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Monthly Archives: August 2012

by David Burkus

Still from Basil Twist’s “The Rite of Spring.”
Have you ever debuted an exciting new idea to the world only to receive a lukewarm or even highly critical response? Well, get used to it. Mounting evidence shows that we all possess an inherent bias against creativity. The good news is there’s something we can do about it.On May 29, 1913 in Paris, Igor Stravinsky debuted perhaps his greatest work, The Rite of Spring ballet. Up until that point, most ballets were graceful and elegant, full of traditional music. Rite was different. Stravinsky had written intentionally inharmonic notes and arranged around pagan themes.

Within minutes of the show’s start, the audience began to boo the performers. Supporters rallied against the discontented audience members, and the show quickly degenerated into an all-out riot. Before the first intermission arrived, police had to intervene to calm the raging crowd. During the second half of the performance, riots broke out again. Surprised by the reaction, Stravinsky fled the theater before the show even ended.

Of course, history would vindicate Stravinsky. The Rite of Spring is now regarded as a milestone in the history of ballet and musical composition. Yet, even this legendary idea was initially rejected, which likely came as quite a shock to Stravinsky after he spent years crafting and refining the piece.

Similar rejections can leave us wondering what we did wrong or why others just couldn’t appreciate our creative idea. Fortunately, recent research in human psychology is finally shedding some light on how our brains accept (or reject) new ideas.

Creativity requires an element of novelty.

For a work to be truly creative, it has to depart from the status quo at some point. That departure makes many people uncomfortable. Despite our oft-stated desire for more creativity, we also hold a stronger desire for certainty and structure. When that certainty is challenged, a bias against creativity develops.

This bias was first discovered in two studies by researchers from Cornell, Penn and the University of North Carolina. The research team, led by Penn’s Jennifer Mueller, studied our perceptions about creative ideas when faced with uncertainty. In the first study, the team divided participants into two groups and created a small level of uncertainty in one group, telling them they would be eligible for additional payment based on a random lottery.

For a work to be truly creative, it has to depart from the status quo at some point. That departure makes many people uncomfortable.
The participants were then given a series of tests. The first test presented pairs of words on a computer to the participants and asked them to select their preferred pairing. The pairings shown always came from two groups: creative versus practical (novel, original, functional, useful) or good versus bad (sunshine, peace, ugly, vomit). In each round, participants would chose their preference between pairs like “novel vomit” or “useful peace.” The test, known as an “Implicit Associations Test” uses the speed of participants’ reaction time to measure the strength of their mental associations.

The second test was more overt; it measured participants’ explicit perceptions of creativity by asking them to rate their attitudes toward creativity and practicality on a seven-point scale (from strongly negative to strongly positive). When the researchers calculated the results from both groups, they found that the baseline group (the one given no chance at extra compensation) held both implicit and explicit associations between creativity and practicality. The uncertainty group, however, was different. This group held an explicitly positive association between the two, but implicitly their minds separated creative from practical. In other words, they had an implicit bias against creativity relative to usefulness.

Novelty provokes uncertainty.

If this bias is present in most people during periods of uncertainty, then it could well explain why society has a history of rejecting its greatest innovations. To test this thesis, the research team returned to the lab and this time studied a new group of participants’ ability to judge a creative product idea. The participants were again divided into two groups – this time into groups with a high tolerance or a low tolerance for uncertainty.

The high tolerance group was primed by being asked to write an essay supporting the idea that multiple solutions existed for every problem. The low tolerance group was primed by writing an essay arguing the opposite. Both groups were given the same implicit and explicit associations tests and then asked to rate a creative idea for a new product, a running shoe that automatically adjusted its fabric thickness to cool the foot in hot conditions. As anticipated by the first study, the low uncertainty tolerance group showed the same implicit bias against creativity and was more likely to rate the running shoe idea poorly.

Mueller’s results have powerful implications as we think about how to “sell” our own ideas. We now know that regardless of how open-minded people are, or claim to be, they experience a subtle bias against creative ideas when faced with uncertain situations. This isn’t merely a preference for the familiar or a desire to maintain the status quo. Most of us sincerely claim that we want the positive changes creativity provides. What the bias affects is our ability to recognize the creative ideas that we claim we desire. Thus, when you’re pitching your creative idea, it may not be the idea itself that is being rejected. The more likely culprit could be the uncertainty your audience is feeling, which in turn is overriding their ability to recognize the idea as truly novel and useful.

