WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Related Issues
Endnotes
Attachment A
Contact Officer and Copyright Details
Equal Opportunity for Women in the Workplace Amendment
Bill 1999
Date Introduced: 22 September 1999
House: House of Representatives
Portfolio: Employment, Workplace Relations and Small
Business
Commencement: The formal parts of the Bill
come into operation on Royal Assent, however the bulk of the
effective changes (Schedules 1 and 3) commence on 1 January
2000.
To change references to 'affirmative action' in
the Affirmative Action (Equal Employment Opportunity for Women)
Act 1986 to references to 'equal opportunity for women in the
workplace' and to give employers greater latitude when devising
their 'workplace programs' under the legislation, including
changing the reporting period for employers from one year to two
years.
The Affirmative Action (Equal Employment
Opportunity for Women) Act 1986 ('the Principal Act') requires
private sector companies, community organisations, non-government
schools, unions, group training companies and higher education
institutions with 100 or more people to establish affirmative
action programs. Affirmative action programs are meant to be
designed to remove discriminatory employment barriers and take
action to promote equal opportunity for women in the workplace. If
an employer does not comply with the requirements of the Act they
may be named in Parliament in the Affirmative Action Agency's
report.
The Eight Step Affirmative Action Program
An affirmative action program consists of a
strategic plan that addresses specific issues relevant to that
workplace and must include the following eight steps:
-
- the issuing by management of a policy statement notifying
employees of the commencement of an affirmative action program
-
- conferring responsibility for the program on a person with
sufficient authority and status within the management to enable
proper development and implementation of the program
-
- consulting with trade unions which have members in that
workplace
-
- consulting with employees, especially women
-
- collecting and recording statistical and other relevant
information on the program
-
- reviewing policies and practices of the employer to identify
any discriminatory policy or practice or to identify any patterns
of lack of opportunity relating to women
-
- setting objectives and making forward estimates, and
-
- monitoring and evaluating the implementation of the program to
assess the achievement of the objectives and forward
estimates.(1)
The Definition of 'Affirmative Action'
The Affirmative Action Agency ('the Agency') has
commented with respect to the definition of 'affirmative action'
that:
-
- Affirmative action is the term for a range of measures for
eliminating direct and indirect discrimination and for implementing
positive steps to overcome the current and historical causes of
lack of equal employment opportunity for women.
-
- Affirmative action for women is compatible with appointment and
promotion on the basis of merit.
-
- An affirmative action program is a strategic program designed
to achieve equal employment opportunity for women.
-
- Affirmative action is not about quotas. It is not about
discrimination to favour women.
-
- Affirmative action is about merit.(2)
Nevertheless, the terminology of 'affirmative
action' has been the subject of some criticism (see below).
The Effect of the Principal Act
The legislation has remained largely unchanged
over the course of its 13 years, amendments have extended the range
of employers covered and introduced provisions regarding the
waiving of reporting requirements. (It should be noted that a
non-legislative change to the impact of the legislation was made in
1993 when the Government of the day decided that employers who fail
to comply with the requirements of the Principal Act would not be
eligible for consideration for government contracts for goods and
services and specified industry assistance.(3)) However the
position of women in Australian workplaces is still identified as
unsatisfactory, with the Director Affirmative Action Agency
commenting that these persistent problems remain:
-
- Australia still has one of the most gender segregated
workforces of OECD countries
-
- Women in management figures remain low
-
- Achieving pay equity remains a significant challenge
-
- There has been a steady trend showing an increasing number of
best practice organisations - but are we now approaching a
plateau?
-
- Some industries are struggling with affirmative action
-
- 70% of those who live in poverty in this country are women and
their dependant children
-
- In countries where women are not given a choice to balance
their work and family commitments they are choosing to not have
families and remain in the paid work force
-
- There is a dramatic increase in the casualised workplace
-
- The fastest growing area of employment is contracting.(4)
The Independent Review
The changes proposed in this Bill are the
Government's response to the Review of the Affirmative Action
(Equal Employment Opportunity for Women) Act 1986 ('the
Review').(5) This review was undertaken as one of a number of
scheduled legislative reviews implementing the Commonwealth
Government's commitment to the 1995 Competition Principles. It was
chaired by Ms Deanne Bevan, who was the Director of Employee
Relations for McDonalds Australia. Other Committee members
were:
-
- Ms Heather Carmody, Director, World Competitive Practices
-
- Mr Brendan McCarthy, Director Operations, Chamber of Commerce
and Industry of Western Australia
-
- Ms Barbara Holmes, Managing Consultant, Managing Work and
Family, Australia, and
-
- Ms Norah Breekveldt, Group Manager Human Resources, Norwich
Union.
The objectives of the review were:
-
- to assess whether the benefits to the community from the
legislation/regulation outweighed the costs
-
- to assess whether the objectives of the legislation/regulation
couldn't be achieved more efficiently through other means
-
- to have regard to the effects on welfare and equity, economic
and regional development, consumer interests, the competitiveness
of business and efficient resource allocation, and
-
- to ensure compliance costs and the paperwork burden to small
business be reduced where feasible.
