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Stress and workplace burnout are huge costs for business, and are notoriously hard to detect and measure. But that might be changing – thanks to saliva.
It seems Google’s search algorithm has figured out we’re terrible at knowing when work stress has gotten to us. You can check – type in “burnout” and you’ll find dozens of articles probing whether you have it, or offering a guide to detecting it.
Perhaps it’s not surprising. How do you differentiate work stress from your ordinary stress? Is it your job making you more anxious, or is it something else? This lack of clarity is not just an issue for employers. Evidence suggests burnout is linked with prolonged sick leave, premature retirement, and the development of mental health issues. So a cut-and-dry way to detect burnout would benefit employee and employer alike.
We may have an answer. And it’s lurking in our saliva.
Specifically, new research published in Scientific Reports has found that higher cortisol levels in your saliva around midday and night are a strong indicator that you’re suffering from burnout.
As described in the study, psychological stress is believed to result in the release of cortisol into our blood circulation. However, we also release cortisol as part of waking up, about 77 per cent of healthy people experience a big increase of cortisol levels within the first hour of their day. This is followed by a tailing off (see the control image below).
What the new study shows is that high levels of stress, depression and anxiety are reflected by higher concentrations of cortisol in your saliva from around midday onwards.
Of course, there is a privacy issue surrounding saliva tests, much as there are in drug testing programs. If you were of the mind, the best bet for compulsory tests would be to connect it with workplace health and safety.
Michael Byrnes touched on this in a previous article for HRM about whether employers could compel staff to be microchipped: “If microchipping employees can be shown to have substantial safety benefits, and the process of implanting can be done in a safe, quick, painless and unobtrusive way – with proper measures to protect privacy – then the legal path might just be cleared.”
At least one study backs up the claim that stress and burnout increase accidents. But more interestingly, burnout itself could be considered a type of workplace injury. It has been linked with depression and anxiety disorders, so there’s potential for an organisation to frame their saliva program as a benefit for them. Especially if they tied a positive result with stress leave or some other program for helping the employee.
The obvious hiccup for any organisation would be in the introducing of the slobber-related policy. As far as company announcements go, this is pretty awkward: “Twice every Monday you will either give us a mouth swab, or spit into a cup. It’s for your own good.”
The future of wellbeing
It might seem far fetched that any organisation would actually implement a saliva test to check for burnout among employees but think about it. Not only are overstressed employees more likely to take prolonged sick leave, develop mental health issues, and leave your organisation – there is a legal risk component.
Employers are facing increasing mental health claims and there are thorny IR questions as to what extent organisations owe their staff resilience wellbeing, and resilience training. A test which promises clarity around this issue, and allows employers to more effectively help and manage their workforce, could be a boon.
World Vision’s purpose – to help the poor and dispossessed – is being communicated through dynamic digital channels, thanks to the vision of its CEO, Claire Rogers.
Earlier this year, Claire Rogers, visited one of the world’s largest refugee camps at Cox’s Bazar, near the southern tip of Bangladesh. The camp is home to 700,000 Rohingya Muslim refugees who have fled violent military persecution in Buddhist-dominated Myanmar.
The squalid and overcrowded conditions shocked the World Vision Australia CEO. Makeshift houses – nothing more than tents made of black plastic sheets or hessian sacks – are built on the treeless slopes around the camp, which extends for kilometres. There is little clean water or proper sanitation, no street lighting, no education facilities for the children and few employment opportunities for the adults. The streets are devoid of teenage girls; the risks of harassment, rape and abduction are too great.
It’s a world away from the banking sector she worked in for 15 years. For Rogers, a big difference between the corporate and not-for-profit sectors is the latter’s sense of purpose.
“Most corporates in the for-profit sector struggle to find a purpose but are very strong on execution,” she says. “World Vision doesn’t have a problem with purpose. Our purpose motivates our team, who come to work every day inspired to make a difference.”
World Vision’s staff regularly reflect on the organisation’s mission statement – to work towards eliminating poverty and its causes – which keeps them focussed and engaged, says Rogers. For example, her team recently held an off-site meeting where staff were asked to imagine a world where no child lived in poverty.
The current reality – the sights, sounds and smells from Cox’s Bazar refugee camp – are still fresh in Rogers’ memory and she worries about the long-term implications for such a large group of displaced, stateless people.
It’s this reality Rogers wants Australians to understand. She will be addressing the 2018 AHRI National Convention on how expertise in digital communications are helping World Vision to transform the way supporters appreciate the organisation’s work.
When its former CEO Tim Costello retired in 2016 and took up the position of chief advocate, World Vision Australia went looking for a modern, experienced digital change agent with a strong social commitment to replace him. With years of experience in a number of digital and IT roles at ANZ Bank, and holding board positions at the Australian Council for International Development and Melbourne’s Christian Ridley College, Rogers fitted the bill.
Rogers was excited by the opportunity to take an organisation with “such an incredible purpose and reimagine it for a digital future”. In an era when most people get their information from social media via their smart phones, it is vital organisations communicate with their supporters and customers via the same mediums, she says. Rogers sees digital technology, such as short personalised or 360 degree videos, as a powerful tool to connect donors to the field work they are supporting.
