Summary

  • The Workplace Gender Equality Act 2012 (Cth) has now passed both houses of Parliament.
  • Employers with over 100 employees in Australia (excluding public sector employers) will need to comply with the new notification and access requirements for the annual reporting period ending 31 March 2013.
  • For the reporting period ending 31 March 2014, relevant employers will also need to report against standardised gender equality indicators.
  • For the reporting period ending 31 March 2015, relevant employers will be required to meet minimum standards for prescribed gender equality indicators.  

Overview of changes

The Equal Opportunity for Women in the Workplace Amendment Bill 2012 (Bill) passed through the Senate on 22 November 2012 with some changes scheduled to come into effect from 2013.

The Bill expands the scope of existing legislation to focus on improving gender equality outcomes for men and women. This shift in emphasis is reflected in the new title of the legislation, the Workplace Gender Equality Act 2012 (Cth) (Act). Similarly, the relevant agency will be rebranded as the Workplace Gender Equality Agency (Agency).

The Act will require relevant employers, being higher education institutions and non-public sector employers with over 100 employees in Australia, to lodge with the Agency an annual report which deals with matters including set gender equality indicators (GEIs). Employers will be required to make these reports available to employees and shareholders and notify relevant unions when the report has been published. Unions and employees will be given an opportunity to comment on the information.

Under the Act, GEIs are defined to include:

  • gender composition of the workforce,
  • gender composition of governing bodies of relevant employers,
  • equal remuneration between women and men,
  • availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and working arrangements supporting employees with family or caring responsibilities,
  • consultation with employees on issues concerning gender equality in the workplace, and
  • any other matters specified by the Minister for the Status of Women.

The new reporting regime represents a significant departure from the current scheme, which requires relevant employers to report annually on their progress in respect of their equal opportunity for women in the workplace programs.

Rolling out the new legislation

The implementation of the new reporting requirements will be phased in over the next few years. For the annual reporting period to 31 March 2013, relevant employers will be required to comply with reporting obligations under the previous Equal Opportunity for Women in the Workplace Act 1999 (Cth) but must also comply with the new notification and access requirements which provide employees, shareholders and unions with various rights to review and comment on the reports.

For the annual reporting period to 31 March 2014, relevant employers must also report against the standardised GEIs.

For the annual reporting period to 31 March 2015, relevant employers will be required to meet the minimum standards set by the Minister and prescribed by legislative instrument. These will be set in relation to specified GEIs, specified relevant employers and specified reporting periods. The minimum standards may be quantitative outcomes or evidence of actions taken by a relevant employer linked to improving quantitative outcomes.

It is proposed that the first minimum standards will be developed in consultation with the Agency and stakeholders before 1 April 2014 and will apply to the reporting period ending 31 March 2015. The Coalition had criticised the Bill for the wide ranging power it grants to the Minister to prescribe the minimum standards, however this power remains.

Compliance

The Agency may review an employer’s compliance with the Act and seek further information from the employer as well as considering comments from employees and unions. If a relevant employer fails to comply with the Act, the Agency may publish the name of the employer in a report given to the Minister or by electronic or other means (for example, on the Agency’s website or in a newspaper). Materials published by the Government also indicate that a non-compliant employer may be precluded from tendering for Commonwealth and some state contracts or from receiving Commonwealth grants or other financial assistance.

The Agency is obliged under the Act to offer relevant employers advice and assistance to improve performance where they have not met a minimum standard.

Context

The EOWA 2012 Women in Leadership Census was recently released and provides some statistical context to the issues that the new legislation seeks to address. The Census measures the number of women in board and senior executive positions in the top 500 companies listed on the ASX, and reveals that:

  • Women comprise 9.2% of executives in the ASX 500,
  • Only 12 ASX 500 companies have female CEOs, and
  • Women hold 12.3% of directorships in the ASX 200 but only 9.2% in the ASX 500.

In 2002, the first Women in Leadership Census revealed that 8.2% of directors of the ASX 200 were women. This indicates that while there has been some improvement, the change has been gradual. It will be interesting to see if the new regime will have a more significant impact on these statistics.

Implications for employers

Employers governed by the legislation should:

  • Prepare to disclose your report to not only the Agency but also employees, relevant unions and shareholders for the reporting period ending 31 March 2013.
  • Consider your organisation’s progress in relation to the new gender equality indicators, with a specific focus on pay equity, gender equality in workforce composition and leadership, and flexible working arrangements.