The Review's Recommendations
The Review recommended that while central parts
of the legislation should remain intact, various changes were
desirable. The Government has agreed to many of the Review's
recommendations (the Review's recommendations form Attachment
A of this Digest), and an Advisory Board along the lines of
the Review's Recommendation 4 has already established.(6) The Chair
of this new Advisory Board is Ms Deanne Bevan, who chaired the
Review.(7)
The Government has also, however, rejected some
of the Review's recommendations. The more significant rejections
include:
-
- The Review's recommendation that a system for workplace visits
be introduced to assist in confirming waived status and
supplementing reporting (Recommendation 12).
-
- The Review's recommendation that there be an explicit
requirement for self-identification of relevant employers in the
Act (Recommendation 14).(8)
The Bill represents the implementation of many
of the other recommendations of the Report, although within this
implementation of the recommendations there are still divergences
between the Review's recommendations and the Government's response,
in particular with respect to the proposed legislative
implementation of recommendations 2 and 11.
Recommendation 2 was the Review's suggestions
for the insertion of a clearly articulated objects clause. The
Review's recommendation specified that the legislation should:
...promote consultation between employers and
employees and their representatives in addressing equity
issues in the workplace.(9) [emphasis added]
The Committee also recommended that the objects
should include the key principle:
To apply sanctions when employers disregard
their responsibilities under the Act.(10)
These recommendations were summarised by the
Government in the following manner:
The objects clause would also: emphasise the
merit principle; replace the old union consultation requirement
with a general statement of support for consultation; and clarify
the new emphasis on an incentive-based, educative and conciliatory
approach to compliance.(11)
The Government's Response was given as
follows:
The Government agrees that the objects of the
legislation should emphasise merit, replace the old union
consultation requirement with a general statement of support for
consultation and emphasise a facilitative rather than punitive
approach to compliance.(12)
This response would seem to have endorsed its
own summary rather than the actual recommendations of the Review.
The Review did recommend the replacement of the previous system of
reporting (which included a requirement to consult with trade
unions) with a more flexible system of reporting, however it
recognised the role unions could play through its reference to
employee's representatives. In fact, far from recommending against
union consultation, the Review's main reference to unions was a
discussion of the workplace data analysed by the Centre for
Research in Employment and Work which showed that:
unionised workplaces have better equity
performance than non-unionised workplaces, and the higher the level
of union density the more likely the workplace is to have high
equity performance.(13)
The Review's reference to the need for sanctions
to deal with non-complying employers also seems to have been lost
(or perhaps 'misplaced') rather than endorsed in the Government's
reference to a 'facilitative rather than punitive' approach to
compliance.
The second divergence between the Review's
recommendations and the Government's implementing legislation as
presented in this Bill is with respect to recommendation 11. This
recommendation suggested that a more flexible approach should be
taken to the waiving of reporting requirements, but that a waiver
should be able to be revoked. There are no provisions made
regarding the Agency's power to revoke a waiver if, after
investigation, the Agency believes an employer is not taking
reasonable steps to eliminate discrimination 'or that progress
towards achieving equity has faltered.'(14) The new provision
simply allows the Agency to specify how long the waiver is to
operate when it first grants the waiver.
Perhaps the major recommendation of the Review,
and the major change which would be effected by the legislation, is
the change of terminology in the Principal Act from 'affirmative
action' to 'equal employment.' The term 'affirmative action', in a
generic sense, can simply refer to any special measure taken which
may have a different impact on men and women and which is designed
to address social conditions which have resulted in systemic
discrimination. However, the term 'affirmative action' has now
taken on connotations of quota based systems and reverse
discrimination. The Review quotes several sources identifying the
confusion regarding the term affirmative action, including the
Women's Electoral Lobby:
Because of the continued misinterpretation of
the term affirmative action as meaning 'reverse discrimination'
[the Women's Electoral Lobby] recommends that the Affirmative
Action legislation and Agency be renamed as the Employment Equity
(for women) Act and the Employment Equity Agency (to allow for a
broader role in future).(15)
Another source summarised the matter as
follows:
There is a growing consensus in Australia that
the term 'affirmative action' is inappropriate. The term connotes
preferential treatment and positive discrimination largely because
of its association with US legislation which is perceived (some
would argue misperceived) to encourage such practices (Thornton
1997, Walpole 1997). The press in Australia uses the term for both
the program under the [Affirmative Action] Act and for proposals to
use hard quotas for women (e.g. in political party preselection;
see Kingston 1994).(16)
While it could be argued that a reference to
'affirmative action' might serve to challenge the community's
understanding and encourage an awareness that social inequality can
flow from membership of a group, or that the existence of systemic
discrimination should be recognised and addressed, the antagonism
that the term has generated is also referred to by the Sex
Discrimination Commissioner. It would seem that a move away from
the term would be generally favoured.(17)
Another proposed change which could attract
antipathy from 'feminist' organisations is the move to a biennial
system of reporting. This change was identified by the Review as
being supported by the Affirmative Action Agency and many tertiary
institutions. However it could be argued that it will weaken the
accountability of employers and lead to a lessening of their
commitment to equal opportunity principles in the period between
reports. The Review concluded, however, that a biennial reporting
period creates a good balance between the costs of compliance to
employers and the benefits of the legislative regime.(18)
The legislation proposes changes to the name of
the Act, the name of the Agency it creates and the name of the
Agency's Director. These changes delete references to 'affirmative
action' and make reference to 'equal opportunity for women in the
workplace.' There are other, minor and often consequential
terminological changes, such as references to 'affirmative action
programs' becoming references to 'workplace programs' and
references to the legislation in other legislation being amended to
fit the new title of the legislation. These changes are made in
Schedule 1 by items 1, 3, 4, 6, 12, 13,
16, 17-20, 24-26 and 27. Schedule 2 makes
similar terminological adjustments to the Short Title of the Act,
while Schedule 3 has straightforward transitional
provisions to deal with these terminological changes.
