New gender equity legislation and proposed overhaul of Federal anti-discrimination laws

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5 December 2012 | Janine Young

Employers need to be aware of two major recent developments in federal equal opportunity law:

  • the passage of the Equal Opportunity for Women in the Workplace Amendment Act 2012 (Cth) (EOWW Amendment Act), which introduces more onerous reporting obligations on gender equity issues for private sector employers with more than 100 employees; and
  • the release of an Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012, which would consolidate all current federal anti-discrimination statutes into one piece of legislation.

New Gender Equity Reporting Requirements

The EOWW Amendment Act passed through Parliament on 22 November 2012. It renames the Equal Opportunity for Women in the Workplace Act 1999 (Cth) as the Workplace Gender Equality Act 2012 (Cth) (WGE Act) and the Equal Opportunity for Women in the Workplace Agency (EOWW Agency) as the Workplace Gender Equality Agency (WGE Agency).

Employers covered by the 1999 legislation have been required to develop and implement “workplace programs” to ensure equality of opportunity for women. These programs had to be submitted to the EOWW Agency by 31 May each year. Non-compliant employers were identified in the EOWW Agency’s annual report to the relevant Minister.

The WGE Act strengthens these reporting obligations, and the compliance framework supporting them, in the following key ways:

Coverage

  • The reporting obligations in the WGE Act continue to apply to private sector employers with over 100 employees and higher education institutions. The legislation clarifies that other employers are able to obtain advice and assistance on gender equity issues from the WGE Agency. The WGE Act also has an extended focus on workplace gender equality for men and women.

What must be reported?

  • Rather than reporting on gender equity programs, the WGE Act requires employers to provide a public report to the WGE Agency for the reporting period (1 April-31 March) each year. The report must include information about the employer and the following “gender equality indicators”:
    • gender composition of the workforce;
    • gender composition of the employer’s governing body (e.g. board of directors, committee of management);
    • 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 in an instrument made by the Minister in accordance with the WGE Act (this will include further details about what must be reported in response to each gender equality indicator).

How must employers report?

  • The public report submitted under the WGE Act must be signed by the employer’s chief executive officer (or equivalent). Reports may be submitted online.
  • As well as submitting reports to the WGE Agency, an employer will be required (as soon as reasonably practicable) to inform its employees and shareholders about the lodgement of the report and how they may access it. Any unions with members at the workplace must also be notified within seven days of the employer lodging a report. Employees and unions may provide comments on the report to the employer and/or the WGE Agency.

Phased implementation

  • Reporting period 1 April 2012-31 March 2013: employers continue to report in accordance with the reporting obligations under the 1999 legislation (i.e. submit a report on the employer’s gender equity programs, in the same manner as in previous years). However, employers will need to comply with the new notification and access requirements under the WGE Act (as outlined above).
  • Reporting period 1 April 2013-31 March 2014 onwards: employers covered by the WGE Act must prepare and lodge a report addressing the new gender equality indicators (as outlined above), and comply with the legislation’s notification and access requirements.

Sanctions for non-compliance

  • These remain unchanged – an employer that does not meet the reporting requirements in the WGE Act may be:
    • “named and shamed” (i.e. included in a report by the WGE Agency to the Minister, which is ultimately tabled in Parliament); and
    • ruled ineligible to tender for federal government contracts, or for some Commonwealth grants/financial assistance.

Implications for Employers

  • Employers need to prepare for a much higher level of public scrutiny of their gender equity policies and practices once the WGE Act is fully operational.
  • Employers should commence collecting data in response to the gender equality indicators for the 2013-14 reporting period (although this task cannot be undertaken thoroughly until the Minister releases further details of these indicators by legislative instrument).
  • Medium-sized employers with fluctuating employment levels should be aware that reporting obligations continue to apply to an employer when it no longer has 100 employees – until the number of employees falls below 80.

Consolidated Federal Anti-Discrimination Laws

On 20 November 2012, the federal government released the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (HRAD Bill). The HRAD Bill has been referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 18 February 2013. Submissions may be made to the Committee until 21 December 2012.

Key proposed changes

  • The main purpose of the HRAD Bill is to consolidate five separate pieces of federal anti-discrimination legislation[1] into one statute.
  • In this process, however, differing levels of protection afforded by the separate statutes would be lifted to the highest standard, to overcome gaps and inconsistencies between the five current laws.
  • The concept of “discrimination” would be redefined to encompass “unfavourable treatment” (i.e. direct discrimination) and “disadvantage by a policy” (i.e. indirect discrimination) – with a single defence of “justification” replacing many of the exceptions applicable under the current statutes.  The “interest requirements” defence will continue to be available.
  • In addition to the protected attributes under the existing federal statutes (e.g. age, disability, race, sex), several new (or expanded) prohibited grounds of discrimination would be added, including gender identity and sexual orientation.
  • Further, a number of attributes that can currently only form the basis of an investigation under the Australian Human Rights Commission Act 1986 (Cth) would become prohibited grounds of discrimination (and therefore potentially the subject of legal complaints), i.e. industrial history, religion, political opinion, social origin, nationality or citizenship, and medical history.
  • Complaints of breaches of the HRAD legislation could be brought to the Australian Human Rights Commission for investigation and conciliation and then, if not resolved, to the Federal Magistrates Court or the Federal Court of Australia.
  • Importantly, the HRAD Bill would introduce a “shifting burden of proof”.  This will mean that
    • first, the complainant will have to prove certain elements of discrimination (e.g. the existence of a protected attribute, and unfavourable treatment or the imposition of a policy causing disadvantage);
    • the complainant will also have to provide evidence upon which the court could decide that the respondent (employer) acted for the discriminatory reason that is alleged;
    • if these elements are established, the reason alleged by the complainant will then be presumed, unless the respondent can prove otherwise.

Implications for Employers

  • The streamlining of federal anti-discrimination laws into a single statute should be a welcome development for employers, reducing complexity and clarifying employers’ obligations in this area. Employers would still need to comply with applicable state and territory anti-discrimination legislation as well.
  • However, there are significant potential concerns for employers if the HRAD Bill, in its current form, were to be implemented – in particular, the additional grounds of discrimination that could form the basis of legal claims, the proposed changes to the burden of proof and the simplification of the definition of discrimination which will enable a complaint to be more easily established than is currently the case.
  • The shifting onus of proof is similar to the reverse onus of proof that applies under the “general protections” provisions in Part 3-1 of the Fair Work Act 2009 (Cth). Despite the High Court’s clarification of the test to be applied in determining the reasons for which an employer has acted under those provisions,[2] the reverse onus continues to create uncertainty for employers – and would be a major move away from the manner in which federal anti-discrimination laws have traditionally operated.

  [1] Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Australian Human Rights Commission Act 1986 (Cth).

  [2] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012).

Contacts

John Tuck

Partner. Melbourne
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Nicholas Ellery

Partner. Perth
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Janine Young

Partner. Melbourne
+61 3 9672 3254

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Jack de Flamingh

Partner. Sydney
+61 2 9210 6192

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Heidi Roberts

Partner. Melbourne
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Stephen Price

Partner. Sydney
+61 2 9210 6236

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Jacqueline Parker

Special Counsel. Melbourne
+61 3 9672 3406

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Jane Hall

Partner. Melbourne
+61 3 9672 3496

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Anthony Forsyth

Consultant. Melbourne
+61 3 9672 3322

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