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Speech - Flexible working practices in the law

Sex Discrimination

'Flexible working practices in the

The NSW Law Society/ NSW Women Lawyers Network Work2Suit

5 June 2008

Speech by Elizabeth Broderick, Sex Discrimination Commissioner and
Commissioner responsible for Age Discrimination.

It is an honour to be asked to speak today at the quarterly Work2Suit Forum.
Congratulations to the NSW Law Society and NSW Women Lawyers on this excellent
initiative. I think the time is right to be debating what work means in the
21st century.

Flexibility is a topic that has a lot of currency at the minute with the
release of 3 pieces of research on the topic including:

  1. Prof. Margaret Thornton’s report “The Gender Trap: Flexible Work
    in Corporate Legal Practice”;
  2. Prof. Linda Duxbury’s research into work life balance in the
    profession; and
  3. “Bendable or Expendable?” a joint project of the Victorian Women
    Lawyers and the Law Institute of Victoria.

Several years ago now, I was asked to deliver a speech at one of
the regional law societies. They were trying to attract more female lawyers as
members. I was asked - would I speak on flexible work practice? But no sooner
had I mentioned the words “part-time work” than a gentleman at the
front stood up and demanded “You’re not suggesting that lawyers
could work part-time are you?”

“Yes” I said and started to point to some examples that were
working well.
“Well who’s going to look after the
children?” he said.
“Well who’s
going to look after the children?”
“Well if you’re
suggesting that mothers can’t be practising lawyers I’m afraid we
will have to agree to disagree.”
“That’s exactly what
I’m suggesting!” he said.
“Can I ask you then – why
are we wasting tax payers’ money educating women and then allowing them to
think they can be productive in the paid workforce?”
“Why are
we?” he said.
“Do you have a daughter?” I asked.
“Are you educating her?”
“Yes I
am but maybe I shouldn’t be!”

It was the first time I realised the depth of emotion that a discussion about
flexible work can invoke!

The public discussion about flexible work has some similarities to the
national conversation about Paid Maternity Leave (PML). With PML we are no
longer debating whether we should have a national scheme but rather what the
scheme should look like. It gives me great optimism that we are no longer
talking about whether flexible work arrangements should be part of legal
practice, but rather how we ensure that they exist in a manner that delivers for
both the law firm and the individual.

For many people, unfortunately, the rhetoric of flexible work is not matching
the reality. As with any emerging work practice or technology, there will be
elements that work and those that don’t. It’s about refining the
model not throwing it away!

I first came to flexible work about 12 years ago. Many of you will have
heard me tell the story of the day it looked like the new area of legal practice
which I had been growing and nurturing for five years might come to a resounding
stop. I was a partner at Blake Dawson and had grown a group known as the Legal
Technology Group, which practised at the intersection of technology and law.

Five years after the group had been established, I had a day at work where
one of my lawyers popped into my office to tell me she was pregnant.

The same afternoon another senior manager came to see me with the same news.
What they didn't know was that I also was pregnant. And when three weeks later
a fourth lawyer joined the mother-to be queue we knew we had a problem.

That was half the entire team that would be out on maternity leave at one

As the person in charge of the team I had to find solutions and find them

With four of the team pregnant we now had a solid business reason
to reinvent the way we worked.

We developed a program where the ultimate responsibility for matters rested
with the individual, whether or not they worked full - or part-time. And if a
flexible worker needed to come in on a non-designated work day and could not
arrange childcare at short notice, they could bring in the kids. They also
agreed to carry a mobile phone when away from their home, and to access their
e-mail account at least once a day.

I wanted each of our flexible workers to remain just as committed to the firm
as they had been before they had their maternity leave, and this meant that they
maintained their previous position and level of seniority.

At the heart of each of these arrangements was reciprocity and trust.
realized early on that we needed support staff who also shared the vision.
That’s when we hired Michelle as a new junior secretary.

Michelle had
been a secretary for only three weeks but she’d been a nanny for three
years. With that experience, we knew we needed her on our team!

Like most of my staff, I had thought long and hard before I decided to have a
baby. Back then, like many women lawyers I meet today, I was worried that my
life and career would grind to a halt if I had a child so I deliberately put it
off until I was 36 years old, eight years after my husband and I got married.

But having taken the plunge I wanted to be both an involved mother and a
committed lawyer. A flexible work arrangement offered me the best opportunity
to progress both.

At that time there were no part-time partners and no requests from partners
to work part-time.

I think being clear about my priorities helped. I knew that if it
couldn’t be accommodated within the firm I would need to find a job in a
different work environment. I also realized that this request would have to be
presented in a manner that showed it would work for both the business and me.

Without that reciprocity it wouldn’t be possible. So in 1996, I became
the firm’s first part-time partner.

We were determined to make flexibility work. As a business owner and people
manager, workplace flexibility allowed me to build a supportive and productive
environment like nothing else. It built a loyalty among staff that money could
not buy. As Mother Teresa said "There are no great things, only small things
done with great love."

