Significant changes to workplace equality legislation

By JHK Legal

On 22 November 2012, the Commonwealth Government passed legislation amending the previous equal opportunity Act to enact the new Workplace Gender Equality Act 2012 (Cth) (“the Act”). The amendments are significant, both in the obligations and simplification of requirements on employers, as well as the access and education for employees.

The first reports

The first reports under the legislation will be due in 2014, with reference to the year from April 2013 to March 2014.

The old reporting system will be in place for the reports due in 2013. This appears to be an attempt to allow organisations a year of adaptation and communication to the new reporting obligations and the stronger focus on industry-specific outcomes.
 
New focus
 
The new name of the Act makes the government’s intentions clear: the legislation was proposed to “reform and help drive improved gender equality outcomes in Australian workplaces” for both genders. The Act has been expanded to specifically reference:
 
  • Caring responsibilities;
  • Equal remuneration;
  • Industry-specific benchmarks and minimum standards which will be developed over time; and
  • Transparency of reporting

Commentators also appear to believe the amendments will see Australia harnessing its potential. The Honourable Julie Collins MP, in her introduction of the Gender Equality Bill to Parliament, estimated that “closing the gap between men’s and women’s workforce participation could boost Gross Domestic Product by 13 per cent”.

Further, Sex-Discrimination Commissioner of Australia Elizabeth Broderick said when speaking of the amendments to the Act: “enabling greater participation of women in the workforce will also make a significant contribution to strengthening Australia’s productivity”.

Finally, the Director of the Equal Opportunity for Women in the Workplace Agency (now the Workplace Gender Equality Agency) said “the changes will increase Australia’s productivity and improve business performance”.

Transparency

As with the previous legislation, the Act only obliges private companies with 100 or more employees to comply with the reporting duties. However, all companies will now have access to a substantial portion of the information reported, as well as advice and education from the Workplace Gender Equality Agency.

Any non-government organisation with more than 100 employees should be aware of the following:

  • The annual reporting will now be on-line in an effort to simplify the reporting system and minimise the administrative obligation on reporting organisations;
  • The reports will be conducted with reference to a set of gender equality indicators, including the gender composition of any Board of Directors or other governing body;
  • The Chief Executive Officer will be required to sign off on the organisation’s report;
  • Employers will be required to notify employees and shareholders when a report has been lodged, and how it can be accessed; and
  • Employees will be given the opportunity to comment on the reports.

Consequences of non-compliance

Should an organisation fail to lodge the report accurately or within the time-frame required, the following consequences have been publicised as those that will be utilised under the Act:
 
  • Non-compliant organisations may be named in Parliament;
  • Non-compliant organisations may be named more widely; and
  • A failure to meet industry-specific minimum standards will be considered a breach of the Act.

Part IVA of the amended Act provides for the consequences, and it seems that the consequences of non-compliance are limited to ‘naming and shaming’ and becoming the target of proactive educational efforts by the Workplace Gender Equality Agency.

Whether the amendments will result in the Act becoming (or to some critics; remaining) a ‘toothless tiger’ remains to be seen, at least until after the minimum industry standards have been set.

Accountability

The transparency of the reporting appears to be an attempt to improve gender equality with reference to the management principle “what gets measured gets done”.

Further, the requirement for each CEO to sign off on the reports will hopefully mean that changes will be supported from the upper management levels of organisations in the move towards gender equality in the workplace in Australia.

The consequences of non-compliance may not be serious, but the Workplace Gender Equality Agency has received almost double the previous funding in an effort to allow for more education and focus on struggling industries. “We are absolutely committed to working collaboratively with employers to help them bring gender equality to their workplaces” Helen Conway, the Director of the Equal Opportunity for Women in the Workplace Agency, said.

All private organisations with 100 or more employees should be prepared for the new reporting system, the focus on outcomes, and the public availability of most of the data reported.


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