A recent decision handed down in the Supreme Court of Victoria found that a group of senior employees did not disclose their involvement in the purchase of two businesses owned by their employer.  The Court found that failure destroyed the necessary “confidence” essential to the relationship of employer and employee and was a breach of the employees’ duty.

The Court ruled that, by not disclosing their involvement in the purchase of the businesses, the managers were free to influence the sale process and their employer was prevented from taking steps to forestall that by, for example, putting in place a Chinese wall restricting the flow of information about the sale to any of the managers, dismissing the managers, managing the sale process in a different way or even cancelling the sale altogether. The fact that the managers did not in fact have any material influence on the terms of the sale agreements or the manner of sale in each case, was deemed irrelevant.

The judgement in question was handed down on March 20 by Justice Peter Vickery in the case of Hodgson v Amcor.

The Court found that one of the senior managers, Hodgson, secretly provided consultancy services to an unrelated business, which would have assisted that business to expand its operations in direct competition with the company, Amcor.   The Court found that Hodgson did not inform Amcor of the relevant facts at any time, despite having a conflict of interest between his duty to Amcor and his personal interest.  The fact that Hodgson may have been obliged to keep the future plans of the competing business confidential only served to highlight the conflict that Hodgson had placed himself in by his conduct.  The Court found that by withholding this useful information from Amcor, Hodgson, as one of its senior managers, engaged in conduct which was incompatible with the fulfilment of his duty to Amcor, and was destructive of the necessary confidence between Amcor and him.

There are three lessons for HR practitioners in this decision:

• Generally speaking, employees owe their employer implied duties of loyalty, honesty, confidentiality and mutual trust.  These arise under the employment contract.
• If an employee engages in conduct in respect of an important matter (not trivial) and the conduct is incompatible with the fulfilment of those duties, or is destructive of the necessary confidence between the employee and the employer, the employee will be in breach of common law duties and the employer will have grounds for summary dismissal.
• If the employee is in a position where his/her personal interest (or those of others) may conflict with the duties of loyalty, honesty, confidentiality and mutual trust owed to the employer, the employee must inform the employer of the relevant facts and circumstances. If after being told of the conflict the employer consents to the employee engaging in the conduct, the employer cannot later seek to treat the conduct as justifying summary dismissal.

To view the Supreme Court judgment in full go to Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94 (20 March 2012) at http://www.austlii.edu.au/au/cases/vic/VSC/2012/

Charles Power is a partner at the law firm, Holding Redlich, and is an accredited workplace relations specialist.

There were plenty of good things that could have been said about the way Toyota handled its recent redundancies at the Altona plant in Melbourne.

First the company announced some months ago its intention to make job cuts and explained that the strong Australian dollar was the straw that was breaking the car maker’s back in what was an already tough market.  So, Toyota was upfront and transparent. All good!

Then, when it did make its announcement, the redundancy payout was four weeks’ pay for every year of service capped at 90 weeks when 75 weeks would have met legal requirements, and the company would be providing assistance for those affected to find another job.  In both areas, brownie points for generosity.

But instead of all these positives in what can never be a good news story, the nation was treated to a crude exercise in ponderous Orwellian behaviour by Toyota. The affected 350 workers were told to pack up their belongings and escorted to a reception centre where they were handed documentation that related to their redundancy that, astonishingly, included a score sheet setting out their personal failures in the areas of behaviour, skills and knowledge relative to their colleagues.

There was failure evident at Toyota, however.  Someone in a critical planning role had failed to join the dots.  If the company’s intention is to assist in getting 350 laid-off workers new jobs how, at the same time, can the company be saying publicly that they are no good?  What starts to reveal itself is a muddle-headed management malaise that raises a question about why so many workers had seemingly not come up to scratch.

Whatever else might be said, what happened was a disaster and damaging to the Toyota brand, a brand with a hitherto enviable reputation as a good employer. It suggests some serious flaws in Toyota Australia’s management and leadership were displayed publicly in the culling. The Human Capital online newsletter described the Toyota exercise as a “HR botch-job”. The Australian Financial Review headline called it “An unusual way to let go”, which was probably a nice way of saying “What a mess!”

A mess it was, but I would add that it was not necessarily a mess that can be dumped on HR professionals. What’s important to understand is whether the HR function at Toyota is structured in such a way that it can and does contribute to important strategic decisions. This is a perennial issue for many good HR practitioners. The HR function in many organisations remains largely impotent, often reporting into finance or other operational functions. If this was the case at Toyota then responsibility for this “HR botch-job” should be placed squarely with the Toyota executive team. We’ve been banging on for years that good HR can never happen without the support, respect and endorsement of the CEO. Good HR can never happen when it reports to the finance department.

I would suggest that it’s reasonable to expect that a company of Toyota’s size and resource-base would be able to deliver a coherent and coordinated communication of the key messages in a mass redundancy that could minimise the harmful effects on  workers and limit damage to the brand.  Neither of those two things happened and it’s not necessarily because HR bungled it.

The PR side to this exercise should have included credible and consistent narratives, one internal and the other external.

The internal communication needed to be directed at both the laid-off workers as well as those retained by the company.  People still working at the company are not stupid. They can see that if their colleagues are treated shabbily today, it might happen to them tomorrow.

The external narrative should not have included any information related to the reasons that workers were chosen in the cull that reflected negatively on those workers.  They are private matters and should have been communicated privately, if at all.  Without a doubt, communicators need to tell the truth -  but a mass redundancy is not a court of law.  There is no requirement to tell the truth, the whole truth and nothing but the truth to the entire world, especially if negative repercussions on the affected workers are likely to result.

There are many circumstances in a big company where the human resources and public relations functions need to be authorised to talk to each other.  In the Toyota case, it’s by no means evident they did.