For example, World Vision has created a 360 degree video of what it’s like living in Syria and in the camps Syrian refugees have fled to, that allows a potential donor to move the camera angle around a room or a scene to get a complete picture of the environment.
In the UK, World Vision worked with a design studio to create a ‘story shop’ at a large shopping mall in London where shoppers could sample produce made by World Vision-supported communities or play with an interactive mirror. From inside the mirror a child beckoned to passers-by and encouraged them to touch hands on the screen. If a hand was held to the screen, the child’s world would appear.
The longer the connection was sustained the more of the child’s story was revealed. The shopper could then explore a set of drawers and artefacts in the shop, each containing an invitation to sponsor a child.
“I can talk about [places such as Cox’s Bazar refugee camp] but digital technology can draw out the contextual information that people can more easily connect with,” says Rogers.
“One of the targets I have set myself is to create a window through which the transformative nature of our work is clear to all Australians. Through a window you see exactly what is happening and you see it right now … People give to what their heart responds to.”
Digital transformation is not just about new ways of telling stories. Under Rogers’ leadership, World Vision is now focusing more heavily on IT, system capabilities and data analytics so it can deliver those experiences to supporters. By analysing information about its supporters, for example, different messages can be tailored for different groups of donors.
Technology is also helping front-line staff make more decisions in the field. For example, World Vision is using mobile phones to improve the efficiency and quality of one of its nutrition services in Indonesia.
Via the phones, nutrition counsellors can assess underlying illnesses and feeding habits and practices of the children they see during counselling sessions – and at the homes of those people who are unable to access a medical clinic. The phones process growth and nutrition measurements and flag the level of nutritional risk enabling the counsellor to immediately tailor a nutritional plan for a child.
One of World Vision’s guiding principles is that economic progress should never be made at the expense of a child. An estimated 168 million child labourers are involved in nearly every stage of production of many commonly purchased items. Governments and corporations are large consumers and their procurement policies have a major impact on the lives of millions of children.
To that end, World Vision has started working with Australian companies on their supply chains. One project, for example, is looking at cosmetic manufacturers who source the mineral mica from India, where it’s mined with the use of child labour.
“We want to get children out of the supply chain,” says Rogers, who believes the corporate sector’s definition of corporate social responsibility is too narrow.
“At the moment we only measure profit in a corporate context, or how many customers we have. But what is the impact on society from the way that profit was made or the way those goods were produced?” she asks.
During her time in Bangladesh, Rogers met many young girls in the refugee camp, clever, vibrant children who could “change anyone’s world” but who would likely end up hidden by their parents from social contact for cultural and safety reasons.
“That breaks my heart and inspires me to do this job,” she says.
“Many of the world’s most vulnerable people are women and girls so it is a delightful opportunity to champion them [at World Vision],” she says.
The organisation has high and generally favourable recognition in Australia but an organisation’s brand is only as good as its supporters’ most recent experience. Just how quickly a brand can be damaged is evident from the fallout from Australia’s Royal Commission into banking, says Rogers.
“World Vision doesn’t have a problem with purpose. Our purpose motivates our team, who come to work every day inspired to make a difference.”
Discover how World Vision Australia CEO Claire Rogers and other leaders achieve digital transformation in their organisations, at the AHRI National Convention and Exhibition at the Melbourne Convention and Exhibition Centre from 28 to 31 August. Registration closes Thursday 14 August.
Biometric identification is fast becoming a convenient way to ensure we are who we say we are. But at what price?
There are two ways of looking at how biometric data will influence our future working lives.
“It’s clear that the operating system of the future is not people using a computer and a mouse typing in commands. It’s us talking to the computer, with the computer biometrically working out who we are, which gives it permission to access our data, our calendar, our preferences, our bank account details, our credit cards. And then doing whatever we say. That will make life very convenient.”
And then, there’s this.
“As biometics authentication become more prevalent and people become more aware of it, there’s going to be more concerns about privacy. It’s not a coincidence that we’re seeing some of this technology in China, which has different standards and cultural perceptions to how inquisitive and how intrusive authority can be.”
Both viewpoints come from Toby Walsh who is professor of artificial intelligence at UNSW and a speaker at this year’s AHRI convention, where he will be talking about AI and ethics.
Clearly there’s a trade-off between greater convenience, reducing fraud and integrity risks, and threats to personal privacy – a trade-off which many people are not sure they’re ready to make.
But first, how is a biometric identifier distinguished from other bits of personal data?
“A biometric is essentially just a stable characteristic that can be used to identify an individual,” says Bruce Arnold, assistant professor at the University of Canberra’s School of Law and Justice.
“That characteristic might be a physical attribute, such as a fingerprint or ear shape, or an expression, such as gait, voice or keyboard style.”
That means companies (and the government) now have the ability to measure things such as how we type – the rhythm, pace and accuracy – to work out who is writing what in real time, as well as how hard we’re working. But only if they first have an accurate reference point.
“The identification might be very accurate or quite fuzzy, depending on the particular technology, how the attribute/expression was recorded and how it was matched to reference information,” says Arnold.