Regardless of how open-minded people are, they experience a subtle bias against creative ideas when faced with uncertain situations.
If the implicit bias against creativity is triggered by uncertainty, then crafting your pitch to maximize certainty should improve the odds of the idea being accepted. You can do this in a variety of ways. Reaffirming what the client or your manager knows is true about their project should prime them to be more accepting of novel ideas. Connecting the idea to more familiar ideas, such as previous successful projects or similar works, will also increase the odds that your idea will be seen as practical and desirable. Lastly, try leading clients toward your idea with a series of statements they agree with and then pitching your idea as if it’s theirs. Thus, counteracting the bias against creativity with an even more powerful bias – the bias for our own ideas!

Have Your Ideas Been Rejected?

Have you had great ideas shot down?

Do you think that minimizing uncertainty could help your idea succeed next time?

David Burkus is a professor of management at Oral Roberts University and editor of LDRLB, an online resource that offers insights from research on leadership, innovation, and strategy.


 by Stephanie Zillman | 14/08/2012 | 1 comments

An employer has been ordered to pay nearly $40,000 in compensation to a former employee following an unfair dismissal hearing – the arbitrator said the employer’s response had, from the very outset, “no reasonable prospect of success”.

In the case of Stan Kunce v Deliver Australia Pty Ltd (U2012/6097), Fair Work Australia found that while the employer had lodged material in response to an unfair dismissal claim, on the day of the hearing it withdrew its witnesses and failed to make any submissions.

The employer was represented by its HR manager, and Commissioner Bissett was scathing of the manager’s preparedness. “The only motive that can be attributed to the (employer) for its behaviour in the hearing is that it maintained its opposition to the claim of the (employee) when, on some reflection in the days prior to the hearing, it was apparent that its position was not defensible,” Commissioner Bissett said. “It was only after the decision was made and the order for compensation was issued did the (employer) seek to engage in dialogue with the (employee) on some other basis for settling the claim,” she added.

The Fair Work Act allows for one party to pay another party’s costs if their application (or response to an application) is vexatious, without reasonable cause or where it should have been apparent that is had no reasonable prospect of success.

In this particular case, the unfairly dismissed employee submitted that the employer changed the reasons it relied on for termination, produced no evidence in relation to its reasons, failed to cross-examine its own evidence and provided “limited” submissions in its defence. As such, the former employee argued that the employer’s lack of response could be seen as acceptance that it had little chance of success. “Whilst the [employer] now pleads naivety and inexperience with tribunal procedures, no such matter was brought to the tribunal’s attention during or prior to the hearing,” Bissett found.

The employer has some 40 employees on staff, and the HR manager had ample opportunity to seek advice or assistance prior to the hearing, but chose not to. Bissett found that while the reasons for termination weren’t changed as alleged by the aggrieved employee, it must have been ‘reasonably apparent’ immediately before and during the hearing that the employer’s response had no reasonable prospect of success.

In making her decision, the arbitrator took into consideration the employer’s apparent lack of knowledge of the tribunal procedures, but was also mindful that having withdrawn its witnesses the employer was aware, by its response to questions by the tribunal, that without its witnesses it could not substantiate its allegations. “Ignorance, however, can be no satisfactory defence against the claim for costs,” Bissett ruled.

Commissioner Bissett ruled that the employer pay costs incurred the day before and on the day of the hearing.

HR takeaway

The case serves as warning for HR to assess the risks that can come with defending claims. All up, the employer was ordered to pay the maximum penalty of 26 weeks’ pay, coupled with the costs for representation during the hearing. It’s important to seek accurate, strategic advice as soon as a claim is received to ensure risks are minimised.


Timothy Egan

Timothy Egan on American politics and life, as seen from the West.



The tutorial in 8th grade biology that Republicans got after one of their members of Congress went public with something from the wackosphere was instructive, and not just because it offered female anatomy lessons to those who get their science from the Bible.

Take a look around key committees of the House and you’ll find a governing body stocked with crackpots whose views on major issues are as removed from reality as Missouri’s Representative Todd Akin’s take on the sperm-killing powers of a woman who’s been raped.

