Review of the Equal Opportunity for Women in the Workplace Act 1999 – Submission
ANU College of Law
Dear Director
Re: Review of the Equal Opportunity for Women in the Workplace Act 1999
I wish to make a number of comments on the Act with particular regard to its effectiveness.
The main difficulty with the Act is its weakness as a regulatory instrument. Its predecessor, Affirmative Action (Equal Opportunity for Women) Act 1986 (AAA) was an extremely weak piece of legislation and its replacement, the current Act, is even weaker. The legislation has lacked any real sanction for non-compliance. In any case, compliance has been directed to form, not substance, that is, the focus has been on the lodgement of a report, not substantively altering workplace profiles.
While the legislation sets up an agency, its responsibility has largely been directed to the receipt of information in the form of the reports. The result is that the legislative schema does little more than legitimise a regime of self-regulation. This means that it has largely been up to the good graces of individual corporations as to whether or not they take the legislation seriously. The waiver of annual reporting requirements in favour of triennial reporting may follow inclusion on the ‘Employer of Choice’ list because employers have ticked the right boxes but this has only succeeded in bringing the legislation into disrepute because it is not treated seriously.
I have written extensively about the legislation in the 1980s, 1990s and 2000s; see, for example:
Thornton, "Affirmative Action, Merit and the Liberal State" (1985) 2(2) Aust J. Law & Society 28-40;
Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Melbourne: Oxford University Press, 1990), ch 7 ‘Affirmative Action’;
Thornton, ‘EEO in a Neo-Liberal Climate’ (2001) 6(1) J Interdisciplinary Gender Studies 77-104;
Thornton, ‘The Evisceration of EEO in Higher Education’ (2008) 50(2) Australian Universities Review 36-47.
The reality is that self-regulation never works as a mechanism for effecting social change when the issues are highly contested. The masculinity of most corporate workplace cultures, particularly their upper echelons, requires direct intervention if change is to be effected. This was appreciated by Hon Susan Ryan AO with her initial Sex Discrimination Bill, which included affirmative action provisions, in 1981. Those who have power are never going to voluntarily relinquish it, as is apparent from the parliamentary debates on Sex Discrimination Act 1984 (SDA) and the AAA, as well as from the antipathy displayed by the Business Council of Australia, which claimed in 1999 that the AAA was an ‘impost on business’. In fact, it is impossible to see how reporting to the EOWA Agency was in any way more onerous than other forms of compliance.
It seems to me that after almost thirty years of a softly-softly approach towards employers – and virtually no change – at least at the upper echelons – direct intervention is needed in the form of positive action. It should be noted here that positive action is synonymous with affirmative action but the latter term fell into disfavour because it was denigrated by detractors who wanted to maintain the status quo. They claimed, falsely, that affirmative action could be equated with the mandating of quotas for women based on sex alone, with no regard for the merit principle.
Quotas are a form of special measure and a legitimate means of accelerating equality for women under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Article 4. CEDAW came into force in Australian in 1983 and was implemented through enactment of the SDA soon afterwards. SDA s7D(1)(a) implements the tenor of CEDAW Art 4 by allowing special measures to be taken to effect substantive equality between men and women. Special measures are not intended to continue indefinitely but until such time as the objectives of equality have been achieved. In this case, that would be when there was gender parity in the senior management of corporations and in the composition of boards.
Recommendation 1: That a quota system be imposed to increase the representation of women in senior management and on boards
Many Australian corporations have less than 100 employees. As a further strategy for moving beyond the tokenistic measures of the past, the pool of targeted corporations should be expanded to include middle-range corporations. I suggest including those with 50-100 employees. Social change cannot be effected when the focus is on a few very large corporations, as their experience is then all too easily dismissed as aberrant. Cultural change requires a more concerted and thoroughgoing effort.
Recommendation 2: That amended legislation apply to all corporations with 50 or more employees
If the Minister is serious about altering the gendered pyramidal structure that typifies Australian corporations, both public and private, a regime of positive action must be introduced. Contract compliance was an idea borrowed from the United States at an early stage, but was either not taken seriously or not enforced at all. I suggest that it be revived and rigorously policed. As we know, connecting with the ‘hip pocket nerve’ is likely to be far more efficacious as a strategy for substantive change in the private sector than completing a myriad report forms.
Recommendation 3: That a system of contract compliance be introduced and rigorously policed for all government contracts effected with corporate contractors
Pay equity – or pay inequity – has been an issue of ongoing concern for women for more than a century. It is a key indicium of women’s participation and equality in employment. Australia’s unique centralised wage-fixing system was very positive for women, but the data suggests that the wages gap has been increasing since WorkChoices and enterprise bargaining. Again, to avoid overlap with cognate authorities, I suggest that the EOWA Agency or its successor work closely with the Fair Work Ombudsman.
Recommendation 4: That pay equity be included as a mandatory strand of compliance in collaboration with the Fair Work Ombudsman.
The profile of the EOWA Agency needs to be enhanced. While the Australian Human Rights Commission (AHRC) and the Sex Discrimination Commissioner have managed to maintain a public profile, the same cannot be said for the EOWA Agency. While it is conceded that this may be partly due to under-resourcing, it is confusing for the public to have a proliferation of agencies concerned with gender equity. It might therefore be more effective to subsume the Agency within the rubric of AHRC. Such a move should not be used as a reason for cutting the budget of the EOWA unit.
Recommendation 5: That the Equal Opportunity for Women in the Workplace Agency be subsumed into the Australian Human Rights Commission
One of the reasons for the edentulous character of EOWA relates to the limited powers of the Agency to obtain information about a corporation or to verify the contents of a report. Whatever a corporation says has to be accepted at face value. For the Agency or its successor to be effective, there need to be statutory powers enabling investigation and audit to take place as needs be. Collaboration with the Office of the Fair Work Ombudsman might be the most efficacious way of doing this.
Recommendation 6: That the overseeing powers of the EOWA Agency or its successor be augmented, possibly in collaboration with the Office of Fair Work Ombudsman
Finally, there is the point of sanctions for non-compliance. First of all, we should move away from the formalist focus, that is, compliance means submitting a report rather than substantively improving gender representation and developing other supportive initiatives within the organisation. The naming of non-compliant organisations in the EOWA Agency’s annual report clearly has not worked. It is apparently viewed as a badge of honour by some non-compliant organisations for whom submission of a report is of little consequence.
Rather than impose Draconian sanctions, I suggest a more positive approach that rewards compliance rather than punishes non-compliance. I reject empty titles such as ‘Employer of Choice’. Instead, I suggest a taxation set-off for those corporations able to demonstrate genuine progress. I would suggest that any claims likely to secure benefits be subject to strict scrutiny in the form of investigation and audit with the assistance of the Fair Work Ombudsman.
Recommendation 7: That, instead of sanctions, compliant organisations receive incentives in the form of taxation set-offs
Yours sincerely
Margaret Thornton
[ top ]