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

Victorian Equal Opportunity & Human Rights Commission

28 October 2009

• Introduction
• The Effectiveness of The Existing Legislation and Arrangements in Delivering Equal Opportunity for Women
• Recommendations
• Conclusion

Introduction

The Victorian Equal Opportunity and Human Rights Commission (the Commission) welcomes the opportunity to make a submission to the Review of the Equal Opportunity for Women in the Workplace Act 1999 (EOWW Act).

The Commission is an independent statutory body that administers both the Equal Opportunity Act 1995 (EOA) and the Racial and Religious Tolerance Act 2001 (RRTA).

Functions undertaken by the Commission include conciliating individual and representative complaints about discrimination, sexual harassment and racial and religious vilification; providing education about equality of opportunity, racial and religious tolerance and human rights; undertaking projects and activities aimed at eliminating discrimination and racial and religious intolerance; conducting research and providing legal and policy advice.

In addition, the Commission undertakes specific functions in relation to the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter). These include providing an independent assessment of how well State and local Government comply with the Charter, and investigating particular human rights issues and concerns.

In this brief submission, the Commission seeks to highlight recent developments in Victoria that may assist the review in relation to matters identified by the terms of reference (TOR). Therefore, in this submission, the Commission focuses on TOR 3- the effectiveness of the existing legislation and arrangements in delivering equal opportunity for women.

Consistent with the Commission’s obligations, this submission adopts a human rights framework in examining the issues under consideration by the review.

This submission supports the recommendations made by the Australian Human Rights Commission in its submission to the review. These are detailed at the end of this submission.

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The Effectiveness of The Existing Legislation and Arrangements in Delivering Equal Opportunity for Women

The Commission notes that despite positive gains over the last 25 years, Australian women are still denied gender equity in a range of areas of public life, including employment. In particular, we note that the labour force participation rate of women is significantly lower than men (58.7 per cent compared to 84.1 per cent¹); that women are much less likely to work full-time than men and are over-represented in part-time work².

We note also that pay equity has still not been realized such that women's average full-time weekly earnings are 17.4 per cent less than men’s. When part-time and casual work is taken into consideration, the total earnings gap between men and women is 35 per cent.³

Improving equal opportunity legislation

In Victoria, the Equal Opportunity Act 1995 (EOA) is currently under review. An independent review investigated how best to eliminate discrimination and promote equal opportunity through reforms to modernize the EOA. This review reported in June 2008.

The Commission contributed two substantial submissions to the review which can be found on our website at http://www.humanrightscommission.vic.gov.au/projects%20and%20initiatives/eoa%20review.asp

The review report An Equality Act for A Fairer Victoria⁴ made 93 recommendations. Principal among which are recommendations to have a new ‘Equality Act’ which will focus on progressively realising substantive equality. The review also recommended that the new act contain an express duty to eliminate discrimination as far as possible, binding on both the private and public sectors. This requires a more proactive approach than that in the current EOA which is largely individualised and complaints driven.

Work is now progressing on the development of new legislation to replace the EO Act and implement the Government's response to the review report. The Victorian Government is considering a range of reforms that will transform the Commission from a complaints handling body to one that acts on systemic discrimination, researches, educates and actively helps people to resolve discrimination disputes and to comply with the law.

The recommendations of the review provide a good example of legislative improvements that can facilitate a fair and effective means of modernising anti-discrimination laws. As such, they may provide guidance to the present review.

The Victorian EOA review recommendations are consistent with the approach to modernizing equal opportunity frameworks in several international jurisdictions, particularly as regards the shift away from a residual approach (a passive duty not to discriminate) to a more proactive, positive duty to eliminate discriminate as far as possible, so that the burden is shifted away from individual complainants. This approach complements and strengthens efforts to address systemic barriers to equality through though attitudinal, structural and institutional change.

The Commission notes that currently the EOWW Act, although not expressly imposing a positive duty, arguably incorporates such as duty within its requirement for the development of gender equity workplace programs. These programs require that action be taken to eliminate all forms of discrimination and measures taken to contribute to the achievement of equal opportunity in relation to employment matters.

