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

Anne Summers

Executive Summary

Twenty three years of legislation to improve women’s employment opportunities has not led to marked changes in the representation of women across all industries and at all levels of private sector employment. Nor has women’s remuneration relative to men’s increased significantly since the 1980s. The current review of the legislation needs to recognise that previous attempts to encourage employers to “do the right thing” have been largely unsuccessful, that market forces have failed to see employers take adequate advantage of the large and growing talent pool of highly educated women and that, in the national economic interest, more forceful and effective intervention by government is now required. Strengthened legislation should be seen as part of the government’s suite of tools to improve workforce participation and national productivity, i.e. an economic issue. As a consequence, the agency designated to administer this legislation must be part of an influential government portfolio.

The precise legislative tools required to effect lasting and beneficial change need careful consideration but it is obvious that they need to be transparent and enforceable. The review of EOWW and EOWA has been given insufficient time to allow informed and public discussion of all relevant factors and a full review of possible options. It would be highly desirable for the federal government to use the submissions to this review to put together a White Paper on Women’s Employment, covering all aspects including pay, release that into the community for six months open debate and, only then, draft legislation to remedy the lack of equal opportunities for women in the workforce.

It is also important to end the charade of government giving awards to companies that are barely compliant (and sometimes in breach) of even the watered-down legislation that currently exists. Any awards should be conferred by an independent authority that has no jurisdiction over the legislation.

Background To My Submission

In 1984 I headed the federal Office of the Status of Women and was charged by the Hawke government with developing affirmative action legislation that would be palatable to a range of competing interests. Foremost among these were business, the higher education sector, the trade union movement, the women’s movement and the ALP which had written policies of anti-discrimination and affirmative action legislation into its national platform. A year long Affirmative Action Pilot Program was established, involving 28 ASX200 companies and three higher education institutions, to trial techniques that would later be enshrined in legislation. At the same time, a Working Party comprising representatives from the above-mentioned key sectors, was established to review progress of the Pilot Program and to draft the key elements of the legislation.

The Pilot Program demonstrated that it was possible to incorporate plans for improving employment opportunities for women into usual workforce practices but that for real progress to take place, there needed to be numerical targets which were capable of being measured. Even then, the notion of “American-style quotas”, as they were called, was unpalatable so the Working Party avoided that language. Instead, it came up with the language of “objectives” and “forward estimates”. The “objectives” were intended to be qualitative, whereas the “forward estimates” were supposed to be quantitative and therefore measurable. The Affirmative Action (Equal Opportunity for Women) Act, when it was assented to in October 1986, established the Affirmative Action Agency which was to administer the legislation. The Act required all companies, trade unions and higher education institutions employing 100 or more persons to report annually on their objectives and their forward estimates. A comprehensive 8 step program was set out in the legislation that required the following:

  1. Issuing a statement on affirmative action to employees;
  2. Assigning responsibility for the program;
  3. Consulting with trade unions whose members are affected by the program;
  4. Consulting with employees, particularly women employees;
  5. Establishing and analysing the employment profile;
  6. Reviewing and analysing employment policies and practices;
  7. Setting appropriate targets; and
  8. Monitoring and evaluating the program1

This approach required a systematic analysis and review of an organisation’s workforce in order to identify barriers to women’s full and equal participation. Such analysis is an essential tool for the proper formulation of forward estimates and objectives; it also enables measurement of achievements and compliance.

Under this original legislation, the organisation’s annual reports, setting out their programs, were available for public scrutiny. If a company failed to submit a report, the Minister was able to name that company in Parliament. Some years more than 200 companies were named for non-compliance. This “naming and shaming” had a dramatic effect on improving compliance, i.e. companies submitted their reports. But the Affirmative Action Agency was never given sufficient resources or authority to verify the reports, to go into companies to check whether the reports reflected reality. So although there was some progress during this era (an increase in female apprentices for example) the legislation did not lead to the marked improvement in women’s employment opportunities that had been hoped for. To achieve this requires a number of things:

  1. Legislation that is enforceable, ie the administering Agency needs to have adequate authority and resources to be able to verify compliance and progress, and to have recourse to sanctions if willful non-compliance is evidenced
  2. Organisations need to develop internal targets for improvement and ensure these are met; relating achievement of targets to executive remuneration is the most effective means of doing this
  3. Parliament needs to take seriously the oversight function provided by the legislation and conduct periodic reviews of its effectiveness
  4. Public support for the aims of the legislation needs to be nurtured and continually reinforced through a variety of means, including public education, to (a) demonstrate to women that their economic status is a matter of national significance, and (b) emphasise to employers their obligations under the legislation.

