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

Community and Public Sector Union - State Public Services Federation Group

1. BACKGROUND

1.1. The Community and Public Sector Union – State Public Services Federation (CPSU-SPSF) represents workers in State Public Services. Our members are covered by specific State Public Sector awards and agreements however many are also employed as general staff at universities and in constitutional corporations. The majority of our members are women.

1.2. We take this opportunity to make this Submission to the Review of the Equal Opportunity for Women in the Workplace Act 1999 and Agency.

1.3. We submit that the causes and solutions to workplace inequality are complex and that various mechanism and means are required to advance the issue. The Equal Opportunity for Women in the Workplace Act, 1999 (EOWWA) is but one mechanism within a network of institutional and informal structures that are available to address inequality in the workplace.

1.4. Of great importance in the current debate about women in the workplace is the gender pay gap. The current Federal Government has made commitments to resolving this issue – EOWWA and the Agency have an important role to play.

1.5. The `gender pay gap’ has been persistent and intransigent and while many see the solution to the `gap’ and women’s equality in the workforce as eventually responding to the market, or to women entering male dominated areas of work, or to education, all these solutions or explanations have failed so far. Wages in occupations and industries where women work haven’t increased despite labour shortages and while women have increased education levels this still hasn’t provided equality in earnings and career progression. Active policies and programs and more interventionist mechanisms are required to resolve these issues.

1.6. The main contributing influence in institutionalising gender pay inequality is that the work that women do is underpaid and undervalued. It is clear that many women workers are low paid and they work in low paid sectors, in occupations such as carers, retail and clerical workers, in lower paid sectors such as health and education.

1.7. It has been argued by some commentators, such as Prof Mark Wooden, that the problem with the pay gap is that women `choose’ to work less hours in low paid occupations (National Press Club 7/5/08). This in some sense is true but masks the real problem that the work and occupations are low paid because the work performed is undervalued and not properly remunerated for the skill level of the work performed. If women `choose’ to work in these sectors and `choose’ to work part time this does not excuse or provide any justification as to why they should not be paid the appropriate value for their work. Such simplistic explanations will not resolve the pay equity problem.

1.8. This raises the question `who will do the work’? Also, why shouldn’t women (or men) choose to work in these areas of employment if they so desire? The problem is that often the work that women do is overlooked or unrecognised. Many tasks and so called soft skills such as communication, decision making and pastoral care are undervalued and unrecognized as a work skill. Who is to say that making a decision about which child ought to be attended to, or which patient needs priority is less a decision or worth than that of an information systems officer deciding the priority of which computer to fix or in which order a bricklayer should lay bricks? However, current income rates indicate that many occupations where women work are valued at hundreds of dollars a week less than similarly but differently skilled male dominated jobs. Women’s skills are valued and paid less.

1.9. A way forward to redress this problem of the gender gap is to have the work that women do properly valued and remunerated. The problem of undervaluation of women’s work can be redressed through tackling gendered notions of skill and reward that exist in pay and classifications structures in awards and agreements. EOWA, if so directed and resourced, can provide a vehicle through which pay equity can be achieved.

1.10. For these reasons this submission will make recommendations that suggest a more activist and vigilant role in addressing equal opportunity in workplaces. We also suggest upgrading the Agency and other legislative, industrial, governmental agencies, policies and programs.

1.11. The House of Representatives are currently undertaking an Inquiry into Pay Equity. Our Submission to this Inquiry addressed the institutional, legal and other mechanism that affect pay equity in Australia. In addition to examining the industrial framework, our Submission discussed the role of the Equal Opportunity in the Workplace Act and Agency.

We set out below the relevant part of our Submission to the Pay Equity Inquiry:

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2. EQUAL OPPORTUNITY FOR WOMEN IN THE WORKPLACE ACT 1999

2.1. The Equal Opportunity for Women in the Workplace Agency (the Agency) administers the Equal Opportunity for Women in the Workplace Act, 1999 (the Act).