The Commission also notes that report of the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Effectiveness of the Sex Discrimination Act recommended further consideration of whether the Sex Discrimination Act 1975 (Cth) [SDA] and/or the EOWW Act be amended to provide for positive duties for employers (amongst others) to eliminate sex discrimination and sexual harassment and promote gender equality. The Commission would welcome such amendments to both Acts, given that an explicit, positive duty would:

• Clarify the existing positive duties under the EOWW Act;
• Reconcile the SDA with the purpose, intent and obligations arising under the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW);
• Strengthen the capacity of the SDA and EOWW Acts to progressively realize substantive gender equality;
• Send a public message that gender equity is unfinished business requiring effort from the whole community; and
• Align with the directions within the Victorian EOA review. This would promote harmonization of equal opportunity laws.

Relationship between the EOWW Act and other legislation

The Commission values the EOWW Act as an important feature of the legal and regulatory framework in Australia. Equally, we value the unique contribution of the Equal Opportunity for Women in the Workplace Agency (EOWA Agency) to the institutional framework seeking to promote gender equity outcomes, consistent with Australia’s international obligations under the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW).

These arrangements differ from and complement the general equality and human rights frameworks at a federal and state level, most notably under the SDA and the EOA, and are distinct from regulatory approaches under the Fair Work Act 2009 (Cth) [FWA].

Role and function of agencies

Similarly, the range of powers and functions across the Australian Human Rights Commission (AHRC), Fair Work Australia (FWA), Fair Work Ombudsman (FWO) and the EOWA Agency differ. So that the equalities institutional environment which may seem on first blush to be somewhat crowded with four federal agencies, is on closer analysis reasonably well calibrated and comprehensive, with distinct yet complementary roles.

This review also provides a timely opportunity to identify opportunities for closer coordination and cooperation between agencies. In particular, to make public information, including that provided to employers, about how to navigate the institutional environment more accessible and available. Currently, each agency has an important role to play, the action needed is to make sure employees and employees understand the distinctions between them so that they may readily gain access to assistance when needed.

The Commission submits that the challenge here is not to reduce the number of institutional players, but rather to clarify and strengthen the role of each in realizing gender equality, in line with Australia’s international obligations. To facilitate this, the Commission supports the model proposed by the AHRC submission, namely that the following lead roles and responsibilities for each of the three statutory schemes should underpin the reform process:

• EOWA should lead coordination within the Australian Government on action to achieve gender equality in Australian workplaces in partnership with the Office for Women; and collaboration with employers to promote strategies and positive action to achieve gender equality in Australian workplaces, including through education.
• AHRC should lead enforcement at a federal level, particularly at a systemic level, to ensure compliance with gender equality workplace obligations. Consistent with its role as the national human rights institution AHRC should undertake education and advocacy about the gender equality rights of employees. Further AHRC should provide independent monitoring and reporting to the Australian Parliament and the Australian public on Australia’s progress in achieving substantive gender equality, including in Australian workplaces.
• FWA/Fair Work Ombudsman, as a general industrial relations system, should collaborate with both agencies in their lead roles; and contribute to systemic action required to achieve gender equality in Australian workplaces.

The Commission is of the strong view that the value of dedicated legislation and an associated specialist agency in the gender equity and employment space should not be underestimated. Given the complexity and entrenched nature of barriers to equal opportunity, having these distinct, yet complementary laws and institutional arrangements is of significant benefit.

For example, EOWA provides added value through a highly focused and targeted approach, for example by collecting information that no other agency is empowered to collect, by providing personalized and detailed feedback to employers on workplace programs and in developing dedicated tools to promote gender equity in employment.

Further, having a dedicated agency and Act avoids the risk of the gender equity in the workplace agenda being diluted in a more generalist equalities or workplace relations body with multiple areas of responsibility.

The Commission views the EOWW Act and the EOWA Agency as complementary and essential components of the gender equality regulatory and institutional framework in Australia. For this reason, we consider that the EOWA should remain as an independent statutory authority with distinct roles and functions under the EOWW Act. We do not agree with the proposition that the EOWA should be merged into the AHRC, or the relevant acts combined.

Summary

The EOWA Agency, as the primary agency charged with the promoting of gender equality in the workplace as part of the Australian Government, should be retained as a stand alone regulator with gender equality in the workplace as its sole priority. It should be administered as part of the portfolio of the Minister for Employment, Education and Workplace Relations, and work closely with the AHRC and the FWA/FWO to drive systemic change within Australian workplaces.

Strengthening the regulatory framework under the EOWW Act

The Commission submits that the core purpose of the EOWA Act and Agency should change from being the promotion of equal opportunity for women to promoting gender equality in the workplace. This change in purpose is to ensure that action by the EOWA Agency is clearly directed towards promoting equal outcomes for women and men (substantive equality) rather than ensuring the women have the same formal opportunities (formal equality). This is consistent with modern equalities laws and frameworks discussed above.

