EQUAL OPPORTUNITY FOR WOMEN IN THE WORKPLACE AMENDMENT BILL 1999

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EQUAL OPPORTUNITY FOR WOMEN IN THE WORKPLACE AMENDMENT BILL 1999

Bills Digest No. 71 1999-2000
Equal Opportunity for Women in the Workplace Amendment Bill 1999

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

Passage History

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.

Purpose

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.

Background

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)

Main Provisions

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

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.

Endnotes

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 21^st 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 21^st 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 21^st 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.

Attachment A

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.

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Kirsty Magarey and Jacqueline Ohlin
13 October 1999
Bills Digest Service
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Published by the Department of the Parliamentary Library, 1999.

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