2.2. The functions of the agency are to advise and assist employers in the development and implementation of workplace programs, to issue guidelines, to monitor the lodging of reports, to evaluate the effectiveness of workplace programs, to undertake research and educational programs and to promote the understanding of equal opportunity for women.

2.3. We suggest that it would be time to review the role and function of the Agency.

Our concerns are summarised as follows:

2.4. Reporting

2.4.1 It is extremely important that, when addressing pay equity, proper and reliable information be available and examinable. The Act requires that employers with over 100 employees report annually. However it is unfortunate that Reports submitted and available for scrutiny provide little information. We invite members of the Committee to examine reports and the website. We attach an example for examination. The attached Report of the David Jones organisation and employer of many women. Like many reports, it provides little assistance in investigating the pay equity problem. The reports do not contain the information required to make any analysis or form any clear picture of equal opportunity or pay equity in large organisations. In most cases there is no wages data, no information on employment structures or work contracts. Most reports in their current state merely reflect human resources policy statements. While the Agency does have sufficient power invested in the Act, it would appear that the responsibility to interrogate and seek proper information has not been used effectively. We would suggest that reporting standards be upgraded to provide much better data. Reports need to contain information on matters such as wages, classification structures, starting salaries, career progression, occupational segregation, pay scales, pay systems, flexible work arrangements, training and development data, other forms of remuneration and turnover rates. The Agency must make use of its powers to investigate and interrogate further. This information should be made available publicly.

2.4.2 We also suggest that the Act be widened to include public sector organisations.

2.4.3 We also suggest that the application of `waiving’ of reporting requirements ought to be reviewed.

2.4.4 Further: reports do not contain any information drawn from employees. We suggest a right to interview employees be included in the provisions that govern reporting requirements. Employee involvement would improve attitude and recognition that equal opportunity is a serious issue.

2.4.5 Reports to the Agency could provide a good data resource and research body that would give a clear picture of gender inequality in workplaces. Unfortunately, in its current form the Agency provides little value for those attempting to address the pay equity problem.

2.4.6 The Agency has, as one of its functions, the authority to conduct research into equal opportunity. Unfortunately the research conducted by the Agency has been very narrow and of little assistance in addressing the problem of pay equity. The major research conducted by the Agency, the Australian Census of Women in Leadership, while useful, does not strike at the heart of the problem of pay equity: the problem of women in the low pay sector. In fact one could argue that focusing Agency research monies to gender pay gap of women CEO’s is somewhat insulting to the average women worker. Research needs to be much broader and relevant to Australian working women. Areas that research needs to be directed at are low paid workers, part-time workers, non-English speaking and indigenous women.

2.4.7 We suggest that the research function of the Agency be reviewed.

2.4.8 A main function of the Agency has been to make Employer of Choice Awards. While Awards may encourage good practice it may be that their usefulness might need to be reviewed to establish the real standing of these Awards in the community and their effectiveness in promoting equal opportunity.

2.5. Promotion of Programs

2.5.1 The Agency has a function to promote programs that will assist employers and encourage equal opportunity. We note the pay equity tools on the Agency website. We would suggest however that the Agency be more active in promoting programs, establishing workplace committees, gender audits, tools and remedial policies to employers. We draw attention to the New Zealand program referred to in the international part of this Submission.

2.5.2 We are concerned about the effectiveness of the Agency and therefore recommend an independent review of the role and function of the Agency which considers the modernisation of the Act, the expansion of the capacity of the Act to promote equal opportunity and to improve investigation and reporting processes.

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3. REVIEW OF THE EQUAL OPPORTUNITY FOR WOMEN IN THE WORKPLACE (EOWW) ACT 1999 AND AGENCY 2009

3.1. In July 2009 the Minister for the Status of Women announced a Review of the EOWW Act and Agency. The CPSU-SPSF agree, that in light of our Submission to the House of Representatives Pay Equity Inquiry, that this is a necessary process. We do however note that prior to the appointment of the new Acting Director the effectiveness and usefulness of the Agency was highly questionable, we now find an improvement in the delivery of the objectives of the current legislation.

