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Inquiry into the Equal Opportunity for Women in the Workplace Act 1999 and Equal Opportunity for Women in the Workplace Agency (2009)

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Inquiry into the Equal Opportunity for Women in the Workplace Act 1999 and Equal Opportunity for Women in the Workplace Agency

Australian Human Rights Commission
Submission to the Australian Government Office for Women

30 October 2009

Table of Contents

 


1 Introduction

  1. The Australian Human Rights Commission (the
    Commission)[1] welcomes the
    opportunity to make this Submission to the Australian Government Review of the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (the EOWW
    Act) and the Equal Opportunity for Women in the Workplace Agency (the
    EOWA).

  2. The Commission is Australia’s national human rights institution.

  3. The Commission has previously made a range of submissions and published
    reports about improving gender equality outcomes in Australian workplaces. The
    Commission refers the EOWA Review to this previous body of work,
    including:

    • It’s About Time: Women, Men, Work and Family (2007);[2]

    • Listening Tour Community Report (2008);[3]

    • Submissions One and Two to the Productivity Commission Inquiry into Paid
      Leave for Parents       (2008);[4]

    • Submission to the Inquiry into Better Support for Carers (2008);[5]

    • Submission to the Senate Committee Inquiry into the Effectiveness of the
      Sex Discrimination Act       (2008) (submission to the SDA
      Review);[6]

    • Submission to the House of Representatives Inquiry into Pay Equity (2008);[7]

    • Submission to the Inquiry into Australia’s Future Tax System
      (Retirement Income System)       (2009)[8] ; and

    • Accumulating Poverty? Women’s experiences of inequality over the
      lifecycle       (2009)[9]

  4. The Commission builds on this body of work in order to present this
    Submission to the EOWA Review. It also makes a range of new recommendations,
    particularly directed to reforms to the EOWW Act and Agency, as well as changes
    to the ASX corporate governance arrangements.

2 Executive
Summary


  1. The EOWA Review provides a unique opportunity to strengthen
    Australia’s national laws and institutions that regulate gender equality
    in Australian workplaces.

  2. Gender inequality continues to be a significant problem in Australia, and
    progress to address this inequality has stalled. For example;

    • Australia is ranked 1st on women’s educational attainment
      but only 50th for women’s workforce participation;

    • Women are only paid 83% of the pay of men for work of comparable value
      (based on ordinary full-time earnings);

    • Women hold only 8.3% of Board Directorships, 2% of CEO Roles, and 10.7% of
      Senior Executive Positions;

    • 22% of women (compared to 5% of men) have experienced sexual harassment at
      work;

    • Almost one in 5 pregnant women in paid employment experience difficulty in
      her workplace linked to her pregnancy;

    • Women continue to do the vast majority of unpaid work, even when they are
      also in paid work; and

    • Women on average accumulate only half the retirement savings of men over
      their lifetime.

  3. The case for reform is clear.

  4. There are several major benefits which would flow from achieving gender
    equality in the workplace. In particular, achieving gender equality will
    significantly improve:

    • women’s economic security;

    • business and organisational performance; and

    • national productivity.

  5. It would also ensure that Australia has met its international human rights
    and labour rights obligations.

  6. Achieving gender equality in Australian workplaces should be a national
    priority.

  7. The EOWW Act and Agency, the subjects of this Review, form one of the three
    major national statutory schemes that regulate gender equality in the workplace.
    The other national statutory schemes are:

    • The Sex Discrimination Act 1984 (Cth) (the SDA), administered by the
      Australian Human Rights Commission (the Commission), including the Sex
      Discrimination Commissioner (SDC); and

    • The Fair Work Act 2009 (Cth) (FWA), administered by Fair Work
      Australia and the Fair Work Ombudsman (FWA/Ombudsman).

  8. Another important regulatory element is the ASX Corporate Governance
    arrangements for publicly listed companies.

  9. Whilst each of these national statutory schemes makes positive contributions
    to promoting gender equality in the workplace, the evidence is clear that the
    current system needs to be reformed.

  10. There are several objectives that should drive the reform of the EOWW Act
    and Agency and associated legislative and institutional arrangements. These
    are:

    • 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.

  11. These objectives are discussed in order
    below.

Greater clarity and
cohesion amongst national regulatory schemes

  1. There is currently a lack of clarity about roles, responsibilities and
    priorities for the EOWW Act and Agency, the SDC/Commission and the
    FWA/Ombudsman. This leads to the national regulatory arrangements being less
    effective than they could be. The Commission proposes that the following lead
    roles and responsibilities for each of the three statutory schemes should
    underpin the reform process:

  2. The EOWA, as a gender specific agency, should lead:

    • coordination within the Australian Government on action to achieve gender
      equality in Australian workplaces in partnership with the Australian Government
      Office for Women (OFW);

    • collaboration with employers, including Australian business, Australian
      Government departments and statutory authorities, to promote strategies, and
      positive action by employers to achieve gender equality in Australian
      workplaces, including through education.

  3. The Commission, represented where appropriate by the SDC, as a statutory
    authority with gender-specific functions and with an established enforcement and
    monitoring role, should lead:

    • enforcement, particularly at a systemic level, to ensure compliance with
      gender equality workplace obligations;

    • education and advocacy about the gender equality rights of workers; and

    • independent monitoring and reporting to the Australian Parliament and the
      public on progress in achieving substantive gender equality, including in
      Australian workplaces.

  4. The FWA/Ombudsman, as general industrial relations mechanisms, should
    collaborate with the:

    • EOWA in its lead roles; and

    • SDC/Commission in its lead roles

    to positively
    contribute to systemic action required to achieve gender equality in Australian
    workplaces.

  5. The EOWA, as the primary agency charged with the promotion of gender
    equality in the workplace as part of the Australian Government, should therefore
    be retained as a stand alone regulator with gender equality in the workplace as
    its sole priority. It should be linked to the participation and employment areas
    of government, and work closely with the SDC/Commission and FWA/Ombudsman to
    drive systemic change within Australian workplaces (see Recommendations 1 and
    2    ).

Promotion of gender
equality rather than equal opportunity for women

  1. The core purpose of the EOWW 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 is
    clearly directed towards promoting equal outcomes for women and men (substantive
    equality) rather than ensuring that women have the same formal opportunities
    (formal equality). It is well established that, in order for women’s
    experience of paid work to be transformed, there may be a need for women to be
    treated differently to men. It is also well established that men may also need
    to have changed experiences of paid work in order to lead to more equal outcomes
    between women and men.

  2. The EOWW Act should therefore be amended to change its name to the Gender
    Equality in the Workplace Act    , the EOWA should be renamed the Gender
    Equality in the Workplace Agency, and the EOWW Act should include the
    achievement of gender equality as a key object (see Recommendations 3 and
    4    ).

Improved transparency and
accountability at the national level

  1. There is also a need for greater transparency and accountability at the
    national level about what is working, and what needs to change, in order to make
    adequate progress in improving gender equality outcomes. At the present time,
    there is a body of excellent research and reporting that is undertaken on
    specific issues about gender equality, both inside and outside of the workplace.
    However, there is no national framework to enable Australia as a nation to track
    systemic changes which impact on overall gender equality outcomes.

  2. In particular, there needs to be an agreed set of national gender equality
    benchmarks and indicators against which progress can be independently monitored.
    This national monitoring framework would enable time-bound targets to be set for
    commitments to improve gender equality outcomes, including in the workforce. The
    national monitoring framework would also inform the design of the mandatory
    employer reporting obligations to the EOWA, discussed further below.

  3. The Commission repeats its earlier recommendations, particularly in its Submission to the SDA Review (2008) that the SDC be given the role of
    independent monitoring and analysis of progress towards achieving gender
    equality in Australia. The Commission should be given the resources to develop
    the National Gender Equality Benchmarks and Indicators, in collaboration with
    the EOWA, the OFW and other key agencies, including the Australian Bureau of
    Statistics (ABS). The Commission, as the fully independent statutory office at
    the national level with gender specific functions, is particularly well placed
    to oversee this development work (see Recommendation 5).

Greater emphasis on outcomes
rather than processes in mandatory employer reporting obligations

  1. The Commission considers that the regulation of employers should be done on
    the principle of better regulation, rather than more regulation.

  2. It proposes that, under the EOWW Act, the design of the mandatory annual
    employer reporting obligations should have a stronger focus on tracking actual
    changes in gender equality within the workplace. This could include, for
    example, changes in the pay gap, flexible work arrangements, and gender
    diversity in leadership roles, rather than processes such as training and
    mentoring schemes.

  3. The EOWA should be required to issue employers with an EOWA Certification
    that they have met their employer reporting obligations, and the Act should
    require that the employer publishes both their report and Certification to all
    staff to enhance accountability back into the workplace. The Certifications
    should also be published in the Annual Report, including ASX Annual Reports
    where applicable.

  4. EOWA certification should be a pre-condition for organisations to enter
    government contracts, or provide the Australian government with goods and
    services.

  5. The EOWA should have the lead role in designing resources for employers to
    improve gender equality outcomes, including through online services.
    Importantly, it should also have the power to go behind employer reports to
    verify the accuracy of reported outcomes.

  6. Finally, in conjunction with the EOWA, employers, groups of employers or
    industries should have the option of developing voluntary Gender Equality Action
    Plans which set clear time-bound targets for improved gender equality and
    strategies for achieving those targets (see Recommendations 6, 7, 8, 9, 10
    and 11    ).

Greater certainty
for business and employers

  1. In order to offer benefits to employer/employer groups for developing
    concrete Gender Equality Action Plans, the Commission also proposes that it be
    possible for these Plans to be submitted, at the option of the employer/employer
    groups, for legal recognition under the SDA as a ‘special measure’
    or legal instrument. This recognition would provide greater certainty for the
    employer/employer groups, operating either as a defence against claims of
    discrimination under the SDA (and claims of adverse action under the FWA) or at
    least creating a presumption of compliance with employer obligations under the
    national gender equality regulatory schemes.

  2. This reform would be a mid-way reform towards the development of standards
    under the SDA (and FWA) that apply more broadly, and the creation of more
    general positive duty obligations on employers under the SDA, both of which were
    proposed by the Commission as ‘options for reform’ as part of its Submission to the SDA Review (2008) (see Recommendation 12).

Full coverage of
employers

  1. Currently, government departments and statutory agencies with 100 employees
    or more are not part of the EOWW Act regulatory scheme. In addition, many
    employers that technically are covered do not currently report, as they are not
    easily identified. The Act should be amended to extend coverage to government
    departments and statutory agencies.

  2. A mechanism should also be established to identify annually all employer
    organisations that have 100 employees or more and advise the EOWA of the names
    of these organisations (see Recommendation 13 and
    14    ).

Targeted effort to close
the gender pay gap

  1. The gender pay gap remains a major problem in Australia, and current
    arrangements for addressing pay inequity are inadequate. Subject to the outcomes
    of the House of Representatives Inquiry into Pay Equity, the Commission proposes
    that the EOWA and the Commission should be funded to enable the SDC to partner
    in the development of a National Pay Equity Strategy. This strategy should
    include the gender pay gap component of the national monitoring framework,
    implementation of the Pay Equity Tool, and making pay rates more transparent
    (see Recommendations 15 and 16).

Special measures to fast track
achieving substantive equality in leadership

  1. The Commission considers that, in light of Australia’s poor record on
    improving women’s leadership roles in Australian businesses, and at board
    level generally, there is a case now for putting in place special measures to
    fast track reform in this area.

  2. The Commission considers that the Australian Government has a leadership
    role to play, and should therefore immediately adopt a mandatory national
    benchmark of 40% gender diversity on all government boards within three years.

  3. For other boards, there should be a two stage reform process. Initially, it
    should be mandatory for all publicly listed companies to adopt three and five
    year disclosable targets for improving gender diversity on both their boards,
    and at senior executive level. The exact target set can be at the discretion of
    the employer during this first stage. These targets should be reported to the
    ASX through the annual reporting process. ASX companies should also be required
    to report on their compliance with employer reporting obligations under the EOWW
    Act, by way of exception reporting.

  4. After five years, if there is a lack of substantial progress, the Australian
    Government should consider introducing mandatory gender quotas for boards, at
    least on ASX publicly listed companies, with penalties for failing to meet
    quotas within a specified period of time (see Recommendations 17, 18, 19 and
    20    ).

Associated
Reforms

  1. The Commission also proposes reforms to the SDA and to the FWA regulatory
    schemes to foster greater links and cohesion amongst the three national
    statutory schemes that impact on gender equality in the workplace.

  2. The SDA should be amended to implement the recommendations of the Senate
    Standing Committee Inquiry into the SDA. In addition, the SDC/Commission should
    be required to notify the FWA/Ombudsman and the EOWA Agency when it commences
    systemic action under the reformed SDA.

  3. The FWA/Ombudsman should also be required to notify the SDC/Commission when
    it commences systemic action to promote gender equality in the workplace,
    particularly when it commences an investigation or proceedings for relevant
    adverse action claims (see Recommendations 21, 22 and 23).

  4. A complete list of Recommendations is set out in Section 3 of this
    Submission. Section 4 presents two diagrams, being the proposed National
    Gender Equality Monitoring Framework    , as well as the proposed Employer
    Compliance Framework    .

  5. Sections 5 to 7 are for Information, with summaries of the nature and
    extent of gender inequality in the workplace (Section 5), why achieving gender
    equality matters (Section 6) and the national legislative and institutional
    arrangements currently in place that regulate gender equality in the workplace
    (Section 7).

  6. Section 8 sets out the detailed Proposals for Reform, and the 23
    Recommendations.

  7. The Submission also provides more detailed information in the appendices,
    including descriptions of Australia’s relevant international human rights
    and labour rights obligations (Appendix 1), the national legislative and
    institutional arrangements (Appendix 2) and comparisons with other countries,
    particularly the United Kingdom, Canada, New Zealand and Norway (Appendix
    3).

3 Table of
Recommendations

Objective

Recommendations

Greater clarity and cohesion amongst national regulatory schemes

Recommendation 1: Status of the EOWA

The EOWA should be the principal 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 2: Statutory Links of the EOWA

The EOWW Act should require the Agency to work closely with the
SDC/Commission and the FWA/Ombudsman as separate statutory agencies regulating
gender equality in Australian workplaces (see specific recommendations for links
between the SDC/Commission and FWA/Ombudsman,
below).[10]

Promotion of gender equality rather than equal opportunity for women

Recommendation 3: Name of the EOWW Act and Agency

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

Recommendation 4: Objects of the EOWW Act

The objects of the EOWW 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.

Improved transparency and accountability at national level

Recommendation 5: Independent Monitoring of National Gender Equality
Benchmarks and Indicators

The Commission, acting through the SDC, should be the lead agency to
partner with the EOWA 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
FWA/Ombudsman, OFW; ABS; and other relevant bodies.

The EOWA and other relevant bodies, including the FWA/Ombudsman and the ABS
should be required to provide the SDC/Commission with 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 Commission, acting through the SDC, should independently report to the
Australian Parliament and the public on progress to achieve gender equality,
including in Australian workplaces, at a minimum every two (2) years.

Greater emphasis on outcomes rather than processes in Employer Reporting
Obligations

Recommendation 6: 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 7: EOWA certification

When employers meet their employer reporting obligations under the EOWW
Act, the EOWA should issue a Certification. Employers should be required to
publish:

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

Recommendation 8: EOWA
certification a pre-condition of entering contracts with government

EOWA Certification should be a pre-condition of providing goods and
services or entering into contracts with Australian Government
departments.

Recommendation 9: EOWA Employer Capacity Building

The 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

EOWA should be empowered to conduct a verification process to establish
compliance by an employer, group of employers, or industry’s compliance
with its obligations under the EOWW Act, including with employer reporting
obligations. EOWA should provide the SDC/Commission and the FWA/Ombudsman with
the results of verification processes conducted under the EOWW 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.

Greater certainty for business and employers

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

The 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 SDA.

Depending on the model chosen, compliance with voluntary Action Plans
legally recognised under the SDA could:

  • 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.

Full coverage of employers

Recommendation 13: Coverage to Government and Statutory
Authorities

The EOWW 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 EOWA to receive an annual list of
all organisations employing 100 people or more. Pending amendment, EOWA should
conduct a high profile campaign to alert all covered employers of their legal
obligations under the EOWW Act.

Targeted effort to close the gender pay gap

Recommendation 15: Pay Equity as an ‘employment
matter’

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

Recommendation 16: National Pay Equity Strategy

EOWA should partner with the Commission, acting through the SDC, 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 Commission 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.

Special measures to fast track achieving substantive equality in
women’s leadership

Recommendation 17: Targets on Australian Government boards

The Australian Government should set a minimum target of 40% of each gender
on all government boards to be achieved within three (3) 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 (3) and five (5) 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 EOWW 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; and
  • Phase 2 is designed to commence after 5 years if companies are not at a
    minimum of 40% of both genders on publicly listed boards. Phase 2 involves the
    government giving serious consideration to mandatory quotas for all government
    and publicly listed boards. Failure to meet these quotas would result in
    financial or other penalties.

The Australian Government should
promote an target of 40% 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 seriously consider legislating to require publicly
listed companies to achieve a mandatory gender diversity quota of 40% within a
specified time frame, failing which penalties will be imposed.

Associated reforms

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).[11] 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;
  • Strengthen legal protection from sexual harassment in Australian
    workplaces;
  • Empower the Commission, where appropriate acting through the SDC, to:
    • undertake formal inquiries in relation to the elimination of discrimination
      and promotion of gender equality;
    • intervene, or appear as amicus curiae, as of right in relevant proceedings,
      including proceedings under the FWA;
    • commence proceedings for breaches of the SDA, without requiring an
      individual complaint; and
    • certify Special Measures, upon application by EOWA, or an
      employer.
  • Require the SDC/Commission to notify the EOWA and the FWA/Ombudsman where
    action above is taken in relation to gender equality in the workplace; and
  • Require the Commission, acting through the SDC, to independently monitor
    progress in achieving gender equality in Australia, and to report to Parliament
    at a minimum of every two (2) years, including regarding gender equality in
    Australian workplaces, against National Gender Equality Benchmarks and
    Indicators

Recommendation 22: Coordinating action between the
FWA/Ombudsman and the SDC/Commission

The FWA/Ombudsman should be required to notify the EOWA and SDC/Commission
if:

  • it commences an application under s 682 of the FWA 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;
  • a Fair Work Inspector issues a compliance notice where the Inspector
    reasonably believes that a person has contravened relevant provisions of the
    FWA[12] or a Fair Work Instrument,
    including amongst other things, relevant provisions of the National Employment
    Standards,[13] 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.




4 Diagrams of proposed
national gender equality monitoring and employer compliance frameworks

4.1 National gender
equality monitoring framework

Diagram - National gender equality monitoring framework

4.2 Employer
Compliance Framework

Diagram - Employer Compliance Framework


5 Identifying the
problem: is there gender equality in Australian workplaces?


This section is for Information.

It explains that gender inequality in the workplace remains a major
national problem.

The section provides an overview of the ways in which women experience
gender inequality in paid work. For example:

  • Australia is ranked 1st on women’s educational attainment
    but only 50th for women’s workforce participation;
  • Women are only paid 83% of the pay of men for work of comparable value
    (based on ordinary full-time earnings);
  • Women hold only 8.3% of Board Directorships, 2% of CEO Roles, 10.7% of
    Senior Executive Positions and 5.9% of Executive Line Management Positions;
  • 22% of women (compared to 5% of men) have experienced sexual harassment at
    work;
  • Almost one in 5 pregnant women experience difficulty in their workplace
    linked to their pregnancy;
  • Women continue to do the vast majority of unpaid work, even when they are
    also in paid work; and
  • Women accumulate only half the retirement savings of men over their
    lifetime.


5.1 Introduction:
findings of the Listening Tour

  1. In 2007, Elizabeth Broderick was appointed as the new federal SDC at the
    Commission. Commissioner Broderick embarked on a national Listening Tour over
    the first eight months of her term. The Listening Tour was designed to assess
    the current state of gender equality in Australia through hearing the direct
    experiences of men and women.

  2. In July 2008, the SDC released the report setting out her findings from the
    Listening Tour, What matters to Australian women and men: Gender equality in
    2008.    [14]

  3. The key finding of the Commissioner was that progress in achieving gender
    equality in Australia had stalled. [15]

  4. In particular, the Listening Tour confirmed that women do not yet
    enjoy equality in the workplace. Women are still discriminated against in the
    workplace both as individuals and as a group. Women’s full and equal
    participation is impeded by a range of factors including:

    • ongoing direct and indirect discrimination based on sex, pregnancy and
      family responsibilities;

    • limited availability of quality part-time, particularly at senior
      levels;

    • gendered assumptions about women’s roles as carers; and

    • a lack of family friendly work policies.

  5. Many Listening Tour participants brought the SDC’s attention to the
    gendered assumptions, attitudes, stereotypes and discrimination that contribute
    to women’s inequality. One woman spoke of her battle to gain a promotion
    in a male-dominated industry:

    I was overlooked for a position which
    I knew I had the skills and experience for. When I asked about it, management
    said, “That would never happen - she is a female”. I asked Human
    Resources what avenues I had and they said, “If you want to keep working
    there you should keep your mouth
    shut”.[16]

  6. The findings of the Listening Tour about gender inequality in the workplace
    are consistent with discrimination complaints lodged under the SDA. In 2008/09
    the vast majority of SDA complaints related to employment
    (91%).[17] Twenty-two percent of
    complaints alleged pregnancy discrimination and 22% of complaints alleged sexual
    harassment.[18]

  7. This section of the Submission sets out the extent to which women experience
    substantive inequality in Australian workforces, including in:

    • workforce participation;

    • pay equity and starting salaries;

    • management and leadership positions;

    • prevalence of sexual harassment;

    • pregnancy discrimination; and

    • the impact of unpaid work and family and carer
      responsibilities.

5.2 Women’s
workforce participation

  1. Whilst women’s participation in the paid workforce has risen
    dramatically in the last three
    decades,[19]Australia lags behind
    many other developed countries in terms of women’s workforce participation
    rates, ranked number 50 by the World Economic
    Forum.[20]

  2. As at August 2008, only 57.8% of all women aged 15 years and over were in
    the labour force, making up 45.3% of Australia’s total labour
    force.[21] This may be contrasted
    with Norway, for example, where 69.7% of women are in the labour
    force[22] or New Zealand at
    62.1%.[23] The participation rates
    of mothers with young children are particularly low when compared with
    comparable OECD countries such as Canada, Sweden, the United Kingdom and the
    United States.[24]

  3. Marginalised groups commonly experience additional barriers to participation
    in the paid workforce. Women with
    disability,[25] Indigenous
    women[26] and women from culturally
    and linguistically diverse backgrounds have lower rates of paid workforce
    participation compared to the female
    average.[27] The additional barriers
    experienced by these groups include the non-recognition of overseas
    qualifications, discrimination based on race and disability and limited
    employment opportunities in rural and remote communities.

5.3 Pay
equity and starting salaries

  1. The gender pay gap in Australia persists and is evidence of ongoing
    discrimination against women in the workplace. The gap in ordinary full time
    earnings between women and men is 17.2% as at February
    2009.[28] The gender pay gap is even
    greater when women’s part-time and casual earnings are considered, with
    women earning around two thirds of the amount earned by
    men.[29] Further, women are more
    likely to be working under minimum employment conditions and be engaged in low
    paid, casual and part time work.[30] Australian women are overrepresented in low paid occupations and industries with
    high levels of part time work such as retail, hospitality and personal
    services.[31]

  2. Graduate Careers Australia’s annual Australian Graduate Survey details the average starting salaries of both male and female graduates. The
    data shows that the gender pay gap begins as soon as women enter the workforce.
    In 2008, new male graduates earned median starting salaries of $47,000 compared
    to $45,000 for women.[32] Between
    1999 and 2005 there was positive trend with women’s salaries increasing
    from 92.3% to 97.5%. In 2006, women’s salaries dropped to 95.2% and
    further still to 93.3% in 2007. There was a slight recovery in 2008 when
    women’s salaries increased to 95.7% of their male
    counterparts.[33]

  3. The gender pay gap is particularly pronounced in ASX200 companies. Among
    the population of key management personnel for whom remuneration data was
    available, female median remuneration is shows a gender pay gap of 28.3% which
    is 11.1% higher than the national average gender pay
    gap.[34]

5.4 Women
in management and leadership positions

  1. Despite women constituting 45% of the total workforce in Australia, women
    are underrepresented in leadership and management positions in virtually all
    sectors of the paid workforce, including the public service, academia,
    corporations and boards.

  2. [Public Service] Women comprise 57.6% of Commonwealth Public Service
    employees. Women outnumber men at all junior classifications in the Commonwealth
    Public Service but are under-represented at higher classifications. The gap in
    women’s participation increases with seniority with women comprising 45%
    of Executive Level employees and only 37% of the Senior Executive
    Service.[35]

  3. [Academia] While women account for approximately 50% of lecturing
    staff in Australian universities, their numbers decrease significantly with
    seniority. Women account for 39% of senior lecturing staff and only 24.5% of
    academic staff above senior lecturer. At the University of Sydney, for example,
    only 14.5% the academic staff at professorial level and above are
    women.[36] The majority of women in
    the tertiary education sector can be found at the non academic
    classifications.[37]

  4. [Corporate] The representation of women in executive manager
    positions in ASX200 companies has decreased since the 2006 Australian Census
    of Women in Leadership     when 12% of Executive Managers were women and has
    further regressed below the standard set in 2004 when 11.4% of Executive
    Managers were women. [38] Women hold
    only 2% of Chief Executive Officer Positions and 10.7% of Executive Manager
    Positions. [39]

  5. There are also signs that this downward trend is likely to continue and
    possibly worsen in the coming years as the already low number of women in feeder
    positions to top leadership appointments decreases. Experience in line
    management positions is considered essential for progressing to top corporate
    positions. In 2008, women held 5.9% of the Line Executive Management positions.
    This was a decrease from 7.5% in
    2006.[40] A female participant in
    the Listening Tour pointed out the disparity in what employers say and what they
    do in terms of promoting women’s leadership:

    [Our CEO] has
    publicly said he would have 50 per cent women in his work force if he could.
    But then he also... set up an executive structure that is going to hinder his
    ability to get women into those senior positions by setting meeting times that
    women with caring responsibilities won’t be able to
    attend.[41]

  6. The majority of women who make it into executive management roles in ASX200
    companies are still clustered in support roles where they are responsible for
    supporting main business functions (including Human Resources, Legal, Public
    Relations) rather than line management roles (which hold responsibility for
    profit and loss or direct client
    service).[42]

  7. Female executive managers are far less likely to be classified as line
    managers than male executive managers. Only 39.6% of female executive managers
    are considered line managers (the remaining 60.4% of female managers are
    considered support managers).[43] By
    comparison, the majority of male executive managers (75.3%) are line managers
    (with the remaining 24.7% of male managers classified as support
    managers).[44]

  8. [Women on Boards] EOWA’s 2008 Census of Australian
    Women’s Leadership in ASX200 companies revealed women chair only 2% of
    ASX200 companies (that is four boards) and hold only 8.3% of board
    directorships. While there has been an overall increase in the total number of
    board positions since 2006, the number of these seats held by women has not kept
    up at the same pace.[45] While two
    years ago 12% of ASX200 companies boasted more than 25% of their board directors
    were women, in 2008 this number has halved to
    6%.[46] This data represents a
    comprehensive decline since
    2006.[47]

  9. This compares with 14.8% in the United States, 14.3% in South Africa, 11% in
    the UK, 10.2% in Canada and 8.7% in New Zealand. [48]

  10. While 54.5% of ASX200 companies have at least one woman in an executive
    management position, again this rate is lower than international comparators. In
    the US 85.2% of top companies have at least one woman in executive management
    positions as do 65.6% of Canadian companies, 60% in the UK and 59.3% in South
    Africa.[49] This is a dramatic
    change from the 2006 Census when Australia was outperformed only by the US.

