Power play: How the big guys are making you wait for your money

The CEO was brutally honest in revealing how his multinational company uses its power to delay payment to its small suppliers. Unless there are laws to make them pay up earlier, small companies are forced to wait four months for their money, he said.

The business leader was explaining the policy of his overseas head office to Kate Carnell, the Australian Small Business and Family Enterprise Ombudsman, during her inquiry into late payments last year.

“I must admit I was just horrified”, says Carnell, who says a 30 day wait is acceptable business practise.

The CEO of the Australian arm of the multinational company said payment times were pushed out to 120 days. Says Carnell: “One guy [attending the inquiry] laughed and said, ‘You should consider yourself lucky, we have a 365 day payment contract in one country I know about’.”

“They said, ‘If there is nothing that makes us pay shorter, then we will pay longer. That is just the way we operate’.”

Carnell’s Inquiry into Payment Times and Practices uncovered a widespread exercise where big organisations are using small to medium sized suppliers as a cheap form of finance. By paying invoices months after products and services are delivered, large companies can improve the efficiency of their own working capital but, in doing so, starve their vulnerable small business operators of cash.

About half of the small to medium sized businesses surveyed by the inquiry say around 40 percent of invoices were paid late. According to Carnell, 90 percent of small businesses go broke because of cash flow issues and many try to tide themselves over with credit card debt and overdrafts.

Australia had the dubious honour of being the worst performer in global research on late payments by MarketInvoice in 2015, with settlement taking place an average 26.4 days after it was due.

Lending you the money they owe you

In a further development, interest bearing loans are being offered to suppliers who are waiting to get paid. Carnell has named Mars, Kellogg’s and Fonterra as three large companies offering this kind of supply chain finance.

These loans effectively levy a discount (the interest paid) on suppliers who cannot afford contractual waits of 120 days or more. “It’s pretty close to extortion really”, Carnell told the Sydney Morning Herald last year.

Another practise is to demand a discount from suppliers who want to be paid earlier than the contracted period – even though that period may be outside what is regarded as acceptable.

“There are two ways to do it. One is to require a discount, the other is to lend you the money at an interest – both of them are unacceptable”, says Carnell.

“You’ve got what is the essence of what could be regarded bullying, it is certainly using market power in an oppressive manner.”

Salt’s call for ‘same day pay’

Social commentator Bernard Salt recently called for “same day pay” in a column in The Australian newspaper, arguing that companies should not be buying products and services if they cannot pay for them straight away.

“There are 1.5 million small businesses in Australia. If you add in their partners, and staff and kids, then you are probably looking at four to five million people in Australia that are affected by timelines or otherwise of small business payments”, he says.

“The best thing you can do for small business is to pay promptly, on the day, same day pay. If you can’t pay for it, don’t buy the good or service.

“Refusing to pay in a timely and reasonable and fair manner is the equivalent of theft. I just cannot understand where people believe it is good or smart business practise. People might think it is smart, I think it is smarmy. If you incur a debt, you pay it and pay it promptly.”

Salt says he sees no reason why the flow of money is restricted to business hours, five days a week, when the rest of the world is operating 24/7.

“We should expect money to flow at the speed of data.”

Carnell says she is not demanding immediate payment … for now. “At some stage in the future, we think that is the way it should be. Right now, 30 days or less is reasonable”, she says.

Voluntary codes don’t work

To encourage best practise, Carnell’s office has set up the voluntary Small Business Ombudsman’s National Transparency Register. So far, around 21 organisations have agreed to report on their progress on paying promptly.

“It is a start, but it is a drop in the ocean really”, admits Carnell.

The Business Council of Australia responded to the inquiry by introducing its own voluntary Australian Supplier Payment Code, which commits signatories to 30 day payment times to small businesses and has around 77 signatories, but it has no requirement that companies report.

The NSW Small Business Commissioner, Robyn Hobbs, recently told ABC Radio that she does not think the BCA code goes far enough. “These things should be mandatory”, she said.

Carnell says her approach is to try a voluntary approach first, but admits she has little faith it will work.

“We looked around the world … and we hadn’t found a situation where a voluntary code had worked to create systemic change. The problem with voluntary codes is that the good corporate citizens sign them.”

People who think their own cash flow is more important than the economy won’t sign, she says.

“We would love a voluntary code to work because it would show that, as a nation, we do take good business practise, ethical behaviour, really seriously and we can make these things work without legislation. We will review it in 12 months and we would expect, if it had not been successful, that a Government would legislate.”

Governments set a standard

In the UK, the Government has introduced a voluntary Prompt Payment Code, working towards 30 day payment, and there is legislation requiring large businesses to publish details publicly of their actual payment times.

Governments can provide a good example to the commercial sector. A UK Central Government Prompt Payment policy seeks to pay 80 per cent of undisputed and valid invoices within five days.

The European Union has a Late Payment Directive setting a maximum payment time of 60 days, or 30 days for government, with an interest penalty, and ability to claim compensation and recovery costs. US government has QuickPay to reduce government payment times from 30 days to 15 days.

In Australia, Federal Government agencies have committed to paying small operators in 15 business days by mid 2019.

Some individual companies have also taken up the challenge since the inquiry, which reported a year ago. Since the inquiry, Mars has moved from 120 day payment terms to 30 days for small businesses. “That is a big step”, says Carnell.

Telstra has also “made a big effort”, reducing payment times from 45 days or longer down to 30 days or fewer for all its 7366 small business suppliers. The telco spends around $2.9 billion each year with small business suppliers.

“Those are the ones I know that have actually had to go through quite a lot of hassle to change their systems, it wasn’t a simple flick of the switch. The banks tell us they have moved to 30 days or less”, she says.

Woolworths and Coles have committed to paying small suppliers within 14 days.