Contribution that the Act and Agency has made to increasing women’s employment opportunities and advancing women’s equality.

3.2. The original rational and objective of the Affirmative Action Act and its later manifestation the EOWW Act was to address the problem of inequality that confronts women in the Australian workforce. Over the time of its operation the role and effectiveness of the Act and the Agency has been somewhat inconsistent.

3.3. When we examine the position of women in the Australian workforce in the year 2009 we find some improvements yet we are still bothered by the persistent problem of pay equity, of inequality and discrimination within the workplace and labour markets. There has been no coordinated and structured policy intervention into resolving these issues and there is little understanding of the cause and effects. While the Agency itself is but one part of a range of available mechanisms, we would contend that the role of the Agency in putting into effect its own objectives have been disappointing. The Agency has been somewhat moribund, ineffectual and narrowly targeted.

3.4. This submission will address the issue of the coverage of the Act, its operation, its educative and research function and structure within the institutional industrial relations framework. We also make suggestions and recommendations.

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4. COVERAGE

4.1. EOWW Act covers organisations with 100 or more employees from the private sector, non for profit/community organisations, non government schools, trade unions, group training and higher education institutions. Reporting is largely based on self reporting and disclosure by employers. Small business and Commonwealth public services agencies employing 100 or more staff are not covered by the Act.

4.2. As many women work in small workplaces, it would be desirable to lower the number of employees from 100 to 50. However at this stage, and bearing in mind resource constraints, it might be better to ensure that those employers already covered by the Act meet their legislative requirements. That those already covered submit reports that are accurate and that they are not easily excused from submitting these reports through loosely applied `waiving’ processes.

4.3. We recommend that Commonwealth agencies employing 100 or more be included within the scope of the Act and that discussions be held with State Government agencies as to extending or coordinating similar requirements to those State public sector organisations. We think that Governments have a responsibility to fulfill requirements that they place upon private employers and that they have a responsibility to show leadership in addressing discrimination and inequality for women workers.

4.4. We suggest the smaller oganisations should be encouraged to engage with and make use of the Agency’s programs, facilities, research and tools. They could be encouraged to voluntarily report and contract compliance provisions could be used as a mechanism for enforcing gender equality requirements.

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5. REPORTING

5.1. Our Submission to the House of Representatives Pay Equity Inquiry drew attention to the poor, uneven and inadequate standard of reporting to the Agency. A perusal of many reports indicates that many are no more than workplace human resources policy statements. Most contained inadequate data with no real break down of statistics on wages, salaries, employment structures, modes of employment and effective monitoring of policies and programs. The CPSU-SPSF is somewhat perplexed on how accurate research could be published from the data collected.

5.2. The current reporting arrangements are inconsistent, discursive and subject to evasion. The quality of reports fall well short of providing evaluative information that could assist in the making of robust evidence based policy. One could suggest that the lack of quality and comprehensive reporting and the failure to properly administer these requirements has not encouraged employers to take their obligations seriously. It is difficult for us to feel confident that many organisations that have submitted such shallow reports would be able to demonstrate compliance with the objectives of the Act.

5.3. The `flexible’ reporting model also appears to be unable to provide consistent or reliable data. We recommend that a more structured reporting format could assist employers and provide more robust data.

5.4. We are aware that proper and analytical reporting can be somewhat resource intensive and we suggest due consideration be given to the practical issues of reporting cycles.

5.5. The Agency’s data collection needs to be more substantive and should be a useful resource for researchers and practitioners. More robust data collection would be a useful resource for evaluating the effect of policies and legislation on workplace equality.

5.6. As the purpose of the EOWW Act is to improve equal opportunity in the workplace it would only seem logical that employees of reporting organisations have input into reports and that they participate in reporting. That they have their `say’ on what is happening in the workplace, their views on workplace policies and of employer reports and compliance. As well as input into reports, reports need to be made public and made available for scrutiny by employees and unions.

