Inquiry into the Equal Opportunity for Women in the Workplace Act 1999 and Equal Opportunity for Women in the Workplace Agency (2009)

Inquiry into the Equal Opportunity for Women in the Workplace Act 1999 and Equal Opportunity for Women in the Workplace Agency

Australian Human Rights Commission
Submission to the Australian Government Office for Women

30 October 2009

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Table of Contents

• 1 Introduction
• 2 Executive Summary
• 3 Table of Recommendations
• 4 Diagrams of proposed national gender equality monitoring and employer compliance frameworks
  • 4.1 National gender equality monitoring framework
  • 4.2 Employer Compliance Framework
• 5 Identifying the problem: is there gender equality in Australian workplaces?
  • 5.1 Introduction: findings of the Listening Tour
  • 5.2 Women's workforce participation
  • 5.3 Pay equity and starting salaries
  • 5.4 Women in management and leadership positions
  • 5.5 Prevalence of sexual harassment
  • 5.6 Pregnancy discrimination in the workplace
  • 5.7 Impact of unpaid work and family and carer responsibilities
  • 5.8 Gendered ageism
  • 5.9 Conclusion
• 6 The case for reform: why does achieving gender equality in Australian workplaces matter?
  • 6.1 Introduction
  • 6.2 Gender equality will improve women's economic security
  • 6.3 Gender equality will improve business and organisational performance
  • 6.4 Gender equality will improve national productivity
  • 6.5 Gender equality will fulfil Australia's international human rights and labour rights obligations
• 7 The current context: what are the national laws and institutional arrangements?
  • 7.1 Introduction
  • 7.2 National laws impacting on gender equality in the workforce
  • 7.3 Institutional arrangements under national laws impacting on gender equality in the workforce
  • 7.4 Table comparing Australia's gender equality laws & institutions
  • 7.5 Relationship and interaction between gender equality institutions
• 8 Reform proposals: what needs to change?
  • 8.1 Introduction
  • 8.2 Greater clarity and cohesion amongst national gender equality regulatory schemes
  • 8.3 Promotion of gender equality rather than equal opportunity for women
  • 8.4 Improved transparency and accountability at the national level
  • 8.5 Greater emphasis on outcomes rather than processes in Employer Reporting Obligations
  • 8.6 Greater certainty for business and employers
  • 8.7 Full coverage of employers
  • 8.8 Targeted effort to close the gender pay gap: a National Pay Equity Strategy
  • 8.9 Special measures to fast track achieving of substantive gender equality in leadership
  • 8.10 Associated reforms
• 9 Appendices
  • 9.1 Appendix 1: Australia's International Human and Labour Rights Obligations: Detailed Descriptions
  • 9.2 Appendix 2: Detail of the Key Features of Australia's National Laws and Institutional Arrangements which impact on Gender Equality in the Workforce
  • 9.3 Appendix 3: Comparative Gender Equality Laws and Institutional Arrangements in the UK, Canada, New Zealand and Norway
    • Guidelines and Voluntary Codes of Practice

1 Introduction

1. The Australian Human Rights Commission (the
   Commission)^[1] welcomes the
   opportunity to make this Submission to the Australian Government Review of the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (the EOWW
   Act) and the Equal Opportunity for Women in the Workplace Agency (the
   EOWA).

2. The Commission is Australia's national human rights institution.

3. The Commission has previously made a range of submissions and published
   reports about improving gender equality outcomes in Australian workplaces. The
   Commission refers the EOWA Review to this previous body of work,
   including:

   • It's About Time: Women, Men, Work and Family (2007);^[2]

   • Listening Tour Community Report (2008);^[3]

   • Submissions One and Two to the Productivity Commission Inquiry into Paid
     Leave for Parents (2008);^[4]

   • Submission to the Inquiry into Better Support for Carers (2008);^[5]

   • Submission to the Senate Committee Inquiry into the Effectiveness of the
     Sex Discrimination Act (2008) (submission to the SDA
     Review);^[6]

   • Submission to the House of Representatives Inquiry into Pay Equity (2008);^[7]

   • Submission to the Inquiry into Australia's Future Tax System
     (Retirement Income System) (2009)^[8] ; and

   • Accumulating Poverty? Women's experiences of inequality over the
     lifecycle (2009)^[9]

4. The Commission builds on this body of work in order to present this
   Submission to the EOWA Review. It also makes a range of new recommendations,
   particularly directed to reforms to the EOWW Act and Agency, as well as changes
   to the ASX corporate governance arrangements.
   

2 Executive
Summary

5. The EOWA Review provides a unique opportunity to strengthen
   Australia's national laws and institutions that regulate gender equality
   in Australian workplaces.

6. Gender inequality continues to be a significant problem in Australia, and
   progress to address this inequality has stalled. For example;

   • Australia is ranked 1^st on women's educational attainment
     but only 50^th for women's workforce participation;

   • Women are only paid 83% of the pay of men for work of comparable value
     (based on ordinary full-time earnings);

   • Women hold only 8.3% of Board Directorships, 2% of CEO Roles, and 10.7% of
     Senior Executive Positions;

   • 22% of women (compared to 5% of men) have experienced sexual harassment at
     work;

   • Almost one in 5 pregnant women in paid employment experience difficulty in
     her workplace linked to her pregnancy;

   • Women continue to do the vast majority of unpaid work, even when they are
     also in paid work; and

   • Women on average accumulate only half the retirement savings of men over
     their lifetime.

7. The case for reform is clear.

8. There are several major benefits which would flow from achieving gender
   equality in the workplace. In particular, achieving gender equality will
   significantly improve:

   • women's economic security;

   • business and organisational performance; and

   • national productivity.

9. It would also ensure that Australia has met its international human rights
   and labour rights obligations.

10. Achieving gender equality in Australian workplaces should be a national
    priority.

11. The EOWW Act and Agency, the subjects of this Review, form one of the three
    major national statutory schemes that regulate gender equality in the workplace.
    The other national statutory schemes are:

    • The Sex Discrimination Act 1984 (Cth) (the SDA), administered by the
      Australian Human Rights Commission (the Commission), including the Sex
      Discrimination Commissioner (SDC); and

    • The Fair Work Act 2009 (Cth) (FWA), administered by Fair Work
      Australia and the Fair Work Ombudsman (FWA/Ombudsman).

