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Equal Opportunity for Women in the Workplace Amendment Bill 2012

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Equal Opportunity for Women in the Workplace Amendment Bill 2012

Australian Human Rights Commission Submission to the Senate Education, Employment and Workplace Relations Commitee

12 April 2012

Table of contents

1 Introduction

  1. The Australian Human Rights Commission makes this submission to the Senate
    Education, Employment and Workplace Relations Committee in its Inquiry into the
    Equal Opportunity for Women in the Workplace Amendment Bill 2012.

2 Summary

  1. The Commission welcomes the introduction of the Equal Opportunity for Women
    in the Workplace Amendment Bill that proposes amendments to the Equal
    Opportunity for Women in the Workplace Act 1999     (the Act) and the
    Equal Opportunity for Women in the Workforce Agency (the Agency).

  2. The Commission has been advocating for reforms to the Act and Agency that
    strengthen the capacity of the Act and Agency to promote gender equality in
    workplaces. See, for example, the Commission’s submission to the Inquiry into the Equal Opportunity for Women in the Workplace Act 1999 and
    Equal Opportunity for Women in the Workplace Agency     in
    2009.[1]

  3. The Commission welcomes the reforms proposed in the Bill as important
    measures to strengthen Australia’s national laws and institutions that
    regulate gender equality in Australian workplaces.

  4. The Commission notes that the proposed amendments also correspond positively
    with the recommendations of the Review of the Equal Opportunity for Women in
    the Workplace Act 1999 - KPMG Consultation
    Report    .[2]

  5. The Commission commends the consultation process undertaken with employer
    groups, employee groups, and other stakeholders, in the development of this
    Bill, and notes the Bill reflects an intention for such consultations to be a
    feature of the process for future reforms.

  6. The Commission also welcomes the preparation of the Statement of
    Compatibility with Human Rights prepared for the Bill.

3 Recommendations

  1. Recommendation: The Australian Human Rights Commission recommends that the
    Bill be adopted in full.

4 Provisions
of the Equal Opportunity for Women in the Workplace Amendment Bill 2012

  1. The Bill seeks to:

  • Amend the title of the Act to ‘Workplace Gender Equality Act
    2012’ and rename the Agency the Workplace Gender Equality Agency’
    and the office, ‘the office of the Director of Workplace Gender
    Equality’. [3]

  • Amend the objects to the Act:


    • (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.[4]


  • Expand the coverage of the Act to include men and
    women.[5]


  • Empower the Agency to develop, in consultation with relevant employers and
    employee organisations, benchmarks in relation to gender equality
    indicators. [6]


  • Ensure employers prepare a public report in writing containing information
    relating to the employer and to the gender equality indicators. The public
    report must be signed by the Chief Executive Officer of the relevant
    employer.[7]


  • Empower the Agency, by electronic or other means, to name employers as
    having failed to comply with the Act and set out details of the noncompliance. [8]


  • Empower the Minister (by 1 April 2014), by legislative instrument, to set
    minimum standards in relation to specified gender equality indicators, specified
    relevant employers and specified reporting periods. [9]

5 Objects of the
Act

  1. The Commission welcomes the reforms proposed in the Bill as important
    measures to strengthen Australia’s national laws and institutions that
    regulate gender equality in Australian workplaces.

  2. The Commission has previously advocated strengthening the capacity of the
    Act and Agency to promote gender equality in
    workplaces.[10]

  3. In 2009, the Commission called for several objectives to drive the reform of
    the EOWW Act and Agency and associated legislative and institutional
    arrangements. These were:


    • greater clarity and cohesion amongst national regulatory schemes;


    • promotion of gender equality rather than equal opportunity for women;


    • improved transparency and accountability at the national level;


    • greater emphasis on outcomes rather than processes in mandatory Employer
      Reporting Obligations;


    • greater certainty for business and employers;


    • full coverage of employers;


    • targeted effort to close the gender pay gap; and


    • special measures to fast track achieving substantive equality in
      leadership.


  4. The Commission welcomes the amendments to the objects of the Act which are
    focused on gender equality, ensuring pay equity for women and men and ensuring
    both men and women have access to employment mechanisms that support family and
    caring responsibilities.


  5. The Commission welcomes the expansion of the Act to include men and women.
    This is consistent the Sex and Age Discrimination Legislation Amendment Act
    which, came into effect on 20 June 2011, and provides greater protections for
    men and women against discrimination and sexual harassment by:


    • establishing breastfeeding as a separate ground of discrimination;


    • extending protections from discrimination on the grounds of family
      responsibilities to all areas of employment; and


    • ensuring the Act applies to men and women equally.

6 Reporting

  1. In 2009 the Commission called for the current
    Employer Reporting Obligations to EOWA to be reformed so that reporting focuses
    on outcomes achieved by employers to progress substantive gender equality,
    rather than on the methods used.[11]

  2. The Commission recognises that regulatory burdens need to be tightly linked
    to the core objectives of the regulatory system. The key objective of the
    regulation in this area is to progressively achieve substantive equality
    within Australian businesses and other employer organisations, rather than focus
    on processes of attainment. Employer reporting obligations should be guided by
    the principle ‘better reporting, not more reporting.’