Serge Sardo is the chief executive of the Australian Human Resources Institute

Debate about whether Facebook should be banned from the workplace rages on. And many organisations are still uncertain whether banning is a wise course of action or if it is even possible to enforce.

Let’s explore some of the arguments for both sides.

Why are some companies deciding to ban Facebook at work?

The popularity of Facebook is irrefutable. In December 2010 it surpassed google.com for the first time as the most popular site on the world wide web. Millions of us are hooked and there’s even a descriptive term coined for it – Facebook Addiction Disorder (FAD).

Concerns around lost productivity generally drive management decisions to ban Facebook. It’s no surprise that managers don’t want their employees spending hours on the platform when they should be working.

Celebrity businessman and Dragons’ Den panellist Theo Paphitis banned Facebook at his workplaces and strongly advocates this move. Writing for a national newspaper in the UK he explains,

“The explosion in online activity has resulted in an orgy of self-indulgence and       exhibitionism. Businesses might have been helped by the ability to promote themselves on the internet, but they have also been hit by the web’s encouragement of time-wasting by their staff.”

Other arguments supporting the case for banning Facebook revolve around upholding brand reputation and removing the need for staff discipline.

With users unable to access social media sites at work, management limits the possibility of messages being sent during work hours that may dilute their brand.  And if you’ve invested valuable time and money in staff training, you’ll want high retention rates without the need to exert discipline around too much Facebook browsing.

Yet a blanket Facebook ban as advocated by Theo ignores some of the benefits that Facebook can bring to a business.

Why allow staff access to Facebook at work?

A blanket ban on Facebook can quickly prove a nightmare for HR managers and line managers. It can give the impression that staff are not trusted, resulting in lowered morale and resentful team members if the reasons for monitoring Facebook usage are not communicated adequately. After all, a happy workplace is more likely to be a productive workplace.

Facebook may have started out as a very personal tool that was not intended for corporate communication but that line has blurred dramatically in recent years.  It now offers a number of business benefits.

It’s common for business to take advantage of Facebook’s gargantuan 800+ million user base to spread knowledge of an organisation through their networks quickly, easily, at a low cost and to drive revenue generation. It can be a great way for staff to keep up with industry news and provides an avenue for employees to monitor useful discussions occurring outside company walls.

So what’s the right decision on Facebook?

There’s no right or wrong answer.  One useful option could be to focus on developing an Acceptable Usage Policy (AUP) specific to the company and designed to promote an engaged and productive workplace. An AUP is a set of guidelines that outline just how web browsing operates at the workplace.

In the majority of cases, a blanket Facebook ban does not work. The simple “allow” and “deny” functionality offered by firewalls or web security solutions is inadequate.  You cannot resolve the problem of excessive Facebook activity without sacrificing the numerous benefits offered by the platform.

Enforcing an AUP can be a challenge for HR managers and line managers, but it’s probably achievable through the use of judicious web monitoring solutions that are customised to meet an organisation’s needs. For instance, access can be controlled on an individual user basis, granted by department, or even be set based on times of the day, such as lunch times and after hours. Alternatively, line managers might want to have Facebook accessible at all times but let their employees know that they need to use it sensibly and that the web usage is being monitored as a standard IT practice.

In this way, organisations can ensure they reap all the business benefits Facebook can bring.

Rhondda King is  HR/Relationships Manager at MailGuard

Former high court judge Michael Kirby is a keynote speaker at HRIZON, the World HR Congress, in September. AHRI National President Peter Wilson interviewed Justice Kirby.

Peter Wilson: Your early career vision was to be a bishop or a judge. Why did you forsake the church for chambers and the courtroom?

Michael Kirby: I thought I would have more influence in the law in Australia as it was developing at the time. I’m very proud to belong to the Anglican church but it’s disappointing because when I was young 40 per cent of Australians were practicing Anglicans and this has dwindled away. The church has lost the leadership it could have given as a largely tolerant religion. Instead, we are seeing the great growth of intolerant churches and political interference by these churches, which is quite antithetical to the secular tradition of democracy.

I don’t like these developments and wouldn’t have been comfortable with them, but I also don’t think the Anglican leaders are sobbing that I didn’t go on to become a bishop. They are probably glad that I wasn’t around because I would have been a troublemaker (which may have done them some good). But I found another area of activity where I could do useful work and I don’t regret my choice at all.

PW: Who have been the principal mentors in your life who have shaped your thinking and helped you decide where to put your efforts in your career?

MK: My parents were wonderful. They were young, ambitious without being pushy and they encouraged all of us to flourish. My siblings have always tried to keep my feet on the ground, not always with success — I am a very typical eldest child and eldest brother. We are a very close family and I’ve always been surrounded by love and that always gives you great strength.

I had terrific mentors among my teachers in New South Wales public schools. I get very upset when I see people attacking public education, particularly the dual attack on public schools by the pressure on people to send their children to private schools and calls for the introduction of chaplains to public education, which has always been secular.

I had wonderful teachers at university. Julius Stone is someone I would single out as an important mentor in my intellectual life. He was a teacher of the realist school of jurisprudence, which was quite different from what we were taught as the orthodox view at the time. At the bar I received great support from marvellous barristers such as Neville Wran, and Lionel Murphy who was a very different personality from me. He was a great partygoer and I was a party pooper. But for some reason he used me in cases that he had in front of the High Court and that was a great experience.

I was blessed with many fine mentors and now in the international arena I know many leaders of great ability, warmth and insight, such as Mary Robinson, a past high commissioner for human rights at the United Nations, Louise Arbour, one of her successors and Navanethem Pillay, the current high commissioner. Jonathan Mann who headed the first United Nations global program on HIV is another inspiration.

PW: You have commented that judges are now being clearer about the values behind the pronouncements and decisions they make. It’s no longer about interpreting black letter law. Is this increasingly the case?

