Today marks the 101st International Women's Day, an opportunity to celebrate and reflect on the status of women world-wide.

In the coming months, the Federal Parliament will also reflect on the successes and shortcomings of Australia's current affirmative action legislation, the Equal Opportunity for Women in the Workplace Act 1999 (Act), when it votes on Amendments to this Act introduced into parliament just prior to International Women's Day on 1 March 2012 (the Equal Opportunity for Women in the Workplace Amendment Bill 2012 (Bill)).

The Act currently requires companies and organisations with more than 100 employees, classed as 'relevant employers', to develop plans for the positive advancement of women in their organisations and submit annual reports on the measures the company has adopted to develop women in the workplace.

The push towards gender equality

The amending Bill removes this process-driven approach and adopts an outcome-focused reporting scheme to improve equality outcomes for women. The Federal Government hopes it will also help cut red tape and streamline reporting requirements for relevant employers.

Companies will still be required to file reports, but the reports will address the company's performance against specified 'gender equality indicators' set out in the Bill instead of an analysis of the success or otherwise of the measures the company has adopted in its workplace.

In accordance with this new direction, the Act will adopt a gender-neutral title: the Workplace Gender Equality Act 2012 (Cth) (Workplace Gender Equality Act).

The Bill also introduces a suite of measures aimed at improving compliance, including a requirement that the chief executive officer of a relevant employer sign-off on the company's regular reports. This continues the trend established in the Federal Model Work, Health and Safety Laws, to require ownership of change and compliance at a company's board and executive level in a bid to raise the profile of matters such as equality and occupational, health and safety (including bullying and harassment) within Australia's corporate landscape.

Following the introduction of the amended Act and before April 2014, the minister may also set industry specific minimum standards for specific gender equality indicators and companies will be required to report on compliance with each minimum standard to target specific areas of concern.

Equal remuneration

The new 'gender equality indicators' set out in the Bill specifically include the equal remuneration of men and women, a subject that came into focus over the course of 2011 and 2012 with the Fair Work Australia Equal Remuneration Case.

In that case, Fair Work Australia found that employees in the social, community and disability services industries outside of government, the majority of whom are women, were not receiving the same remuneration as those men and women performing comparable work in public service employment at state and local level and the fact the majority of employees in these industries are women was an 'important influence' in the pay differential.

What must be reported?

Under the amending Bill, a company's pay data will form part of the company's regular reporting requirements. This data will not be made available to the public, but the outcomes will assist the government to assess Australia's progress in closing the pay divide between men and women, which is currently reported as sitting just under 18%.

Employers will also report on other gender equality indicators, including:

  • The number of women in the workforce and at leadership level (including boards of directors and management)
  • Workplace care and work flexibility policies, specifically the application of gender-neutral care policies to enable men and women to share equally in caring responsibilities and achieve substantive equality.

As well as the above, the relevant Minister may specify 'any other matters' on which companies must report (not limited to employment-related matters), so long as the additional gender equality indicator is established in advance of the reporting period.

These reporting obligations are similar to the Australian Securities Exchange (ASX) Corporate Governance Principles and Recommendations introduced in 2010, which require ASX-listed companies to set out in their annual report the number of women on boards, in senior management and the workplace, and report on their gender diversity policies and targets.

For employers

The Bill makes clear that failure to comply with the reporting requirements may result in naming of companies in reports to the relevant minister or publication in national newspapers, and failure to report may affect a company's eligibility to compete for contracts under the Commonwealth procurement framework.

The challenge for companies with more than 100 employees will be to ensure that internal policies and affirmative action plans are adaptable and results-driven. Companies that adopt creative measures for increasing female participation and development will be best placed to report on relevant indicators (including any new indicators devised after the introduction of the amendments) and satisfy minimum standards. In turn, they will be able to achieve the desired substantive equality outcomes to the benefit of employees and the company.

The Bill was introduced into the House of Representatives on 1 March 2012. It must now be passed by both houses of parliament and receive royal assent before it comes into force. DLA Piper will provide an update on the passage of the Bill and best-practice compliance following the introduction of the Workplace Gender Equality Act.

If you would like more information about Australia's affirmative action legislation and how your company's policies, procedures and practices can assist to achieve equality for men and women in your workplace, please contact us.

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