Australia: Gender equality arrives at last

Following the centenary of International Women's Day on 8 March 2011, then Minister for the Status of Women, Kate Ellis, announced an overhaul of the EOWA regime. In our May (click here) and November (click here) updates, we outlined the key changes foreshadowed by the Minister. One year on and the much awaited Equal Opportunity for Women in the Workplace Amendment Bill 2012 (Cth) (Bill) has been introduced to the House of Representatives. The Bill is designed to give effect to a 2010 election campaign commitment to support gender equality and improve workforce participation and workplace flexibility.

Why is the law changing?

A comprehensive review of the EOWA regime was undertaken in consultation with business, unions, academics and women's organisations. The findings of the review highlighted a number of shortcomings in the EOWA regime, including that it was essentially a toothless tiger reliant on the cooperation of organisations. EOWA has no power to conduct self-initiated action or investigations and, under the current system, the onus falls on eligible organisations to identify themselves to EOWA.

In addition, there have been a number of economic, social and legislative changes since the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (Act) was last amended over a decade ago. It is therefore important from a policy perspective that the law reflects the current needs of Australians. One of the key changes the Bill introduces is a new focus on gender equality for both men and women, rather than simply focusing on working women. The Bill will change the name of EOWA to the Workplace Gender Equality Agency (Agency) and will amend the Act's principal objects to reflect the new focus of the Agency. If passed, the principal objects of the Act will be:

• to promote and improve gender equality (including equal remuneration between women and men);
• to support employers to remove barriers to the full and equal participation of women in the workforce;
• to promote the elimination of gender-based discrimination amongst employers (including in relation to family and caring responsibilities);
• to foster workplace consultation on gender equality; and
• to improve the productivity and competitiveness of Australian business.

Is my organisation covered?

The EOWA regime currently covers organisations with 100 or more employees (Reporting Organisations) and requires the submission of an annual report by Reporting Organisations. The Bill maintains reporting requirements for organisations with 100 or more employees and, as is the case now, if a Reporting Organisation's employee numbers fall below 100, it will continue to be covered by the regime unless and until employee numbers fall below 80.

While organisations with fewer than 100 employees are not subject to reporting requirements, they are still able to seek education, advice and assistance from the Agency.

What will happen if the Bill is passed?

One of the aims of the new framework is to shift the annual report requirements from workplace programs to tangible outcomes. Specifically, the Bill introduces significant changes to the reporting obligations of Reporting Organisations by requiring them to report on gender equality indicators, including:

• the gender composition of the workforce and board;
• equal remuneration between women and men;
• the availability and uptake of flexible working arrangements for employees (including those designed to support employees with family or caring responsibilities); and
• consultation with employees on gender equality issues.

Reporting Organisations will need to submit to the Agency an accurate report, which has been signed by the chief executive officer of the organisation. Once the report has been lodged, the Reporting Organisation will need to take steps to notify employees and relevant employee organisations (ie unions) that a report has been lodged and that comments can be made. They must also provide employees and shareholders with access to a copy of the report.

The Agency will use the information provided in annual reports to develop benchmarks for Reporting Organisations to assess how they compare to their peers. Benchmarks will be promoted among Reporting Organisations to enable them to identify where they need to focus their attention to be more competitive with businesses in their industries.

One of the new functions of the Agency will be to create minimum standards in relation to specified gender equality indicators, specified employers and specified reporting periods. The minimum standards are intended to be industry-specific and represent the standard expected with respect to the achievement of a particular gender equality objective. Reporting Organisations will be required to demonstrate improvement over time against applicable minimum standards, and may face consequences for failing to improve.

Another important change is that Reporting Organisations will be required to report annually without exception, with the current power of the Agency Director to waive reporting requirements being removed.

When will the changes take effect?

The Bill is currently in the House of Representatives. Once the Bill is passed by Parliament and it has received Royal Assent, the new name of the Agency and its new functions will take effect. The new reporting requirements will not impact on the reporting year 1 April 2011 to 31 March 2012, for which reports are due to EOWA by 31 May 2012.

The Bill instead transitions Reporting Organisations to the new system by imposing limited reporting requirements for the 2012-13 reporting year, with the reporting requirements taking full effect for the 2013-14 reporting year. Minimum standards will not come into effect until 1 April 2014.

What are the consequences of non-compliance?

The Bill strengthens the current compliance framework by imposing new sanctions for providing false or misleading information in a report and providing the Agency with the ability to compel Reporting Organisations to produce relevant information to check the accuracy of reports and compliance with the amended Act. Consequences for non-compliance will include the ability to 'name and shame' organisations in Parliament or by other means (such as in a newspaper). Non-compliant organisations will continue to be banned from doing business with the Government, however, this ban will be more effectively and consistently applied. There may also be additional consequences in relation to Commonwealth grants and financial assistance.

The new inspectorate function of the Agency will enable the Agency to identify Reporting Organisations who have failed to make themselves known to EOWA. It is estimated that up to a third of Reporting Organisations have failed to identify themselves to EOWA. These organisations will be targeted under the new regime. The Regulatory Impact Statement accompanying the Bill foreshadows that the Government will introduce legislation allowing the ATO to provide the Agency with a list of all businesses employing 100 or more people to enable the Agency to audit compliance.

What do Reporting Organisations have to do now?

EOWA reporting obligations remain unchanged for the 2011-12 reporting year. Reporting Organisations must submit their annual report to EOWA by 31 May 2012.

Reporting Organisations should start planning now for the 2012-13 reporting year, which will commence on 1 April 2012. Gadens Lawyers encourages organisations to take a proactive, best practice approach to gender equality and diversity, including by developing strategies for compliance with the new reporting obligations.

Can we help?

Gadens Lawyers has specialist expertise in employment and safety, and is experienced in assisting employers to develop a strategy to meet their compliance obligations.

For more information, please contact:

This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.