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

Equal Employment Opportunity Network of Australiasia

12 October 2009

• 1. Background
• 2. Unique voice
• 3. Submission

 

Dear Ms Forsyth,

I write as the Chair of the Equal Employment Opportunity Network of Australasia (EEONA). We are pleased to see that the Minister for the Status of Women has initiated a review into the efficiency and effectiveness of the Act and EOWA and make this submission in response to the Review Issues Paper.

1. Background

By way of background, established in 2003, the Equal Employment Opportunity Network of Australasia (EEONA) is a national peak body representing over 300 member organisations across Australia and New Zealand. The aim of EEONA is to provide Equal Employment Opportunity (EEO) and Diversity practitioners across Australia and New Zealand with an "Australasian" voice on diversity and equality issues, particularly issues that are the subject of public policy.

The catalyst for the establishment of EEONA was the realisation by state based EEO organisations (eg the NSW EEO Practitioners’ Association which had been in operation since 1985), that in relation to the paid maternity leave debate the (then) Federal Government provided a significant consultation role to employer groups (eg the Business Council of Australia and the Australian Industry Group) and employee groups (eg the Australian Council of Trade Unions), but neglected EEO/diversity practitioners within organisations as a representative group of policy “implementers”. Accordingly, since 2003 EEONA has provided EEO/Diversity practitioners with an opportunity to contribute to major policy debates by making submissions to the Federal Government in relation to the paid maternity leave debate, HREOC’s 2007 work/family inquiry, the Taskforce on Care Costs 2003-2007 cost of care policy recommendations (adopted, in part, in the 2008 Budget) and the Standing Committee on Employment and Workplace Relations 2008 Inquiry into pay equity.

2. Unique voice

In effect, our members operate as the key organisational implementation point between policy and practice, balancing the needs of employers with the needs of employees. Many of our members have responsibility for developing their organisation’s reports to EOWA and applications for awards/citations. Accordingly, the review of EOWA and the Act is of key interest to our members. When developing this submission our members expressed their views through focus group consultation and feedback.

3. Submission

We have considered the Issues Paper and the twenty-nine individual consultation questions. Taking the paper and questions into account we have grouped our comments around the following three themes:

1. What’s currently working well – in terms of the Agency, legislation (ie the Equal Opportunity for Women in the Workplace Act 1999 (Cth)) and the impact on business.
2. Where are the areas for improvement – in terms of the legislative coverage, process and business outcomes; and
3. Imagining the blue sky – ie is there a vision for EOWA to achieve gender equity.

In essence, our submission argues for the retention of the Agency and underlying legislation, but with a view to strengthen and expand the work and ambit respectively. We recommend against any diminution in the Agency’s functions or independence, and endorse the critical role the Agency plays in promoting gender equity within the Australian business community. The Agency’s unique model of compliance, education and encouragement (via awards and citations), plus the respect and positive influence it has in the business community, can be built upon to further progress gender equity. To assist the Government, we have provided background commentary on each of the three themes, and formulated our submissions as recommendations.

3.1 What’s currently working well?

EEONA’s intention in reflecting on “what’s currently working well” is to ensure that the positive aspects of the Agency’s work, ambit of the legislation and impact on business are identified and retained. In essence we submit that the activities of the Agency, and the legislative framework, have had demonstrable positive impacts on business activities to progress gender equity.

3.1.1 The Agency

EEONA supports the value of the Agency as providing a critical and focal role in raising awareness about gender equity in the business community and beyond. EEONA members identified the outputs of the Agency as very valuable and contemporary (eg the tools, website resources, advice, workshops and research), Agency staff as (in the main¹) responsive and helpful, and the system of citations and awards as delivering well-recognized and sought after accolades. This approach has enabled the Agency to create credible and meaningful relationships with many business leaders in which the Agency is a recognised and valued brand.

