By Beth Gaze. This piece is part of our September focus on Women’s Rights. See all of this month’s articles here.
A poster by the UK Equal Opportunities Commission containing the slogan “prepare your daughter for the workforce: give her less pocket money than your son” dramatically highlights the fundamental unfairness facing women at work. Lack of pay equity and equal opportunities are the elephants in the room for every woman in the Australian workforce. Sex inequality at work is so pervasive and persistent that it is taken for granted, overlooked, and assumed to be “natural” and virtually unchangeable. Until it is addressed, Australian women will not have equality or fairness.
Australia has had laws against sex discrimination since 1977. They can provide a remedy in individual cases of discrimination or sexual harassment after they have occurred, but they have not challenged norms in the workplace or family that contribute to and maintain women’s disadvantage. For example, undervaluing work seen as “women’s work”, such as caring or teaching, is evidence of a culture that differentially values men’s and women’s contributions despite sex discrimination law prohibiting different treatment of men and women. In addition, for most people (including many women), the current model of leadership remains tied to men’s priorities and ways of working, and renders women leaders incongruous, as evidenced by the gender-based denigration of our first female Prime Minister.
Women remain firmly anchored to lower levels and lower paid positions at work
Further, in labour law there is a persistent assumption that the normal worker is an “ideal worker” who has no domestic or caring responsibilities (or someone else to discharge those responsibilities). Workers with care responsibilities (both male and female) are treated in law as an inferior exception for whom special allowances must reluctantly be made, rather than as normative workers whose lives should be reflected as a central part of labour law. They should not be penalised by narrow social and legal norms in workplace expectations and labour law. Although sex discrimination laws have ensured that women are treated the same as men in the areas they cover, they have not been able to change the fact that men’s treatment remains the norm in most areas, and in particular at work.
Of course, offering women equal opportunity at work does not dictate the choices individual women should make: how each individual chooses to structure their own private and employment lives remains their own choice. At present, however, workforce structures make individual choice very difficult outside a narrow range of conventional options. For example, men who seek to take time off work or reduced hours to care for children frequently face employer refusals, and men who do this face the same threat of career damage women have always experienced.
To challenge these norms and structures of inequality and disadvantage, it is necessary to go beyond laws that prohibit discrimination to laws that proactively change broad-based social and employment practices to prevent discrimination and disadvantage occurring. Affirmative action has always been controversial, with debate about whether and when special treatment for disadvantaged groups is justifiable in order to reduce inequality, and whether it is discriminatory against other groups. Although anti-discrimination laws contain exceptions for “special measures to achieve equality” that allow voluntary positive action by organisations and employers, there are very few requirements in Australia for positive action or special measures.
This article examines the major existing requirement to provide equal employment opportunity for women in private sector employment. First adopted in 1986 as the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) (AA Act), it was amended and renamed by the Howard Coalition Government in 1999 as the Equal Opportunity for Women in the Workforce Act 1986 (Cth) (EOWW Act). It requires higher education institutions and private sector employers of 100 or more people to take steps aimed at providing equal opportunity in employment for women. A bill to amend the Act and rename it the Workforce Gender Equality Act is (at the time of writing) in the Senate and expected to be passed shortly. This article examines the impending changes to the Act to determine whether it is likely to have the capacity to change social and legal norms that create disadvantage for women.
Equal Opportunity for Women in the Workforce
The AA Act was from the start designed to allay the concerns of business about being forced to implement changes that were seen as interfering in the running of the business. The only sanction for non-compliance in the Act is that organisations that fail to submit reports can be named in a report to parliament. In addition, a Contract Compliance policy has applied in relation to the Act since 1993, whereby the government uses its considerable power as a purchaser of goods and services to refuse to contract with, or provide industry assistance funding to, organisations that do not comply with the Act. However, the Agency’s Annual Reports do not include any sanctions imposed under this policy, and the Review of the Act suggested that it has not been vigorously used, and little action has been taken on enforcement.
In the absence of effective legislative means of enforcement, the Agency and advocates of equal employment opportunity relied on developing “the business case” for affirmative action. This involved persuading companies that greater gender representation at senior levels would improve their businesses by ensuring they had access to a broader staff talent bank and reducing staff turnover costs. Awards such as Employer of Choice for Women were introduced by the Agency to provide an incentive for good performance and recognition of the best performers. However, many businesses remained sceptical and resented what they saw as intrusion into management prerogative.
