Promoting Fair, Flexible, Family-friendly Workplaces (2010)
Sex Discrimination
Promoting Fair, Flexible, Family-friendly Workplaces
Speech by Elizabeth
Broderick
Sex Discrimination Commissioner and
Commissioner responsible for Age
Discrimination
Australian Human Rights
Commission
11th Australian Institute of Family Studies
Conference
Melbourne Convention Centre
Friday
9 July 2010
Thank you Brian and congratulations to the Australian Institute of Family
Studies. This year the Institute celebrates its 30th year of
conducting leading edge research to further our understanding of important
issues that affect families on a daily basis.
This is the 3rd time I have collaborated with the Institute and I feel
honoured to have been invited back to discuss how we can promote fair, flexible,
family friendly workplaces.
Let me begin by acknowledging that we are gathered here on the traditional
lands of the Wurundjeri People of the Kulin Nation and I pay my deep respect to
their elders past and present.
The discourse of work/life balance has wide currency. It is a topic which I
have addressed numerous times in the past few years and one which I am sure we
will continue to debate.
As a long time advocate for family friendly work arrangements, having
personally experienced the dilemma and the challenges over the last 14 years,
principally as a partner in a commercial legal practice, I have now come to a
point where I am concerned that the rhetoric is not matching the reality.
Australians are experiencing enormous difficulty in managing work and family
life. Australian Bureau of Statistics figures released in May tells us that in
the three years to November 2009, the number of workers who negotiated an
agreement for flexible hours with employers – either formally or
informally – fell from 40% to approximately
30%.[1]
So, while this issue has become “one of the [most pressing] topics of
the 21st Century for families, employers and
government”,[2] and much
progress has been made, it is clear that we have not yet reached a satisfactory
settlement on what it means to combine paid work with our family
responsibilities. This is my main point today. Despite years of
discussion, the challenge is still with us!
Today I am going to look at three things:
- talk about the progress we have made in the past two years since I conducted
my national listening tour, - discuss the attitudinal and cultural barriers that must be overcome, and
- finish by commenting on what else needs to be done.
On my listening tour I visited cities, regional towns and
remote communities in every state and territory. During this time, everyday
Australian women and men told me that genuine choice for families in managing
care and work remained elusive. It is now 2010 and in terms of the workplace,
there is still a fundamental mismatch between unpaid caring work and workplace
structures and cultures.
If we continue to refuse to recognise that workplaces are part of the social
context in which individuals make their decisions on work and family, we will
struggle to achieve significant progress.
Our seemingly
‘private’ decisions are in fact shaped by the public context in
which they are made.
The good news is that there has been significant legislative progress over
the last two and a half years. Let me explain.
Let’s start with Paid Parental Leave.
I don’t know about you, but I would never have thought that, out of the
ashes of the greatest economic downturn since the great depression, a paid
parental leave would finally rise!
The campaign to get paid parental leave in Australia has been a long and
arduous one, one pursued vigorously by many people in this room. I want to
acknowledge and congratulate all the people across the country who worked
tirelessly, and with determination, to secure a vital, and long overdue,
national leap towards greater equality.
The Paid Parental Leave Act 2010 (Cth), is a major triumph for both
women and men and a critical piece of social infrastructure that will help
deliver stronger outcomes for mothers, families, businesses, the economy and our
community as a whole.
I was also pleased to see the inclusion of a two-year
independent review of the initial scheme. This allows for a more substantial
package of paid leave measures to be introduced over time. I am particularly
keen to see the inclusion of a superannuation layer in the scheme. This will
recognise the disadvantage that women face in retirement due to their unpaid
caring role. Any extension of the scheme should also include a period of leave
for fathers or supporting parents in same sex relationships on a “use it
or lose it” basis.
Paid parental leave represents an important step towards helping families to
balance their paid work and caring responsibilities, but by itself it is not
enough. Because our children are with us not just for the first 18 weeks but
more likely 18 years.
Some legislative progress has been made in the form of the Fair Work
Act introduced in 2009. As many of you will know, the right to
request a flexible working arrangement was introduced as part of the
National Employment Standards under this Act. It is a good step forward in that
it encourages employers to focus on the issue of workplace flexibility, but the
right to request has a number of limitations.
For example, the right does not apply to employees unless they have at least
12 months continuous service, and also in the case of casual employees, a
reasonable expectation of continuing employment. Furthermore, the right is
confined to employees with the care of children under school
age[3] which ignores the fact that a
significant proportion of the working population have family and carer
responsibilities that are not confined to the care of pre school age children.