We didn't set out to change the world but to make flexibility work in our
small team. But that had some amazing flow on impacts and Blake Dawson are now
at a stage where in excess of 20% of the workforce works in a flexible work

My experiences there taught me that with a strong evidence base, a platform
from which to advocate and a strong network of support - change CAN happen.

However as a long time advocate for flexible work arrangements, I have now
come to a point where I am concerned that the rhetoric is not matching the
reality. It seems to me we have done the easy part. We have now progressed to
the stage that I call DIY Flexibility or MY Flexibility – where an
employee requests flexible work often to balance work and family
responsibilities and a well intentioned employer runs around to make sure this
individual is accommodated. Invariably the result is a six day per week job
squashed into three days with all too predictable results.

Many organisations have rolled out flexible work policies and have people
(principally women) accessing them, but the hard work is yet to come.

What we haven’t seen as yet is flexibility being embraced as business
opportunity. By that I mean organisations embracing flexibility so as to offer
new services or to access a significant new talent pool in a manner that works.
I think the reason we haven’t see this is, that it requires job redesign.
Job redesign is at the heart of true flexible work practice that delivers for
both the business and the individual.

Job redesign is not easy, particularly
in an era where time billing is still the predominant method of billing. To be
successful it also requires the redesign of a number of the supporting systems
– the systems that underpin work (HR systems, financial systems, reward
systems etc).

Having effective flexible work practice 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 one participant in Professor
Thornton and Joanne Bagust’s study “The Gender Trap”

A: I have one of my lawyers at the moment away on maternity leave.
Q: So does that put her off the partnership path?
A: Yes.
Yes, to be perfectly frank because there is no reason why she may not later on
go away and have another child.


“As soon as you
indicate you want to work part-time for whatever reason, and this applies to men
as much as the women, you are immediately taken off that partner track because
the perception is that you can’t


“We are still very much a
profession that values hard work and so that often cuts out women with family
commitments. If you had two very good candidates and one is willing to work
longer hours than the other, well why wouldn’t you go to the one
who’s willing to work longer hours?”

So, it seems to me we need to advance flexible work practice on two
fundamental fronts - attitudinal change and job redesign.

What does the recent research tell us?

A recent study in Victoria “Bendable or Expendable? Practice and
Attitudes towards Work Flexibility in Victoria’s Biggest Legal
Employers”, found that while about 56% of practising lawyers under 40 were
women, at 40 that number almost halved, to around 25%. There are no prizes for
guessing why. By that time many women have had children, and are struggling with
the familiar juggling act of managing a career and caring for their children.

Although as we have discussed law firms are becoming more open to the idea of
flexible working arrangements – mainly part time work, working from home
and job-sharing – research shows that women who adopt those flexible
working arrangements pay a high price in career terms.

Most women find
that the quality of the work they receive declines. They are less often on the
partnership track and promoted less quickly than their full time counterparts.
In the words of one commentator, “having babies is not good for your
career”. (See “Bendable or expendable” p4)
Further, both men and women who elect to work ‘flexible’ hours are
seen as lacking the commitment or ambition of full time lawyers. For many, it is
just not worth it, and they leave law firms in favour of a job in government, or
as an in-house lawyer, where flexible work practices are better managed. Some
leave the law or cease work altogether.

There are other traps as well for women and men who wish to work flexible
hours – many are sidelined to legal support functions or guided into the
area of ‘knowledge management’ – that is, drafting and
updating precedents. Whilst some lawyers prefer support and knowledge functions
for many lawyers this career path is not their first choice.

Other lawyers are paid to work part-time, say three days a week, but it is
expected that they will be available at the end of a Blackberry 24/7, including
on their so-called days off. This is becoming known in the US as ‘schedule

As one female lawyer interviewed in “The Gender
Trap” said:
“I’ve worked part-time for a long time, and
it’s almost like you’re having to prove that you’re committed.
I think
it’s like - yes of course I can do that. Sure, I’ll
do that on my day off, no problem”.

A second study was recently released by Beaton Consulting. In the study,
Professor Duxbury, a Canadian academic surveyed 12,000 white-collar workers
across professional services, government departments and publicly listed
companies in Australia.

Respondents were asked about their working and
caring roles, and how they were managing to combine both. The report drew
conclusions about the extent of work-life conflict and how this affected an
individual's decision to stay in their role.

The report confirms what we always suspected - that knowledge workers who
experience particular forms of work-life conflict, such as high work demands
interfering with family, are almost three times more likely to be looking for
another job than those who don't.

Of particular concern was the study's finding that part-time work was not the
panacea we might have thought. Those showing one of the highest levels of
work/life overload were professionals in flexible work arrangements.

The elephant in the room of course is working hours.