  11. The representation of women on Government appointed boards and committees is
    higher than that of the private sector but still not representative of
    women’s interests or ability. The OFW reports that as at 30 June 2008,
    women comprise 33% of the total membership of Australian Government boards and
    bodies and 22% of Chair or Deputy Chair
    positions.[50] There is a higher
    representation of women on boards where the Australian Government has total
    control over the appointments. [51] However, the percentage of women on Government appointed boards varies
    significantly across departments. In 2006, just over half of the members of
    Government boards and bodies in the Department of Families, Housing, Community
    Services and Indigenous Affairs were women. Government boards and bodies in the
    Departments of Immigration and Multicultural
    Affairs,[52] Health and Ageing and
    Human Services also had high rates of women’s participation (over
    40%).[53] The Departments of
    Agriculture, Fisheries and Forestry; Defence and Finance and Administration had
    the lowest rate of women’s representation on Government boards and bodies
    (less than 20%).[54]

5.5 Prevalence of
sexual harassment

  1. The continuing presence of sexual harassment is a key marker of gender
    inequality in the workplace and one reason women do not progress. In 2008, the
    Commission conducted a national telephone survey to investigate the nature and
    extent of sexual harassment in Australian workplaces. The survey found that 22%
    of women and 5% of men aged 18-64 have experienced sexual harassment in the
    workplace in their lifetime.[55] While this was a slight decrease from the results of the same telephone survey
    in 2003, what was concerning was the lack of understanding about what sexual
    harassment is. Around one in five (22%) respondents who said they had not
    experienced ‘sexual
    harassment’[56] then went on to report having experienced behaviours that may in fact amount to
    sexual harassment under the Sex Discrimination Act 1984 (Cth). [57]

  2. Sexual harassment occurs across all sizes of employer. The 2008 Survey
    reported that for those who experienced sexual harassment in the last five
    years, there was an even spread of employer size: 39% large employers, 30%
    medium employers and 31% small employers. [58] The top three industries identified
    by respondents who experienced sexual harassment in the last five years were:
    health and community services (14%), education (12%) and accommodation, cafes
    and restaurants (10%).

  3. During the Listening Tour a female focus group participant shared with the
    SDC her comments on the constant self surveillance that women become accustomed
    to:

    You wear a sack to not show yourself off, you talk to the safe
    people who you know [at work]. You are constantly thinking about your
    gender.[59]

  4. Over the course of the Listening Tour there was a feeling that sexual
    harassment was almost impossible to eradicate. On this point, one woman
    recounted her experience of hearing her colleague talk about a woman in a
    degrading manner:

    I don’t think there’s any
    organisation that’s ever going to be able to put their hand on their heart
    and say, “We are free of sexual harassment in the workplace”. I was
    absolutely astounded a few weeks ago now. I was having a cup of coffee with a
    colleague and one of them had actually participated in a selection panel
    recently and I literally spat my coffee out because they were talking about one
    of the females that they had interviewed. This guy just turned around and said,
    “and she had the best set of
    tits”.[60]

  5. A similar sentiment highlighting the pervasive and persistent nature of
    sexual harassment was expressed by a contributor to the blog:

    I was
    recently sexually harassed by the boss at a work [Christmas] function and the
    company have since tried to sweep everything under the carpet. I have been left
    feeling very vulnerable and anxious. Whilst also feeling isolated by the
    management and workers.[61]

  6. Nearly one in five complaints received by the Commission under the SDA
    relate to sexual harassment.[62] The
    vast majority of these take place in the workplace. However, the
    Commission’s survey found that overall, the number of people who have
    formally reported or made a complaint after experiencing sexual harassment
    significantly decreased between 2003 and
    2008.[63] In 2008, only 16% of those
    who have been sexually harassed in the last five years in the workplace formally
    reported or made a complaint, compared to 32% in 2003. For those who did not
    make a complaint:

    • 43% did not think it was serious enough;
    • 15% were fearful of a negative impact on themselves;
    • 21% had a lack of faith in the complaint process; and
    • 29% took care of the problem themselves.

  7. In 2008, a total of 22% of respondents who made a formal complaint reported
    that the outcome of their complaint resulted in a negative impact on them. The
    negative impacts include the person who experienced the harassment being
    transferred or changed shifts, resigning, being dismissed, demoted or
    disciplined or were laughed at and ostracised. During the Listening Tour, an
    employer confirmed that most women will attempt to deal with sexual harassment
    informally or leave the workplace because of this fear of
    victimisation:

    It absolutely still is an issue and people have a
    fear of making a complaint because it is a career killer. You try and deal with
    it informally or you just get
    out.[64]

5.6 Pregnancy
discrimination in the workplace

  1. Pregnancy is a time when women are commonly vulnerable to discrimination and
    inequality in the paid workforce. This can take the form of demotions, missing
    out on promotions, redundancies, denial of family friendly conditions and even
    bullying in some cases.[65] Almost
    one in every five pregnant working women experiences at least one difficulty in
    their workplace in relation to being
    pregnant.[66] Over one in five of
    the complaints received by the Commission under the SDA were complaints of
    pregnancy discrimination.[67] As
    such, this point in the lifecycle has a significant impact on participation in
    the paid workforce and level of earnings. Accordingly, when superannuation
    balances are broken down by age, the largest widening of the gender gap occurs
    between the 23-34 and 35-44 age brackets, coinciding with the time when women
    commonly have children.[68]

  2. A Listening Tour participant described the experience of her
    daughter-in-law, which highlighted how discrimination following pregnancy can
    impact upon women’s labour market participation:

    I have a
    daughter-in-law who works for a call centre. She fell pregnant and had a baby.
    At this time her boss said that if she wanted to come back she could. After six
    months, he gave her a hard time and said she had to work full time if she wanted
    to work. He did this because he thought women should be in the home. She ended
    up leaving. She knew it was discrimination but he is the
    boss.[69]

  3. Women do not even have to be pregnant to experience this disadvantage. On
    the Listening Tour, one woman reported her experience of workplace
    discrimination on the grounds of potential pregnancy:

    I’ve had
    a comment about me that I shouldn’t be given a permanent job because I may
    have a baby soon. I’m not even
    pregnant.[70]

  4. The vulnerability of women’s employment, including potential job
    losses, demotions and redundancies, arising at the time of pregnancy or
    returning to work following pregnancy, can have severe consequences to
    women’s financial security and career progression.

  5. During the Listening Tour, many women commented on the difficulty of
    re-entering the paid workforce after a break to care for children. Issues raised
    included the availability of work at the same level, control over the hours of
    work, lack of family friendly workplace policies and the need for skills
    development.

5.7 Impact of unpaid
work and family and carer responsibilities

  1. Perhaps the most fundamental barrier to women’s full participation in
    paid work is the struggle to balance paid work with unpaid labour, including
    family and carer responsibilities.

  2. Women continue to undertake the large majority of unpaid work in households,
    including caring for children and other domestic
    work.[71]The birth of children is a
    key point in the lifecycle where gender inequality in the division of unpaid
    work commonly widens.[72] ‘Time use’ studies show that the birth of a child commonly
    leads to mothers not only doing less paid work and more of the unpaid work of
    child care, but also the extra tidying, shopping, cleaning and laundry that the
    presence of children creates. The birth of a child results in women working
    incredibly long hours in both paid and unpaid work. In 2006, the total hours of
    work for mothers whose youngest child was between 0-4 was 85.9 hours weekly,
    compared to 79.6 hours for fathers, 61.3 hours for men without children and 55.5
    hours for women without
    children.[73]

  3. The gap between women and men’s earnings may also influence decisions
    about who undertakes paid and unpaid work in a
    household.[74] The gender pay gap
    may, in effect, force the higher earner to take on the majority of paid work
    while the lower earner, usually female, commonly takes on the majority of the
    unpaid caring work and in many cases reduces her participation in the paid
    workforce. During the Listening Tour one man recounted his own experience of
    this decision:

    Doing the sums of child care can make it more
    economical for my wife to stay at home because she earns less than I do. [75]

  4. One service provider noted that closing the gender pay gap is critical for
    creating an environment where men can undertake greater caring
    responsibilities:

    More and more blokes want to care for their
    children, but financially they are not making that decision because men are
    earning more. They are the breadwinners. If you do equalise women and
    men’s pay it will create opportunities for men to do
    that.[76]

5.8 Gendered
ageism

  1. Older women face particular barriers to paid workforce participation due to
    ‘gendered ageism’,[77] where gender discrimination is exacerbated by age
    discrimination.[78] Age
    discrimination creates barriers to paid workforce participation in re-entry to
    the paid workforce, recruitment, training, promotion, terms and conditions of
    employment, the balancing of unpaid work and phased retirement.

  2. One way gendered ageism manifests is in the use of unlawful stereotypes and
    assumptions about older women workers. Such stereotypes include being perceived
    as ‘loyal but lacking potential’, ‘low in energy’ and
    ‘unwilling to accept
    criticism’.[79] Employers may
    also assume that all older female workers will have had significant breaks in
    their employment due to family responsibilities and will not possess the skills
    required for the position.[80]

  3. The consequences of discriminatory stereotyping for older women are
    far-reaching and serious. Research has shown that these stereotypes and
    assumptions can prevent older women from being selected for jobs or, when
    employed, from being considered for training and promotion
    opportunities.[81] This has obvious
    consequences for older women in light of appointments to boards and access to
    leadership positions more generally, despite being highly qualified for such
    positions.

  4. In the face of entrenched discrimination, older women themselves can start
    to believe and internalise these stereotypes and select out of work and
    promotion opportunities. This represents a serious leakage of talent and skills
    in terms of the potential leadership pool and for the Australian labour force as
    a whole.

5.9 Conclusion

  1. It is clear that on a range of key indicators of gender inequality in
    Australian workplaces, including workforce participation rates, pay rates,
    representation in leadership positions, and experiences of sexual harassment and
    discrimination, women experience substantive inequality in comparison to their
    male counterparts.

  2. As the next section explains, gender inequality in the Australian workforce
    matters to individuals and the entire community. It impacts harshly on
    individual women, has flow on effects to families, impacts negatively on
    businesses and national productivity. It also undermines our fulfillment of
    international human rights and labour rights.

6 The case for reform:
why does achieving gender equality in Australian workplaces matter?


This section is for Information.

It sets out why achieving gender equality in the workplace matters, and the
range of benefits that will be delivered.

It explains that achieving gender equality in Australian workplaces will:

  • improve economic security for women;
  • be better for business and other organisations;
  • improve national productivity; and
  • fulfill our international human rights and labour rights
    obligations.


6.1 Introduction

  1. Achieving gender equality in Australian workplaces represents both a
    significant challenge and a significant opportunity. Australia faces a number of
    well documented economic and social challenges over the coming years. Chief
    amongst these challenges is realizing the full potential of our workforce in the
    context of an ageing population.

  2. The three P’s of economic growth – population, participation and
    productivity - are the levers that will assist us to meet these challenges and
    increase prosperity.

  3. The under-employment of women is a setback to productivity and participation
    and detracts from economic performance. It also negatively impacts on women and
    men, and their children.

  4. In summary:

    • Greater gender equality in employment will improve women’s economic
      security, and fulfill our international human rights and labour rights
      obligations;

    • Greater equality in women and men’s workforce participation will have
      a major impact on national productivity;

    • Greater diversity including gender diversity at the senior leadership and
      board level will increase corporate performance;

    • Businesses will be able to draw on a wider talent pool. With demographic
      change and an impending skills shortage, having access to the full talent pool
      including currently under-utilised talent pools is vital;

    • Greater gender balance at the most senior levels within companies will
      result in decisions that are more in touch with customer and client needs and
      more representative of the consumer base many companies rely
      upon.

  5. Gender equality in Australian workplaces must be seen in a broader social
    context. The issue of the absence of women on corporate boards or at senior
    leadership level is not one which threatens basic human requirements like
    housing, food and safety. However, there is a strong connection between how
    women are treated in corporate and business life and how women are treated
    everywhere else across Australia. The statistics on women’s leadership
    reflect our progress towards gender equality, as do statistics on violence
    against women, sexual harassment, pay equity and retirement savings. As Irene
    Lang, President of Catalyst recently said:

    ‘Until women are
    equitably represented in leadership in the private, economic sector, they will
    be marginalised in every other
    arena.’[82]

  6. This section sets out in further detail the case for reform to achieve
    gender equality in the workforce. It highlights the benefits to women, and to
    fulfilling our international human rights and labour rights obligations.

  7. Importantly, gender equality in the workforce will also have a major impact
    on national productivity, be better for business and employers.

6.2 Gender equality
will improve women’s economic security

  1. The net result of gender inequality for a woman in her experience of paid
    work is a major gap in the overall economic security for women in comparison to
    men.

  2. Overall, women earn an average of approximately 83 cents to the male
    dollar[83] and typically experience
    lower economic and financial security at all stages of the
    lifecycle.[84]

  3. A recent Australian study showed that, overall, a 25-year-old man is likely
    to earn a total of $2.4 million in their lifetime, which is more than
    one-and-a-half times the $1.5 million prospective earnings of a woman. Men who
    have a bachelor degree or higher and have children will earn around $3.3 million
    over their working life which is nearly double the $1.8 million that their
    female counterparts can expect to
    earn.[85]

  4. Women make up 73% of all the recipients of the single rate of the Age
    Pension[86] and single elderly
    female households not only experience the highest incidence of poverty compared
    to other household types[87], but
    are also at the greatest risk of persistent
    poverty.[88]

  5. The extent to which women do not enjoy economic security on an equal basis
    with men is most starkly demonstrated by the gender gap in retirement
    savings.

  6. In September 2009, Commissioner Broderick released a major Issues Paper,
    ‘Accumulating Poverty?: Women’s experiences of inequality over the
    lifecycle.’ The Issues Paper highlights that:

    Superannuation
    balances and payouts for women are approximately half of those of men. Future
    projections show that the gap will remain a problem for coming generations. The
    gap has serious implications for women, particularly the likelihood of sole
    reliance on the Age Pension and subsequently, an acute vulnerability to poverty
    in retirement.[89]

  7. The Issues Paper concludes that

    [i]ncreasing women’s
    labour market participation and increasing women’s earnings across the
    lifecycle is critical to closing the gender gap in retirement savings. Measures
    to support women’s labour market participation and address the gender pay
    gap must feature as a strategy to build women’s financial security [across
    the lifecycle and] in
    retirement.[90]

  8. A range of measures are needed to ensure that women enjoy an adequate
    standard of living, including social security benefits to provide an adequate
    safety net, and placing financial value on unpaid caring
    work.[91]

  9. However, promoting gender equality in Australian workplaces has significant
    potential for ensuring that women enjoy economic security on an equal basis with
    men. Enabling all people, regardless of gender, to engage in paid work, with
    appropriate financial compensation, is a key area in need of law and policy
    reform.

6.3 Gender equality
will improve business and organisational performance

  1. Achieving gender equality in the paid workforce is also important for strong
    business performance. There are several ways in which greater gender diversity
    impacts positively on business outcomes. These include halting the leakage of
    female talent from workplaces, appealing to women as consumers and improving
    business performance.

Leakage of
talent

  1. Talent is absolutely critical for all corporations. An ability to draw on
    the widest possible talent pool delivers a competitive edge. Along with
    investment and technology, people are the essential ingredient for increasing an
    individual business’ bottom line. Recruitment and retention of talented
    women represents a major opportunity for businesses.  At present,
    companies in the ASX200 are not accessing the full spectrum of available talent.
    Fifty one percent of ASX200 companies have no women directors and 45.5% of
    ASX200 companies have no women at all on their executive
    teams.[92] The pipeline of
    women to the next most senior level is also small. Chief Executive Women (CEW)
    has projected that on the current trajectory it will take over 150 years for
    women to hold a similar number of senior positions as
    men.[93]

  2. With 55.9% of graduates from Australian Universities being
    female,[94] it makes no sense that
    only 5.9% of senior line management roles in ASX 200 companies are held by
    women[95] or that only 8.3% of Board
    positions are held by women.[96] It
    is clear that without significant intervention we will not stem this leakage of
    female talent.

Women’s
market power

  1. In Australia, women exercise strong consumer power. Organisations with a
    balance of men and women at the senior levels tend to consider a wider range of
    options, resulting in decisions that are more in touch with customer needs. It
    has been estimated that women handle about 75% of family finances and influence
    about 80% of buying decisions.[97] Therefore products and services that appeal to women have a good chance of
    success.

  2. It makes sound business sense to include women at all levels of
    decision-making in organisations to broadly represent, and provide unique
    insights into, this significant customer base.

Overall business
performance

  1. There have been a number of research studies looking at the impact of
    women’s decision-making on corporate performance.

  2. International research indicates companies with a higher proportion of women
    in their boards and top management team have better financial
    performance.[98] This and other
    corporate research suggest that organisations with better gender balance are
    able to avail themselves of a broader talent pool value and leverage the skills
    and contributions of all
    employees.[99] In addition,
    diversity in the workforce, including gender diversity, increases overall
    employee engagement and
    productivity.[100]

  3. Research undertaken by Catalyst in 2007 to investigate the return on equity
    in Fortune 500 Companies found that those companies with the most female board
    directors outperformed those with the least by
    53%.[101]

  4. Recent research undertaken by Chicago-based Hedge Fund Research found that
    hedge funds run by women have fallen only half as much in the financial crisis
    as those managed by men.[102] This
    research showed the value of female-managed funds has dropped by 9.6% in the
    past year, compared with 19 per cent for the rest.

  5. Women investment managers also performed better in general over the past
    decade, with an average annual return of just over 9%, while hedge funds overall
    delivered 5.82%.[103]

  6. In summary, current research indicates that companies with a critical mass
    of women at the top achieve significantly better results.

6.4 Gender equality
will improve national productivity

  1. There is an urgent case for achieving gender equality in Australian
    workplaces in order to increase Australia’s national productivity. As
    noted by the World Economic Forum, ‘there is a strong correlation between
    the gender gap and national competitiveness...a nation’s competitiveness
    depends significantly on whether and how it educates and utilizes its female
    talent.’[104]

  2. Factors contributing to lower national productivity include:

    • Australia ranks as equal first in the World Economic Forum Gender Gap Index
      of women’s educational attainment, yet only 50th in women’s
      workforce participation. In other words, the return on our investment in
      women’s education is very low. No nation or government, industry or sector
      can afford this kind of loss. Without significant intervention – by
      government and by business – the number of women progressing in the
      workplace may shrink even further.

    • Australia’s investment in women’s skills development, is forgone
      when many women are working below their skill level, or have retreated from paid
      work altogether. Ensuring that women are enjoying gender equality in paid work
      is important for Australia’s national productivity in light of the ongoing
      skills shortages, despite the global financial crisis in many key
      industries.

    • Australia faces significant challenges with its ageing population in terms
      of its paid workforce ratio over the medium to longer term. By 2050, there will
      be a quadrupling of the proportion of people over 85 and a doubling of the
      proportion of people over 65.[105] Addressing the barriers to women’s participation in paid work would
      significantly improve the paid workforce ratio over time which is essential to
      expanding the nation’s tax base.

    • Women’s reduced ability to achieve a level of economic security
      through paid work leads to a reduced ability to fund their own retirement. As
      noted above, women currently hold only half the retirement savings of men, and
      make up 73% of single Age Pension
      recipients.[106] Improving
      women’s attachment to the labour market will alleviate pressures on our
      social security system.

  3. It is vital to national productivity that all people in Australia who want
    to be in paid work are able to do so to the maximum of their skills, abilities,
    and aspirations, regardless of gender.

6.5 Gender equality
will fulfil Australia’s international human rights and labour rights
obligations

  1. Achieving gender equality in paid work is crucial to ensuring economic
    security for women on an equal basis with men. It is also an international human
    rights and labour rights obligation of the Australian Government.

  2. The Australian Government’s international human rights and labour
    rights obligations relevant to the issue of gender equality in the workforce are
    set out in the following international instruments:

    • The Convention on the Elimination of All forms of Discrimination against
      Women (CEDAW)

    • The International Covenant on Civil and Political Rights (ICCPR)

    • The International Covenant on Economic, Social and Cultural Rights
      (ICESR)

    • International Labour Organisation Conventions 111, 100 and 156

    • Beijing Declaration and Platform for Action

  3. These international agreements impose a clear obligation on the Australian
    government to achieve substantive gender equality in Australian workplaces.

  4. For example, CEDAW places an obligation on the Australian Government
    to:

    take all appropriate measures to eliminate discrimination
    against women in the field of employment in order to ensure, on a basis of
    equality of men and women, the same rights, in particular... the right to the
    same employment opportunities...the right to promotion...[and] equal
    remuneration.[107]

  5. Article 2 imposes an obligation on Australia to prevent discrimination
    against women in all sectors and CEDAW stipulates a range of appropriate
    measures must be taken, “including legislation, to modify or abolish
    existing laws, regulations, customs and practices which constitute
    discrimination against
    women.”[108]

  6. Similarly, as a signatory to the ICESCR, the Australian Government has an
    obligation to:

    recognize the right of everyone to the enjoyment of
    just and favourable conditions of work which ensure, in particular... Equal
    opportunity for everyone to be promoted in his employment to an appropriate
    higher level, subject to no considerations other than those of seniority and
    competence.[109]

  7. Australia is party to a number of international ILO Conventions which impose
    obligations to pursue gender equality in areas related to employment and
    occupation and eliminate discrimination in the workplace on the basis of sex
    and/or family responsibilities.

  8. For further detail of Australia’s international human and labour
    rights obligations, see Appendix 1.

  9. The data available on gender equality in the workforce, set out in section 5
    of this Submission suggests that Australia is not currently meeting its
    international human rights and labour rights obligations in this area.

Special measures to achieve
gender equality

  1. It is clear that Australia is obliged to take action to eliminate
    discrimination between men and women in the workplace. One of the arguments
    against taking action aimed at advancing opportunities for women in the
    workplace, such as quotas and targets, is that such action may constitute
    discrimination against men.

  2. However, it is clear that taking temporary special measures aimed at
    accelerating the de facto equality between men and women is not discrimination
    at international law. Article 4 of CEDAW provides:

    1. Adoption by
    States Parties of temporary special measures aimed at accelerating de facto
    equality between men and women shall not be considered discrimination as defined
    in the present Convention, but shall in no way entail as a consequence the
    maintenance of unequal or separate standards; these measures shall be
    discontinued when the objectives of equality of opportunity and treatment have
    been achieved.

    2. Adoption by States Parties of special measures, including those measures
    contained in the present Convention, aimed at protecting maternity shall not be
    considered discriminatory.[110]

  3. A similar definition is used in the
    SDA.[111]

  4. In order to achieve genuine equality in practice, any definition of
    discrimination must allow for special measures. Special measures permit acts and
    practices that will ultimately further the goal of gender equality. Without
    them, a simple ‘sameness of treatment’ approach can prevail, that
    will give a surface appearance of equality, but has the potential to undermine
    equality of outcome.

  5. According to the CEDAW Committee, the purpose of art 4(1) is to accelerate
    the improvement of the position of women to achieve their de facto or
    substantive equality with men, and to effect the structural, social and cultural
    changes necessary to correct past and current forms and effects of
    discrimination against
    women.[112]

  6. The CEDAW Committee views special measures as being more than simply actions
    taken on a ‘good faith’ basis to achieve a particular purpose. The
    meaning of ‘special’ refers to the fact that the measures are
    designed to serve a specific
    goal.[113] Therefore, the measures
    must be designed, applied and evaluated against the background of the specific
    nature of the problem that they are intended to
    address.[114]

  7. The CEDAW Committee recommends States parties ‘evaluate the potential
    impact of temporary special measures with regard to a particular goal within
    their national context. State parties should then adopt those temporary special
    measures which they consider to be appropriate in order to accelerate the
    achievement of de facto or substantive equality for
    women.’[115]

  8. The adoption and implementation of temporary special measures may raise
    issues of the qualifications and merit of the group or individuals so targeted.
    On this issue the CEDAW Committee has commented that:

    as temporary
    special measures aim at accelerating achievement of de facto or substantive
    equality, questions of qualification and merit, in particular in the area of
    employment in the public and private sectors, need to be reviewed carefully for
    gender bias as they are normatively and culturally
    determined.[116]

  9. The duration of a temporary special measure should be determined by its
    functional result in response to a concrete problem and not by a predetermined
    passage of time. Temporary special measures must be discontinued when their
    desired results have been achieved and sustained for a period of
    time.[117]

  10. Further, the CEDAW Committee recommends that States parties ensure that
    women in general, and affected groups of women in particular, have a role in the
    design, implementation and evaluation of special measures programs. In
    particular, collaboration and consultation with civil society and
    non-governmental organisations representing various groups of women is
    especially recommended.[118]

  11. This submission includes recommendations for the adoption of special
    measures to fast track substantive equality outcomes for women in leadership
    roles. See section 8.9.

7 The
current context: what are the national laws and institutional
arrangements?


This section is for Information. It describes the three main
national laws that regulate gender equality in the Australian workforce:

  • Equal Opportunity for Women in the Workplace Act 1999 (EOWW Act)
  • Sex Discrimination Act 1984 (SDA)
  • Fair Work Act 2009 (FWA)

The section also provides an
overview of the three corresponding responsible authorities set up under each
statutory scheme:

  • The Equal Opportunity for Women in the Workplace Agency (EOWA)
  • The SDC and the Australian Human Rights Commission (SDC/Commission)
  • The Fair Work Ombudsman and Fair Work Australia
    (FWA/Ombudsman)

It explains that the EOWW Act and Agency are
gender specific and have an emphasis on employer capacity building, monitoring
and reporting.

The Commission has gender specific functions, has the statutory position of
SDC, uses an equality/anti-discrimination framework and has an emphasis on
complaint handling, policy development and advocacy, education and independent
monitoring with some systemic powers.

The FWA/Ombudsman is a generalist industrial relations system and has an
emphasis on complaint handling with strong systemic enforcement powers.


7.1 Introduction

  1. This section of the Submission provides an overview of the current
    regulatory environment that most directly impacts on gender equality in the
    workforce. It sets out the three major pieces of legislation, and their
    institutional arrangements, and provides a Table at section 7.4 which contains
    key features of each of the three statutory schemes. It concludes that there is
    currently a lack of clarity about roles and responsibilities amongst the three
    statutory schemes, particularly for action to drive systemic reform to achieve
    gender equality in Australian workplaces. The lead roles of each of the gender
    equality statutory scheme should be clarified, including the role of EOWA. In
    addition, the links between the statutory schemes should be strengthened and
    formalised.

7.2 National laws
impacting on gender equality in the workforce

  1. At the national level, there are three main laws that regulate gender
    equality in the workplace:

    • Equal Opportunity for Women in the Workplace Act 1999 (EOWW Act).