The proportion of Australian’s over 65 will double by 2040 and over 85
years will quadruple - our caring responsibilities are getting more expansive
not less!
Perhaps most importantly, the right to request under the Act contains no
enforcement mechanism and there is no grievance procedure or process to provide
redress where requests are unreasonably refused.
Another positive was that the Fair Work Act also introduced a
provision to stop an employer taking adverse action against an employee or
prospective employee because of the person’s ‘family or
carer’s
responsibilities’.[4] Adverse
action is defined very broadly in the Act and includes refusing to employ a
prospective employee, dismissing an employee, injuring an employee in their
employment, altering the position of an employee to the employee’s
prejudice and discriminating between an employee and other employees of the
employer.[5] One potential benefit to
bringing an adverse action claim, rather than a claim under federal
discrimination law - is that the applicant will only need to show that the
conduct occurred, and that the reason for the conduct is ‘because
of’ family or carer’s responsibilities. The onus of proof then
shifts to the employer to rebut the presumption that the alleged action
occurred.[6]
It is also encouraging to see that the Fair work Ombudsman has launched his
first pregnancy discrimination prosecution in the Federal Court two days ago.
The Ombudsman has powers to investigate and prosecute employers who act in
breach of the Act. This is important in order to promote a systemic response to
what is a systemic problem.
And more progress came last week when the government introduced a reform
to the Sex Discrimination Act 1984 (Cth) (SDA) into Parliament. The
new legislation will broaden the family responsibilities provisions to include
indirect discrimination in all areas of employment – significant because
it means men will now have the same protection as women for family and caring
responsibilities under the SDA.
Given that significant cultural change will not occur unless and until men
start working differently – more flexibly - this reform is vital to
encourage cultural change.
As a group of reforms - PPL, the Right to Request NES, the adverse action
provisions of the FWA and the amendments to the SDA provide a strong legislative
base to support fairer, more flexible, family friendly workplaces. It is
important that both the industrial relations regime and the discrimination
regime work together to create discrimination free workplaces.
But these are macro and legislative changes. We must also focus on the issues
and challenges at a micro level if we are to make family friendly workplaces a
reality. I want to spend a few minutes talking about the attitudes and
cultural beliefs – the myths and assumptions – that are holding
us back.
I have come to realise that even when family-friendly workplace flexibility
is available it is often not utilised to an extent which allows for an
appropriate work-life balance to be maintained.
Why? I believe it is the entrenched assumption that workplace flexibility is
essentially a soft human resources issue, an issue mainly for women with young
children.
About 18 months ago, I ran a consultation with a group of male investment
bankers of all ages about how to attract more women into the industry. We had
reached a pause in discussion, when suddenly the youngest participant chimed in
“Come on – what you blokes aren’t saying but what we all know
is this - “Men make the rules, men make the money, she stays home and
cooks his dinner. It’s the way it’s always been in my family
it’s the way it always will be!
And as I thought of him down at one of the slick city bars on a Friday night
I thought - he should come gift wrapped with a label – “women
proceed with care!”
My point is that a complete analysis of paid work and family issues must
include the experiences and attitudes of men. As long as it is framed as the
concern of women only, men will continue to be seen as the secondary parent and
women will continue to face discrimination in the workplace on the basis of
their sex and family
responsibilities.[7]
Encouraging men to be involved in sharing care right from the beginning of
children’s lives is an important part of supporting shared care and moving
towards equality. However, there is little incentive for greater numbers of men
to take up flexible work arrangements while these arrangements are most often
seen as a poor relation to full time work.
Because there is still a deeply held prejudice that those who elect to work
flexible hours are seen as lacking the commitment or ambition of full time
individuals.
Sometimes in this job you do come across the occasional throwback, which
reminds you precisely why building family friendly work environments is still a battle. Not long ago, I spoke at a dinner for a regional law society
which was trying to attract more women. The speech was on the topic of flexible
work practices so it wasn’t long before I mentioned the words “part
... time ... work”.
But as soon as I said those words - “part time work” - a
gentleman in the front row leapt to his feet, yelling “You’re not
suggesting that lawyers could work part time are you?” I said that was
exactly what I was saying and pointed to some examples of where it was working
well. “Well who’s going to look after the children?” he asked.
And I said if he was seriously suggesting that mothers couldn’t be
practising lawyers we would have to just agree to disagree. But he still wasn’t satisfied.
Eventually I asked him whether he had a daughter. “Are you educating
her?” I asked.
And this was his answer.