12. Another important regulatory element is the ASX Corporate Governance
    arrangements for publicly listed companies.

13. Whilst each of these national statutory schemes makes positive contributions
    to promoting gender equality in the workplace, the evidence is clear that the
    current system needs to be reformed.

14. There are several objectives that should drive the reform of the EOWW Act
    and Agency and associated legislative and institutional arrangements. These
    are:

    • greater clarity and cohesion amongst national regulatory schemes;

    • promotion of gender equality rather than equal opportunity for women;

    • improved transparency and accountability at the national level;

    • greater emphasis on outcomes rather than processes in mandatory Employer
      Reporting Obligations;

    • greater certainty for business and employers;

    • full coverage of employers;

    • targeted effort to close the gender pay gap; and

    • special measures to fast track achieving substantive equality in
      leadership.

15. These objectives are discussed in order
    below.

Greater clarity and
cohesion amongst national regulatory schemes

16. There is currently a lack of clarity about roles, responsibilities and
    priorities for the EOWW Act and Agency, the SDC/Commission and the
    FWA/Ombudsman. This leads to the national regulatory arrangements being less
    effective than they could be. The Commission proposes that the following lead
    roles and responsibilities for each of the three statutory schemes should
    underpin the reform process:

17. The EOWA, as a gender specific agency, should lead:

    • coordination within the Australian Government on action to achieve gender
      equality in Australian workplaces in partnership with the Australian Government
      Office for Women (OFW);

    • collaboration with employers, including Australian business, Australian
      Government departments and statutory authorities, to promote strategies, and
      positive action by employers to achieve gender equality in Australian
      workplaces, including through education.

18. The Commission, represented where appropriate by the SDC, as a statutory
    authority with gender-specific functions and with an established enforcement and
    monitoring role, should lead:

    • enforcement, particularly at a systemic level, to ensure compliance with
      gender equality workplace obligations;

    • education and advocacy about the gender equality rights of workers; and

    • independent monitoring and reporting to the Australian Parliament and the
      public on progress in achieving substantive gender equality, including in
      Australian workplaces.

19. The FWA/Ombudsman, as general industrial relations mechanisms, should
    collaborate with the:

    • EOWA in its lead roles; and

    • SDC/Commission in its lead roles

    to positively
    contribute to systemic action required to achieve gender equality in Australian
    workplaces.

20. The EOWA, as the primary agency charged with the promotion of gender
    equality in the workplace as part of the Australian Government, should therefore
    be retained as a stand alone regulator with gender equality in the workplace as
    its sole priority. It should be linked to the participation and employment areas
    of government, and work closely with the SDC/Commission and FWA/Ombudsman to
    drive systemic change within Australian workplaces (see Recommendations 1 and
    2).

Promotion of gender
equality rather than equal opportunity for women

21. The core purpose of the EOWW Act and Agency should change from being the
    promotion of equal opportunity for women to promoting gender equality in the
    workplace. This change in purpose is to ensure that action by the EOWA is
    clearly directed towards promoting equal outcomes for women and men (substantive
    equality) rather than ensuring that women have the same formal opportunities
    (formal equality). It is well established that, in order for women's
    experience of paid work to be transformed, there may be a need for women to be
    treated differently to men. It is also well established that men may also need
    to have changed experiences of paid work in order to lead to more equal outcomes
    between women and men.

22. The EOWW Act should therefore be amended to change its name to the Gender
    Equality in the Workplace Act, the EOWA should be renamed the Gender
    Equality in the Workplace Agency, and the EOWW Act should include the
    achievement of gender equality as a key object (see Recommendations 3 and
    4).

Improved transparency and
accountability at the national level

23. There is also a need for greater transparency and accountability at the
    national level about what is working, and what needs to change, in order to make
    adequate progress in improving gender equality outcomes. At the present time,
    there is a body of excellent research and reporting that is undertaken on
    specific issues about gender equality, both inside and outside of the workplace.
    However, there is no national framework to enable Australia as a nation to track
    systemic changes which impact on overall gender equality outcomes.

24. In particular, there needs to be an agreed set of national gender equality
    benchmarks and indicators against which progress can be independently monitored.
    This national monitoring framework would enable time-bound targets to be set for
    commitments to improve gender equality outcomes, including in the workforce. The
    national monitoring framework would also inform the design of the mandatory
    employer reporting obligations to the EOWA, discussed further below.

25. The Commission repeats its earlier recommendations, particularly in its Submission to the SDA Review (2008) that the SDC be given the role of
    independent monitoring and analysis of progress towards achieving gender
    equality in Australia. The Commission should be given the resources to develop
    the National Gender Equality Benchmarks and Indicators, in collaboration with
    the EOWA, the OFW and other key agencies, including the Australian Bureau of
    Statistics (ABS). The Commission, as the fully independent statutory office at
    the national level with gender specific functions, is particularly well placed
    to oversee this development work (see Recommendation 5).

Greater emphasis on outcomes
rather than processes in mandatory employer reporting obligations

26. The Commission considers that the regulation of employers should be done on
    the principle of better regulation, rather than more regulation.

27. It proposes that, under the EOWW Act, the design of the mandatory annual
    employer reporting obligations should have a stronger focus on tracking actual
    changes in gender equality within the workplace. This could include, for
    example, changes in the pay gap, flexible work arrangements, and gender
    diversity in leadership roles, rather than processes such as training and
    mentoring schemes.

28. The EOWA should be required to issue employers with an EOWA Certification
    that they have met their employer reporting obligations, and the Act should
    require that the employer publishes both their report and Certification to all
    staff to enhance accountability back into the workplace. The Certifications
    should also be published in the Annual Report, including ASX Annual Reports
    where applicable.

29. EOWA certification should be a pre-condition for organisations to enter
    government contracts, or provide the Australian government with goods and
    services.

30. The EOWA should have the lead role in designing resources for employers to
    improve gender equality outcomes, including through online services.
    Importantly, it should also have the power to go behind employer reports to
    verify the accuracy of reported outcomes.

31. Finally, in conjunction with the EOWA, employers, groups of employers or
    industries should have the option of developing voluntary Gender Equality Action
    Plans which set clear time-bound targets for improved gender equality and
    strategies for achieving those targets (see Recommendations 6, 7, 8, 9, 10
    and 11).