  3. Whilst the gathering of information from employers about strategies used to
    achieve greater gender equality may be useful for sharing knowledge and
    innovative ideas, this should not be the focus of regulated reporting to the
    Agency. The Employer Reporting Obligations should be developed in order to track
    progress against key indicators of progress, including:


    • workforce profiles;


    • decision-making and leadership;


    • pay rates and equity;


    • sexual harassment and discrimination; and


    • flexible work arrangements.


  4. Outcome-based reporting will generate greater knowledge about the extent to
    which change is actually being achieved within the workplace. It will provide a
    more accurate representation of the extent of real reform within workplace
    profiles, conditions and cultures.

6.1 Simplifying and streamlining reporting

  1. The Commission welcomes the introduction of a new reporting framework in
    which relevant employers are required to report against gender equality
    indicators.

  2. The simplified outline of the Act highlights that:


    • the Act requires employers to lodge reports each year containing information
      relating to various gender equality indicators (for example, equal remuneration
      between women and men);


    • these reports will be available to the public, subject to some exceptions
      for information that is personal information, information relating to
      remuneration and information of a kind specified by the Minister;


    • the Agency may review a relevant employer’s compliance with this Act
      by seeking further information from the employer; and


    • if a relevant employer fails to comply with this Act, the Agency may name
      the employer in a report given to the Minister or by electronic or other means
      (for example, on the Agency’s website or in a
      newspaper).

6.2 Enhancing the Agency’s Advice and
Education Functions

  1. The Bill introduces new functions for the Agency, including to develop, in
    consultation with relevant employers and employee organisations, benchmarks in
    relation to gender equality indicators. Benchmarks are intended as a way for
    the Agency to collect, analyse and express the data collected from public
    reports in a useful and meaningful way. Employers will be able to compare their
    workplace outcomes and practices in relation to their own performance and their
    industry peers each year.

  2. The Agency will also offer targeted and additional advice and assistance to
    relevant employers if they fail to meet a minimum standard. The improved
    coverage of the Act will enable the Agency to extend its advice and education
    functions to all employers, not just those who are required to
    report.

6.3 Strengthening the Compliance Framework

  1. The Bill clarifies and improves transparency associated with compliance with
    the Act and the consequences of non-compliance. Reports will be required to be
    accessible by employees and shareholders, and employees and employee
    organisations will be provided with the opportunity to comment.

  2. The Agency may check compliance by requiring a relevant employer to give the
    Agency information that relates to the employer’s compliance with the Act
    or to the employer’s performance against the minimum standards.
    Consequences for non-compliance with the Act, without reasonable excuse, include
    naming the employer in a report to the Minister or naming the employer by
    electronic or other means, such as in a newspaper.

  3. Relevant employers who fail to comply with the Act may not be eligible to
    compete for contracts under the Commonwealth procurement framework and may not
    be eligible for Commonwealth grants or other financial assistance.

7 Statement of
Compatibility with Human Rights

  1. The Statement of Compatibility with Human Rights clearly identifies the full
    range of international human rights standards and Conventions relevant to this
    Bill.

  2. The Bill outlines important measures that will contribute to the realisation
    of the rights identified in the Statement of Compatibility, as well as to
    Australia’s meeting its human rights obligations in relation to the
    Conventions identified.

  3. The improved reporting mechanisms in the Bill, including the requirement to
    report against gender equality indictors, and in future the benchmarks and
    minimum standards, will provide an important means of monitoring the realisation
    of the human rights standards identified in the statement of compatibility.

  4. The Commission notes that the standards relating to equal pay in the Fair
    Work Act 2009     (Cth) are higher than the standards identified in the ILO
    instruments relating to equal pay. To the extent that the international
    Conventions outline a minimum level of obligations, and the national standards
    rise above them, it is important for the Bill to be consistent with the higher
    set of standards, in this instance, the Fair Work Act.

[1] Australian Human Rights
Commission, Submission to the Inquiry into the Equal Opportunity for Women in
the Workplace Act 1999 and Equal Opportunity for Women in the Workplace Agency (2009). At http://humanrights.gov.au/legal/submissions/2009/20091030_EOWA.html (viewed 27 March 2012).

[2] Office
for Women, Department of Families, Housing, Community Services and Indigenous
Affairs, Review of the Equal Opportunity for Women in the Workplace Act 1999
- KPMG Consultation Report 92009). At http://www.fahcsia.gov.au/sa/women/pubs/general/eowa_kpmg_rpt/Pages/default.aspx

(viewed
27 March 2012).

[3] Equal
Opportunity for Women in the Workplace Amendment Bill 2012 (Cth),cl
1.

[4] Above cl 3.

[5] Above cl
11.

[6] Above cl
35.

[7] Above cl
44.

[8] Above cl 55.

[9] Above cl
55.

[10] Australian Human Rights
Commission, Submission to the Inquiry into the Equal Opportunity for Women in
the Workplace Act 1999 and Equal Opportunity for Women in the Workplace Agency (2009). At http://humanrights.gov.au/legal/submissions/2009/20091030_EOWA.html (viewed 27 March 2012).

[11] See
Equal Opportunity from Women in the Workplace Agency, Public Report
form. At www.eowa.gov.au/Reporting_And_Compliance/What_do_I_Need_to_Include/Public_Report_Form.asp (viewed 27 March 2012).