The main benefit of having the Agency and legislation is the awareness that it raises in organisations in regard to gender issues and the leverage it provides in promoting this agenda. The Agency is also effective in providing workshops, tools and advice to support the reporting process and the research made available to support the business case (Focus group comment).

3.1.2 Legislation

EEONA supports the legislation as providing a compelling impetus for organisational activity to promote gender equity and a workable framework. In particular EEONA supports the legislative requirement for organisations to submit public reports to the Agency every twelve months (unless waived) as it keeps gender equity “top of mind” (both for businesses and the media); and generates benchmarking data². Further the legislative objectives are clear and robust; the seven employment areas listed within the legislation are sufficiently flexible to facilitate reporting on a broad range of organisational activities; and the process (profiling, activity, reporting) is appropriate.

The requirement to report either annually (or in the case of "waived" organisations every 2 or 3 years) has created a situation where at least periodically reporting organisations consider issues of gender diversity. Given this occurs in May each year (based on 31 March data) it allows for planning, consideration of performance against plans and the compilation of a report outside the normal peak business reporting times, which for many businesses occur at financial year end (Focus group comment).

Finally, the process the Agency has developed to enable those organisations with an Employer of Choice for Women citation to be waived from submitting an annual report is perceived as efficient and helpful. The information within these reports is substantially the same and a requirement to submit two reports is very resource intensive.

3.1.3 Business impact

EEONA observes that the Agency and the legislation have been catalysts for positive business activity to enhance gender equity. The legislation helps to keep a focus on the issue of gender equity (which may become lost in other business and HR initiatives), legitimises an organisational resource who focuses on gender, involves the CEO in the reporting process and the Agency adopts an appropriate balance between education, recognition (eg via awards) and compliance. These three elements (education, recognition and compliance), together with the practical resources developed by the Agency, and the Agency’s credible brand, provide a very compelling motivation for businesses to address gender equity.

For the past five years, EEONA has researched its members on diversity and equality. In particular EEONA has surveyed members (which included “best practice” organisations) about organisational drivers of a focus on diversity, the nature of diversity activities and implementation challenges. Our 2008 Status Report on Diversity and Flexibility (which compared data collected in 2003, 2005 and 2008) identified the five leading drivers of diversity as including (i) personal leadership commitment (94%); (ii) the business case (84%); and (iii) legal compliance (76%). Each of these drivers reflects the business impact of the Agency’s activities and underlying legislation in relation to gender diversity, which is in turn reflected in the high levels of data collected on gender (100%) and the focus on harassment (91%), women’s participation (75%) and caring responsibilities (64%) as the top three areas of activity. In contrast, other aspects of diversity (eg race and disability) are less likely to be the focus of programmes, actions or activities.

3.2 Where are the areas for improvement?

Whilst there are very positive aspects to the work of the Agency and the legislative framework, there are significant areas for improvement. EEONA considered four areas for improvement, namely in relation to legislative coverage, the reporting/award processes, accountability and initiatives. In essence, we submit that addressing each of these issues would improve the penetration of the legislation, generate greater levels of accountability and thus facilitate improved gender equity.

3.2.1 Legislative coverage

EEONA observes that there is evidence to suggest that there are currently varying degrees of awareness about the reporting requirements for subsidiaries. Firstly, there is a lack of awareness that subsidiaries employing fewer than 100 people are required to report to EOWA if the whole corporate group employs more than 100 people; and secondly that an organisation can submit one report to cover the whole corporate group or subsidiaries can report separately.

EEONA notes that whilst the objectives of the legislation are clear (namely the promotion of merit and the elimination of discrimination), and the processing framework is workable (ie data profiling, implementation, evaluation), there is lack of clarity about the link between the objectives, action plans and the measured outcomes. For example, whilst “best practice” organisations will consider their previous planned actions when writing their current report, there is no obligation to do so.

There are some very clear and relevant objectives outlined in the Act and we need stronger connections between these objectives and the reporting and metrics that are required by EOWA (Focus group comment).

