Going backwards: failing to change the workplace

Thirty years ago in the New South Wales’ (NSW) Upper House, Premier Wran delivered his visionary Second Reading to establish the Anti-Discrimination Board, stating, "the protection of fundamental rights and freedoms of the individual is of paramount importance to governments. The principle that all human beings are born equal, have a right to be treated with equal dignity, and a right to expect equal treatment in society is a principle firmly upheld by my government."

NSW was the second Australian state to enact anti-discrimination law after South Australia, but it was the first to establish a dedicated Anti-Discrimination Board (ADB). Its role then was to conduct quasi-judicial inquiries into discrimination complaints and develop human rights policies. Today, the ADB's powers are in the investigation and conciliation of complaints.

Thirty years is a good passage of time for considering the impact of the ADB. Thirty years of changes in the workplace and in social attitudes across NSW, but to what end?

The most recent management book from Robert Sutton, Professor of Management at Stanford University entitled, The No Asshole Rule - Building a Civilised Workplace and Surviving One That Isn't, has been a bestseller in Australia. Its popularity attests to the fact that workplaces remain the number one location for bullying and discrimination. If so, what does this say about the effectiveness of the ADB?

Not much - last year, as with every year, most of the complaints to the ADB were made by women about sex discrimination in the workplace, 10 per cent were about individual males. Over half of the complaints do not even get looked at, either withdrawn or the ADB “declines” to investigate. Only 10 per cent end up in being publicly aired at the Administrative Decisions Tribunal (ADT).

Two reports into the ADB by the NSW Law Reform Commission attest to the ADB’s failures. The first in 1999 recognised a "significant discrepancy between discrimination in theory and practice”. Professor Sutton observes that such "discrepancies", or bullying and discrimination, damages victims and batters bystanders.

Workplace performance also takes a dive with a decline in innovation, co-operation and morale. Then there is the cost of the victim’s ongoing retribution towards the employer. Corporate reputations can take a hard hit and prospective employees look elsewhere.

The second Law Reform Commission Report in 1997 relied on surveys of employers and employees who had dealt with the ADB. The results were not encouraging. Feedback was "very diverse, ranging from the extremely positive to the extremely negative". Participants stated that, "in the long run, it was often cheaper to settle a claim than to dispute it, whatever the merits of the case”. Whatever the merits? This sums up the ADB’s justice process - settlement through "conciliation".

Last year most complaints (33 per cent) looked at by the ADB were settled before, at, or after conciliation. The conciliation process involves the ADB acting as the third party, brokering a deal between the employer and employee.

The deal is the victim gets a payout, resigns, and withdraws their complaint. Employer insurance usually covers the payout, generally less than the statutory limit of $40,000. In return for the money, the victim signs a legal contract to withdraw the complaint and say nothing to anyone, especially the media.

This practice fails to prevent bullying and discrimination. In many cases the perpetrator remains in their job, perhaps transferred, rarely dismissed. Lip service replaces attitude change.

Take a look at one of the ADB's "successful conciliation" case studies:

A man who was a middle manager in the human services industry wanted to negotiate more flexible working arrangements so he could take care of his young children. He said that after he did this he was harassed and bullied by the manager … The man become very stressed, went on leave and made a complaint of carers' responsibilities discrimination to the board. The complaint was conciliated when the respondent agreed to pay him a separation payment and compensation totalling $10,000 in exchange for his resignation.

Whatever happened to the manager who "bullied and harassed" him for trying to take care of this young children? What did the company do to ensure this did not occur again?

This disturbing view of success was identified in the first Law Reform Commission Review Report which stated, "because the majority of complaints of discrimination are resolved at successful conciliation and because the outcomes reached at conciliation are private, conciliation precludes the development of community education initiatives and thus impedes efforts to promote awareness of, and compliance with, provisions of the ADB."

The ADB argues that the “intelligence” obtained from these confidential conciliated cases enables them to focus their prevention and education efforts.

According to ADB’s 2005-06 Annual Report, two highlights of their intelligence-driven education program were a state-wide colouring competition and information sessions for the deaf community. Education in the corporate sector amounted to three employer seminar programs and 645 in-house training sessions. The NSW Chamber of Commerce currently lists over 5,000 members. The ADB’s education and prevention impact is clearly limited.

Most workplaces have introduced programs to prevent discrimination and bullying. These are often based on information published by the ADB. During the conciliation process, employers point to these programs as evidence of how they proactively prevent bullying. Are they successful?

Professor Sutton writes, "posting them on a wall or Web site or talking about them are - alone - useless acts. And if these values are routinely violated and not steps are taken to enforce them, these hollow words are worse than useless … (as the) organisation and its leaders are seen as hypocrites which fuels cynicism and scorn.”

In the same Second Reading, Premier Wran, described a time when "people of any colour, race or sex are accorded equality without resort to the protection of the law". Thirty years later the protection afforded by the NSW Anti-Discrimination Board has dissipated into a bureaucracy obsessed with processes over people and payouts over prevention. Perhaps is time to revisit the former Premier's vision, at least as a starting point. Professor Sutton's No Asshole Rule might help as well.