“Some good things are happening, but it’s not enough, not nearly enough”, says Carnell.

Boards do not know if they are slow payers

Carnell has been in discussions with the Australian Institute of Company Directors about making payment times reporting a standard agenda item for board meetings.

“My experience as both a CEO and a board member, is that focusing the board’s mind on these sorts of things makes a big difference to corporate culture. Our experience, when talking to board members, is they have no idea how their company is operating in terms of payment times.”

A spokesman for the AICD says the organisation is promoting the code and the views of the Ombudsman to its members but cannot control what boards put on their agenda.

One entrepreneur has decided to take matters into her own hands, launching a “name and shame” platform for small business operators.

Frances Short launched the Late Payer List in March so that small to medium sized businesses could check the reputations of buyers or report cases where clients were too tardy or refusing to pay on invoices where there was no dispute about the work or products.

Short says she came up with the idea after watching her partner, a builder, continually have to chase payment, sometimes resorting to legal action.

Once when one client kept dodging a large payment, Short’s partner tried some social shaming. “He said to this guy, ‘I’m going to come down to your church wearing a sandwich board, telling your neighbours that you owe money and it’s not fair’.” The customer paid up.

“We want to do something for small biz that was much simpler, something that was socially powered and giving control back to small business owners, without the need for using expensive debt collectors or lawyers”, she says.

“What we have got is a bit of a nudge, nudge for late payers, so there is a consequence.”

The Ethics Alliance collaborated with members on a new procurement research paper for making ethical payment easy. Download your copy here

This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.


Is employee surveillance creepy or clever?

A large European bank tracks its employees in work hours, using digital badges to analyse where they went, to whom they spoke and how stressed they were.

Is this creepy or clever?

According to the manufacturer of the badges, US company Hamanyze, the surveillance helped uncover why some bank branches were outperforming others by more than 300 per cent.

Discovering that employees at the “star” branches interacted more frequently – seeing and talking to each other more often – the bank redesigned its offices to encourage people to mix and offered group bonuses to encourage collaboration.

As a result, the lagging branches reportedly increased their sales performance by 11 per cent.

The results in this case seem to indicate this is a clever use of digital technology. The bank had a legitimate reason to track its employees, it was transparent about the process, and the employees could see some benefit from participating.

If it is secret, it’s unethical

Creepy tracking is the unethical use of the technology – where employees don’t know they are being monitored, where there is no benefit to them and the end result is an erosion of trust.

In the UK, for instance, employees at the Daily Telegraph were outraged when they discovered motion detectors had been installed under their desks without their knowledge or consent. They insisted on their removal.

Two years ago, Rio Tinto had to deny it was planning to use drones to conduct surveillance on its workers at a Pilbara mining site after some comments by an executive of Sodexo (which was under contract to provide facilities management to Rio Tinto). Those comments about drone use were later described as “conceptual”.

Employee surveillance during work hours is allowed in Australia if it relates to work and the workers have been informed about it, however legislation varies between the states and territories.

Deciding where ethical and privacy boundaries lie is difficult. It depends on individual sensibilities, but the ground also keeps shifting. As a society, we are accepting increasing amounts of monitoring, from psychometric assessments and drug tests, to the recording of keystrokes, to the monitoring of personal social media accounts.

Co-head of advice and education at The Ethics Centre, John Neil, says legislation is too slow to keep up with rapidly advancing technologies and changing social attitudes.

“It is difficult to set binding rules that stand the test of time,” he says. “Organisations need guiding principles to ensure they are using technologies in an ethical way”.

Guiding principles are required

The Institute of Electrical and Electronics Engineers have developed ethical principles for artificial intelligence and autonomous systems. These state the development of such technologies must include: protecting human rights, prioritising and employing established metrics for measuring wellbeing; ensuring designers and operators of new technologies are accountable; making processes transparent; minimising the risks of misuse.

Principles such as these can help businesses and people distinguish between what is right, and what is merely legal (for now).

Putting aside the fact that employee monitoring is allowed by law, the key to whether workers accept it depends on whether they think it will be good for them as individuals, says US futurist Edie Weiner.

People may not mind their movements being tracked at work if they believe the information is being used to improve the working environment and will benefit them, personally.

“But if it was about figuring out how to replace them with a machine, I think they would really care about it,” says Weiner, President and CEO of The Future Hunters. Weiner was in Sydney recently to speak at the SingularityU Australia Summit, held by the Silicon Valley-based Singularity University

When it comes to privacy considerations, Weiner applies a formula to understand how people accept intrusion. She says privacy equals:

  1. Your age
  2. Multiplied by your technophilia (love of technology)
  3. Divided by your technophobia (fear of technology)
  4. Multiplied by your control over the information being collected
  5. Multiplied again by the returns for giving up that privacy.

“Each person figures out the formula and, if the returns for what they are giving up is not worth it, then they will see that as an invasion of their privacy,” she says.

This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.


Ethics Explainer: Social license to operate

Social license – or social license to operate – is a term that has been in usage for almost 20 years. At its simplest, it refers to the acceptance granted to a company or organisation by the community.

Of course anyone running a company would be aware that there are many formal legal and regulatory licenses required to operate a legitimate business. Social license is another thing again: the informal “license” granted to a company by various stakeholders who may be affected by the company’s activities. Such a license is based on trust and confidence – hard to win, easy to lose.

It’s useful to understand that the term “social license to operate” first came into the world in reference to the mining and extractive industries. In an era of heightened awareness of environmental protection and sustainability, the legitimacy of mining was being questioned. It became apparent that the industry would need to work harder to obtain the ongoing broad acceptance of the community in order to remain in business.