Item 2 proposes a new
section 2A to contain the objects of the Act. These
objects include:
-
- the promotion of employment on the basis of merit
-
- the elimination of discrimination and
-
- workplace consultation.
Currently 'employment matters' are defined in
section 3 to cover recruitment/selection procedures, the promotion
and transfer of employees and training and staff development for
employees. Item 7 proposes a couple of additional
points which are to be included in the definition of 'employment
matters'. These include the termination of employment, 'work
organisation' and arrangements for dealing with sex-based
harassment of women in the workplace. (They also delete the word
'staff' from the earlier definition of 'staff development' thereby
marginally broadening the coverage of 'employment matters' to cover
any training and development for employees, rather than simply
training and staff development).
Item 10 inserts a new
definition, 'workplace profile' - to mean 'factual information' as
to the composition of the employer's workforce. This new definition
is necessary because proposed section 8 introduces
a requirement that employers prepare a workplace profile as part of
the reporting process.
Item 14 inserts a new
section 6 which, while it is more simply defined, does not
significantly change the provisions of the original section 6.
These provisions require employers with more than 100 employees (or
an employer who used to have 100 employees and who currently has
more than 80 employees) to develop and implement workplace programs
(formerly affirmative action programs).
Item 15 introduces a
new section 8 which outlines what an employer must
do to create a workplace program. The proposed provisions are
drafted in such a way as to give greater latitude to employers in
preparing their programs than the current section, which stipulated
a greater number of specific requirements. The proposed provisions
include the need to create a current workplace profile (which must
reflect the reality of the workplace during a period not more than
6 months before), an analysis of issues that need addressing to
achieve equal opportunity in the particular workplace, actions to
be taken on 'priority issues' identified in this analysis, and
evaluation of the effectiveness of such actions. Any other relevant
information may be included as the employer thinks fit. The
employer must have a workplace program for each reporting
period.
Item 15 also repeals the old
section 7 which is no longer needed since the original provisions
for a staggered introduction of the reporting requirements which
depended on the size of an employer are no longer relevant.
(Similarly item 9 repeals a definition previously
given of 'operative day' which is now redundant and item
5 repeals a redundant definition of 'amalgamated
institution').
Item 21 repeals the original
sections dealing with public reports, the periods during which
reporting must occur, confidential reports and the waiving of
reporting requirements. Once again the proposed amendments bestow
greater latitude, this time to the Agency, which would have greater
freedom to waive reporting requirements, while employers will be
required to submit their reports only once every two years instead
of every year. Proposed section 13 requires the
preparation of a public report which must deal with:
-
- the workplace profile
-
- the employer's analysis of the equal opportunity issues for
women in their workplace
-
- actions that have been undertaken to address the priority
issues and
-
- actions that will be undertaken to address the issues.
Proposed subsection 13(3) also
requires that either a public or a confidential report is given of
the evaluation of the effectiveness of the actions taken to achieve
equal opportunity. (Currently section 14 of the Act allows a
similar choice between public reporting requirements and
confidential reports on these issues.)
Proposed section 13A provides
for the lodging of public reports during the first year after 2000
and then biennially from April 2001. Proposed subsection
13A(4) exempts employers that have fitted the relevant
criteria (i.e. 100 employees, or 80 employees if the employer
recently had 100 employees) for less than six months of the
relevant reporting period. The public report must be lodged within
two months of the end of the reporting period (proposed
section 13B), unless an extension is granted (this time
frame also applies to confidential reports, which are considered to
be part of the public reports). Previously the time frame between
reporting periods was one calendar year.
Proposed section 13C allows the
Agency to waive reporting requirements for particular employers
either at the request of the employer or at its own initiative. The
proposed section would require that the Agency be satisfied that
the employer has taken all reasonably practicable measures to
address equal opportunity for women in their workplace, and
regulations may be made which specify further matters to be taken
into account by the Agency when considering whether to waive
reporting requirements. The waiver, and the period for which it
applies must be specified in writing. The current section allowing
waiver of reporting requirements requires the Agency to be
satisfied that the specified program has been established and that
the employer has been complying with the requirements of the Act
for a period of at least 3 years.
Finally item 23 proposes a
replacement section 18 which allows the Agency to
require further information from an employer. Currently section 18
allows a similar type of request to be made, however
proposed section 18 broadens the information about
which the Agency can demand further information about:
-
- the employer's workplace program
-
- the preparation of the report or
-
- the report itself.
