CHAPTER 1


CHAPTER 1

Background

Reference

1.1        On 1 March 2012, the Senate referred the Equal Opportunity for Women in the Workplace Amendment Bill 2012 (the Bill) to the Senate Education, Employment and Workplace Relations Legislation Committee for inquiry and report by 8 May 2012.

Conduct of the inquiry and submissions

1.2        The committee advertised the inquiry on its website, calling for submissions by 23 March 2012. The committee also wrote to a number of organisations inviting submissions by this date, with further invitations being subsequently issued with a closing date of 5 April.

1.3        The committee received 26 submissions, as listed in Appendix 1.

1.4        A public hearing was held in Melbourne on 18 April 2012. The witness list for the hearing is at Appendix 2.

The purpose of the Bill

1.5        The Bill seeks to amend the Equal Opportunity for Women in the Workplace Act 1999 (the Act) to reflect a proposed new focus of the Act on improving gender equality in the workplace. Specific recognition is made of equality in remuneration and the centrality of family responsibilities to the achievement of gender equality. The following proposed amendments reflect this focus:

  • the name of the Act to be amended to Workplace Gender Equality Act 2012;
  • the coverage of the Act to be amended to include all employers and employees in the workplace;
  • the introduction of a new reporting framework in which relevant employers are required to report against gender equality indicators; and
  • the introduction of amendments relating to transparency regarding compliance with the Act and the consequences of non-compliance.

1.6        The Bill also seeks to change the name of the Equal Opportunity for Women in the Workplace Agency to the Workplace Gender Equality Agency (the Agency) and the title of the Director of the Agency to the Director of Workplace Gender Equality.

Background

1.7        This Bill would give effect to a 2010 government commitment to support gender equality and workforce participation and flexibility by amending and improving the Act. Amendments contained within this Bill are aimed at making both the Act and the Agency more effective and efficient.

The EOWW Act

1.8        The EOWW Act was originally enacted as the Affirmative Action (Equal Employment Opportunity for Women) Act 1986, and has been a central part of Australia's workforce participation and gender equality legislative framework ever since. Its purpose was enunciated by then-Prime Minister, the Hon. Bob Hawke:

This legislation is necessary to ensure that all large employers take seriously their obligations to their women employees. The changing role of women in our society is reflected, to a large extent, in the changing patterns in the workforce. The Government is determined that women should be able to enter and compete in the labour market on an equal footing with men and that outdated prejudices or conventions should not prevent them from fully participating. Neither individual employers nor the nation can afford to waste the valuable contributions which women can, and do, make to our economy. Affirmative action programs are designed to ensure that any existing discrimination is identified and removed, and that equal opportunity is a reality in the large work places in this country.[1]

1.9        The Affirmative Action (Equal Employment Opportunity for Women) Act was reviewed in 1999. The Act was subsequently amended in response to calls from employers and the community at the time, recognising that employers largely had relevant processes in place but that regulatory change was needed in order to drive action. A key term of reference for the 1999 review was to reduce the regulatory burden on business whilst achieving better outcomes for equality.[2]

1.10      As it stands, the EOWW Act requires relevant employers to promote equal opportunity for women in the workforce. Its principal objectives are to:

  • promote merit-based employment;
  • promote the provision of equal employment opportunity for women and the elimination of direct and indirect discrimination; and
  • foster consultation between employers on issues relating to equal opportunity for women.[3]

1.11      Relevant employers are deemed to be organisations with 100 or more employees, but do not include public sector employers. They are collectively known as 'reporting organisations', and their identification relies primarily on disclosure and self-identification by organisations.

Review of the EOWW Act

1.12      On 6 June 2009 the government announced a new review of the Act, including a review of the Agency. [4] The review's two key terms of reference were:

  • consider the effectiveness of the existing legislation and arrangements in delivering equal opportunity for women;

...

  • consider opportunities to reduce the cost of existing regulation and/or ways to ensure that any new legislation is cost-effective and well-targeted.[5]

1.13      The review examined the effectiveness and efficiency of the legislation in promoting equal opportunity for women in the workplace, with a view to identifying aspects which were working and those which required a renewed focus. It was overseen by a project reference group which included representatives from the Australian Council of Trade Unions (ACTU), the Australian Industry Group (AIG), the Business Council of Australia and other key stakeholders.[6]

1.14      A large number of submissions were made to the review, and a variety of approaches to pursuing gender equality canvassed. Ultimately, there was strong support for the existing approach, 'based significantly on reporting, education and cultural change, but with modernisation and refinement to make it more effective and more efficient.'[7]

1.15      Acting on the review, the government announced a package of reforms to:

  • amend the name and objects of the Act;
  • improve the coverage of the Act;
  • enhance the Agency's advice and  education functions;
  • simplify and streamline reporting; and
  • clarify the compliance framework.[8]

1.16      A full report on the review is available on the Department of Families, Housing, Community Services and Indigenous Affairs website.[9]

1.17      The Bill in question reflects the extensive consultation undertaken during and after the 2009 review of the Act.

Key provisions of the Bill

Part I

1.18      Part I of the Bill outlines the main proposed amendments to the Act. Clause 1 would replace the words 'equal opportunity for women' with 'gender equality', changing the name of the Equal Opportunity for Women in the Workplace Agency and the office of the Director of Equal Opportunity for Women in the Workplace. The Bill would instead establishe the 'Workplace Gender Equality Agency' and the office of the 'Director of Workplace Gender Equality'.