Greater certainty
for business and employers

32. In order to offer benefits to employer/employer groups for developing
    concrete Gender Equality Action Plans, the Commission also proposes that it be
    possible for these Plans to be submitted, at the option of the employer/employer
    groups, for legal recognition under the SDA as a ‘special measure'
    or legal instrument. This recognition would provide greater certainty for the
    employer/employer groups, operating either as a defence against claims of
    discrimination under the SDA (and claims of adverse action under the FWA) or at
    least creating a presumption of compliance with employer obligations under the
    national gender equality regulatory schemes.

33. This reform would be a mid-way reform towards the development of standards
    under the SDA (and FWA) that apply more broadly, and the creation of more
    general positive duty obligations on employers under the SDA, both of which were
    proposed by the Commission as ‘options for reform' as part of its Submission to the SDA Review (2008) (see Recommendation 12).

Full coverage of
employers

34. Currently, government departments and statutory agencies with 100 employees
    or more are not part of the EOWW Act regulatory scheme. In addition, many
    employers that technically are covered do not currently report, as they are not
    easily identified. The Act should be amended to extend coverage to government
    departments and statutory agencies.

35. A mechanism should also be established to identify annually all employer
    organisations that have 100 employees or more and advise the EOWA of the names
    of these organisations (see Recommendation 13 and
    14).

Targeted effort to close
the gender pay gap

36. The gender pay gap remains a major problem in Australia, and current
    arrangements for addressing pay inequity are inadequate. Subject to the outcomes
    of the House of Representatives Inquiry into Pay Equity, the Commission proposes
    that the EOWA and the Commission should be funded to enable the SDC to partner
    in the development of a National Pay Equity Strategy. This strategy should
    include the gender pay gap component of the national monitoring framework,
    implementation of the Pay Equity Tool, and making pay rates more transparent
    (see Recommendations 15 and 16).

Special measures to fast track
achieving substantive equality in leadership

37. The Commission considers that, in light of Australia's poor record on
    improving women's leadership roles in Australian businesses, and at board
    level generally, there is a case now for putting in place special measures to
    fast track reform in this area.

38. The Commission considers that the Australian Government has a leadership
    role to play, and should therefore immediately adopt a mandatory national
    benchmark of 40% gender diversity on all government boards within three years.

39. For other boards, there should be a two stage reform process. Initially, it
    should be mandatory for all publicly listed companies to adopt three and five
    year disclosable targets for improving gender diversity on both their boards,
    and at senior executive level. The exact target set can be at the discretion of
    the employer during this first stage. These targets should be reported to the
    ASX through the annual reporting process. ASX companies should also be required
    to report on their compliance with employer reporting obligations under the EOWW
    Act, by way of exception reporting.

40. After five years, if there is a lack of substantial progress, the Australian
    Government should consider introducing mandatory gender quotas for boards, at
    least on ASX publicly listed companies, with penalties for failing to meet
    quotas within a specified period of time (see Recommendations 17, 18, 19 and
    20).

Associated
Reforms

41. The Commission also proposes reforms to the SDA and to the FWA regulatory
    schemes to foster greater links and cohesion amongst the three national
    statutory schemes that impact on gender equality in the workplace.

42. The SDA should be amended to implement the recommendations of the Senate
    Standing Committee Inquiry into the SDA. In addition, the SDC/Commission should
    be required to notify the FWA/Ombudsman and the EOWA Agency when it commences
    systemic action under the reformed SDA.

43. The FWA/Ombudsman should also be required to notify the SDC/Commission when
    it commences systemic action to promote gender equality in the workplace,
    particularly when it commences an investigation or proceedings for relevant
    adverse action claims (see Recommendations 21, 22 and 23).

44. A complete list of Recommendations is set out in Section 3 of this
    Submission. Section 4 presents two diagrams, being the proposed National
    Gender Equality Monitoring Framework, as well as the proposed Employer
    Compliance Framework.

45. Sections 5 to 7 are for Information, with summaries of the nature and
    extent of gender inequality in the workplace (Section 5), why achieving gender
    equality matters (Section 6) and the national legislative and institutional
    arrangements currently in place that regulate gender equality in the workplace
    (Section 7).

46. Section 8 sets out the detailed Proposals for Reform, and the 23
    Recommendations.

47. The Submission also provides more detailed information in the appendices,
    including descriptions of Australia's relevant international human rights
    and labour rights obligations (Appendix 1), the national legislative and
    institutional arrangements (Appendix 2) and comparisons with other countries,
    particularly the United Kingdom, Canada, New Zealand and Norway (Appendix
    3).
    

3 Table of
Recommendations

4 Diagrams of proposed
national gender equality monitoring and employer compliance frameworks

4.1 National gender
equality monitoring framework

4.2 Employer
Compliance Framework

5 Identifying the
problem: is there gender equality in Australian workplaces?

5.1 Introduction:
findings of the Listening Tour

48. In 2007, Elizabeth Broderick was appointed as the new federal SDC at the
    Commission. Commissioner Broderick embarked on a national Listening Tour over
    the first eight months of her term. The Listening Tour was designed to assess
    the current state of gender equality in Australia through hearing the direct
    experiences of men and women.

49. In July 2008, the SDC released the report setting out her findings from the
    Listening Tour, What matters to Australian women and men: Gender equality in
    2008.^[14]

50. The key finding of the Commissioner was that progress in achieving gender
    equality in Australia had stalled. ^[15]

51. In particular, the Listening Tour confirmed that women do not yet
    enjoy equality in the workplace. Women are still discriminated against in the
    workplace both as individuals and as a group. Women's full and equal
    participation is impeded by a range of factors including:

    • ongoing direct and indirect discrimination based on sex, pregnancy and
      family responsibilities;

    • limited availability of quality part-time, particularly at senior
      levels;

    • gendered assumptions about women's roles as carers; and

    • a lack of family friendly work policies.

52. Many Listening Tour participants brought the SDC's attention to the
    gendered assumptions, attitudes, stereotypes and discrimination that contribute
    to women's inequality. One woman spoke of her battle to gain a promotion
    in a male-dominated industry:

    I was overlooked for a position which
    I knew I had the skills and experience for. When I asked about it, management
    said, “That would never happen - she is a female”. I asked Human
    Resources what avenues I had and they said, “If you want to keep working
    there you should keep your mouth
    shut”.^[16]

53. The findings of the Listening Tour about gender inequality in the workplace
    are consistent with discrimination complaints lodged under the SDA. In 2008/09
    the vast majority of SDA complaints related to employment
    (91%).^[17] Twenty-two percent of
    complaints alleged pregnancy discrimination and 22% of complaints alleged sexual
    harassment.^[18]

54. This section of the Submission sets out the extent to which women experience
    substantive inequality in Australian workforces, including in:

    • workforce participation;

    • pay equity and starting salaries;

    • management and leadership positions;

    • prevalence of sexual harassment;

    • pregnancy discrimination; and

    • the impact of unpaid work and family and carer
      responsibilities.