The (finger)tip of the iceberg
Most people are now familiar with using their fingerprint to open their Android or iPhone, but our biometric data will soon become our access code for much, much more. The ATO, for example, now allows you to record your voiceprint for easy authentication.
Of particular interest to governments is how you walk. Gait analysis is already being used at airports, says Dr Jake Goldenfein, a law lecturer at Swinburne University of Technology.
“National security agencies are very interested. They use it for identity verifications, but also as a profiling system,” he says.
That means, even if you cover your face, there’s the potential for you to be identified in public. On the plus side, when the technology is adopted by companies, you won’t need to fumble around for your swipe pass when walking into an office building.
Adoption in the workplace
There are key barriers to seeing more widespread adoption of biometric identifiers across organisations
“One is that it is disruptive to try a new technology. Another is people’s concerns about being watched and listened to by computers. People start thinking of Big Brother,” says Walsh.
The government and large financial institutions are driving adoption, because – at its most basic level – biometric identifiers are and will be used for authorisation, which is a big requirement in how these organisations interact with the public.
The collection of biometric data falls under the category of sensitive information within our information privacy laws, says Goldenfein. “When it comes to private companies, they’re regulated by the federal Act, but it only really applies to companies that turn over three million dollars or more a year.”
However, automatically being allowed to access employee biometric data isn’t an open and shut case, according to lawyer Michael Byrnes, partner at Swaab Attorneys.
“Employers may find that they want to implement this technology because it makes life easier for them or it’s convenient to do so,” says Byrnes. “But that doesn’t necessarily compel the employee to provide it.”
The real question, adds Byrnes, is whether or not it’s a reasonable direction for the employer to require employees to provide the source material for the biometric data. “In order for it to be reasonable, an employer is probably going to have to demonstrate more than that it’s just convenient. The Fair Work Commission may well arbitrate.”
Once an employee leaves, the question remains as to whether an employer is obliged to remove all biometric data relating to them from its systems. “There is an expectation that employers will safely dispose of personal data,” says Arnold, “[but] there isn’t a statutory fixed period for retention, and an ‘obligation’… will depend on the circumstances.”
“Employers,” says Byrnes, “should consider whether or not retention of biometric data is necessary once an employee leaves employment. Presumably, it has no further efficacy and it should not be retained.”
Even if the collection of biometric data passes the legal test, there are a number of ethical questions employers must ask themselves. “We need to recognise that people can change their names, passwords, phone numbers, addresses and other identifiers, but have little scope to change attributes such as fingerprints or DNA,” says Arnold.
“HR managers and other executives also need to acknowledge that some people, correctly or otherwise, have sensitivities regarding particular biometrics.” For example, they associate fingerprint registration with crime or worry that retina scanning will damage their eyes.
That said, you could restrict access to an employee or contractor who refused to remove a full-face covering for a facial recognition scan, says Arnold. “Discrimination law accommodates the need in many circumstances to be able to determine that a person is who she/he claims to be.”
Open to error
What would happen if your gait was the authenticating biometric and one day you decided to wear high heels – or perhaps copped a leg cork from a footy match. Would you still be let in?
“We don’t know yet,” says Goldenfein. “While these technologies are pretty good, they’re certainly not perfect.”
Whatever the case, employers will need to ensure employees can be granted access if the system cannot include them.
Arnold says, for example, if your organisation relies on retina scanning for access to a building, there would need to be arrangements for a person with an ‘unreadable’ retina.
When it comes to voice recognition software, Walsh presents one of the more interesting cases, because he is a twin.
“Voice recognition software has been easily spoofed by twins. My twin will have access to all the buildings that I will have access to. Of course, I trust my twin brother with my life, so I’m not really concerned.”
But it does expose the fact that biometrics is open to security breaches of all kinds.
Human nature being what it is, and storage systems not being infallible, “there will almost certainly be data breaches,” says Byrnes.
“Employers not only need effective regimes for the storage and protection of that data, but also a plan in case there is a breach of security,” he says.
Goldenfein says, the new mandatory data breach laws will hopefully give people a bit of a push to ensure they have adequate security measures in place “because now there are greater consequences for allowing those breaches to occur”.
Goldenfein says that, all in all, employers considering using biometric data should really think about what they want to use it for and whether this kind of identification process is necessary.
“It will impose additional obligations and costs. You have to make sure it’s worth paying for the additional level of security that gives you,” he says.
“Some biometric technologies are oversold,” says Arnold. “They don’t perform as well as claimed by vendors, and real-world costs are under-recognised.”
Nevertheless, indications are that acceptance of biometrics authentication is growing. Public opinion surveys conducted over the past five years in the US illustrate that a large percentage of people are comfortable with the use of biometric data in places of high security, or for altruistic purposes. And the more people exposed to biometric technology, the greater that acceptance is likely to become.
This article originally appeared in the June 2018 edition of HRM magazine.
Hear AI expert Toby Walsh speak on HR’s ethical role in the future of work, at the HR Tech Convention at the AHRI National Convention in Melbourne (28 – 31 August). Early bird registration closesThursday 31 May.
