advised her employer that she was pregnant her employer stopped offering her shifts on the grounds that there was no light work available. Minna had to move back in with her parents, sell all her belongings and considered having an abortion because she was no longer receiving an income. Given that young mothers, women from CALD backgrounds and Aboriginal and Torres Strait Islander women are more likely to be in casual jobs the challenges and negative impacts that casual and contract workers experience are also likely to be especially relevant to these groups. (h) Flexible workers Separate from casual and contract workers, the National Review heard that employees on flexible work (ie part-time work, jobshare, working from home, changes to start and finish times etc) experienced negative attitudes from managers and colleagues (eg perceived as being less committed, capable and serious about work in comparison to full-time employees), unconscious bias as well as direct forms of discrimination because they did not work I continuously have had to deal with prejudiced statements on what a part-time person can do. There is still very much a culture of ‘part-time person: part-time brain’. The company has recently confirmed that there will be no possible career progression within the company for any part-time senior staff. They have raised this on the grounds that because I am not able to participate in late afternoon events such as Friday evening staff drinks I am not able to fully mentor junior staff and am hence not supportive of the existing office culture. The management of my company have coined this in the following terms: ‘that part-time staff are not a constructive part of the current office culture’. Given this recent position statement I have been forced to resign from my job. My husband is a manager in the department and there appears to be the view that flexible working arrangements are not appropriate for managers. When he approached his boss about the possibility of working four a days a week…he was given reluctant verbal approval to his request. He was told how working four days a week would negatively impact on the workplace. He was made to feel guilty about requesting flexible working arrangements. Flexible workers also said that they were threatened with dismissal by their employers if they did not work the hours specified. Further, there was a common perception that part-time work reduces the likelihood of reaching top management and creates additional barriers for women reaching leadership positions.
4.7 Organisational culture: stereotypes, attitudes and behaviours Stereotypes, attitudes and behaviours of managers Employers reported that a key obstacle to implementing successful policies was ingrained stereotypes, attitudes and behaviours in the workplace, particularly among line managers. As a result, organisations and employees alike may be dependent upon a ‘management lottery’ where the success of policies is influenced by individual managers’ assumptions, beliefs, attitudes and behaviours. Lack of awareness and knowledge of obligations and skills to implement policies can also contribute to gaps between laws and policies and actual practice. Some managers do it well, some don’t [Success is] dependent on your own relationship with your manager, and their own personal views on flexible arrangements. Conscious and/or unconscious bias among managers about pregnancy, parental leave, and flexible work can lead to discriminatory behaviour. Managers may lower an employee’s workload, for example, due to the false assumption that a pregnant woman cannot handle extra stress or perform as well as others. Nothing gets done in the last 6 months [of pregnancy]. Unconsciously, managers start writing off people because they won’t be there [during parental leave]. Employers told the National Review that managers may need training on their obligations with regard to pregnancy, parental leave and return to work, as well as the organisation’s policies. Many organisations still face a strong culture of ‘presenteeism’ and are reluctant to accept that flexible workers can be productive. Managers [don’t want] to provide flexible working arrangements for employees returning to work and try...to find ways around it so the employee has to return fulltime. [We have] flexible working arrangements…and support from senior management. But the middle managers are still difficult. We had one this week say, ’there’s no way the caseworker can be part-time.’ We are really working on getting middle management to think outside the box. They are just so reactive. It’s about getting them to think through the options and showing them how it can be done. Organisational culture
For this reason the National Review recommends amending the SDA to ensure that discrimination on the ground of ‘family responsibilities’ includes ‘indirect discrimination’. Implementation of several other outstanding recommendations from the 2008 Senate Inquiry would assist in addressing pregnancy/return to work discrimination including those relating to costs, comparator and the role of the Commission. Further analysis and information on the relevance to the focus of the National Review of each of these outstanding recommendations from the 2008 Senate Inquiry is provided in Appendix G. Positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family responsibilities In an effort to work towards substantive equality, the National Review received submissions proposing that the SDA be amended to include a positive obligation on employers to take all reasonable and appropriate measures, including special measures, to provide a workplace free of pregnancy/return to work discrimination. The National Review received several submissions to include within the SDA an express duty on employers to reasonably accommodate or make reasonable adjustments for persons (including employees and prospective employees) who are pregnant or who have family and caring responsibilities, including requests for flexible working arrangements to accommodate family or carer responsibilities. Whilst in practice, the existing indirect sex discrimination provision under the SDA already requires that policies and practices do not unreasonably disadvantage people with a particular attribute, it would be clearer to have an express provision to this effect. This provision would require reasonable accommodation, except where those adjustments would cause unreasonable hardship to the employer. This would also align the SDA with similar obligations under the Disability Discrimination Act 1992 (Cth) relating to reasonable accommodation of persons with a disability. The National Review recommends including under the SDA a positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family/carer responsibilities. Prohibiting employers from collecting information not related to the job and/or using information collected to discriminate against an employee The SDA prohibits collection of information relating to pregnancy, potential pregnancy, or marital or relationship status, if it is being collected for a discriminatory purpose (ie the information will be used to treat that person less favourably than someone without the protected attribute). However, the National Review received submissions noting that some employers do collect such information, on the basis that it will not be used for a discriminatory