5.2 Women's
workforce participation

55. Whilst women's participation in the paid workforce has risen
    dramatically in the last three
    decades,^[19]Australia lags behind
    many other developed countries in terms of women's workforce participation
    rates, ranked number 50 by the World Economic
    Forum.^[20]

56. As at August 2008, only 57.8% of all women aged 15 years and over were in
    the labour force, making up 45.3% of Australia's total labour
    force.^[21] This may be contrasted
    with Norway, for example, where 69.7% of women are in the labour
    force^[22] or New Zealand at
    62.1%.^[23] The participation rates
    of mothers with young children are particularly low when compared with
    comparable OECD countries such as Canada, Sweden, the United Kingdom and the
    United States.^[24]

57. Marginalised groups commonly experience additional barriers to participation
    in the paid workforce. Women with
    disability,^[25] Indigenous
    women^[26] and women from culturally
    and linguistically diverse backgrounds have lower rates of paid workforce
    participation compared to the female
    average.^[27] The additional barriers
    experienced by these groups include the non-recognition of overseas
    qualifications, discrimination based on race and disability and limited
    employment opportunities in rural and remote communities.

5.3 Pay
equity and starting salaries

58. The gender pay gap in Australia persists and is evidence of ongoing
    discrimination against women in the workplace. The gap in ordinary full time
    earnings between women and men is 17.2% as at February
    2009.^[28] The gender pay gap is even
    greater when women's part-time and casual earnings are considered, with
    women earning around two thirds of the amount earned by
    men.^[29] Further, women are more
    likely to be working under minimum employment conditions and be engaged in low
    paid, casual and part time work.^[30] Australian women are overrepresented in low paid occupations and industries with
    high levels of part time work such as retail, hospitality and personal
    services.^[31]

59. Graduate Careers Australia's annual Australian Graduate Survey details the average starting salaries of both male and female graduates. The
    data shows that the gender pay gap begins as soon as women enter the workforce.
    In 2008, new male graduates earned median starting salaries of $47,000 compared
    to $45,000 for women.^[32] Between
    1999 and 2005 there was positive trend with women's salaries increasing
    from 92.3% to 97.5%. In 2006, women's salaries dropped to 95.2% and
    further still to 93.3% in 2007. There was a slight recovery in 2008 when
    women's salaries increased to 95.7% of their male
    counterparts.^[33]

60. The gender pay gap is particularly pronounced in ASX200 companies. Among
    the population of key management personnel for whom remuneration data was
    available, female median remuneration is shows a gender pay gap of 28.3% which
    is 11.1% higher than the national average gender pay
    gap.^[34]

5.4 Women
in management and leadership positions

61. Despite women constituting 45% of the total workforce in Australia, women
    are underrepresented in leadership and management positions in virtually all
    sectors of the paid workforce, including the public service, academia,
    corporations and boards.

62. [Public Service] Women comprise 57.6% of Commonwealth Public Service
    employees. Women outnumber men at all junior classifications in the Commonwealth
    Public Service but are under-represented at higher classifications. The gap in
    women's participation increases with seniority with women comprising 45%
    of Executive Level employees and only 37% of the Senior Executive
    Service.^[35]

63. [Academia] While women account for approximately 50% of lecturing
    staff in Australian universities, their numbers decrease significantly with
    seniority. Women account for 39% of senior lecturing staff and only 24.5% of
    academic staff above senior lecturer. At the University of Sydney, for example,
    only 14.5% the academic staff at professorial level and above are
    women.^[36] The majority of women in
    the tertiary education sector can be found at the non academic
    classifications.^[37]

64. [Corporate] The representation of women in executive manager
    positions in ASX200 companies has decreased since the 2006 Australian Census
    of Women in Leadership when 12% of Executive Managers were women and has
    further regressed below the standard set in 2004 when 11.4% of Executive
    Managers were women. ^[38] Women hold
    only 2% of Chief Executive Officer Positions and 10.7% of Executive Manager
    Positions. ^[39]

65. There are also signs that this downward trend is likely to continue and
    possibly worsen in the coming years as the already low number of women in feeder
    positions to top leadership appointments decreases. Experience in line
    management positions is considered essential for progressing to top corporate
    positions. In 2008, women held 5.9% of the Line Executive Management positions.
    This was a decrease from 7.5% in
    2006.^[40] A female participant in
    the Listening Tour pointed out the disparity in what employers say and what they
    do in terms of promoting women's leadership:

    [Our CEO] has
    publicly said he would have 50 per cent women in his work force if he could.
    But then he also... set up an executive structure that is going to hinder his
    ability to get women into those senior positions by setting meeting times that
    women with caring responsibilities won't be able to
    attend.^[41]

66. The majority of women who make it into executive management roles in ASX200
    companies are still clustered in support roles where they are responsible for
    supporting main business functions (including Human Resources, Legal, Public
    Relations) rather than line management roles (which hold responsibility for
    profit and loss or direct client
    service).^[42]

67. Female executive managers are far less likely to be classified as line
    managers than male executive managers. Only 39.6% of female executive managers
    are considered line managers (the remaining 60.4% of female managers are
    considered support managers).^[43] By
    comparison, the majority of male executive managers (75.3%) are line managers
    (with the remaining 24.7% of male managers classified as support
    managers).^[44]

68. [Women on Boards] EOWA's 2008 Census of Australian
    Women's Leadership in ASX200 companies revealed women chair only 2% of
    ASX200 companies (that is four boards) and hold only 8.3% of board
    directorships. While there has been an overall increase in the total number of
    board positions since 2006, the number of these seats held by women has not kept
    up at the same pace.^[45] While two
    years ago 12% of ASX200 companies boasted more than 25% of their board directors
    were women, in 2008 this number has halved to
    6%.^[46] This data represents a
    comprehensive decline since
    2006.^[47]

69. This compares with 14.8% in the United States, 14.3% in South Africa, 11% in
    the UK, 10.2% in Canada and 8.7% in New Zealand. ^[48]

70. While 54.5% of ASX200 companies have at least one woman in an executive
    management position, again this rate is lower than international comparators. In
    the US 85.2% of top companies have at least one woman in executive management
    positions as do 65.6% of Canadian companies, 60% in the UK and 59.3% in South
    Africa.^[49] This is a dramatic
    change from the 2006 Census when Australia was outperformed only by the US.