On matters of basic science and peer-reviewed knowledge, from evolution to climate change to elementary fiscal math, many Republicans in power cling to a level of ignorance that would get their ears boxed even in a medieval classroom. Congress incubates and insulates these knuckle-draggers.

Let’s take a quick tour of the crazies in the House. Their war on critical thinking explains a lot about why the United States is laughed at on the global stage, and why no real solutions to our problems emerge from that broken legislative body.

Clockwise, from top left: Representatives John Shimkus of Illinois, Joe Barton of Texas, Jack Kingston of Georgia, Michele Bachmann of Minnesota, Todd Akin of Missouri and Paul Broun of GeorgiaClockwise, from top left: Seth Perlman/Associated Press; Manuel Balce Ceneta, via Associated Press; Stephen Morton, via Getty Images; Daniel Acker for The New York Times; Christian Gooden/St. Louis Post-Dispatch, via Associated Press; Paul Morigi, via Getty Images for OvationClockwise, from top left: Representatives John Shimkus of Illinois, Joe Barton of Texas, Jack Kingston of Georgia, Michele Bachmann of Minnesota, Todd Akin of Missouri and Paul Broun of Georgia

We’re currently experiencing the worst drought in 60 years, a siege of wildfires, and the hottest temperatures since records were kept. But to Republicans in Congress, it’s all a big hoax. The chairman of a subcommittee that oversees issues related to climate change, Representative John Shimkus of Illinois is — you guessed it — a climate-change denier.

At a 2009 hearing, Shimkus said not to worry about a fatally dyspeptic planet: the biblical signs have yet to properly align. “The earth will end only when God declares it to be over,” he said, and then he went on to quote Genesis at some length. It’s worth repeating: This guy is the chairman.

On the same committee is an oil-company tool and 27-year veteran of Congress, Representative Joe L. Barton of Texas. You may remember Barton as the politician who apologized to the head of BP in 2010 after the government dared to insist that the company pay for those whose livelihoods were ruined by the gulf oil spill.

Barton cited the Almighty in questioning energy from wind turbines. Careful, he warned, “wind is God’s way of balancing heat.” Clean energy, he said, “would slow the winds down” and thus could make it hotter. You never know.

“You can’t regulate God!” Barton barked at the House speaker, Nancy Pelosi, in the midst of discussion on measures to curb global warming.

The Catholic Church long ago made its peace with evolution, but the same cannot be said of House Republicans. Jack Kingston of Georgia, a 20-year veteran of the House, is an evolution denier, apparently because he can’t see the indent where his ancestors’ monkey tail used to be. “Where’s the missing link?” he said in 2011. “I just want to know what it is.” He serves on a committee that oversees education.

In his party, Kingston is in the mainstream. A Gallup poll in June found that 58 percent of Republicans believe God created humans in the present form just within the last 10,000 years — a wealth of anthropological evidence to the contrary.

Another Georgia congressman, Paul Broun, introduced the so-called personhood legislation in the House — backed by Akin and Representative Paul Ryan — that would have given a fertilized egg the same constitutional protections as a fully developed human being.

Broun is on the same science, space and technology committee that Akin is. Yes, science is part of their purview.

Where do they get this stuff? The Bible, yes, but much of the misinformation and the fables that inform Republican politicians comes from hearsay, often amplified by their media wing.

Remember the crazy statement that helped to kill the presidential aspirations of Michele Bachmann? A vaccine, designed to prevent a virus linked to cervical cancer, could cause mental retardation, she proclaimed. Bachmann knew this, she insisted, because some random lady told her so at a campaign event. Fearful of the genuine damage Bachmann’s assertion could do to public health, the American Academy of Pediatrics promptly rushed out a notice, saying, “there is absolutely no scientific validity to this statement.”

Nor is there is reputable scientific validity to those who deny that the globe’s climate is changing for the worst. But Bachmann calls that authoritative consensus a hoax, and faces no censure from her party.

It’s encouraging that Republican heavyweights have since told Akin that uttering scientific nonsense about sex and rape is not good for the party’s image. But where are these fact-enforcers on the other idiocies professed by elected representatives of their party?

Akin, if he stays in the race, may still win the Senate seat in Missouri. Bachmann, who makes things up on a regular basis, is a leader of the Tea Party caucus in Congress and, in an unintended joke, a member of the Committee on Intelligence. None of these folks are without power; they govern, and have significant followings.