    • Sex Discrimination Act 1984 (SDA); and

    • Fair Work Act 2009 (FWA).

  2. Each of the states and territories also has anti-discrimination legislation
    that includes gender as a protected
    attribute.[119] The State and
    Territory anti-discrimination Acts also prohibit direct and indirect
    discrimination in the workplace and operate concurrently with both the
    SDA[120] and the
    FWA.[121]

  3. It should be noted that a comparable scheme to the EOWW Act regulates
    Federal public sector employment. Employees of government departments are
    covered by the Public Service Act
    1999    [122] and employees of
    statutory authorities are covered by the Equal Employment Opportunity
    (Commonwealth Authorities) Act 1987    . Also, a number of states have their own
    equal employment opportunity legislation for public sector
    employment.[123]

  4. The above three national Acts vary in terms of how they regulate equality,
    the scope of the attributes and areas of public life they cover, as well as
    their enforcement mechanisms.

  5. The diagram that follows represents the intersection of attributes and areas
    of each of the main national gender equality Acts.

Diagram - represents the intersection of attributes and areas of each of the main national gender equality Acts.


  1. The EOWW Act is uniquely targeted at tackling systemic sex discrimination in
    business and employer organisations. It aims to encourage employers to take
    action to achieve equal opportunity for women in the workplace. However, it has
    limited coverage[124] and weak
    enforcement powers.[125]

  2. The SDA generally prohibits direct and indirect discrimination on the ground
    of sex and related attributes across many prescribed areas of public life, one
    of which is employment. The SDA is primarily enforced through an individual
    complaint process. However, it also gives the Commission some functions that can
    be used to challenge systemic
    discrimination.[126]

  3. The FWA regulates federal workplace relations generally including adverse
    action on the basis of many prohibited attributes, one of which is sex, and
    creates the strongest enforcement powers.   

7.3 Institutional
arrangements under national laws impacting on gender equality in the workforce

  1. Each of the main national laws that impacts on gender equality in the
    workplace – the EOWW Act, SDA and FWA - establish responsible institutions
    that play an important role in achieving gender equality in Australia. In
    addition, the Australian Government Office for Work and Family, Office for Women
    and the Prime Minister’s Women’s Advisor all play a role.

  2. In summary, the EOWA, the SDC/Commission and FWA/Ombudsman are all empowered
    to challenge systemic discrimination against women. However, only the EOWA has
    dedicated resources to spend on assisting employers to take positive action to
    achieve gender equality in the workplace. The SDC/Commission have an established
    role in monitoring and advocating for gender equality, including gender equality
    in employment, and both the SDC/Commission and the FWA/Ombudsman have individual
    complaint handling functions.

  3. The SDC/Commission have some legislative functions that can be used to
    address systemic discrimination which relate to all manifestations of gender
    inequality across all areas of public life and not solely employment.

  4. While the FWA/Ombudsman functions and powers are far reaching and focused on
    the area of employment, unlike the SDC/Commission, the FWA/Ombudsman are
    concerned with a broad range of industrial matters across a wide range of
    industries. The FWA/Ombudsman are not specialist gender or discrimination or
    conciliation institutions.

  5. Further details of each of the national laws and institutional arrangements
    regulating gender equality in Australian workplaces is provided in Appendix
    2.

  6. A summary of the key features of each statutory scheme is set out below.

7.4 Table comparing
Australia’s gender equality laws & institutions

 


 SDA EOWW Act FWA
Attributes
  • Sex, marital status, pregnancy, potential pregnancy
  • Family (not carer’s) responsibilities for direct discrimination and
    dismissal only
  • Relevant only to women
  • Sex, marital status, family or carer’s responsibilities, pregnancy;
  • Race, colour, age, physical or mental disability, religion, political
    opinion, national extraction or social origin
Area
  • All areas of public life, including employment
  • Employment only
  • Employment only
Coverage
  • All employees but not State employees
  • Includes Commonwealth employees
  • All federal employers with 100 employees or more
  • Not Commonwealth or State employees
  • Federal employees and some State employees
  • Includes Commonwealth employees
Operative provisions
  • Direct and indirect discrimination
  • Functions to inquire and report on systemic discrimination.
  • Limited ability to tackle systemic discrimination, particularly in relation
    to family responsibilities
  • Systemic discrimination
  • Requires employers to commit to take action to advance equal opportunity for
    women in their workplace
  • Obligation to prepare, publish and review workplace programs
  • Adverse action & unlawful termination
  • National employment standards for parental leave and right to request
    flexible work arrangements
  • Equal remuneration orders
Enforcement
  • SDA largely relies on individuals to make complaints to the Commission
  • Commission seeks to resolve disputes but if it cannot, complainants can make
    applications at the Federal Court or Federal Magistrates Court
  • Reports to Parliament when employer fails to report or provide Agency with
    information.
  • Links with Government procurement and funding incentives
  • Individual complaint mechanism
  • Ombudsman inquiry and investigation powers
  • Compliance notices
  • Inspector’s enter and search powers
  • Ombudsman may institute proceedings or represent employees before Fair Work
    Australia or before the Federal Court or Federal Magistrates
    Court
Institutions and their functions
  • The Australian Human Rights Commission, including the SDC
  • The Commission has a role in:
    • Dispute resolution & Policy
    • Inquiries & Consultation
    • Research & education
  • EOWA monitors compliance with reporting requirements
  • Offers personalised advice and feedback
  • Research and training
  • Reports to the Minister on compliance with the Act.
  • Fair Work Australia is the national workplace relations tribunal with
    particular enforcement, remedy and dispute resolution functions under the FWA.
  • Fair Work Ombudsman has the additional functions of promoting and monitoring
    compliance with the FWA, providing education, advice and assistance and
    referring matters to relevant authorities.


7.5 Relationship and
interaction between gender equality institutions

  1. The below diagram illustrates the relationships between the institutions
    established by the three main gender equality Acts, along with the Australian
    Human Rights Commission established under the Australian Human Rights
    Commission Act 1986     (Cth) (AHRC Act).

Diagram - the relationships between the institutions established by the three main gender equality Acts, along with the Australian Human Rights Commission established under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).


  1. There is no formal institutional relationship between the EOWA and either
    the SDC/Commission, FWA/Ombudsman. There is also no formal relationship between
    the SDC/Commission and the FWA/Ombudsman despite the overlap in their roles.

  2. The one formal link between the main responsible institutions is between the
    SDC and the President of the Commission and Fair Work Australia, in relation to
    equal remuneration and discriminatory award matters.

  3. Under the FWA, the SDC has standing to apply to Fair Work Australia for
    equal remuneration orders.[127] The SDC’s equal remuneration power is similar to the power under
    Division 3 of the former Workplace Relations Act 1996 (Cth) (and
    the equivalent provisions in the Industrial Relations Act 1988). However,
    the SDC has never made an application under this power, due primarily to limited
    resources and competing
    priorities.[128]

  4. The President of the Commission also has the power to refer discriminatory
    industrial instruments to Fair Work Australia and discriminatory determinations
    to the Remuneration Tribunal or the Defence Force Remuneration
    Tribunal.[129]

  5. The President has this role, as it is expected that discriminatory awards
    will come to the attention of the Commission through its individual complaints
    handling function. The power to refer the award to Fair Work Australia is an
    important means of effecting systemic change in the area of employment. The SDC
    is entitled to make submissions to Fair Work Australia for consideration within
    the review process.[130]

  6. In addition, as outlined above, the Commission may intervene, with leave of
    the court involved, in any matter that involves issues of discrimination on the
    ground of sex, marital status, pregnancy or potential pregnancy or
    discrimination involving sexual harassment – this includes matters before
    Fair Work Australia.[131]

  7. The Commission has been involved in a number of proceedings before the
    former Australian Industrial Relations Commission (AIRC) that concerned sex
    discrimination issues including:

    • In 1990, the Parental Leave Test Case, which established the standard clause
      for maternity, paternity and adoption leave in Awards;

    • In 1994 and 1995, the ACTU test cases that established
      personal/carer’s leave entitlements;

    • In 1995, the AIRC central working party pilot award review process, which
      removed discriminatory provisions from federal awards and included model
      anti-discrimination clauses;

    • In 2000, the Australian Metal Workers’ Union application to the AIRC
      seeking an increase in the casual loading for workers under the metals
      award;

    • In 2001, the ACTU test cases, which established unpaid parental leave
      entitlements for casual workers employed for more than 12 months with the same
      employer through the award system; and

    • In 2005, the ACTU family provisions test case.

  8. While there are some formal links between Fair Work Australia and the
    Commission and the SDC, the links between each of the national statutory schemes
    regulating gender equality in the workplace, including the EOWA, should be
    strengthened and formalised. This would better ensure that each scheme plays its
    specialised role effectively and that efforts to achieve gender equality in
    Australia are mainstreamed but not diluted. The Submission makes recommendations
    to achieve this outcome.


8 Reform proposals: what
needs to change?


This Section sets out the Commission Proposals for Reform. It
contains 23 recommendations.

The reform of the EOWW Act and Agency, and associated reforms should
deliver:

  • Greater clarity and cohesion amongst national gender equality 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 from the 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 gender equality in
    women’s leadership.

The reform process should be
underpinned by strengthening statutory functions as follows:

The EOWA, as a gender specific mechanism, 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, including Australian business, Australian
    Government departments and statutory authorities, to promote strategies, and
    positive action by employers to achieve gender equality in Australian
    workplaces, including through education.

The Commission, as a
statutory authority with gender specific functions together with an established
enforcement and monitoring role, should lead:

  • enforcement, particularly at a systemic level, to ensure compliance with
    gender equality workplace obligations;
  • education and advocacy about the gender equality rights of workers; and
  • independent monitoring and reporting to the Australian Parliament and the
    public on Australia’s progress in achieving substantive gender equality,
    including in workplaces.

The FWA/Ombudsman, as general industrial
relations mechanisms, should collaborate with:

  • EOWA in its lead roles;
  • SDC/Commission in its lead roles; and
  • to positively contribute to systemic action required to achieve gender
    equality in Australian workplaces.


8.1 Introduction

  1. This Submission has highlighted that Australia has stalled in its progress
    on achieving gender equality in Australian workplaces. This is demonstrated most
    starkly by the poor record on women’s leadership amongst Australian
    business, but is indicated across almost all others facets of women’s
    experiences of paid work. It is reflected in Australia’s fall from 40 to
    50 in the global ranking of women’s labour force participation in the past
    12 months.[132]

  2. The current gender equality laws and institutional arrangements have
    contributed to greater attention being given to the problems associated with
    achieving gender equality. However there is far less progress in practical
    outcomes or substantive equality between women and men in their working lives.

  3. The current arrangements are not adequate for the Australian context. The
    case for reform is clear.

  4. There are several key objectives to be achieved from reform to the current
    gender equality laws and institutional arrangements in order to meet
    Australia’s international human rights obligations, secure greater
    economic security for women, improve national productivity and achieve better
    business performance.

  5. The key objectives of reform are:

    • greater cohesion amongst national gender equality mechanisms;

    • promotion of gender equality rather than equal opportunity;

    • improved transparency and accountability about success, failures, and what
      needs to be done next;

    • greater emphasis on outcomes rather than processes from the regulatory and
      reporting systems;

    • greater certainty for business and employer organisations;

    • full coverage of employers;

    • targeted effort to close the gender pay gap; and

    • special measures to fast track achieving substantive gender equality.

  6. This Submission makes recommendations for reform to meet each of these key
    objectives.

8.2 Greater clarity
and cohesion amongst national gender equality regulatory schemes

  1. Maintaining effective and adequately resourced national gender mechanisms is
    an important part of realising women’s human rights and gender equality.
    The CEDAW Committee and international policy making bodies including the United
    Nations Commission on the Status of Women have detailed the obligation to
    maintain national gender mechanisms as a crucial part of fulfilling
    international human rights obligations to
    women.[133]

  2. National gender equality mechanisms can include mechanisms within government
    such as specific ministries and gender units as well as statutory bodies and
    commissions, and civil society mechanisms such as advisory and consultative
    bodies or non government organisations.

  3. As set out above,[134] there
    are three national statutory schemes that are involved in the regulation of
    gender equality in Australian workplaces being:

    • EOWW Act (and the EOWA);

    • SDA (and the SDC/Commission) and

    • FWA (and the FWA/Ombudsman).

  4. Each of the national schemes that regulate gender equality in the workplace
    establishes statutory authorities, two of which have gender specific functions:
    the EOWA and the Commission. Also, the OFW is a gender specific part of the
    Australian Government’s national machinery. Together, these entities are a
    part of Australia’s national gender equality machinery.

  5. The Commission is opposed to collapsing the EOWA Agency into a generalist
    workplace system. It considers that the EOWA Agency should remain a stand alone
    statutory body operating at the highest level of the Australian Government to
    focus specifically on promoting gender equality in the workplace. It should
    retain an exclusive focus on workplace activity in order to ensure close
    integration with the industrial relations systems, particularly through close
    links with FWA/Ombudsman and with the substantive equality/anti-discrimination
    system, being the SDC/Commission.

  6. However, in order to strengthen its direct impact on workplace reform, the
    Agency should have formalised links to the participation and employment areas of
    government, so that EOWA responsibilities are clearly viewed as a central
    concern of both gender and employment government portfolios.

  7. Whilst the Commission is opposed to the EOWA being collapsed into another
    part of the Australian government workplace system, the national gender
    machinery needs to be reformed to improve clarity about roles, responsibilities,
    and coordinating action.

  8. At the present time, each of the three statutory authorities has as part of
    its mandate to undertake systemic action to progress gender equality in the
    workplace. As summarised in section 7 and explained in detail in Appendix 2,
    some statutory functions are common, for example, the statutory functions to
    undertake education and research. Other functions vary, including for example,
    with respect to individual complaint handling functions, investigation and audit
    functions, and powers to initiate or participate in court proceedings.

  9. There is a lack of clarity about which statutory authority is responsible
    for which lead roles, particularly in taking systemic action to achieve gender
    equality in the workplace. For example, it is possible that any one of these
    authorities could be responsible for driving systemic action to close the gender
    pay gap in Australia. The same could be said for reporting on progress to
    achieve gender equality in the workplace. There are also no formal links or
    obligations to coordinate action in situations where coordination is required to
    ensure the system operates in a cohesive manner. The lack of clarity about
    roles, and obligations to coordinate action, means that the national gender
    machinery is not as effective as it could be.

  10. The Commission considers that the authorities should broadly have the
    following central roles:

  11. The EOWA, as a gender specific mechanism, 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, including Australian business, Australian
      Government departments and statutory authorities, to promote strategies, and
      positive action by employers to achieve gender equality in Australian
      workplaces, including through education.

  12. The Commission, as a statutory authority with gender specific functions and
    the statutory position of SDC together with an established enforcement and
    monitoring role, should lead:

    • enforcement, particularly at a systemic level, to ensure compliance with
      gender equality workplace obligations;

    • education and advocacy about the gender equality rights of workers; and

    • independent monitoring and reporting to the Australian Parliament and the
      public on progress in achieving substantive gender equality, including in
      Australian workplaces.

  13. The FWA/Ombudsman, as a general industrial relations mechanism, should
    collaborate with:

    • EOWA in its lead roles; and

    • SDC/Commission in its lead roles,

to positively
contribute to systemic action required to achieve gender equality in Australian
workplaces.


Recommendation 1: Status of the EOWA

The EOWA should be the principal 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 2: Statutory Links of the EOWA The EOWW Act should require the Agency to work closely with the
SDC/Commission and the FWA/Ombudsman as separate statutory agencies regulating
gender equality in Australian workplaces (see specific recommendations for links
between the SDC/Commission and FWA/Ombudsman,
below).[135]


8.3 Promotion of
gender equality rather than equal opportunity for women

  1. There is a growing consensus, both in Australia, and internationally, that,
    in order for women to have better access to paid work, a substantive equality
    framework is required rather than a focus on ‘equal opportunity’ or
    ‘formal equality.’

    ‘Formal equality [which
    primarily focuses on equal opportunity or equality of access] is developed on
    the assumption that inequality can be remedied by treating all people in an
    identical manner...

    Critics of this formal model of equality argue that a focus on strict equal
    treatment ... fails to account for the myriad ways in which informal barriers
    operate to prevent, dissuade or undermine women's access to certain professions
    (and to a lesser extent, men's access to historically feminised professions). In
    these circumstances, treating unequally situated people equally will serve to
    further entrench more systemic aspects of
    discrimination.[136]

  2. Achieving substantive equality for women may require treating women and men
    differently, for example through special
    measures.[137] It may also require
    action to change the paid work and caring experiences of
    men.[138]

  3. At the present time, the name of the EOWA and objects of the EOWW Act are
    confined to eliminating discrimination against women and promoting equal
    opportunity for women in the workplace. The principal objects of the Act
    are:

    • to promote the principle that employment for women should be dealt with on
      the basis of merit;

    • to promote, amongst employers, the elimination of discrimination against,
      and the provision of equal opportunity for, women in relation to employment
      matters; and

    • to foster workplace consultation between employers and employees on issues
      concerning equal opportunity for women in relation to
      employment.[139]

  4. In order for the EOWA to have the strong lead role required to progress
    gender equality in Australian workplaces, the EOWW Act and Agency need to use a
    substantive gender equality framework. This would include promoting special
    measures where required and also promoting different ways of men being involved
    in paid work.

  5. In order to adopt this framework, the name of the EOWW Act and Agency should
    be changed, and the objects of the Act amended.

  6. The Commission proposes that the name of the Act should be changed to the Gender Equality in the Workplace Act, and the statutory authority renamed
    the Gender Equality in the Workplace Agency, or similar.

  7. In addition, the objects of the Act should be amended to include a strong
    key objective of promoting substantive gender equality in the workplace, rather
    than confining the objects to equal opportunity for women.

Recommendation 3: Name of the EOWW Act and Agency

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

Recommendation 4: Objects of the EOWW Act

The objects of the EOWW 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.


8.4 Improved
transparency and accountability at the national level

  1. As noted in the Commission’s Submission to the SDA Review (2008),

    In Australia, regular independent monitoring and
    reporting on progress in achieving gender equality does not occur. Data
    collection is conducted, although there are gaps. There are also many excellent
    examples of high quality research on specific issues (citations
    omitted).[140]

  2. The EOWA publishes several reports on key features of gender equality in the
    workplace.[141] The SDC/Commission
    has published two major surveys on the nature and extent of sexual harassment in
    the workplace.[142] It has also
    undertaken inquiries on specific gender equality workplace
    issues.[143] Under the FWA, the
    General Manager of Fair Work Australia must conduct research and publish a
    report every three years which includes, for example, the effect of the National
    Employment Standard on the right to request flexible work arrangements on
    women.[144]

  3. However, as noted in the Commission’s Submission to the SDA Review (2008),

    there is no institutional arrangement in place for an
    agency independent of government to report to Parliament and the Australian
    public, providing a considered evidence-based assessment of progress against an
    integrated set of national gender equality indicators and to benchmark progress
    against those indicators over time.

  4. The Commission has previously recommended that it be given adequate
    resources to enable the SDC to develop a set of National Gender Equality
    Benchmarks and Indictors, including workplace benchmarks and indicators. These
    benchmarks and indicators would form the basis for the SDC to independently
    monitor Australia’s progress towards achieving substantive gender
    equality.[145] This recommendation
    has received the general support of the Senate Standing Committee on Legal and
    Constitutional Affairs.[146]

  5. The SDC/Commission would work closely with the EOWA Agency in the
    development of the benchmarks and indicators associated with workplace reform
    including, for example, in the area of:

    • workforce participation;

    • decision-making and leadership;

    • pay equity;

    • sexual harassment and discrimination; and

    • flexible work arrangements

  6. The National Gender Equality Benchmarks and Indicators regarding the
    workplace would provide a national policy framework for the design of
    outcome-based reporting by employers as part of Employer Reporting Obligations
    to the EOWA Agency, as well as the research and reporting to be done by FWA
    every three years.

  7. The SDC/Commission would work closely with other key bodies, such as the
    Australian Bureau of Statistics and other research bodies to develop other
    benchmarks and indicators relevant to gender equality in Australia
    including:

    • unpaid work and family and carer responsibilities;

    • sexual assault;

    • family and domestic violence;

    • adequate standard of living, including rates of poverty and
      homelessness;

    • gender gap in retirement savings

  8. Monitoring of the integrated set of National Gender Equality Benchmarks and
    Indicators would provide Australia with a comprehensive analysis of overall
    progress on gender equality. The integration of workplace analysis with analysis
    of issues outside the workplace would enable links to be made between changes in
    paid work and associated experiences outside of the workplace.

  9. The Commission, acting through the SDC, is best placed to undertake the
    independent monitoring role in light of the fully independent status of the
    Commission, both under its legislation, and as an accredited National Human
    Rights Institution under the United Nations Paris
    Principles.[147] Under the Paris
    Principles, the Commission can only be fully accredited as a national human
    rights institution if it is fully independent of the national government under
    legislation or by the constitution.

  10. Whilst the EOWA Agency and the FWA/Ombudsman have a level of independence,
    both are subject to the general directions of the Australian Government. Only
    the SDC/Commission is fully independent.

  11. Establishing this independent monitoring process as part of
    Australia’s national gender machinery would foster full transparency and
    accountability for the meeting of obligations, including our international human
    rights and labour rights to progress gender equality.

Recommendation 5: Independent Monitoring of National Gender Equality
Benchmarks and Indicators

The Commission, acting through the SDC, should be the lead agency to
partner with the EOWA 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
FWA/Ombudsman, OFW; ABS; and other relevant bodies.

The EOWA and other relevant bodies, including the FWA/Ombudsman and the ABS
should be required to provide the SDC/Commission with 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 Commission, acting through the SDC, should independently report to the
Australian Parliament and the public on progress to achieve gender equality,
including in Australian workplaces, at a minimum every two (2) years.

8.5 Greater
emphasis on outcomes rather than processes in Employer Reporting Obligations

  1. The Commission considers that the current Employer Reporting Obligations to
    EOWA need to be reformed so that reporting focuses on outcomes being achieved by
    employers to progress substantive gender equality, rather than on the methods
    used.[148] 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 what is being done to
    get there. Employer reporting obligations should be guided by the principle
    ‘better reporting, not more reporting.’

  2. 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

  3. 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.

  4. Employer Reporting Obligations under the Act should be designed to track
    changes within individual businesses and other employer organisations by
    reference to the higher level National Gender Equality Benchmarks and
    Indicators.[149]

  5. In order to promote transparency and accountability at the employer level
    under the EOWW Act, the Act should be amended to:

    • require the EOWA to issue a certification to the employer that Employer
      Reporting Obligations have been met;

    • empower the EOWA to impose a fine on employers for persistent non-compliance
      with Employer Reporting Obligations; and

    • require the employer to publish:

      • the Report to EOWA and the Certification from EOWA to all employees;
        and

      • the Certification in the employer’s annual
        report.

  6. The meeting of the minimum Employer Reporting Obligations would be mandatory
    under the Act.

  7. The EOWA should also have the power of verification, for example, through
    some form of audit process to actively verify employer compliance with their
    obligations under the Act.

  8. Currently, Australian Government Procurement Guidelines prevent Government
    departments from buying goods and services from, or entering into contracts
    with, organisations that have not complied with EOWW Act reporting
    obligations.[150] However, the
    Commission believes that these guidelines could be more effectively monitored
    and enforced by making certified compliance with a revised EOWW Act a condition
    of commercial dealings with government.

  9. The Agency should also play a lead role in developing resources for
    employers, for example, through a Community of Practice, to assist employers in
    improving their performance on achieving outcomes for gender equality.

  10. In this Submission, the Commission proposes that the EOWA be strengthened
    with the lead role of collaborating with Australian employers in efforts to
    promote substantive gender equality in the workplace. Given this lead role, the
    Agency would also be well placed to join together with individual employers,
    groups of employers, or specific industries to work on the development of
    voluntary ‘Gender Equality Action Plans’.

  11. The Action Plan would include reporting about outcomes being achieved, and
    time-bound targets, together with strategies for achieving those targets. As
    detailed in the next part, employers would have the option of seeking to have
    their voluntary Action Plan legally recognised under the SDA as a ‘special
    measure’.

Recommendation 6: 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 7: EOWA certification

When employers meet their employer reporting obligations under the EOWW
Act, the EOWA should issue a Certification. Employers should be required to
publish:

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

Recommendation 8: EOWA
certification a pre-condition of entering contracts with government

EOWA Certification should be a pre-condition of providing goods and
services or entering into contracts with Australian Government
departments.

Recommendation 9: EOWA Employer Capacity Building

The 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

EOWA should be empowered to conduct a verification process to establish
compliance by an employer, group of employers, or industry’s compliance
with its obligations under the EOWW Act, including with employer reporting
obligations. EOWA should provide the SDC/Commission and the FWA/Ombudsman with
the results of verification processes conducted under the EOWW 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.

8.6 Greater certainty
for business and employers

  1. As Australian business groups identify, certainty for business offers
    benefits in terms of business performance and long term
    sustainability.[151]

  2. At the present time, the regulatory system on gender equality in the
    workplace does not provide for some of the key elements required to achieve substantive gender equality, including

    • a general positive duty to promote gender equality;

    • standards;

    • voluntary action plans; and

    • incentives for compliance nor enforcement mechanisms for
      non-compliance.[152]

  3. In the Commission’s Submission to the SDA Review (2008), it
    presented a number of ‘options for reform’ about the above proposals
    for consideration in a Stage Two reform
    process.[153]

  4. At that time, the Commission proposed that consideration be given
    to:

    • inserting a general positive duty to promote gender equality into the
      SDA;[154]

    • developing ‘standards’ under the SDA which would apply to all
      employers, and which would provide certainty to employers about the nature and
      extent of their obligations under the SDA, and a measure of protection from
      litigation;[155] and

    • enabling employer organisations to develop voluntary Gender Equality Action
      Plans which could be lodged with either the Commission or EOWA. Voluntary Action
      Plans which included ‘special measures’ could be certified under the
      SDA to provide a measure of protection to the employer from
      litigation.[156]

  5. These recommendations received general support from the Senate Standing
    Committee on Legal and Constitutional
    Affairs.[157]

  6. The Australian Government has yet to respond to the SDA Review.

  7. For the purposes of this Submission, the Commission proposes concrete
    recommendations for a mid-way approach towards implementing its Stage Two
    Options for Reform, as part of the SDA Review. In Recommendation 11 of this
    Submission, the Commission proposes that the EOWA Act be amended to enable
    employers, groups of employers or Industry groups to voluntarily develop Gender
    Equality Action Plans. The plans would set out clear targets for increasing
    gender equality in their workplace, and the strategies that will be used to
    achieve these targets.

  8. The Commission proposes that consideration be given to amending the SDA to
    allow for legal recognition of Gender Equality Action Plans, at the option of
    employers. A number of models for recognition could be considered.

  9. The first would be to allow formal recognition of a Plan as a ‘special
    measure’ to confirm that measures taken under it that seek to ensure
    gender equality are taken not to be discriminatory. Such certification could be
    undertaken by the Commission, consistent with its current role in granting
    exemptions under federal discrimination laws.

