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

3 Existing framework for equal employment opportunity for women in Australia

This section provides a brief overview of the EOWW Act and EOWA. In particular, it outlines the objects and key provisions of the EOWW Act, the current role and functions of EOWA, and the relationship of the EOWW Act to other Australian legislation. The EOWW Act is an important component of Australia's workplace and human rights legislation. The EOWW Act came into effect on 1st January 2000, renaming and updating the Affirmative Action (Equal Employment Opportunity for Women) Act 1986, which underwent a review in 1998-99.26

3.1 Equal Opportunity for Women in the Workplace Act 1999

The EOWW Act requires certain employers to promote equal opportunity for women in employment. The principal objects of the EOWW Act are to:

isations with 100 or more employees and contractors, including private sector organisations, not-for-profit/community organisations, non-government schools, trade unions and group training organisations. These organisations are collectively known as 'reporting organisations'. The identification of reporting organisations is largely based on self-identification and disclosure by organisations.

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3.1.1 Coverage of the EOWW Act

As of July 2009, there are 2,803 reporting organisations28 that submit reports on behalf of a total of 8,500 organisations.29 In the 2008-09 reporting period, almost 2.6 million employees were covered by reports to EOWA. EOWA therefore received, entered and evaluated reports from organisations employing around 23 per cent of Australian employees.30

Indicative figures suggest that a large number of organisations do not identify themselves to EOWA. The ABS has estimated that there are approximately 13,000 organisations in Australia employing 100 or more people. This suggests that there are approximately 4,500 organisations that are covered by the Act and have not made themselves known to EOWA, in addition to the 8,500 that have. If these organisations are structured similarly to those already reporting to EOWA, and if their reports reflect the same division of reporting responsibilities between head offices and subsidiaries, EOWA could anticipate receiving an additional 1,400 reports each year, or 4,100 reports overall.31

The EOWW Act does not include small businesses with less than 100 employees or public sector agencies.

The definition of 'employee' includes entities that employ individuals under a contract of service (i.e. employees) and a contract for service (i.e. consultants and contractors). The EOWW Act does not include as 'employees' equity partners in professional firms or non-executive board members, meaning that employment outcomes for women in these positions is not necessarily captured in workplace programs or organisational reporting.

3.1.2 Workplace programs, reporting and compliance

The EOWW Act requires that employers develop strategies to prevent discrimination and achieve equal employment opportunity for women. It requires all new reporting organisations to develop and implement an annual workplace program aimed at eliminating discrimination and contributing to equal opportunity for women in the workplace, and to report annually to EOWA on the program's effectiveness.

Before developing a workplace program, an employer must:

When preparing a workplace program, an employer is required to:

The term 'employment matters' is defined to include: recruitment procedure and selection criteria; promotion, transfer and termination; training and development; work organisation; conditions of service; arrangements for dealing with sex based harassment of women; and arrangements for dealing with pregnant or potentially pregnant employees and those breastfeeding their children.

A workplace program must provide for:

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Organisations can use a number of indicators to chart the effectiveness of their programs, for example: increased productivity, reduced absenteeism and turnover, improved rate of women in management and in non-traditional roles, and reduction or elimination of discrimination-related complaints.

Developing and implementing a workplace program can impose costs on employers. For example, additional costs may relate to dedicated human resources staff and implementation costs of new programs and activities across the organisation. Many of these practices also confer benefits in terms of enhanced productivity, reduced absenteeism and turnover, improved staff morale, and a positive corporate image.

There is a growing body of evidence concerning the benefits of gender diversity to the productive capacity of organisations and, in turn, to the economy. A recent report from Catalyst, for example, found that in four out of five industries in the United States, the companies with the highest women's representation on their top management teams experienced a higher total return to shareholders than the companies with the lowest representation of women.36

Other research indicates that a lack of women in leadership positions results in greater scarcity in talent within organisations and reduced employee engagement.37

In terms of reporting, relevant employers must prepare an annual public report about the outcomes of their workplace programs. This public report must contain the workplace profile, an analysis of the issues in their workplace relating to equal opportunity for women, the actions taken to address the priority issues identified in the analysis, and the actions that the employer plans to take in the next reporting period that are still necessary to achieve equal opportunity for women in their workplace. Employers must also submit an evaluation of the effectiveness of the actions taken in that reporting period to achieve equal opportunity for women in their workplace. This evaluation may be submitted to EOWA as either part of the public report or submitted separately on a confidential basis.

These reports are retrospective and cover a 12-month period (1 April to 31 March). Reports are due to EOWA by 31 May of each year. Reporting requirements may be waived by EOWA if the employer has complied for a period of no less than three consecutive years and can demonstrate to EOWA that all reasonably practical measures have been taken to address equal opportunity for women in their workplace.