A handful of Republicans have tried to fight the know-nothings. “I believe in evolution and trust scientists on global warming,” said Jon Huntsman, the former Utah governor, during his ill-fated run for his party’s presidential nomination. “Call me crazy.”

And in an on-air plea for sanity, Joe Scarborough, the former G.O.P. congressman and MSNBC host, said, “I’m just tired of the Republican Party being the stupid party.” I feel for him. But don’t expect the reality chorus to grow. For if intelligence were contagious, his party would be giving out vaccines for it.


Published 7:30 AM, 21 Aug 2012

The Shadow Minister for Communications, Malcolm Turnbull, hopped into your correspondent yesterday for describing Coalition policy on the NBN as “madness” (The Coalition’s NBN policy is madness, August 20).

Well, I read his response (Alan Kohler’s NBN fantasy, August 20) and we had a long talk last night. Sorry Malcolm, it’s still crazy, and you should still ditch the policy, although of course you’re not, as you argued forcefully to me, an idiot – not that I said you were.

The basic problem, as I see it, is that on this subject the Coalition will go to the election with a plan that won’t be very popular, based on saving money. Everybody’s looking forward to getting fibre: Malcolm Turnbull is going to be the party pooper, coming just as things are getting interesting and pulling the plug on the stereo.

Worse, the money saved – Turnbull estimates $20 billion – can’t be spent elsewhere or used to bring down taxes, because it is capital expenditure, not operating expenditure.

Campaigning on saving money is not usually recommended, and I’m not sure the next election will be fought on the need to bring down government debt, since it’s not too high in Australia to begin with. “Labor waste” might be an issue, but then you have to argue that connecting 93 per cent of Australian homes and businesses to a 21st century optic fibre network is wasteful, which of course is what Malcolm Turnbull does argue.

The Coalition’s policy is based on the proposition that Telstra will quickly agree to hand over its copper access network to the NBN Co for the same money as it is currently getting for transferring customers from it and renting ducts and pipes.

I must admit that is possible. Telstra chief executive David Thodey is a very nice man and it probably wouldn’t enter his head to use the fact that the new minister has made an election promise to screw him for more money.

Indeed, Turnbull argues that Telstra will get its money earlier because a fibre to the node network would be faster to do than fibre to the premise, so Thodey will jump at it. Maybe. But it took years of intensive work to negotiate the existing deal and changing won’t take a couple of days. And in any case the NBN will be a gigantic machine in full flight by this time next year and turning that particular Queen Mary will be not be easy or fast.

So then it comes down to a question of how far advanced the NBN will be by the time Malcolm Turnbull can become its minister and can stop the rollout and negotiate a new deal with Telstra.

It’s true that the latest corporate plan says 54,000 premises will be “connected” by July next year. The election will be held in the second half of next year and I’d say the earliest the rollout could be stopped – unless Turnbull simply declares force majeure, “down tools” – is the following July, when 487,000 homes will be connected.

My estimate of more than a million comes from another definition: “commenced or completed”. It seems to me that’s a more relevant number since the Coalition has said it will fulfill existing contracts.

The plan says 758,000 premises will be commenced or completed by 31 December 2012. There is no estimate for that figure by the middle of next year, but I understand the internal forecast is 1.2 million. The number of premises to be “passed” by July 2014 is 1.1 million, and since it takes 12 months to build each module, that’s consistent with that same number being commenced in July 2013.

It’s possible, I guess, for the new government to pay the contractors to go away and leave those million or so homes and businesses with copper access instead of fibre. But those people will all know they are about to get fibre and might regard paying to have them NOT get fibre as pretty wasteful too.

So Malcolm Turnbull will have to argue that, yes, 1.2 million homes and businesses have fibre available but they can’t use it because we’re going back to copper to save money, although Telstra will get the same amount as before (maybe – if they’re nice, that is).

The other problem, which I forgot to mention yesterday, is that maintenance of the copper access network is now $600-700 million a year as it deteriorates. Over 20 years that adds up to about $15 billion, wiping away most of the savings from using the copper in the first place. The $20 billion in savings is just a guess anyway: it probably won’t be that much because savings never are what you think they’ll be.

The final thing to remember is that the Coalition is not proposing to go back to the way things were. The NBN Co would still be a monopoly provider of wholesale broadband access – it would just do it with fibre only as far as neighbourhood cabinets and then copper the rest of the way – for most but not all, since more than a million premises will already have fibre all the way.