  10. A second option would be to allow recognition of a Plan as a Gender Equality
    Standard, compliance with which would be a defence to a complaint of
    discrimination and a breach of which would be a contravention of the SDA. Such
    an approach would be similar to the operation of Disability Standards under the Disability Discrimination Act 1992 (Cth).[158] Under this model,
    the Attorney-General would approve a Plan by legislative instrument to give
    effect to a Standard.

  11. A third option would be to allow recognition of a Plan as a Gender Equality
    Code which would operate similarly to a Standard, by replacing the obligations
    under the SDA with the obligations contained in the Plan/Code. Approval of such
    codes could be undertaken by the SDC, if satisfied that the Plan/Code provides
    greater protection of gender equality than that otherwise provided for by the
    SDA. Such an approach would be similar to the operation of Privacy Codes under
    the Privacy Act 1988 (Cth).[159]

  12. It would be entirely the option of the individual employer/s (an
    ‘opt-in’) as to whether their ‘Gender Equality Action
    Plan’ was to be recognised as a ‘special measure’, standard or
    code under the SDA.

  13. Recognition of an Action Plan under the SDA would offer both benefits and
    risks to employers. The benefit would be that the Action Plan would protect the
    individual employer, group of employers or specific industries from litigation
    under the SDA in relation to matters dealt with under the Plan.

  14. This would also protect the employer from an action under the FWA, given
    that action that is not unlawful under the SDA is excluded from the scope of
    adverse action under the FWA. [160]

  15. This proposal offers a flexible approach, short of the greater challenge of
    developing a ‘one-size-fits-all’ standard which applies to, and
    protects, all employers regardless of their context and diverse circumstances.

  16. The potential risk to employers of having a voluntary Action Plan adopted as
    a standard under the SDA would be that non-compliance would open the employer up
    to a potential complaint, either by an individual employee or by the SDC.

  17. Part of the regulatory reform enabling voluntary Action Plans to be adopted
    under the SDA is for the SDC to be given the power to bring a complaint for
    non-compliance without the need for an individual complainant. The Commission
    previously recommended that the SDC be given this power in its Submission to
    the SDA Review     (2008).[161]

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

The 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 SDA.

Depending on the model chosen, compliance with voluntary Action Plans
legally recognised under the SDA could:

  • 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.

 

8.7 Full coverage of
employers

  1. The EOWW Act should be amended to bring all relevant employers under the
    Act, including Australian Government departments and statutory agencies with 100
    employees or more. This would enable the EOWA to integrate the data analysis of
    comparable employers and foster collaboration amongst employer groups
    generally.

  2. Further it is understood that a substantial number of businesses and other
    employers already covered by the Act do not report, and yet are not easily
    identified. This needs to be urgently remedied.

  3. There are a number of ways this could be achieved. For example, all relevant
    employers will be known to the Australian Tax Office (ATO) and will provide
    information to the ATO which would enable employers covered by the EOWW Act to
    be identified. The ATO could be required to make available a list of all
    relevant employers to the EOWA on an annual basis.

Recommendation 13: Coverage to Government and Statutory
Authorities

The EOWW 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 EOWA to receive an annual list of
all organisations employing 100 people or more. Pending amendment, EOWA should
conduct a high profile campaign to alert all covered employers of their legal
obligations under the EOWW Act.


8.8 Targeted effort
to close the gender pay gap: a National Pay Equity Strategy

  1. Subject to the outcomes of the House of Representative’s Inquiry into
    Pay Equity, the Commission considers that targeting the gender pay gap should be
    a major priority for the national gender machinery in Australia.

  2. Closing the gender pay gap should be a specific employment matter covered
    under the EOWW Act.[162]

  3. The Australian Government should also provide the EOWA and the
    SDC/Commission with the mandate and resources to develop a National Pay Equity
    Strategy, which would include specific measures for:

    • EOWA regarding government policy and employer strategies;

    • SDC/Commission regarding enforcement powers, and independent monitoring;
      and

    • FWA/Ombudsman to act in collaboration with EOWA and the SDC/Commission, with
      respect to the above measures.

  4. Consideration should be given to adopting measures to promote greater
    transparency in relation to pay rates in the private sector. For example, in the
    United Kingdom, the Equality Bill 2009 contains a provision that will make
    contractual secrecy clauses that prevent employees discussing their pay with
    colleagues
    unenforceable.[163]

Recommendation 15: Pay Equity as an ‘employment
matter’

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

Recommendation 16: National Pay Equity Strategy

EOWA should partner with the Commission, acting through the SDC, 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 Commission 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.


8.9 Special measures
to fast track achieving of substantive gender equality in
leadership

  1. As explained in section 5.4, EOWA's Census of Australian Women's Leadership
    in ASX200 companies revealed women hold only 8.3% of Board positions and chair
    only 2% of Boards. Women hold only 2% of Chief Executive Officer positions,
    10.7% of executive management positions and 5.9% of line executive management
    positions. Over 50% of ASX200 companies have no women at all on their boards.

  2. Australia is no longer making glacial progress on this issue but rather is
    going backwards.

  3. The figures demonstrate the overwhelming need for significant action to
    improve women’s representation in these positions. Some of these measures
    may require specific changes to current processes and practices. For example,
    the Productivity Commission has recently released a draft recommendation to end
    the ‘no vacancy rule’ on boards, which can be used to limit the
    appointment of directors from outside of the
    ‘club’.[164]

  4. However, given the dismal representation of women at senior executive and
    board level in corporate Australia there is a strong case for special measures
    to fast track women's representation at senior levels in employer organisations
    and particularly publicly listed companies.

  5. Australia is having a new debate about the need for reform including the
    need for targets and quotas to ensure greater gender diversity at senior levels.
    In the last month there has been considerable advocacy on this issue and many
    senior board directors have called for reform.

  6. In regards to the SDC’s suggestion of the implementation of gender
    quotas if no significant gains are made in women’s representation in
    leadership positions within five years, Gordon Cairns, Non-executive director of
    Westpac and Origin Energy recently said:

    My suggested approach is do
    the work, find out what the road blocks are, remove the road blocks, make sure
    there is a good measurement system in place to ensure that progress is being
    made, and if that doesn’t work we should
    legislate.[165]

  7. Jillian Segal, Company director at the National Australia Bank and the ASX
    supports the setting of voluntary targets as an initial approach to improve the
    representation of women in leadership positions. If there has been no
    significant change in the next five years, Segal suggests,

    At that
    time one needs to have a very serious examination as to why the publically
    disclosable targets that I am seeking at this point in time haven’t
    worked...and if it’s a question of male management just not hiring women
    then of course one needs to examine how government can make that happen and
    quotas is definitely one way. [166]

  8. High profile Australian company director, Margaret Jackson, had been opposed
    to the imposition of quotas, but has reviewed her position:

    I think
    I’ve probably come full circle and completely reversed what I originally
    thought... I now think I agree with SDC when she says let’s set some
    objectives and if we don’t get there, let’s set
    quotas.[167]

  9. As noted in section 6.5, international human rights laws, including CEDAW,
    exclude special measures that treat women and men differently in order to
    accelerate substantive equality outcomes from the definition of discrimination.
    The SDA also permits special measures. CEDAW recognises that the goal or
    eradicating discrimination should not be reduced to sameness of treatment and
    that substantive equality is not necessarily achieved by treating everyone
    equally.

  10. In considering the meaning of ‘measures’, the CEDAW Committee
    has made it clear that ‘special measures’ encompass:

    a
    wide variety of legislative, executive, administrative and other regulatory
    instruments, policies and practices, such as outreach or support programmes;
    allocation and/or reallocation of resources; preferential treatment; targeted
    recruitment, hiring and promotion; numerical goals connected with time
    frames; and quota systems     [emphasis added]. [168]

  11. The choice of a particular measure depends on the specific goal it aims to
    achieve.[169]

  12. In the Australian context, Crennan J in Jacomb v Australian
    Municipal Administrative Clerical and Services
    Union    [170] stated that
    the phrase ‘special measures’ in the SDA includes affirmative action
    measures which confer a benefit on a group for the purposes of achieving
    substantive equality. In that case, a quota for women in governance positions
    contained in union rules was upheld as a special measure.

  13. The CEDAW Committee recommends that state parties make more use of temporary
    special measures such as positive action, preferential treatment or quota
    systems to advance women’s integration into education, the economy,
    politics and employment.[171]

  14. Commenting on Article 7 of CEDAW dealing with the participation by women in
    political and public life, the CEDAW Committee remarked that where countries
    have developed effective temporary strategies in an attempt to achieve equality
    of participation, a wide range of measures had been implemented
    including:

    setting numerical goals and quotas and targeting women
    for appointment to public positions such as the judiciary or other professional
    groups that play an essential part in the everyday life of all
    societies.[172]

  15. The recommendation acknowledges explicitly that in order to secure equal
    participation by women in professional and public life, it may be necessary to
    set numerical goals.

  16. In reviewing Australia’s implementation of CEDAW in 2006, the CEDAW
    Committee expressed concerns about the lack of specific action designed to
    increase the representation of women in leadership positions. The CEDAW
    Committee observed:

    While noting that the Sex Discrimination Act
    allows for the adoption of special measures to ensure equality of opportunity or
    in order to meet the special needs of women, the Committee is concerned that the
    State party does not support the adoption of targets or quotas to promote
    greater participation of women, particularly indigenous women and women
    belonging to ethnic minorities, in decision-making bodies [emphasis
    added].[173]

  17. The CEDAW Committee recommended Australia:

    consider the adoption
    of quotas and targets, in accordance with article 4, paragraph 1, of the
    Convention and the Committee’s general recommendation 25, to further
    increase the number of women in political and public life and to ensure that the
    representation of women in political and public bodies reflect the full
    diversity of the population, particularly indigenous women and women belonging
    to ethnic minorities.[174]

  18. Therefore temporary special measures, such as quotas and targets, aimed at
    accelerating de facto equality for Australian women in the workplace do not
    constitute discrimination against men.

  19. Indeed, Australia is obliged to adopt and implement temporary special
    measures that are necessary and appropriate to accelerate the achievement of
    women’s substantive equality in the
    workplace.[175]

  20. Publicly listed companies are a sector usually focused on achievable, time
    bound and measurable outcomes. In order to stimulate action on gender equality,
    it is recommended that a two stage process of special measures be adopted. This
    two stage process would be put in place for a specified period of time with the
    aim of intervening so as to increase substantially the number of women at senior
    levels in corporate Australia.

  21. Stage One would require publicly listed companies to set their own three and
    five year targets to increase the representation of women on their boards and at
    senior executive level. These targets would be set by the businesses themselves
    as special measures and accordingly will vary depending on a range of factors
    including the industry, the pipeline of available women, the baseline level of
    women’s existing representation and other factors.

  22. Companies would monitor progress against these targets and report annually
    on progress in a transparent manner. For publicly listed companies, this
    reporting would be included in the ASX Annual Report.

  23. The second phase of this process is designed to commence after five years
    and following a full evaluation as to why progress on gender equality at the
    senior level of business has not been achieved. Stage Two may require the
    government to establish mandatory quotas for all government and publicly listed
    boards. Failure to meet these quotas would result in financial or other
    penalties.

  24. In relation to government boards, most states and territories have already
    set targets for women on government boards and women at executive level. In
    relation to government boards these targets have resulted in significant
    increases in women's representation. The Victorian Women’s Policy
    Framework 2008-11 included a commitment to increasing the proportion of women on
    Victorian Government boards and committees to
    40%.[176] This target has been
    achieved and was recently increased to
    50%.[177]

  25. In 2007, the South Australian Strategic Plan included a target to
    increase and maintain the number of women on all State Government boards and
    committees to 50% by 2008 and to increase the number of women chairing state
    government boards and committees to 50% by
    2010.[178] The targets in the SA
    Strategic Plan are measurable and time bound. They are monitored and reported on
    regularly. In January 2004, previous to the target being set, 33.62% of the
    members of government boards and committees were women. By April 2009, this had
    increased to 44.78%.[179]In
    January 2004, 23.83% of SA government boards and committees were chaired by
    women. Again, in the four years since the baseline was set, women’s
    representation had increased to
    34.68%.[180]

  26. The Australian Capital Territory has experienced a similar level of
    improvement since the ACT Government set itself a target to achieve and maintain
    50% representation of women on Government boards and committees in
    2004.[181] While the policy does
    not include an enforcement mechanism or minimum timing by which the target must
    be achieved, progress towards the target is monitored and reported. In December
    2005, 46% of ACT Government board members were women and by March 2008, this had
    increased to 48%.[182] In
    December 2005, 26% of Government board were chaired by women were women and
    again, by March 2008, this had increased to
    34.7%.[183] In addition, the
    percentage of women on ACT Government remunerated boards increased slightly from
    42% in 2002/03 to 45% in December
    2005.[184]

  27. In recognition of the traditionally low levels of women on Queensland
    government boards, in 2006 the Queensland Government committed to ensuring that
    wherever possible, 50% of new appointees to government bodies are
    women.[185] The representation of
    women on Queensland Government Boards increased from 33.6% in 2006 to 36.5% in
    2008.[186]

  28. Most other states and territories are following this trend to quantify and
    monitor the representation in leadership and management positions. The NSW
    Government has made a commitment to, ‘ensure that progress towards gender
    parity is achieved on public sector boards concerned with economic and
    commercial matters and major public utilities as well as on those that are
    concerned with social and community life and smaller statutory
    boards.’[187] The Tasmanian
    Government has expressed a similar
    commitment.[188] Increasing the
    number of women in leadership positions, including in executive positions and on
    boards and committees is one of the Northern Territory Government’s aims
    in the Territory 2030 Draft
    Strategy.[189]

  29. The South Australian and ACT governments have also set targets in relation
    to the representation of women in senior leadership roles. The 2007 South
    Australian Strategic Plan     included a target to ensure women comprise half of
    public sector employees in the executive levels (including chief executives) by
    2014. In 2003, 29.4% of public sector employees in the executive levels
    (including chief executives) in SA were women. By 30 June 2007, this had
    increased to 35.6%.[190] The ACT Women’s Plan 2004-2009 also aimed to increase the proportion of
    women in senior management and leadership
    positions.[191] In 2003, 33.9%of
    executive positions in the ACT Public Service were held by women. By 30 June
    2008, this had increased to
    39%.[192]

  30. It is important that the Australian Government also models better gender
    diversity on boards by establishing a target of a minimum of 40% of each gender
    on all Australian Government boards. These targets should be publicly
    disclosed, time bound and regularly reported on in a transparent manner.

 

Recommendation 17: Targets on Australian Government boards

The Australian Government should set a minimum target of 40% of each gender
on all government boards to be achieved within three (3) 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 (3) and five (5) 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 EOWW 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; and
  • Phase 2 is designed to commence after 5 years if companies are not at a
    minimum of 40% of both genders on publicly listed boards. Phase 2 involves the
    government giving serious consideration to mandatory quotas for all government
    and publicly listed boards. Failure to meet these quotas would result in
    financial or other penalties.

The Australian Government should
promote an target of 40% 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 seriously consider legislating to require publicly
listed companies to achieve a mandatory gender diversity quota of 40% within a
specified time frame, failing which penalties will be imposed.

 


8.10 Associated
reforms

Sex Discrimination Act 1984 (Cth)

  1. In order to integrate the reforms to EOWA proposed in this Submission with
    the other key national gender equality law, the SDA, the Commission considers it
    important that the recommendations of the Senate Standing Committee on Legal and
    Constitutional Affairs’ Inquiry into the Effectiveness of the SDA be implemented.[193] The
    Senate Committee recommendations are consistent with the objectives of the
    recommendations of this Submission, including:

    • Improving clarity and cohesion of the national gender equality mechanisms,
      particularly by giving the Commission, acting through the SDC, a strong
      enforcement and independent monitoring role; and

    • Promoting gender equality rather than equal opportunity for women, including
      giving both women and men equal coverage under the SDA, and providing
      comprehensive protection from discrimination on the grounds of family and carer
      responsibilities.

  2. In addition, since the commencement of the operations of the FWA/Ombudsman,
    the Commission proposes further recommendations to foster clarity and cohesion
    between the three statutory agencies impacting on the regulation of gender
    equality in the
    workplace.

 

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).[194] 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;
  • Strengthen legal protection from sexual harassment in Australian
    workplaces;
  • Empower the Commission, where appropriate acting through the SDC, to:
    • undertake formal inquiries in relation to the elimination of discrimination
      and promotion of gender equality;
    • intervene, or appear as amicus curiae, as of right in relevant proceedings,
      including proceedings under the FWA;
    • commence proceedings for breaches of the SDA, without requiring an
      individual complaint; and
    • certify Special Measures, upon application by EOWA, or an
      employer.
  • Require the SDC/Commission to notify the EOWA and the FWA/Ombudsman where
    action above is taken in relation to gender equality in the workplace; and
  • Require the Commission, acting through the SDC, to independently monitor
    progress in achieving gender equality in Australia, and to report to Parliament
    at a minimum of every two (2) years, including regarding gender equality in
    Australian workplaces, against National Gender Equality Benchmarks and
    Indicators


Fair Work Act 2009 (Cth)

  1. Similarly, the Commission proposes some minor changes to the formal
    institutional arrangements of the FWA/Ombudsman to improve cohesion and
    collaboration between the SDC/Commission and FWA/Ombudsman in relation to
    complaints.

Recommendation 22: Coordinating action between the FWA/Ombudsman and the
SDC/Commission

The FWA/Ombudsman should be required to notify the EOWA and SDC/Commission
if:

  • it commences an application under s 682 of the FWA 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;
  • a Fair Work Inspector issues a compliance notice where the Inspector
    reasonably believes that a person has contravened relevant provisions of the
    FWA[195] or a Fair Work
    Instrument, including amongst other things, relevant provisions of the National
    Employment Standards,[196] 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.

 


9 Appendices

9.1 Appendix 1:
Australia’s International Human and Labour Rights Obligations: Detailed
Descriptions

Convention
on the Elimination of All forms of Discrimination against Women

  1. Australia has ratified
    CEDAW[197] and it is scheduled to
    the SDA.

  2. Therefore, Australia is bound by the terms of CEDAW, subject to any express
    reservations made at the time of its ratification. CEDAW is a key international
    instrument which places an obligation on Australia to:

    take all
    appropriate measures to eliminate discrimination against women in the field of
    employment in order to ensure, on a basis of equality of men and women, the same
    rights, in particular... the right to the same employment opportunities...the
    right to promotion...[and] equal
    remuneration.[198]

  3. This obligation applies to women in all
    sectors.[199]

  4. Further, Article 5 of CEDAW obliges Australia to take all appropriate
    measures to modify social and cultural patterns of conduct of men and women,
    with a view to achieving the elimination of prejudices and customary and all
    other practices which are based on the idea of the inferiority or the
    superiority of either of the sexes or on stereotyped roles for men and
    women.

  5. The Committee on the Elimination of All forms of Discrimination against
    Women (CEDAW Committee) is responsible for monitoring the implementation of
    CEDAW by those States which are party to it.

  6. The CEDAW Committee has noted that stereotypical cultural attitudes can be
    ‘reflected in the low proportion of women in top leadership positions in
    the public sector, including
    academia,[200]lower pay and
    income, and a ‘lack of equality of opportunity for women in the labour
    market.’[201]

  7. CEDAW requires Australia to modify or abolish existing laws, regulations,
    customs and practices that constitute discrimination against women by taking a
    range of appropriate measures, including
    legislation.[202]

  8. Under Article 24, Australia undertakes to adopt all necessary measures at
    the national level aimed at achieving the full realization of the rights
    recognized in CEDAW.

International
Covenant on Civil and Political Rights

  1. Australia has been a party to the
    ICCPR[203] since 1980. Article 26
    of the ICCPR contains a positive obligation on States parties to take steps to
    protect against discrimination on the ground of sex.

  2. The obligation of protection does not refer only to the rights set out in
    the ICCPR but rather to every form of
    discrimination.[204]

  3. The positive duty was expressly and generally emphasized by the UN Human
    Rights Committee in its General Comment on the equal rights of men and women.
    The UN Human Rights Committee stated
    that:[205]

    The
    principle of equality sometimes requires States parties to take affirmative
    action in order to diminish or eliminate conditions which cause or help to
    perpetuate discrimination prohibited by the ICCPR.

    ...

    Such action may involve granting for a time certain preferential treatment in
    specific matters... As long as such treatment is needed to correct
    discrimination in fact, it is a case of legitimate differentiation under the
    ICCPR.

  4. According to Nowak, positive measures of protection are particularly
    necessary when certain groups of people traditionally have been seriously
    discriminated against in the practice of State parties or when they have been
    subjected to specific discrimination in the private
    sector.[206]

  5. While State parties are free to choose in what way and to what degree they
    wish to counteract specific discrimination, Article 26 calls for
    ‘effective protection’ and consequently, the absence of adequate
    measures in the event of concrete discrimination may lead to a violation of this
    provision.[207]

International Covenant on
Economic, Social and Cultural Rights

  1. Australia has been party to the
    ICESCR[208] since 1976. Under
    ICESCR, Australia has an obligation to:

    recognize the right of
    everyone to the enjoyment of just and favourable conditions of work which
    ensure, in particular... Equal opportunity for everyone to be promoted in his
    employment to an appropriate higher level, subject to no considerations other
    than those of seniority and
    competence.[209]

  2. Further, Article 2 of the ICESCR requires State parties to take concrete
    steps by all appropriate means, particularly legislation, to ensure the full
    realization of the rights guaranteed by the
    Covenant.[210]

  3. Importantly, under Article 3, Australia undertakes to ensure the equal right
    of men and women to all of the rights under the ICESCR.

  4. The Committee on Economic, Social and Cultural Rights (CESCR Committee) is
    responsible for monitoring the implementation of ICESCR by those States which
    are party to it. In reviewing Australia’s implementation of ICESCR in
    2006, the ICESCR Committee expressed the following concerns:

    despite
    the State party's efforts to improve gender equality, a wage gap still persists
    between men and women in the workplace, particularly in managerial positions. It
    is also concerned at the low percentage of women in high-ranking positions in
    political and public
    life.[211]

  5. The ICESCR Committee recommended Australia:

    continue
    strengthening its effort to enhance equality between men and women in the work
    place, in particular those initiatives aimed at implementing the principle of
    equal pay for work of equal
    value.[212]

International
Labour Organisation Conventions

  1. The International Labour Organisation (ILO) regards gender equality as both
    a basic human right and an intrinsic part of their global aim of Decent Work for
    All Women and Men.

  2. The ILO Discrimination (Employment and Occupation) Convention (ILO
    111) was ratified by Australia in 1973. As a signatory to this convention
    Australia has undertaken to:

    pursue a national policy designed to
    promote, by methods appropriate to national conditions and practice, equality of
    opportunity and treatment in respect of employment and occupation, with a view
    to eliminating any discrimination in respect
    thereof.[213]

  3. ILO 111 defines discrimination to include:

    Any distinction,
    exclusion or preference made on the basis of...sex...which has the effect of
    nullifying or impairing equality of opportunity or treatment in employment or
    occupation.[214]

  4. Australia also ratified the ILO Convention concerning Equal Remuneration
    for Men and Women Workers for Work of Equal Value     (ILO 100) in 1974. This
    convention obliges Australia to “ensure the application to all workers of
    the principle of equal remuneration for men and women workers for work of equal
    value.”[215]

  5. ILO 100 proposes the principle of equal remuneration may be applied through
    the adoption of appropriate national laws or regulations, legally established or
    recognised machinery for wage determination, collective agreements between
    employers and workers or a combination of these various
    means.[216]

  6. In 1990, Australia ratified the ILO Convention concerning Equal
    Opportunities and Equal Treatment for Men and Women Workers: Workers with Family
    Responsibilities, 1981 (ILO 156). As a party to ILO 156, Australia is obliged
    to:

    Make it an aim of national policy to enable persons with family
    responsibilities who are engaged or wish to engage in employment to exercise
    their right to do so without being subject to discrimination and, to the extent
    possible, without conflict between their employment and family
    responsibilities.[217]

  7. ILO 156 applies equally to, “men and women workers with
    responsibilities in relation to their dependent children, where such
    responsibilities restrict their possibilities of preparing for, entering,
    participating in or advancing in economic
    activity.”[218]

Beijing
Declaration and Platform for Action

  1. The Fourth World Conference on Women was held in Beijing in 1995. The
    Beijing Declaration and Platform for Action was adopted by consensus.

  2. As a participant in the Beijing Conference, Australia made a commitment to
    implement the Beijing Platform for Action. Women in power and
    decision-making’ is one of the Beijing Platform’s 12 critical areas
    of concern. The Platform states:

    Without the active participation of
    women and the incorporation of women’s perspective at all levels of
    decision-making, the goals of equality, development and peace cannot be
    achieved.[219]

  3. The Platform requires the Australian government to:

    Commit
    themselves to establishing the goal of gender balance in governmental bodies and
    committees, as well as in public administrative entities, and in the judiciary,
    including, inter alia, setting specific targets and implementing measures to
    substantially increase the number of women with a view to achieving equal
    representation of women and men, if necessary through positive action, in all
    governmental and public administration
    positions.[220]

  4. The Government is also asked to, ‘encourage greater involvement of
    indigenous women in decision-making at all
    levels’.[221]

  5. The Platform recognises the importance of collecting and monitoring data and
    research. Governments are required to:

    Monitor and evaluate
    progress in the representation of women through the regular collection, analysis
    and dissemination of quantitative and qualitative data on women and men at all
    levels in various decision-making positions in the public and private sectors,
    and disseminate data on the number of women and men employed at various levels
    in Governments on a yearly basis; ensure that women and men have equal access to
    the full range of public appointments and set up mechanisms within governmental
    structures for monitoring progress in this
    field.[222]

    Support non-governmental organisations and research institutes that conduct
    studies on women’s participation in and impact on decision-making and the
    decision-making
    environment.[223]

    and

    Recognize that shared work and parental responsibilities between women and
    men promote women’s increased participation in public life, and take
    appropriate measures to achieve this, including measures to reconcile family and
    professional life. [224]

  6. The Platform prescribes additional actions required from governments as well
    as national bodies, the private sector, trade unions, employers’
    organisations, research and academic institutions. These actions include:

    • Take positive action to build a critical mass of women leaders, executives
      and managers in strategic decision-making positions;

    • Create or strengthen, as appropriate, mechanisms to monitor women’s
      access to senior levels of decision-making;

    • Review the criteria for recruitment and appointment to advisory and
      decision-making bodies and promotion to senior positions to ensure that such
      criteria are relevant and do not discriminate against women;

    • Encourage efforts by non-governmental organisations, trade unions and the
      private sector to achieve equality between women and men in their ranks,
      including equal participation in their decision-making bodies and in
      negotiations in all areas and at all levels;

    • Develop communications strategies to promote public debate on the new roles
      of men and women in society, and in the family;

    • Restructure recruitment and career-development programmes to ensure that all
      women, especially young women, have equal access to managerial, entrepreneurial,
      technical and leadership training, including on-the-job
      training;

    • Develop career advancement programs for women of all ages that include
      career planning, tracking, mentoring, coaching, training and
      retraining.[225]

9.2 Appendix 2:
Detail of the Key Features of Australia’s National Laws and Institutional
Arrangements which impact on Gender Equality in the Workforce

Equal Opportunity for Women in the
Workplace Act 1999 and Agency

Protected attributes and areas

  1. Uniquely, the EOWW Act deals only with discrimination against women in
    employment.[226]

Coverage

  1. The EOWW Act applies to all higher education institutions and federal
    employers with 100 or more
    employees.[227] It does not apply
    to the Commonwealth, a State, a Territory or an
    authority.[228] The EOWW Act does
    not include as ‘employees’ equity partners in professional firms or
    non-executive board members.

