In brief

  • Gender diversity is again in the spotlight with the recent release of the Gender Equity Summit report recommendations.
  • Sexual harassment also continues to maintain a high profile, with a 50% increase in complaints in the first half of 2011. Recent amendments to the federal Sex Discrimination Act 1984 (SD Act) widening the definition of sexual harassment will ensure that this area remains in the headlines. 
  • The Victorian Equal Opportunity Act 2010 (2010 EO Act) will come into effect on 1 August 2011. Although recent amendments have significantly reduced the scope of the EO Act since it was first introduced to parliament, employers will still be subject to a new positive obligation to eliminate discrimination, sexual harassment and victimisation.
  • Employers should review their policies and procedures to ensure they are ready to meet these new legislative requirements and diversity challenges.

Gender Equity Summit

The Australian Human Resources Institute (AHRI), United Nations Women National Committee Australia (UN) and principal partner Westpac recently launched the ‘Equality Means Business’ Report (Report).1 The Report brings together recommendations arising out of a summit held on International Women’s day which was attended by approximately 200 executives from Australian organisations.

The Report reiterates the strong economic and business imperatives for improving gender diversity in Australian workplaces, indentifying that action must be taken across the board by businesses, individuals and government in order to achieve a sustained improvement.

Key recommendations of the Report include:

  • organisations should set targets to achieve 40% of each gender in management and executive leadership positions, and report annually on their progress 
  • boards should achieve 40% gender targets by 2015, via a ‘3 in 3’ process, with one woman added to the board each year in the next three years, and
  • organisations should undertake annual gender pay audits, eliminate any pay differentials and sign up to a Women's Empowerment Principles CEO Statement of Support.

Other suggested measures for improving diversity include carrying out a national campaign to promote public awareness and engagement with gender equality, and the provision of 100% tax deductible childcare for working parents.

The Report’s recommendations place further pressure on employers and the Federal Government to address the issue of gender diversity in the workplace.

ASX and WGEA requirements

The Australian Securities Exchange (ASX) now requires publicly listed companies to make disclosures in their annual reports in respect of board, executive and other employee diversity related recruitment practices and to report against measurable objectives. In addition, the new Federal Workplace Gender Equality Agency (WGEA) (formerly the Equal Opportunity for Women in the Workplace Agency) will require organisations to report against gender inequality indicators including pay and flexible working arrangements. These requirements are consistent with relevant recommendations of the Report.

Despite increasing impetus towards gender targets and/or quotas, employers should be aware that positive discrimination measures such as those suggested by the Report may, depending on their method of implementation, give rise to claims of unlawful discrimination and advice should be sought on a case by case basis.

For more information on the ASX and WEGA requirements, see our previous updates.2

Sexual Harassment

Just as gender diversity continues to be a hot topic for business, sexual harassment has maintained its high profile in 2011. In the wake of several headline cases, the Sex Discrimination Commissioner Elizabeth Broderick has reported that sexual harassment complaints now constitute a third of all complaints to the Australian Human Rights Commission made under the SD Act—a 50% increase since 2009.3

Recent amendments to the SD Act have also opened up the possibility for more complaints of this nature by making it easier for complainants to establish that sexual harassment has occurred. Previously, the SD Act provided that sexual harassment will occur when a reasonable person would anticipate that the person harassed would be offended, humiliated or intimidated by the conduct in question.

The definition has now been broadened to require that a reasonable person need only anticipate the possibility that the other person would be offended, humiliated or intimidated. In addition to opening the gate to more complaints, this amendment may also make the federal jurisdiction more attractive to complainants as many States and Territories have a narrower definition of sexual harassment.

The amendments to the SD Act have also broadened the range of contexts in which an employer has an obligation to protect its employees from sexual harassment. Employers must now also protect their employees from harassment by customers, clients and people employed by other organisations.

In light of the increasing number of complaints and the recent amendments to the SD Act, employers need to be vigilant and ensure that they have proper measures in place to prevent and deal with sexual harassment complaints.

Equal Opportunity Act 2010 (Victoria)

Another development on the legislative front is the commencement of the 2010 EO Act on 1 August 2011.

In a previous update4 we outlined the changes brought about by the 2010 EO Act. The Victorian political landscape has since shifted, with the new state government introducing the Equal Opportunity Amendment Bill 2011 (2011 EO Bill). The 2011 EO Bill significantly reduces the scope of the 2010 EO Act, and was passed by the Victorian parliament in June this year.

The (unamended) 2010 EO Act had given the Victorian Equal Opportunity and Human Rights Commission (Victorian Commission) a new focus: towards education and away from the investigation of individual complaints. In return, the Victorian Commission was given increased powers to conduct investigations into systematic breaches of the  legislation relating to a group or class of persons. These powers were coupled with the ability to compel the production of documents and the appearance of witnesses, and to issue enforcement or compliance notices in the event of a breach.

However, with the passing of the amending legislation, the Victorian Commission’s powers have been significantly reduced. In particular, approval must now be sought from the Victorian Civil and Administrative Tribunal (VCAT) before the Victorian Commission can compel documents and the appearance of witnesses, and the power to issue enforcement and compliance notices has been removed.

The 2010 EO Act also sees a change to the complaint process at the Victorian Commission. The Victorian Commission will no longer be able to investigate individual complaints, and can only conciliate if both parties agree.

Complainants will also be able to access the Victorian Civil and Administrative Tribunal without first filing their complaint with the Victorian Commission. This could see an increase in frivolous and vexatious complaints being brought to VCAT, with potential increased costs for employers.

Despite the significant reduction in the scope of the 2010 EO Act, it still imposes a new positive duty upon employers to take ‘reasonable and proportionate’ measures to eliminate discrimination, sexual harassment and victimisation. This new duty is unique to the Victorian legislation, and is a first for equal opportunity laws in Australia. It means that employers will need to proactively and regularly assess their organisation’s compliance with the legislation and institute measures to ensure ongoing compliance and improvement.

Diversity advice and representation

Freehills offers a broad range of support to organisations exploring diversity initiatives. We can:

  • help you prepare ASX compliant diversity policies and provide guidance on reporting requirements
  • brief your board and senior management on diversity and related legal issues
  • brief your team on the business case for diversity and steps that can be taken to drive change
  • provide advice on measures organisations can take to address historic diversity imbalances
  • assist your organisation to deal with claims of unlawful discrimination, and
  • represent your organisation in any legal proceedings relating to alleged unlawful discrimination.