Currently the EOWW Act provides a good basis upon which gender equity can be promoted and delivered. However, some improvement might be achieved through the following practical measures:

• Extending coverage to government departments and statutory agencies with more than 100 employees. This would bring in some of our largest employers and promote transparency and accountability around gender equality in the public sector;
• Improving the identification of employers who are covered by the Act but do not currently report, as they are not easily identified;
• Strengthening provisions for voluntary reporting for companies with less than 100 employees with associated resources for promotion of voluntary reporting and compliance support. Arguably, mandatory reporting could be extended to employers with less than 100 employees subject to the reporting mechanism reflecting the differing capacities of smaller employers;
• Thematic approaches to data collections and reporting in key areas of concern ie equity outcomes in leadership;
• Outcome based measures as well as activity measures in reporting, including the tracking of results in gender equality within the workplace. For example, changes in the gender pay gap, flexible work arrangements, and gender diversity in leadership roles;
• Integrating performance data associated with other legal requirements into reporting. For example, mandatory reporting on acceptance/refusal rates (and reasons given) on requests made under the National Employment Standards for flexible working arrangements by employees who have at least 12 months continuous service, with responsibility for care of a child under school age, or for care of a child under 18 with a disability;
• Certification of employer status, to promote accountability to employees but also to provide a recognizable marketing tool as an employer of choice. The awards system could also be upgraded and made more transparent; and
• Integrating promotional activities and social marketing around leading and incentive based practice. For example, cross promotion of the Victorian Government scheme whereby private employers providing 14 weeks paid parental leave are eligible for a tax concession on payroll tax.

In order to offer benefits to employer/employer groups for developing concrete Gender Equality Action Plans, there may also be value in these plans being submitted for legal recognition under the SDA as a ‘special measure’ or legal instrument.

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Recommendations

This submission supports the recommendations made by the Australian Human Rights Commission in its submission, specifically that:

Recommendation 1: Reporting of the EOWA Agency

The EOWA Agency should report to the Minister for Education, Employment and Workplace Relations.

Recommendation 2: Status of the EOWA Agency

The EOWA Agency should be the principle point of contact of the Australian Government on issues concerning gender equality in the workplace. It should remain a stand alone statutory agency, and not be incorporated into a general industrial relations system.

Recommendation 3: Statutory Links of the EOWA Agency

The EOWA Act should require the Agency to work closely with the Sex Discrimination Commissioner/Australian Human Rights Commission (‘SDC/AHRC’) and the Fair Work Ombudsman/Fair Work Australia as separate statutory agencies regulating gender equality in Australian workplaces (see specific recommendations for links between the FWO/FWA and SDC/AHRC, below).⁵

Recommendation 4: Name of the Act and Agency

The EOWA Act should be renamed the Gender Equality in the Workplace Act, and the Agency should be renamed the Gender Equality in the Workplace Agency, or similar.

Recommendation 5: Objects of the Act

The objects of the Act should include the promotion of substantive gender equality in the workplace, recognising that:

Barriers to women’s equal participation in paid work are directly impacted by men also having greater access to flexible work arrangements for family and caring responsibilities; and

Achieving substantive gender equality will require both removal of barriers to equal opportunity and also special measures to achieve equal outcomes for both genders in the workplace.

Recommendation 6: Independent Monitoring of National Gender Equality Benchmarks and Indicators

The AHRC should be the lead agency to partner with the EOWA Agency to develop ‘National Gender Equality Benchmarks and Indicators’ for Australian workplaces against which progress in achieving gender equality will be independently monitored, working closely with the Australian Government Office for Women, FWO/FWA, and other relevant bodies.

The EOWA Agency and other relevant bodies, including the FWO/FWA and the ABS should be required to provide to the SDC/AHRC disaggregated data and analysis against National Gender Equality Benchmarks and Indicators to enable the tracking at national level of progress to achieve gender equality, including in Australian workplaces.

The SDC/AHRC should independently report to Parliament and the Australian public on progress to achieve gender equality, including in Australian workplaces, at a minimum every two years.

Recommendation 7: Employer Reporting Obligations

Employer Reporting Obligations should focus on the achievement of equal outcomes for women and men in the workplace, rather than the processes used to achieve gender equality outcomes (such as specific training programs or mentoring schemes).