Also, the new minister would have to sack the entire senior management of the NBN Co and hire a whole new team because Mike Quigley and the rest of them all believe passionately in fibre to the premises. And he would have to tell all the service providers that have been gearing up to FTTP, including Telstra, that – terribly sorry – you have to change all your planning to FTTN now.

Very messy, it seems to me. Lots of pain, little gain.



Malcolm Turnbull

Published 12:52 PM, 20 Aug 2012 Last update 12:52 PM, 20 Aug 2012

Alan Kohler’s column today “The Coalition’s NBN policy is madness” is pure fantasy.

He says that by the time of the next election the NBN will have “about a million” connected to its fibre to the premises network.

Yet the NBN Co’s own corporate plan, released with great fanfare only a few weeks ago, says that by June 30, 2013 there will be 54,000 premises in total connected to FTTP with only 341,000 premises passed. So even if he confused “connected” with “passed”, he is out by a factor of 3.

So where does the 1 million figure come from? Alan should explain it or publish a correction.

Further, it is far from certain that the 54,000 figure target will be met by June 30 next year – after all as at May 2012 the NBN Co had less than 4,000 premises connected to the FTTP network.

As far as Telstra is concerned a move to FTTN does not require major revisions to the deal with NBN Co (other than securing access to the D side copper) and would advantage Telstra because more customers would be switched over to the NBN network sooner and so the payments to Telstra would be accelerated with a consequent higher NPV. As an example BT in the UK passed 7 million households with its FTTN rollout in just the last year.

His argument about a “two tier internet access regime” fundamentally misunderstands the nature of the internet, the whole point of which is to enables the propagation of signals over a range of networks and channels. The internet is a network of networks – fibre, copper (of many varieties), HFC, wireless, satellite – and it is that interoperability which is one of is greatest strengths. The issue for customers is not the particular medium of communication connecting their device to the internet but rather the quality of the experience. If bandwidth is sufficient for their needs, then whether it is on HFC or VDSL or GPON or wireless or a combination of some or all of them is not particularly relevant if it is relevant at all.

It has to be remembered that the speed of connection is determined by the slowest segment of the network between the customer’s device and the server with which they are connecting which in many cases may not even be in Australia.

And as for saying I should ensure the NBN is delivered “on budget” – if only there was a budget! The NBN Co has no budget. It has a project the scope of which was given them by the government and they regularly provide estimates of what it will cost. There is no budget in the sense of a cap or ceiling on what they can spend. It is exactly like asking a builder to build you a house with no contract other than to pay him what it costs.

Malcolm Turnbull


Published 12:52 PM, 20 Aug 2012 Last update 3:21 PM, 20 Aug 2012


Former treasury boss Ken Henry has told business the Australian dollar is likely to remain high for the foreseeable future.

Dr Henry told the Australian Industry Group forum in Canberra it would not be prudent to bank on an early sizeable depreciation in the exchange rate.

“There is no silver bullet that is going to rapidly devalue the dollar and make things easier for Australian businesses in the immediate future,” he said.

Many trade-exposed businesses have suffered under the strong currency, which has been lifted by strong demand for the nation’s commodities and economic troubles in the US.

However, Dr Henry said Australia’s economic policy framework – which includes a floating exchange rate, the independent setting of monetary policy and competition policy – had served the nation well.

“These things have helped to protect Australia from the impact of several economic shocks emanating from overseas,” he said.

“It is important that we will build on them and resist the temptation to dismantle parts of the framework, even though we may perceive from that dismantling a short term advantage.”

He also said local businesses must start acting like regional entities, by becoming part of regional supply chains, partnering with similar or complimentary foreign firms or moving parts of their operations to Asia.

Dr Henry conceded that moving components to Asia was not easy because such plans often attracted criticism from unions and local communities.

But he pointed to the example of Australian bootmaker Blundstone, which prospered from moving part of its business offshore despite being criticised.

“It is clear today that if Blundstone had not shifted elements of its manufacturing to Asia five years ago, it would have gone out of business completely,” he said.

Separately, Mr Henry also said his soon to be released Asia white paper will be a strategic plan for the decades ahead, not a shopping list of spending proposals.