MK: The role of a judge in the common law system has always been to solve the problem before the court and that involves doing so in reference to the legal rules and principles, and understanding them as they are stated in the Constitution or named in Parliament or in a past legal decision.

Julius Stone, my jurisprudence teacher at law school, taught that judges must have leeways of choice. This means judges are not on automatic pilot, there is choice involved and that must be acknowledged in order to be as transparent as possible. But people should also be aware that sometimes judges don’t have the opportunity or the time to analyse the underlying currents. However, appellate courts judges need to be as candid as possible about why they choose one solution or another. This allows people to criticise their opinions, and where they think the opinions are wrong, to change the law (except in Constitutional cases) by act of Parliament. So it’s a matter of being as candid as time and circumstances permit.

PW: Your life and career has been characterised by a continuous search for defining appropriate standards for what is fair in a well-functioning society. What do you see as the main challenges for fairness within modern workplaces
in Australia today? What suggestions or advice would you have for our practising HR members, with respect to these challenges?

MK: Obviously fairness and finding a way to allow for the dignity of every employee is a very important aspect of every workplace. We need to ensure fairness to all, including minority groups that are not always loved and understood. All of these impose obligations on people in HR that didn’t exist when I entered the workforce — when everything was very Anglo-Celtic and stereotypical. I believe we’ve made progress in our workplaces and in society as whole.

One thing that workplaces can’t control and that worries me is that many young people cannot find work at all. In Europe, for example, there are many young well-educated people who are out of work. We have to ask ourselves, how do we increase the utilisation of the talent that exists and give people fulfilling lives, given that work is an important aspect in the lives of most human beings?

I have obviously taken the love of work to too great an extreme. I didn’t learn, and still haven’t learnt, the importance of having a balanced life. Work is important but so are family and friends. But that imbalance is not as serious a one as depriving young people of the enjoyment of work both as financial security and social interaction, and instead commits them to living on handouts from the state; this will confine them to a very unadventurous and limited existence.

PW: Your autobiography A Private Life, and the earlier biography Paradoxes & Principles by AJ Brown, are dominated by the relationships between your sexuality, your career and your public life. Society is more accepting of homosexuality now, compared with the beginning of your career. Gay people today do not have to labour the way you did. Is this an example of a more compassionate and accepting society and do you think we have made progress on this front?

MK: Yes I do believe we’ve made progress. There was a recent Economist article about companies that make efforts to ensure their GLBT (Gay, Lesbian, Bisexual and Transgender) employees are treated equally. These companies tend to do better in the economic stakes and they also secure the loyalty of their gay employees. It also makes the point that increasing numbers of heterosexual employees feel uncomfortable if there is an absence of complete equality in the work environment.

It’s important to everybody’s journey to be comfortable with themselves and not to feel second rate because of who they are. Leaving aside Australia, where we will eventually get this right, there is still much progress to be made in so many other countries.

Last year I served on the eminent person’s group on the future of the Commonwealth of Nations and we delivered our unanimous report to the CHOGM meeting in Perth, which recommended that for the successful struggle against the spread of HIV it was necessary to remove those laws that are an impediment to good communication about matters of sexual intimacy. It was shocking for me to see how leaders of countries, which one would think of as champions of human rights and equality, were often opposed to these recommendations.

We have to keep our eye on the fact that there is a very dangerous epidemic about, which is still with us and not over. Every year about 2.6 million people still become infected with HIV and the countries that have been most successful in limiting the spread of HIV are those countries that have taken steps to remove the impediments to good communication. If you stigmatise people and tell them that they are evil you are not going to get into their minds and you are not going to affect their conduct in respect of their sexual lives.

PW: Do you have some hope that change will happen in these countries?

MK: I always have hope because I believe progress is made through our inherent capacity for rational thought, for the search for the logical, scientific truthful answers to problems. In the matter of sexuality those features are on the side of rationally accepting that there is this small variation in human existence. This is not going away any time soon and we’ve just got to adjust and get on with life. My own hope is that my journey has been of help to young people, particularly young Australians in minority communities and in the regional and rural areas, where progress can sometimes be slow and ignorance and opposition is sometimes more powerful.

“I have obviously taken the love of work to too great an extreme. I didn’t learn, and still haven’t learnt, the importance of having a balanced life”.

Kirby will speak at HRIZON, the 14th World HR Congress, opening ceremony on Tuesday 25 September.

AHRI National President Peter Wilson AM spoke to The Hon. Michael Kirby AC CMG for the April edition of HRmonthly, where this article was first published.

Today’s human resource leaders work in complex and challenging workplaces, striving to deliver workforce solutions that are real-time, transparent and inclusive.

Amongst an organisation’s stakeholders, the executive team have the greatest influence over inclusion. They set the culture, shape the values and provide vision.  When influencing this group, it is important though to refrain from being an activist. Beating a rainbow path to the CEO’s door won’t cut it if what you’re trying to achieve is a sustainable culture of inclusion for staff who are lesbian, gay, bisexual or transgender (LGBT)

The secret is incrementally adjusting perceptions: it’s about building trust and respect rather than lobbying.

You have to think strategically, tactfully, tactically and sometimes surgically. You must raise awareness of the value-add of inclusion and how it can be consciously directed toward achieving business outcomes.

How do you do this? Take a moment to consider your executive team. Each one of them has a different bottom-line. In order to win over the group, you have to target the individuals: their motivators, their emotional connection. In many ways, you need to think “diversity”.

As you start to engage these stakeholders, it’s likely that you’ll be faced with rejection and denial: we’ve tried this before… but we have a “gay” in accounts and he doesn’t complain… we have already met our quota…

There are seven persuasive business arguments for inclusion that aim to influence executive stakeholders so that they see the importance of a diverse and inclusive culture. The trick is to engage them to ensure that they don’t see diversity as a distraction – but rather as an opportunity for competitive advantage.

