Workplace Gender Equality Act 2012

The Federal Government passed the Workplace Gender Equality Act 2012 (the Act), which amends the existing Equal Opportunity for Women in the Workplace Act 1999, by introducing more stringent reporting requirements for nongovernment employers with more than 100 employees.  

Under the Act, relevant employers will no longer have to develop equal opportunity for women programs, but will need to report on their performance against specified and standardised gender equality indicators. The precise matters which are to be considered in each gender equality indicator will be announced by the Minister for the Status of Women before the relevant reporting period.  

Reporting is required on a 12 monthly basis, on the same timetable as existed under the Equal Opportunity for Women in the Workplace Act 1999 (that is, from 1 April to 31 March, with reports due between 1 April and 31 May each year). To assist employers with the new reporting requirements for 2012-2013, the Act allows for transitional provisions which will require employers to undertake reporting in accordance with the requirements of the Equal Opportunity for Women in the Workplace Act 1999, whilst also requiring them to comply with the Act’s notification and access requirements, which include:

  • notifying employees and shareholders that a report has been lodged, advising on how it can be accessed, as well as advising that there is an opportunity to comment on the report, and
  • providing access to the report for employees, members or shareholders.  

For the reporting period 2013-2014, the new reporting requirements will be fully operational and the report compiled by the employer will need to be signed by the CEO. Additionally, for the period of 2014 – 2015, relevant employers will need to comply with minimum standards, which will be set by the Minister.  

The Act also replaces the Equal Opportunity in the Workplace Agency with the Workplace Gender Equality Agency. The Agency will receive employer reports, gather statistical data, advise on compliance issues and will have the power to report on non-compliant employers to the Minister or publish the names of non-compliant employers by electronic means (such as the Agency’s website).  

Human Rights and Anti-Discrimination Bill 2012

The Federal Government released an exposure draft of the Human Rights and Anti-Discrimination Bill 2012. The objective of the proposed legislation is to amalgamate federal anti-discrimination legislation, which includes the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986 into a single anti-discrimination Act.

Some of the major changes proposed include:

  • a single test for discrimination, which will apply to all “protected attributes”
  • the addition of religion, sexual orientation and gender identity as “protected attributes”
  • lifting the differing levels of protection from anti-discrimination to the highest current standards
  • the introduction of a reverse onus of proof (similar to the one that currently exists in adverse action claims under the Fair Work Act 2009)
  • a requirement for parties normally to bear their own costs, with the court retaining discretion to award costs, and
  • an ability for the Australian Human Rights Commission to dismiss unmeritorious complaints.  

Additionally, one of the stated objectives of the proposed legislation is to provide employers with measures to promote compliance with the consolidated legislation by providing voluntary guidance measures as well as measures designed to protect organisations from potential liability.

It will be interesting to see how these work in practice, but they are said to include:

  • an ability by the Commission to prepare non-binding guidelines
  • an ability of a party to apply to the Commission to undertake a nonbinding review of their policies or programs to determine whether they give rise to unlawful conduct.  

Protection from liability measures is also said to include:

  • compliance with prescribed Disability Standards
  • the introduction of Compliance Codes
  • special measure determinations which allow the Commission to determine that a particular measure taken by an employer was undertaken to achieve equality for a person (or particular class of people) who have a protected attribute
  • temporary exemptions granted by the Commission that exempts particular conduct from being unlawful discrimination.  

Significance of the proposed changes for employers

In short, this proposed legislation continues the trend with these types of laws which make it easier to bring claims and harder to defend them. The removal of the potential cost penalty for unsuccessful applicants, coupled with the reverse onus, may encourage unmeritorious claims along with valid claims. Employers will be able to successfully defend claims, but it will require a whole of business focus, including:

  • relevant policies in place
  • induction training in policies
  • refresher training in policies
  • directors and senior management modelling correct behaviours
  • other managers being properly training and managed
  • valid claims being used as a learning experience to promote continuous improvement, and
  • invalid claims being vigorously defended.  

Conclusion

The introduction of the draft Human Rights and Anti-Discrimination Bill 2012 has been the result of review and consultation since 2009. While the draft bill is the first formal step in harmonising anti-discrimination law, what becomes law may differ from the draft. Further, it may be some time before the bill is implemented, as it is still scheduled to be the subject of a Senate inquiry and further public consultation.  

Notwithstanding this, the foreshadowed amendments to existing laws will reinvigorate the focus on unlawful discrimination as an issue. Currently, effective policies are likely to largely remain so. Therefore, it would be worthwhile for employers to review their policies on discrimination in the workplace to ensure adherence to best practice and to ensure the other measures noted in this article are taken.