Recommendation 8: EOWA Certification

When employers meet their Employer Reporting Obligations under the Act, the Agency should issue a Certification. Employers should be required to publish:

• Reports and EOWA Certifications to all employees, and
• EOWA Certifications in their Annual Reports, including Annual Reports to the ASX where applicable.

Recommendation 9: EOWA Employer Capacity Building

The EOWA Agency should play the lead role in supporting employers to achieve gender equality in the workplace, for example, through a ‘community of practice’, in partnership with representatives of relevant employers and employee representatives including unions.

Recommendation 10: EOWA Verification

The EOWA Agency should be empowered to conduct a verification process to establish compliance by an employer, group of employers, or industry with its obligations under the Act, including with Employer Reporting Obligations. The Agency should provide the SDC/AHRC and the FWO/FWA with the results of verification processes conducted under the Act, subject to any privacy considerations.

Recommendation 11: Voluntary Gender Equality Action Plans

Employers, groups of employers or industry groups may voluntarily adopt Gender Equality Action Plans under the Act, which set clear time-bound targets for achieving greater gender equality in their workplace.

Recommendation 12: Voluntary Gender Equality Action Plans may be legally recognized under the SDA

The Sex Discrimination Act 1984 (Cth) (SDA) should be amended to provide that voluntary Gender Equality Action Plans which are compliant with the SDA (for example, as a special measure) may be legally recognised under the Act.

• Compliance with Voluntary Action Plans legally recognised under the SDA would create a presumption of compliance with the SDA and FWA, a defence to a complaint under the SDA or FWA, or be admissible as evidence in relevant proceedings under the SDA, as appropriate;
• Non-compliance with Action Plans under the SDA would constitute a breach of the SDA (and potentially FWA); and
• The SDC would have the discretion to commence an action in the Federal Court for breach of the SDA for non-compliance with an Action Plan under the SDA.

Recommendation 13: Coverage to Government and Statutory Authorities

The EOWA Act should be amended to cover Australian Government departments and statutory agencies with 100 employees or more

Recommendation 14: Identifying all non-reporting employers

A mechanism should be established to ensure that all covered employers are notified to the Agency, for example, through amending the Income Tax Assessment Act 1936 (Cth) to enable the Agency to receive an annual list of all organisations employing 100 people or more. Pending amendment, the Agency should conduct a high profile campaign to alert all covered employers of their legal obligations under the Act.

Recommendation 15: Pay Equity as an ‘employment matter’

Pay equity should be specified in the Act as a separate ‘employment matter.

Recommendation 16: National Pay Equity Strategy

The Agency should partner with the SDC/AHRC to jointly play the lead role in developing the National Pay Equity Strategy for closing the gender pay gap in Australia, including:

• Partnering with the SDC/AHRC as the lead agency to develop National Gender Equality Benchmarks and Indicators for Australia, including regarding pay equity (see further National Gender Equality Benchmarks and Indicators, above);
• Implementing the Pay Equity Tool with employers; and
• Developing policy for making pay rates transparent in the private sector, for example, by making contractual secrecy clauses that prevent employees discussing their pay with colleagues unenforceable.

Recommendation 17: Targets on Government Boards

The Australian Government should set a minimum target of 40 per cent of each gender on all government boards to be achieved within three years. These targets should be publicly disclosed, time bound and regularly reported on in a transparent manner.

Recommendation 18: ASX Voluntary Targets on Boards

The ASX Corporate Governance Principles and Recommendations should be amended to provide that:

• ASX companies be required to set their own gender diversity targets at both Board, and Senior Executive Level, at three and five year time frames;
• Reporting on achievement of gender diversity targets be included in the Annual Report to the ASX, by exception reporting; and
• ASX companies include in their Annual Report to the ASX a statement on compliance with their obligations under the Equal Opportunity for Women in the Workplace Act (or its replacement), by exception reporting.

Recommendation 19: Other ASX Strategies

ASX companies should consider the following strategies to improve gender equality at senior levels:

• Create an additional board position reserved for women, as a one off fast tracking measure immediately;
• Ensure all vacant board positions are fully advertised, with clear competencies set, and transparent selection processes used for appointments; and
• Ensure senior women are consulted during selection processes.

Recommendation 20: Gender quotas after five years if lack of progress

The strategy to improve gender equality at senior levels of business has two phases. Phase 1 requires companies to set their own targets and report regularly on progress

Phase 2 is designed to commence after five years if companies are not at a minimum of 40 per cent of both genders on publicly listed boards.