1.19       The Bill also outlines changes to be made to the principal objects of the Act. Clause 3 would repeal section 2A of the Act and replace it with the following section:

a)    to promote and improve gender equality (including equal remuneration between women and men) in employment and in the workplace; and

b)   to support employers to remove barriers to the full and equal participation of women in the workforce, in recognition of the disadvantaged position of women in relation to employment matters; and

c)    to promote, amongst employers, the elimination of discrimination on the basis of gender in relation to employment matters (including in relation to family and caring responsibilities); and

d)   to foster workplace consultation between employers and employees on issues concerning gender equality in employment and in the workplace; and

e)    to improve the productivity and competitiveness of Australian business through the advancement of gender equality in employment and in the workplace.[10]

1.20      The new principal objects reflect the change in focus of the Act: to promote gender equality in the workplace and to recognise that equal remuneration and family responsibilities are key components of this equality.

1.21      Clauses 4 through 13 set out definitions for purposes of interpretation.

1.22      Clause 14 explains the new term 'gender equality indicators' (GEIs). The term means:

(a) gender composition of the workforce;

(b) gender composition of governing bodies of relevant employers;

(c) equal remuneration between men and women;

(d) availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;

(e) consultation with employees on issues concerning gender equality in the workplace;

(f) any other matters specified in an instrument under subsection (1A).[11]

Gender Equality Indicators (GEI)

1.23      GEI(a) would build on the existing requirement that employers provide the agency with a workplace profile containing numerical data on gender-specific characteristics of employment matters. Data would be collected on a wide range of employment characteristics, including employment classification and status. In future, standardised data about the gender composition of workforces would enable the aggregation of information both across and within industries and sectors.

1.24      GEI(b) would enable the collection of data on the gender composition of employers' governing bodies. The scope of the term 'governing body' is broad, as defined by clause 15 of the Bill.

1.25      GEI(c) would enable the Agency to collect aggregate information about male and female remuneration where people are performing the same or comparable task within and across occupations and industries. Confidentiality would be provided for under clause 46.

1.26      GEI(d) would allow the collection and use of data concerning the availability and utility of employment terms, conditions and practices as they relate to flexible working arrangements, as well as to arrangements supporting employees with family or caring responsibilities.

1.27      GEI(e) aims to ensure that adequate consultation on issues concerning gender equality in the workplace takes place between employers and employees.

1.28      GEI(f) would give the Minister the flexibility to specify matters for the purposes of the gender equality indicators by legislative instrument. This is designed to enable responsiveness to future emerging issues.

Parts II, III and IV

1.29      Clauses 27 and 28 pertain to the application of the Act, specifically, that the Act as amended would carry out objectives set out by a number of international conventions:

  • the Convention on the Elimination of All Forms of Discrimination Against Women;
  • the International Labour Organisation (ILO) Convention concerning Equal Remuneration for Men and Women workers for Work of Equal Value;
  • the ILO convention concerning Discrimination in respect of Employment and Occupation;
  • the ILO Convention concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities;
  • the International covenant on Economic, Social and Cultural Rights; and
  • the Convention on the Rights of the Child.

1.30      Part II of the Act, containing provisions on equal opportunity for women and forming the basis of reporting requirements for relevant employers, would be repealed by the Bill.

1.31      Part III concerns the new Workplace Gender Equality Agency, its functions and powers and the role of the director.

1.32      Part IV of the Act pertains to reporting requirements for relevant employers. These relate to reporting on performance against gender equality indicators. A new Part IVA would be inserted into the Act, outlining how compliance with the Act is to be reviewed and the consequences of non-compliance. The Bill would empower the new Workplace Gender Equality Agency (the Agency) to name employers who fail to comply with the amended Act, and set out details of their non-compliance. The Agency would be empowered to do this by electronic or other means.[12]

Regulation Impact Statement

1.33      A Regulation Impact Statement (RIS) included in the Bill's Explanatory Memorandum examines proposals to reform the Act, drawing from extensive community consultation during the development of the Bill.

1.34      The RIS identifies the costs and benefits presented by the Bill to employees, employers, the community and the economy. The RIS cites the Department of the Treasury's 2010 Intergenerational Report, Australian to 2050: Future Challenges, which projects that growth in productivity will be the main source of improvement in the nation's living standards and gross domestic product (GDP) growth. The RIS also highlights, among other work, research conducted by Goldman Sachs JB Were, which found that closing the gap between male and female workforce participation has significant implications for the growth of the Australian economy.[13]

1.35      The RIS concludes:

As has been widely accepted across the OECD [Organisation for Economic Co-operation and Development], gender equality delivers benefits to individuals, business and the community. It is an appropriate social and economic goal for governments.[14]

Consultation

1.36      The development of this legislation was underpinned by an extensive consultation process, reflecting the importance of the reforms and high level of community interest in gender equality issues, and informed by an implementation advisory group. Members of the advisory group included, among others, ACCI, the ACTU, AIG, ASX Limited, Sydney University and the Fair Work Ombudsman. A full list of membership was provided to the committee.[15]

Acknowledgement

1.37      The committee thanks those organisations and individuals who contributed to this inquiry by preparing written submissions and giving evidence at the hearing.

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