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Gender equality in the workforce: A feminist approach (2010)

Sex Discrimination

Gender equality in the
workforce: A feminist approach

Speech by Elizabeth

Sex Discrimination Commissioner and
Commissioner responsible for Age

Australian Human Rights

Our Work Our Lives: 3rd National Conference on
Women and Industrial Relations

Darwin Convention Centre: 12-13 August

Thursday 12 August 2010

It’s a great pleasure to be speaking here today at the 3rd National Conference on Women and Industrial Relations. Not only is it wonderful
to see so many familiar faces but it is wonderful to be in the company of women
who play a vital role in providing advice and advocacy support to some of the
most disadvantaged women in our country. Thank you.

One of the great joys of being the Sex Discrimination Commissioner and
Commissioner responsible for Age Discrimination is that I meet countless
inspirational women and men from all walks of life. Many of these are
Aboriginal and Torres Strait Islander. So I want to begin by acknowledging that
we are gathered here today on the traditional land of the Larrakia People and
pay my deepest respects to their elders both past and present.

When I was reflecting on the topic of my speech today “gender equality
in the workforce: a feminist approach” I thought to myself, Australian
women have much to celebrate. Today, individual women are creating historical
firsts – we have our first female prime minister – (for the time
being!), a female governor-general, women are CEOs, business leaders, academics,
sporting legends as well as mothers, sisters and partners. Australian women now
have more choices about their careers, their studies and their lives more than
ever before.[1] The possibilities for
women in 21st Century Australia are expansive, particularly when
compared with those of my mother’s or grandmother’s generation.

But – and unfortunately we all know there is one – we cannot let
the prevailing wisdom become that, because some women have created historical
firsts, we have expended our social and political capital, that we have
“done” gender equality – at least for now.

For despite these significant social changes, obstacles for women remain
entrenched. Women, and especially women experiencing intersectional
discrimination and women with family and caring responsibilities, continue to
find themselves marginalised in relation to work even as they enter the
workforce in greater numbers than ever
before.[2] My main point today is that we still remain a long way from achieving equality of outcomes – at home, in the public sphere, and at work.

There is an enormous gap between girls’ and women’s capabilities
and expectations on the one hand; and their social, professional and political realities on the other. That is one of the main reasons why we need
specialised advocacy and advice services like the Working Women’s Centres.
It is also the reason I will continue to speak out for the adequate funding and
resourcing of these services.

So, half way through my term of office, and as we head to the polls once
again, I think it is important to not only reflect on the significant miles
we’ve traversed, fuelled by the energy and intellect of countless women
– and men, but also on the challenges that lie ahead.

Today I want to look at three things:

  1. firstly, talk about the progress we have made in the past two years since I
    conducted my national listening tour;
  2. secondly, look at the ways we can change workplace cultures and structures
    by suggesting some possible new and bold approaches for your consideration;
  3. finally, talk specifically about targets and quotas. A controversial
    subject I know, but one that needs renewed focus.

In so doing, I want to recognise the valuable and unique role
played by specialist women’s services, not only in relation to the work
they do for women in Australia, but also for the pivotal role they play in the
women’s movement worldwide.

What progress have we made in the last two years?

Let’s start with the good news - there has been significant legislative
progress. This became apparent to me as I prepared to give evidence at the CEDAW
treaty body review of Australia in New York last month. Let me explain.

There have been three main examples of legislative progress over this

Let’s start firstly with Paid Parental Leave. I don’t know about
you, but I would never have thought that, out of the ashes of the greatest
economic downturn since the great depression, a paid parental leave would
finally rise! The campaign to get paid parental leave in Australia has been a
long and arduous one, one pursued vigorously by many people in this room. I want
to acknowledge and congratulate all the people across the country who worked
tirelessly, and with determination, to secure a vital, and long overdue,
national leap towards greater equality.

The Paid Parental Leave Act is a major triumph for both women and men and a
critical piece of social infrastructure that will help deliver stronger outcomes
for mothers, families, businesses, the economy and our community as a whole.

I was also pleased to see the inclusion of a two-year independent review of
the initial scheme. This allows for a more substantial package of paid leave
measures to be introduced over time. I am particularly keen to see the inclusion
of a superannuation layer in the scheme. This will recognise the disadvantage
that women face in retirement due to their unpaid caring role. The fact that
all parties have PPL schemes on the table is a major step forward.

Paid parental leave represents an important step towards helping families to
balance their paid work and caring responsibilities, but by itself it is not
enough. Because our children are with us not just for the first 18 weeks but
more likely 18 years.