Related
Issues
The changes proposed to the Affirmative
Action (Equal Employment Opportunity for Women) Act 1986 need
to be seen in the context of other developments regarding women's
participation in the workforce. These include recent developments
in issues of 'family friendly' workplace practices, pregnancy
discrimination, and developments in workplace relations.(19)
Pregnancy Discrimination
The Human Rights and Equal Opportunity
Commission ('HREOC') recently issued the Report of the National
Pregnancy and Work Inquiry, Pregnant and Productive.(20)
This report, in the words of one journalist, found that pregnancy
discrimination was 'still rife' in Australia.(21)
It made numerous recommendations as to how to
deal with this widespread discrimination. These recommendations
included several which touched on the role of the Affirmative
Action Agency and the Principal Act. These recommendations form
Attachment B to this Bills Digest. The Report also made
recommendations regarding how systemic sex discrimination in the
workplace should be dealt with, including a proposal that Australia
should remove its reservation to article 11(2)(b) of the United
Nations' Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW). Article 11(2)(b)
requires that:
States Parties shall take all appropriate
measures ...to introduce maternity leave with pay or with
comparable social benefits without loss of former employment,
seniority or social allowances.(22)
A removal of this reservation would have
implications for how maternity leave should be dealt with in future
'workplace programs'.
The Report of the National Pregnancy and Work
Inquiry also identified:
discrimination against potentially pregnant
employees in the workplace. Potential pregnancy means
discrimination against employees who may become pregnant or who are
believed to be pregnant. Throughout the inquiry we have heard many
stories of discrimination on the basis of potential pregnancy,
mainly to do with recruitment and promotion. Women are still asked
about their plans to start a family in job interviews. ... Such
questions are not only potentially unlawful, they also defeat the
purpose of open recruiting by basing selection criteria on
irrelevant matters.(23)
To achieve 'equal opportunity for women in the
workplace' these issues will clearly need to be addressed. The
International Labour Organisation, particularly through its
Maternity Protection Convention 1952 (ILO No 103) has created
global standards for the equality of women through national
guarantees of paid maternity leave. Negotiations regarding this
Convention recently caused some controversy when it was reported
that Australia had answered 'no' to the following question:
When a woman is applying for employment, should
employers be prohibited from requiring a test for pregnancy or a
certificate of such a test, except for work which under national
laws or regulations is prohibited or restricted for pregnant women
or nursing women or which is prejudicial to the health of the woman
and child?(24)
However in giving this reply the Government
commented:
A provision of this nature should prohibit
discrimination on the basis of the manner in which the test is
required or how the result of the test is used rather than hinge on
the mere fact of the test being conducted. Many workplaces require
potential employees to have a medical examination prior to being
permanently appointed. That medical examination may include a
pregnancy test to enable accurate interpretation of the test
results. Where the test is taken with the employee's informed
consent and done for bona fide purposes, it would be unnecessary to
penalise the employer as no harm has been done to the employee in
these circumstances.(25)
In response to accusations that the Australian
Government had argued that employers should be able to conduct
pre-employment pregnancy tests on prospective employees the
Minister for Employment Services, the Hon Tony Abbott MP, said:
... the Government does not support a policy of
mandatory pre-employment pregnancy testing. The Government has
legislated in both the Sex Discrimination Act and the Workplace
Relations Act to make discrimination on the grounds of pregnancy
unlawful; that is Government policy and remains so.
At the ILO meeting in June this year, the
Government affirmed that position during discussions on the
Maternity Protection Convention.(26)
Industrial Relations
It has been suggested that measures such as the
Sex Discrimination Act and the Affirmative Action Act are not as
effective in reducing the inequities of the gender pay gap as
institutional industrial forces such as the Equal Pay for Equal
Work and the Equal Pay for Work of Equal Value decisions.(27) Major
advances were made in narrowing this gap in the 1970s, and more
gradual advances have followed. Despite the persistence of a gender
pay gap, by international standards Australia's gap is much lower
than comparable countries.(28) This suggests that Australia's
centralised and 'inflexible' wage system has performed better than
the flexible wage system of the US in terms of pay equity. It is
against this performance that the outcomes of the decentralised
systems are now being assessed, and for this reason that there are
concerns that women may be worse off under enterprise bargaining.
These criticisms and concerns relate to legislation enacted by the
Howard and the Keating governments.
Another concern is that the 'family
friendliness' of workplace practices may actually be eroded rather
than improved by some recent developments. From the 1960s to 1990s
the proportion of women and men in part-time employment has trebled
- from 9% to 25% for women and from 3.4% to 9% for men. Women's
higher representation in the part-time workforce has been a feature
of the Australian labour market for some time. For this reason it
is often suggested that the recent rapid growth in part-time and
casual work has delivered more flexible employment arrangements
which are particularly suited to the needs of women. However, this
assumes that women want part-time work and that part-time work
delivers outcomes favourable to women. What this argument overlooks
is that as a characteristic of an increasing and substantial
proportion of the female labour force, voluntary or involuntary,
this pattern of marginal attachment can reduce women's bargaining
power and other labour market opportunities (e.g. training and
career advancement), contributing to unequal labour market
outcomes. Research findings show that the lower earnings of
part-time and casual employees cannot be entirely explained by
differences in human capital attributes like education and
experience, since, even when controlling for such differences,
casual workers still earn between 16-18 per cent less than other
employees (the concentration of these workers in particular
industries is another factor impacting on earnings).(29) There is
also evidence to suggest that in 1998, 22.5 per cent of women
working part-time would like to work more hours.(30)
Important developments in flexible working
conditions achieved under the award system in the mid 1990s
included the extension of sick pay (by converting other forms of
paid leave) to allow additional paid time off for caring for family
members, provision for carers leave and unpaid parental leave (this
was provided for under legislation and was only available to
permanent employees who had 12 months service). It is now argued
that enterprise bargaining offers greater potential for locally
sensitive provisions such as family friendly arrangements.