Despite the vote in favour of gay marriage, many still don’t feel free to be open at work. Three out-and-proud senior leaders talk about what needs to change.
Georgie Harman CEO, beyondblue
To be the best you can be, you need the opportunity to be who you truly are. These feelings are shared by so many in the LGBTI communities. Up to 97 per cent of lesbians and 94 per cent of gay men say being out at work is important to them. In fact, 85 per cent say it is more important than pay and promotion.
One of our most basic human needs is the need for respect. Only when you feel respected at work can you feel great about the organisation you work in. Without respect, there can be no trust, and productivity in the workplace relies on trust.
So inclusion at work is not only a question of human dignity. It is also about economics. The diversity agenda is one of the greatest microeconomic reforms of the 20th and 21st centuries – a massive driver of productivity and participation – and a reform that can keep delivering for generations to come.
An analysis of 600 business decisions made by 200 different business teams in a wide variety of companies over two years recently found that inclusive teams made better business decisions up to 87 per cent of the time. The same research showed how teams that followed an inclusive process made decisions twice as fast – and with half as many meetings. And it found that decisions made and executed by diverse teams delivered 60 per cent better results. How, then, can HR managers unlock this potential?
Fundamental is the creation of an inclusive environment. This means developing a clear organisational commitment to LGTBI inclusion and demonstrating this commitment at a senior level.
Appointing a visible, active ‘senior champion’ who models respectful attitudes could be one place to start. Managers could then take that idea a step further by showcasing a range of role models at all levels of the organisation. These people can help your staff challenge assumptions and share stories – both powerful strategies for bringing about positive change.
The point is, we all have a role to play in building a culture of respect for difference.
Matthew Paine CPHR, Director of Human Resources, ICC, Sydney
Many workplaces are accepting of LGBTI employees, but do not reflect this in policy and practice, which leads to a true barrier to inclusion. Research proves LGBTI people spend a lot of energy self-editing because of the consequences they may face if they bring their true selves to work. These consequences of being ‘out at work’ can include being overlooked when it comes to career progression or a salary increase, to simply being excluded socially or having ideas shut down.
How HR can assist? Firstly, through awareness. Some employees have never been exposed to someone identifying as LGBTI. They may come from a ‘straight’ background and have been influenced in their thinking from education or religious background. HR has a vital role to play in educating the workforce about LGBTI inclusion and the company’s diversity and inclusion practices and programs, all underpinned by training and education across the organisation.
Secondly, attitude – some employees are simply not interested in knowing or asking about LGBTI and other organisational diversity initiatives. This can cause stigma, social judgement, prejudice and stereotypes across an organisation due to irrational fears and lack of sufficient knowledge regarding LGBTI people. Structural facilitators both internal and external can also impact attitude, such as laws, policies and institutions. While gay marriage is legal, there is still a significant proportion of the population who opposed this right. HR has a role to ensure visibility from the top. A high-profile executive sponsor can help. A dedicated intranet page and discussion around words at work, terminology and how it makes people feel, are all great tools to create an inclusive workplace.
HR departments should undertake a policy review to ensure they are using inclusive language and also that each policy contains inclusive rights. Communicate this internally and externally. Make LGBTI people keen to work with your organisation due to your HR and social practices, and reflect this in the employer brand. Establish and sponsor an employee-driven LGBTI network across the organisation to foster a greater sense of belonging, and networking for both those that identify and their allies.
Gemma Saunders, Head of Inclusion & Employee Experience, Medibank
The recent postal vote to legalise same-sex marriage placed a spotlight on the LGBTIQ community, and in turn the workplace. While 62 per cent voted ‘yes’, more than a third ticked ‘no’. These are significant numbers for HR leaders and their employees. For many, it represented a milestone to celebrate; for others the sizeable ‘no’ reinforced rejection and discrimination.
In 2015, with the backing of senior leaders, Medibank employees formed an LGBTIQ network called Passion + Pride to find gaps in workplace policies. Last year, this was extended to providing LGBTIQ-friendly on-site counsellors and phone-based counselling for all employees experiencing difficulties during the marriage equality vote. These services were endorsed and promoted by Medibank CEO Craig Drummond in employee emails during and after the postal vote. Any cultural change must come from the top.
True LGBTIQ inclusion has to be as dynamic as the employees it supports. Medibank strives to be a workplace where all employees feel safe and supported, regardless of their sexual orientation or gender. For example, it could be that parental leave policies don’t explicitly include same-sex couples. We can all take the time to reassess the way we do things.
Barriers to true inclusion can also exist in informal ways.
There are symbols and pictures of Medibank’s pride in diversity around the workplace, and we were one of the first major consumer brands in Australia to integrate positive LGBTIQ messages and imagery into large-scale mass media. In 2016, Medibank signed on as a major sponsor of the Sydney Gay and Lesbian Mardi Gras, and for the past two years we have had an employee and customer float in the parade.
This also helps Medibank attract diverse talent. We know that millennials consider the diversity and corporate social responsibility strategy of an organisation more than previous generations.
As a company, it’s about taking a stand and anchoring your position – doing what is right and fair. I believe it’s the only way to achieve lasting change for current and future employees.