71. The representation of women on Government appointed boards and committees is
    higher than that of the private sector but still not representative of
    women's interests or ability. The OFW reports that as at 30 June 2008,
    women comprise 33% of the total membership of Australian Government boards and
    bodies and 22% of Chair or Deputy Chair
    positions.^[50] There is a higher
    representation of women on boards where the Australian Government has total
    control over the appointments. ^[51] However, the percentage of women on Government appointed boards varies
    significantly across departments. In 2006, just over half of the members of
    Government boards and bodies in the Department of Families, Housing, Community
    Services and Indigenous Affairs were women. Government boards and bodies in the
    Departments of Immigration and Multicultural
    Affairs,^[52] Health and Ageing and
    Human Services also had high rates of women's participation (over
    40%).^[53] The Departments of
    Agriculture, Fisheries and Forestry; Defence and Finance and Administration had
    the lowest rate of women's representation on Government boards and bodies
    (less than 20%).^[54]

5.5 Prevalence of
sexual harassment

72. The continuing presence of sexual harassment is a key marker of gender
    inequality in the workplace and one reason women do not progress. In 2008, the
    Commission conducted a national telephone survey to investigate the nature and
    extent of sexual harassment in Australian workplaces. The survey found that 22%
    of women and 5% of men aged 18-64 have experienced sexual harassment in the
    workplace in their lifetime.^[55] While this was a slight decrease from the results of the same telephone survey
    in 2003, what was concerning was the lack of understanding about what sexual
    harassment is. Around one in five (22%) respondents who said they had not
    experienced ‘sexual
    harassment'^[56] then went on to report having experienced behaviours that may in fact amount to
    sexual harassment under the Sex Discrimination Act 1984 (Cth). ^[57]

73. Sexual harassment occurs across all sizes of employer. The 2008 Survey
    reported that for those who experienced sexual harassment in the last five
    years, there was an even spread of employer size: 39% large employers, 30%
    medium employers and 31% small employers. ^[58] The top three industries identified
    by respondents who experienced sexual harassment in the last five years were:
    health and community services (14%), education (12%) and accommodation, cafes
    and restaurants (10%).

74. During the Listening Tour a female focus group participant shared with the
    SDC her comments on the constant self surveillance that women become accustomed
    to:

    You wear a sack to not show yourself off, you talk to the safe
    people who you know [at work]. You are constantly thinking about your
    gender.^[59]

75. Over the course of the Listening Tour there was a feeling that sexual
    harassment was almost impossible to eradicate. On this point, one woman
    recounted her experience of hearing her colleague talk about a woman in a
    degrading manner:

    I don't think there's any
    organisation that's ever going to be able to put their hand on their heart
    and say, “We are free of sexual harassment in the workplace”. I was
    absolutely astounded a few weeks ago now. I was having a cup of coffee with a
    colleague and one of them had actually participated in a selection panel
    recently and I literally spat my coffee out because they were talking about one
    of the females that they had interviewed. This guy just turned around and said,
    “and she had the best set of
    tits”.^[60]

76. A similar sentiment highlighting the pervasive and persistent nature of
    sexual harassment was expressed by a contributor to the blog:

    I was
    recently sexually harassed by the boss at a work [Christmas] function and the
    company have since tried to sweep everything under the carpet. I have been left
    feeling very vulnerable and anxious. Whilst also feeling isolated by the
    management and workers.^[61]

77. Nearly one in five complaints received by the Commission under the SDA
    relate to sexual harassment.^[62] The
    vast majority of these take place in the workplace. However, the
    Commission's survey found that overall, the number of people who have
    formally reported or made a complaint after experiencing sexual harassment
    significantly decreased between 2003 and
    2008.^[63] In 2008, only 16% of those
    who have been sexually harassed in the last five years in the workplace formally
    reported or made a complaint, compared to 32% in 2003. For those who did not
    make a complaint:
    • 43% did not think it was serious enough;
    • 15% were fearful of a negative impact on themselves;
    • 21% had a lack of faith in the complaint process; and
    • 29% took care of the problem themselves.

78. In 2008, a total of 22% of respondents who made a formal complaint reported
    that the outcome of their complaint resulted in a negative impact on them. The
    negative impacts include the person who experienced the harassment being
    transferred or changed shifts, resigning, being dismissed, demoted or
    disciplined or were laughed at and ostracised. During the Listening Tour, an
    employer confirmed that most women will attempt to deal with sexual harassment
    informally or leave the workplace because of this fear of
    victimisation:

    It absolutely still is an issue and people have a
    fear of making a complaint because it is a career killer. You try and deal with
    it informally or you just get
    out.^[64]

5.6 Pregnancy
discrimination in the workplace

79. Pregnancy is a time when women are commonly vulnerable to discrimination and
    inequality in the paid workforce. This can take the form of demotions, missing
    out on promotions, redundancies, denial of family friendly conditions and even
    bullying in some cases.^[65] Almost
    one in every five pregnant working women experiences at least one difficulty in
    their workplace in relation to being
    pregnant.^[66] Over one in five of
    the complaints received by the Commission under the SDA were complaints of
    pregnancy discrimination.^[67] As
    such, this point in the lifecycle has a significant impact on participation in
    the paid workforce and level of earnings. Accordingly, when superannuation
    balances are broken down by age, the largest widening of the gender gap occurs
    between the 23-34 and 35-44 age brackets, coinciding with the time when women
    commonly have children.^[68]

80. A Listening Tour participant described the experience of her
    daughter-in-law, which highlighted how discrimination following pregnancy can
    impact upon women's labour market participation:

    I have a
    daughter-in-law who works for a call centre. She fell pregnant and had a baby.
    At this time her boss said that if she wanted to come back she could. After six
    months, he gave her a hard time and said she had to work full time if she wanted
    to work. He did this because he thought women should be in the home. She ended
    up leaving. She knew it was discrimination but he is the
    boss.^[69]

81. Women do not even have to be pregnant to experience this disadvantage. On
    the Listening Tour, one woman reported her experience of workplace
    discrimination on the grounds of potential pregnancy:

    I've had
    a comment about me that I shouldn't be given a permanent job because I may
    have a baby soon. I'm not even
    pregnant.^[70]

82. The vulnerability of women's employment, including potential job
    losses, demotions and redundancies, arising at the time of pregnancy or
    returning to work following pregnancy, can have severe consequences to
    women's financial security and career progression.