As an illustration of the benefits of enterprise
bargaining in this area the Department of Employment, Workplace
Relations and Small Business argued in its report, Work and
Family, State of Play, that 67 per cent of Certified
Agreements include one or more family measures. However, an
analysis of this assertion suggests that the definition of
'family-friendly' was quite broad, and included a wide range of
'flexible hours provisions' with access to unpaid personal leave
being the most common, and paid personal leave being the next most
common provision.(31) The Department's analysis contrasts with the
Australian Centre for Industrial Relations Research and Training's
Agreements Data Base Monitor, which indicated that in March 1998
less than 10 per cent of enterprise agreements contained one
non-statutory family friendly measure.
Other research questions the view that suggests
hours flexibility operates to the advantage of women workers,
finding instead that enterprise agreements have most frequently
been motivated by employer-driven flexibility, and that the result
has generally been an expansion in the number of hours worked
without penalty rates, and a decrease in take-home pay for some
women.(32) Another aspect of the spread of enterprise and
individual bargaining is that it throws into doubt the continuation
of long standing industry-wide arrangements or 'benchmarks'. An
individual business and the majority of its workforce are now freer
to enter into arrangements that may advantage them at the expense
of a minority of employees. For example a recent case arose where a
worker at Steggles Chicken company challenged the impossibly
inconvenient hours her employer was ordering her to work. The
difficulty arose in part because she was the mother of three
children.(33) Evidence is also accumulating in Australia that
employees generally feel more insecure in their employment than has
previously been the case.(34)
These issues of how new industrial arrangements
affect workers with family responsibilities will need to be
addressed before any genuine attempts to achieve equality for women
in the workplace can bear fruit. In fact a recent study of
employers, conducted by DDI Asia Pacific, found that most employers
do not value a family-friendly workplace as an enticement for
attracting new employees, and that Australian companies lag behind
their North American and European counterparts in family-friendly
practices. Almost half the respondents believed that childcare
facilities were a low priority for employees when weighing up job
offers, and that other factors such as working for a company that
had a good reputation, good learning opportunities and a good
career path were more important.(35) Whether 'workplace programs'
under the proposed Act will be sufficient to counteract these
beliefs and engender employers' belief in the benefits of equitable
work practices remains to be seen.
-
- Affirmative Action (Equal Employment Opportunity for Women) Act
1986, s. 8(1).
- Student Information: What is AA/EEO?, Affirmative Action
Agency, at http://www.eeo.gov.au/student/what_is/index.html.
- Consie Larmour, 'Sex discrimination legislation in Australia',
IRS Background Papers No. 19 1993, 16 August 1993.
- Review of the Affirmative Action Act: Current effectiveness and
proposed changes, Speech to IIR Conference 'Review of the
Affirmative Action Act: Current effectiveness and proposed changes,
' Catherine Harris, Director, Affirmative Action Agency, March 11
1998.
- Unfinished Business: Equity for Women in Australian Workplaces,
Final Report of the Regulatory Review of the Affirmative Action
(Equal Employment Opportunity for Women) Act 1986, June 1998 ('the
Review').
- The Hon. Peter Reith MP, Minister for Employment, Workplace
Relations and Small Business, Leader of the House of
Representatives, Media Release, 1 July 1999.
- ibid.
- See Promoting Equal Employment Opportunity For Women Coalition
Government response to the Final Report of the Regulatory Review of
the Affirmative Action (Equal Employment Opportunity for Women) Act
1986, 17 December 1998,
http://www.eeo.gov.au/review/govt_resp/index.html.
- The Review, op cit, p. 4.
- ibid.
- See Coalition Government response to the Final Report of the
Regulatory Review, op cit, p. 3.
- ibid, p. 3.
- The Review, op cit, p. 75.
- ibid, p. 6.
- Submission to the Regulatory Review of the Affirmative Action
(Equal Employment Opportunity for Women) Act 1986, Women's
Electoral Lobby, April 1998. Quoted in the Review, p. 17.
- A. Hede, 'Affirmative Action in Australia: Employment Equity at
the Crossroads', Women in Management: Current Research Issues, M.
J. Davidson & R. J. Burke (eds), Paul Chapman Publishing,
London, 1998. Quoted
- 'It is also the ongoing experience of the Sex Discrimination
Commissioner that: genuine misunderstanding of the term
'affirmative action' has resulted, and continues to result, in a
level of hostility against women in the workforce (a scenario often
mismanaged by organisations, if in fact they are aware of it at
all).' Quoted in the Review, p. 17.
- The Review, op cit, p. 30.
- Geoffrey Crockett and Alison Preston, 'The Future is bleak:
Enterprise Bargaining and Gender Wage Equity', paper presented at
the National Social Policy Conference, Social Policy for the
21st Century: Justice and Responsibility, Social Policy
Research Centre, 21-23 July 1999, University of New South Wales,
1999.
