The Australian Government announced in the Women’s Budget Statement 2021-22 a targeted review of the Workplace Gender Equality Act 2012. On Wednesday 20 October 2021, the Minister for Women published a media release to announce the start of public consultation on the WGEA Review consultation.
The WGEA Review Team, based in the Department of the Prime Minister and Cabinet, received 155 submissions in response to the review of the Workplace Gender Equality Act. Submissions closed on 24 November 2021.
The Conclusion of ACLW’s Report and the recommendations made are reproduced below.
The Morrison Government released its Review of the Workplace Gender Equality Act 2012. The WGEA Review supports the implementation of the Respect@Work Report to prevent and address workplace sex-based harassment and discrimination, in particular recommendation 46 (develop good practice indicators to measure and monitor sexual harassment issues) and recommendation 42 (consider how the indicators apply to WGEA reporting). WGEA will now publish organisation gender pay gaps at an employer level – not just at an industry level as currently happens – to accelerate action to close them. WGEA will bridge the ‘action gap’ with new gender equality standards that set targets by requiring large employers (500 or more employees) to commit to, achieve, and report to WGEA on measurable genuine targets to improve gender equality in their workplaces.
ACLW welcomes the Review’s 10 recommendations which will both enhance the Workplace Gender Equality Act 2012 and give WGEA the power it needs to accelerate progress on achieving gender equality.
As Sex Discrimination Commissioner Kate Jenkins points out, “This Review focuses on data about the most important gender indicators, including introducing transparency of organisational gender pay gaps, clarifying that ‘sex based harassment and discrimination’ is a Gender Equality Indicator, collecting age and location data, and exploring opportunities to safely collect broader diversity data. It also modernises the concepts of minimum standards to meet contemporary expectations for gender equality standards. These are important improvements.”
Mary Wooldridge, Director of the Workplace Gender Equality Agency says, “The implementation of these recommendations will accelerate positive change towards gender equality, improve the reporting experience for businesses, enhance insights from our already world-leading dataset, and deepen WGEA’s capacity to work closely with employers to support and advance their efforts”
ACLW’s Submission for the REVIEW OF THE WORKPLACE GENDER EQUALITY ACT 2012 – Conclusion and Recommendations:
To address equal opportunity for women in Australia, over decades, substantive attempts have been made through legislation including the Affirmative Action Act 1986, Equal Opportunity for Women in the Workplace Act 1999 (EOWW Act) and the Workplace Gender Equality Act 2012.
Despite this, gender equality in Australia still remains slow and persistent. What is clearly evident is that as legislation allows employers to choose how they address equality for women in workplaces, the responsibility and accountability to achieve real change in gender equality has left employers playing the key role in driving change51, and as WGEA’s extensive datasets have shown, action has been minimal.
Legislation has overall legitimised slow action, requiring simply the reporting by organisations of policies to show compliance. Public access to WGEA’s dataset has implied stakeholder accountability, but as is evident, public knowledge has not led to influencing organisational changes for gender equality, nor has awareness by organisational stakeholders.
Gaps between what is being reported and the experiences of women relating to gender equality policies in the workplace, or the lack thereof, continues to remain in the shadows. Experiences of individuals who are outside socially acceptable gender norms or from marginalised groups are also in the shadows.
It is unfathomable why the WGE Act ensured organisational confidentiality when it comes to pay data. As efforts to have pay secrecy would reflect an employer wanting to conceal wage discrimination, instead of the WGE Act driving equity and transparency in wages, it legalised pay secrecy in Australia. The WGE Act has allowed for women to be at a disadvantage when negotiating their pay and conditions with employers. WGEA in upholding the WGE Act, has had its hands tied in dismantling this significant barrier against women. This barrier is central to gender inequality, one that controls and perpetuates the systemic undervaluation of women’s work, and the right of women to equal pay for work of equal value. The WGE Act can no longer go against this fundamental principle of equality.
Although using a soft-touch approach in promoting and assisting workplaces to improve gender equality in Australia, WGEA has influenced organisations to advance their strategies utilising the Agency’s assistance and benchmarking, overall, this is more the exception rather than the norm.
The façade of action by organisations, with the support of soft-touch legislation, and a statutory Agency being required to facilitate such limiting legislation, needs to stop. The impacts of gender inequality in work are considerably greater than what is measured on multiple individual and national fronts. Workplace gender equality is encountered intersectionally, over one’s lifetime53, affecting whole families and communities, for generations.