He said “yes ... but maybe I shouldn’t be”.
I don’t know how many women they managed to recruit that night. But
what I do know is that there is still much work to be done!
So, is part-time work the solution?
A 2007 Time Use study by Lyn Craig, from the University of New South Wales,
which looked at household labour supply, found that the one-and-a-half-earner
household in which fathers work full-time and mothers work part-time is the most
common in Australia. This model represents 45.8% of Australian
households.[8] In comparison, in
Denmark, Italy, France and the USA the one-and-a-half-earner household was less
than 25%.[9] Lyn Craig’s finding
are supported by data released by AIFS two days ago which show that while in
1983 single income couples clearly predominated by 2009, there were more couple
parents with one full time and one part time
earner.[10] Meaning - that
part-time work in Australia is widely seen as the ideal solution to allow
parents to be both involved with their children and attached to the labour
force.[11]
But is part-time work the panacea we once thought?
Lyn’s research reveals that, while mothers or fathers can utilise
part-time work as a means of balancing work and family, in practice it is
usually only the mother who takes up the role as the part-time worker in the
household.[12] According to the ABS,
women accounted for 72% of part-time workers in
2005.[13] Two reasons –
firstly, caring is still seen as women’s work and secondly, many men have
difficulty accessing family friendly workplace arrangements.
The part-time model often results in lower wages for women, poorer career
prospects in the long-term, considerable loss of earnings over the lifetime -
resulting in less superannuation, less secure employment, reduced opportunities
for promotion and less interesting work
content.[14]
There is no question that women pay a financial and career penalty if they
take the part time work route.
But, does part-time work reduce time pressure for women and men? And if so,
is this impact felt evenly? This appears to be largely
contested.[15]
A report released by Barbara Pocock, Natalie Skinner and Reina Ichii at the
University of South Australia last
year[16] reported that part-time
work had worse consequences for women than
men.[17] For example, the proportion
of full-time women reporting frequent time pressure has increased from 59.4% in
2007 to 66.6% in 2009 in contrast with 51.4% of
men.[18] Most importantly, the
proportion of part-time women reporting time pressure is 58%, nearly double that
of men at 27.9%.[19] This means
that, regardless of whether they are working part-time or full-time, women are
often or always feeling rushed or pressed for
time.[20]
The University of South Australia’s report seems to reinforce research
conducted by Lyn Craig in 2008 which showed that work-family strain is not any
less in households where women work part time than it is in households where
they work standard full-time hours – the reduction in hours of
women’s market work is almost always offset by an increase in their unpaid
workload, yet the amount of time fathers spend on parental care remains
relatively invariant.[21] For
example, women who are homemakers average 76.5 hours of unpaid work a week,
women who work part-time average 69 hours and women who work full-time average
57.5 hours[22] – a slight
reduction in unpaid work as the hours of market work increase, but not a
substantial difference. Whereas, the allocation of time men dedicated to unpaid
work remained constant at 30 hours per week, showing that men’s unpaid
work hours are remarkably impervious to variations in their wives’ hours
of paid employment.[23]
Unfortunately it also seems that non-parental care is ineffective as a
moderator of managing work and family balance. The attempt by women to maintain
a time commitment to both employment and family is related to the key social
presumption and deeply held cultural belief that young children are best-looked
after by their parents.
If women are prioritising paid work and attentive parenting, there will be a
reduction in other forms of time allocation. The key conclusion to be drawn is
that women are willing to avoid adverse outcomes to their children and employers
at a potential cost to
themselves,[24] certainly not the
work life balance we are striving to achieve.
So where is the solution?
Until the sharing of paid work and care is recognised as being inherently
entwined with social organisation and not considered as an individual and
household choice, we will struggle to make any progress in turning the rhetoric
of work-life balance into a reality.
Having effective flexible work practices also means confronting significant
attitudinal barriers such as deeply held prejudices about men and women’s
roles in both the family and paid work. As long as men feel that using
family-friendly policies will damage their career prospects, women will feel the
most pressure to utilise these policies and sacrifice their personal and career
aspirations. For women, there is a cost in terms of time, finances and missed
labour force opportunities. For men there is a loss of opportunity to bond with
their children and to engage in family life.
Perhaps most importantly, valuing care and easing time pressures means more
than ensuring flexible, family-friendly workplaces. While a balance between paid
work and care is an essential component of a society that values care, it is not
enough in itself. It requires tackling the inequality that sets the parameters
for how we arrange our paid and unpaid
work.[25]
Let’s not forget that gender equality and balancing paid work and care
are important goals in their own right.