- Report of the National Pregnancy and Work Inquiry, Pregnant
and productive: It's a right not a privilege to work while
pregnant, Human Rights and Equal Opportunity Commission,
Sydney, 1999.
- 'Report finds pregnancy discrimination still rife', Rod
McGuirk, AAP, 25 August 1999. See also the Sex Discrimination
Commissioner's comments that 'pregnancy discrimination is a
significant problem in the Australian workforce.' Pregnancy
Discrimination - A Growing Concern, Keynote address by Susan
Halliday, Sex Discrimination Commissioner to the IIR Diversity and
EEO Conference, Sydney, 22 March 1999.
- Article 11(2)(b) Convention on the Elimination of all Forms of
Discrimination Against Women GA Res 180 (XXXIV 1970), 19 ILM 33
(1980).
- Pregnant and Productive, op cit.
- Unity: The national magazine of the United Nations
Association of Australia, editor: Ian Mathews, Weekly News
Summary No 106, October 8, 1999. See also 'Australian Government
women's policies under fire', Story No. 0408, AAP,
Wednesday, 6 Oct 1999 and 'Staff wanted, take your pregnancy test
within', Michelle Gunn, The News, 6 Oct 99.
- ibid.
- The Hon Tony Abbott MP, Minister for Employment Services,
Media Release, 6 October 1999.
- Geoffrey Crockett and Alison Preston, 'The Future is bleak:
Enterprise Bargaining and Gender Wage Equity', paper presented at
the National Social Policy Conference, Social Policy for the
21st Century: Justice and Responsibility, Social
Policy Research Centre, 21-23 July 1999, University of New South
Wales, 1999.
- F.D Blau and L.M Kahn, 'Rising wage inequality and the US
gender gap', American economic review: papers and
proceedings 84, May, 23-28 1992.
- Mark Wooden, 'Enterprise bargaining and the gender earnings
gap', Australian Bulletin of Labour, v.23, no. 3,
September 1997.
- Barbara Pocock, 'All change still gendered: the Australian
labour market in the 1990s', Journal of Industrial
Relations, v. 40, no. , December 1998, pp. 580-604.
- Gillian Whitehouse and Di Zetlin, 'Work, Family and Employment
Equity: Reshaping Industrial Citizenship in Australia', paper
presented to the National Social Policy Conference: Social
Policy for the 21st Century: Justice and
Responsibility, Social Policy Research Centre, 21-23 July
1999, University of New South Wales, 1999.
- Belinda Probert, reported in Women, public policy and the
state, Linda Hancock, ed, The Centre for Public Policy, 1999.
- 'Working Mother tests family friendly hours' Sydney Morning
Herald, 2 August 1999.
A Sydney mother of three is fighting a NSW
Industrial relations Commission test case for the right of working
mothers to resist employer pressures to work inconvenient
hours.
Tele-sales operator Ms Kym Wood is refusing to
accept an order from the Steggles chicken company at Marsden Park
(West Sydney) that she start work at 6.30am, claiming her
employer's demands conflict with her responsibilities as a
mother.
Ms Wood, 39, says she cannot secure child-care
services so early in the morning for her 3 school-age children.
Her only other options allowed by the company,
she says, are to work fewer hours or face dismissal ...
The Federal Government stresses that it is
encouraging more flexibility in the workplace to help women such as
Ms Wood. But while there are employers who have developed family
friendly policies, demands on women to work either longer hours or
shifts with inconvenient starting times are testing many to the
limit.
Such trends beg the question: flexibility for
whom? The harder problem is to try to analyse the extent of this
change. Start/finish time flexibility has been the feature of
enterprise bargaining. As well, awards have been restructured since
1989 to make the sort of changes used by Steggles available.
Probably the key link between this change and the Federal
industrial relations agenda is the 'conversion' of hours (to
something like part-time work). The Government wants to remove the
conversion process as an allowable matter, as it would be 'more
appropriate' for the employer and employee to agree on start time
without the 'unwanted interference of unions or tribunals'. The
key, missing ingredient in this exercise is consultation with the
union over the change. Such consultations usually result in giving
part of what the employer wants and part what employees want. The
possible irony here is that it appears that Steggles is regulated
by the NSW industrial system which is reputed to have allowed a
greater role for unions.
- See generally Australia at work: just managing?,
Australian Centre for Industrial Relations Research and Training,
Sydney, 1999. See also the ACTU Submission to the Senate
Employment, Workplace Relations, Small Business and Education
Committee's Inquiry into the Workplace Relations Legislation
Amendment (More Jobs, Better Pay) Bill 1999.
- Carson, Andrea, 'Employers reject the family factor: survey',
The Age, 14 July 1999.
Recommendations of the Regulatory Review
of the Affirmative Action (Equal Employment Opportunity for Women)
Act 1986, June 1998: Independent Committee's Final
Report
Recommendation 1
The Committee recommends the name of the Act be
changed to incorporate the terms 'women' and 'workplace', and to
reflect the Act's commitment to fairness and merit. The Agency and
Director's titles should also be amended accordingly. The
Committee's preferred new names are:
-
- 'Equity for Women in the Workplace Act';
-
- 'Workplace Equity Agency'; and
-
- 'Director of Equity'.