5.7. We recommend more substantive data collection requiring full analysis of workforce structure, ethnic composition, mode of employment, wage structures, training and progression, monitoring and progress of policies and programs. We recommend a system of employee and union input, review and scrutiny of reports.

5.8. We recommend greater guidance from the Agency in assisting employers to comply with the Act.

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6. COMPLIANCE, ENFORCEMENT AND WAIVING

6.1. If the Act is to fulfill its objectives of improving equality in the workplace we would contend that compliance, enforcement and waiving of obligations must be re-considered and strengthened.

6.2. According to the Issues Paper in July 2009 there were 2890 reporting organisations of which approximately 2500 complied with the Agency’s requirements. This means that there is a significant number of reporting organisations for which the situation is unknown for some reason or another.

6.3. In 2006/7 13 organisations were named as non-compliant, eight of them as non-compliant for three or more years. Only organisations that did not report were named as non-compliant and no organisations were named as non-compliant because their reports or programs did not meet the requirements and objectives of the Act. This would seem unrealistic given the lack of substantial information contained in many reports.

6.4. There is a vast gap between the Act’s intentions and the substance of compliance and enforcement undertaken by the Agency. This indicates that compliance is not effective and may not be taken seriously by those required to report. Where a reporting organisation fails to lodge a report, or fails to comply, the Agency may identify non-compliant organisations in its report to the Minister which is then tabled in Parliament. Reporting requirements may be waived. In waiving the Agency must be satisfied that the employer has taken all reasonably practicable measures to address the issues relating to employment matters affecting equal opportunity. The waiving provisions have been used extensively, however it seems that this discretion has not been rigorously applied given the poor nature of many reports and the capacity of the Agency to properly inquire or investigate workplace practices.

6.5. The legislation does not grant the Agency power to act pro-actively and initiate effective investigations. It relies on cooperative relations with the `stick’ of naming of non-compliant organisations in Parliament. There is no provision for monitoring or inspecting of records of organisations.

6.6. In order for the Agency to be more effective it requires greater power to investigate and inspect workforce data with supporting legislative enforcement for compliance and for the taking of remedial actions where required. In its current form the Agency has no capacity, little resources and weak sanctions – tantamount to being hit with a wet feather

6.7. More meaningful standards and compliance would give substance and credibility to the Agency. The issuing of compliance certificates and orders that have some credibility would assist in an improvement in standards. Where organisations fail to comply and refuse assistance to satisfy compliance it may be necessary for the Agency to then refer the matter to the Office of the Fair Work Ombudsman. The OFWO could be empowered to action compliance for the Agency. Where continued refusal or failure to comply exists the Office of the Fair Work Ombudsman could inspect organisations and make orders seeking compliance. Further it would be desirable that employees and unions could make representation to the Agency and or the OFWO in cases of suspected failure to comply with the requirements of the Act.

6.8. We recommend that the functions of reporting, compliance and waiving all be strengthened and armed with the proper supporting legislation to make the Agency’s operation meaningful. This may require enforcement proceedings through the OFWO. We submit that greater input from employees and unions and more public scrutiny at the workplace would engender greater confidence in the Agency from women workers.

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7. SANCTIONS

7.1. The current sanctions for non-compliance – the naming in the Parliament is as we stated above tantamount to being hit with a wet feather. This light touch is a rarity in industrial and workplace law. It is a sad indictment on a commitment to progress equality and remove discrimination in the workplace.

7.2. With sanctions being as they currently are, eligibility for procurement of government contracts and industry assistance probably provides a more useful incentive to comply if these provisions are properly and rigorously applied.

7.3. We recommend that the sanction regime ought to be strengthened and given more force. More meaningful sanctions could also be supported by a system of contract procurement certification where the onus of proof to obtain certification rests with employer and satisfies a commitment to the objective of the Act. Contract procurement could apply to smaller companies with employees over 20 as an incentive to encourage these companies to adopt the principles of the purpose of the Act.