There were a range of views on the adequacy of the existing provisions in the FWA to protect employees from pregnancy/return to work discrimination. Some submissions suggested amending existing rights under the FWA and others considered the inclusion of new rights under the FWA to clarify employer obligations and strengthen protections for employees was necessary. Amendments to existing entitlements and protections Several key amendments to existing entitlements and protections may assist in addressing the forms of discrimination examined by the National Review. Right to request flexible working arrangements While the research shows there is a relatively low awareness of the right to request a flexible working arrangement amongst employees, the results of the National Telephone Survey showed that 89% of requests for adjustments to their working arrangements (by mothers on their return to work after parental leave) were granted. However, 18% of mothers who returned to work following the birth of their child reported experiencing discrimination related to requests for flexible work. Despite some challenges faced by businesses in accommodating flexibility in the workplace (see Chapter 4), business and industry groups generally supported the ‘right to request’ provisions in their current form, but did not support amendments to include provisions for enforcement. On the other hand, the National Review received many submissions from individuals who had experienced discrimination, as well as submissions from unions and community organisations, that the right to request provisions lacked ‘teeth’ and that employers were using the ‘reasonable business grounds’ provision as a basis for refusing requests without a genuine attempt to accommodate employees’ requests. Given there is currently no right to appeal, this leaves employees with no recourse. The National Review received submissions with the following suggestions to strengthen the ‘right to request flexible working arrangements’: remove the qualification requirements relating to length of employment in s65(2); include a positive obligation on employers to reasonably accommodate an employee’s request for flexible work arrangements (including work); strengthen the enforcement mechanisms by: providing for an appeal process against a refusal to make reasonable adjustments or a failure to respond with reasons within 21 days; or removing the exemption of the ‘right to request’ flexible work arrangements from the civil remedy provisions under the FWA (s44); include a 'right to work part-time or flexibly' until a child is two years of age.
and practices of policies in your organisation; assess and review existing programs and practices at regular intervals to identify where improvements or changes need to be made consultations with staff who intend to use/have recently used parental leave or have returned to work; actively track career progression leave; regular implementation of relevant feedback into policies and practices Enable informed and open decisions: Providing the information Use a guide/toolkit; make the information accessible Hardcopy guides/toolkits/brochures for soon-to-be/recent parents and line managers; make information available for download from intranet and internet; allocation of staff positions responsible for ensuring information accessibility of information Empower managers: Providing support for management Ensure that all managers are aware and informed of policies; support managers with coaching and resources; ensure that the organisation’s structures encourage managers to support pregnant women and working parents Formal training and coaching for all managers; checklists for managers to assist in implementation of a formal frameworks and procedures; monitor and reward managers, eg performance criteria and repercussions for managers who discriminate; conduct surveys to assist in performance feedback Empower individuals: Providing support for employees Offer internal and/or external coaching and/or training; create internal networks of support; establish a robust return to work support Education and training; workshops; mentoring, coaching and buddy systems; establish online networks as a conduit for advice and guidance;
infrastructure; provide anti-discrimination and unconscious bias education establish support groups and programs Facilitate return to work: Establishing flexible work arrangements Design flexible jobs and flexible careers; promote flexible work and embed flexibility into the organisation’s culture Establish a ‘results focused’ culture; Increased schedule control for employees; create jobshare registers; IT equipment purchases to enable remote work Think big picture: Understanding ‘what’ and ‘why’ Know your legal responsibilities as a business. Employers must be aware of the laws that govern this area in order to fulfil their responsibilities adequately. Employers should seek advice from government, business associations and industry peak bodies, who have many resources available that provide this information. Further information: Useful resources on legal obligations Australian Human Rights Commission: Fair Work Ombudsman: ASX Corporate Governance Council: Australian Industry Group Bizassist Infoline: 1300 78 38 44 Australian Chamber of Commerce and Industry (and state and territory Chambers of Commerce): Workplace Gender Equality Agency: Some state and territory anti-discrimination and equal opportunity authorities have developed resources for employers and employees. For example, Victorian Equal Opportunity and Human Rights Commission: Some state and territory governments also have resources specific to their respective jurisdictions. For example, NSW Industrial Relations: Understand and communicate the reasons for establishing infrastructure, policies and programs to support employees who are pregnant, on parental leave or returning to work. Awareness of employee rights is crucial to ensuring that these policies are integrated into the organisation’s values, operations and culture.