83. During the Listening Tour, many women commented on the difficulty of
    re-entering the paid workforce after a break to care for children. Issues raised
    included the availability of work at the same level, control over the hours of
    work, lack of family friendly workplace policies and the need for skills
    development.

5.7 Impact of unpaid
work and family and carer responsibilities

84. Perhaps the most fundamental barrier to women's full participation in
    paid work is the struggle to balance paid work with unpaid labour, including
    family and carer responsibilities.

85. Women continue to undertake the large majority of unpaid work in households,
    including caring for children and other domestic
    work.^[71]The birth of children is a
    key point in the lifecycle where gender inequality in the division of unpaid
    work commonly widens.^{[72] ‘}Time use' studies show that the birth of a child commonly
    leads to mothers not only doing less paid work and more of the unpaid work of
    child care, but also the extra tidying, shopping, cleaning and laundry that the
    presence of children creates. The birth of a child results in women working
    incredibly long hours in both paid and unpaid work. In 2006, the total hours of
    work for mothers whose youngest child was between 0-4 was 85.9 hours weekly,
    compared to 79.6 hours for fathers, 61.3 hours for men without children and 55.5
    hours for women without
    children.^[73]

86. The gap between women and men's earnings may also influence decisions
    about who undertakes paid and unpaid work in a
    household.^[74] The gender pay gap
    may, in effect, force the higher earner to take on the majority of paid work
    while the lower earner, usually female, commonly takes on the majority of the
    unpaid caring work and in many cases reduces her participation in the paid
    workforce. During the Listening Tour one man recounted his own experience of
    this decision:

    Doing the sums of child care can make it more
    economical for my wife to stay at home because she earns less than I do. ^[75]

87. One service provider noted that closing the gender pay gap is critical for
    creating an environment where men can undertake greater caring
    responsibilities:

    More and more blokes want to care for their
    children, but financially they are not making that decision because men are
    earning more. They are the breadwinners. If you do equalise women and
    men's pay it will create opportunities for men to do
    that.^[76]

5.8 Gendered
ageism

88. Older women face particular barriers to paid workforce participation due to
    ‘gendered ageism',^[77] where gender discrimination is exacerbated by age
    discrimination.^[78] Age
    discrimination creates barriers to paid workforce participation in re-entry to
    the paid workforce, recruitment, training, promotion, terms and conditions of
    employment, the balancing of unpaid work and phased retirement.

89. One way gendered ageism manifests is in the use of unlawful stereotypes and
    assumptions about older women workers. Such stereotypes include being perceived
    as ‘loyal but lacking potential', ‘low in energy' and
    ‘unwilling to accept
    criticism'.^[79] Employers may
    also assume that all older female workers will have had significant breaks in
    their employment due to family responsibilities and will not possess the skills
    required for the position.^[80]

90. The consequences of discriminatory stereotyping for older women are
    far-reaching and serious. Research has shown that these stereotypes and
    assumptions can prevent older women from being selected for jobs or, when
    employed, from being considered for training and promotion
    opportunities.^[81] This has obvious
    consequences for older women in light of appointments to boards and access to
    leadership positions more generally, despite being highly qualified for such
    positions.

91. In the face of entrenched discrimination, older women themselves can start
    to believe and internalise these stereotypes and select out of work and
    promotion opportunities. This represents a serious leakage of talent and skills
    in terms of the potential leadership pool and for the Australian labour force as
    a whole.

5.9 Conclusion

92. It is clear that on a range of key indicators of gender inequality in
    Australian workplaces, including workforce participation rates, pay rates,
    representation in leadership positions, and experiences of sexual harassment and
    discrimination, women experience substantive inequality in comparison to their
    male counterparts.

93. As the next section explains, gender inequality in the Australian workforce
    matters to individuals and the entire community. It impacts harshly on
    individual women, has flow on effects to families, impacts negatively on
    businesses and national productivity. It also undermines our fulfillment of
    international human rights and labour rights.

6 The case for reform:
why does achieving gender equality in Australian workplaces matter?

6.1 Introduction

94. Achieving gender equality in Australian workplaces represents both a
    significant challenge and a significant opportunity. Australia faces a number of
    well documented economic and social challenges over the coming years. Chief
    amongst these challenges is realizing the full potential of our workforce in the
    context of an ageing population.

95. The three P's of economic growth – population, participation and
    productivity - are the levers that will assist us to meet these challenges and
    increase prosperity.

96. The under-employment of women is a setback to productivity and participation
    and detracts from economic performance. It also negatively impacts on women and
    men, and their children.

97. In summary:

    • Greater gender equality in employment will improve women's economic
      security, and fulfill our international human rights and labour rights
      obligations;

    • Greater equality in women and men's workforce participation will have
      a major impact on national productivity;

    • Greater diversity including gender diversity at the senior leadership and
      board level will increase corporate performance;

    • Businesses will be able to draw on a wider talent pool. With demographic
      change and an impending skills shortage, having access to the full talent pool
      including currently under-utilised talent pools is vital;

    • Greater gender balance at the most senior levels within companies will
      result in decisions that are more in touch with customer and client needs and
      more representative of the consumer base many companies rely
      upon.

98. Gender equality in Australian workplaces must be seen in a broader social
    context. The issue of the absence of women on corporate boards or at senior
    leadership level is not one which threatens basic human requirements like
    housing, food and safety. However, there is a strong connection between how
    women are treated in corporate and business life and how women are treated
    everywhere else across Australia. The statistics on women's leadership
    reflect our progress towards gender equality, as do statistics on violence
    against women, sexual harassment, pay equity and retirement savings. As Irene
    Lang, President of Catalyst recently said:

    ‘Until women are
    equitably represented in leadership in the private, economic sector, they will
    be marginalised in every other
    arena.'^[82]

99. This section sets out in further detail the case for reform to achieve
    gender equality in the workforce. It highlights the benefits to women, and to
    fulfilling our international human rights and labour rights obligations.