This is an edited version of an article that originally appeared in the June edition of HRM magazine
Pictured from left to right: Georgie Harman, Matthew Paine, and Gemma Saunders
Learn how to identify, manage and reduce unconscious bias in your organisation with the AHRI customised in-house training course ‘Managing unconcious bias’. Book by June 30 to save with AHRI’s EOFY offer.
With the World Cup upon us, should employers try to ban or embrace the costly distraction?
It’s almost here and for me, like other football tragics, work will soon become something that just eats into my FIFA World Cup time.
For a sport-obsessed nation such as Australia, it’s appropriate to ask the question of whether employees keeping one eye on the ball instead of the field of work are commiting a foul and should be shown a yellow card. (OK, enough of the soccer puns).
Whatever your particular sporting passion, is there a price paid in lost productivity? (OK, OK, enough alliteration.) That is, how much work time is lost to distracted employees checking their phones for the latest analysis?
Checking the stats
For most major sporting events, research shows a loss of work hours due to employees watching during work time or staying up late to watch games and then claiming a ‘sickie’ the next day.
During the 2010 FIFA World Cup, held in South Africa, InsideView, a marketing intel platform, projected that the US economy lost $121.7 million, due to 21 million Americans watching soccer for 10 minutes out of their working day.
Most of the matches taking place in this year’s World Cup in Russia kick off at 10pm, midnight or into the wee hours Australian Eastern Standard Time (AEST). While many Australians will be watching recorded games after the event, at least some of the big contests such as Denmark v Socceroos (June 21st, kick off 10pm) or Tunisia v England (June 19th, kick off 4am) will attract a large contingent wanting to see the games live.
According to a report by NBN Co from 2017, one in three young Australians have stayed up all night to watch sport. So how concerned should employers be?
Employer or umpire?
I’m sure Ari Goldberg, chief executive of trend site Stylecaster, speaks for many employers when he says: “The important part is, are you hitting your work goals and commitments?” If that’s happening, he says, he’s happy to let employees tune in at one of the office TVs, or stream to their desktop.
Earlier this year, HRM ran an article saying that, in fact HR can work enthusiasm around sports to a business advantage, with discussion becoming a ‘catalyst for increased engagement and a conversation about flexibility’. Setting aside times to watch a game together in the office could help build camaraderie and foster teamwork, no easy feat in today’s offices where many workers don’t know each other.
“People throw a lot of blame at the World Cup,” Jim Belosic, chief executive at marketing firm ShortStackLab told CNBC. At his firm, employees can watch favorite teams on their own or join company-hosted viewing parties. “In reality, YouTube, email and texting costs billions of more in lost productivity than World Cup could ever hope,” said Belosic.
Belosic is right in as much as social media and technology presents a far bigger and easier to access distraction. Take fantasy sports and fantasy football.
Although there are no figures for how many people are accessing the online games during work hours, in the US around 66 per cent of Fantasy Football fans are employed full time. Many of them are thought to be researching, building and managing their teams during work hours from mobile phones, tablets or the speedy internet connections they can only get in modern workplaces.
CEO John Challenger is nevertheless quite sanguine about the enthusiasm for fantasy sports, and says there needs to be balance in any working day.
“We all need distractions during the day, whether it’s checking Facebook, scanning Twitter, buying something at Amazon.com, or managing one’s fantasy football team. It may seem counterintuitive, but those short periods of being unproductive help workers be more productive in the long run.”
From a self-interested perspective, I couldn’t agree more. But what do you think? Was that a whistle I just heard?
Legal obligations, on both sides, aren’t over once an employee leaves their job. Here is what you need to know.
Most of the legal obligations in the employment relationship begin when a staff member comes on board and end with their resignation or termination. But the time before and following employment is hardly a legal black hole.
There is a range of obligations HR needs to be aware of that regulate conduct before a prospective employee begins (for more on this, see our article on pre-employment obligations). There are also obligations that outline how both parties should act following the conclusion of the relationship.
Restraint of trade
Perhaps the most common form of post-employment obligation, restraints of trade are contractual clauses that limit the ability of employees to move from one job to another and take their clients, knowledge or colleagues with them. The law on this topic is complicated and changing, but essentially courts will not uphold a restraint of trade clause unless it:
Protects a legitimate interest of the employer;
Goes no further than is reasonably necessary to do so, considering both the interest of the parties and the public interest.
A clause that prevents an employee from working in the same sector for three months within a 10-kilometre radius might be reasonable; a clause prohibiting the employee from undertaking any work for 12 months anywhere in the world would almost never be.
In Just Group v Peck, the chief financial officer of Just Group left to work for a competitor, the Cotton On Group. Just Group failed to enforce a clause preventing Peck from engaging in any activity “the same as, or similar to” any part of the Just Group’s business.
The clause was ‘cascading’, in that it provided various restraints in the event that some were invalidated by a court – it applied variously to Australia and New Zealand, Australia or Victoria, and for 24, 18 or 12 months.