To give a simple example: a mining company may be properly registered with all appropriate agencies; it may have a mining license, it may be listed with ASIC and be paying its taxes. It may meet every single obligation under the Fair Work Act. But if the mine is using up precious natural resources without taking due care of the environment or local residents, it will have failed to gain the trust and confidence of the community in which it operates.

Over time, the social license terminology has crossed into the mainstream and is now used to describe the corporate social responsibility of any business or organisation. A whole industry has flourished around Sustainability and Corporate Stakeholder Engagement. And there’s a growing view that social responsibility can be good for long-time financial performance and shareholder value.

The social license to operate is made up of three components: legitimacy, credibility, and trust.

  • Legitimacy: this is the extent to which an individual or organisation plays by the ‘rules of the game’. That is, the norms of the community, be they legal, social, cultural, formal or informal in nature.
  • Credibility: this is the individual or company’s capacity to provide true and clear information to the community and fulfil any commitments made.
  • Trust: this is the willingness to be vulnerable to the actions of another. It is a very high quality of relationship and takes time and effort to create.

The rise of social license can be traced directly to the well-documented erosion of community trust in business and other large institutions. We’re living in an era in which business (or indeed Capitalism itself) is blamed for many of the world’s problems – whether they be climate change, income inequality, modern slavery or fake news. Many perceive globalisation to have had a negative impact on their quality of life.

There’s a growing expectation that businesses – and business leaders – should take a more active role in leading positive change. There’s a belief that business should be working to eliminate harm and maximise benefits – not just for shareholders or customers, but for everyone. To do this, business would be actively engaging with stakeholders, including the most outspoken or marginalised voices; they should be prepared to listen, and reflect, on the concerns of these often powerless individuals.

There is no simple list of requirements that have to be met in order to be granted a social licence to operate.

Too often, social licence is thought to be something that can be purchased, like an offset. Big companies with controversial practices often give out community grants and investments. Clubs that profit from addictive poker machines provide sports gear for local teams and inexpensive meals for pensioners. Tax minimisers set up foundations; soft drink companies fund medical research.

Here a social licence to operate might be seen as a kind of transaction where community acceptance can be bought. Of course, such an approach will often fail precisely because it is conceived as a calculated and cynical pay-off.

The effective co-existence of businesses and individuals within a community requires the development of rich and enduring relationships based on mutual respect and understanding. That sounds like something we’ll all need to work on.


Moral injury is a new test for employers

When I am unsure if something is ethical, my favourite ‘ready reckoner’ is to apply the reflection test – I ask myself if I could look myself in the mirror after doing it.

Would my self-image be helped or hindered by the action? I could also call it ‘the slumber test’. Will I be able to sleep at night after doing what I’m setting out to do?

I’ve spent years studying the ethical and psychological toll that comes with doing things that stop us from meeting our own eyes in the mirror. There is a price that comes when we violate our most precious moral beliefs.

In military communities, this price is called a ‘moral injury’. Psychiatrist Jonathan Shay, the foundational voice on the subject, describes it poetically as “the soul wound inflicted by doing something that violates one’s own ethics, ideals, or attachments”.

This needs attention

As parochial as talk of souls might be, organisations should start paying attention to this risk for three reasons:

  1. So they can take steps to prevent their workers from being affected by moral injuries (basically, as an OH&S issue).
  2. So they know how to spot and manage moral injuries if they do occur.
  3. To figure out what support and remuneration they should offer if it turns out moral injuries are an ‘occupational hazard’.

The OH&S analogy is apt. Today, we expect organisations to think about their duty of care in a broad sense – taking an active interest in their employees’ wellbeing, seeking to reduce the risk of physical injuries, managing and minimising psychological stressors and mental illness, and providing fair training, support, and compensation when physical or mental stressors are likely to have a negative effect on employee wellbeing.

So, it follows that if some ethical issues can have an effect on wellbeing, they should be treated seriously by organisations claiming to care about their people.

How moral injury takes place

Moral injury is still a contested topic. Some people think it’s just a variation of post-traumatic stress disorder (PTSD), others think it’s no different from moral emotions like guilt, regret or remorse, and others still see it as something distinct.

Among veterans (who tend to dominate discussions of moral injury), the condition is seen as a condition akin to PTSD – a different kind of war trauma with different causes and different treatment pathways.

Whilst PTSD originates in feelings of fear and physical insecurity, moral injuries arise when we witness a betrayal or violation of our most deeply held beliefs about what’s right. It has to happen in a high stakes situation and the wrongdoing has to have been committed by someone in a position of ‘moral authority’ – a position you yourself might hold.

A group of US psychologists who have studied the issue offer a similar definition, describing moral injuries as “maladaptive beliefs about the self and the world” that emerge in response to the betrayal of what’s right. The injury is caused by the betrayal, but it’s in the beliefs and our response to them that it actually resides.

When we suffer a moral injury, our beliefs about ourselves, our world, or both are shattered in the wake of what we’ve witnessed or done.

Our moral beliefs are one of the ways we see the world and one of the ways we conceptualise ourselves. Everything flips when people no longer adhere to a ‘code’, good people are forced to do bad things for good reasons, or our different identities contradict one another.

This contradiction gives rise to ‘fragmentation’. Our moral beliefs, identities and actions no longer harmonise with one another. In the words of Les Miserables’ Inspector Javert, we find ourselves thrown into “a world that cannot hold”. Fragmentation demands reunification, and the way we go about this will determine both the extent of the moral injury and the likelihood of recovery.

How we respond to the conflict

If we can accept the critical event as being a rare product of extreme circumstances and a particular context, it’s possible to move on. We can accept guilt and seek forgiveness, admit our trust in a moral authority was betrayed and sever ties, or concede that the world is not as fair as we had thought.

This approach is relatively risk-free, albeit unpleasant.