Some legislative progress has been made in the form of the Fair Work Act (Cth) introduced in 2009. This is the second example of legislative

As many of you will know, the right to request a flexible working arrangement
was introduced as part of the National Employment Standards under this Act. It
is a good first step in that it encourages employers to focus on the issue of
workplace flexibility, but the right to request has a number of limitations.

For example, the right does not apply to employees unless they have at least
12 months continuous service, and also in the case of casual employees, a
reasonable expectation of continuing employment. Furthermore, the right is
confined to employees with the care of children under school
age[3]. This ignores the fact that a
significant proportion of the working population have family and carer
responsibilities that are not confined to the care of pre school age children.
The proportion of Australian’s over 65 will double by 2040 and over 85
years will quadruple - our caring responsibilities are getting more expansive
not less!

Perhaps most importantly, the right to request under the Act contains no
enforcement mechanism and there is no grievance procedure or process to provide
redress where requests are unreasonably refused.

Another positive was that the Fair Work Act also introduced a
provision to stop an employer taking adverse action against an employee or
prospective employee because of the person’s ‘family or
responsibilities’.[4] Adverse
action is defined very broadly in the Act and includes refusing to employ a
prospective employee, dismissing an employee, injuring an employee in their
employment, altering the position of an employee to the employee’s
prejudice and discriminating between an employee and other employees of the
employer.[5] One potential benefit to
bringing an adverse action claim, rather than a claim under federal
discrimination law - is that the applicant need only show that the conduct
occurred, and that the reason for the conduct is ‘because of’ family
or carer’s responsibilities. The onus of proof then shifts to the employer
to rebut the presumption that the alleged action

It is also encouraging to see that the Fair work Ombudsman has launched his
first pregnancy discrimination prosecution in the Federal Court in early July
this year. The Ombudsman has powers to investigate and prosecute employers who
act in breach of the Act. This is important in order to promote a systemic
response to what is a systemic problem.

It is important that both the industrial relations regime and the
discrimination regime work together to create discrimination free workplaces.
With that in mind the third legislative development was when the federal
government recently sought to amend the Sex Discrimination Act 1984

The amending legislation was designed to broaden the family responsibilities
provisions to include indirect discrimination in all areas of employment. This
is significant because it means men would have the same protection as women for
family and caring responsibilities under the SDA. Given that significant
cultural change will not occur unless and until men start working differently -
more flexibly - this reform is vital to encourage cultural change.

With the dissolution of parliament this amending bill is in abeyance. It
remains to be seen whether it will be introduced when Parliament resumes.

And just while we are on legislative progress, let me look at pay equity for
a moment.

The opportunity for more progress has come in the Australian Services
Union’s test case in Fair Work Australia, which will address lower pay
among female-dominated community sector workers. Indeed, 100 years after women
first marched in the streets demanding equal pay and four decades after the
first Federal pay case, the gender gap lingers malodorously in Australian
workplaces. Even more alarming is that, over the last four years the gender gap
in pay has actually widened[7] to 17
per cent[8] and, if current earning
patterns continue, the average 25 year old male will earn $2.4 million over the
next 40 years with the average 25 year old female earning only $1.5 million
– that’s almost $1 million
less.[9] If this application succeeds
it will be a major advance for the women who carry out this important work. I am
pleased to advise that the Australian Human Rights Commission has intervened in
this case so we will be keeping a close eye.

But the reality is that legislative reform is not enough.

As a group of reforms - PPL, the Right to Request NES, the adverse action
provisions of the FWA, reform of the SDA and the pay equity test case provide a
strong legislative base to support fairer and more flexible workplaces.

But achieving substantive equality requires more than the simple termination
of discriminatory practices at a legislative level. For many women legislative
change has had only a marginal influence on their day-to-day lives.

We also need attitudinal and cultural change. And this is my second area of
discussion today.

In some ways combating discrimination was easier when it was highly visible.
Today discrimination has shifted from blatant, socially unacceptable behaviour
to an endemic less visible form.[10]

In my preparation for my speech today, I came across a term which has
recently emerged in the US and been coined by Avivah Wittenberg-Cox, CEO of
20-First, one of the world’s leading gender consulting firms. That term is
‘gender asbestos’ – a term Cox uses to describe the
discriminatory attitudes, stereotypes and toxins that are hidden and embedded in
the walls, cultures and mindsets of many
organisations.[11] This idea that
the problem of gender equality can be traced to the institutional arrangements
of organisations is one which has been put forward persuasively for many years
but I think the term “gender asbestos” captures the issue well.

How do we address “gender asbestos”? How do we create fairer and
more equal workplace structures and cultures?

I put forward three suggestions for your consideration.