Work and family are more than mere words, they represent an equation –
and when we give time to one, we often take time away from the other. Balancing
paid work and family is about the value of time. Surely both are important. To
the extent that workplaces are fair, flexible and family friendly we all benefit
– and together we will create a more equal Australia.
In
conclusion
I want to end by throwing some questions out to the panel and the
audience which will enable us to discuss some possible solutions and also to get
an idea about what is and what is not currently working.
1. Flexibility is not being embraced as a business opportunity. I think the
reason we haven’t seen this is that it requires job redesign, which is at
the heart of true flexible work practice that delivers for both the business and
the individual. I am interested to hear about any initiatives the panel or
audience is aware of where organisations are investing in job redesign.
2. Targeting men as carers through specific educational and support programs
is crucial as a way of shifting cultural barriers and attitudes to men’s
involvement with family and caring responsibilities – yet, other than
legislative reform, how can this shift occur? I would be interested to hear from
the panel and audience on this.
[1] Paul Bibby, The work-life
lie: family-friendly jobs a myth (May 22, 2010). Available at http://www.smh.com.au/national/the-worklife-lie-familyfriendly-jobs-a-myth-20100521-w1qs.html (viewed 17 June 2010).
[2] Margaret Thornton & Joanne Bagust, The Gender Trap: Flexible Work in
Corporate Legal Practice (2007) p 778.
[3] Fair Work Act 2009 (Cth) s 65(1)(a).
[4] Fair Work
Act 2009 (Cth) s 351.
[5] Fair Work Act 2009 (Cth) s
342(1).
[6] Fair Work Act
2009 (Cth) s 361(1).
[7] Australian Human Rights Commission, Striking the balance: Women, men, work
and family (Discussion Paper 2005). Available at http://www.humanrights.gov.au/sex_discrimination/publication/strikingbalance/index.html (viewed 16 June 2010) p ix.
[8] Lyn Craig & Killian Mullan, (forthcoming) ‘Parenthood, gender and
work-family-time in USA, Australia, Italy, France and Denmark’, Journal
of Marriage and Family (accepted 1/6/10) p 10.
[9] L Craig & K Mullan,
above.
[10] Australian Institute
of Family Studies, Families then and now: 1980-2010 (2010). Available at http://www.aifs.gov.au/institute/pubs/factsheet/fs2010conf/fs2010conf.html (viewed 7 July 2010).
[11] L
Craig, M Bittman, J Brown & D Thompson, above p
16.
[12] W. Olsen and S. Walby
(2004) ‘Modelling gender pay gaps’, in Working Paper Series No. 17:
Equal Opportunities Commission. Cited in Lyn Craig, Michael Bittman, Jude Brown
& Denise Thompson, Managing Work and Family (2008). Available at http://www.sprc.unsw.edu.au/publications/reports (viewed 2 June 2010) p 16.
[13] ABS, Measures of Australia’s Progress (2009). Available at http://betaworks.abs.gov.au/betaworks/betaworks.nsf/projects/MeasuresOfAustralia'sProgress/individuals/work/diff_male_female.htm (viewed 21 June 2010).
[14] L
Craig, M Bittman, J Brown & D Thompson, above p
16-17.
[15] L Craig, M Bittman, J
Brown & D Thompson, above p 17.
[16] Barbara Pocock, Natalie
Skinner & Reina Ichii (University of South Australia), Work, Life and
Workplace Flexibility: The Australian Work and Life Index (2009). Available
at http://www.unisa.edu.au/hawkeinstitute/cwl/default.asp (viewed 21 June 2010).
[17] B
Pocock, N Skinner & R Ichii, above p 27.
[18] B Pocock, N Skinner & R
Ichii, above p 23.
[19] B
Pocock, N Skinner & R Ichii, above p 23.
[20] B Pocock, N Skinner & R
Ichii, above p 27.
[21] L Craig,
M Bittman, J Brown & D Thompson, above p
26.
[22] L Craig, M Bittman, J
Brown & D Thompson, above p 21.
[23] L Craig, M Bittman, J Brown
& D Thompson, above p
23.
[24] Lyn Craig, How Employed Mothers in Australia Find Time for Both Market Work and
Childcare (2006). Available at http://ideas.repec.org/a/kap/jfamec/v28y2007i1p69-87.html (viewed 2 June 2010) p 84.
[25] Australian Human Rights Commission, It’s about time: Women, men, work
and family (2007). Available at http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 16 June 2010) p 33.