While such clauses are common, it was frowned upon in Just Group’s case, given “it is not for the court to make a new agreement for the parties”. Because of the uncertainty in this area, restraint of trade clauses should be drafted with careful consideration.
Employees have contractual, equitable and sometimes statutory duties not to misuse confidential information. These duties usually narrow after termination. However, the employee is not completely off the hook. While they are free to use the skill, experience, know-how and general knowledge they gained during their tenure, the law prohibits the post-employment use of trade secrets.
In Ansell Rubber v Allied Rubber Industries, two workers at a glove-making factory misused their employer’s confidential information to set up a competing business. They were found in breach, ordered to cease using a machine they created based on the confidential information and to pay damages.
Relevant factors considered in the case included the secrecy of the information, its value, the efforts spent by the employer in developing the information and the ease with which the information could be acquired.
An employer is under no obligation to provide a reference, unless this duty is created by an express or implied term of the contract. In industries where the absence of a reference will make it extremely difficult to gain new employment, courts may be more willing to imply a term than they would otherwise.
Once an employer decides to give a reference, it should provide an honest and accurate one. If it doesn’t, the employer could be held liable in defamation to the former employee if they can’t find another job due to an unfairly negative reference. Or it could be held negligent to another employer who hires the person on the basis of a misleading reference and regrets the decision.
An edited version of this article appeared in the June 2018 edition of HRM magazine.
Do you have a large male workforce? Then you need to keep informed about the impact that mental health is having on your employees, and understand the best way to help them.
More than five men die prematurely each hour in Australia due to potentially preventable conditions. One of the biggest causes is mental health and depression, with men three times more likely to commit suicide than women, according to the Australian Bureau of Statistics (ABS).
Men’s mental health week, that kicks off on 11 June, is an opportunity to focus on what HR can do around this issue.
Most men say that they would always be there for their mates, and yet the majority also say that they feel uncomfortable asking their mates for help – this is according to charity the Movember Foundation, which tackles some of the biggest health issues faced by men.
Men’s inhibitions around revealing perceived weakness or expressing their feelings is costing lives. It’s also very likely, if they are employed, to be manifesting itself while they are on the job.
What can HR do to cultivate a mentally healthy workplace for men in particular? And when they suspect someone is suffering in silence, what’s the next move?
Breaking down barriers
Andrew Jewell, principal lawyer at employment law firm McDonald Murholme, says that by creating a dialogue around mental health, “employers can ensure it’s not a taboo topic within the workplace. This is particularly necessary when it comes to men, who, as statistics suggest, are more reluctant to open up about their mental wellbeing.”
Jewell says that all employers should have a policy to support those suffering with mental illness, and that employees should be made aware of it.
“By having a process in place, it not only assists the employer in dealing with the matter appropriately, but also gives employees confidence in knowing that there is support, should they need it.”
Although employers should facilitate discussion around mental health, they cannot force anyone to participate, advises Jewell.
“An employee is not legally obliged to disclose any mental health issues they are having, and employers must respect privacy and anti-discrimination legislation such as the Fair Work Act 2009,”he says.
Leading the charge
If group or one-to-one conversations are difficult or just not going to work in your environment, here are three initiatives that are being applied elsewhere in Australia.
Mindmax appeals to any man into sport as the approach is to “train your mind like you do your body”. Led by the AFL Players Association, it’s a digital platform that uses sport, videogames and wellbeing science to connect Australian men aged 16 to 35, and encourages them to start conversations, share experiences and shift attitudes and behaviours to build fit minds.
With one in seven new fathers experiencing high levels of psychological distress after the birth of a baby, there is beyondblue’s Healthy Dads Initiative. It provides men with information, tools and support to recognise and act on their feelings of not being able to cope.
Well@work is another project that has been running since 2014, and is an e-health training program that provides Australian working men with a simple and engaging way to screen and monitor themselves for symptoms of, and risk factors for, anxiety and depression.
The NSW Police, the Australasian Fire and Emergency Service Authorities Council and Dairy Australia are just three of the organisations who are trialling the linked e-health intervention. Via the app, it provides men with a personalised mental health action plan based on the results from self-assessment, and the option of a brief personalised psychological intervention that aims to address the most important risk factors and symptoms identified in each man’s personalised mental health plan.
For HR and other managers, it also offers an e-health training program to enhance mental health literacy, increase managers’ confidence and skills in discussing mental health matters, and provide tools for creating more mentally healthy workplaces.
The worst thing as a manager is to do nothing, according to Jewel. He suggests that employers use this week as an opportunity to air the conversation around mental health. It may be just the opportunity that someone needs to open up.
Increase mental awareness in your workplace, learn about stress management and equip yourself with health and wellness strategies with AHRI’s customised in-house training. Email AHRI and ask about the course ‘Mindfulness – mental health at work’.
When your culture has problems you reap what you sow, argues Shaun McCarthy in this opinion piece.
In the early 1990s, Australian banks began a process of shifting away from a conservative ‘custodial culture’ to a more innovative ‘sales culture’. With increasing emphasis on ‘share of wallet’ through additional financial products and a focus on customer service, banks gradually moved from actively avoiding the provision of advice to being full service and advice providers. Insurance companies did the same soon afterwards.