However, if we are unable to see the event as context-dependent and, instead, see it as reflecting something universal – or worse, something about us – then a moral injury is likely to occur.

For example, if we have a handshake agreement to honour a business deal which is then betrayed, leading to widespread unemployment, we might decide that people are no longer trustworthy and either withdraw from them altogether or ‘get them before they get us’ next time. Either approach has an impact on a person’s ability to flourish in society.

Another possibility lies in concluding that we must be bad in order for us to have done what we did. Even if we were doing our duty without fault, guilt lingers and an employee could be permanently tainted by what they have done: “How can I say I am a good person when my actions resulted in this?”

Finally, we can recalibrate our moral beliefs. Perhaps, as many veterans argue, we were wrong to think the world was predictable or reliable to begin with. Maybe our moral injury isn’t an injury at all. Perhaps it’s a sign we’ve learned something new.

What employers can do

Moral injuries must be addressed because they affect a person’s future ethical decision making and their capacity for happiness.

This gives organisations another reason to have a robust ethical culture that guards against wrongdoing and refuses to ask people to act against their conscience.

However, this won’t always be possible. Sometimes professional demands require people to ‘get their hands dirty’, witness wrongdoing or even participate in something they feel contradicts their moral beliefs.

A committed parent may be required to decline an insurance claim, leaving the claimants – a family– homeless. How will he go home and sit with his children knowing his actions have put another family in jeopardy? A nurse may be legally prohibited from helping someone to end their life. Can she be a good person while allowing someone to needlessly suffer?

The question of moral injury has typically been posed as an individual problem but, if the OH&S analogy is a valid one, we should think about the responsibilities of organisations in the wake of what we’re learning.

An organisation violates its duty of care if it exposes workers to risk without reason, consent, support or fair compensation. Perhaps we might say the same for moral injuries, with one important caveat: it would be perverse and potentially corruptive to offer financial incentives for people to compromise their values and moral beliefs, offering a salary increase to be exposed to ethical risks, for instance.

A clear ethical purpose with which staff can identify and that is consistent with their moral beliefs is a more appropriate incentive. Not only might this prevent wrongdoing in the first instance, it can help reunify a fragmented identity if a moral injury does occur.

This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.


Sell out, burn out. Decisions that won’t let you sleep at night

Nick Naylor is a man who is comfortable being despised. In the movie Thank You for Smoking, he is the spokesman for the tobacco lobby and happily admits he fronts an organisation responsible for the deaths of 1,200 people every day.

While he excuses his employment as a lobbyist by unconvincingly adopting the “Yuppie Nuremberg defence” of having to pay a mortgage, the audience learns that his real motivation is that he loves to win.

The bigger the odds, the better.

Naylor is not the sort of man who would struggle with ethical distress or moral injury from the work he chooses to do. This work “requires a moral flexibility that is beyond most people”, he says.

He likens his role to that of a lawyer, who has to defend clients whether they are guilty or not.

Partner of law firm Maurice Blackburn, Josh Bornstein, says the convention in law that everyone deserves legal representation can certainly assist lawyers called upon to defend people whose actions they find morally reprehensible – however that argument does not work for everyone.

‘If I don’t, someone else will’

Bornstein says there is no way of knowing how many lawyers refuse to work on cases because of moral conflict, but it happens from time to time. “Not every week or every month”, he adds.

“Do [lawyers] have moral crises? Some people have a strong sense of morality and others try and sweep that to one side and consider that, as professional lawyers, they shouldn’t dwell on moral concerns”, says Bornstein, who specialises in workplace law.

Bornstein is well known for his advocacy for victims of bullying and harassment, however, he has also acted for people accused of those things.

“I’ve found myself, from time to time, acting in matters that have been very morally confronting”, he says.

As a young lawyer, when he was expressing his disapproval of the actions of a client, his mentor told him to stop moralising and indulging himself.

“He said that when people like that get into that trouble, that is the time they need your assistance more than any other. Your job is to help them, even when they have done the wrong thing”, says Bornstein.

Bornstein says ethical distress can occur in all sorts of professions. “I would think the same would occur for a psychologist, social worker, doctors, and maybe even priests.

“Consider the position if you were lawyers for the Catholic Church over the last three decades, dealing with horrific, ongoing cases of child sexual abuse.”

Distress or injury? Making a distinction

The CEO of Relationships Australia NSW, Elisabeth Shaw, says when seeking to understand the psychological damage wrought by such conflicts, a distinction should be made between ethical (or moral) distress and moral injury.

Ethical or moral distress occurs when someone knows the right thing to do, but institutional constraints make it nearly impossible to pursue the right course of action.

This definition is often used in nursing, where staff are conflicted between doing what they feel is right for the patient and what hospital protocol and the law allows them to do. They may, for instance, be required to resuscitate a terminally ill patient who had expressed a desire to end the pain and die in peace.

Moral injury is a more severe form of distress and tends to be used in the context of war, describing “the lasting psychological, biological, spiritual, behavioural, and social impact of perpetrating, failing to prevent, or bearing witness to acts that transgress deeply held moral beliefs and expectations”.

The St John of God Chair of Trauma and Mental Health at the University of New South Wales, Zachary Steel, says most moral injuries stem from “catastrophic traumatic encounters”, such as military and first responder types of duties and responsibilities.

He says he sees moral injury as a variant of post-traumatic stress disorder and distinguishable from the kind of moral harm wrought by bullying and highly dysfunctional workplaces.

Tainted by your compliance

This distinction does not diminish the distress experienced by those who are torn between what they are expected to do, and what they know they should do.

Shaw, who has volunteered at The Ethics Centre’s Ethi-call hotline for eight years as team supervisor, says the service handles around 1,500 calls per year and a typical request for advice may come from an accountant who is pressured to sign off on dodgy records.