Table 2: Implementing policies and managing the process comprehensively and efficiently Phase 1 2 3 4 5 Starting off right Preparing for leave Staying connected Reintegration Career acceleration Standard expectation Pregnant employees should be able to continue working ‘business as usual’, while having specific needs accommodated Leave and return should be clearly planned, appropriately setting expectations for both employees and managers Parents should feel connected to the organisation during leave and the encouragement to return should be clear Parents should be able to pick up where they left off, while being able to balance work and family commitments Career planning and development opportunities made available – placing returning parents on same successful career trajectory as all other employees Mechanism to support Manager and employee checklists to facilitate a positive and productive conversation about working during pregnancy; work health and safety checklist Manager and employee checklists; discuss ‘staying in touch’ expectations; plan expected return dates; ensure a quick turn around on paper work and consistent follow up Formal catch-up dates that are not cancelled; access to laptop and mobile; inclusion in development reviews; business update newsletters Highlight flexible return options and establish a formal process for requesting and granting flexible work requests; support managers to manage flexible workers; return to work workshops and seminars; early childhood education and care services services; Career planning; sustainable flexible program; removal of any unconscious or systemic bias
PARENTAL LEAVE 12 CONCERNED IT MIGHT AFFECT YOUR RETURN TO WORK AFTER PARENTAL LEAVE 13 AFRAID IT WOULD AFFECT YOUR CAREER 14 THOUGHT YOU WOULD GET FIRED 97 Open end OTHER (SPECIFY) 98 Single DON’T KNOW 99 Single REFUSED ENDIF IF CODE 2 IN SCR3 [SINGLE RESPONSE – INTERVIEWER NOTE: READ OUT] Q14a. Overall, how supportive or unsupportive would you say your employer was towards you when you were pregnant with your child? 1 Very supportive 2 Supportive 3 Neither supportive nor unsupportive 4 Unsupportive 5 Very unsupportive 98 Single (DO NOT READ) CAN’T SAY 99 Single (DO NOT READ) REFUSED ENDIF PARENTAL LEAVE Now we would like to ask you questions about your request for or taking of parental leave or other leave to care for your child. IF BB IN SAMPLE [SINGLE RESPONSE – INTERVIEWER NOTE: DO NOT READ]
Electricity, Gas, Water and Water Services Male Construction Male Wholesale Trade Male Retail Trade Neither Accommodation and Food Services Neither Transport, Postal and Warehousing Male Information Media and Telecommunication Neither Financial and Insurance Services Neither Rental, Hiring and Real Estate Services Neither Professional, Scientific and Technical Services Neither Administrative and Support Services Neither Public Administration and Safety Neither Education and Training Female Health Care and Social Assistance Female Arts and Recreational Services Neither Other Services Neither Appendix C: International Labour Organization Conventions and Recommendations Discrimination (Employment and Occupation) Convention, 1958 (No. 111) [ratified by Australia]; Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111) Requires Member States to pursue a national policy to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect to the right of work. Workers with Family Responsibilities Convention, 1981 (No. 156) [ratified by Australia] Article 3. Make it an aim of national policy to enable persons with family responsibilities who are engaged, or wish to engage in employment, to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities. Article 8. Family responsibilities shall not, as such, constitute
Table E.2. Complaints received relating to employment* Ground 2008 2009 2010 2011 2012 2013 No As % of all sex As % of all No As % of all sex As % of all No As % of all sex As % of all No As % of all sex As % of all No As % of all sex As % of all No As % of all sex As % of all 457 1463 476 1366 410 1223 457 1221 383 1231 383 1125 Pregnancy 77 17% 5% 64 13% 5% 69 17% 6% 77 17% 6% 64 17% 5% 69 18% 6% Parental leave/Family status 84 18% 6% 73 15% 5% 56 14% 5% 84 18% 7% 73 19% 6% 56 15% 5% Breastfeeding 0 0% 0% 2 0.4% 0.1% 2 0.5% 0.2% 0 0% 0% 2 -% -% 2 -% -% *Figures are for calendar year **Counted by ground. One enquiry may have more than one ground
Number received** As % of all sex discrimination complaints As % of all complaints received Number received** As % of all sex discrimination complaints As % of all complaints received Number received** As % of all sex discrimination complaints As % of all complaints received Queensland Commission Pregnancy 28 11% 4% 30 14% 4% 42 17% 6% Parental leave/Family responsibilities/carers responsibility/parental status 77 31% 10% 67 31% 9% 68 27% 9% Breastfeeding 2 1% 0% 1 0% 0% 1 0% 0% Victorian Equal Opportunity and Human Rights Commission Pregnancy 52 10% 3% 43 11% 4% 40 10% 3% Parental leave/Family responsibilities/carers responsibility/parental status 145 29% 10% 148 38% 13% 151 39% 4% Breastfeeding 3 1% 0% 2 1% 0% 1 0% 0% Equal Opportunity Commission of South Australia Pregnancy 14 14% 7% 6 10% 3% 3 8% 6% Parental leave/Family responsibilities/carers responsibility/parental status 14 14% 7% 12 19% 7% 4 11% 5% Breastfeeding N/A N/A N/A Ground 2011 2012 2013 Number received** As % of all sex discrimination complaints As % of all complaints received Number received** As % of all sex discrimination complaints As % of all complaints received Number received** As % of all sex discrimination complaints As % of all complaints received Equal Opportunity