This section provides a brief review and critical comparison of the EOWW Act and EOWA with alternative approaches in Australia and other relevant international jurisdictions.
B.1 Australia
In Australia, EEO policies are mandatory across the federal and state public sectors. Thus, public organisations are required to have EEO plans and to monitor EEO progress. Many private sector organisations have also developed EEO policies, often due to the EOWW Act which requires organisations with more than 100 employees to develop a workplace program to remove barriers to women entering and advancing in their organisation.
In terms of legislation, the Australian Human Rights Commission has jurisdiction under the Australian Human Rights Commission Act 1986, as well as the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004.
EOWA administers the EOWW Act, and provides training and assistance to employers in establishing and developing workplace programs.
The Fair Work Ombudsman, an independent statutory office, was established under the Fair Work Act 2009 to help employees understand and comply with the new workplace relations system. The Fair Work Ombudsman may investigate allegations of workplace discrimination on the grounds proscribed by the Fair Work Act, and can start legal proceedings against an employer for contravening the Fair Work Act.
Furthermore, all states have an independent statutory commission dedicated to promoting EEO principles for all groups in public employment and handling discrimination complaints, such as the New South Wales Anti-Discrimination Board, responsible for administering the Anti-Discrimination Act 1977 (NSW).
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B.2 New Zealand
In New Zealand, while EEO is a legislative requirement of the core public service, part of the state sector and for local governments, there is no corresponding legislation mandating the practice of EEO in the private sector 30. All employers are, however, required to meet their non-discriminatory, statutory obligations under the Equal Pay Act 1972, the New Zealand Bill of Rights Act 1990, and the Employment Relations Act 2000.
While there is no legislative equivalent to Australia's EOWW Act, the government has shown its support for EEO principles by funding the Equal Employment Opportunities (EEO) Trust, which promotes the benefits of implementing EEO principles and EEO best practice in employment. The Human Rights Commission and the EEO Trust have also founded the National Equal Opportunities Network, which provides profiles of EEO groups, information about national and international EEO issues, advice for Crown entities on being a 'good employer', and research and case studies 31.
The Human Rights Commission's 2004 strategic report on EEO in New Zealand, Framework for the Future: Equal Opportunities in New Zealand sets out 14 recommendations for the improvement of EEO in New Zealand, with one being the introduction of legislation that places strong positive duties on all employers, starting with large organisations, to develop and implement EEO plans and regularly report on the outcomes. The report also recommended that any agency established to monitor EEO efforts have sufficient resources to closely analyse EEO practices and sanction and reward organisations' behaviour.
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B.3 European Union
The European Union (EU) supports the principles of EEO with Article 6(1) of the Treaty on European Union stating that 'the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms…principles which are common to the Member States'.
The Treaty of Amsterdam 1999 confirmed that anti-discrimination is a basic founding principle of the EU, and gave the Community new powers to combat discrimination on the grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation, as well as expanding the power to combat sex discrimination. Furthermore, the Treaty of Amsterdam recognises that equal treatment may not be sufficient to overcome manifest disadvantage, and that positive action may be necessary to ensure genuine equality of opportunity.
In 2000, Member States adopted two Directives – the Racial Equality Directive and the Employment Equality Directive. These Directives must be incorporated into national law by the Member States, with Article 13 of the Treaty of Amsterdam giving individuals and groups in the Member States the legal basis to take action. According to both Directives, the burden of proof must shift to the person accused of discrimination once the person bringing the complaint has established facts from which it can be presumed that there has been discrimination. It is then up to the person accused to prove that they did not act in a discriminatory way. Furthermore, the EU has directed that national governments designate or set up a body or bodies to specifically aid people suffering discrimination to pursue their complaints. The organisation and role of each body varies according to the country.
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B.4 United Kingdom
In the United Kingdom, the seven grounds that are protected by EEO policy and legislation are age, disability, gender, race, religion and belief, sexual orientation and gender reassignment. There are a number of pieces of legislation that protect these groups' right to equality, such as the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Human Rights Act 1998, the Race Relations (Amendment) Act 2000, the Civil Partnership Act 2004, the Disability Discrimination Act 1995, the Disability Discrimination Act 2005, and the Equality Act 2006. There are also a number of regulations that have been developed to aid the implementation of the legislation 32.