“After [complying], you may feel a lesser version of yourself. You may feel you didn’t have a choice, but also feel quite tainted by those actions”, she says.

“Even if you went to great lengths to do all the things that could be seen to be correct, you can still feel very injured at the end of it.”

For some people, it is the nature of the organisation they work for, or its culture, that creates a problem.

“Some people feel like they are part of an organisation that is, perhaps, habitually part of shabby behaviour”, says Shaw.

Someone working for a tobacco company (like the fictional Nick Naylor) may start by shrugging off concerns, reasoning that they need the job and if they don’t do it, someone else will. However, over time, embarrassment grows and they become more aware of the disapproval of others and they start to feel morally compromised, says Shaw.

“And then there is a point where it feels like [your job] has injured your sense of self … or even your professional identity and, in fact, might make you feel less than yourself.”

There are also professions where people sign up for noble reasons, in a not-for-profit, for instance, but then find unjustifiable things are happening.

“You start to feel like there is a huge dissonance – that can no longer be resolved – between what you say you are doing and what you are actually caught up in.”

Can’t tell right from wrong

Burnout and mental health conditions such as anxiety and depression can result from this stress and some people become so ethically compromised they lose their moral compass and no longer can tell right from wrong, she says.

Moral distress is one of a range of factors contributing to the poor record of the law profession when it comes to the incidence of mental health issues, says Bornstein.

A third of solicitors and a fifth of barristers are understood to suffer disability and distress due to depression.

Some of the more “sophisticated” firms encourage their people to seek assistance and offer employee assistance programs, such as hotlines.

Maurice Blackburn has a “vicarious trauma program” for lawyers who may, for instance, work with people dying from asbestosis or medical mishaps or accidents.

“Even in my area of employment [workplace law], vicarious trauma is a real risk and problem”, he says.

“So, we have tried to change our culture to be very open about it, speak about it, to regularly review it, to work with psychologists, to have a program to deal with it, to know what to do if a client threatens suicide or self-harm. But it is an ongoing challenge.”

Bornstein has, himself, sought guidance from the Law Institute on ethical dilemmas.

“The other underestimated, fantastic outlet is to confer with colleagues you respect who are, hopefully, one step or more removed from the situation and can give wise counsel. Another is to seek similar support from barristers, I’ve done that too, and then there is friends and family.”

Bornstein says even though he is not aware of any law firm offering a “moral repugnance policy” that would allow people to avoid working on cases that could cause ethical distress, he is aware there would be little benefit in forcing a lawyer to take one.

“It may be resolved by [getting] someone else working on the case.”

The value of a strong ethical framework

Social work is another area that is fraught with ethical dilemmas and, like lawyers, social workers often see people at their worst.

However, the profession has a developed an ethical framework and support system that ensures workers are not left alone to tackle difficult dilemmas, says Professor Donna McAuliffe, who has spent the past 20 years teaching and researching in the area of social work and professional ethics.

“The decisions that social workers have to make can be very complex and distressing if they are not made well”, says McAuliffe, who is Deputy Head of School at the School of Human Services and Social Work at Griffith University.

Social workers have a responsibility, under their code of ethics, to engage professional supervision provided by their employer.

Because social work in Australia is a self-regulated profession, it is important to have a very robust and detailed code of ethics to give guidance around practise, she says.

“We educate social workers to not go alone with things, that consultation and support of colleagues are going to be the best buffers against burn out and distress and falling apart in the workplace – and there is evidence to show good collegial, supportive relationships at work is the thing that buffers against burnout in the best way.”

McAuliffe says employers in business may think about building into their ethical decision making frameworks some consideration of the emotions, worldview, and cultures of the people affected by difficult workplace choices.

“The decision may still be the same … but the [employee] will feel a hell of a lot better about it if they know they have thought about how the person at the end of that decision can be supported.”

Shaw cautions that people should try and seek other perspectives before making decisions about situations that make them feel morally uncomfortable.

“Part of the process of ethical reflection is to work out, ‘Do I have a point?’

“Because we are all developed in different ways ethically, just because you have a reaction and you are worried about something and you feel ethically compromised doesn’t make you correct.

“What it means is that your own moral code feels compromised. The first thing to do is spend some time working out, is my point valid? Do I have all the facts?

“What do I do about the fact that my colleagues and bosses don’t feel bothered? Should I look at their point of view?

“Sometimes, when you feel like that, it really is a trigger for ethical reflection. Then, on the basis of your ethical reflection, you might say, ‘You know what? Now that I have looked at it from many angles, I think, perhaps I was over-jumpy there and I think if I take these three steps, I could probably iron this out, or if I spoke up, change might happen.’

“And then the whole thing can move on.

“Having a reaction to what feels like an ethical trigger is really just the beginning of a process of self-understanding and the understanding in context.”

This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.


The pivot: ‘I think I’ve been offered a bribe’

The man waiting for me in the meeting room was an unexpected visitor. He introduced himself as the head of a government department and welcomed me to the Czech Republic. He had brought a “friend”.

“You are going to have meet your budget, but I can give you all the government work you need”, he said with a meaningful look. “I just want you to employ this girl.”

He pointed to the young woman who sat opposite. She was beautiful, breathtakingly so, and I suspected she was to be a “spy” for the government. Working on behalf of British and US lenders, I was leading a team investigating cases of fraud that often wound their way back to organised crime and government figures.

I was just a few months into my posting to Eastern Europe and I knew to be wary. This is a country where surveys show two thirds of Czech citizens (66%) believe that most, or almost all, public officials are corrupt.

I left the room, grabbed the arm of my direct report and said, “I think I have just been offered a bribe”.