Recommendation 2
The Committee recommends that clearly
articulated objects should be inserted into the Act. These objects
should include the following key principles:
-
- Parliament's view that (all) Australian employers should strive
to provide equal employment opportunity for women;
-
- to ensure certain (larger) employers take appropriate actions
to eliminate discrimination against women and to promote equity in
workplaces in relation to employment matters including, in
particular, recruitment, selection, promotion, transfer and
termination, training and staff development, terms and conditions
of employment, work organisation and sex-based harassment:
- smaller employers (those employing fewer than 100 employees)
are not required by this legislation to take any specific
actions;
-
- to promote the merit principle in all employment matters;
-
- to promote consultation between employers and employees and
their representatives in addressing equity issues in the
workplace;
-
- to promote education and awareness of equity issues through the
activities of the Agency and its Board;
-
- to provide for an incentive-based, educative and conciliatory
approach to compliance; and
-
- to apply sanctions when employers disregard their
responsibilities under the Act.
Recommendation 3
The Committee recommends the Act remain focused
on women.
Recommendation 4
The Committee recommends a board be established
consisting of persons with acknowledged expertise in industry and
equity issues, drawn from stakeholder groups covered by the Act.
The Committee recommends that the role of the Board be to:
-
- provide guidance to the Director on the administration of the
Act;
-
- provide advice to the Agency on the development of
industry-based equity guidelines;
-
- determine on advice from the Director whether a company meets
criteria for waiving, naming or being made subject to contract
compliance sanctions; and
-
- assist in establishing and maintaining an effective
communication channel between organisations covered by the Act and
the Agency.
The Committee also recommends the Board actively
encourage industry sectors to establish advisory committees to
undertake industry-specific research into equity issues and
arrangements, and to develop industry-specific equity
guidelines.
Recommendation 5
The Committee recommends that, in consultation
with the Board (and any industry/sector subcommittees established
by and reporting to the Board), the Agency develop educative
material including, in particular, guidelines that will:
-
- provide guidance on implementing the objects of the Act;
and
-
- assist relevant employers meet their obligations under the
Act:
- compliance with such guidelines shall be
voluntary and not legislated as minimum standards.
Further, the Committee recommends the Sex
Discrimination Act 1984 be amended to state that compliance
with guidelines developed under this Act should be admissible as
evidence in cases brought before the Human Rights and Equal
Opportunities Commission.
The Committee recommends the Government consider
the possibility of giving grants to support the development of
these guidelines, and recommend to Ministers that they review their
portfolio program funding guidelines to provide assistance where
appropriate.
Recommendation 6
The Committee recommends the current eight steps
be replaced with a general requirement that relevant employers take
all reasonably practicable actions to eliminate discrimination and
to promote equity in workplaces in relation to employment matters
including, in particular, recruitment, selection, promotion,
transfer and termination, training and staff development, terms and
conditions of employment, work organisation and sex-based
harassment.
Recommendation 7
The Committee recommends the introduction of an
outcomes-focused/organisation-specific reporting arrangement, in
which a report should provide:
-
- analysis of the organisation's current equity issues for women,
based, in part, on a workforce profile;
-
- priority areas for achieving equity for women;
-
- an action plan; and
-
- measures used and outcomes achieved.
The Committee also recommends this model of
reporting be implemented in conjunction with an adequate
alternative macro data collection mechanism, relating to the equity
status of women in the labour market and its relationship to equity
initiatives for women in Australian workplaces.
Recommendation 8
The Committee recommends an optional model
reporting format be developed, in consultation with the Board and
with industry in general to ensure any new design is useful,
flexible and relevant to organisations.
Recommendation 9
The Committee recommends the minimum mandatory
reporting period be changed from one to two years for those
organisations who comply with the requirements of the Act.
Recommendation 10
The Committee recommends that, instead of the
existing rating system, organisations be assessed as either
complying or non-complying.
Recommendation 11
The Committee recommends:
-
- relevant employers can apply to be waived from reporting
requirements for a specified period, when they can demonstrate that
they have taken or are taking all reasonably practicable actions to
eliminate discrimination and promote equity in workplaces in
relation to employment matters; and
-
- that the Board, on advice from the Director, may also revoke
waived status if, after investigation, it is thought an
organisation is no longer taking reasonably practicable steps or
that progress towards achieving equity has faltered.
Recommendation 12
The Committee recommends workplace visits be
introduced and used to assess waived status and provide a
supplement to reporting.
-
- The Committee recommends that, when an organisation seeks to
have waived status, it must agree to have a workplace visit
undertaken at its place of business to verify that all reasonably
practicable actions to eliminate discrimination and promote equity
in the workplace in relation to employment matters have been or are
being taken.
-
- The Committee recommends that, where workplace visits are
undertaken for the purposes of providing a supplement to reporting,
the Agency identify potentially non-complying reports or reports of
doubtful legitimacy. In the first instance, such organisations
should be advised of the actions required to ensure compliance. If
this is not forthcoming, a workplace visit may then take place.
When an organisation, upon completion of a workplace visit, is
assessed to be non-compliant, a mutually agreed action plan should
be formulated to rectify the areas in which problems exist. If an
organisation fails to fulfil the terms of the action plan or
otherwise comply by the next annual reporting period, then naming
and/or contract compliance may apply. The Committee further
recommends that organisations may choose 'alternative bodies' to
undertake workplace visits, and that matters associated with
determining 'alternative bodies', and other details associated with
workplace visits, be subject to consideration by the Board, on
advice from the Director.