Everyone knows that long hours are one of the main reasons many, and not just
women, leave law. Many will argue that the extended hours are a direct result of
client demands, but, I would argue that in certain cases extended working hours
are often a result of unmanaged client expectations and insufficient job
redesign. Whilst there is no doubt that a number of the leading transactional
roles cannot be performed in a flexible work arrangement, these roles are in the

This view was reinforced in a recent survey, (See “360 Degree”
p 7, paragraph 13)
where clients rejected the assumption that they were
opposed to working with a lawyer using flexible work practices, and stated that
they were more concerned with the quality, cost and results of legal services.
This aligns with a series of interviews I did with Blake Dawson’s top ten
clients on the topic of flexible work.

I found, not surprisingly, that they were dealing with exactly the same
issues in their own workforce. 100% of clients interviewed were supportive of
flexible working for certain roles although there were some carve outs where a
lawyer was the lead transactional lawyer on the matter.

So what can we do? How can we create an environment that is conducive to
retaining women and increasingly men? An environment where flexible work
delivers for both the firm and the individual?

A good starting point is to reframe the issue as a significant business
issue. Flexible work is not about being nice to women or men with caring
responsibilities. This is about smart business practice. The problem for law
firms of course is a catch 22 situation. If they can’t adapt the work
practice to retain more women and stem the flow particularly in those critical
mid-career years, then they must recruit from a junior pool that is increasingly
female (68.8% according to a 2006 Australian Graduate Survey)

The focus must be on outcomes rather than inputs, on the innovative use of
technology - so individuals can work productively from anywhere, at any time in
a way that corresponds to their caring responsibilities.

It is the
re-conceptualisation of work and innovation in job redesign that will mark out
the high-performing companies in what is now a very competitive marketplace.

Step two, we must work to change the mentality which labels those who want a
life outside law as less committed or less ambitious, and so less worthy of
promotion. In the words of the Hon Marilyn Warren, Chief Justice of the Supreme
Court of Victoria:

Women and their supporters should redefine ambition to
encompass excellence and achievement but with flexibility and balance. Having a
family and nurturing it should never be portrayed as the abandonment of
ambition. Ambition...should include the option of being the best parent and the
best lawyer.”

Step three, access to high quality part-time work is vital, and it must go
beyond squashing a six day a week job into three and a half days. Quality
part-time work should be an option for women and men at all levels of the
organisation including in equity partner roles. It’s also about control.
It is clear there is no one-size-fits-all solution. Jobs must be redesigned so
that control is delivered back to individual professionals so their work-life
balance needs can be met.

There must be supports in place: paid maternity leave, study support, leave
of absence, strong mentoring and most importantly role models who represent the
diversity of men and women’s choices. We need to ensure the principles of
workplace flexibility underpin all work arrangements. Work practices must be
examined with the aim of sharing those that work and discarding those that
don't. We need flexibility that cuts both ways - for both the business and the

My experience with small business or family run businesses is that
flexibility is an area that can provide them with competitive advantage. It is
sometimes easier for small business to attract and retain staff by promoting and
providing greater flexibility than those lawyers are likely to get in large
firms. This is particularly successful where there is strong communication
between employer and employee. In the area of flexibility, small firms often
have an edge over large firms, and can offer a work practice that is very
desirable in the market.

Finally, within firms, we need to broaden the understanding of these issues
and the responsibility for bringing our most capable people through regardless
of work practice and gender. This includes measuring in a systematic manner how
we are going at all levels of the firm, identifying barriers and designing
solutions to remove them.

We need our male and female leaders modelling alternative work practice. You
can’t be what you can’t see. Where are all the successful male
partners working in flexible work arrangements?

In my new role as Sex Discrimination Commissioner, I will continue to
advocate for and model workplace flexibility. After all, we are what we do NOT
what we say!

As the Sex Discrimination Commissioner, I can talk about work and family
balance but if I’m not practising it and modelling it, I don’t have
credibility. As I was pondering this thought in my first week and wondering how
I could combine the demands of my Australia wide listening tour with being a
mum, I decided – that’s it – I’ll take the kids on part
of the tour with me. At my own cost of course. It seemed that this approach
had a number of benefits.

Firstly, it allowed me to engage on a number of levels with women,
particularly indigenous women. It enabled me to see the issues through a young
persons eyes and the kids had the incredible privilege of hearing
Australian’s lived experiences. Let me tell you there have been some
stressful moments.

But my point is that people in public life and senior roles need to model
work and family balance and that applies equally to men and women. It is a
critical mass of women and men with caring responsibilities which is going to
bring about the change we need in workplaces and over time ensure that senior
roles are opened up to the most talented men and women. I’m pleased to
report that I have also successfully negotiated my own flexible work arrangement
at HREOC where I will continue to work full time but pick my kids up two
afternoons a week. If the Sex Discrimination Commissioner can’t do it,
who can?

Careers are rarely made or derailed by a single decision. The career outcomes
for most people are the result of thousands of small decisions they make every
day. In a highly competitive labour market, remuneration should be but one part
of the ‘total package’. For working women and men, having the
flexibility to attend your child’s soccer final or their first school
recital may be ‘priceless’. For employers, this flexibility may be
the key to securing competitive advantage.

Thank you.