  2. The Review of the Equal Opportunity for Women in the Workplace Act 1999:
    Issues Paper     indicates that as of July 2009, approximately 30% of all
    organisations in Australia were covered by the EOWW
    Act.[229]

Operative gender equality provisions

  1. The EOWW Act does not prohibit direct and indirect discrimination. Instead,
    it tackles systemic discrimination by promoting employers to take action aimed
    at achieving equal opportunity for women in the workplace. Its objects are
    to:

    • promote the principle that employment for women should be dealt with on the
      basis of merit;

    • promote, amongst employers, the elimination of discrimination against, and
      the provision of equal opportunity for, women in relation to employment matters;
      and

    • to foster workplace consultation between employers and employees on issues
      concerning equal opportunity for women in relation to
      employment.[230]

  2. Its primary means of doing this is by requiring covered employers to develop
    a workplace program that is designed to ensure that:

    • appropriate action is taken to eliminate all forms of discrimination against
      women in relation to employment matters; and

    • measures are taken to contribute to the achievement of equal opportunity for
      women in relation to employment
      matters.[231]

  3. The EOWW Act defines ‘employment matters’ to include:
    recruitment procedures and selection criteria, promotion, transfer and
    termination, training and development, work organisation, conditions of service,
    arrangements for dealing with sex based harassment of women and arrangements for
    dealing with pregnant or potentially pregnant employees and those breastfeeding
    their children.[232]

  4. Under s.8 of the EOWW Act, covered employers must:

    • confer responsibility for the development and implementation of the program
      on a person having sufficient authority and status within the management of the
      organisation;

    • consult with employees, particularly employees who are women; and

    • prepare a workplace profile and an analysis of issues relating to employment
      matters that need to be addressed in order to achieve equal opportunity for
      women in the workplace.

  5. Workplace programs must provide for actions to be taken and an evaluation of
    the effectiveness or otherwise of actions
    taken.[233]

Enforcement mechanisms

  1. Generally, the EOWW Act has the weakest enforcement mechanisms.

  2. A covered employer is required to submit a public report on the outcomes of
    their workplace program to the Equal Opportunity for Women in the Workplace
    Agency (EOWA) every 12
    months.[234]

  3. The report must describe the actions taken and planned to be taken to
    achieve equal opportunity for women in the employer’s
    workplace.[235] An evaluation of
    the effectiveness must either appear in the public report or in a confidential
    report.[236]

  4. The EOWA monitors the reports and can request further information from
    particular employers.[237] The
    EOWA identifies those employers that fail to lodge an annual report or fail to
    provide further information when directed in an annual report to the Minister.
    The report is tabled in
    Parliament[238] and made available
    on their website.

  5. As noted above, the Australian Government Procurement Guidelines prevent
    Government departments from buying goods and services from, or entering into
    contracts with organisations identified in these
    reports.[239] The Review of the
    Equal Opportunity for Women in the Workplace Act 1999: Issues Paper     states
    further, that these organisations may also be ineligible for grants under
    specified industry assistance
    programs.[240]

Equal
Opportunity for Women in the Workplace Agency

  1. The EOWW Act is administered by the EOWA. The EOWA is a statutory authority
    located within the Australian Government Department of Families, Housing,
    Community Services and Indigenous Affairs. The Director of the EOWA is appointed
    by the Governor General[241] and
    reports directly to the Minister for the Status of Women. The EOWA is to perform
    its functions in accordance with ‘general instructions given by the
    Minister in writing.’[242]
  2. In addition to its role in enforcing the EOWWA by monitoring and reporting
    on compliance with employer’s workplace program reporting requirements
    discussed above, the EOWA also:

    • advises and assists employers develop and implement workplace programs;
    • collects, analyses and benchmarks information and provides personalised
      feedback and advice to organisations;
    • develops guidelines and tools;
    • monitors and evaluates the effectiveness of workplace programs in achieving
      purposes of EOWW Act;
    • undertakes research and educational programs to promote EEO for women in
      workplace;
    • promotes understanding and acceptance and public discussion of equal
      opportunity for women in the workplace through Award programs such as the
      Employer of Choice for Women Award and the EOWA Business Achievement
      Awards;
    • reviews the effectiveness of EOWW Act and reports to the Minister on matters
      in relation to EEO for women in the workplace; and
    • provides training and assistance to employers in establishing and developing
      workplace programs.[243]

Sex Discrimination Act 1986 and
Sex Discrimination Commissioner/Australian Human Rights Commission

Protected attributes and areas

  1. The SDA covers discrimination on the ground of
    sex,[244] marital
    status,[245] pregnancy or
    potential pregnancy,[246] as well
    as family responsibilities.[247] ‘Carer’s responsibilities’ is not covered by the SDA.

  2. The SDA generally applies in all prescribed areas of public life, including
    goods and services,[248] education,[249] accommodation,[250] land,[251] clubs[252] and the administration
    of Commonwealth laws and
    programs[253] as well as
    employment[254] and
    superannuation.[255]

  3. However, under the SDA, discrimination on the ground of family
    responsibilities is unlawful only where the discrimination is
    ‘direct’ discrimination and only in dismissal from
    employment.[256]

  4. The Commission’s records show that employment complaints represent a
    significant number of all sex discrimination complaints lodged at the
    Commission.[257]

  5. The SDA also prohibits sexual harassment in many areas of public
    life.[258]

Coverage

  1. The SDA covers all existing and prospective female employees except for
    existing and prospective State
    employees.[259]

  2. Unlike the EOWW Act, the SDA covers all Commonwealth female employees and,
    unlike the FWA, the SDA has a limited application to male
    employees.[260]

Operative gender equality provisions

  1. The SDA prohibits:

    • treating a person less favourably than a person of the opposite sex in the
      same or similar circumstances by reason of the person’s sex (direct
      discrimination);[261] and

    • imposing an unreasonable condition, requirement or practice that has, or is
      likely to have, the effect of disadvantaging persons of the same sex (indirect
      discrimination).[262]

  2. The SDA expressly prohibits both direct and indirect discrimination in all
    prescribed areas of public life, including in relation to employment:

    • in the arrangements made for the purpose of determining who should be
      offered employment;

    • in determining who should be offered employment;

    • in the terms and conditions on which employment is offered or afforded;

    • by denying the employee access, or limiting the employee’s access, to
      opportunities for promotion, transfer or training, or to any other benefits
      associated with employment;

    • by dismissing the employee; or

    • subjecting the employee to any other
      detriment.[263]

  3. Sex discrimination is not unlawful in employment where a person’s sex
    is a genuine occupational
    qualification.[264]

  4. At the present time, the SDA makes no provision for a general positive duty
    on employers or other bodies to prevent discrimination or promote gender
    equality. The SDA therefore has only a limited role to play in challenging
    systemic discrimination by working to overcome barriers that disadvantage women
    in the workplace.

  5. In particular, the SDA has proved inadequate to promote flexible work
    arrangements for both women and men in the workplace. This is primarily because
    the prohibition against indirect discrimination does not extend to the ground of
    family responsibilities and the SDA’s limited application to
    men.[265]

  6. The Australian Human Rights Commission and the SDC have some functions that
    seek to address systemic discrimination against women, which will be discussed
    below.[266]

Enforcement
mechanisms

  1. The SDA largely relies on individuals lodging complaints of direct and
    indirect discrimination but is supported by the SDC’s functions as amicus
    curiae in discrimination
    proceedings[267] and the
    Australian Human Rights Commission’s inquiry and research
    functions.[268]
  2. Complainants must lodge a complaint with the Commission before seeking
    redress from the Federal Court or Federal Magistrates
    Court.[269] The President
    inquires into and attempts to conciliate the complaints the Commission receives.
    If the complaint cannot be conciliated, it is terminated and a complainant may
    then lodge an application at the Federal Court or the Federal Magistrates
    Court.[270]
  3. The SDC may appear as amicus curiae in the Federal Court and Federal
    Magistrates Court, with leave of the court
    concerned.[271]

Sex
Discrimination Commissioner and the Australian Human Rights
Commission

  1. The office of the SDC is created by s.96 of the SDA. The Commissioner is
    appointed by the
    Governor-General[272] and, by
    convention, the appointment is made on the advice of the Federal Attorney
    General.[273] The gender of the
    person is not specified.

  2. The SDC is currently also responsible for age discrimination. The President
    is solely responsible for the handling of complaints under the
    SDA.[274]

  3. Under the SDA, the majority of the functions and powers relevant to the SDA
    (and CEDAW) are not given to the SDC but to the
    ‘Commission’.[275] The
    SDC is a member of the Commission, together with the President and Human Rights
    Commissioner, the Race Discrimination Commissioner, the Aboriginal and Torres
    Strait Islander Commissioner and the Disability Discrimination
    Commissioner.[276]

  4. The SDA sets out a range of functions to be carried out by the Commission,
    including:

    • Granting temporary
      exemptions;[277]

    • Promoting understanding and acceptance of, and compliance with, the
      SDA;[278]

    • Conducting research and education, and other programs on behalf of the
      Commonwealth;[279]

    • Examining laws or (where requested by the Minister) proposed laws and
      reporting to the Minister;[280]

    • Reporting to the Minister on new laws or action that should be taken by the
      Commonwealth about unlawful discrimination or sexual
      harassment;[281]

    • Preparing non-legally binding
      guidelines;[282] and

    • Intervening in any court proceedings, with leave of the
      court.[283]

  5. In addition to these functions under the SDA, the Commission also has
    general duties, functions and powers under the Australian Human Rights
    Commission Act which may be used to promote ‘human rights’.
    ‘Human rights’ are defined to include ‘the rights and freedoms
    recognized in the ICCPR’ including the right to non-discrimination and
    equality on the ground of
    sex.[284]

  6. The Commission also has the following human rights functions:

    • To examine laws which may be inconsistent with human rights and report to
      the Minister;[285]

    • To report to the Minister about action that needs to be taken by Australia
      in order to comply with human
      rights;[286] and

    • To inquire into any act or practice that may be inconsistent with or
      contrary to any human right, and, where appropriate, to attempt conciliation to
      effect a settlement, and in the absence of a settlement, to report to the
      Minister (although this function does not apply to an intelligence agency, such
      as ASIO).[287]

  7. The Commission has the following powers in relation to the exercise of its
    functions:

    • To do all things necessary or convenient to be done for or in connection
      with its functions;[288]

    • To report to the Minister at its discretion on ‘any matter arising in
      the course of the performance of its functions’ and an obligation to
      report to the Minster if requested by the Minister to do
      so;[289]

    • To work with and consult appropriate persons, governmental organisations and
      non-governmental
      organisations;[290] and

    • In relation to its formal human rights inquiry function, to require a person
      to give information or produce documents and to examine witnesses. Failure to
      comply constitutes an
      offence.[291]

  8. These functions are to be used across the full range of gender equality
    issues for women in Australia.

  9. However, as previously noted in the Commission’s Submission to the
    SDA Review    , the Commissioner and the Commissioner are significantly
    constrained in the exercise of their powers and functions due to limited
    resources and competing
    priorities.[292]

Fair Work Act 2009 and Fair Work
Australia and Ombudsman

Protected attributes and areas

  1. The FWA covers a person’s sex, marital status, family or carer’s
    responsibilities and pregnancy, as well as race, colour, age, physical or mental
    disability, religion, political opinion, national extraction or social
    origin.[293]

  2. Unlike the SDA, the FWA includes the ground ‘carer’s
    responsibilities’ and the ‘family or carer’s
    responsibilities’ ground is not limited to termination. [294]

Coverage

  1. The protections against workplace discrimination in the FWA apply to all
    existing and prospective employees[295] of constitutionally covered
    entities[296] as well as some
    State employees and prospective State
    employees.[297]

  2. Unlike the EOWW Act, the FWA applies to Commonwealth employees. Unlike the
    SDA, the FWA has equal coverage of men and women.

  3. It is estimated that the FWA will cover approximately 85% of Australian
    employees.[298]

Operative gender equality
provisions

Unlawful discrimination

  1. The FWA discrimination provision prohibits a covered employer taking
    ‘adverse action’ against an existing or prospective covered employee
    because of a protected
    attribute.[299]

  2. Adverse action
    includes:[300]

    • Refusing to employ a prospective employee;

    • Dismissing an employee;

    • Injuring an employee in their employment;

    • Altering the position of an employee to the employee’s prejudice;
      and

    • Discriminating between an employee and other employees of the
      employer.

  3. As the FWA is remedial legislation, it is likely that ‘adverse
    action’ will be interpreted broadly to cover a wide range of actions
    touching upon terms and conditions of employment, operation of workplace
    policies, training opportunities, access to promotions, other benefits
    associated with employment or any form of detriment.

  4. There is an overlap between the concept of ‘adverse action’ and
    the ‘discrimination in work’ provisions in the
    SDA[301] and ‘employment
    matters’ in the EOWW
    Act[302] outlined above.

  5. ‘Adverse action’ is not defined with reference to concepts of
    direct or indirect discrimination and is therefore potentially broader in scope
    than the SDA.

  6. It is not yet clear to what extent it will extend to cover claims of
    indirect or systemic discrimination. However, it seems possible that courts
    would be open to treating an allegation of systemic bias or adverse outcome
    discrimination because of a prohibited attribute as coming within the scope of
    ‘adverse action’.

  7. The Government’s new national anti-discrimination information gateway
    states that:

    The discriminatory adverse action provisions of the
    Fair Work Act 2009 are extremely broad in scope, not differentiating between
    direct or indirect, inadvertent or deliberate discrimination.

    The Fair Work Ombudsman has a particular interest in investigating and
    addressing indirect and systemic workplace discrimination and discriminatory
    policies and
    practices.[303]

  8. The FWA also makes it unlawful for a person to take adverse action because
    another person has, or exercises a workplace
    right.[304] A workplace right
    includes an entitlement under an industrial law, such as parental
    leave.[305]

  9. ‘Adverse action’ will not be unlawful if the action taken is not
    unlawful under any of the federal or state anti-discrimination laws in
    force.[306] This means that the
    exemptions under the SDA will apply equally to adverse action claims under the
    FWA.

  10. Unlike the SDA, the onus of proof is reversed so that once a complainant has
    shown some evidence that the respondent took ‘adverse action’ for a
    prohibited reason, the respondent has to establish that the conduct was not
    carried out unlawfully.[307]

  11. FWA also provides unlawful termination protections for all employees
    in Australia. The FWA makes it unlawful to terminate an employee’s
    employment for sex, marital status, family or carer’s responsibilities,
    pregnancy or absence from work during maternity leave or other parental leave
    reasons.[308]

Positive
rights (flexible work arrangements)

  1. The FWA provides for ten national employment standards that will act as a
    minimum safety net for all employees under the federal system from 1 January
    2010.[309]

  2. The standards that will help both male and female workers better accommodate
    their family responsibilities are:

    • a right to request flexible working arrangements for the care of a child who
      is under school age or a child under 18 with a
      disability;[310]

    • a right to 12 months unpaid parental leave for each
      parent;[311]

    • request for extra parental leave up to 12
      months;[312]

    • a right to paid and unpaid personal/carer’s leave and compassionate
      leave;[313]and

    • an obligation on employers to take an employee’s family
      responsibilities into account when requiring them to work
      overtime.[314]

  3. Many of the entitlements are framed as positive, enforceable rights. This is
    in contrast to the SDA, which is framed in terms of prohibitions on unlawful
    behaviour.[315]

  4. However, the right to request flexible work arrangements and the right to
    unpaid parental leave is limited – it applies only to children under
    school age, it does not apply to workers unless they have at least 12 months
    continuous service[316] and also,
    in the case of casual workers, a reasonable expectation of continuing
    employment.[317]

  5. Employees will not be able to challenge an employer’s decision to
    refuse:

    • a request for flexible work arrangements on reasonable
      grounds;[318] and

    • a request for extended parental leave on reasonable business
      grounds.[319]

Equal remuneration

  1. The FWA provides Fair Work Australia with the power to make an order it
    considers appropriate to ensure that there will be equal remuneration for men
    and women workers for work of equal or comparable value in relation to employees
    to whom the order will
    apply.[320]

  2. Importantly, it is no longer necessary for an applicant to demonstrate that
    there has been some discrimination involved in the setting of remuneration.
    Instead, Fair Work Australia need only be satisfied that there is not equal
    remuneration for work of equal or comparable
    value.[321]

  3. Further, the FWA prohibits discriminatory terms in modern
    awards[322] and Fair Work
    Australia may vary modern award minimum wages on ‘work value’
    grounds.[323]

Enforcement mechanisms

  1. The FWA is enforced through both individual complaints as well as the broad
    powers of the Fair Work Ombudsman to investigate breaches and institute legal
    proceedings. It has the strongest enforcement mechanisms of the three federal
    Acts.

  2. Fair Work Australia provides conciliation services which are compulsory for
    dismissal claims[324] and
    voluntary for all other kinds of discrimination
    claims.[325]

  3. The Fair Work Ombudsman may appoint Fair Work
    Inspectors.[326] Unlike the
    Australian Human Rights Commission, the Fair Work Ombudsman can use workplace
    inspectors and the powers conferred on inspectors to access premises and obtain
    relevant documents.[327]

  4. Under the FWA, Fair Work Inspectors may enter business premises without
    force and:

    • inspect any work, process or object;

    • interview any person;

    • require a person to tell the inspector who has custody or access to a record
      or document;

    • require a person to produce a record or document;

    • inspect and make copies of records or documents that is kept on the premises
      or accessible from any computer on the premises; or

    • take any samples of any goods or
      substances.[328]

  5. Fair Work Inspectors may also issue compliance notices if an inspector
    reasonably believes that a person has contravened the FWA or a Fair Work
    Instrument, including amongst other things, the provisions of the National
    Employment Standards or an equal remuneration
    order.[329]

    A
    compliance notice may require the person to take action to remedy the direct
    effects of the contravention and/or produce reasonable evidence of the
    person’s compliance with the
    notice.[330]

    The Fair Work Ombudsman may also commence proceedings or represent employees
    in court or in applications before Fair Work
    Australia.[331]  

Fair Work Australia and Fair Work
Ombudsman

  1. Fair Work Australia replaces the former Australian Industrial Relations
    Commission. It is the national workplace relations tribunal with specific
    dispute resolution functions under the FWA.

  2. Fair Work Australia has functions under the FWA in relation to:

    • the national minimum standards;[332]

    • modern awards;[333]

    • workplace determinations;[334]

    • minimum wages;[335]

    • equal
      remuneration;[336]                    

    • granting remedies for unfair
      dismissal;[337]

    • regulating the taking of industrial
      action;[338]

    • resolving a range of collective and individual workplace disputes through
      conciliation, mediation and in some cases
      arbitration.[339]

  3. Fair Work Australia also has the function of providing assistance and advice
    about its functions and
    activities.[340]

  4. Fair Work Australia has the following powers to inform itself in relation to
    any matter before it:

    • requiring a person to attend before it;

    • inviting oral or written submissions;

    • requiring a person to provide copies of documents or records, or to provide
      any other information to FWA;

    • taking evidence under oath or affirmation in accordance with the regulations
      (if any);

    • requiring an FWA Member, a Full Bench or the Minimum Wage Panel to prepare a
      report;

    • conducting inquiries;

    • undertaking or commissioning research;

    • conducting a conference; or

    • holding a
      hearing.[341]

  5. The FWA also creates the office of the Fair Work Ombudsman which is an
    independent statutory office.[342] The FWO is appointed by the Governor General and must prepare an annual report
    for presentation to federal parliament. The FWO has extensive systemic powers of
    enforcement, including to:

    • monitor compliance with the FWA and Fair Work Instruments;

    • inquire into and investigate practices contrary to the FWA;

    • commence proceedings in court or make applications to Fair Work
      Australia;

    • promote compliance with the FWA;

    • provide education, assistance and advice to employees, employers,
      outworkers, outworkers entities and organisation;

    • monitor compliance with the FWA and fair work instruments;
      and

    • referring matters to relevant
      authorities.[343]

  6. The FWA does not confer any specific functions on the Fair Work Ombudsman to
    investigate or conciliate discrimination claims.

Australian Government Office of
Work and Family

  1. The Office of Work and Family resides in the Department of Prime Minister
    and Cabinet. The role of the Office of Work and Family is to ensure that the
    formulation of policies in balancing work and family life takes place at the
    highest level and is central to Government policy decisions.

  2. The Office of Work and Family provides support for government policies on
    child care and early childhood education and produces an annual State of the
    Family Report.[344]

Australian Government Office for
Women

  1. The Office for Women is a gender specific office of the Australian
    Government which is located within FAHCSIA. Its role is to influence policy and
    decision-making to ensure women's interests are considered, to act as the
    central source of advice for Government agencies on policies and programs for
    Australian women.[345]

  2. The Office for Women also provides high level advice to the Minister for the
    Status of Women and administers programs relating to women, represents the
    Australian Government in national and international forums on women’s
    issues and provides support for trafficking victims.

  

9.3 Appendix 3:
Comparative Gender Equality Laws and Institutional Arrangements in the UK,
Canada, New Zealand and Norway

United
Kingdom

  1. There are three key pieces of national legislation relevant to sex
    discrimination and gender equality in the United Kingdom: the Equal Pay Act
    1970; Sex Discrimination Act 1975     and Equality Act 2006. The
    Government Equalities Office has responsibility for the equalities policy and
    legislation.[346] The Human
    Rights Act 1998     (HRA) also makes provision for non-discrimination and
    equality, including in respect of gender.

  2. In April 2009 the Equality Bill 2009 was introduced in the House of
    Commons.[347] The United Kingdom
    Government hopes the Bill will receive Royal Assent in spring 2010 with the
    majority of its provisions taking effect in October 2010. [348] The Bill, if passed, will
    consolidate all United Kingdom discrimination legislation, increase protection
    for women and extend enforcement mechanisms for sex discrimination and
    equality. [349]

The National
Human Rights Institution

  1. The Commission for Equality and Human Rights (‘EHRC’) was
    established by the Equality Act 2006 (UK) and commenced operation on 1
    October 2007.

  2. The EHRC continues the work of the three previous equality commissions in
    the United Kingdom (the Equal Opportunities Commission, the Commission for
    Racial Equality, and the Disability Rights Commission). It has also taken on
    responsibility for promoting human rights and equality, and combating unlawful
    discrimination in three new strands: age, sexual orientation and
    religion or belief. The EHRC also encourages compliance with the HRA.

  3. The EHRC has jurisdiction over England, Wales and some human rights issues
    in Scotland and liaises with the Equality Commission for Northern Ireland which
    has the equivalent equality jurisdiction for that
    region.[350]

  4. The EHRC describes itself as ‘the independent advocate for equality
    and human rights in
    Britain’.[351] It aims to
    reduce inequality, eliminate discrimination, strengthen good relations between
    people, and promote and protect human
    rights.[352] The EHRC enforces
    equality legislation on age, disability, gender, gender assignment, race,
    religion or belief, sexual orientation and encourages compliance with the Human
    Rights Act. It also gives advice and guidance to businesses, the voluntary and
    public sectors and to
    individuals.[353]

  5. The EHRC is a non-departmental public body which is accountable for its
    public funds, but independent of
    government.[354] It has a range
    of powers to support its promotional work, as well as specific powers relating
    to the enforcement of discrimination (but not human rights) legislation. [355]

Anti-discrimination Framework

  1. The EHRC may investigate whether an unlawful act of discrimination or
    harassment has occurred.[356] It
    need only suspect that an unlawful act of discrimination or harassment has taken
    place in order to commence the
    investigation.[357] The EHRC has
    the power to compel evidence for
    investigations.[358]

  2. Following an investigation, if the EHRC concludes that unlawful
    discrimination or harassment has taken place, it may issue an ‘unlawful
    act notice’.[359] This
    notice can require the recipient to prepare an action plan setting out the steps
    they will take to stop or rectify the discrimination and may include recommended
    action.[360] If the person does
    not comply with the action plan, the EHRC may then apply to the courts to
    enforce it.[361]

  3. Alternatively, where a person is willing to work with the EHRC to achieve
    improvement, they can enter into a binding agreement with
    it.[362] An agreement may be made
    before, during or after an investigation if the EHRC thinks unlawful
    discrimination or harassment has
    occurred.[363]  In exchange
    for the EHRC’s agreement not to investigate the matter further, the
    agreement may include a commitment to take, or refrain from taking, a specified
    action such as best practice
    audits.[364] If the EHRC thinks
    the person may not comply or has not complied with any part of the agreement, it
    can apply to the courts to enforce the
    agreement.[365]

  4. The EHRC also has the power to investigate whether or not an unlawful act
    notice or binding agreement is being complied with and it can compel evidence to
    this investigation.[366]

Positive Duties

  1. The Gender Equality Duty (‘GED’) came into force in the United
    Kingdom in April 2007.[367] It
    places a legal obligation on all public authorities to identify and eliminate
    discrimination and harassment, and to proactively promote equality of
    opportunity.

  2. All prescribed public authorities are required to prepare and publish a
    gender equality scheme showing how it intends to fulfil its
    GED.[368] Prescribed public
    authorities are required to implement their gender equality schemes within 3
    years unless it would be unreasonable or impracticable for it to perform the
    requirement.[369]

  3. Prescribed public authorities are also required to review their gender
    equality scheme and publish a revised gender equality scheme every 3
    years.[370] Further, prescribed
    public authorities must publish an annual report summarising the actions taken
    toward the achievement of its
    GED.[371]

  4. The EHRC enforces the GED by issuing notices to comply if it thinks a public
    authority is failing to comply with the
    GED.[372] The EHRC may apply to
    the County Court for an order requiring compliance if the public authority fails
    to comply with the EHRC’s
    notice.[373]

Legal proceedings

  1. In addition to the EHRC powers to investigate and enforce
    anti-discrimination laws, individuals also have the power to institute legal
    proceedings for breaches of anti-discrimination laws. Claims of unlawful
    discrimination in employment may be lodged with an employment
    tribunal[374] and proceedings for
    unlawful discrimination in education and training, housing, public
    administration and the provision of goods, facilities and services, may be
    instituted in court.[375]

  2. Only the EHRC can institute legal proceedings against a person for
    discriminatory advertisements and for pressuring or instructing another to
    undertake unlawful
    discrimination.[376]

Conciliation

  1. While conciliation is not a compulsory step in resolving complaints of
    unlawful discrimination, the EHRC is empowered to arrange conciliation services
    in disputes related to discrimination in education and training, housing, public
    administration and the provision of goods, facilities and
    services.[377] Conciliation is
    delivered by an independent provider to ensure that information about the case
    does not become available to EHRC, which could potentially be involved in
    supporting a case where conciliation broke down or in formal enforcement
    proceedings against a
    discriminator.[378]

  2. The Advisory, Conciliation and Arbitration Service (an independent body that
    is accountable for its public funds) provides free conciliation for
    discrimination in employment
    matters.[379]

Injunctions

  1. If the EHRC thinks that a person is likely to commit an act of unlawful
    discrimination, it may apply to the court for an injunction to prevent
    them.[380]

Third Party Interventions

  1. The EHRC is able to seek leave to intervene in court cases which may have an
    equality or human rights dimension to provide the court with expert
    knowledge.[381]

Supporting
complainants

  1. The EHRC has the power to provide any form of assistance to individuals
    bringing legal proceedings under anti-discrimination legislation (but not the Human Rights Act 1998 (UK)).[382] There are no
    statutory criteria limiting the EHRC’s support for individual
    complainants. This support may include financial assistance or legal advice or
    representation.[383]

Pay Equity Framework

  1. The Equal Pay Act 1970 (UK) makes it unlawful for employers to
    discriminate between male and female employees in terms of pay and conditions
    where they are doing the same or similar work, work rated as equivalent, or work
    of equal value.[384] This
    legislation covers not just wages and salaries, but bonuses, overtime, holiday
    pay, sick pay, performance related pay, travel concessions and occupational
    pensions.[385]

  2. Complaints of unequal pay may be brought before an employment
    tribunal.[386]

  3. The National minimum wage, overseen by the Low Pay Commission, has had a
    significant effect on the gender pay gap among the low paid in the
    UK.[387]

Additional Commission
Powers

Independent Monitoring

  1. The EHRC is charged with defining (in consultation with interested parties)
    and monitoring progress on equality and human rights in the United
    Kingdom.[388] Every three years
    it must publish a report which is laid before Parliament outlining the extent of
    progress towards
    equality.[389]

Codes
of Practice

  1. The EHRC may issue statutory codes of practice in relation to any aspect of
    pay equity, unlawful sex discrimination and the
    GED.[390] Codes of practice
    explain the requirements of the law and are designed to assist business and the
    public sector to understand their legal responsibilities and recommend good
    practice.