Further the legislation requires organisations to set goals and report on activities during a 12 month period. EEONA notes achieving gender equity is a long term process which requires the transformation of organisational cultures and practices over a lengthy period. Rather than requiring organisations to set new goals each twelve months, it would be more realistic and efficient if the legislation enabled organisations to set 3-5 year goals, and provide progress reports to the Agency⁴.

Reporting timeframes need to consider that the nature of change required in many businesses takes time and so it would be valuable to consider the progress a business has made year on year as well as structure reporting, around a yearly check-in with longer term goals (Focus group comment).

If recommendation 4 is accepted, a further area of improvement would be the adoption of reporting and evaluation criteria that are more commonly used in business environments:

A suggestion is to replace the current reporting format, to introduce a framework where organisations complete and submit a plan that could resemble a performance plan with clear actions and goals set for an extended period (say 3 years out) and clearly defined measures (does not meet expectation, meets expectations, exceeds expectations, exceptional). The plans could become public documents to ensure accountability (similar to a Reconciliation Action Plan or Disability Action Plan) and every year organisations report on progress towards/achievement of goals. If a plan does not meet a minimum standard EOWA could work with that organisation to assist them in progressing their plan. Awards could be granted to organisations which exceed expectations in their progress towards or achievement of goals. This approach could also assist in “raising the bar” as organisations strive to achieve increased performance and show cases of best practice (Focus group comment).

Finally, the legislation focuses on organisational goals and outcomes, and this macro approach overlooks the importance of micro (particularly managerial) accountability for gender equity. In comparison, occupational health and safety legislation includes both organisational and managerial accountability for ensuring the health, safety and welfare of employees, and it seems that this has been instrumental in generating higher levels of managerial awareness and compliance. EEONA observes that creating managerial accountability is a critical strategy linking organisational goals to individual practice.

The impact of EOWA’s (more limited) organisational focus is reflected in EEONA’s 2008 Status Report on Diversity and Flexibility research findings, namely that whilst there is a significant organisational focus on gender equity, only 30% of survey respondents said that their managers were held accountable for diversity outcomes and only 25% said a manager’s promotion or progress was related to diversity outcomes. Further whilst 64% of survey respondents noted the importance of having good information and systems of reporting, only 56% indicated that their organisation used a diversity scorecard. EEONA members concluded that “failing to measure and reward managers for their efforts to improve diversity outcomes reduced managers’ levels of motivation and engagement with the diversity agenda”.

A change of this magnitude, namely requiring organisations to report on strategies to promote and reward managerial behaviours which are supportive of gender equity as well as organisational objectives and outcomes, may require a phasing-in period, and certainly a communication campaign and the development of supportive tools. Notwithstanding these needs, EEONA suggests that progress towards equity cannot be made without greater levels of managerial engagement and accountability⁵.

3.2.2 Processes

EEONA observes that the legislative framework (and reporting requirements) does not distinguish between the industry or size of organisations, and the resources available to an organisation with 101 employees are considerably fewer than those available to a very large organisation (eg with 24,000 employees):

While EOWA currently considers industry averages as benchmarks, it would be also valuable if they included consideration of business size and other demographics like white vs blue collar so that we are comparing like with like (Focus group comment).

Further, there is a lack of clarity in regards to the level of information required of reporting organisations, which leads to concern by employers as to whether they have provided sufficient information or an over-supply (thus unnecessarily tying up internal resources on reporting to EOWA rather than progressing initiatives).

In relation to the ease and efficiency of reporting, the annual reporting process could be significantly enhanced if organisations were able to upload their reports directly into an EOWA database and amend data online. This would create a long term electronic database of information for EOWA from which to conduct research, reduce reporting time for organisations and assist organisations to locate reports (eg if the HR resource is no longer with that organisation).