Tax debate could improve

The debate about Australia’s tax system needs to be a “hell of a lot better”, Dr Henry believes.

He told the business forum that if governments don’t lead change, change will be forced upon.

“You want to avoid putting yourself on a burning platform,” he said.

“In order to get to the place that we need to get to, we are going to need a hell of a lot better debate.”

Dr Henry agreed with current Treasury Secretary Martin Parkinson, who in a speech last week warned governments may have trouble meeting demands for spending from the existing tax base.

Dr Henry said commonwealth tax revenue, as a ratio to gross domestic product, would not return to where it was before the global financial crisis – at least not under the present system.

He said state revenues were in a much worse position, describing it as “fragile”.

“At the moment, it looks okay for the resource rich states, and for the others it looks desperately bad,” Dr Henry said.

“But even for the resource rich states, at some stage the royalties will deliver less revenue than they have been delivering. They are going to front a grimmer fiscal reality as well.”

by: By Tim Ayres

IT might seem like everything’s made in China these days but chances are, you use something every day that’s made in Sydney’s western suburbs – whether it’s the automatic transmission in your car, a scratchie, a solar panel or a smoke alarm.

As trains and motorways are funneling commuters east, work is already under way at the thousands of small and medium-sized factories and workshops often hidden from view.

Near Liverpool, workers at HPM make the only Australian-made powerboards, sockets, smoke alarms and switches you’ll find at your local hardware store.

At Minto, workers churn out Streets paddle pops and Cornettos. At Bella Vista, workers at ResMed make devices to treat sleep apnea.

Of course, making things in Sydney has its challenges. Across Australia, manufacturers are being squeezed by the high Australian dollar and low-cost overseas competitors.

As western Sydney is a manufacturing centre, the current squeeze on the industry disproportionately hurts the region. 

Jobs are being hit.

Two hundred jobs were lost when multinational Reckitt Benckiser closed its West Ryde factory, sending the manufacture of its iconic Australian brands Mortein and Dettol overseas. The Huntington factory that supplies Australia with its scratchie instant lottery tickets is soon to shut, with the work being sent overseas. Sixty jobs are going there.

Hundreds of jobs will be lost when Shell stops refining oil at its Clyde site.

The same story of job losses is playing out on a smaller scale at many workplaces across western Sydney. If we don’t pay attention to our manufacturing base in western Sydney, we face watching it fade away. Good, skilled trades jobs in manufacturing industries with a future are critical to the economic success of the region.

Wages from good blue-collar jobs sustain suburban economies, while local manufacturing creates supply chains that spread economic benefit well beyond a single enterprise.

With real commitment from industry and government, Sydney’s west can be a smart and skilled manufacturing centre in the competitive global economy.

We need to aim for a future in which an auto component maker in Blacktown can win a contract against one in Guangzhou.

We won’t get there on labour costs: we’re lucky to live in a country where people earn fair wages. It will be through investment in technology, innovation and skills; a commitment from industry to employ managers who are capable of leading their enterprises in a tough environment; and a serious effort from government.

Government’s role is not to prop up outdated technologies and industries. But it should be fighting for good local jobs, supporting the industries of the future and creating the environment for them to thrive.

We haven’t seen much of that lately: 17,000 manufacturing jobs have been lost from NSW since the O’Farrell government took office. Barry O’Farrell may not have personally sacked those workers but nor has he been defending them nor putting up the big ideas for the NSW manufacturing jobs of the future.

A place to start would be the North West Rail Link. The state government has trumpeted the project’s potential to create jobs, yet has set no local-content target.

The North West Rail Link could be a driver of manufacturing jobs in western Sydney in steel fabrication, in rolling-stock components, in air-conditioning units, in concrete.

Or tenderers could just send all of that work – for thousands of Aussie jobs – overseas.

In Granville, workers at Knorr-Bremse produce brake sets for trains – I’d love to see them get the chance to supply the trains that run on the new train line. But I’m not holding my breath.

A mandated ratio of apprentices to skilled tradespeople on North West Rail Link contracts would deliver some serious investment in training and valuable opportunities for young people to take up a trade.

There are many elements to building a thriving manufacturing future for western Sydney. Business, unions, training organisations, residents and government at all levels have a role to play.

But it won’t happen by itself. 