  2. The EHRC can prepare new codes either on its own initiative or at the
    request of the relevant Secretary of
    State.[391] It must consult with
    interested parties before it issues a code and must publish proposals for a code
    so that members of the public can provide input on those
    proposals.[392] The code must be
    approved in draft by the Secretary of State and laid before the
    Parliament.[393] If neither House
    of Parliament passes a resolution disapproving the draft code within 40 days,
    the code comes into force.[394]

  3. Failure to comply with a code of practice does not itself give rise to
    criminal or civil proceedings, but may be admissible in such
    proceedings.[395] Courts and
    tribunals are required to take relevant codes of practice into account when
    determining if unlawful discrimination has
    occurred.[396]

Assessments, Inquiries and Investigations

  1. The EHRC may make an assessment as to the extent to which or the manner in
    which a public authority has complied with duties to eliminate
    discrimination.[397] The EHRC is
    also able to conduct inquiries into any matter relating to its
    duties.[398] Inquiries may be
    thematic or in relation to one or more named parties.

  2. The EHRC may investigate whether or not a person has committed an unlawful
    act, complied with a requirement imposed by an unlawful act notice or complied
    with an agreement to an
    undertaking.[399]

  3. The EHRC may initiate inquiries, assessments and investigations
    independently or at the request of the Secretary of
    State.[400] The EHRC is required
    to publish terms of reference before launching an inquiry, assessment or
    investigation[401] and is required
    to publish reports at the end of the inquiry, assessment or investigation
    process, which may include recommendations for
    change.[402] The EHRC may compel
    evidence relevant to an inquiry, assessment or
    investigation.[403]

Third Party Interventions

  1. The EHRC is able to seek leave to intervene in court cases which may have an
    equality or human rights dimension to provide the court with expert
    knowledge.[404]

Equality
Bill 2009

  1. In April 2009 the Equality Bill 2009 was introduced in the House of Commons.
    The Equality Bill 2009 will consolidate all United Kingdom discrimination
    legislation replacing the nine major pieces of discrimination legislation with
    one Act.

  2. The Equality Bill, if passed, will impose a Public Sector Equality Duty on
    certain public authorities.[405] The existing framework for equality places three separate duties on public
    authorities: a Race Equality
    Duty[406], a Disability Equality
    Duty[407] and a Gender Equality
    Duty.[408] The Equality Bill 2009
    will place just one equality duty on public authorities that covers the nine
    protected attributes of sex, maternity and pregnancy, marriage and civil
    partnership, disability, race, age, gender reassignment, sexual orientation,
    religion or belief.[409]

  3. The Equalities Office is currently running a consultation on making the
    Equality Bill work, including the introduction of a specific duty, which will be
    contained in secondary legislation, requiring all public bodies with 150 or more
    employees to report annually on their gender pay gap, their ethnic minority
    employment rate and their disability employment
    rate.[410]

  4. The Equality Bill 2009, if passed, will also provide a Minister of the Crown
    with the power to make regulations requiring private sector employers with at
    least 250 employees to publish information about the differences in pay between
    their male and female employees. [411] The regulations may specify the
    form and timing of the publication, which will be no more frequently than
    annually. Further the regulations may specify penalties for non-compliance,
    including civil enforcement procedures or liability for criminal offences
    punishable by fines of up to ₤5,000. The Government has however stated
    that its aim is for employers to regularly publish information on a voluntary
    basis. The Government does not intend to make regulations under this power
    before April 2013 in order to allow voluntary gender pay reporting arrangements
    time to work.[412] The power would
    only be used if sufficient progress on reporting had not been made by that
    time. [413]

  5. The EHRC is currently running a consultation on private sector gender pay
    reporting in order to determine the least burdensome way for employers to report
    on gender pay inequality.[414]

  6. The Equality Bill 2009 also contains a provision that will make contractual
    secrecy clauses that prevent employees discussing their pay with colleagues
    unenforceable. [415] Further,
    being involved in a relevant pay discussion will be a protected act for the
    purposes of the relevant victimisation
    provisions.[416] If passed, the
    Equality Bill 2009 will also extend the use of positive action in the
    workplace.[417]

  7. The Equality Bill 2009, if passed, will also extend the recommendation
    powers of Employment Tribunals so that recommendations can be made for the
    benefit not only of the individual claimant but also others who may be affected
    by the act of discrimination.[418] The EHRC will be notified of any recommendations made by the Employment Tribunal
    and will be able to monitor its implementation using its existing
    powers.[419]

New
Zealand

  1. There are five pieces of national legislation relevant to gender equality
    and sex discrimination in New Zealand: the New Zealand Bill of Rights Act 1990
    (NZ), the Human Rights Act 1993 (NZ), the Equal Pay Act 1972 (NZ) and
    the Employment Relations Act 2000 (NZ) and the State Sector Act 1988 (NZ), which
    contains the ‘good employer’ responsibilities relating to the public
    sector.[420]

  2. The national human rights institution has a role in the country’s
    anti-discrimination framework, pay equity framework and a role in monitoring
    progress towards equality, preparing guidelines and voluntary codes of practice,
    and conducting inquiries. There is also a Ministry of Women’s Affairs,
    whose mission is to be a source of advice on ways to improve the lives of
    women.[421]

National
Human Rights Institution

  1. New Zealand’s Human Rights Commission (‘NZHRC’) was
    established by the Human Rights Commission Act 1977 (NZ). It is
    independent of government but accountable for its public funds.

  2. The NZHRC’s primary functions are:

    • to advocate and promote respect for, and an understanding and appreciation
      of, human rights in New Zealand society; and

    • to encourage the maintenance and development of harmonious relations between
      individuals and among the diverse groups in New Zealand
      society.[422]

  3. The Human Rights Amendment Act 2001 (NZ) established the position of
    the Equal Employment Opportunities Commissioner within the NZHRC. The role of
    the Equal Employment Opportunities Commissioner includes monitoring and
    analysing progress in improving equal employment opportunities, and leading
    discussions about equal employment opportunities (including pay
    equity).[423]

Anti-discrimination
Framework

  1. A person has a right to be free from discrimination under the New Zealand
    Bill of Rights Act 1990     (NZ)[424] and the Human Rights
    Act 1993     (NZ).[425]

  2. The NZHRC seeks to provide a mediated settlement for complaints of unlawful
    discrimination. If a settlement cannot be reached, the complainant or the NZHRC
    may institute legal proceedings in the Human Rights Review
    Tribunal.[426]

  3. The Office of Human Rights Proceedings is an independent part of the Human
    Rights Commission. In certain circumstances, it provides free legal
    representation before the Human Rights Review Tribunal for people who have
    complained of unlawful
    discrimination.[427]

  4. Where an individual alleges unlawful discrimination in employment, as an
    alternative[428] to lodging a
    complaint with the NZHRC, they may pursue the matter as a ‘personal
    grievance’ under the Employment Relations Act 2000 (NZ).[429] That is, the individual
    must first send a written complaint to their employer then, if unsatisfied with
    the response, they may lodge their complaint with the Employment Relations
    Authority and undergo mediation. If still unresolved, the complaint is then
    investigated by the Authority.

Pay Equity
Framework

  1. The Equal Pay Act 1972 (NZ) provides that employers must afford
    employees the same terms and conditions of employment including pay and fringe
    benefits, as are made available to people of the same or substantially similar
    qualifications employed in the same or substantially similar circumstances on
    work of that description regardless of
    sex.[430]

  2. Complaints of unequal employment conditions or pay may be lodged with the
    Employment Relations Authority for resolution. [431] Alternatively, the complaint can
    be brought to the NZHRC as an allegation of unlawful discrimination in
    employment under the Human Rights Act 1993. The complainant may only
    undertake one of these two options.

  3. The Employment Equity Act (NZ) passed in 1990 was promptly repealed
    by the incoming National Government later in the same year and has not been
    replaced.

Additional Commission
Powers

Independent Monitoring

  1. One of the New Zealand Human Rights Commission’s (NZHRC) functions is
    to develop and use benchmarks to evaluate the role regulation plays in
    facilitating and promoting best practice in equal employment opportunities.
    Every two years the NZHRC publishes a census on the representation and status of
    women in leadership and decision-making roles in the public sector, corporate,
    legal, academia, politics and other fields. [432]

Guidelines and Voluntary Codes of Practice

  1. The NZHRC may prepare and publish guidelines and voluntary codes of practice
    to explain legal rights and responsibilities under the Human Rights Act
    1993     (NZ) and to promote best practice in equal employment
    opportunities.[433]

Inquiries

  1. The NZHRC may inquire into any matter including any law, practice or
    procedure (governmental or non-governmental) where it thinks human rights might
    be, or have been, infringed.[434] The NZHRC may apply to the court to compel evidence relevant to the
    inquiry.[435] If such an inquiry
    discloses or may have disclosed a breach of human rights, the NZHRC is empowered
    to bring civil proceedings before the Human Rights Review
    Tribunal.[436]

Third
Party Interventions

  1. The NZHRC has the power to apply to a court or tribunal to be appointed as
    intervenor or as counsel assisting the court or tribunal, or to take part in
    proceedings before the court or
    tribunal.[437] The NZHRC may
    exercise this power if it thinks taking part in those proceedings will
    facilitate its role in advocating for human rights and the promotion and
    protection, respect for, and observance of, human
    rights.[438]

Canada

  1. There are two key pieces of national legislation relevant to sex
    discrimination and gender equality in Canada: the Canadian Human Rights Act, RS
    1985, c H-6 and the Employment Equity Act, 1995, c 44. The national human
    rights institution has a role in the country’s anti-discrimination
    framework, pay equity framework, proactive duties framework and a role in
    preparing guidelines.

The National Human Rights
Institution

  1. The Canadian Human Rights Commission (‘CHRC’) was established by
    the Canadian Human Rights Act 1985.[439]

  2. The CHRC investigates and attempts to settle complaints of discriminatory
    practices in employment and in the provision of services. It is also
    responsible for ensuring that employers provide equal opportunities for
    employment to women, Aboriginal people, people with disabilities, and members of
    visible minorities. Further, the CHRC is mandated to develop and conduct
    information programs and discrimination prevention
    programs.[440]

Anti-discrimination Framework

  1. The CHRC receives and seeks to provide a mediated settlement for complaints
    of alleged discriminatory
    practices[441] by federally
    regulated organisations (including government agencies, unions, banks and
    airlines).[442] Complaints
    against other organisations must be dealt with by provincial and territory human
    rights commissions. If the CHRC has reasonable grounds for believing a
    discriminatory practice has occurred, it may initiate a complaint
    itself.[443]

  2. The CHRC may apply for a warrant to search premises for evidence relevant to
    an investigation of a
    complaint.[444]

  3. A complaint can only be settled if the CHRC approves the terms of the
    settlement.[445] If the CHRC is
    unable to mediate a settlement and it considers that further inquiry is
    warranted, it may refer the complaint to the Human Rights Tribunal for
    hearing.[446] The Tribunal is
    independent of the CHRC. Any interested party can intervene in a Tribunal
    inquiry.[447]

  4. If the complaint is found to be substantiated, the Tribunal can make an
    order that a person take measures to redress the discrimination or prevent its
    continuation.[448] For example,
    the order may require a person to compensate the victim or to adopt a special
    program, plan or arrangement to improve opportunities to a particular group of
    people such as people with disability or
    women.[449] The Tribunal’s
    order may also require the payment of additional compensation if the act is
    found to have been made wilfully or
    recklessly.[450] The
    Tribunal’s order can be made an order of the Federal Court and enforced as
    such.[451] The Tribunal’s
    final report on a complaint (which may include recommendations) is submitted to
    the Minister of Justice.[452]

Pay equity framework

  1. The Canadian Human Rights Act provides for equal pay between male and
    female employees in the same establishment performing work of equal
    value.[453] This protection
    extends to commissions, vacation pay, bonuses and any other advantage received
    directly or indirectly from an
    employer.[454] The Equal Wages
    Guidelines 1986 set out the criterion to be applied to determine whether work is
    ‘of equal value’. [455]

  2. Complaints of unequal pay by federally regulated organisations may be made
    to the CHRC.[456] The CHRC and
    the Human Rights Tribunal deal with these complaints in the same way as
    complaints of discriminatory practices.

Positive
Duties

  1. The Employment Equity Act 1995 requires employers in the public
    sector and federally regulated private
    sector[457] to proactively
    implement employment equity by:

    • identifying and eliminating employment systems, policies and practices which
      act as barriers to women, Aboriginal people, people with disability and members
      of visible minorities, and

    • instituting positive policies and practices and make reasonable
      accommodations to ensure women, Aboriginal people, people with disability and
      members of visible minorities are represented to the same degree in their
      workforce, as they are represented in the wider, national
      workforce.[458]

  2. Specifically, employers are required to:

    • analyse the degree of representation of women, Aboriginal people, people
      with disability and visible minorities in their
      workforce[459]

    • analyse and review their employment systems, policies and
      practices[460]

    • prepare, implement, monitor and periodically review and revise an employment
      equity plan to progress towards greater equity in the
      workforce[461]

    • provide information to their employees explaining the purpose of employment
      equity and the measures the employer is taking to progress towards employment
      equity, and [462]

    • establish and maintain records regarding employment
      equity.[463]

  3. Every year employers must report on their progress in achieving a truly
    representative workforce.[464] Reports are consolidated and tabled in
    Parliament.[465]

  4. The CHRC is responsible for monitoring, enforcing and reporting on the
    performance of employers’ obligations under the Employment Equity Act. The Commission conducts employment equity audits to assess whether
    employers are meeting their positive
    duties.[466] If an
    employer cannot demonstrate compliance with their legislation obligations, the
    CHRC attempts to negotiate a written undertaking that they will remedy the
    situation.[467] If
    this approach fails, the CHRC may issue a
    Direction.[468] If an
    employer fails to comply with a Direction, the CHRC may refer the matter to the
    Employment Equity Review Tribunal for
    determination.[469]

Guidelines

  1. The CHRC has the power to issue guidelines “on application” or
    by its own initiative.[470] Guidelines are published in the Canada Gazette and
    binding.[471]

Norway

  1. There are several key pieces of national legislation relevant to sex
    discrimination and gender equality in Norway, for instance: the Gender
    Equality     Act 1978, the Public Limited Companies Act 1997 and
    the Local Government Act 1992. The national equality and
    anti-discrimination institution has a role in the country’s
    anti-discrimination framework, pay equity framework, proactive duties framework
    and quota framework.

  2. A proposal for a compiled and more comprehensive anti-discrimination Act has
    been made in 2009 by a commission appointed by the Norwegian Government. [472] The proposed Act shall include
    gender, ethnicity, disability, sexual orientation, age and other grounds of
    discrimination, and replace existing discrimination laws such as the Gender
    Equality Act 1978    .

  3. In 2008, Norway had the narrowest gender gap in the world, according to the
    overall ranking in the World Economic Forum’s Global Gender Gap Report
    2008    .[473]

The
National Equality and Anti-Discrimination Institutions

  1. The Equality and Anti-Discrimination Ombud and the Equality and
    Anti-Discrimination Tribunal Act 2005     established the Equality and
    Anti-discrimination Ombud (“Ombud”) and the Equality and
    Anti-Discrimination Tribunal (“Tribunal”) on 1st January
    2006. These institutions replace the Gender Equality Ombudsman and the Gender
    Equality Tribunal established in 1979. Both the Ombud and the Tribunal are
    independent of government but accountable for their public funds.

  2. The Ombud has the power to investigate and give an opinion as to whether a
    matter is in contravention of the Act 1978, as well as other
    discrimination acts such as the Anti-Discrimination and Accessibility Act
    2008,     the Anti-Discrimination Act 2005 and chapter 13 in the Working Environment Act 2005 (discrimination on grounds of disability,
    ethnicity, religion and belief, sexual orientation, age and political
    views). [474] The Ombud shall
    seek to secure the parties’ voluntary compliance with this opinion. [475] If a voluntary arrangement
    cannot be reached the Ombud or one of the parties may bring the case before the
    Tribunal which can make an administratively binding decision. Such decisions can
    however be overruled by a
    court.[476] If the parties do not
    voluntarily comply with the opinion of the Ombud and waiting for an
    administrative decision by the Tribunal will cause inconvenience or have a
    harmful effect, the Ombud may make the administrative
    decision.[477] The Ombud’s
    administrative decision may be appealed to the Tribunal. [478]

  3. The Tribunal may order an act to be stopped or remedied and may set a time
    limit for compliance with the
    order.[479] If the time limit is
    exceeded the Tribunal may impose a fine which begins to run when the time limit
    for complying with the order is exceeded and shall normally run until the order
    has been complied with.[480] A
    decision of the Tribunal may be overruled by a court of law. [481]

Anti-discrimination
Framework

  1. Direct or indirect differential treatment of women and men is not
    permitted.[482] Affirmative action
    in favour of one of the sexes to promote the Acts legislative purpose is
    permitted.[483]

  2. The Ombud receives, investigates and provides statements for complaints of
    alleged discrimination. If the complaint is found to be substantiated the Ombud
    can make a statement that a person take measures to redress the discrimination
    or prevent its continuation and may order
    compensation.[484]

Pay Equity Framework

  1. The Gender Equality Act 1979 provides for equal pay between male and
    female employees for the same work or work of equal value regardless of whether
    such work is connected with different trades or professions or whether the pay
    is regulated by different collective wage
    agreements.[485]

  2. Complaints regarding gender equality may be made to the
    Ombud.[486] A decision of the
    Ombud may be appealed to the Equality and Anti-Discrimination
    Tribunal.[487]

Positive
Duties

  1. The Gender Equality Act 1979 places a duty on public
    authorities to make active, targeted and systematic efforts to promote gender
    equality in all sectors of society and a duty on employers to make active,
    targeted and systematic efforts to promote gender equality within their
    enterprise.[488] The Ombud does
    not enforce this duty.

  2. Enterprises that are subject to a statutory duty to prepare an annual report
    are required to give an account of the actual state of affairs as regards gender
    equality in the enterprise, measures implemented and measures that are planned
    to be implemented in order to promote gender equality. [489] Public authorities and public
    enterprises that are not obliged to prepare an annual report shall give a
    corresponding account in their annual
    budget.[490]

Quotas

  1. The Gender Equality Act 1979 requires at least a 40% representation
    of each sex in all public
    committees.[491]

  2. Further, Act 19 2003 amending the Public Limited Companies Act
    1997     requires 40% representation of each sex on the board of all
    state[492] and
    private[493] public limited
    companies. The law entered into force on 1 January 2004 for state-owned
    companies and 1 January 2006 for public limited companies. All companies were
    given a two year period of transition to comply with the law from these dates.
    Contravention of the Public Limited Companies Act 1997 is punishable by
    fines or under aggravating circumstances with imprisonment of up to one
    year. [494] Complicity is
    punishable in the same way.[495]

  3. All new public limited companies must comply with these rules or the
    Register of Business Enterprises will refuse to register a company
    board.[496] A company which does
    not have a board that fulfils the statutory requirements may be dissolved by
    order of the court.[497] The King
    (the Ministry) can however decide that a forced dissolution shall not be
    executed because of ‘substantial public
    interests’.[498] In such
    cases, the company will have to pay a compulsory fine until the conditions are
    in accordance with the
    law.[499]

  4. The Local Government Act 1992 requires gender balance in
    popularly elected bodies - both sexes shall be represented by 40
    %.[500] A rule requiring
    administrative boards in Municipal private limited companies that are 2/3 owned
    by the Municipality to have both sexes represented by 40% has just been adopted
    in the Local Government Act 1992 but has not yet entered into force.

  5. In the yearly state budget every ministry has to report gender budgeting. [501] This implies that the
    ministries have to show what consequences proposals and decisions have for women
    and men. This gender budgeting will often show that equal political measures can
    give unequal results for men and women, and therefore have unintended
    discriminatory results. [502]

[1] The Australian Human Rights
Commission was until recently known as the Human Rights and Equal Opportunity
Commission. In this submission, all references to documents produced prior to
this change retain the name they were originally published
under.

[2] Human Rights and Equal
Opportunity Commission, It’s About Time: Women, Men, Work and
Family (2007). At www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 31 August 2009).

[3] Human
Rights and Equal Opportunity Commission, What matters to Australian women and
men: Gender equality in 2008: the Listening Tour Community Report (2008). At www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 28 October 2009).

[4] Human
Rights and Equal Opportunity Commission, Submission to to the Productivity
Commission on the Inquiry into Paid Maternity, Paternity and Parental Leave (June 2008). At www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 28 October 2009); Human Rights and Equal Opportunity Commission, Submission to to the Productivity Commission on the Inquiry into Paid
Maternity, Paternity and Parental Leave (November 2008). At www.humanrights.gov.au/legal/submissions/2008/20081124_maternity.doc (viewed 28 October 2009).

[5] Human
Rights and Equal Opportunity Commission, Submission to the House of
Representatives Standing Committee on Family, Community, Housing and Youth
Inquiry into Better Support for Carers (2008). At www.humanrights.gov.au/legal/submissions/2008/20080715_carers.html (viewed 28 October 2009).

[6] Human
Rights and Equal Opportunity Commission, Submission to the Senate Legal and
Constitutional Affairs Committee Inquiry into the Effectiveness of the Sex
Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender
Equality (2008). At www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 28 October
2009).

[7] Australian Human Rights
Commission, Submission to the House of Representatives Standing Committee on
Employment and Workplace Relations on the Inquiry into Pay Equity and associated
issues related to increasing female participation in the workforce (2008).
At www.humanrights.gov.au/legal/submissions/2008/20080923_pay_equity.html#Heading368 (viewed 26 October 2009).

[8] Australian Human Rights Commission, Submission to the Review Panel on
Australia’s future tax system (2009). At www.humanrights.gov.au/legal/submissions/2009/20090227_tax.doc (viewed 28 October 2009).

[9] Australian Human Rights Commission, Accumulating Poverty: Women’s
experiences of inequality over the lifecycle (2009). At www.humanrights.gov.au/sex_discrimination/publication/gender_gap/index.html (viewed 28 October 2009).

[10] It
is also necessary for the Equal Opportunity for Women in the Workplace 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.

[11] Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness
of the Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting
Gender Equality (2008). At www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 26 October 2009).

[12] 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.

[13] Relevant provisions of the
National Employment Standards (NES) would be defined to include the NES on
unpaid parental leave, and rights in relation to family and carers leave and
responsibilities.

[14] Human
Rights and Equal Opportunity Commission, note 3.

[15] Human Rights and Equal
Opportunity Commission, note 3, p 3.

[16] Anonymous, comment, Women's focus group 7, Human Rights and Equal Opportunity Commission Sex
Discrimination Commissioner's Listening Tour
(2008).

[17] Australian Human
Rights Commission, Annual General Report 2008-09 (2009), p 74. At www.humanrights.gov.au/about/publications/annual_reports/index.html (viewed 29 October 2009).

[18] Australian Human Rights Commission, note 17, p
73.

[19] Australian Bureau of
Statistics, 6202.0 - Labour Force, Australia, Table 03. Labour force status
by Sex, July 2009 (2009). At www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/6202.0Jul%202009?OpenDocument (viewed 24 August 2009).

[20] World Economic Forum, Global Gender Gap Report 2009 (2009), p 63. At www.weforum.org/pdf/gendergap/report2009.pdf (viewed 28 October 2009).

[21] Australian Bureau of Statistics (ABS), note
19.

[22] Statistics Norway, Labour Force Survey, Q3, 2009: Lower labour force participation, www.ssb.no/aku_en/ (viewed 29 October
2009).

[23] Statistics New
Zealand, Household Labour Force Survey: June 2009 quarter, www.stats.govt.nz/browse_for_stats/work_income_and_spending/Employment/HouseholdLabourForceSurvey_HOTPJun09qtr/Commentary.aspx (viewed 29 October).

[24] Organisation for Economic Co-operation and Development, Babies and Bosses:
Reconciling Work and Family Life: A Synthesis of Findings for OECD Countries (2007) Volume 5.

[25] Women
with disability are less likely to be in the paid workforce than men with
disability: Human Rights and Equal Opportunity Commission, Issues paper 1:
Employment and Disability – the Statistics (2005). At www.humanrights.gov.au/disability_rights/employment_inquiry/papers/issues1.htm (viewed 15 September 2008).

[26] Aboriginal and Torres Strait Islander people have a labour market participation
rate of 56%. The labour market participation rate for Indigenous men is 65%,
while for Indigenous women it is 48%: Australian Bureau of Statistics, Labour
Force Characteristics of Aboriginal and Torres Strait Islander Australians,
Estimates from the Labour Force Survey, 2007, Cat No 6287.0 (2008).

[27] In 2004, migrant men had a
similar age standardised labour force participation rate (74%) to
Australian-born men (75%). Migrant women's age standardised labour force
participation (52%) was lower than Australian-born women (60%), and much lower
than migrant men: Australian Bureau of Statistics, Australian Social Trends,
2006, Cat No 4102.0, (2006).

[28] Australian Bureau of
Statistics, Average Weekly Earnings, May 2009, Cat No 6302.0 (2009). At www.abs.gov.au/ausstats/abs@.nsf/mf/6302.0 (viewed 31 August 2009).

[29] Australian Bureau of Statistics, note
28.

[30] For example
approximately 45% of women in the workforce are employed part-time compared with
approximately 16% of men: Australian Bureau of Statistics (ABS), 6202.0 - Labour Force,
Australia, Table 03. Labour force status by Sex, September 2009 (2009). At www.ausstats.abs.gov.au/ausstats/meisubs.nsf/0/2DE8EA310F563A2BCA257648001518D9/$File/6202003.xls#A163137K (viewed 29 October 2009).