At the same time, with the emergence of new technology, these organisations went through the process of putting back-office activities out to tender, creating large, centralised processing and call centres, and undertook considerable downsizing of staff. They simultaneously moved from the previous model of multi-skilling, and job rotation, to what was referred to as the ‘McDonaldisation of the banking industry’.
The emphasis was on structures, systems and technologies to build performance, rather than people and culture. It isn’t unusual for organisations adopting these strategies to misattribute their success to their culture. They operate under the misguided belief that their culture is supporting their business when, in reality, it’s working against it.
Such a strategy can produce positive, short-term business results, but will eventually create unexpected consequences.
For the financial services industry, that time has come.
Finding the balance
It is time now for a greater balance between custodial and sales orientations. Society used to expect banks and insurance companies to have their customers’ best interests at heart. We didn’t see them as selling us products, but as helping us achieve our goals. Financial services companies have used this to their advantage in advertising, but it appears their ‘promise’ may have been at odds with their core beliefs regarding customer relationships (an outcome of culture).
Let’s be clear on what we mean by culture. It is the shared beliefs, norms and expectations that guide how employees approach their work and interact. It sets the standards for how people believe they are expected to behave in order to survive, fit in and get ahead.
Culture is established over time by the organisation’s systems, particularly those linked with reward and punishment. The line credited to Peter Drucker – “What gets measured gets managed” – should also be stated as “What gets measured is what’s really important”.
If sales goals are measured more than service goals, then staff will very quickly figure out sales goals are what really matter.
Drivers of culture
Training and goal-setting management processes are drivers of culture. How staff get trained to behave and how managers get trained to manage, create expectations for desirable behaviour. Adopting aggressive sales management and incentive systems is known to create cultural norms of turning work into a contest, where success comes at any cost.
Remuneration drives culture. Short-term incentives (be they bonuses for lower-level staff or options for CEOs) drive a culture of internal competition and a focus on short-term ‘wins’, rather than longer-term effectiveness.
Selection and placement systems, and performance evaluation, drive culture. Who gets promoted and why they get promoted send important signals.
Leaders drive culture. Through role-modelling, reinforcing and other leadership approaches, individual leaders impact the culture in unique ways. What’s more, the beliefs leaders hold have significant impact on culture.
Leadership drives culture. Over and above the individuals, the collective decisions leadership groups make impact the culture.
Communication systems drive culture. How information flows up and down the organisation, and what type of information flows, combine to impact culture.
Reaping what you sow
In short, culture is the result of a complex interplay of multiple variables.
Simply getting rid of incentives (as many of the executives fronting the royal commission say they will) will not in itself change the culture. What were the underlying beliefs that led to these in the first place? What about all the other factors mentioned above?
Culture will always have the last say. Those organisations that believe their aggressive cultures have led to their success will, one day, pay the price for this. And for many companies, it looks like “one day” has arrived.
Shaun McCarthy is the chairman and managing director of Human Synergistics New Zealand & Australia.
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Visual contracts, where an employment agreement is conveyed partially or wholly by pictures, are now a thing. What are their benefits and risks?
They say a picture paints a thousand words. In the case of infrastructure consultancy company Aurecon, pictures are the terms of its employment agreements.
Last month, Aurecon became the first company in Australia to introduce ‘visual employment agreements’ across its entire workforce. More than 1200 employees worldwide are expected to sign the agreements before the end of this year.
Liam Hayes, Aurecon’s Global Chief People Officer, said the rationale behind introducing the visual contracts is to avoid the complexities of written agreements. The idea is that if employees can easily understand what they are signing, trust will be built from the beginning of the employment relationship.
Example of an Aurecon visual employment contract, covering some of their leave policy. Source: Aurecon
Visual employment agreements for vulnerable or illiterate workers
While Aurecon has been the first company to roll out visual agreements across its workforce, the idea has been gaining more traction in the context of employing vulnerable or illiterate workers. For example, South African fruit export company Indigo Fruit Growers implemented visual agreements for its fruit pickers who had previously had issues with understanding a written agreement.
Some heavy weights in the legal world are also lending support to visual agreements. Speaking at a conference in December last year, former Chief Justice of the High Court of Australia, Robert French AC said, “There is no reason in principle why pictorial contracts explained orally or supplemented textually or contextually could not be enforceable in the same way as any other contract”.
Potential flaws and issues to consider
Although supportive of the idea of visual contracts, the former Chief Justice admitted that the concept was not without its potential flaws, including how difficult it would be to imagine a counterparty “drawing pictures on the spot to suggest variation of terms”.
The same concerns have been raised by both peak employer and employee bodies. The ACTU and Australian Industry Group have cautioned that visual agreements do not offer employers or employees certainty about respective rights and responsibilities.
In addition to issues of certainty and variation, we think there are some other key issues that businesses should consider before getting out their water colours and felt tips to update their employment agreements:
Interpretation: Can the picture be interpreted in more ways than one? What amount of supporting text or oral explanation needs to accompany the picture? As with words, pictures are not immune to misinterpretation.