1.         What customers will think

Consumers are now attentive to the track record of businesses – not the financial record. They are focused on the environmental impact, the diversity record, the level of social responsibility, such as the organisation’s integrity and values. Research by Harris Interactive found that three quarters of gay and close to a half (42%) of straight consumers in the US are less likely to buy products from companies perceived to hold negative views of lesbians and gay men (Stonewall, 2008).

2.         What others are doing

Australian companies and public sector agencies are now developing robust diversity policies; policies that are inclusive of LGBT staff. These organisations recognise the economic benefits not only in attracting customers but also in enhancing productivity and retaining staff.

Pride In Diversity’s Australian Workplace Equality Index ranks Australian businesses and government agencies against a rigorous criteria. In 2011 IBM and the Australian Federal Police were ranked top Australian employers for inclusion.

3.         The risk

Some will see inclusion as a compromise of beliefs that will affront staff and customers alike, yet this is not what inclusion is about. Inclusion is not about changing people’s values, nor confronting religious beliefs. Fundamentally inclusion is about valuing and celebrating difference.

At its heart, inclusion aims to create a safe workplace that is built on trust and is free from discrimination. The Pink Ceiling is Too Low report (Irwin, 2002) showed that 59% of LGTB employees feel discriminated in the workplace: the major form of discrimination being harassment, including homophobic jokes, aggressive questions and even physical violence. Some 19% reported a restrictive career as a result of their sexuality.

4.         The opportunities

Some executives are motivated by opportunities like being the biggest, the best, the first. They are motivated by opportunities that make the organisation look good; of course they are motivated by opportunities that make them look and feel good as individuals too.

Strong leaders can see the value of diversity. They are able to leverage diversity to tap into innovation and deliver results. IBM argues: “brilliance isn’t born of conformity”.

Inclusive policies build an environment of trust. When people are trusted, they are more likely to create and innovate. A workforce is more likely to challenge itself if there is an absence of fear such as the fear of making mistakes.

5.         The impact on staff

Inclusion provides a litmus test for engagement. Inclusive cultures implicitly engage staff. In a culture where there are secrets and a lack of trust, there is lower productivity. Too much energy is wasted on protecting one’s identity. It is estimated that between 6-10% of people identify with being LGTB: that’s a lot of energy potentially wasted.

Inclusive strategies have a positive ripple affect across the entire workforce and impact on all workers whether they identify with a specific diversity group or not. The annual global Gallup engagement survey shows that around 80% of Australian employees are not fully engaged in the workplace, costing business around $42B per year in lost productivity. Engaged employees deliver 27% higher profits; 50% higher sales; and generate 50% higher customer loyalty.

6.         The cost

Every HR practitioner knows that disengaged employees are more likely to change organisations. It is estimated that 21% staff are actively looking for work at any one time. With social media’s success in facilitating recruitment, staff no longer need to search for work – it comes to them.

We know the dire state of the Australian employment market. We’re at the cross-over where the numbers exiting the workforce are beginning to exceed new entrants. The costs of replacing a productive staff member can sit as high as 150% of an annual salary.

Inclusion programs not only engage a workforce, but they appeal to a new generation of workers. They underscore an employment value proposition and can contribute to becoming an employer of choice.

7.         The right thing to do

Most executive teams have at least one member who is motivated by the impact that inclusion can have on the lives of individuals. For people like this, inclusion policies can represent an endorsement of personal values, respect and a belief in equality.

In summary, tackle your stakeholders from a range of angles: customers, competition, opportunity, innovation, staff, productivity and the fact that it’s the right thing to do.

Stephen Walker is a Principal at Workforce Strategies and the former National Manager for Human Resources at the Australian Federal Police.

In recent years, the death knell for the performance appraisal has been sounded again and again. The arguments to “kill” the performance review are generally centered on the fact that many organisations implement the process poorly which can result in employee dissatisfaction and disengagement.

In his New York Times Op Ed piece Why the Boss is Wrong About You, UCLA Professor Samuel Culbert shared some compelling reasons why performance reviews fail. He rightly points out that reviews are often the primary judge of employee effectiveness and that often they are unfair.

But look closely and you’ll see that more than anything Culbert is referring to a process that is entirely broken and does not inspire or engage employees, let alone drive business results. Performance appraisals can be extremely valuable and relevant. They just need to be executed as part of a larger talent management strategy, and become much more than a one-way flow of information from the manager to the employee.

Before throwing out the performance review, why not take a stab at fixing the process?

Performance reviews can be considered a linchpin of talent management, and without them, your organisation lacks critical insight when it comes to other processes like succession, development, goal alignment and even pay for performance. These programs all rely heavily on the information and intelligence gathered on an ongoing basis as part of the performance appraisal process.

Furthermore, there are many compliance requirements in industries such as manufacturing and healthcare that require organisations to execute reviews and to evaluate competencies. Without a performance review process, key certifications may be put in jeopardy.

Often, the performance review cycle is deemed a negative – if not a completely soul sucking exercise – that demoralises employees. Take a long hard look at how reviews are conducted in your organisation and ask yourself if the process encourages and inspires your people to be their best. Or does it critique, rate and rank them as inadequate?

A big part of an effective review process is that it encourages self-awareness. Both the manager and the employee should be taking time to meet regularly to reflect on performance throughout the year. The use of performance journals and self-assessments should be part of the process.

Journal notes provide employees and managers an easy way to keep a record of milestones, accomplishments, successes and challenges as they occur, when the details are fresh in their minds. Not only do these details help you to provide employees with feedback rich with real examples, they can help employees to prepare for these feedback discussions too.