Firstly, we should stop trying to “fix” women. Up until
now much of the focus has been on “fixing women” – on
providing more assertiveness training, mentoring, networking and self branding
advice. Instead of ‘fixing’ women, we need to realign or
“fix” the system so that it works for everyone. We need to agree on
what gender equality in the workplace looks like and then put all the
options and possibilities on the table so we can work out how to get it. It
should be our ambitions which define the methods and tools, not the other way
around. Without a significant change in approach the only thing we can expect is
more of the same.

Secondly, we should recognise the importance of men’s role in
promoting gender equality in workplaces. I firmly believe that we will only see
significant gains when men start working with men to solve this problem. After
all it is men who dominate nearly every institution in this country,
particularly in our workplaces. If there is to be change, male CEOs and
business leaders must champion it. We need men taking up the advocacy mantle and
leading by example. We need senior men working in flexible work arrangements,
we need senior men taking parental leave and we need men investing in job
redesign and workplace innovation.

Thirdly, we should aim for critical mass. It is critical mass that
will create the change rather than change creating critical mass. When we get a
critical mass of women in senior roles, the change we are seeking, of acceptance
and appreciation of difference, will occur. Decisions affecting women’s
promotion and retention will change. Fundamental decisions affecting risk and
control in organisations will shift. We need to build critical mass in the
presence of existing barriers. That is why targets and quotas must be part of
any discussion.

And with that in mind I would like to make some comments about targets and
quotas because they are one of the new approaches we should be considering to
take this agenda forward.

The existence of “gender asbestos” means the continued exclusion
of women from leadership and decision-making across Australia.

Despite making up 45% of Australia’s total workforce, women remain
grossly under-represented in leadership and management positions in virtually
all sectors. You will know the EOWA
statistics[12] – in 2008 the
number of women on boards was down from 8.7% to 8.3% and the number of women in
line management roles down from 7.5% to 5.9%. And just 2 months ago Governance
Metrics International, a global ratings agency released data that discloses our
global position[13]. In their March
2010 report, Australia was memorable in two ways:

Firstly, we have now dropped behind all our OECD counterparts on the number
of women on corporate boards with the exception of Japan.

Secondly, we have had the largest decline over the last two years together
with Hungary, Peru, the Philippines and Poland.

In efforts to promote women into leadership roles, there is no doubt in my
mind that a major turning point in thinking about the suitability of targets and
quotas as a way of overcoming “gender asbestos” occurred last year.
Up until then, the prevailing view was that the system was merit-based and that
the problem was with women, who couldn’t - or wouldn’t - step up and
take high office. The prevailing mantra was that women would just have to wait
for things to change in the fullness of time - that we needed to sit quietly,
patiently waiting to be asked.

In September last year, there was a major conference about women on boards.
There was agreement - Australia was going backwards and was likely to descend
into free fall without systemic intervention.

I agonised over whether I would use the “Q” word – yes call
for a mandatory quota for women on boards. After much consideration I decided
that a lively debate about quotas was an important vehicle for identifying
common ground - for calling business to action.

It is now reassuring to see an open discussion about “targets”
and “quotas”. These words have become part of the mainstream debate
and are being used by many people, including male and female senior directors
who, up until recently, would have been aghast at the very suggestion.

The ASX Corporate Governance Council is to be congratulated for amending
their guidelines requiring listed companies to set measurable objectives or
targets for the number of women at Board and senior executive level –
targets which must be disclosed to the market, with progress reported annually.

The federal Government two weeks ago announced that it will commit to a 40%
target for all federal government boards and committees if re-elected.

To reinforce my point about needing to fix the system rather than focus on
the women, I refer you to an entry on a blog about quotas which followed an
article I wrote several months ago.

The blogger, Tim Chapman writes:

“There are really only two conclusions to draw from the evidence
presented [in Elizabeth’s article]: Either women are, as a sex, inferior
or there is a problem in our culture [and workplaces] that requires going beyond
eliminating structural discrimination.

As a man, I agree with the assessment that men have to take equal
responsibility to address what is clearly a fault within our society’s
current culture.

Quotas are an excellent idea. They are a jolt to the culture - a culture
where, after a full generation of women in education, the statistics in
Elizabeth’s article are a great disappointment.

I agree that quotas would not be without problems. They would result in
many individual cases in which better suited men were passed over simply because
of their sex. As a man, I may one-day myself lose out because of a quota

But even hundreds of such individual cases cannot be compared to the fact
that currently half of our society are not getting the opportunity to contribute
to the best of their potential.

I’d gladly miss out on a few jobs I deserved if it meant that our
culture changed to the point that, in my daughter’s lifetime, women were
participating proportionately across a range of occupations, without the need
for a quota system to get them there.