The current reporting process is cumbersome and resource intensive. Whilst large organisations may readily access the required resources to complete the reporting requirements, many small organisations would struggle. A reporting regime that used more refined templates and data tables would assist in reducing the time and effort required to complete a report (Focus group comment).

In relation to the “Employer of Choice for Women” (EOCFW) citation, EEONA observes that EOWA has recently adopted very restrictive criteria and failure on one prerequisite employment issue (eg pay equity) precludes the organisation from receiving/retaining this citation even though the organisation may have performed well in relation to other employment areas. Further, in relation to pay equity this outcome is particularly demotivating for organisations which work in male dominated or diverse industry groups (eg manufacturing) as whilst they may make progress year on year (which should be acknowledged and rewarded), they might find it difficult to meet the requirement that their overall pay gap is “less than the industry average” criterion. We suggest that using industry average as a determinant of the EOCFW citation suffers from lack of homogeneity at an industry level and inconsistent categorisation of positions. A better measure may be either achieving pay equity rates which are greater than industry average or sustained improvement over a period of time (say 30% over 4 years). An organisation which achieves a 30% improvement over time would show a far greater effort to be an “Employer of Choice” for women than achieving industry average for others.

If the Government is not minded to change this “in or out” EOCFW assessment, EEONA suggests that the Agency supplement the EOCFW citation by adopting a more transparent approach when ranking organizations. We comment to you the approach adopted by the Families and Work Institute in relation to the 2007 Winners of the Alfred P Sloan Awards for Business Excellence in Workplace Flexibility. Award applicants were given a transparent overall score which comprised the aggregation of employee and employer survey scores on 7 individual criterion. In this way, prospective employees were able to identify the strengths and weaknesses of an individual organisation

3.2.3 Accountability

EEONA notes that EOWA has no capacity to verify the data produced by an employer and it must be accepted in good faith. The impact of this lack of independent verification is that organisations may be inclined to “dress up” or omit negative data, and over-emphasise positive data.

When organisations submit their report, there is currently no verification of data or claims made. Introducing some form of spot checks or sample audits would better ensure that all organisations submit accurate and honest reports (Focus group comment).

The value of objective verification is underscored by the outstanding recommendation of the 1998 Independent Committee Review of the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth), namely that a system of workplace visits (to assess waived status and provide a supplement to reporting) would strengthen the legislation’s operation.

EEONA notes that for organisations to embrace a system of data verification the process should be designed with an eye to cost containment, namely so that it does not impose an excessive cost or burden on the Agency or reporting organisations. One way cost efficiency might be achieved is by aligning the (gender) audit process to existing audit processes (eg in relation to corporate social responsibility) and/or auditing specific aspects of the EOWA report.

EEONA observes that there is currently no requirement for an organisation to provide its annual report to its Board or, if it is publicly listed, to its shareholders. If this strategy were implemented it would provide both an organisational motivation to ensure that the data reported to EOWA was accurate, and a point of external pressure to address gaps.

Maybe the report/plan and progress reporting should become a requirement to report to shareholders, for ASX listed companies. This would certainly get the attention of CEOs and Boards. Shareholders are brutal and would not tolerate anything other than excellence and this could become part of the “policing” (Focus group comment).

It may be too onerous however for shareholders to read an entire EOWA report, whereas a summary of the organisation’s overall goals and key data points (if provided year on year) may be sufficient for shareholders to identify whether progress is being made. This information could be provided to shareholders via an organisation’s annual report or other relevant reports (eg in relation to Corporate Social Responsibility).

Finally EEONA suggests that the threat or reality of “penalties” associated with an employer’s failure to lodge a report (namely inability to procure government contracts and naming in Parliament) have had little (if any) traction in terms of motivating employers to comply and, moreover, improve equity outcomes. It has been suggested that the effectiveness of the procurement ban is dependent upon the relevant Government agency which is procuring the services/goods being aware of the EOWA determination, and the “naming” outcome is dependent upon the employer being recognised as a brand name and therefore attracting media attention. Accordingly the value of these two enforcement mechanisms is significantly diminished by a lack of transparency and integrated accountability.

