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The EOWW Act was originally enacted as the Affirmative Action (Equal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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