My first strategy was to make the problem go away by making it clear that everything was to be “above board”.

I walked back into the meeting room. “Leave it with me”, I said. “Look, it sounds interesting, send me her CV and we will see where she may fit in the organisation.”

I had made no commitment, but had asked him to “make it official”. But that was not the end of it. No CV arrived, but three weeks later he was back, unsmiling this time.

“If you don’t employ her, you won’t get any government work at all”, he threatened. I thanked him, said I understood what he was talking about and asked him once more to send the CV. He left without shaking my hand.

A senior leader within the organisation I worked for pulled me up the following day to berate me for being so stupid. Bribes and corruption are a ubiquitous part of the business environment in some countries.

While the organisation might have seen a brown paper bag full of cash as corruption, “scratching each other’s back” in this way was regarded as mere facilitation.

It came to me right then, that this was a real turning point.

With 20 years in the NSW Police behind me, I thought I was a bit of a tough guy, but I knew my life was about to change if I did not change my mind about hiring the “spy”. This could be a dangerous situation because of the kind of people involved in corruption.

It became clear that I had become a problem to the people running the Prague office. At every executive meeting, the others would roll their eyes when I spoke. Their attitude was that we had to get the business, no matter what. Eventually I had to leave before my contract was up.

Looking back through the intervening years, are there things I would have done differently? Perhaps I should have tried being upfront with the CEO – however, he was new to the job and was part of the “giggle”.

I thought at the time that it was better to leave the matter “intangible”, to not start a fight when I was the only Australian in the office.

I had let them know where I stood – a strategy that worked well in the Police Force where, if you were known as a straight shooter, people wouldn’t approach you with corrupt offers.

I could have done more research to find out what was the normal way of conducting business there. I knew there was a lot of corruption in the country, but I had thought the organisation I was working for was above that. It wasn’t. It was part of it.

I could have made my ethical standards clear to the CEO and management team before I started. If I had known their attitude, I would not have taken the job. If they had known mine, they wouldn’t have hired me.

My advice to others in this situation is to bring the matter out into the open, but think about your personal safety. Make sure you have a good exit plan.

An interesting thing about the culture of corruption is it can be invisible. If you didn’t look out the window into the Prague winter, you would think you were in Australia. The building was the same, the people were the same. So, you could be seduced into thinking you could operate the same way there as you do in Australia, but the culture is so very different.

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This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.


How cost cutting can come back to bite you

When former Mediacom chief executive Jon Mandel revealed a rampant practice of “kickbacks” in the advertising industry two years ago, media agency CEOs around the world ducked for cover.

Media agencies, that book advertising space for clients, were essentially being paid twice for the same pieces of work and, often, not disclosing it.

While advertisers are questioning the allegiances of their agencies, those same agencies may reply, “What do you expect when your cost cutting effectively reduces our fees and commissions to zero?”

Marketing management consultant, Darren Woolley, says it is time to consider the ethical impacts of a cost-cutting culture.

“I think it is interesting to see how ethics are quickly reframed or compromised, based on profit”, says Woolley, founder and CEO of TrinityP3 Marketing Management Consultants.

In the case of the media agencies, their duty to clients is to find the most effective advertising space for their clients at the best price.

However, things become complicated when the media owners of print, radio, television, and websites started handing back a proportion of the client’s media spending to the agencies as an incentive to get more of their business.

Those “rebates” were often not disclosed to the clients and were often not passed on. They could be from around 1.67 percent to 20 percent per cent of “aggregate media spending” and took various forms.

“Clients could not be sure that the advertising space purchased was the right strategy for them, or just the most lucrative for the media agency.”

An investigation commissioned by the Association of National Advertisers (ANA) in the US also revealed media agencies were buying heavily discounted media space and not passing on or disclosing those savings to their clients. The agencies’ mark up on these transactions ranged from 30 to 90 percent.

Mandel’s “truth bomb”, delivered at a conference in the US, and the ANA report confirmed suspicions that media agencies around the world may no longer be acting in the best interests of their clients.

Clients could not be sure that the advertising space purchased was the right strategy for them, or just the most lucrative for the media agency.

Were they being pushed into digital advertising, for example, because it offered more lucrative rebates? Were their advertisements being seen by the right people in the right places?

Woolley says instances such as these have eroded trust but are the result of a number of factors affecting agency profitability, including industry disruption, rampant discounting, and endless expectations of cost-cutting by clients.

“We have been in a world of cost-cutting for ten years at least”, says Woolley.

Media agencies are also under pressure from the large holding companies that are often their owners. The holding companies and their shareholders expect to see rising profits each year, irrespective of market conditions.

“The industry is struggling. The traditional remuneration models – the way money moves through the industry, has changed. Firstly, there is less of it and there is a constant demand to do more for less”, says Woolley

“The obsession with cost is at the very core of this issue about ethics and ethical behaviour.”

Woolley says clients should be aware their own cost-cutting has contributed to agencies trying to find new ways to get paid.

“It is interesting to see at which point they [agencies] are willing to do something they wouldn’t normally do, willing to act in a way that is not in the best interests of their clients, but is in the best interests of their own company.

“To me, that is the interesting tipping point. What does it take?”

Woolley says agencies are not out to do their clients harm, but the system is supporting harmful behaviour.

That system includes an expectation that everything should always get cheaper and profits should always increase. Clients over recent years have cut their fees and commissions to media agencies from about 10 percent to around 3 or 4 percent and less, he says.

Melbourne Business School Marketing professor, Mark Ritson, has written that it is possible some media agencies are now effectively working on zero commissions and their only remuneration is through kickbacks from media owners.

“Most experts estimate that if you were to properly assess the revenue streams funding any major media agency, rebate income would significantly, and perhaps in some cases completely, overshadow commission income”, Ritson wrote in a column in The Australian newspaper in October.