The enforcement provisions of the EOWW Act focus on the situation where a reporting organisation fails to lodge an annual report or fails to comply with a direction by EOWA to provide further information. In these circumstances, EOWA may identify non-compliant organisations in its annual report to the Minister. This annual report is tabled in Parliament.

Compliance reports and names of non-compliant organisations are listed on EOWA's website. As of 17 October 2008, there were over 2,500 reporting organisations that complied with requirements of the EOWW Act and 12 organisations that were non-compliant.38

A further compliance incentive is that the Australian Government Procurement Guidelines prevent government departments from buying goods and services from, or entering into contracts with, non-compliant organisations. Non-compliant organisations may also be ineligible for grants under specified industry assistance programs.

EOWA does not have the power to conduct self-initiated action or investigations. In practice, EOWA relies significantly on cooperative relations with employers through education and promotion activities, implementation of performance incentives (award schemes), and a staged process of issuing reminders and offers of assistance to employers prior to sending letters signalling an intention to name a non-compliant organisation in Parliament.

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3.1.3 The role and activities of EOWA

EOWA is an Australian Government statutory authority. Following the change of government in 2007, EOWA joined the portfolio of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) from the former Employment and Workplace Relations portfolio. The Director of EOWA reports directly to the Minister for the Status of Women. In 2008-09, the total budget appropriations for EOWA were $2,938,000.

EOWA employs 13 ongoing staff and six non-ongoing staff. In addition, an additional seven contractors are employed for 18 weeks; one receiptor is contracted for five months and an additional three receiptors are contracted for six weeks each year at the time when reports are due to be received.39

The primary role of EOWA is to administer the EOWW Act and to provide information, advice, education and communication to reporting organisations and members of the broader community to achieve equal opportunity for women in the workplace40. Broadly, EOWA is required to:

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3.1.4 Key activities of EOWA

EOWA advises and assists relevant employers in the development and implementation of their workplace programs and monitors the lodging of reports by relevant employers.

EOWA collects, analyses and benchmarks this information and provides reporting organisations with feedback and advice to further enhance each organisation's equal employment opportunity (EEO) program for women. For every report assessed, an EOWA representative telephones and emails the organisation to provide personalised and detailed feedback on their workplace program.

Should a report be initially assessed as non-compliant, EOWA works with that organisation to attempt to obtain the necessary additional information for the organisation to comply with the EOWW Act42.

EOWA prepares an annual report to the Minister for the Status of Women on its operations, including details of any reporting organisations that have failed to meet the requirements of the EOWW Act. This annual report is tabled in the Australian Parliament.

EOWA is active in offering a range of education programs, events, awards and workplace tools to support and encourage Australian employers to improve equal opportunity outcomes for women in the workplace.

EOWA has a broader role to promote public discussion of equal opportunity for women in the workplace. The EOWA awards and research, for example, receive media attention and are of interest to an audience beyond those organisations covered by the EOWW Act.

Some examples of EOWA's education and awareness activities are as follows.

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3.2 Relationship of the Act to other institutions, legislation and policies

The EOWW Act forms part of a suite of Commonwealth legislation that aims to promote and protect human rights and achieve equal opportunity for women in the workplace. These include the Sex Discrimination Act 1984 (Cth) (the Sex Discrimination Act) and the Fair Work Act 2009 (Cth) (the Fair Work Act).

The role and functions of EOWA complement those of other Australian Government public sector organisations, namely the Australian Human Rights Commission (AHRC), the Sex Discrimination Commissioner, the Office for Women, Fair Work Australia and the Fair Work Ombudsman (FWO).

3.2.1 Current institutional arrangements

Australian Government Office for Women

The Office for Women is located within FaHCSIA and plays a key role in the promotion of equal employment opportunity for women. It aims to influence policy and decision-making to ensure women's interests are considered. It acts as the central source of advice for government agencies in policies and programs for Australian women.44 The Office for Women is leading this review of the EOWW Act and EOWA. Its key roles include:

Australian Government Office of Work and Family

The Australian Government has also created an Office of Work and Family within the Department of the 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. The Office of Work and Family works with the Office for Women to ensure the particular needs of working women are appropriately considered and incorporated into the Government's broader work and family agenda.45

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Australian Human Rights Commission and the Sex Discrimination Commissioner

The Sex Discrimination Commissioner is a statutory office created under the Sex Discrimination Act. The Commissioner is appointed by the Governor-General and, by convention, the appointment is made on the advice of the Federal Attorney General. The gender of the person is not specified.

Under the Sex Discrimination Act, the majority of the functions and powers relevant to the Sex Discrimination Act (and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)) are not given to the Sex Discrimination Commissioner but to the Australian Human Rights Commission (the Commission). The Sex Discrimination Commissioner is a member of the Commission, together with the President and Human Rights Commissioner, the Race Discrimination Commissioner, the Aboriginal and Torres Strait Islander Commissioner and the Disability Discrimination Commissioner.