Keeping journal notes helps employees get out of the “I came to work for eight hours” mindset and into the “What did I accomplish that is relevant to my goals?” mindset. It enables employees to take an active part in performance discussions by raising their accountability in the process.

Self-assessments and 360 degree reviews also help to address many of the common concerns about reviews because these tools help to provide a complete picture of employee performance by taking into consideration feedback from multiple sources. This is especially important in organisations where employees don’t work directly with manager.

While self-assessments give the employee a voice in the performance appraisal process, 360 degree reviews help managers and employees better understand strengths and weaknesses as perceived by peers, team leaders, mentors, subordinates, or even external stakeholders, such as customers and suppliers.

Substantiating feedback with input from multiple sources not only makes it more objective, it increases the impact by making it easier to identify areas that need development.

If we want performance appraisals to be a positive experience, we need to take the focus away from ratings and instead focus on providing managers the tools, guidelines and resources to manage feedback and conduct performance reviews in a way that focuses on the skills and behaviours that contribute to high performance.

Instead of ditching performance reviews, why not take the time to reflect on what you are giving up? Strong talent management is built on effective employee performance management practices. Anything less can have a major impact on your employee engagement and development efforts, your sustainable competitive advantage in people, and corporate performance.

Sean Conrad is a senior analyst with talent management vendor Halogen Software.

Through February we watched from the sidelines, as the Labor Party seemed to spontaneously implode. The thin veneer of unity that had been so tenuously holding the Labor ‘team’ together since Kevin Rudd was deposed by Julia Gillard in 2010 shattered, with federal Labor parliamentarians savagely and publicly attacking each other.

Now that the dust has settled, on this round at least, there is no doubt that the media, the Labor Party and the punters will be asking who is to blame.  Neuroscience would suggest that the human brain itself has played a part in the unraveling of the Labor team.

The primary organising principle of the human brain is to minimise danger, maximise reward.  Neuroscientists refer to the approach-avoid response, which basically means that for every stimulus we encounter, the brain will tag it as either good or bad and consequently will choose to engage (approach) or disengage (avoid).

We have known for decades that the approach/avoid response is designed to keep us alive, to ensure that the caveman runs from the wooly mammoth, and we keep our hands off the stove.  More recently neuroscience has demonstrated that the brain uses very similar circuitry for interacting within our social world.  In other words, the brain will treat a perceived threat to your status in much the same way it would treat a threat to your life.

In his book Your Brain At Work, David Rock identifies five domains of social interaction that can trigger approach/avoid response (SCARF model).  These are status (where do I fit in the pecking order?); certainty (can I predict the future?); autonomy (am I in control?); relatedness (do I feel safe with others?) and fairness.

Now, let’s go back to the Labor team.  Ever since the 2010 overthrow the status of Kevin Rudd and his backers has been threatened.  Rudd’s subsequent behavior as an apparent “team terrorist” has threatened Julia Gillard’s sense of being safe within the ranks of her own team.  A tenuous hold on a minority government has created a threat to the entire team’s sense of certainty.  The ongoing conflict between Rudd and Gillard backers threatens each side’s sense of autonomy.  There is a widespread sense that the deposing of Kevin Rudd was unfair.

Here is a team under considerable social threat.  Now let’s consider what happens when the brain senses threat.

When the human brain senses threat it sends resources to those parts of the body needed for ‘fight or flight’, which reduces the resources available to the neocortex, or thinking part of the brain.  Daniel Goleman referred to this as an ‘amygdala hijack’, and reported how this can lead to emotive and irrational responses.

When the amygdala is activated less oxygen and glucose flows to the prefrontal cortex, which is responsible for working memory.  The subtle signals required to solve non-linear problems and gain insights are not perceived by a brain busy warding off threat.  There is a tendency to generalise more, and to err on the safe side, missing opportunities.

If you have felt over the last 18 months that the Labor team has made foolish decisions and reacted recklessly, this is not because they are stupid but because they are operating with their brains in a state of constant threat.  If you feel that the vitriol of the last 10 days has been idiotically self-destructive, this is because the threat has become so great that many are reacting with their primitive brains, not their thinking brains.

It is easy to sit back and say ‘that’s politics’, but the truth is that what happened to the Labor Party can and does happen to many teams.  However, the good news for team leaders is that our increasing understanding of the brain enables us to manipulate the drivers that trigger the approach/avoid response.

Knowing that a loss of status will trigger a threat response, a leader can consciously work to minimise loss of face.  Understanding when a team member has had an amygdala hijack, enables a business leader to react appropriately rather than meeting emotion with emotion.  More positively, understanding what drivers activate a reward response, a leader can reduce their reliance on financial reward and tap into internal rewards.

The brain may have caused mayhem within the Labor team, but it has the potential to deliver exceptional team performance.  Neuroscience has not just demonstrated the negative effect of threat, it has also shown that a team experiencing positive “reward” emotions will see more options, solve more non-linear problems, collaborate better and perform better.

Julia Gillard, and every other team leader, would be well advised to think about the brain’s reflexive response to threat and the impact it may be having upon their team.  Then think about what can be done to shift the brain into a more positive and productive setting.

Graham Richardson is director of coaching and mentoring consultancy Horizons Unlimited: www.horizonsunlimited.com.au

Last week AHRI released the findings of a study we conducted at the end of 2011 on the workforce participation of older workers.

AHRI has been involved in this issue for some 10 years now, at one stage initiating the development of workshop for DEEWR on Younger Managers and Older Workers. In those early days the issue was primarily considered to be under the banner of workforce planning and was stimulated by the widespread realisation of an imminent loss of mature talent caused by an ageing baby-boomer workforce.

While remaining largely a bi-partisan political matter, in more recent times the focus of the issue has moved under the elusive productivity banner and is now a direct responsibility of the Employment Participation Minister, Kate Ellis.