Woolley says that with fierce competition from digital media owners, kickbacks have grown dramatically. Traditional media owners (newspapers, radio, and television) used to budget 20-30 percent of revenue as sales incentives, discounts, bonuses, or rebates.

But the owners of websites and social media platforms, which do not have the labour and production costs of newspapers and broadcasters, can “rebate” up to 90 percent of revenue, says Woolley.

This means there is a clear incentive to steer client advertising to digital platforms, whether it is the most effective strategy or not.

Since the widespread practise was discovered, most large advertisers have closed the kickback loophole by drafting contracts that ensure savings are passed on and don’t only benefit the agency middlemen.

“Agencies should be rewarded for delivering value and performance, not just for reducing costs.”

Some have also mitigated the risk by dividing their advertising work between multiple agencies “to keep them honest”, says Woolley.

Getting the advertising and marketing industry back on a sustainable footing will take a lot more than encouraging clients to pay a fair price for their agencies’ work or allocating a reasonable budget towards effective advertising campaigns.

Marketing executives have told Woolley they cannot convince their own chief financial officers to pay their agency more – even when that lack of investment is resulting in ineffective campaigns.

“But it is not working as it is, so everything they are spending is a waste and an increase in spending could make it functional”, he says.

Woolley says the advertising and marketing industry needs to change the conversation if it wants to survive. “It has been about cost for the last 15 years. It is not easy, but the way forward is to actually talk about value”, he says.

“Cost is a downward spiral to zero.” Agencies should be rewarded for delivering value and performance, not just for reducing costs, he says.

“By considering an ethical approach, rather than just a financial or cost approach, it will open up possibilities for people to do and think differently because, certainly, we are in a spiral.”

This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.


Feel the burn: AustralianSuper CEO applies a blowtorch to encourage progress

It would be nice to think business is stamping out bad behaviour because it is the right thing to do. But that rarely is the case.

The growing pressure from regulators and the community mean employers have little choice but to clean up their acts, says Ian Silk, the CEO of Australia’s biggest industry superannuation fund.

He’s no stranger to a bit of pressure, adept at applying the “blowtorch” to hasten positive change. With $125 billion in assets, AustralianSuper was an activist shareholder in voting against the remuneration report of the Commonwealth Bank of Australia last year.

“The more controversial the issue, the more vociferous are the people who have strong views either way and, sometimes, you are in the middle of it and you have to make a judgement as to which way you will go.”

Previously, Silk had spoken out about the need for bonuses to be awarded for exceptional results, not just for performing the required tasks and, in the case of CBA, was arguing for more rigour around the bonus process.

The fund has also pledged to vote against the appointment of male non-executive directors where there are no women on the boards.

In an interview with The Ethics Centre, Silk says AustralianSuper’s high profile brings an obligation to speak out on “certain issues”.

“The more controversial the issue, the more vociferous are the people who have strong views either way and, sometimes, you are in the middle of it and you have to make a judgement as to which way you will go”, he says.

Ethics in business is a hot topic, particularly in the financial services sector.

“[It is], in a very large measure, a response to the egregious behaviour that is now so well publicised and readily-known by the public”, says Silk.

“Everybody knows unethical behaviour when they see it and I think there is a move back to appropriate norms. I think there is a recognition that much of the bad behaviour in the financial services sector is wrong.”

Silk says it is difficult to discern if this revitalised interest in ethics is deeply-felt, or whether it is a protective measure to avoid getting caught and penalised

“But I think there is a slow improvement in behaviour, much of it regulator and government led, but much of it community-led, consumer-led, some industry associations take a strong position on it.”

In terms of standards in his own organisation, Silk says he had been confident that the culture and behaviours at AustralianSuper would stand up to scrutiny. This is partly because, as a member-organisation, its sole purpose is to act in the interest of members and this provides a de facto ethical framework, he says.

However, earlier this year, he decided to get a second opinion. The Ethics Centre was engaged to undertake a “culture audit” to test whether the fund’s policies, procedures and practices were aligned with its purpose, values and principles.

“In my darkest moments, I just wondered if we had all drunk the Kool-Aid”, he says.

The results were gratifyingly positive and were affirmation that AustralianSuper and its 550 staff are on the right track, says Silk, who has led the fund since it was founded in 2006.

However, The Ethics Centre also found some areas for improvement, including a culture that could be “conflict averse”.

“We weren’t as robust as we might be. There was a tendency to avoid conflict in certain parts of the organisation, so we could introduce a bit more aggression into the organisation – aggression in a positive sense”, he says.

“People who are rude to others are counselled and abusive language or behaviour is not tolerated and could be regarded as a sacking offence.”

“Those areas where improvement opportunities were identified, we have consciously thought that we want to do something about that, we want to lift the standard in the organisation … so we have an action plan, we have done all the things that you might do with a business plan, we have identified all the particular areas, we have assigned responsibility to people, we are going to check in periodically to make sure progress has occurred.

“We haven’t just used it as a soft survey.”

It is too early to see much in terms of a change in culture since The Ethics Centre report was completed, but Silk says some progress has been noticed, such as more robust questioning in meetings.

“We are getting better outcomes as a result”, he says.

Silk’s commitment to respectful behaviours is well known. According to a recent report in the Australian Financial Review, every recruit to the organisation gets a one-and-a-half hour briefing from Silk on the fund’s four values.

People who are rude to others are counselled and abusive language or behaviour is not tolerated and could be regarded as a sacking offence.

The Ethics Alliance sat down for a further conversation with Ian. He shared his insights on the importance of discussing ethics with your network, why organisations always need to work toward good ends, and why leaders can’t just talk the talk. They need to walk the walk.

This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.