Whilst EEONA notes that EOWA includes a page on its website of non-compliant organisations, and that potential government contractors must certify that they have not been named as noncompliant when tendering for government contracts. The effectiveness of this system rests on an assumption that all government contracts are awarded after a formal tendering process, whereas contracts below a certain budgetary level are not subjected to such a process.

3.2.4 Initiatives

EEONA notes that EOWA is uniquely placed (given its data set of reports) to publish research reports which quantify the value of individual initiatives on gender equity outcomes, and report benchmark data by industry (ie not just initiatives but outcomes). If EEONA’s recommendation 7 is implemented, researching the (online) database will become even easier. EEONA also notes that much of EOWA’s recent research (and even the Business Achievement Awards) has been dependent on the goodwill of employer organisations (in terms of their financial support). There are three main detriments to this approach: firstly funding by reporting employers may create a conflict of interest for EOWA, secondly fundraising activities are a distraction from the Agency’s core objectives; and thirdly (by implications) EOWA’s capacity to generate research is tenuous.

Noting above that managerial accountabilities are critical to the successful implementation of gender equity goals, and that few organisations have developed balanced scorecards or measures of managerial accountability, a gap in EOWA’s tools and resources is the creation of “gender” Key Performance Indicators (KPIs) for managers. It is not suggested that the adoption of balanced scorecards should be mandatory, nor that these scorecards should include quotas.

EEONA observes that the credibility and capacity of EOWA to engage businesses rests upon the business acumen and HR skills of EOWA staff, and the positive relationship between the Director and business leaders. When the Director has not demonstrated a strong public profile, or the staff have not demonstrated business sensitivity, their capacity to influence business leaders has been diminished.

It's important that the leader of EOWA builds and maintains a strong public profile. The extent to which the media and business community maintain a focus on advancing opportunities for women is strongly influenced by the profile of EOWA and its leader. Opportunities exist for the current (acting) leader to build a stronger public profile (Focus group comment).

3.3 Imagining the blue sky

EEONA suggests that the above fourteen recommendations are achievable, and many in the short-term. EEONA also considered stretch targets for the Agency, the legislation and Government, to improve gender equity in the long term namely:

1. Creating a vision for gender equity in Australia in 2020 to help business imagine the outcomes more clearly;
2. Reframing of the legislation’s objectives in terms of “gender” rather than women to acknowledge that organisational decisions may disadvantage men who do not fit the norm (eg those with active caring responsibilities);
3. Introducing fines for organisations which fail to report to EOWA (and using those funds to support EOWA’s research and awards);
4. Adopting a whole of (employment) life approach to enable EOWA to help educate students (eg about non-traditional careers) and reach those who have exited the workforce but may wish to re-enter;
5. Creating a single reporting framework across Government for all equity based reports so that there is greater consistency and efficiency; and
6. Strengthening EOWA/business ties by enabling staff from EOWA to take secondments into businesses, and HR practitioners to take secondments into EOWA.

Should you have any queries, please do not hesitate to contact me on (02) 9810 7176 or via email: juliet.bourke@aequus.com.au.

Yours faithfully

Juliet Bourke, Chair, EEONA

1. Note that some EEONA members found the Agency non-inclusive and reactive, rather than proactive, and these experiences are dealt with in section 3.2 – areas for improvement.
2. Albeit that at recommendation 3 EEONA suggests a longer term horizon for full reports, with foreshortened annual progress reports.
3. EEONA notes that an organisation is required to submit one report to cover the whole corporate group or alternatively subsidiaries can report separately if it is more appropriate.
4. EEONA does not suggest that the option to lodge confidential reports (long term or progress) be removed.
5. EEONA is not prescribing the nature of these accountabilities.

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