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8. PROVISION OF INFORMATION, ADVICE AND EDUCATION

8.1. The EOWW Act states that the Agency also has the function of undertaking research, education programs, promotion of understanding and public discussion of equal opportunity in the workplace.

8.2. While we are pleased to see a much more effective functioning of the Agency over the last twelve months, we would suggest that prior to this the Agency’s carriage of providing information, advice and education had been very disappointing.

8.3. The Agency’s research has not been robust or reliable. Research undertaken and published was narrow and inconsequential to the concerns of the majority of women in the workforce. It focused on issues that concerned high paid women and managers. It failed to address issues of low paid workers, ethnic workers, cultural issues and discrimination. Equality for indigenous workers was mostly ignored. The Agency has confined its equal opportunity role to a small sector workforce. The Agency also failed to make Submissions on relevant issues to many Government inquiries.

8.4. EWOA runs various events – Employer Awards, the Employer of Choice list and workshops. It provides a website. The website was shallow and provided little useful information – it has improved in recent times. Employer Awards have provided employers with a means of self congratulation which have been based on setting a fairly low standard. Many women workers viewed this award system as irrelevant and were somewhat skeptical of any worth attached to this accreditation. It is difficult to imagine how legitimate this list and awards are when one views the contents and compliance with reporting requirements.

8.5. The understanding of the issue of pay equity within the Australian community is somewhat vague. The Agency has done little to promote discussion and awareness in the general community. In 2009 the Equal Pay Day was effective in engendering community discussion and campaigning.

8.6. The Agency runs workshops, however the focus of workshops has been on complying with reporting requirements and their waiving. The Agency needs to tackle issues for equal opportunity for disabled, indigenous workers, migrant workers and the low paid.

8.7. Under the new Fair Work Australia Industrial Relations System workplace bargaining is promoted as the basis the setting of wages and conditions. It will be important for employers, employees and their unions to be adequately trained in bargaining and in identifying equality issues at the workplace. The Agency could play an important role in educating employers, employees and unions in gender audits, bargaining for equality and workforce analysis. The Agency could assist with tools and training for pay audits and in remedial strategies and actions.

8.8. We recommend that workshops be directed to actions that would advance equal opportunity on much broader scale rather than compliance with obligations. Employers, unions and practitioners need training and assistance in identifying problems that create and have institutionalised inequality in the workplace. They need assistance in how these issues might be addressed. They need assistance in policy, programs and actions.

8.9. We recommend that the Agency widen its research agenda and examine issue that a relevant to working women. That they direct workshops and their training capacity to more practical training on workplace issues, gender analysis and audits and good faith bargaining rather than just satisfying reporting obligations.

8.10. We recommend that the Agency widen its networks. Many workers, women’s groups and trade unions are unaware of the Agency. We recommend that a panel or board be established that is more representative of the general women’s workforce, employers, trade unions, disability, ethnic and indigenous groups, low paid and executive workers.

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9. STRUCTURAL ARRANGEMENTS:

9.1. The role and function of the Act and EOWA has been quite different than that of the industrial system and other institutional legal industrial relations frameworks. It does not have the legal authority or scope of the formal industrial system. The legislation and the agency has relied on encouraging cooperation, education and to some extent good citizenry of employers. It has been somewhat separate to the industrial system. The current House of Representatives Inquiry might consider the relationship between the various bodies that play a role in equal opportunity in the workplace.

9.2. As we suggest a strengthening of compliance and sanctions this might require that the some of the compliance, investigation and sanction procedures of the legislation should be included in the structure of Fair Work Australia and the Office of the Fair Work Ombudsman.

9.3. We also recommend that if the Agency is to affect change and play an important and effective role within the industrial relations framework then it must have a stronger legal authority and be adequately resourced.

The Minster has indicated a commitment to equal opportunity for women in the workforce. The CPSU-SPSF take this opportunity to thank the Minister for Women in initiating this Review. It is well needed and timely and indicates a re-vitalisation of Agency.

Suzanne Hammond
Federal Women’s Industrial Officer
CPSU-SPSF
FEDERAL OFFICE


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