If we let things continue at their own pace, it will not be my
daughter’s generation, but perhaps my great grand-daughter’s
generation, and that’s too long to wait. “

Tim – where
are you?

If I could take a moment to summarise, though it is true
that there still remains a long way to go in achieving equality of outcomes – at home, in the public sphere, and at work – the
story is not necessarily as bleak as it sounds. With Paid Parental Leave, the
provisions I have outlined in the Fair Work Act, proposed reform of the Sex
Discrimination Act and the Australian Services Union’s pay equity test
case, real legislative progress is on the table. But it is not all about law
reform although of course that is an important part. There is also movement in
the workplace itself, at the most senior levels for change. We must harness the
momentum, continue our advocacy for ambitious structural fixes, recognise men as
part of the solution and create a critical mass of women in decision-making
roles, modelling from the top down. And as I’ve said, we need to start
taking targets and quotas seriously.

Women must feel empowered, aware of their rights, and supported to make
change in their sphere of influence. So I want to conclude today by talking
about the future.

I have a real optimism about the future – this is in part, because of
the many women that sit before me in this room today. To the women of the
Working Women’s Centres, the other specialist organisations represented,
women’s policy makers, academics, unions and funders - I thank you for
your continuing commitment and the essential and direct assistance you give to
many of the most vulnerable and disadvantaged women in Australia. Specialist
women’s advisory and advocacy services are an absolutely vital part of the
scenario I have just addressed.

As part of my Listening Tour in 2008, I had the opportunity to meet with many
representatives from women’s organisations and I was impressed by the
quality of their participation, the depth of their knowledge and the vital role
they are playing in providing advice and advocacy support. Not only is there a
wealth of specialised knowledge and a practical understanding of the problems
faced by working women, particularly those subjected to intersectional
discrimination; but these services provide a holistic approach – a place
where women feel respected, where they are treated as equals and valued.

Centres such as these are renowned within the Australian Human Rights
Commission as being vital to providing high quality and independent support for
women who are lodging a complaint with the Commission. In fact, it is my view
that these services will become even more important as we continue to fight the
current and future challenges. The fields of discrimination law and industrial
relations are increasing in complexity. Specialist advisors are a must.

It is far from easy to decide whether or not to take action when you face
discrimination. To do so requires time, funding and coverage. The cross
section of services that centres like these provide – to women from a host
of walks of life – should not be discounted. For that reason, the
importance of these centres in progressing a feminist approach to gender
equality in the workforce is a pivotal one.

Gender equality will not occur simply because we have anti-discrimination
laws in place. It requires a commitment from all people in Australia –
women and men – to counter the attitudes and assumptions that lead to
discriminatory and unequal outcomes. It requires the transformation of workplace
cultures, which in turn requires sustained commitment from individuals at all
organisational levels, women and men alike.

If gender equality is our birthright why would we settle for anything

[1] House of Representatives
Standing Committee on Employment and Workplace Relations, Making it Fair: Pay
equity and associated issues related to increasing female participation in the
(November 2009) p xi. Available at (viewed 12 April 2010).

[2] Catherine Albiston, ‘Institutional Inequality’ (2009) Wisconsin
Law Review
1093, p 1125.

[3] Fair Work Act 2009 (Cth) s 65(1)(a).

[4] Fair Work Act 2009 (Cth) s 351.

[5] Fair Work Act
(Cth) s 342(1).

[6] Fair Work Act 2009 (Cth) s

[7] ABS, Average Weekly
Earnings, Data Cube, Australia, February 2009
Catalogue No 6302.0 (2009)
cited in R Cassells, Y Vidyattama, R Miranti & J McNamara, The impact of
a sustained gender wage gap on the Australian economy
(2009), National
Centre for Social and Economic Modelling, p v. At



(viewed 6 April 2010).

[8] ABS,

[9] Rebecca Cassells,
Riyana Miranti, Binod Nepal and Robert Tanton, She works hard for the money:
Australian women and the gender divide,
AMP NATSEM Income and Wealth Report
issue 22 (2009) p 1. Available at (viewed 6 April 2010).

[10] Louise Marie Roth, Selling Women Short (2006) p 2. Available at (viewed 13 July 2010).

[11] Avivah Wittenberg-Cox, Why Focusing on the Gender Pay Gap Misses the
(12 April 2010). Available at (viewed 13 July 2010).

[12] EOWA, Australian Census of Women in Leadership (2008) p 3. Available at (viewed 13 July 2010).

[13] Global Metrics International, Women on Boards: A Statistical Review by
Country, Supersector and Sector
(March 11, 2010).