100. Importantly, gender equality in the workforce will also have a major impact
     on national productivity, be better for business and employers.

6.2 Gender equality
will improve women's economic security

101. The net result of gender inequality for a woman in her experience of paid
     work is a major gap in the overall economic security for women in comparison to
     men.

102. Overall, women earn an average of approximately 83 cents to the male
     dollar^[83] and typically experience
     lower economic and financial security at all stages of the
     lifecycle.^[84]

103. A recent Australian study showed that, overall, a 25-year-old man is likely
     to earn a total of $2.4 million in their lifetime, which is more than
     one-and-a-half times the $1.5 million prospective earnings of a woman. Men who
     have a bachelor degree or higher and have children will earn around $3.3 million
     over their working life which is nearly double the $1.8 million that their
     female counterparts can expect to
     earn.^[85]

104. Women make up 73% of all the recipients of the single rate of the Age
     Pension^[86] and single elderly
     female households not only experience the highest incidence of poverty compared
     to other household types^[87], but
     are also at the greatest risk of persistent
     poverty.^[88]

105. The extent to which women do not enjoy economic security on an equal basis
     with men is most starkly demonstrated by the gender gap in retirement
     savings.

106. In September 2009, Commissioner Broderick released a major Issues Paper,
     ‘Accumulating Poverty?: Women's experiences of inequality over the
     lifecycle.' The Issues Paper highlights that:

     Superannuation
     balances and payouts for women are approximately half of those of men. Future
     projections show that the gap will remain a problem for coming generations. The
     gap has serious implications for women, particularly the likelihood of sole
     reliance on the Age Pension and subsequently, an acute vulnerability to poverty
     in retirement.[89]

107. The Issues Paper concludes that

     [i]ncreasing women's
     labour market participation and increasing women's earnings across the
     lifecycle is critical to closing the gender gap in retirement savings. Measures
     to support women's labour market participation and address the gender pay
     gap must feature as a strategy to build women's financial security [across
     the lifecycle and] in
     retirement.^[90]

108. A range of measures are needed to ensure that women enjoy an adequate
     standard of living, including social security benefits to provide an adequate
     safety net, and placing financial value on unpaid caring
     work.^[91]

109. However, promoting gender equality in Australian workplaces has significant
     potential for ensuring that women enjoy economic security on an equal basis with
     men. Enabling all people, regardless of gender, to engage in paid work, with
     appropriate financial compensation, is a key area in need of law and policy
     reform.

6.3 Gender equality
will improve business and organisational performance

110. Achieving gender equality in the paid workforce is also important for strong
     business performance. There are several ways in which greater gender diversity
     impacts positively on business outcomes. These include halting the leakage of
     female talent from workplaces, appealing to women as consumers and improving
     business performance.

Leakage of
talent

111. Talent is absolutely critical for all corporations. An ability to draw on
     the widest possible talent pool delivers a competitive edge. Along with
     investment and technology, people are the essential ingredient for increasing an
     individual business' bottom line. Recruitment and retention of talented
     women represents a major opportunity for businesses. At present,
     companies in the ASX200 are not accessing the full spectrum of available talent.
     Fifty one percent of ASX200 companies have no women directors and 45.5% of
     ASX200 companies have no women at all on their executive
     teams.^[92] The pipeline of
     women to the next most senior level is also small. Chief Executive Women (CEW)
     has projected that on the current trajectory it will take over 150 years for
     women to hold a similar number of senior positions as
     men.^[93]

112. With 55.9% of graduates from Australian Universities being
     female,^[94] it makes no sense that
     only 5.9% of senior line management roles in ASX 200 companies are held by
     women^[95] or that only 8.3% of Board
     positions are held by women.^[96] It
     is clear that without significant intervention we will not stem this leakage of
     female talent.

Women's
market power

113. In Australia, women exercise strong consumer power. Organisations with a
     balance of men and women at the senior levels tend to consider a wider range of
     options, resulting in decisions that are more in touch with customer needs. It
     has been estimated that women handle about 75% of family finances and influence
     about 80% of buying decisions.^[97] Therefore products and services that appeal to women have a good chance of
     success.

114. It makes sound business sense to include women at all levels of
     decision-making in organisations to broadly represent, and provide unique
     insights into, this significant customer base.

Overall business
performance

115. There have been a number of research studies looking at the impact of
     women's decision-making on corporate performance.

116. International research indicates companies with a higher proportion of women
     in their boards and top management team have better financial
     performance.^[98] This and other
     corporate research suggest that organisations with better gender balance are
     able to avail themselves of a broader talent pool value and leverage the skills
     and contributions of all
     employees.^[99] In addition,
     diversity in the workforce, including gender diversity, increases overall
     employee engagement and
     productivity.^[100]

117. Research undertaken by Catalyst in 2007 to investigate the return on equity
     in Fortune 500 Companies found that those companies with the most female board
     directors outperformed those with the least by
     53%.^[101]

118. Recent research undertaken by Chicago-based Hedge Fund Research found that
     hedge funds run by women have fallen only half as much in the financial crisis
     as those managed by men.^[102] This
     research showed the value of female-managed funds has dropped by 9.6% in the
     past year, compared with 19 per cent for the rest.

119. Women investment managers also performed better in general over the past
     decade, with an average annual return of just over 9%, while hedge funds overall
     delivered 5.82%.^[103]

120. In summary, current research indicates that companies with a critical mass
     of women at the top achieve significantly better results.

6.4 Gender equality
will improve national productivity

121. There is an urgent case for achieving gender equality in Australian
     workplaces in order to increase Australia's national productivity. As
     noted by the World Economic Forum, ‘there is a strong correlation between
     the gender gap and national competitiveness...a nation's competitiveness
     depends significantly on whether and how it educates and utilizes its female
     talent.'^[104]

122. Factors contributing to lower national productivity include:

     • Australia ranks as equal first in the World Economic Forum Gender Gap Index
       of women's educational attainment, yet only 50th in women's
       workforce participation. In other words, the return on our investment in
       women's education is very low. No nation or government, industry or sector
       can afford this kind of loss. Without significant intervention – by
       government and by business – the number of women progressing in the
       workplace may shrink even further.

