Review of the Equal Opportunity for Women in the Workplace Act 1999 

The EOWW Act forms part of a suite of legislation that aims to promote and protect human rights and achieve equal opportunity for women in the workplace. The role and functions of EOWA complement those of the Australian Human Rights Commission, the Office for Women, Fair Work Australia and the Fair Work Ombudsman.

Office for Women

The Office for Women (FaHCSIA) plays a key role in the promotion of equal employment opportunity for women.

The Office for Women is leading this review of the EOWW Act and EOWA. Its other key roles include:

• providing high level advice to the Minister for the Status of Women;
• undertaking specialist research to inform evidence-based policy development and Australia’s reporting on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);
• providing the principal focus for consultation between women’s organisations and the Australian Government;
• representing the Australian Government in national and international fora on women’s issues, such as the United Nations; and
• providing support to victims of people trafficking.

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Office of Work and Family

The Australian Government has also created an Office of Work and Family within the Department of Prime Minister and Cabinet, to ensure that the formulation of policies aimed at striking the right balance between paid work and family life occurs at the highest level and is central to all policy decisions. Given that women make up the majority of primary carers of children, paid work and family policy has a significant impact on equal employment opportunity for women.

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Workplace Relations legislation

The new Fair Work Act 2009commenced on 1 July 2009 and provides a range of support and protections for women in the workplace. The Fair Work Act expands protections against workplace discrimination which were available under the Workplace Relations Act 1996.

Protections against discrimination contained in the Workplace Relations Act applied only to existing employees and were limited to termination from employment for a prohibited reason (for example, on grounds such as sex, race or family responsibilities).

The Fair Work Act provides enhanced prohibitions against discrimination by providing that an employer must not take 'adverse action' against an employee or a prospective employee for a range of reasons including the person's sex, marital status, family or carer’s responsibilities, or pregnancy. The Fair Work Act also includes caring responsibilities as a new ground for unlawful termination claims.

While the expanded anti-discrimination protections in the Fair Work Act are intended to provide comprehensive protection from discrimination in the workplace, they also preserve the operation of Commonwealth, state and territory anti-discrimination laws.

The Fair Work Act contains expanded equal remuneration provisions, which enable Fair Work Australia to make orders to ensure that there will be equal remuneration for work of equal or comparable value. The inclusion of the words ‘and comparable value’ is significant as it removes one of the historical barriers to running federal equal remuneration cases, which was the requirement to demonstrate discrimination in setting wages. It also allows for comparisons to be carried out between different, but comparable work. Equal remuneration orders can be sought on the application of an affected employee, an employee organisation representing affected employees, or the Sex Discrimination Commissioner ²⁸.

The Fair Work Act includes other measures relevant to women’s pay. For example, the Fair Work Act allows for minimum wages to be varied on ‘work value’ grounds (the ability to make a work value claim was removed under the Work Choices amendments), and includes provisions that facilitate multi-employer bargaining for low paid employees who have not historically had the benefits of enterprise level collective bargaining (this is particularly important in some feminised industries where levels of enterprise bargaining is low).

In addition, the Fair Work Act introduces the National Employment Standards (NES) which will come into effect from 1 January 2010, setting a safety net of minimum conditions for employees in the federal workplace relations system.

The NES guarantee conditions that support women to balance work and family responsibilities. For example, it doubles the amount of unpaid parental leave available to parents, from 12 months shared between both parents to separate periods of 12 months for each parent. In addition and subject to complying with certain conditions, employees will be able to request up to 12 months extra parental leave under the NES. The NES will also afford a new right for parents to request flexible working arrangements where they have responsibility for a child under school age or a disabled child under 18.

The Fair Work Ombudsman is an independent statutory office created under the Fair Work Act to help employers and employees understand and comply with the new workplace relations system. The Fair Work Ombudsman provides information and advice, investigates alleged breaches of workplace relations legislation and enforces provisions of the Fair Work Act.

Australian Government Paid Parental Leave Scheme

The Australian Government will introduce a paid parental leave scheme from 1 January 2011. The scheme will be funded by the Australian Government and in most cases recipients will receive the payment through their employer.

Paid parental leave has the capacity to significantly benefit women in the workplace, as it will provide eligible primary carers of newborn or adopted children with up to 18 weeks of payments while they take time off work to care for their child. The full minimum wage will also be available to eligible part-time employees, as well as eligible contractors, casual workers and self-employed workers.

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Australian Government programs to support work-family balance

The Australian Government also funds a national awards and accreditation scheme to encourage businesses to help their staff better balance their work and family life. The 2009 National Work-Life Balance Awards and Accreditation Scheme will provide public recognition for organisations that are leaders in their industry, successfully integrating work-life balance practices whilst managing business demands.

Additionally, the Australian Government recently launched the Fresh Ideas for Work and Family Program, which provides grants of between $5,000 and $15,000 to assist businesses to implement practices designed to help employees balance work and family life and improve employee retention and productivity.

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Anti-discrimination law

The key piece of federal anti-discrimination legislation protecting women in the workplace is the Sex Discrimination Act 1984 . The Sex Discrimination Act makes it unlawful to discriminate on the basis of sex, marital status, pregnancy or potential pregnancy or family responsibilities in a range of areas of public life, including within employment, although discrimination based on family responsibilities is limited to instances of dismissal in the employment context.

Complaints of unlawful discrimination can be made to the Australian Human Rights Commission (AHRC). If a complaint cannot be conciliated, or is terminated by the AHRC, the complainant may apply to the Federal Court or the Federal Magistrates Court for a legally enforceable determination.

The Senate Standing Committee on Legal and Constitutional Affairs recently reviewed the Sex Discrimination Act and its report, released in December 2008, makes many significant recommendations relating to changes to the Sex Discrimination Act, the Australian Human Rights Commission Act 1986 and the EOWW Act. These include the recommendation for the Australian Government to consider incorporating the obligations in the EOWW Act into the Sex Discrimination Act, and combining the functions of the AHRC and EOWA. This report is currently being considered by the Australian Government.

The National Human Rights Consultation is another significant initiative in the anti-discrimination and human rights arena. The Attorney-General established the consultation in December 2008 to seek the Australian community’s views on how best to protect and promote human rights and freedoms enjoyed by all Australians. An independent committee conducted 66 community roundtables in 52 locations across Australia and received around 35,000 submissions. It is due to report to the Australian Government by 30 September 2009. The Australian Government will use the outcomes of the consultation to guide its decisions on how best to protect and promote human rights in Australia.

Each state and territory also has its own anti-discrimination legislation.

28. Fair Work Act 2009 s 302.