Consistency: How would you define terms and ensure they are used consistently throughout the agreement? Similarly, how would you ensure that the visual agreement is consistent with written workplace policies and procedures?
Discrimination: How are employees represented in the pictures? Are they represented in a way that would avoid potential unlawful discrimination claims? Diversity would need to be reflected in the agreement, just as it is in your workforce.
A picture says less than 1000 words
So if visual contracts become popular, where do we draw the line? Pun intended.
In the age of emoticons and gifs, the possibilities seem endless. If an employment agreement itself is a cartoon, will the classic thumbs up emoji in a reply email be adequate acceptance of the terms? Time will tell. Until then, another quote, this time from George Herbert: “Good words are worth much, and cost little”.
Although he probably wasn’t talking about the art of drafting an employment agreement, George Herbert’s words are, in our view, some to live by for any business. Not only will a carefully worded agreement help to ensure things go right, it can also save a lot of time (and money) if things go wrong. So until pictures take over…
Three tips for written employee agreements
Know your audience: pro-forma employment agreements are useful – they can save time and money and in many cases cover the needs of the business. However, it is important to tailor the agreement to the employee. The new cleaner’s agreement probably won’t need the same restraint of trade clause just signed off by the Chief Information Officer.
Keep it simple: the rationale for pictorial agreements is that businesses are steering away from having employees sign pages of legalese which they might not understand. This is a very fair point, but agreements don’t have to be complex to be effective. Draft employment agreements in simple, plain English. The easier the agreement is to understand (for everyone, and not just lawyers), the better.
Keep it compliant: if you’re a National System Employer, your employees will be covered by the National Employment Standards (NES). Any entitlements in an agreement must comply with these standards. There are significant penalties for individuals and companies who do not comply with the NES.
So pictures or paragraphs? Pictures might be edging their way in, but don’t put your keyboards away just yet. Watch this space.
Aaron Goonrey is a Partner and Coral Yopp is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice. Aaron can be contacted at email@example.com
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HRM takes a look at the organisations that are ahead of the game when it comes to flexible working programs, and why they should be optional rather than enforced.
Flexible Work Day is here once again. So what better way to mark the occasion than by looking at what some of the leader in this space are doing.
In order to raise awareness about the benefits of flexible working practices in Australia, a new program has been announced called the Champions of Flexible Working Awards. Recipients of this accolade have demonstrable results about how their flexibility program has “transformed their business”.
The winners from the private sector include GM Holden, which claimed the top slot, alongside American Express, Diva Works, LegalVision, Mercer Australia and Unity Water. In the public sector, the recipients included City of Melbourne and South Australia’s Department for Environment and Water, with Lifeline Canberra receiving the non-profit award.
So what does it mean to “transform your business” through flexibility? It means having initiatives include pushing back on “flexism” and the “gender flex gap” – which are biased approaches to flexibility which assume it’s for some workers and not others. It could also mean a smart use of technology to ensure the effectiveness of the program.
According to Vanessa Vanderhoek, the founder of Flexible Work Day Champions of Flexible Working Awards, the normalisation of flexibility needs to come from the very top.
“With all members of the Senior Leadership Team accessing flex, including four in formal part time roles, not only do they lead by example, but they show how as a team they can support one another to challenge the perceived ‘norms’ of how executives ‘should’ work,” says Vanderhoek.
Vanderhoek also spoke of the importance of changing the conversation around flexible working to break down social barriers. “We have seen the conversation mature with companies realising flexibility is key to attracting and retaining talent and also a driver for productivity,” she says.
Is it for everyone?
While these are no doubt important developments, it’s important to remember the inherent nature of these programs is to be flexible, meaning they shouldn’t been forced. Recent research by the University of Melbourne shows that employees don’t always respond well to flexible programs if they are not offered the choice. The research, which focussed on a US-based employer which had enforced a flexible work program, found that 35 per cent of employees were not in favour of it.
“What we were looking at, in particular, was a workplace where the employer had decided: ‘You know what, this is what’s going to work best for the business, and we think people are going to like it because we’ve heard that it’s a flexible option and people should love it’,” says researcher Edward Hyatt.
“The only people that were really happy with it were those that didn’t mind that it had been made mandatory.”
But it really boils down to careful planning in term of what works for the business as well as employees, and what the organisation hopes to achieve from a flexibility program. The research also found that core hours were preferential for a business, so that a business can be fully functioning at certain times, and so it’s easier to schedule meetings.
Another thing to keep in mind is the pervasive “always on” culture, which can be an unfortunate byproduct of flexible working. New York recently instituted a bill to counteract being on at all times, called the “Right to Disconnect”, where private companies comprised of 10 or more employees are no longer legally allowed to expect staff to respond to digital correspondence outside of work hours. Failure to comply will result in a $250 fine per occurrence. As HRM reported last year, France was and Germany both have similar bills in place. Could Australia be next?
While flexibility in the workplace is overwhelmingly positive, it’s important to keep the option open, ensure digital communications don’t get out of hand and, well, be flexible.
Have an HR question? Access online resource AHRI:ASSIST for guidelines, policy templates and checklists on different HR topics topics. Exclusive to AHRI members.