The productivity argument seems simple enough on the face of it. At the macro level Australia’s total factor productivity has been poor since the early 2000s and it’s not showing signs of improving. As a real income and standard-of-living indicator, a rise in productivity takes into account developments in education, innovation, management, leadership, capital infrastructure, labour and other factors that produce more from given inputs. With considerable numbers of Australians outside the labour market who could be participants in it, governments since Peter Costello’s 2004 welfare-to-work budget was delivered have been openly striving to boost participation to increase the inputs and taxation revenue base and reduce the proportion of the working age population drawing on welfare.

That said, productivity improvements won’t magically happen when a government policy is announced because they depend on decisions made by businesses and improvements generated within workplaces. And some of those improvements have to do with the labour force. In parts of the economy Australia has a labour shortage, yet we have plenty of workers either having recently left or are about to retire from the workforce. At a micro level, governments have been saying to those workers: ‘Think again before taking the retirement step!  You have things to offer and you may not find it so easy to get back into a job.’

At the same time governments are also saying to businesses that they should seriously think about ways to re-engage, re-energise and retain their mature age employees, those 55 years of age and older, many of whom are tempted by retirement but who are capable of contributing their skills in the workforce.

And that’s where the study we released on mature-age workforce participation comes in. HR practitioners within businesses are charged with the responsibility of engaging their workforce. They are also charged with the responsibility of coming up with exit strategies for employees who are disengaged or underperforming.

The survey asked around 30 tick-box questions and invited comment on a few of them, so the survey would have taken a good 15-20 minutes to complete.  Despite that, and despite having it open for not much longer than 24 hours, more than 1200 AHRI members responded to it. The issue is a live one!

The findings of the study reveal that around a quarter of respondents (22%) believe loss of older workers has caused their organisation to become less competitive and a significant proportion (46%) believe the departure of older employees has caused loss of key knowledge and skills. In addition, 82% want their organisations to take steps to retain older employees.

At the same time, the study reveals a strong trace of workplace negativity about retaining or recruiting mature-age employees, with 35% of respondents reporting their organisations were biased to some extent against the employment of older workers and 63% reporting their belief that negative workplace perceptions about older workers influence employment decisions.

And although 62% reported that their organisation did not distinguish between older and younger workers when deciding who to keep on the payroll, 22% openly indicated a preference for discarding older employees.

The narrative that emerges from these seemingly contradictory results is one about a grudging workforce realisation that enterprises need their older workers to stay around long enough to pass on essential knowledge and skills but to then move on. There is little by way of politically incorrect commentary in the respondent qualitative data but a distinct negative undercurrent comes through.

If that’s true for the recruitment of mature-age workers, it’s even more pronounced when looking at the other cohorts that make up the unemployed labour market. Respondents were given the choice of sourcing recruits for their organisation from five groups and chose in order: unemployed older workers (48%), skilled immigrants (25%) and unemployed youth (13%). Unemployed Australians with a disability (7%) and unemployed Indigenous Australians (7%) came in a long last.

In an address given last week to an AHRI directors networking forum in Sydney the recently appointed Age Discrimination Commissioner, the Hon Susan Ryan AO, acknowledged the contradictions at work in the narrative when she referred to ”a serious disjunction between raising the pension age to 67, the needs of the worker-starved economy and the persistence of age discrimination in employment,” and pointed out that “both poverty and homelessness were growing among older Australians”.

Commissioner Ryan added that “complaints to the Australian Human Rights Commission about age discrimination had recently risen by 44%, enquiries about age discrimination on the basis of being too old were up 78%, while Australian Bureau of Statistics data showed one in five over 55s seeking longer hours and 18% of unemployed over 45s claimed their main difficulty was that employers considered them ‘too old’.”

This is clearly a vexed issue and it’s yet another one that HR practitioners are dealing with at the front line. I thank the 1212 respondents to the AHRI study and commend its findings to policy makers, business leaders and other HR practitioners.

To view the full report of the study go to http://www.ahri.com.au/MMSDocuments/profdevelopment/research/research_papers/mature_age_workforce_participation_final.pdf

Serge Sardo is the chief executive of the Australian Human Resources Institute

Australia’s ongoing success in the face of a world in financial crisis is due in part to its effective skilled migration policy which has been used to bolster Australia’s economic growth and development.

The Australian government continues to refine its policies and programs to better determine how many migrants and which migrants should be admitted to meet Australia’s skills needs.

The introduction of the SkillSelect system on 1 July 2012 is a major change in the way Australia meets its human resources needs and will better address skill shortages in regional areas.

Between 2004/05 and 2008/09, Australia selected 358,151 permanent General Skilled Migration (GSM) migrants, including dependants, according to the ‘Competing for Skills: Migration Policies and Trends in New Zealand and Australia‘.

Since 1999, the majority of GSM applicants have been former international students in Australia, who qualified for permanent resident status on the basis of their formal qualifications, age, English language skills and in some cases relevant work experience.

The top five professions for skilled migrants to Australia have been accounting, computing, architecture/building, engineering and nursing.

Since the mid 2000s, there has also been strong growth in temporary skilled migration. From 2004/05 to 2008/09, 418,940 arrivals were admitted through the 457 long-stay business visa.

Over this period, Australia has moved to a demand driven employer-sponsored skilled migration scheme with 70% of Australia’s skilled migrants transitioning from the temporary 457 visa to the employer sponsored permanent skilled migration streams.

Competing for Skills states that 58% of 457 visa holders were professionals, 17% were trades, 13% were associate professionals, and 10% were managers and administrators.

Unlike the GSM stream, 457 temporary workers came predominantly from five major English speaking countries in addition to India.