Managing corporate culture

It’s not uncommon these days to hear regulators sounding warnings about culture.

They point out that it’s a crucial role of boards to determine the purpose, values and principles of the company they govern, whilst the CEO and senior management have responsibility for implementing the desired culture. Personnel in human resources, ethics, compliance, and risk functions all have a role to play in embedding values and ethics.

Culture, we hear, has an important role to play in risk management and risk appetite.  Weak risk cultures are often the root cause of the most spectacular governance failures. Firms lacking good corporate culture will fail investors and stakeholders.

“Trust, like beauty, is in the eye of the beholder,” says John Price, Commissioner of the Australian Securities and Investment Commission (ASIC). “If consumers don’t like the way a firm has behaved, they can take their business elsewhere and tell everyone about it through the wonders of social media. Loss of reputation due to poor conduct destroys value in a firm.  Even more challenging is that poor conduct may be technically within the law, but still have negative impact on a firm’s reputation.

“The possible loss of trust and confidence is a key business risk. If the conduct of a firm genuinely reflects ‘doing the right thing,’ this mitigates conduct risk and will be rewarded with longevity, customer loyalty, and a sustainable business.”

All very well, we hear you say: but how does a company manage culture?  What does good culture even look like? By what standard do we measure it or assess it? How do you shift from the culture you’ve got today to the culture you aspire to for the future?

The Ethics Centre has been exploring this subject for many years, developing frameworks and methodologies for measuring and improving culture along the way.  We’ve played a significant advocacy role as well, arguing for boards to accept responsibility for setting and maintaining the culture standard in the organisations they govern.

The Ethics Centre recently partnered with the Governance Institute, the Institute of Internal Auditors and Chartered Accountants Australia to produce Managing Culture – A Good Practice Guide. This publication sets out to define culture and explores challenges in identifying, monitoring and driving culture, including organisational change programs. The guide also explores the importance of embedding culture and the nature of the board’s role in evaluating and overseeing culture.

Research has shown that companies that have a good culture perform better than companies that do not. The Guide outlines how each group in an organisation can contribute to a good culture, the first step of which is to create an ethical framework that provides guidance on decisions and an appropriate ‘tone from the top’.

While having an integrated governance and risk management framework is important, unless an organisation establishes a culture that promotes risk awareness into everything it does, it is unlikely to achieve its objectives. Governance and risk management must be at the core of an organisation’s culture.

Download your copy of the guide here.


The Ethics Alliance: Why now?

After almost thirty years of existence, The Ethics Centre has chosen this particular time to establish The Ethics Alliance. Why the Alliance, and why now?

I’ve heard it suggested that the Alliance is a necessary response to a period of history in which our trust in institutions – including banks, governments and the media – has dropped to a new low point. Some may see it as an opportunity for organisations to restore their battered reputations.

Others may see the Alliance a little more generously, as a community of like-minded organisations with a common commitment to good business practice. A collaborative effort to raise the standards of good business behaviour. A source of insights and tools that will enable better culture to emerge.

While low levels of trust certainly form part of the context within which The Ethics Alliance is emerging, we believe the root cause of our current malaise is something far more significant: the fact that we are on the edge of a transformation that will change our society in ways every bit as profound as those caused by the First Industrial Revolution.

The Ethics Alliance has a clear function. It is a mechanism for developing collective insight and practical measures that will support its members to manage this historic transition. The Alliance will enable companies – and the leaders who work in them – to harness change for the benefit of employees, customers and shareholders alike. The ultimate beneficiary will be the society in which we all live.

We are already seeing clues as to the general shape of the coming changes. Many of these are the product of scientific and technological innovation. Artificial Intelligence and robotics (including nano-fabrication by 3D printers) will displace vast numbers of people from employment. New jobs may be created – but there are very few credible plans in place to ensure the necessary transition will be just or orderly.

The upheaval in employment will be accompanied by a revolution in medicine. Gene editing (using the ‘cut & paste’ functions of CRISPR), pharmaco-genomics, the use of stem cells to regenerate organs and a myriad of other developments will see a startling increase in the lifespan of those who can afford these therapies.

The resulting seismic shift in demography will challenge all of our assumptions about what makes for a worthwhile life, about the status of long-established social institutions, about sources of value and so on. What kind of economy will be needed to support such a society? What is the role of the market, of government, of civil society?

These questions will create new practical challenges within every workplace. If one of the key responsibilities of business leaders is to anticipate and plan for the emerging future and creating organisations which are fit for purpose, then there is much to discuss. Scientists, economists, engineers and lawyers can help us to know what we could do in response to issues of this kind. But only ethics can help us decide what we should do.

We believe business, professional and government organisations not only have a responsibility to help meet the challenges of the future – they also have the capacity to do so.

These matters are not just for governments to solve. Few, if any, organisations will be able to address such ‘civilisational’ challenges alone. Aggregating the resources, energy and insights of members of The Ethics Alliance will achieve outcomes that individual organisations could never achieve on their own.

The Ethics Alliance will also provide practical tools to its members – building their capacity to make better decisions – even in conditions of uncertainty. And it will support innovation. The Ethics Alliance has been designed as a safe place for testing the boundaries of what might be possible.

Society may have lost a little of its faith in government and business lately, and that’s something we should all be concerned about. We believe business, professional and government organisations not only have a responsibility to help meet the challenges of the future – they also have the capacity to do so.

These same organisations cannot afford to ignore these issues or mismanage their response. This is not just about managing risk. It is also about learning how to harvest the dividends of progress without compromising the future.

In that sense, The Ethics Alliance is not so much a response, as a product of the times in which we live.

This article was originally written for The Ethics Alliance. Find out more about this corporate membership program. Already a member? Log in to the membership portal for more content and tools here.