure their participation in the program doesn’t lead them, later on, to fall foul of the minimum wage provisions in awards and legislation.

The Budget papers suggest that the Youth Jobs PaTH will involve three-stages:

  1. six weeks of skills and job hunting training;
  2. internship placements of between 4 to 12 weeks duration, in which interns will work between 15 to 25 hours per week. During these placements, jobseekers will receive $200 per fortnight (on top of their income support) from the Federal Government, while businesses who take on interns will receive an upfront payment of $1,000; and
  3. larger subsidies paid to businesses who take on Youth Job PaTH jobseekers on an ongoing basis, with accelerated wage payments to prospective employers forecasted to be between $6,500 and $10,000.

We’re yet to see how the program will interact with the minimum wage provisions in awards, but social media has lit up at the suggestion that jobseekers under this scheme will be paid as little as $4 per hour (excluding the unemployment benefits these jobseekers will retain during this time) during stage 2. The ACTU has even described the scheme as ‘ripe for abuse’.

It seems unlikely to us that the Youth Jobs PaTH will give employers carte blanche to escape from all obligations relating to interns.

However, what will be important for businesses wanting to minimise the risk of claims is how they engage with jobseekers both during the internship program and (more importantly) after it is completed – and that there is a clear line between those involved in the internship program and those who have moved into an employment relationship.

This is particularly so where the vulnerability of young workers to ‘intern’ arrangements has been a key concern for the Fair Work Ombudsman (FWO). This was highlighted in the recent decision in CrocMedia, where the Court looked at minimum wage obligations for relationships that were described as ‘internships’ or ‘vocational placements’. The Court decided that two radio producer ‘interns’ had actually been engaged as employees, rather than unpaid volunteers. The Court placed emphasis on the fact that the company had derived a profit or productive work from the contribution of the interns and the length of their engagement.

What does this mean for businesses participating in the Youth Jobs PaTH program and for using internship arrangements more generally?

A few things:

  • comply with the program requirements while the internship placements are under way, and ensure the jobseekers understand that they are being engaged as part of the internship program;
  • make sure it is clear when the internship placement ends;
  • make sure that, if a jobseeker transitions to an ongoing basis or out of an internship arrangement, their terms and conditions of employment meet the minimum employment standards under any applicable awards or legislation; and
  • make sure that, at all times, you comply with workplace health and safety obligations regarding all workers in your business (including interns and unpaid volunteers).

The Youth Jobs PaTH programme raises some interesting questions about the dynamic between employers, employees and interns. These are arrangements that need to be tightly managed to minimise exposure to underpayment claims and FWO prosecution.

EyeWhen it comes to managing bullying in the workplace, the focus tends to be on dealing with the bullying behaviour after it has occurred or at least after the bully has started work. But are there ways to stop bullies from being recruited in the first place?

One place to start is screening during recruitment. There are certain personalities who deliberately inflict harm or lack the ability to understand the harm they are doing to others. These personalities fall within a category that psychologists call the ‘Dark Triad’ which comprises three sub-personalities: Machiavellianism, sub-clinical narcissism and sub-clinical psychopathy.

The Dark Triad share a number of overlapping features including social malevolence, callousness, aggression, manipulative behaviour, duplicity, a lack of empathy and a tendency towards self-promotion. Studies have shown a strong correlation between psychopathy and bullying behavior and these studies have indicated that psychopaths are fairly well-represented in leadership positions.

Psychometric testing is commonly used by companies at the recruitment stage to ensure a certain level of cognitive function and aptitude amongst potential employees. Some companies use behavioural interview questions too. But do they use psychological assessment tools in order to weed out the Dark Triad traits that lead to bullying?

There are various assessment tools that have been developed in studies aimed at identifying both bullies and Dark Triad traits. They range from basic questionnaires to more sophisticated tools that require administration by a qualified clinician under scientifically controlled conditions. Access to these can be costly, but when you consider the collateral damage that can occur from a psychopath in the workplace, who then ascends to management, and causes harm to other employees and the business, it might be worth the investment.

The corollary to this is, if these personality traits are viewed as a disorder or mental illness, rather than a defect of character, would it be discrimination under the Disability Discrimination Act 1992 (Cth) (Act) to actively try to eliminate this group from the workplace?

The definition of ‘disability’ in the Act includes “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behavior”.

But even if psychopathy is a disability, all employees must be able to perform the inherent requirements of the job. To the extent that a psychopath is unable to do so they will fall within the section 21A exception of the Act and it would not be discrimination to refuse to hire them on that basis.

Isn’t it an inherent requirement of all jobs to be able to work without bullying and harassing your colleagues? An untreated psychopath by their very nature cannot work in a team effectively without harming others and ultimately causing reputational damage to a business. Should companies be investing in more sophisticated psychological assessment tools to screen Dark Triad traits and bullies form the workplace?

We would be interested to hear your thoughts.

As the Australian Football League 2016 pre-season approaches, there is a lot of talk in the media about “list management” by clubs. This generally involves retiring or trading “older” players – usually over the age of 28.

It is often assumed – rightly or wrongly – that football players lose their athletic edge around this age. But is it fair – or legal –  to use age as a blunt proxy for performance?  There are players (like Dustin Fletcher of Essendon fame) that perform brilliantly into their late 30s and beyond. Continue Reading AFL “list management” – a polite term for age discrimination?

Bullying behaviour comes in all shapes and sizes.  Identifying and deciding how to respond to diverse bullying behaviour by a worker (or workers) can create challenges for employers.

Recent headlines have cautioned that unfriending on Facebook could be considered bullying. That this seemingly innocuous action has been elevated to “bullying” has been the subject of many concerned water-cooler discussions since hitting the mainstream press. Continue Reading Death threats and unfriending – what is bullying?