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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:

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.