In 1998 after the election of the Howard government, the Affirmative Action legislation was reviewed and repealed. It was replaced by the Equal Opportunity for Women in the workplace Act. It was more than a change of name. The entire legislative framework for achieving equal employment opportunity for women was ditched. The consequences have been described by University of Sydney graduate student Mimi Zou in another submission to this enquiry:

The EOWW Act also weakened the minimal reporting requirements of its predecessor, such as deleting the step of specifying goals and targets, removing the evaluation of programs against a common standard and waiving the annual reporting requirement for employers who have been compliant for more than three years. With the compliance focus on report submission, the quality and effectiveness of workplace programs were irrelevant. Recent sampling of reports by Strachan and French revealed that many organisations met the minimum legislative requirements and nothing more. Many programs either did not show a real understanding of EEO or addressed equity issues in a minimal fashion.2

As a result of these political decisions, employers no longer had to report on progress but were merely able to submit reports that stated they had equal opportunity plans in place. These reports were not made public and were not subject to any form of verification. Employers no longer risked being “named and shamed” in Parliament. It is perhaps not surprising that women’s employment and pay status has not improved since then. The current review of EOWW provides a timely and overdue opportunity to:

  1. recognise that the voluntary approach enshrined in this legislation is ineffective,
  2. agree that it is necessary for the legislation to be reviewed and strengthened
  3. understand that as a result of the Global Financial Crisis there is a unique and serendipitous congruence between:
    1. the economic goals of the government (increased workforce participation leading to improved national productivity),
    2. the business goals of the corporate sector (increased profitability stemming from improved productivity leading to economic growth), and
    3. the aspirations of Australian women to share equally to the best of their abilities and ambitions in the opportunities and rewards of the economy (A Fair Go)

It will take a government committed to these principles to assert the need for change and to make it happen.

I make the following specific recommendations to achieve such change:

Recommendation 1: The EOWW legislation be repealed and replaced with a new Act, the Women’s Equal Employment Act, that requires all organisations* employing more than 100 people to report annually to the federal government on the gender breakdown of their entire workforce, the gender breakdown of each salary band and their targets for improving equity at each level of employment (i.e. not just on Boards or at senior executive levels).

(*Organisations include private sector companies, trade unions, non-government organisations and higher education institutions)

Recommendation 2: all reporting organisation be required to achieve a 40 per cent representation of women directors within five years or face mandatory quotas backed by enforceable sanctions

Recommendation 3: all ASX listed companies be required to provide a gender breakdown of their executive teams and directorships as part of their Corporate Governance reporting to the ASX

Recommendation 4: all non-ASX companies be required to provide a gender breakdown of their executive teams and directorships as part of their reporting to ASIC

Recommendation 5: Certified compliance with the Women’s Equal Employment Act for a minimum of three years be a ‘condition of participation’ to be eligible to take part in Australian Government procurement programs, or to receive grants or other forms of government assistance.

Recommendation 6: the EOWA Agency be renamed the Office of Women’s Employment and be relocated from the Department of Families, Housing, Community Services and Indigenous Affairs and attached to an economic portfolio, either Department of the Prime Minister and Cabinet, the Treasury or the Department of Employment and Workplace Relations.

Recommendation 7: The Office of Women’s Employment be a statutory office, charged with administering the revised legislation, reporting directly to Parliament, and not subject to Ministerial direction in administering the legislation

Recommendation 8: The Office of Women’s Employment, in addition to its statutory obligations, be required by the legislation to undertake research into all aspects of women’s employment (in this respect, taking up the functions exercised admirably by the Women’s Bureau for over thirty years until it was abolished by the Howard government) and to advocate for women’s equality in the workforce.

Recommendation 9: The Office of Women’s Employment should work closely with the Sex Discrimination Commissioner and the Fair Work Australia Ombudsman in ensuring compliance with all legislation designed to improve women’s employment opportunities and end discrimination or unfair treatment in the workplace.

Recommendation 10: The government consider slowing down the EOWW and EOWA review process in the light of:

  1. the complexity of the issues involved in ensuring equity in employment and remuneration,
  2. the intersection of this legislation with that governing the Sex Discrimination Commissioner and the Fair Work Australia Ombudsman,
  3. the impending parliamentary reports on pay equity and revisions to the Sex Discrimination Act,
  4. the proposed Paid Parental Leave scheme due to be introduced in 2011,

and instead issue a White Paper on Women’s Employment which draws on the submissions made to this review and sets out in a comprehensive fashion the many issues involved in order for there to be informed public and expert discussion aimed at designing a modern, innovative and - above all - effective set of legislative instruments designed to achieve gender equity in the Australia workforce in the 21st century.

  1. Affirmative Action (Equal Opportunity for Women) Act 1986 s.8 (1)
  2. Mimi Zou, The Way Forward for Gender Equality at Work p. 4

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