Phase 2 involves the government setting mandatory quotas for all government and publicly listed boards. Failure to meet these quotas will result in financial or other penalties.

The Australian Government should promote an aspirational target of 40 per cent gender balance on all boards in Australia, to be reviewed after five years. If this target is clearly not being met, the Australian government should legislate to require publicly listed companies to achieve a mandatory gender diversity quota of 40 per cent within a specified time frame, failing which penalties will be imposed.

Recommendation 21: Implementing the Recommendations of the SDA Review

The Australian Government should implement the recommendations of the 2008 Report of Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth). In particular, the SDA should be amended to:

• Ensure equal coverage for both women and men;
• Extend protection from discrimination in employment on the grounds of family and caring responsibilities to cover responsibilities across the life-cycle, including creating a positive obligation on employers to reasonably accommodate the needs of pregnant workers or workers with family or carer responsibilities;
• Place a positive obligation on employers to eliminate discrimination and promote gender equality;
• Provide for co-regulation of Gender Equality Standards negotiated by the Agency (see above Recommendation 6);
• Strengthen legal protection from sexual harassment in Australian workplaces; and
• Empower the SDC/AHRC to:
  1. Undertake formal inquiries in relation to the elimination of discrimination and promotion of gender equality
  2. Intervene, or appear as amicus curiae, as of right in relevant proceedings, including proceedings under the FW Act 2009 (Cth)
  3. commence proceedings for breaches of the SDA, without requiring an individual complaint (and power for the AHRC to commence action in the Federal Court for a breach of the SDA)
  4. certify Special Measures, upon application by the Agency, or an employer
  5. Require the SDC/AHRC to notify the Agency and the FWO/FWA where action above is taken in relation to gender equality in the workplace
  6. Require the SDC to independently monitor progress in achieving gender equality in Australia, and to report to Parliament at a minimum of every two years, including regarding gender equality in Australian workplaces, against National Gender Equality Benchmarks and Indicators

Recommendation 22: Coordinating action between the FWO/FWA and the SDC/AHRC

The FWO should be required to notify the Agency and SDC/AHRC if:

• It commences an application under s 682 of the FW Act 2009 which relates to adverse action against an existing or prospective covered employee because of a relevant protected attribute, being sex, marital status, family or carer’s responsibilities and pregnancy; or
• A Fair Work Inspector issues a compliance notice where the Inspector reasonably believes that a person has contravened relevant provisions of the FWA⁷ or a Fair Work Instrument, including amongst other things, relevant provisions of the National Employment Standards,⁸ or an equal remuneration order

Recommendation 23: Reporting of Data by the FWA/Ombudsman

The FWA/Ombudsman should be required to report annually to the SDC/Commission disaggregated data and analysis required by the SDC/Commission to report on progress to achieve gender equality in Australian workplaces, in accordance with the National Gender Equality Benchmarks and Indicators

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Conclusion

It is well accepted that despite decades of anti discrimination law women still face significant attitudinal, economic and systemic barriers to fully participating in the workforce. These issues go directly to the social inclusion, and so the human rights of women.

The Commission welcomes the focus of the review on identifying means to deliver better equity outcomes. The Commission looks forward to working with the community, public and private sectors and other human rights bodies to contribute to the implementation of the recommendations of the review.

If you have any enquiries regarding this correspondence please contact Michelle Burrell on 03 9281 7166 or michelle.burrell@veohrc.vic.gov.au

1. ABS (2009) Labour Force Survey, Australia, June 2009, Cat 6202.
2. Women constitute 70 per cent of the part time workforce. Ibid.
3. ABS (2009) Average Weekly Earnings, Australia, May 2009, Cat 6302.
4. Department of Justice [Victoria], (2009) An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report.
5. It is also necessary for the Agency to work closely with other key government departments, including the Australian Government Office for Women and Office for Work and Family. However, these links are internal to the Australian Government, and would not be suitable for legislative formalisation.
6. Maxine Morand, Minister for Women’s Affair, ‘Supporting the Victorian community to reduce the pay gap’ (Press Release, 1 September 2009).
7. Relevant provisions would be defined to include adverse action on ‘gender equality employment matters’, being sex, marital status, family or carer’s responsibilities and pregnancy.
8. Relevant provisions of the National Employment Standards would be defined to include the NES on unpaid parental leave, and rights in relation to family and carers leave and responsibilities.

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