Under these laws, the onus is on the respondent, usually the employer, to prove that discrimination has not occurred. This means that positive action may be required to prevent litigation. These laws also provide for public sector equality duties, which require all public authorities to check how their policies affect people from different groups and communities in respect of disability, gender and race equality.
The Equality and Human Rights Commission undertakes equality impact assessments of these public authorities' policies, practices and functions, to consider any potential risk to different groups and to consider how the policy may help to further develop equality 33.
In April 2009 the United Kingdom's Equality Bill was published, which aims to simplify Britain's anti-discrimination legislation by replacing the nine major pieces of legislation and around 100 other measures with a single Act. It is intended that the Equality Bill will strengthen Britain's equality law by introducing a new public sector duty to consider reducing socio-economic inequalities and putting an expanded Equality Duty on public bodies, which in addition to covering gender, will also explicitly apply to pregnancy and maternity. The Bill also includes a ban on secrecy clauses on public sector pay 34. There are also requirements for public authorities to prepare and publish a gender equality scheme that must consider the need for objectives to address the causes of any gender pay gap, and be developed through consultation with employees and other key stakeholders. Authorities are required to assess and report on the implementation and impact of their current and proposed actions 35.
The Bill also has provisions to use public procurement to improve equality; banning age discrimination outside the workplace; introducing a power to require gender pay reporting by private sector employers with 250 or more employees 36; extending the scope to use positive action; strengthening the powers of employment tribunals; protecting carers from discrimination; offering new mothers stronger protection when breastfeeding; banning discrimination in private clubs; and strengthening protection from discrimination for disabled people. It is expected that the Bill will come into force in late 2010 37.
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B.5 United States
EEO legislation in the United States reaches both the public and private sector. All federal contractors are required to have an EEO plan in place, which has meant that many private and not-for-profit organisations have implemented such a plan. 38 Voluntary affirmative action plans are permitted under Title VII of the Civil Rights Act 1964.
The US federal government requires departments and agencies to annually formulate affirmative action plans, relating to grounds including sex, for their employees and minority recruitment programs in specific federal job categories. Such programs are also found in the private sector, particularly in large corporations.
The Equal Employment Opportunity Commission (EEOC) has the main responsibility for enforcing the six federal laws prohibiting discrimination and providing oversight and coordination of all federal EEO regulations, practices and policies. 39
The EEOC can consider individual complaints of discrimination, as well as initiate investigations of systemic discrimination, independent of these complaints.
It also has responsibility for the national, annual reporting system covering private and public employers, unions and apprenticeship committees. These organisations must file an annual EEO survey identifying the number of employees, union members, and apprentices by job category, race, sex and national origin. All employers with more than 100 employees or with federal contracts of $50 000 or more must comply with this reporting requirement.
The Office of Federal Contract Compliance Programs is responsible for the enforcement of the mandatory affirmative action policy on the basis of gender and race covering those people employed by federal contractors or subcontractors. 40 The office conducts compliance reviews and investigations and responds to requests for technical assistance with EEO policy analysis.
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B.6 Canada
In Canada, the Employment Equity Act 1995 aims to bring about equal employment opportunity by identifying and eliminating barriers to employment against women, aboriginal peoples, persons with disabilities, and members of visible minorities. Under this Act, federally-regulated employers are required to develop an employment equity plan aimed at promoting a fully equitable workplace. These plans must be developed after consultation with employees, and must institute positive policies and practices and make reasonable accommodations so that the representation of people in designated groups in the employer’s workforce reflects their representation in the Canadian workforce.
Under the legislation, the Canadian Human Rights Commission is responsible for ensuring compliance with the Act. 41 A relevant organisation must prepare an annual report on its employment equity data and activities, with compliance audited by the Commission in a two-phase process. The preliminary assessment phase consists of evaluating the employer's compliance with the nine statutory requirements of the Act. The progress assessment consists of determining the progress made by the employer in continuing to meet the audit requirements assessed in the preliminary phase, with a focus on determining how effectively the employer has made reasonable progress towards implementing its employment equity plan to reduce under-representation.
There are approximately 590 organisations in the federally-regulated private sector and in the federal public service presently covered by the Act 42.