Tim Ayres is NSW secretary of the Australian Manufacturing Workers Union

Print Article15 August 2012 7:23am

 Industrial tribunals have responded well to the challenges posed by social media misconduct, and employers shouldn’t be afraid to take action in appropriate cases, says barrister Elizabeth Raper.

In grappling with the topic, courts have been “making sure they undertake a balanced exercise in terms of the need to sanction outside-work conduct, against the legitimate interests of those that are responsible for the conduct when it falls in the workplace, for which employers can be vicariously liable”, Raper told the 20th Labour Law Conference in Sydney this week.

The main issue that has been brought into “stark relief” from Facebook cases in the industrial arena is the extent to which conduct outside of work can be the subject of sanction by an employer, she says. “So related to this issue is whether the conduct is private, and whether it’s outside, therefore, the purview of employers.”

She says social-media-related misconduct cases tend to fall into three categories:

  • crossing of “professional boundaries” via social media;
  • social media misconduct outside of work – for example making disparaging comments online, or harassing or intimidating co-workers; and
  • social media as a contemporaneous record of misconduct – for example where an employee claims to be sick, but posts photos from the party they’re attending, or posts evidence online of misconduct that occurred in the workplace.

According to Raper, decisions to date reveal a similar evolution to that seen with sexual harassment cases in the 1980s, and email pornography cases in the 1990s. In all three areas, “courts have gained over time a greater understanding of the technology, and then have considered the misconduct in the light of the wider obligations of employers to protect their workforces”.

Further, as with these earlier cases, “there’s a lesson to be learned from all parties in terms of employers understanding what their rights and obligations are, and also employees working out, ‘When does the conduct overstep the mark and can be the subject of sanction?'”

Out-of-hours misconduct

Employers struggle with the issue of sanctioning employees for misconduct outside of work, but there are some instructive decisions to guide their actions, Raper says.

The 1996 Federal Court decision in McManus v Scott-Charlton, for example, shows that “When considering the question of obeying lawful direction and the extent to which an employer can give a direction or sanction an employee for conduct outside of work, it was said rightly that when you’re considering the conduct, it’s about matters affecting work”, she says.

Tribunals expect employers to provide “some legitimate level of supervision of the relationship of employees inter se… in order to protect the interests of an employer from adverse effects that can flow from employee misconduct”, she says.

“So the cases in terms of dealing with misconduct generally reveal that derogatory comments on Facebook will give rise to sanction.”

In determining whether sanctions are fair and warranted, an independent umpire will specifically consider “the extent to which the conduct has affected the employer’s business, and whether the relationship of trust and confidence has been compromised”, Raper notes.

In the case of O’Keefe v Good Guys, it was legitimate for an employer to sack a worker who said intimidating and damaging things about a colleague on Facebook from his home, she points out.

“In that decision Deputy President Swan quite rightly said, ‘Let’s see what the employee handbook says about being courteous and respectful. Let’s deal with the issues about how an employee shouldn’t behave. [And] putting aside whether there was a policy in place that dealt with Facebook or not, or email, or inappropriate outside-work conduct… let’s deal with common sense that would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner which occurred’.

“What the decisions reveal is that conduct on online socialising sites, just like conduct outside work, will be dealt with in the way that the tribunals have always dealt with misconduct.”

Social media “not a private conversation at the pub”

Raper says she is often asked how “making derogatory comments on Facebook is any different from having a private conversation down at the pub on a Friday night, when you’re just having a whinge”.

“The difference is this: there’s a wider audience; it can be on-sent to other people and out of context; it’s often communicated to work colleagues; there’s a permanent record; and it can be republished time and time again. By virtue of those things it’s different from the old conversations that we used to deal with.”


August 13, 2012

Mark Bouris

pension 030309 photo Greg Newington Generic, pension, superannuation, retirement, age, elderly, medical, hospital. Wheelchair.There are more benefits than simple dollar gain when hiring staff with a disability. Photo: Greg Newington

A FRIEND who is disabled recently asked me why I don’t have anyone with disabilities working in my business. I had no answer and thought maybe I should make my business more accessible to people with disabilities looking for work. Is there a process to go through? I am completely in the dark about this and would love any guidance.

THIS is a good question and I thought it would be best to speak to my friends over at Nova Employment in Caringbah, New South Wales, to get some advice.

Chief executive Martin Wren told me that more than 720,000 people receive the disability pension and many are keen, skilled and more than able to deliver on the job.