Publicity may create greater incentives for change within organisations by focusing attention on each employer’s responsibility for and success in making changes
Over its 26 year life, the Act has had limited impact on women’s workforce disadvantage. It has been largely a vehicle for encouraging or exhorting employers to improve their practices. Not surprisingly, data on women’s employment has shown that there has been little increase in employment equity over this period, despite the movement of many more women into the workforce. Women remain the largest groups of casual and part-time workers and continue to bear the largest burden of family responsibilities in a workforce that has been strongly resistant to change in its practices to accommodate the needs of non-ideal workers. Women remain firmly anchored to lower levels and lower paid positions at work.
The Workplace Gender Equality Act
The amending Bill has passed the lower house and is awaiting passage in the Senate. It is based on the recommendations of a Review of the operation of the EOWW Act and Agency, and a 2010 election promise to implement the review’s recommendations. At first glance, there is little change in what the Bill requires employers to do: to report annually to the Work Gender Equality Agency. But reporting will become much more specific and consistent. Employers will be required to complete an online report providing data on their workforces in relation to a series of “gender equality indicators”, including:
- the gender composition of the workforce and of any governing body such as a council or board of directors;
- equal remuneration between women and men in their workforce;
- availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to 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 by regulation.
Most of the data reported to the Agency will be publicly available, and hence employers’ performance will become highly public through the use of standardised data forms that will allow comparative analysis and evaluation. As well as submitting reports to the Workplace Gender Equality Agency, employers will be required to notify employees and shareholders of them and allow them an opportunity to comment. In relation to each indicator, the Minister will be required to specify minimum standards, intended to be industry-specific, and failure of an employer to comply with those standards will be a breach of the Act. The Agency will be required to report to the Minister every two years on progress towards equal opportunity for women at work.
Its impact will depend on how much reporting against gender equality indicators and the greater publicity of reports leads companies to take workplace gender equality more seriously than in the past
The new approach draws from management theory, where “what gets measured gets done”, and sets up a system that will make employers more publicly accountable for their performance to their shareholders, employees and the public (both directly and through the Agency). Publicity may create greater incentives for change within organisations by focusing attention on each employer’s responsibility for and success in making changes. Public availability of comparative data on different employers could create rivalry in the area of Equal Employment Opportunity and pressure employers to report achievements, not merely good intentions. It could empower women and people with caring responsibilities, creating a better informed marketplace for employees to choose employers who offer the best conditions, pay equity, and equitable opportunities for advancement, information which is not currently readily available to prospective employees.
However, enforcement remains relatively weak, despite the introduction of the requirement to achieve minimum standards, which will lift the bar to some extent, depending on what minimum standards are prescribed by the Minister. The only sanction in the Act for breach remains being named in a report to the Minster and Parliament, so enforcement continues to rely mainly on the pressure of publicity to move employers to action. While this may be effective for employers who are concerned with their public image, for others it may have very little effect. The government has chosen not to legislate the additional sanction of non-Contract Compliance, which has not been adequately harnessed in Australia despite its extensive and effective use overseas.
It is clear that equal opportunity for women at work needs to be better addressed. Experience with anti-discrimination law shows that proactive measures are needed to ensure change occurs. The EOWW Act and proposed Word Gender Equality Act try to get employers to change using the powers of persuasion and publicity. While the Work Gender Equality model is an improvement on past models, the Act’s remaining weakness in enforcement raises questions about its likely effectiveness. Its impact will depend on how much reporting against gender equality indicators and the greater publicity of reports leads companies to take workplace gender equality more seriously than in the past, and whether publicity about their performance will be an issue with customers and shareholders, and in attracting staff. More active enforcement of the contract compliance regime might be facilitated by the imposition of minimum standards for compliance, and publicity for such enforcement could also enhance the Act’s effect.
Beth Gaze is an Associate Professor at Melbourne Law School, University of Melbourne. She teaches equality and discrimination law, and her current research includes a focus on employment and family-work conflict.