Equal Opportunity for Women in the Workplace Amendment Bill

As appeared in the March 2012 issue of the Adviser 

The Federal Government has released its new equal opportunity legislation. The Equal Opportunity for Women in the Workplace Amendment Bill 2012 (the Bill) significantly increases the regulatory burden for employers by extending legislative coverage to all employers and employees, widening the scope of the legislation and providing the new Workplace Gender Equality Agency (the Agency) with expanded functions and powers.

The Bill introduces a new reporting and standards framework which employers with 100 or more employees must comply with. Employers will be required to report in a standardised format provided by the Agency against gender equality indicators. These indicators are:

1. Gender composition of the workforce;
2. Gender composition of governing bodies;
3. Equal remuneration between women and men;
4. Availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family and caring responsibilities;
5. Consultation with employees on issues concerning gender equality in the workplace; and
6. Any other matters specified by the Minister.

Reporting is to commence in 2013. Before 1 April 2014, the Minister will specify minimum standards for each of these gender equality indicators. Once established, the standards will operate in effect as de facto targets and quotas imposed by the Agency across all industries.

An employer’s compliance with the Act will be judged by the employer’s performance against these minimum standards. The Bill also introduces a new range of possibilities where an employer can be found to be non-compliant including failing to have the public report signed by the CEO, not notifying unions or providing inaccurate information. Non compliant employers can be prevented from obtaining government procurement work, may not be eligible for federal grants or other financial assistance and can be publically “named and shamed”.

Employers will be required to notify and make public reports accessible to employees and shareholders; inform unions that a report has been lodged; and inform employees and unions of the opportunity to comment on the content of the report.

The Bill does allow the Agency to withhold personal information which would not appear in the public report. However, it does not expressly prohibit the publishing of information which is commercial-in-confidence, referring only to “information of a kind” which may be specified by the Minister as excluded from publication by the Agency. Personal information about remuneration can be published with the employee’s consent, and does not require the employer’s approval or consent to do so.

The new legislation will apply to all employers although only those with more than 100 employees (or 80 if numbers drop below 100) will have to report to the Agency. The Agency has an expanded role in educating and informing employers with less than 100 employees.

The full extent of this expanded regulation is as yet unknown as the content of reports for the new gender equality indicators is not yet determined and the minimum standards are not yet set. However, it is clear that an additional layer of labour market regulation is to be imposed on the Australian economy via the introduction of gender equality standards.

AFEI had made a submission to the Federal Government opposing the introduction of legislated gender equality standards and other features of the proposed new law.

It is intended that the new legislation will commence on 1 April 2012.