He says that each day at least five people who started as welfare dependents end up taxpayers, and that most remain effective employees with retention and productivity rates that exceed the general workforce.

Martin says that when a person with a disability starts working with a new business, there are plenty of aids to make the integration as smooth as possible – technological support, physical adjustments to the workplace and extensive post-placement support that can continue indefinitely.

These are all ”no charge” options that can be utilised to quickly settle a new worker in and there are some significant wage assistance packages available should they be needed to further sweeten the deal.

Martin told me the number of Australian business owners hiring a person with a disability is increasing, and more people are realising it isn’t an act of charity but a sound business decision that brings flow-on benefits far beyond a simple dollar gain. There are plenty of agencies you can speak to in order to get more information and find out the requirements for your business.

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August 13, 2012


FAIR Work Australia’s monumental rebuff to the Transport Workers Union in its dispute with Qantas strikes a blow to the credibility of claims the Fair Work Act is some kind of conspiracy against employers.

The commission (which is what Fair Work Australia is in all but name) had no choice last week but to support Qantas management because, in both its tactics and its demands, the union was being so bloody-minded.

That’s true even though, by grounding its planes worldwide and locking out all its staff last October, Qantas management could come up with no more creative solution to its bargaining problem than to be as bloody-minded as some of its unions.

This was not so much a win for ”managers’ right to manage” as the commission’s commonsense judgment that allthe industrial parties needed to face up to the harsh commercial realities threatening the survival of their business.

Here we had a union demanding 5 per cent annual pay rises at the same time it was fighting to prevent its employer from turning to cheaper sources of labour. That makes sense?

It will be a pity if the commission’s refusal last week to split the difference in the old way encourages other militant employers to seek to resolve disagreements with their workers the chaos-causing Qantas way. Even so, the commission’s refusal to go anywhere near splitting the difference provides powerful evidence it can be trusted to adjudicate issues sensibly in a system that hasn’t swung the balance too far the unions’ way.

Perhaps this explains why the national dailies – which, in their campaigning against the evils of Fair Work, seem to find another story about union atrocities for the front page most days – were not excited by the employers’ big win last week.

Read too much of their stuff and you come away thinking the union movement has risen from its death bed to pose the greatest threat to our continued prosperity. Remember, union membership is down to 18 per cent of the workforce (from 50 per cent in 1982) and 14 per cent of private-sector workers.

Another figure to keep in mind when you read about the union monster poised to eat the economy’s lunch: more than 80 per cent of enterprises don’t have a union presence.

Two labour lawyers, Dr Anthony Forsyth, of Monash University, and Professor Andrew Stewart, of Adelaide University, note in their submission to the Fair Work review that ”the concerns about union activities that so animate certain employers in the resources, manufacturing and construction sectors are very far removed from the issues confronting businesses in other parts of the economy”.

”For the small to medium enterprises that predominate in sectors such as retail and hospitality, both unions and, indeed, collective bargaining are largely absent. Their concerns are much more likely, in our experience, to revolve around the costs and ‘inflexibilities’ imposed by the award system, and the renewed exposure to unfair dismissal claims that the Fair Work Act has brought.”

So far, Fair Work has failed in its aim to greatly increase the extent of collective bargaining, with the proportion of employees covered by collective agreements increasing from 39.8 per cent of the workforce in 2008, to just 43.4 per cent in 2010.

Dr Forsyth and Professor Stewart argue many of these new agreements are effectively non-union instruments drafted by employers to replace the individual workplace agreements formerly available under Work Choices.

Genuine collective bargaining is likely to be confined mainly to large, unionised workplaces in the public sector and to some sections of the private sector.

Much of the bitter complaint about Fair Work comes from the miners. The labour lawyers say what some employers in the resources sector are seeking is a capacity to manage their businesses without the involvement of unions, and to undertake projects entirely free of any threat of industrial action.

‘These aspirations are simply not compatible with the principle of freedom of association … Indeed, to allow them to be fully realised would involve restrictions on the taking of industrial action, or on union rights of entry, that would go far beyond anything envisaged by the Howard government, even during the Work Choices period,” they say.

Talk of Fair Work having unnecessarily bolstered ”union power” should not only be kept in proportion but understood in the context of a broader ideological agenda that is profoundly antithetical to the principle of collectivism, they conclude.

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