[31] Australian Bureau of Statistics, Labour Force, Australia, Detailed,
Quarterly, May 2008 Cat no. 6291.0.55.003 (2008).

[32] Graduate Careers
Australia, GradStats, Number 13, December 2008 (2008). At www.graduatecareers.com.au/content/view/full/24 (viewed 28 October 2009).

[33] Graduate Careers Australia, note
32.

[34] Equal Opportunity for
Women in the Workplace Agency, Pay, Power and Position: Beyond the 2008 EOWA
Australian Census of Women in Leadership (2009), p. 6. At www.eowa.gov.au/Australian_Women_In_Leadership_Census/2008_Australian_Women_In_Leadership_Census/Pay_Power_Position/Pay_Power_Position_Beyond_the_Census.pdf (viewed 26 October 2009)

[35] Australian Public Service Commission, State of the Service 2007/08 (2008). At www.apsc.gov.au/stateoftheservice/0708/index.html (viewed 29 October 2009).

[36] University of Sydney, Annual Report 2008 (2009). At www.usyd.edu.au/about/publications/annual_report/2008/hr_annual_report_2008.pdf (viewed 29 October 2009).

[37] Department Education, Employment and Workplace Relations, ‘Table
2.7: Number of Full-time and Fractional Full-time Staff by State, Higher
Education Provider, Function and Gender, 2008,’ Staff 2008: Selected
Higher Education Statistics. At www.dest.gov.au/NR/rdonlyres/7D7AC7D2-C71E-462B-A778-D4814776E729/25898/Numbers.xls (viewed 24 August 2009).

[38] Equal Opportunity for Women in the Workplace Agency, 2008
EOWA Australian Census of Women in Leadership (2008), p 8. At www.eowa.gov.au/Australian_Women_In_Leadership_Census.asp (viewed 29 October 2009).

[39] Equal Opportunity for Women in the Workplace Agency, note 38, p
3.

[40]Equal Opportunity for
Women in the Workplace Agency, note 38, p 12.

[41] Anonymous, comment, Women's focus group 4, Human Rights and Equal Opportunity
Commission Sex Discrimination Commissioner's Listening Tour
(2008).

[42]Equal Opportunity
for Women in the Workplace Agency, note 38, p 12.

[43]Equal Opportunity
for Women in the Workplace Agency, note 34, p
12.

[44]Equal Opportunity for
Women in the Workplace Agency, note 34, p
12.

[45]Equal Opportunity for
Women in the Workplace Agency, note 38, p
5.

[46]Equal Opportunity for
Women in the Workplace Agency, note 38, p
7.

[47]Equal Opportunity for
Women in the Workplace Agency, note 38, p
5.

[48] Equal Opportunity for
Women in the Workplace
Agency,above.

[49]Equal
Opportunity for Women in the Workplace Agency, above.

[50] Office for
Women, Department of Families, Housing, Community Services and Indigenous
Affairs, Women in Australia 2009. At www.fahcsia.gov.au/sa/women/pubs/general/womeninaustralia/2009/Pages/chapter4.aspx (viewed 29 October 2009).

[51] Office for Women, Department of Families, Housing, Community Services and
Indigenous Affairs, Appoint Report 2006, p 6.

[52]The Department of
Immigration and Multicultural Affairs is now known as the Department of
Immigration and Citizenship.

[53] Office for Women, Department of Families, Housing, Community Services and
Indigenous Affairs, note 51, p 6.

[54] Office for Women, Department of Families, Housing, Community Services and
Indigenous Affairs, note 51, p
3.

[55] Australian Human Rights
Commission, Sexual harassment: Serious business

Results of the 2008
Sexual Harassment National Telephone Survey (2008). At www.humanrights.gov.au/sexualharassment/serious_business/index.html (viewed 28 October 2009).

[56] Based on being provided the definition of sexual harassment from the Sex
Discrimination Act 1984 (Cth).

[57] Australian Human
Rights Commission, note 55.

[58] Australian Human Rights Commission,
above.

[59] Anonymous, comment, note 16.

[60] Anonymous, comment, note
41.

[61] Anonymous, Blog
entry, Human Rights and Equal Opportunity Commission Listening Tour website
(10 February 2008).

[62] Human
Rights and Equal Opportunity Commission, Annual Report 2007-08 (2008). At www.humanrights.gov.au/about/publications/annual_reports/index.html (viewed 29 October 2009).

[63] This includes complaints within workplaces and to external agencies such as the
State and Territory equal opportunity commissions and the Australian Human
Rights Commission.

[64] Anonymous, comment, Adelaide Business Consultation with Committee for
Economic Development Australia, Human Rights and Equal Opportunity Commission
Sex Discrimination Commissioner's Listening Tour
(2007).

[65] Human Rights and
Equal Opportunity Commission, Pregnant and Productive: It's a right not a
privilege to work while pregnant (1999). At www.humanrights.gov.au/sex_discrimination/publication/pregnancy/report.html (viewed 16 August 2009).

[66] R
Cassells, R Miranti, B Nepal & R Tanton, She works hard for the money:
Australian women and the gender divide, AMP.NATSEM Income and Wealth Report
(2009), Issue 22, p 18. At http://phx.corporate-ir.net/External.File?item=UGFyZW50SUQ9MjA5fENoaWxkSUQ9LTF8VHlwZT0z&t=1 (viewed 2 July 2009).

[67] Australian Human Rights Commission, note 17, p
73.

[68] R Clare, Retirement
Savings Update (2008), Association of Superannuation funds of Australia
Research and Resource Centre, p 6. At www.superannuation.asn.au/Reports/default.aspx (viewed 11 February 2009).

[69] Human Rights and Equal Opportunity Commission, Sex Discrimination
Commissioner ‘Listening Tour’ consultation data (2007).

[70] Human Rights and
Equal Opportunity Commission, note
69.

[71] R Cassells, R Miranti, B
Nepal & R Tanton, note 66, p 18; L Craig, 'Is there really a "second shift",
and if so, who does it? A time-diary investigation' (2007) 86 (1) Feminist
Review pp 149-170.

[72] Human
Rights and Equal Opportunity Commission, Striking the Balance: Women men,
work and family (2005) p 35. At www.humanrights.gov.au/sex_discrimination/publication/strikingbalance/index.html (viewed 31 August 2009).

[73] L
Craig & K Mullan, The impact of gender and parenthood on men's and
women's total work in Australia 1992-2006 (paper for the Australian
Labour Market Research Workshop, 11-12 December, Wellington, New Zealand
2008), p 12.

[74] See Human
Rights and Equal Opportunity Commission, note 2, p 79; Human Rights and Equal
Opportunity Commission, note
3.

[75] Anonymous, comment, Men's focus group 3, Human Rights and Equal Opportunity Commission Sex
Discrimination Commissioner's Listening Tour
(2007).

[76] Anonymous, comment, Darwin Community Consultation, Human Rights and Equal
Opportunity Commission Sex Discrimination Commissioner's Listening Tour
(2008).

[77] See Department of
Victorian Communities and Industrial Relations Victoria, Paving the Way for
Older Women in the Workforce 2025 (2005) p 33. At www.women.vic.gov.au/web12/rwpgslib.nsf/GraphicFiles/Pavign+the+Way+Chapter+3/$file/PTW+Chapter3.pdf (viewed 18 August 2009).

[78] W
Loretto, C Duncan & P White, ‘Ageism and employment: controversies,
ambiguities and younger people’s perceptions’ (2000) 20(3) Ageing & Society, pp 279-302, p
285.

[79] B Partridge,
‘Avoiding Stereotypes,’ (2008) Nov.-Dec, Management Today, pp
22-24, p 24.

[80] Australian
Human Rights Commission, Age Discrimination Consultation data (2009).

[81] B Partridge,
note 79. See generally Victorian, South Australian and Western Australian Equal
Opportunity Commissions & Australian Employers Convention, Age Limits:
Age-related discrimination in employment affecting workers over 45 (2001), p
7.

[82] Quoted in Ernst &
Young News Release, ‘The strength women bring to rebuilding the world
economy,’ News Release, 28 January 2009. At www.ey.com/CH/en/Newsroom/News-releases/20090128-The-strength-women-bring-to-rebuilding-the-world-economy (viewed 24 August 2009).

[83] Australian Bureau of Statistics, note
28.

[84] Australian Human Rights
Commission, note 9.

[85] R
Cassells, R Miranti, B Nepal & R Tanton, note 66, p
1.

[86] R Tanton, Y Vidyattama, J
McNamara, Q Ngu Vu & A Harding, Old Single and Poor: Using
Microsimulation and Microdata to Analyse Poverty and the Impact of Policy Change
Among Older Australians (Paper for Presentation at UNU-WIDER Conference on
Frontiers of Poverty Analysis, Helsinki, 26-27 September 2008), p 15. At https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880 (viewed 26 October 2009).

[87] This includes: working age couple with no children, working age couple with
children, working age lone female, working age lone male, lone mother household,
elderly couple household, elderly lone male and elderly lone female.

[88] B Heady & D Warren,
Families, Incomes and Jobs, Volume 3: A Statistical Report on Waves 1 to 5 of
the HILDA Survey (2008), p 55. At www.melbourneinstitute.com/hilda/statreport/statreport-v3-2008.pdf (viewed on 9 February 2009). NB The poverty measurement tool for this study is
50% of the median income poverty
line.

[89] Australian Human
Rights Commission, note 9, p 1.

[90] Australian Human Rights
Commission, note 9, p 24.

[91] Australian Human Rights Commission, note 9, pp
24-26.

[92] Equal Opportunity for
Women in the Workplace Agency, note
38.

[93] Chief Executive Women, The business case for women as leaders: one woman is not enough, CEW
Discussion Paper (2009), p
1.

[94] Department of Education,
Employment and Workplace Relations, Students 2007 (full year): Selected
Higher Education Statistics, Table 2 (2007). At www.dest.gov.au/NR/rdonlyres/D204A8AB-39DD-46E0-A93A-B24CE3CD00C8/23916/2007AwardCourseCompletions1.xls (viewed 29 October 2009).

[95] Equal Opportunity for Women in the Workplace Agency, note 38, p
12.

[96] Equal Opportunity for
Women in the Workplace Agency, note 38, p
5.

[97] B McKinnon, ‘The
Hard Sell’, (2000) May/June, The Open Road, p 11.

[98] Catalyst, The Bottom
Line: Connecting Corporate Performance and Gender Diversity (2004). At www.catalyst.org/file/44/the%20bottom%20line%20connecting%20corporate%20performance%20and%20gender%20diversity.pdf;
Catalyst, The Bottom Line: Corporate Performance and Women’s
Representation on Boards (2007). At www.catalyst.org/file/139/bottom%20line%202.pdf;
G Desvaux, S Devillard-Hoellinger & M Meaney, ‘A Business Case for
Women’ (2008) September The McKinseys Quarterly, p 2. At www.mckinseyquarterly.com/ghost.aspx?ID=/A_business_case_for_women_2192

[99] See for example G Desvaux,
S Devillard-Hoellinger & M Meaney, note 101; Ernst & Young, Groundbreakers: Using the strength of women to rebuild the world economy (2009). At www.ey.com/groundbreakers; McKinsey
& Company, Women Matter: Gender diversity, a corporate performance
driver (2007). At www.mckinsey.com/locations/swiss/news_publications/pdf/women_matter_english.pdf (viewed 29 October 2009); A Howard & R Wellins, Holding Women Back:
troubling discoveries and best practices for helping female leaders succeed (2009). At www.ddiworld.com/pdf/GenderReport09_tr_ddi.pdf (viewed 29 October 2009).

[100] G Desvaux, S Devillard-Hoellinger & M Meaney, note 101, p 2; Ernst &
Young, note102, p 9.

[101] Catalyst, The Bottom Line: Corporate Performance and Women’s
Representation on Boards (2007) (see note 98).

[102] R Sunderland,
‘Woman's touch helps hedge funds retain their value,’ The
Guardian, Monday 19 October 2009. At www.guardian.co.uk/business/2009/oct/19/women-hedge-funds (viewed 26 October 2009).

[103] R Sunderland, above.

[104] World Economic Forum, note 20, p 63.

[105] The proportion of people
65 and over is likely to double between 2004 (13%) and 2051(27%).

The
proportion of people 85 and over is likely to quadruple between 2004 (1.5%) and
2051(7%): Australian Bureau of Statistics, Population Projections, Australia,
2004 to 2101 (2006).

[106] J Harmer, Department of Families, Housing, Community Services and Indigenous
Affairs, Pension Review Background Paper (2008) p 6. At www.fahcsia.gov.au/sa/seniors/progserv/PensionReview/Documents/pension_review/pension_review_paper.pdf (viewed 29 October 2009); R Tanton, Y Vidyattama, J McNamara, Q Ngu Vu & A
Harding, note 86, p 15.

[107] Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), (1979). Article 11(1)(b), 11(1)(c) and 11(1)(d). Article
11(1)(c) provides ‘the right to free choice of profession and employment,
the right to promotion, job security and all benefits and conditions of service
and the right to receive vocational training and retraining.’ Article
11(1)(d) provides ‘the right to equal remuneration, including benefits,
and to equal treatment in respect of work of equal value, as well as equality of
treatment in the evaluation of the quality of
work.’

[108] CEDAW,
Article 2(f)

[109] International Convenant on Economic, Social and Cultural Rights, ICESCR,
Art 7(c).

[110] Note that
Article 5 of the International Labour Organisation (ILO) Convention No
111 also provides that special measures to protect groups of workers for
reasons such as sex shall not be considered discrimination.

[111] See s 7D(2) of the Sex Discrimination Act 1984 (Cth) (SDA) which provides that a
person does not discriminate against another person by taking special measures.

[112] Report of the Committee
on the Elimination of Discrimination against Women Committee (CEDAW Committee),
UN GAOR 59th sess, Supp No 38, UN Doc A/59/30 (2004), [15].

[113] Report of the CEDAW
Committee, note 112, [15],
[21].

[114]Report of the CEDAW
Committee, note 112, [15],
[33].

[115] CEDAW Committee,
General Recommendation No. 25 (2004), [27] in Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc
HRI/GEN/1/Rev.9 (Vol. II) ( 2008), p 320.

[116] CEDAW Committee, note
115, [23], p 320.

[117] Report of the CEDAW Committee, note 112, [15],
[20].

[118]CEDAW Committee,
note 115, [34], p 320.

[119] See Anti-Discrimination Act 1977 (NSW), s 24 includes
breastfeeding and pregnancy, also a person’s responsibilities as a carer
is covered under s 49T and marital status under s 39; Equal Opportunity Act
1995 (Vic), s 6; Discrimination Act 1991 (ACT), s 7(1); Anti-Discrimination Act 1991 (Qld), s 7; Equal Opportunity Act 1984 (SA), Part 3 but note that carers or family responsibilities are not covered
; Anti-Discrimination Act 1998 (Tas), s 16; Anti-Discrimination Act (NT), s 19 includes family responsibilities but not carers responsibilities; Equal Opportunity Act 1984 (WA), s 8 (sex), s 10 (pregnancy), s 9
(marital status), s 35A (carers and family responsibilities) but note that
breastfeeding is not explicitly included as a separate
ground.

[120] SDA, s
11.

[121] Fair Work Act
2009 (FWA), s 27(1).

[122] Sections 10 and 18 of the Public Service Act 1999.

[123] See Equal Opportunity
in Public Employment Act 1992 (Qld); Anti-Discrimination Act 1977 (NSW) Part 9A; Equal Opportunity Act 1984 (WA) Part IX; Public
Administration Act 2004 (Vic); Public Sector Management Act 1994 (ACT) Part 3; Public Sector Employment and Management Act (NT).

[124] See Appendix 2: Detail of
the Key Features of Australia’s National Laws which impact on Gender
Equality in the Workforce at Section
8.3(a)(ii).

[125] See Appendix
2: Detail of the Key Features of Australia’s National Laws which impact on
Gender Equality in the Workforce at Section
8.3(a)(iv).

[126] Human Rights
and Equal Opportunity Commission, note 6, p 211-5 and Appendix 2 at 8.3(b).

[127] FWA, Part 2.7, s 302.

[128] See further Australian
Human Rights Commission, note 7, p 19.

[129] Australian Human
Rights Commission Act 1986 (AHRCA), ss 46PW, 46PX and
46PY.

[130] FWA, s
161.

[131] SDA, s 48(gb).

[132] World Economic Forum,
note 20, p 63.

[133] See CEDAW
Committee, General Comment No. 6: Effective National Machinery and Publicity
(1988). At www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom6;
Beijing Declaration and Platform for Action (1995), Fourth World Conference on
Women, 1995, A/Conf.117/20 and A/Conf.117/20/add.1.

[134] See Section 6 of this
Submission..

[135] It is also
necessary for the Equal Opportunity for Women in the Workplace 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.

[136] K Guest, ‘The
Elusive Promise of Equality: Analysing the Limits of the Sex Discrimination Act
1984’ (1999), Research Paper 19 1998-99, Parliamentary Library. At www.aph.gov.au/library/pubs/rp/1998-99/99rp16.htm#9 (viewed 25 October 2009). See further M Thornton, The liberal promise:
anti-discrimination legislation in Australia (1990); C Burton, The
Promise and the price: the struggle for equal opportunity in women's
employment (1991); R Graycar & J Morgan, ‘Thinking about
Equality,’ (2004), 27(3) University of New South Wales Law Journal, p 833-839. At www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLJ/2004/44.html?query=%2220%20Australian%20Feminist%20Law%20Journal%2023%22 (viewed 26 October 2009); S Maddison, & E Partridge, How Well Does
Australian Democracy Serve Australian Women (2007), Audit Report No 8, 2007,
Democratic Audit of Australia. At http://democratic.audit.anu.edu.au/papers/focussed_audits/200703_madpartozdocwom.pdf (viewed 26 October 2009); G Strachan, J Burgess & L Henderson, 'Equal
Employment Opportunity Legislation and Policies: the Australian Experience'
(2007) 26(6) Equal Opportunities International, pp
525-540.

[137] For further
detail about special measures, see Section 5.5.

[138] Human Rights and Equal
Opportunity Commission, note 2. NB p 92.

[139] Equal Opportunity for
Women in the Workplace Act 1999 (EOWW Act), s
2A.

[140] Human Rights and
Equal Opportunity Commission, note 6, p 236.

[141] See, eg, EOWA, Pay,
Power and Position: Beyond the 2008 EOWA Australian Census of Women in
Leadership (2009); EOWA, 2008 EOWA Australian Census of Women in
Leadership (2008); EOWA, (A)gender in the Boardroom (2008). At www.eowa.gov.au/Information_Centres/Resource_Centre/EOWA_Publications.asp (viewed 26 October 2009).

[142] Australian Human Rights Commission, Sexual harassment: Serious business:
Results of the 2008 Sexual Harassment National Telephone Survey (2008) and
Human Rights and Equal Opportunity Commission, 20 Years On: The Challenges
Continue...Sexual Harassment in the Australian Workplace (2004). At www.humanrights.gov.au/sex_discrimination/publications.html (viewed 26 October 2009).

[143] See for example Human Rights and Equal Opportunity Commission, What matters
to Australian women and men: Gender equality in 2008: the Listening Tour
Community Report (2008); Human Rights and Equal Opportunity Commission, It’s About Time: Women, Men, Work and Family (2007); Human Rights
and Equal Opportunity Commission, Striking the Balance: Women men, work and
family (2005).

[144] FWA,
s 653.

[145] Human Rights and
Equal Opportunity Commission, note 6, Recommendation 51, pp 236-40. See also
Australian Human Rights Commission, note 7, Recommendation 11, p 7.

[146] The Senate Committee
proposed that the reporting be done every four years, in order to link with the
Australian Government’s cycle of reporting to the CEDAW Committee: Senate
Standing Committee on Legal and Constitutional Affairs, note 11, p 161.

[147] The Australian Human
Rights Commission is Australia’s national human rights institution and
operates in accordance with the Principles Relating to the Status and Functions
of National Institutions for the Promotion and Protection of Human Rights (Paris
Principles). The Paris Principles require a national human rights institution to
be independent and autonomous from Government. (Principles relating to the
Status of National Institutions (The Paris Principles) endorsed by the
Commission on Human Rights in March 1992 (resolution 1992/54) and by the General
Assembly in its resolution A/RES/48/134 of 20 December 1993. At www2.ohchr.org/english/law/parisprinciples.htm (viewed 26 October 2009).

[148] 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 28 October 2009).

[149] See Recommendation 5 in this
Submission.

[150] Officials
must not enter into any contract with an organisation which has been named in
Parliament as non-compliant with their reporting obligations under the EOWW Act.
Australian Government Department of Finance and Administration, Guidance on
Complying with Legislation and Government Policy in Procurement (2005), p
12. At www.finance.gov.au/publications/fmg-series/10-complying-with-legislation.html (viewed 28 October 2009).

[151] See Business Cuncil of Australia, Business Regulation, www.bca.com.au/Content/100834.aspx (viewed 28 October 2009).

[152] Human Rights and Equal Opportunity Commission, note 6. See also Collaborative
Submission from leading women’s organisations and women’s equality
specialists, Inquiry into the effectiveness of the Sex Discrimination Act (2008); Women’s Electoral Lobby Australia, Submission to the Legal and
Constitutional Affairs Committee Inquiry into the Effectiveness of the Sex
Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender
Equality (2008); National Foundation of Australian Women, Submission to the
Inquiry into the effectiveness of the Commonwealth Sex Discrimination Act
1984 in eliminating discrimination and promoting gender equality (2008). All
at www.aph.gov.au/SEnate/committee/legcon_ctte/sex_discrim/submissions/sublist.htm (viewed 28 October 2009).

[153] Human Rights and Equal Opportunity Commission, note 6, p
11.

[154] Human Rights and
Equal Opportunity Commission, note 6, Option for for Reform A, p
82.

[155] Human Rights and
Equal Opportunity Commission, note 6, Option for Reform I, p 245. See also pp
240-245

[156] Human Rights and
Equal Opportunity Commission, note 6, Option for Reform J, p 248

[157] Senate Standing
Committee on Legal and Constitutional Affairs, note 11, pp
145-165.

[158] See Disability Discrimination Act 1992 (Cth), Division 2A Disability
standards.

[159] See Privacy
Act 1988 (Cth), Part IIIAA Privacy
codes.

[160] FWA, s 351(2).

[161]Human Rights and Equal
Opportunity Commission, note 6, Recommendation 46, p
229.

[162]‘Employment
matter’ is defined in the EOWW Act 1999, s
3(1).

[163] Equality Bill, 2009 (UK), cl 74.

[164] Productivity Commission, Executive Remuneration in Australia,
Discussion Draft, (2009), pp XXX and
144.

[165] Gordon Cairns,
interview with Fran Kelly, Radio National Breakfast (26 October 2009). At www.abc.net.au/rn/breakfast/stories/2009/2723739.htm (viewed 26 October 2009).

[166] Jillian Segal, interview with Fran Kelly, Radio National Breakfast (22 October
2009). At www.abc.net.au/rn/breakfast/stories/2009/2720803.htm (viewed 26 October 2009).

[167] Margaret Jackson interview with Fran Kelly, Radio National Breakfast (22 October
2009). At www.abc.net.au/rn/breakfast/stories/2009/2720803.htm (viewed 26 October 2009).

[168] CEDAW Committee, note 115, [22], p 320.

[169] Report of the CEDAW Committee, note
112, [15], [21]-[22].

[170] [2004] FCA 1250 (Unreported, Crennan J, 24 September 2004).

[171] CEDAW Committee, CEDAW
General Recommendation No. 5 (1988) in Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc
HRI/GEN/1/Rev.9 (Vol. II), (2008), p 365.

[172]CEDAW Committee, General
Recommendation 23 (1997), [15] in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.9
(Vol. II) ( 2008), p 347.

[173] CEDAW Committee, Concluding Comments on Australia, Thirty Fourth session,
16 January-3 February 2006, CEDAW/C/AUL/CO/5,
[16].

[174]CEDAW Committee,
note 173, [17].

[175] CEDAW
Committee, note 115, [24], p 320.

[176] Office of Women’s
Policy, Department of Planning and Community Development, Victorian
Women’s Policy Framework 2008-11 (2008), p 18. At www.women.vic.gov.au/web12/rwpgslib.nsf/GraphicFiles/Women’s+Policy+Framework+2008-11/$file/DPCD+Vic+Women+Pol+Frameworkv14.pdf (viewed 29 October 2009).

[177] John Brumby, Premier of Victoria, ‘Private Sector Needs More Women
Leaders,’ Media Release, 8 September 2009. At www.premier.vic.gov.au/component/content/article/8075.html (viewed 29 October 2009).

[178] Government of South Australia, South Australia’s Strategic Plan (2007). At http://saplan.org.au/content/view/31/64/ (viewed 28 October 2008).

[179] Government of South Australia, South Australia’s Strategic Plan Target
Factsheet, T:5.1 http://saplan.org.au/images/TargetFactsSheets2008/t5.01%20target%20fact%20sheet.pdf (viewed 28 October 2008).

[180] Government of South Australia, South Australia’s Strategic Plan
Target Factsheet, T:5.2 http://saplan.org.au/images/TargetFactsSheets2008/t5.02%20target%20fact%20sheet.pdf (viewed 28 October 2008).

[181] ACT Office for Women, ACT Women’s Plan 2004-2009 (2004), p
5. At www.dhcs.act.gov.au/__data/assets/pdf_file/0020/39053/actwomensplan.pdf (viewed 29 October 2009). NB Consultation is currently underway to develop a
new plan.

[182] ACT Office for
Women, Department of Disability Housing and Community Services,
‘Indicators of Success,’ Taking Stock, Reporting on the ACT
Women’s Plan 2004-09 (2009), p
3.

[183] ACT Office for Women,
above.

[184] ACT Office for
Women, note 182, p 3.

[185] Queensland Government, Office for Women, Profile Queensland Women 2009 (2009), p 92. At www.women.qld.gov.au/resources/statistical-snapshot/documents/profile-qld-women-2009.pdf (viewed 29 October 2009).

[186] Queensland Government, Office for Women,
above.

[187] Office for Women,
NSW Premier’s Department, Our Commitment To Women, p 18. At www.women.nsw.gov.au/PDF/OurCommitment.pdf (viewed 29 October 2009).

[188] Tasmanian Department of Premier and Cabinet, Women on boards:
Increasing women’s participation, www.dpac.tas.gov.au/divisions/cdd/women/leadership/women_on_boards (viewed 29 October 2009).

[189] Northern Territory Government, Territory 2030 Draft Strategy (2009), p 31. At www.territory2030.nt.gov.au/pdf/draftTerritory2030Strategy.pdf (viewed 29 October 2009).

[190] Government of South Australia, South Australia’s Strategic Plan
Progress Report 2008. At http://saplan.org.au/content/view/151/182/ (viewed 28 October 2009).

[191] ACT Office for Women, note 182, p 5.

[192] ACT Office for Women,
note 182, p 3.

[193]Senate
Standing Committee on Legal and Constitutional Affairs, note 11, pp
145-165.

[194] Senate Standing
Committee on Legal and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender
Equality (2008). At www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 26 October 2009).

[195] 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.