Recommendation 13
The Committee recommends the contract compliance
policy and naming be maintained, and that the determination of
whether an organisation be made subject to these sanctions be made
by the Board, on advice from the Director.
The names of non-complying organisations will be
brought before the Board only after they have been given ample
opportunity to submit a report, remedy deficiencies in a report
and/or remedy identified deficiencies following a workplace
visit.
Recommendation 14
The Committee recommends:
-
- the Government examine ways to better identify organisations
that are covered by the Act, including looking at company lists
available for purchase; and
-
- that self-identification become an explicit requirement of the
Act.
Recommendation 15
The Committee recommends that the Act, and the
administration of the Act, promote appropriate incentives to
encourage compliance with the objectives of the Act. Recommended
mechanisms include:
-
- maintenance of the best practice awards;
-
- development of guidelines - including their capacity to assist
in a defence under anti-discrimination legislation (recommendation
5);
-
- education and research to assist stakeholders;
-
- biennial conference: 'Gender equity score card';
-
- biennial reporting and waiving
-
- (recommendations 9 and 11); and
-
- introduction of workplace visits as an additional step to
facilitate compliance before sanctions of naming and contract
compliance come into play (recommendation 12).
Recommendation 16
The Committee recommends that the Agency and its
Director retain their current statutory basis and remain based in
Sydney. It also recommends that, dependent upon outcomes from
consultation with Government organisations, mechanisms to allow
organisations to be able to nominate where equity reports should be
lodged - where similar reporting is required - be examined by the
Agency, in consultation with the Board.
Recommendation 17
The Committee recommends the Agency, in
consultation with the Board, explore further complementarity issues
with the States such as, among other issues, the lodgment of
reports and service delivery arrangements.
Recommendation 18
The Committee recommends that the Director, in
consultation with the Board, be able to refer certain systemic,
sectoral or occupational sex-based discrimination issues, which may
properly be the subject of an inquiry or report, to the Sex
Discrimination Commissioner for consideration.
Recommendation 19
The Committee recommends that, where
implementation of these recommendations will require lead time, for
example legislation, then consideration should be given to
transitional arrangements, wherever feasible. Possible transitional
arrangements would include:
-
- measures that allow organisations currently complying with the
Act to be moved automatically to a biennial reporting requirement,
making the next universal reporting date in the year 2000; and
-
- measures that mean organisations that have been waived from the
requirement to report under existing arrangements are not
automatically waived under the revised framework, but neither is
their current waived status revoked. Once their current waived
period has expired, such organisations shall come under the revised
reporting arrangements.
The Committee also recommends the Government
consider providing a one-off funding package to: implement and
market name changes; establish the Board; develop the guidelines
including case study research to inform the guidelines; design a
new report form; and ensure an updated list of organisations who
should be respondent to the Act.
Selected Recommendations from the Human Rights and Equal
Opportunity Commission Report, Pregnant and productive
Recommendation 2
That HREOC and the Affirmative Action Agency,
with the assistance of state/territory anti-discrimination bodies,
distribute and promote the Guidelines,(1) by organising and
conducting a series of workshops throughout Australia.
Recommendation 18
That the Department of Employment, Workplace
Relations and Small Business establish a regular consultative
network comprising that Department, the Affirmative Action Agency,
Office of the Employment Advocate, the Attorney-General's
Department, the Sex Discrimination Commissioner's policy unit and
the Office of the Status of Women to exchange data and review
trends in relation to systemic sectoral and industry specific
discrimination in AWAs, certified agreements and awards in relation
to pregnancy and potential pregnancy and maternity leave issues,
with a view to policy development and monitoring of workplace
relations reform.
Recommendation 40
That the Advisory Board of the Affirmative
Action Agency consult the Sex Discrimination Commissioner when
developing minimum standards and educative materials to ensure that
they reflect the legislative requirements of the Sex
Discrimination Act 1984 (Cth) and legal precedents with
particular regard to pregnancy and potential pregnancy.
1. The terms of reference under which HREOC
conducted its Inquiry required it to produce and publish a set of
practical guidelines that would:
-
- provide employers, principals of commission agents and contract
workers, partnerships and employment agencies with practical
guidance on those provisions of the SD Act which apply to
discrimination on the ground of pregnancy or potential
pregnancy;
-
- assist those parties to implement policies and to eliminate and
prevent discrimination on the ground of pregnancy and potential
pregnancy;
-
- provide employees and potential employees with practical
guidance on the provisions of the SD Act which apply to
discrimination on the ground of pregnancy or potential pregnancy;
and
-
- assist all parties to understand and fulfil their obligations
under the SD Act in relation to pregnancy and potential
pregnancy.
Recommendation 41
That, in accordance with recommendation 18 of
the Unfinished Business report, the Director of the
Affirmative Action Agency, in consultation with the Advisory Board,
and the Sex Discrimination Commissioner develop protocols for the
referral of certain systemic, sectoral or occupational sex-based
discrimination issues, which may properly be the subject of an
inquiry or report, to the Sex Discrimination Commissioner for
consideration.
Kirsty Magarey and Jacqueline Ohlin
13 October 1999
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