The Sex Discrimination Commissioner is currently also responsible for age discrimination. The President is solely responsible for the handling of complaints under the Sex Discrimination Act.

The Sex Discrimination Act sets out a range of functions to be carried out by the Commission, including:

In addition to these functions under the Sex Discrimination Act, the Commission also has general duties, functions and powers under the Australian Human Rights Commission Act which may be used to promote 'human rights'. 'Human rights' are defined to include 'the rights and freedoms recognised in the ICCPR' including the right to non-discrimination and equality on the ground of sex.

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Australian Government Department of Education, Employment and Workplace Relations

The Department of Education, Employment and Workplace Relations (DEEWR) is the lead government agency in education and workplace training, transition to work and conditions and values in the workplace46.

The Department has the following objectives:

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Fair Work Australia

Fair Work Australia is the national workplace relations tribunal with specific dispute resolution functions under the Fair Work Act, including in relation to:

Fair Work Australia also has the function of providing assistance and advice about its functions and activities.48

Fair Work Ombudsman

The Fair Work Ombudsman (FWO) 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 FWO provides information and advice, investigates alleged breaches of workplace relations legislation and enforces provisions of the Fair Work Act.

The FWO assists employees, employers and outworkers throughout Australia by:

The Fair Work Act does not confer any specific functions on the FWO to investigate or conciliate discrimination claims.

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3.2.2 Legislative framework

Sex Discrimination Act 1984

The key piece of federal anti-discrimination legislation protecting women in the workplace is the Sex Discrimination Act. This 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. 'Carer's responsibilities' is not covered. The Sex Discrimination Act also prohibits sexual harassment in many areas of public life.

The Sex Discrimination Act covers all existing and prospective female employees except for existing and prospective state employees. Unlike the EOWW Act, the Sex Discrimination Act covers all Commonwealth female employees and, unlike the Fair Work Act 2009, it has a limited application to male employees.

The Sex Discrimination Act prohibits:

In relation to employment, the Sex Discrimination Act expressly prohibits both direct and indirect discrimination:

Sex discrimination is not unlawful in employment where a person's sex is a genuine occupational qualification. At the present time, the Sex Discrimination Act makes no provision for a general positive duty on employers or other bodies to prevent discrimination or promote gender equality. The Sex Discrimination Act therefore has only a limited role to play in challenging systemic discrimination by working to overcome barriers that disadvantage women in the workplace.

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.

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Fair Work Act 2009

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

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, 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 pay equity 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 Commissioner50.

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).

The Fair Work Act also 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 guarantees 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 the age of 18.

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3.2.3 Other key Australian Government programs and initiatives

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.

Australian Government programs to support work-family balance

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

Pay equity inquiry

In June 2008, the Acting Minister for Employment and Workplace Relations asked the House Standing Committee on Employment and Workplace Relations to inquire into and report on pay equity and associated issues related to increasing female participation in the workforce.51

The terms of reference for the inquiry stated that the Committee inquire into and report on the causes of any potential disadvantages in relation to women's participation in the workforce including, but not limited to:

The resulting report53 made a number of recommendations around industrial relations legislative reforms, Anti-discrimination legislation, establishment of a specialist Pay Equity Unit within Fair Work Australia, administrative practices and approaches, data collection and research into women's choices and cultural dimensions.

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3.3 Measuring the success of the Act and Agency

The approach in Australia to increasing women's participation and achieving equal employment opportunity is multi-faceted. For this reason, it is difficult to measure the success of the EOWW Act and EOWA in isolation.

At the population level, a number of data sets are collected that provide information on the status of women within Australian workplaces. The Australian Bureau of Statistic's Labour Force surveys, and the Employee Earnings and Hours surveys, are important in this regard.

At the organisational level, EOWA encourages organisations to measure their success in a variety of ways, and provides tools to help them gather data, identify issues for women workers and determine their priority areas to take action and measure outcomes.

Organisations use a number of indicators to chart the benefit of their programs, including increased productivity; reduced absenteeism and turnover, the number of women who return to work after a period of maternity leave; improved rates of women in management and in non-traditional roles; increased access to quality part-time roles; and decreased or an absence of discrimination-related complaints.

Organisations can also measure their equal employment opportunity successes by receiving a waiver of reporting requirements, which means they have achieved a 'waived standard'. This means that they have done everything reasonably practicable to address issues for women in their workplace across all seven employment matters. Other measures of success for employers are becoming an EOWA Employer of Choice for Women or becoming a finalist or winner in EOWA's annual Business Achievement Awards.

EOWA uses information it collects from reporting organisations to build a data set to measure progress in workplace programs over time. This data is also used to educate employers on best practice and is used to set and revise benchmarks for its EOWA Employer of Choice for Women citation.