[196] Relevant provisions of
the National Employment Standards (NES) would be defined to include the NES on
unpaid parental leave, and rights in relation to family and carers leave and
responsibilities.

[197]CEDAW
opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3
September 1981).

[198] CEDAW,
Article 11(1)(b), 11(1)(c) and 11(1)(d) . Article 11(1)(c) provides ‘the
right to free choice of profession and employment, the right to promotion, job
security and all benefits and conditions of service and the right to receive
vocational training and retraining.’ Article 11(1)(d) provides ‘the
right to equal remuneration, including benefits, and to equal treatment in
respect of work of equal value, as well as equality of treatment in the
evaluation of the quality of
work.’

[199] Under
Article 2(e) of CEDAW, Australia undertakes to take all appropriate measures to
eliminate discrimination against women by any person, organisation or
enterprise.

[200]U.N. GAOR,
58th Sess., Supp. No. 38, U.N. Doc. A/58/38 (Mar. 13, 2003), 411, providing a
record of the 28th CEDAW Committee report that discussed the fifth and sixth
periodic reports of Norway.

[201] U.N. GAOR, 55th Sess., Supp. No. 38, U.N. Doc A/55/38 (Feb. 4, 2000), 408,
providing a record of the 446th and 447th CEDAW Committee meeting that discusses
the third periodic report of Luxembourg.

[202] CEDAW, Article
2(f).

[203]International
Covenant on Civil and Political Rights (ICCPR), opened for signature 16
December 1966, 999 UNTS 171 (entered into force 23 March 1976 except Article 41
which came into force on 28 March 1979).

[204] M, Nowak, U.N
Covenant on Civil and Political Rights: CCPR Commentary (2nd ed,
2005), p 630-631.

[205] UN Human Rights Committee,
General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 146
(2003).

[206] M, Nowak, note
204, p 630-631.

[207] M,
Nowak, note 204, p 631.

[208] ICESCR opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3
January 1976).

[209] ICESCR,
Art 7(c).

[210] Article 2(1)
of the ICESCR provides that each state party ‘undertakes to take steps,
individually through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized in the
present Covenant, by all appropriate means, including particularly the adoption
of legislative
measures’.

[211] Committee on Economic, Social and Cultural Rights, Concluding Observations on
Australia, Forty-second session, 4 - 22 May 2009, 12 June, E/C.12/AUS/CO/4,
[17].

[212] Committee on
Economic, Social and Cultural Rights, above,
[17].

[213] ILO
Discrimination (Employment and Occupation) Convention, 1958 (ILO 111),
Article 2.

[214] ILO
Discrimination (Employment and Occupation) Convention, 1958 (ILO 111),
Article 1(a).

[215] ILO
Convention concerning Equal Remuneration for Men and Women Workers for Work of
Equal Value (ILO 100), Article
2.

[216] ILO Convention
concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (ILO 100), Article 2(a)(b)(c) and
(d).

[217] ILO Convention concerning Equal Opportunities and Equal Treatment for Men and
Women Workers: Workers with Family Responsibilities, 1981, (ILO 156),
Article 3.

[218]ILO Convention concerning Equal Opportunities and Equal Treatment for Men and
Women Workers: Workers with Family Responsibilities, 1981, (ILO 156),
Article 1.

[219] Beijing
Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1. [181]. At www.un.org/womenwatch/daw/beijing/platform/index.html (viewed 28 October 2009).

[220] Beijing Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1, [190(a)].

[221] Beijing Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1,
[190(g)].

[222] Beijing
Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1,
[190(e)].

[223] Beijing
Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1,
[190(f)].

[224] Beijing
Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1, [190(i)].

[225] Beijing Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1,
[192].

[226] EOWW Act, s
2A

[227] EOWW Act, s 3 and 6.
Section 5 of the EOWW Act sets out its limited application based on the
Constitutional heads of
power.

[228] EOWW Act, s 3.
‘Authority’ is defined as a body or the holder of an office,
established for a public purpose by or under a law of the Commonwealth or of a
State or Territory, other than a higher education institution, as well as an
incorporated company or public purpose body over which the Commonwealth, a
State, a Territory is in a position to exercise control.

[229] Office for Women, Review of the Equal Opportunity for Women in the Workplace Act 1999: Issues
Paper (2009), p 7.

[230] EOWW Act, s 2A.

[231] EOWW
Act, s 3. See ‘Equal Opportunity for Women in the Workplace
Program.’

[232] EOWW Act,
s 3.

[233] EOWW Act, s
8(4).

[234] EOWW Act, ss 13,
13A, and 13B. Although, these requirements may be waived under s 13C of the EOWW
Act.

[235] EOWW Act, s 13(2).

[236] EOWW Act, ss 13(3) and
14.

[237] EOWW Act, ss 10 and
18.

[238] EOWW Act, ss 19 and
12.

[239] Officials must not
enter into any contract with an organisation which has been named in Parliament
as non-compliant with their reporting obligations under the EOWW Act: Australian
Government Department of Finance and Administration, Guidance on Complying
with Legislation and Government Policy in Procurement (2005), p 12. At www.finance.gov.au/publications/fmg-series/10-complying-with-legislation.html (viewed 28 October 2009)

[240] Office for Women, note 229, p 10.

[241] EOWW Act, s 20(1).

[242] EOWW Act, s 11(1). Where
the Minister gives a written direction, the Minister is required to table a copy
of the direction before each House of the Australian Parliament within 15
sitting days (EOWW Act, s
11(2)).

[243] Office for Women,
note 229, p 11.

[244] SDA, s
5.

[245] SDA, s
6.

[246] SDA, s 7.

[247] SDA, s
7A.

[248] SDA, s 22.

[249] SDA, s
21.

[250] SDA, s 23.

[251] SDA, s 24.

[252] SDA, s
25.

[253] SDA, s 26.

[254] SDA, s14. See also ss 15
-20 for workplace discrimination.

[255] SDA, s 14.

[256] SDA, s 14
(3A).

[257] Australian Human
Rights Commission, note 17, p
73.

[258] SDA, s
28.

[259] See SDA, s 13(1).

[260] SDA, s 9.

[261] SDA, s
5(1).

[262] SDA, ss 5(2), 7B
and 7D.

[263] SDA, s 14(1) and
(2).

[264] SDA, s 30. The SDA
contains various other permanent in Division 4 of Part II and the Australian
Human Rights Commission is empowered under s 44 of the SDA to grant temporary
exemptions.

[265] See further:
S Redmond, ‘Positive Rights for Workers with Family
Responsibilities’ (2009) 47

NSW Law Society Journal, p 44.

[266] Part III Division I of
the SDA empowers the Australian Human Rights Commission with specific functions
that aim to tackle systemic discrimination. Part V of the SDA establishes the
Sex Discrimination Commissioner.

[267] See s 46PV of the AHRC
Act.

[268] See s 48 of the SDA
and s 11 of the AHRC Act.

[269] AHRC Act, s 46PO.

[270] AHRC
Act, s 46PO.

[271] AHRC Act, s
46PV.

[272] SDA, s 96.

[273] SDA, s 97. Note the
appointment is to be for a specified period, not exceeding 7 years, and the
Commissioner is eligible for re-appointment at the end of her or his term.

[274] SDA ss 8(6) and
11(1)(aa) of the AHRC
Act.

[275] For a more detailed
description of the powers of the SDC and the Commission, see Human Rights and
Equal Opportunity Commission, note 6, p 211-6.

[276] AHRC Act, s
8.

[277] SDA, s
44.

[278] SDA, s
48(1)(d).

[279] SDA, s
48(1)(e).

[280] SDA, s
48(1)(f).

[281] SDA, s
48(1)(g).

[282] SDA, s
48(1)(ga).

[283] SDA, s
48(1)(gb).

[284] ICCPR,
Articles 26 and 2.

[285] AHRC
Act, s 11(1)(e).

[286] AHRC
Act, s 11(1)(k).

[287] AHRC
Act, s 11(1)(f).

[288] AHRC
Act, s 13(1).

[289] AHRC Act, s
13(2).

[290] AHRC Act, s 15.

[291] AHRC Act, ss
21-30.

[292] Human Rights and
Equal Opportunity Commission, note 6, p
216-9.

[293] FWA, s 351.

[294] FWA, s
351.

[295] Section 335 of the
FWA provides that in Part 3.1, employee and employer have their ordinary
meaning. Section 15 excludes a person on a vocational placement from the
definition of an
employee.

[296] Constitutionally covered entities include: a constitutional corporation, the
Commonwealth, a Commonwealth authority, a body corporate incorporated in a
Territory and an organisation (FWA
s338(2)).

[297] Part 3.1 may in
some circumstances also apply to prospective or existing State employees because
ss 338 and 339 of the FWA provide that Part 3.1 applies to ‘action’
that is taken by a constitutionally-covered entity, action that affects the
activities, functions, relationships or business of a constitutionally-covered
entity, action that consists of advising, encouraging or inciting a
constitutionally covered entity, action taken in a Territory or a Commonwealth
place; and action taken by a ‘trade and commerce employer’ or
employee of such an employer that affects, is capable of affecting or is taken
with intent to affect an employee.

[298] Explanatory Memorandum,
Fair Work Bill 2008 (Cth), r 7, p
V.

[299] FWA, s 351.

[300] FWA, s 342. Adverse
action taken by a prospective employer against a prospective employee is defined
in s 342(1).

[301] SDA, s
14(2).

[302] EOWW Act, s 3.

[303] Attorney-General’s
Department, National anti-discrimination information gateway:
Australia’s new workplace relations system, www.antidiscrimination.gov.au/www/nadig/nadig.nsf/Page/Employment (viewed 15 September 2009).

[304] FWA, s 340.

[305] FWA, s 341. Note that as
of 1 January 2010, s 6 of the FWA will provide 10 National Employment Standards
to most Australian employees, including parental
leave.

[306] FWA, s 351(2)(a).
See also s 342(3) which provides that ‘adverse action’ does not
include action authorised by or under the FWA or any other law of the
Commonwealth or a law of a State or Territory prescribed by the regulations.

[307] See s 361 of the FWA.

[308] FWA, s
772(1).

[309] See Part 2-2 of
the FWA.

[310] FWA, s
65.

[311]The parental leave
provisions apply to all Australian employees and include birth-related leave and
adoption-related leave: FWA, s
70.

[312] FWA, s
76.

[313] See FWA, ss 96,
97,102,104. A worker can use carer’s leave to provide care or support to a
member of the worker’s household or immediate family who requires care or
support because of illness, injury or an unexpected
emergency.

[314] FWA, s
62(3)(b).

[315] See S Redmond,
note 265.

[316] FWA, ss
65(2)(a), 67(1).

[317] FWA, ss
12, 65(2)(1), 67(1).

[318] FWA,
s 65(5).

[319] FWA,
s76(4).

[320] FWA, s 302. An
employee, an employee organisation or the Sex Discrimination Commissioner may
apply to Fair Work Australia for an equal remuneration order.

[321] To seek an equal
remuneration order see FWA
302(s)

[322] FWA, ss
150,153.

[323] FWA, s 135(1).

[324] In relation to
‘adverse action’ dismissals, Fair Work Australia has powers to
direct a person to attend a conference (FWA s592) or make a recommendation or
express an opinion (s 595). If the conference does not resolve the dispute, the
complainant may issue proceedings at the Federal Magistrates Court or the
Federal Court (FWA s371). In relation to unlawful terminations, a complainant
may issue proceedings at the Federal Magistrates Court or the Federal Court to
deal with the Fair Work Australia conference does not resolve the dispute (FWA s
779). Note that in either case, complainants can apply directly to the courts
where their application includes an application for an interim injunction (FWA
ss 371(1), s 779(1)).

[325] FWA, s 372, 374(1) and s 539.

[326] FWA, s 700.

[327] FWA, s 709.

[328] See FWA, ss 707, 708,
713, 713A, 714.

[329] FWA, s
716.

[330] FWA, s 716.

[331] FWA, s
682.

[332] FWA, Part 2-2
and Part 6-3.

[333] FWA, Part
2-3.

[334] FWA, Part
2-5.

[335] FWA,
Part 2-6.

[336] FWA,
Part 2-7.

[337] FWA, Part
3-2.

[338] FWA, Part
3-3.

[339] FWA, Part 3-1,3-2
and 6-4.

[340] FWA, s
576.

[341] FWA, s 590.
 

[342] FWA, s
681.

[343] FWA, s 682.

[344] See: Department of
Families, Housing, Community Services and Indigenous Affairs, Office of Work
and Family, www.fahcsia.gov.au/sa/women/progserv/economic/Pages/office_work_family.aspx,
(viewed 28 September 2009).

[345] See: Department of
Families, Housing, Community Services and Indigenous Affairs, Office for
Women, www.fahcsia.gov.au/sa/women/overview/ofw/Pages/default.aspx,
(viewed 28 September 2009).

[346] Government Equalities
Office, About Geo, www.equalities.gov.uk/about_geo.aspx,
(viewed 17 September
2009).

[347] G Scoular, Equality Bill 2009 – Legal Q &A, 2009. At www.personneltoday.com/articles/2009/05/05/50545/equality-bill-2009-legal-qa.html (viewed 28 October 2009).

[348] G Scoular, above.

[349] G
Scoular, above.

[350] Commission of Equality and Human Rights, Our history: the DRC, CRE &
EOC. At http://edit.equalityhumanrights.com/en/aboutus/history/pages/oldsitelinks.aspx (viewed 28 October 2009).

[351] Commission for Equality and Human Rights, Vision, Mission and Priorities, http://edit.equalityhumanrights.com/en/aboutus/mission/pages/visionmissionandpriorities.aspx,
(viewed 17 September
2009).

[352] Commission for
Equality and Human Rights,
above.

[353]Commission for
Equality and Human Rights,
above.

[354] Commission for
Equality and Human Rights, About us. At http://edit.equalityhumanrights.com/en/aboutus/pages/aboutus.aspx (viewed 28 October 2009).

[355] Commission for Equality and Human Rights, above.

[356] Equality
Act 2006 (UK), s
20(1)(a).

[357] Equality Act 2006 (UK), s 20(2).

[358] Schedule 2 to the Equality Act 2006 (UK), cl
12.

[359] Equality Act 2006 (UK), s 21(1).

[360] Equality Act 2006 (UK), s
21(4).

[361] Equality
Act 2006 (UK), s
22(6)(c).

[362] Equality Act 2006 (UK), s 23.

[363] Equality Act 2006 (UK), s
23(2).

[364] Equality Act 2006 (UK), s
23(1)(a).

[365] Equality Act 2006 (UK), subs 24(2) and (3).

[366] Equality Act 2006
(UK), s 20(1) and Schedule 2, para 9.

[367] The Equality Act 2006 (UK) inserted sections 76A and 76B into the Sex Discrimination Act
1975 (UK).

[368] The Sex
Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006 (UK), Article 2.

[369] The
Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order
2006 (UK), Article 3.

[370] The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order
2006 (UK), Article 4.

[371] The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order
2006 (UK), Article 6.

[372] Sex Discrimination Act 1975 (UK), s 76D.

[373] Sex Discrimination
Act 1975 (UK), s
76D(6).

[374] Sex
Discrimination Act 1975 (UK) s 63.

[375] Sex Discrimination
Act 1975 (UK) s 66.

[376] Equality Act 2006
(UK) s 25.

[377] Equality
Act 2006 (UK) s 27.

[378] Equality and Human Rights Commission, What We Do, http://edit.equalityhumanrights.com/en/aboutus/whatwedo/pages/whatwedo.aspx,
(viewed 17 September
2009).

[379] See Advisory,
Conciliation and Arbitration Service, Conciliation, www.acas.org.uk/index.aspx?articleid=2010 (viewed 21 September 2009).

[380] Equality Act 2006
(UK), s 24(1).

[381] Equality Act 2006 (UK), s 30
(1).

[382] Equality Act 2006 (UK), ss 28(1) and
29.

[383] Equality Act 2006 (UK), s 28 (4).

[384] Equal Pay Act 1970 (UK), subs 1(2)(a),(b)and
(c).

[385] Equal Pay Act 1970 (UK), s1. See also Barber v Guardian Royal Exchange Assurance
Group (C-262/88) [1991] 1 QB 344; Equality and Human Rights Commission, Pay Benefits And Workplace Conditions. At www.equalityhumanrights.com/advice-and-guidance/information-for-employers/areas-of-responsibility/pay-benefits-and-workplace-conditions/ (viewed 28 October 2009).

[386] Equal Pay Act 1970 (UK) s
2(1).

[387] Low Pay Commission, National Minimum Wage: Low Pay Commission Report 2008, 2008, Chapter 3,
para 3.2-3.4). At www.lowpay.gov.uk/lowpay/report/pdf/2008_Min_Wage.pdf (viewed 28 October 2009).

[388] Equality Act 2006 (UK), sub 12 (1),(2) and
(3).

[389] Equality Act 2006 (UK), sub 12 (4) and
(5).

[390] Equality Act
2006 (UK), s 14 (1).

[391] Equality Act 2006 (UK), sub 14 (1) and
(5).

[392] Equality Act
2006 (UK), s 14 (6).

[393] Equality Act 2006 (UK), s 14
(7).

[394] Equality Act
2006 (UK), s 14 (8).

[395] Equality Act 2006 (UK), s 15
(4)(a).

[396] Equality Act
2006 (UK), s 15(4)
(b).

[397] Equality Act
2006 (UK), s 31.

[398] Equality Act 2006 (UK), s 16
(1).

[399] Equality Act
2006 (UK), s 20.

[400] Schedule 2 to the Equality Act 2006 (UK).

[401] Schedule 2 to
the Equality Act 2006 (UK) cl
2-4.

[402] Schedule 2 to the Equality Act 2006 (UK) cl 15 and
16.

[403] Schedule 2 to the Equality Act 2006 (UK) cl 9 and
10.

[404] Equality Act 2006 (UK), s 30 (1).

[405] Equality Bill 2009 (UK), cl
145.

[406] Race Relations
Act 1967 (UK), s 71.

[407] Disability Discrimination Act 1995 (UK), s
49A(1).

[408] Equality Act
2006 (UK) s 23(2).

[409] Section 4 of the Equality Bill 2009 (UK) lists the protected
characteristics as age, disability, gender reassignment, marriage and civil
partnership, pregnancy and maternity, race, religion or belief, sex and sexual
orientation.

[410] Equalities
Office, Equality Bill: Making it work, Policy proposals for specific duties,
A consultation (June 2009). At www.equalities.gov.uk/pdf/Specific%20Duties%20Consultation%20DocumentWEB.pdf,
(viewed 30 September
2009).

[411] Equality Bill
2009 (UK), cl 75.

[412] Equality and Human Rights Commission, Proposals for promoting greater
transparency in the private sector: A consultation on improving gender equality
in the workplace (2009), p 29. At www.equalityhumanrights.com/uploaded_files/consultations/gender_pay_consultation.pdf,
(viewed 30 September
2009).

[413] Equality and Human
Rights Commission, above.

[414] Equality and Human Rights Commission, note
412.

[415] Equality Bill
2009 (UK), cl 74.

[416] Equality Bill 2009 (UK), cl 74.

[417] Equality Bill 2009
(UK), cl 154-155.

[418] Equality Bill 2009 (UK), cl
118.

[419] Equality Bill 2009
(UK), cl 110.

[420] The
‘good employer’ is also referred to in the Crown Entities Act
2004 (NZ) and the Local Government Act 2002 (NZ).

[421] Ministry of
Women’s Affairs, Home, www.mwa.govt.nz/, (viewed 17 September
2009).

[422] Human Rights
Act 1993 (NZ), s 5 (1).

[423] Human Rights Act
1993 (NZ), s 17.

[424] New Zealand Bill of Rights Act 1990 (NZ), s 19.

[425] Human Rights Act
1993 (NZ) part 1a and part
2.

[426] The Human Rights
Review Tribunal is a judicial authority independent of the NZHRC which was
established by the Human Rights Commission Act 1977 (NZ).

[427] Section 92 of
the Human Rights Act 1993 (NZ) sets out the matters which the Director of
the Office for Human Rights Proceedings must consider in determining whether to
provide legal representation to a particular complainant.

[428] Section 112 of the Employment Relations Act 2000 (NZ) and section 79A of the Human Rights
Act 1993 (NZ) provide that a person must choose to either lodge a complaint
with the NZHRC or pursue the matter as a personal grievance.

[429] Employment Relations
Act 2000 (NZ), ss 102, 103.

[430] Equal Pay Act
1972 (NZ), s 2A(1).

[431] Equal Pay Act 1972 (NZ), s
2A(2)

[432] Human Rights Act
1993 (NZ), s 17(c). NZ Census Results available at www.hrc.co.nz/home/hrc/eeo/eeopublications/eeopublications.php (viewed 28 October 2009).

[433] Human Rights Act 1993 (NZ), ss 5(2)(e) and
17(d).

[434] Human Rights
Act 1993 (NZ), s
5(2)(h).

[435] Human Rights
Act 1993 (NZ), s 126A and
127.

[436] Human Rights Act
1993 (NZ), s 92E.

[437] Human Rights Act 1993 (NZ), s 5 (2)
(j).

[438] Human Rights Act
1993 (NZ), s 5 (2)
(j).

[439] Canadian Human
Rights Act, RS 1985, c H-6, s
26.

[440] See Canadian Human
Rights Commission website, About Us. At www.chrc-ccdp.ca/about/default-en.asp (viewed 28 October 2009).

[441] ‘Discriminatory practices’ are set out in Canadian Human Rights
Act, RS 1985, c H-6, ss 5-14.1. (which should be read in conjunction with Canadian Human Rights Act, RS 1985, c H-6, s 3
(1)).

[442] A more detailed
list of federally regulated organisations is available from the Canadian Human
Rights Commission. See Canadian Human Rights Commission, Overview: Resolving Disputes, www.chrc-ccdp.ca/discrimination/federally_regulated-en.asp (viewed 21 September 2009).

[443] Canadian Human Rights
Act, RS 1985, c H-6, s 40
(3).

[444] Canadian Human
Rights Act, RS 1985, c H-6, s 43
(2.1).

[445] Canadian Human
Rights Act, RS 1985, c H-6, s 48
(1).

[446] Canadian Human
Rights Act, RS 1985, c H-6, s 49
(1).

[447] Canadian Human
Rights Act, RS 1985, c H-6, s 48.3
(10).

[448] Canadian Human
Rights Act, RS 1985, c H-6, s 53
(2).

[449] Canadian Human
Rights Act, RS 1985, c H-6, s 53
(2).

[450] Canadian Human
Rights Act, RS 1985, c H-6, s 53
(3).

[451] Canadian Human
Rights Act, RS 1985, c H-6, s
57.

[452] Canadian Human
Rights Act, RS 1985, c H-6, s 48.3
(12).

[453] Canadian Human
Rights Act, RS 1985, c H-6, s 11
(1).

[454] Canadian Human
Rights Act, RS 1985, c H-6, s 11
(7).

[455] For Equal Pay
Guidelines see Canadian Human Rights Commission, Resources, www.chrc-ccdp.ca/publications/tfa_appendix4-en.asp (viewed 28 October 2009).

[456] Canadian Human Rights Act, RS 1985, c H-6, ss 11 (1), 39 and 40 (1).

[457] Employment Equity
Act 1995 (Canada), c 44, s 4 (1).

[458] Employment Equity
Act 1995 (Canada), c 44, s
5.

[459] Employment Equity
Act 1995 (Canada), c 44, s 9 (1)
(a).

[460] Employment Equity
Act 1995 (Canada), c 44, s 9 (1)
(b).

[461] Employment Equity
Act 1995 (Canada), c 44, ss
12,13.

[462] Employment
Equity Act 1995 (Canada), c 44, s
14.

[463] Employment Equity
Act 1995 (Canada), c 44, s
17.

[464] See Employment
Equity Act 1995 (Canada), c 44, ss 18 (1), 21(1). In practice,
private sector employers report to the Department of Human Resources and Social
Development Canada and public sector employers report to the Public Service
Human Resources Management Agency of
Canada.

[465] Employment
Equity Act 1995 (Canada), c 44, ss 20,
21(5).

[466] Employment
Equity Act 1995 (Canada), c 44, s 23
(1).

[467] Employment Equity
Act 1995 (Canada), c 44, s 25
(1).

[468] Employment Equity
Act 1995 (Canada), c 44, s 25 (2),
(3).

[469] Employment Equity
Act 1995 (Canada), c 44, s 27
(2).

[470] Canadian Human
Rights Act, RS 1985, c H-6, s 27
(2).

[471] Canadian Human
Rights Act, RS 1985, c H-6, s 27 (3),
(4).

[472] An English summary
of the commissions report (Official Norwegian Report (NOU) 2009: 14
“Et helhetlig diskrimineringsvern”) can be downloaded from www.regjeringen.no/nb/dep/bld/,
(viewed 6 October 2009).

[473] World Economic Forum, The Global Gender Gap Report (2008). At www.weforum.org/pdf/gendergap/report2008.pdf (viewed 21 September 2009). NB In the most recent Report released 27 October
2009, Norway slipped to third position behind Iceland and Finland. See World
Economic Forum, note 20.

[474] See Arbeidslivets lover, Act Relating to Working Environment, Working Hours
and Employment protection, ETC (Working Environment Act) 2007 (Norway). At www.arbeidstilsynet.no/binfil/download.php?tid=42156 (viewed 28 October 2009)

[475] Equality and Anti-Discrimination Ombud and the Equality and
Anti-Discrimination Tribunal Act 2005 (Norway), s
3.

[476]Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
3.

[477]Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
4.

[478] Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s 4.

[479] Equality and Anti-Discrimination Ombud and the Equality and
Anti-Discrimination Tribunal Act 2005, s
7.

[480]Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
8.

[481] Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
12

[482] Gender Equality
Act 1979 (Norway), s
3.

[483] Gender Equality
Act 1979 (Norway), s
3a.

[484] Gender Equality
Act 1979 (Norway), s
17.

[485] Gender Equality
Act 1979 (Norway), s
5.

[486] Gender Equality
Act 1979 (Norway), s
9.

[487] Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
7.

[488] Gender Equality
Act 1979 (Norway), s
1a.

[489] Gender Equality
Act 1979 (Norway), s
1a.

[490] Gender Equality
Act 1979 (Norway), s
1a.

[491] Gender Equality
Act 1979 (Norway), s
21.

[492] Public Limited
Companies Act 1997 (Norway), s
20-6.

[493] Public Limited
Companies Act 1997 (Norway), s
6-11a.

[494] Public Limited
Companies Act 1997 (Norway), s
19-1.

[495] Public Limited
Companies Act 1997 (Norway), s
19-1.

[496] The Business
Enterprise Registration Act 1985 (Norway), s
5-2.

[497] Public Limited
Companies Act 1997 (Norway), s
16-15.

[498] Public Limited
Companies Act 1997 (Norway),
s16-17.

[499] Public Limited
Companies Act 1997 (Norway),
s16-17.

[500] Local
Government Act 1992 (Norway), s
16.

[501] Norwegian Ministry of
Children and Equality, Guide to gender equality assessment and discussion in
ministry budget propositions (2007), p 3. At www.regjeringen.no/upload/BLD/Veiledning%20og%20brosjyrer/2007/Guide_likestillingsvurdering_eng_link.pdf (viewed 29 October 2009).

[502] Norwegian Ministry of Children and Equality, above.