The WGE Act must be amended to enable WGEA to drive necessary change by setting targets against each Gender Equality Indicator (GEI). In its present state, both the Act and Agency have reached their optimal power to softly steer change. A stronger approach is needed to stipulate, review and demand the achievement of yearly targets for all of the GEIs to accelerate the achievement of workplace gender equality in Australia.
WGEA needs to be funded and well-resourced to drive change. Its vision and mission needs to shift from promoting and assisting to stipulating organisational targets against industry benchmarks, issuing and publishing Report Cards on individual organisation performance, and making public all the data the organisations provides in its reporting, including pay data.
Compliance needs to be outcomes focused and validated by auditing, following annual reporting. Measures for poor and non-compliance needs to include financial penalties by WGEA to signify the seriousness of inaction and catalyse momentum for change.
The WGE Act needs to be amended to enable WGEA’s functions and powers to drive change as recommended in this submission. The recommendations made by WGEA for this Review54 have the full support of ACLW. The recommendations offered by ACLW in this submission, however, focus on a stronger approach for WGEA to set targets to drive and monitor gender equality change and hold organisations accountable for not doing so.
In summary, ACLW recommended that:
1. WGEA needs to have the power to set for each organisation annually a target that it must achieve for each GEI.
2. The target for each GEI for the organisation must be based on how the organisation is performing against industry benchmarks for each of the GEIs.
3. If the entire industry benchmark is low for any GEI, WGEA sets where the benchmark for the GEI should be and uses this in its formulation of the target.
4. To annually achieve the target set by WGEA for each of the GEIs, the mandatory action plans by organisations need to have progressive timelines and milestones for the reporting year.
5. WGEA applies a five-point scale in assessing the organisation’s annual reporting for each of the GEIs.
6. The organisation is given a public Report Card by WGEA which includes, for each GEI, its rank on the five-point scale, and its overall rank, out of all the reporting organisations in its industry sector.
7. Failure to meet the target for any GEI will require the organisation to work closely with WGEA to develop or amend its action plan for the next reporting year. Costs for this consultation will be set by WGEA on a case-by-case basis and met by the organisation.
8. The minimum standards for all organisations must require employer action plans for achieving targets set by WGEA for each of the GEIs.
9. Compliance could be extended to include failure to meet the target specified by WGEA for each GEI. WGEA should have the power to set a financial penalty for organisations that achieve a score of 1 or 2 on the five-point assessment scale.
10. WGEA must publish gender pay gaps of individual organisations. Organisations must create action plans to show how they will address closing the gender pay gap.
11. Employers should no longer provide full-time equivalent annual earnings for part-time and casual employees, but report on the actual earnings of part-time and casual employees as well as the number of hours employees are engaged.
12. WGEA must have the power to audit organisations to get a more comprehensive workplace view of how the organisation’s gender equality strategies are being experienced by women and marginalised groups.
13. In line with the current sanctions for non-compliant organisations, high-level federal government support is needed consistently and diligently to ensure that non-compliant organisations are sanctioned against.
14. Reporting obligations for organisations must require reporting for each GEI using an intersectional lens to disaggregate data. The lens should include ethnicity, Indigenous status, disability, sexual orientation, religion and the binary measure of gender.
15. The WGE Act 2012 must be amended to require Federal, State, Territory and Local Government public sector agencies with 20 or more employees to report to WGEA on its gender equality indicators. With the introduction of Single Touch Payroll (STP) data, there should be consideration for expanding the definition of ‘relevant employer’ to include non-public sector employers with 50 or more employees.
16. Definitions related to gender in the WGE Act should reflect best practice, and employers should be required to provide data on the relative position of women, men, and non-binary people in their workplaces.
17. Sex-based harassment and discrimination must be specified as GEI 6. Additional data must be collected with respect to this GEI as specified by the Respect@Work Council and an additional GEI (GEI 7) must be added to account for other matters specified by the Minister.
18. The WGE Act 2012 must be amended to require the whole public sector as well as state, territory and local governments to report to the Workplace Gender Equality Agency on all its gender equality indicators, including GEI 6 and 7.
19. For GEI 6 and 7, WGEA needs to have the power to stipulate for each organisation what targeted change it needs to attain for the next reporting year.
20. The WGE Act needs to be amended to enable WGEA’s functions and powers to drive change as recommended in this submission.
21. The recommendations made by WGEA for this Review have the full support of ACLW.