EOWA measures its own performance through a survey of reporting organisations which measures their views on the advice and information EOWA provides, its products and services, their relationship with EOWA, and the value they put on the legislation it administers.

This survey was last conducted in 2006, and prior to that in 2003. In 2006, this survey found that most reporting organisations thought EOWA is effective in providing advice and information to assist in the improvement of outcomes for working women. More than two in five organisations believed EOWA is 'very effective' or 'extremely effective'. This represented an increase of 15 percent from the 2003 survey54.

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  1. Department of Workplace Relations and Small Business, Affirmative Action Review Secretariat: Affirmative Action (Equal Employment Opportunity for Women) Act 1986. Issues Paper. March 1998
  2. Equal Opportunity for Women in the Workplace Act 1999 (Cth), s2A and Equal Opportunity for Women in the Workplace Agency, Equal Opportunity for Women in the Workplace Act 1999: The Act at a Glance. Australian Government, Canberra.
  3. 2,803 reporting organisations includes the 2,770 organisations referred to above as well as any new reporting organisations who are required to report for the first time in 2010.
  4. EOWA (2009) Submission to the Review of the EOWW Act, p.51.
  5. Ibid.
  6. Ibid.
  7. Equal Opportunity for Women in the Workplace Act 1999 (Cth) s 8(1)(a).
  8. Ibid s 8(1)(b).
  9. Ibid s 8(2).
  10. Ibid s 8(3).
  11. Catalyst (2004) The Bottom Line: Connecting Corporate Performance and Gender Diversity, New York, p.2.
  12. An overview of this research in provided in Chief Executive Women (2009) The Business Case for Women as Leaders: One Woman is not Enough, pp.4-7. Available from: <http://www.cew.org.au/pages/issues/documents/TheBusinessCaseforWomenasLeaders.pdf>, November 2009.
  13. Equal Opportunity for Women in the Workplace Agency. Annual Report 2007-2008. Commonwealth Government of Australia.
  14. Equal Opportunity for Women in the Workplace Agency (October 2009). Submission to the Review of the Equal Opportunity for Women in the Workplace Act and Agency. Available from: http://www.eowa.gov.au/Information_Centres/Resource_Centre/EOWA_Publications/EOWA_Review_Submission.pdf>, accessed November 2009.
  15. Equal Opportunity for Women in the Workplace Agency. Annual Report 2007-2008. Commonwealth Government of Australia.
  16. Australian Government Equal Opportunity for Women in the Workplace Act 1999. (Act 91, prepared 1 January 2004).
  17. Australian Government Equal Opportunity in the Workplace Agency (October 2008). Submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the effectiveness of the Commonwealth Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality.
  18. Equal Opportunity for Women in the Workplace Agency (October 2009). Submission to the Review of the Equal Opportunity for Women in the Workplace Act and Agency. Available from: http://www.eowa.gov.au/Information_Centres/Resource_Centre/EOWA_Publications/EOWA_Review_Submission.pdf>, accessed November 2009.
  19. Department of Families, Housing Community Services and Indigenous Affairs. Office for Women. Available from: http://www.fahcsia.gov.au>, accessed November 2009.
  20. Department of Families, Housing, Community Services and Indigenous Affairs. Office of Work and Families website. Available from: <http://www.fahcsia.gov.au/sa/women/progserv/economic/Pages/office_work_family.aspx>, accessed December 2009.
  21. Department of Education, Employment and Workplace Relations. About the Department. Available from: < http://www.deewr.gov.au/Department/Pages/About.aspx>, accessed December 2009
  22. Ibid.
  23. Fair Work Australia website. Available from: < http://www.fwa.gov.au/>, accessed December 2009.
  24. Fair Work Online. About the Fair Work Ombudsman fact sheet. Available from: < http://www.fairwork.gov.au/Fact-sheets-tools/Pages/FWO-fact-sheet-About-FairWork-Ombudsman.aspx?role=employees>, accessed December 2009.
  25. Fair Work Act 2009 s 302.
  26. Parliament of Australia. House of Representatives. Inquiry into pay equity and associated issues related to increasing female participation into the workforce. Terms of Reference. Available from: <http://www.aph.gov.au/house/committee/ewr/payequity/tor.htm>, accessed December 2009.
  27. Parliament of Australia. House of Representatives. Inquiry into pay equity and associated issues related to increasing female participation into the workforce. Terms of Reference. Available from: <http://www.aph.gov.au/house/committee/ewr/payequity/tor.htm>, accessed December 2009.
  28. The Parliament of the Commonwealth of Australia. Making it Fair: pay equity and associated issues related to increasing female participation into the workforce. House of Representatives Standing Committee on Employment and Workplace Relations. Commonwealth of Australia, Canberra. November 2009.
  29. ACA Research (2006). Equal Opportunity for Women in the Workplace: Research into Service Delivery. Unpublished report to the EOWA.

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