As part of the ongoing review of Australia’s migration program to ensure that it continues to meet Australia’s economic and skill needs, the government has continued to innovate. In July it will introduce a new skilled migration selection register – SkillSelect.

SkillSelect is an online system that will allow skilled workers to lodge an Expression of Interest (EOI) in migrating to Australia. All intending migrants interested in independent skilled, family sponsored skilled, state or territory sponsored skilled, or business skills programs will be required to submit an EOI and receive an invitation in order to lodge a visa application.

SkillSelect will be a major change to how Australia manages its skilled migration program.

According to the Department of Immigration and Citizenship website, SkillSelect will:

• Enable the government to manage who is able to apply for skilled migration, when they are able to apply and in what numbers
• Identify applicants that have the skills which Australia needs
• Address regional skill shortages by allowing intending migrants to indicate whether they are willing to live and work in regional Australia.

SkillSelect will better enable the government to manage the overwhelming demand for migration to Australia. The level of demand is reflected by the significant revenue that the Department of Immigration and Citizenship continues to raise on an annual basis in visa and related fees. For 2010/2011 it raised $1.137 billion.

At the same time, the government has strengthened measures to address concerns in regard to increasing fraud in visa applications through the recent introduction of the public interest criterion 4020.

If a person is invited to apply for a visa, and the information submitted is false or misleading it may be considered fraud, and the application could be refused on that basis. Criterion 4020 if applied means that not only is the visa application rejected but the person is subject to a three year bar preventing them from lodging and having granted to them a further visa.

Despite strong competition from the rest of the English speaking world, Australia’s continuing buoyant economy, lifestyle and good governance continues to make it a sought after destination for many skilled migrants throughout the world.

Australia’s targeted migration policies and programs continue to offer new paradigms in Australia’s management of its skilled migration outcomes and in assisting it to meet its human capital needs.

Maria Jockel heads Holding Redlich’s National Immigration Law Group. An accredited immigration law specialist and registered migration agent, she is in the International Who’s Who of Corporate Immigration Lawyers, is nominated in the Peer Review ‘Best Lawyers’ 2008, 2009, 2010, 2011, 2012 and is the convener of the Immigration Lawyers Association of Australasia.

maria.jockel@holdingredlich.com.au

I welcome the opportunity to have this discussion with you today on the topic of age discrimination, a waste of human resources.

As human resource professionals, you are key to stopping this waste. You are ideally placed to bring about change strategies to stem that waste and create a productive culture in relation to the millions of Australians who are kept out of work because they are considered “too old”.

I hope we can work together on this objective, crucial as it is for individuals suffering from this awful prejudice, and vital also to expanding the skills and talent pools available for business growth.

My core role as Age Discrimination Commissioner at the Australian Human Rights Commission is to protect individuals in our society against age discrimination. Along with my five fellow Commissioners, I have a general responsibility to improve protection of fundamental human rights for everyone.

Our motto at the Commission is: human rights for everyone, everywhere, every day. The special focus for me is to assist everyone to exercise the right to be free of age discrimination.

The Age Discrimination Act, ADA, 2004 is the main legal instrument available to combat illegal age discrimination in so far as it affects individuals.

My job is to inform the community about the Act and inform individuals who have experienced such discrimination about the options and the processes of bringing a complaint to the Commission, should they wish to do so.

As well as promoting the ADA, I use all kinds of public discussion, the media, community education, and advocacy with decision makers in government and business to challenge and try to reduce age prejudice generally.

Age discrimination means treating someone less favourably just because of their age.

In terms of the ADA, the areas covered include employment, training, education, finance, goods and services and other commonwealth laws.

The purpose of the ADA when introduced in 2004 was to tackle behaviour that treats people less favourably because of their age. In particular the law was framed to deal with the increasing age discrimination in employment, a practice that leads to able and willing workers being pushed out of paid work far sooner than they are ready, without economic security and deprived of social purpose.

I expect that in this audience you are aware of how this happens, but perhaps not aware of how widespread it is, and how, amongst other negative effects, the practice of age discrimination puts Australian business in a less competitive global position.

In 2008, Australia ranked 13th out of the 34 OECD countries in a study that measured labour force participation rates in the over 55s.

National Seniors Australia have reported that in 2009, nearly two million older Australians were willing to work, could be encouraged to work, or were unemployed and looking for work.

One out of three unemployed people aged between 55 and 64 years are long-term unemployed. This long-term rate is more than double the rate for younger age groups. In September 2009, the average number of weeks a 15-19 year old was unemployed for was 30.5 weeks, compared with 77.5 weeks for someone aged 55 years and over.

Research conducted by the Brotherhood of St Laurence found that for many older people, unemployment or early retirement is not a personal choice. One out of five people aged between 45 and 64 in 2008 were not working because they had either been forced out, confined by disabilities or by carer duties.

Indeed, the research found that over half of all 60-64 year old Australians were not in jobs. This is before the ‘standard’ retirement age of 65 for males.

Current eligibility for the age pension is 65 years, but that is going up to 67 years by 2023.

What happens to these people who are unemployed between the years of 45 and 65? Not much. People who lose their jobs in this age group have huge difficulties finding another one, and the stats show that many don’t.

What do they live on? Personal savings, super if they have any and can access it? Newstart?

This picture explains the extent of poverty and homelessness, both, growing among older Australians.

So many people want to work longer and need to work longer– what is stopping them? Age discrimination.

It appears we have a serious disjunction between the policy of raising the pension age, the needs of the economy and the persistence of age discrimination in the workforce.

The Commission’s complaint statistics show older workers being pushed out of the labour market, well before the current age pension age, leaving a growing gap as we move towards 67, of workers facing years of unemployment before they can qualify for this basic income support.

For the period 1 July 2011 to 31 October 2011 complaints lodged about age discrimination increased by 44% compared to the previous reporting year and enquiries about discrimination on the basis of being too old were up 78%. The majority of enquiries received about age discrimination related to employment, 66%.

According to 2010 ABS data, one in five older Australians aged 55 years or older, who were actively looking for more hours claimed that their age was a major preventative factor, explaining that they were considered “too old” by employers.

For unemployed people aged 45 years and over the main difficulty in finding work (accounting for 18 per cent of cases) was reported as being “considered too old by employers”.

Recent research from the Financial Services Council provides an instructive snapshot of the experiences of discrimination against older workers, from the perspective both of employees and employers. Of the 500 older workers surveyed, almost three in ten report some form of discrimination, the most common being made redundant or laid off before others. This view was backed up by the responses from employers, who noted that this was by far the most common form of discrimination they observed. Also highlighted by the mature age workers were a lack of training opportunities, verbal abuse and inflexibility towards health and physical needs.

Adding to these problems, age bars still exist in some relevant laws and policies. While the concept of the ‘mandatory retirement age’ was mostly abolished in Australia with the introduction of the Age Discrimination Act in 2004, aspects continue. A structural lag allows the continued application of age bars in some laws and policies that fall outside the protections of the Age Discrimination Act. These bars act as a de facto ‘retirement age’.

For example:

• Workers compensation – most workers compensation schemes contain an age bar, usually 65, where income replacement payments cease or are limited. While workers are covered for medical expenses and costs under the workers compensation system, if injured at work after the age of 65, most workers lacking independent income would be forced to retire;
• Income protection insurance- income protection insurance can provide payment of up to 75 per cent of income during a period of illness or incapacity. This insurance can cover those who are not covered under workers compensation schemes, such as self-employed, including tradespeople.However, most income protection insurance ceases at 65 years.
• Superannuation guarantee age limit –the payment of the superannuation guarantee is currently subject to an age limit for workers over the age of 70 years. In September 2011, in a welcome move, the Australian government delivered a long overdue equity measure by introducing a bill into parliament to abolish this age limit. This measure will come into effect on 1^st July 2013.

The Financial Services Council research found the experience and incidence of discrimination against older workers to vary greatly between sectors. Employers from the resources sector acknowledged they were struggling to retrain and recruit older workers. In government, especially at local and state levels, respondents cited statistics to back their claims that discrimination is a “non-issue” and also highlighted entrenched flexibility practices as a factor in this success.

I am happy to report I know of several future focused and successful employers who are right now moving away from the old stereotypes.

They are finding ways of using the talents and valuable qualities of employees regardless of age.

The result of these new approaches is that they are keeping their current older workers longer and even hiring older workers.

This approach is working, for the business as well as for the individuals.

What is this new approach?

Are we looking at some industrially complex, costly high risk strategy?

No.

The first thing, the starting point for the employer, is to look closely at their own workforce. They need to drill down and discover who their employees are. How long have they been there? What are their roles, what skills and experience do they have, and, the key question, what are their intentions about retirement?

The companies I know of that are making progress have all consulted their workforce, especially about their intentions and wishes about a retirement point.

All of them have found one requirement stands out: flexibility.

Older workers usually are prepared to stay on if they can have some flexibility around hours worked or days worked.

Often they have caring responsibilities, for a frail parent, or grandchildren, or an ill partner, or an adult child with disability.

Just as over recent years parents of young children have been able to negotiate part time or flexible hours, to the benefit of their families and their employers, older workers with the cooperation of their employers, can do this.

Often too the older worker would like to transition slowly to retirement by changing their role in the company and taking on a role with lesser pressure, fewer hours but perhaps new mentoring responsibilities. They need to understand that such a new role would be paid at a lower rate, but from 60 on, individuals can top up this pay by drawing down some of their super, tax free.

Employers keen to maximise this pool of valuable labour often find that assisting employees to get independent financial advice helps. Many people need this advice to understand their true financial picture. It is sometimes only at that point that they realise that they cannot afford to retire for some years.

Upgrading of skills is often necessary and older workers need to take a positive attitude to training, and to new ways of doing things. Like all successful relationships, the successful relationship between the older worker and the employer is two way.

In recognition of the need for government in all its actions to be consistent with its policy of increased economic participation by older people, the Attorney General has asked the Australian Law Reform Commission to conduct an audit of all Commonwealth laws and policies that act as barriers to this aim. I have been appointed as a part time commissioner to the ALRC to take part in this relevant work.

I am progressing discussions with state and federal governments about lifting age bars that restrict workers compensation payments to below 65 years and am hopeful of improvements, even if they come slowly.

I have started discussions with providers of income insurance and am happy to report that some major providers are starting to offer this crucial product to people up to 67years.

Conclusion

As human resource professionals you are all aware of the fundamental importance to any business or organisation of human talent. Skilled and motivated workers are necessary for success. The absence of such employees always results in failure.

In Australia now, in 2012, we are at a turning point.

Since 1909 and the introduction of the age pension, we have not really adjusted our concept of old age in relation to work. With the dramatic demographic changes we have seen, and will see, we can no longer act in our employment practices as if most of us will be dead or useless by 65.

It is time to recognise and use the great change of our times: that most of us, compared with our great grandparents, have an extra life to live. Children born now will live into their nineties, as indeed will many of us here today. This is a wonderful opportunity, for our economy, our society and for all of us alive in Australia today. Instead of wasting millions of potential contributors to our economy, we can and must develop a new and relevant concept of the typical length of the working life. We must find new ways to provide capable individuals with jobs into their seventies and beyond if they choose.

Achieving these changes, and they are so achievable, would enhance the basic human rights of all of us.

The Hon. Susan Ryan AO is the Age Discrimination Commissioner at the Australian Human Rights Commission. This is an edited transcript of a speech given at the AHRI National President’s Networking Forum on 6 March 2012.