     • Australia's investment in women's skills development, is forgone
       when many women are working below their skill level, or have retreated from paid
       work altogether. Ensuring that women are enjoying gender equality in paid work
       is important for Australia's national productivity in light of the ongoing
       skills shortages, despite the global financial crisis in many key
       industries.

     • Australia faces significant challenges with its ageing population in terms
       of its paid workforce ratio over the medium to longer term. By 2050, there will
       be a quadrupling of the proportion of people over 85 and a doubling of the
       proportion of people over 65.^[105] Addressing the barriers to women's participation in paid work would
       significantly improve the paid workforce ratio over time which is essential to
       expanding the nation's tax base.

     • Women's reduced ability to achieve a level of economic security
       through paid work leads to a reduced ability to fund their own retirement. As
       noted above, women currently hold only half the retirement savings of men, and
       make up 73% of single Age Pension
       recipients.^[106] Improving
       women's attachment to the labour market will alleviate pressures on our
       social security system.

123. It is vital to national productivity that all people in Australia who want
     to be in paid work are able to do so to the maximum of their skills, abilities,
     and aspirations, regardless of gender.

6.5 Gender equality
will fulfil Australia's international human rights and labour rights
obligations

124. Achieving gender equality in paid work is crucial to ensuring economic
     security for women on an equal basis with men. It is also an international human
     rights and labour rights obligation of the Australian Government.

125. The Australian Government's international human rights and labour
     rights obligations relevant to the issue of gender equality in the workforce are
     set out in the following international instruments:

     • The Convention on the Elimination of All forms of Discrimination against
       Women (CEDAW)

     • The International Covenant on Civil and Political Rights (ICCPR)

     • The International Covenant on Economic, Social and Cultural Rights
       (ICESR)

     • International Labour Organisation Conventions 111, 100 and 156

     • Beijing Declaration and Platform for Action

126. These international agreements impose a clear obligation on the Australian
     government to achieve substantive gender equality in Australian workplaces.

127. For example, CEDAW places an obligation on the Australian Government
     to:

     take all appropriate measures to eliminate discrimination
     against women in the field of employment in order to ensure, on a basis of
     equality of men and women, the same rights, in particular... the right to the
     same employment opportunities...the right to promotion...[and] equal
     remuneration.^[107]

128. Article 2 imposes an obligation on Australia to prevent discrimination
     against women in all sectors and CEDAW stipulates a range of appropriate
     measures must be taken, “including legislation, to modify or abolish
     existing laws, regulations, customs and practices which constitute
     discrimination against
     women.”^[108]

129. Similarly, as a signatory to the ICESCR, the Australian Government has an
     obligation to:

     recognize the right of everyone to the enjoyment of
     just and favourable conditions of work which ensure, in particular... Equal
     opportunity for everyone to be promoted in his employment to an appropriate
     higher level, subject to no considerations other than those of seniority and
     competence.^[109]

130. Australia is party to a number of international ILO Conventions which impose
     obligations to pursue gender equality in areas related to employment and
     occupation and eliminate discrimination in the workplace on the basis of sex
     and/or family responsibilities.

131. For further detail of Australia's international human and labour
     rights obligations, see Appendix 1.

132. The data available on gender equality in the workforce, set out in section 5
     of this Submission suggests that Australia is not currently meeting its
     international human rights and labour rights obligations in this area.

Special measures to achieve
gender equality

133. It is clear that Australia is obliged to take action to eliminate
     discrimination between men and women in the workplace. One of the arguments
     against taking action aimed at advancing opportunities for women in the
     workplace, such as quotas and targets, is that such action may constitute
     discrimination against men.

134. However, it is clear that taking temporary special measures aimed at
     accelerating the de facto equality between men and women is not discrimination
     at international law. Article 4 of CEDAW provides:

     1. Adoption by
     States Parties of temporary special measures aimed at accelerating de facto
     equality between men and women shall not be considered discrimination as defined
     in the present Convention, but shall in no way entail as a consequence the
     maintenance of unequal or separate standards; these measures shall be
     discontinued when the objectives of equality of opportunity and treatment have
     been achieved.

     2. Adoption by States Parties of special measures, including those measures
     contained in the present Convention, aimed at protecting maternity shall not be
     considered discriminatory.^[110]

135. A similar definition is used in the
     SDA.^[111]

136. In order to achieve genuine equality in practice, any definition of
     discrimination must allow for special measures. Special measures permit acts and
     practices that will ultimately further the goal of gender equality. Without
     them, a simple ‘sameness of treatment' approach can prevail, that
     will give a surface appearance of equality, but has the potential to undermine
     equality of outcome.

137. According to the CEDAW Committee, the purpose of art 4(1) is to accelerate
     the improvement of the position of women to achieve their de facto or
     substantive equality with men, and to effect the structural, social and cultural
     changes necessary to correct past and current forms and effects of
     discrimination against
     women.^[112]

138. The CEDAW Committee views special measures as being more than simply actions
     taken on a ‘good faith' basis to achieve a particular purpose. The
     meaning of ‘special' refers to the fact that the measures are
     designed to serve a specific
     goal.^[113] Therefore, the measures
     must be designed, applied and evaluated against the background of the specific
     nature of the problem that they are intended to
     address.^[114]

139. The CEDAW Committee recommends States parties ‘evaluate the potential
     impact of temporary special measures with regard to a particular goal within
     their national context. State parties should then adopt those temporary special
     measures which they consider to be appropriate in order to accelerate the
     achievement of de facto or substantive equality for
     women.'^[115]

140. The adoption and implementation of temporary special measures may raise
     issues of the qualifications and merit of the group or individuals so targeted.
     On this issue the CEDAW Committee has commented that:

     as temporary
     special measures aim at accelerating achievement of de facto or substantive
     equality, questions of qualification and merit, in particular in the area of
     employment in the public and private sectors, need to be reviewed carefully for
     gender bias as they are normatively and culturally
     determined.^[116]

141. The duration of a temporary special measure should be determined by its
     functional result in response to a concrete problem and not by a predetermined
     passage of time. Temporary special measures must be discontinued when their
     desired results have been achieved and sustained for a period of
     time.^[117]

142. Further, the CEDAW Committee recommends that States parties ensure that
     women in general, and affected groups of women in particular, have a role in the
     design, implementation and evaluation of special measures programs. In
     particular, collaboration and consultation with civil society and
     non-governmental organisations representing various groups of women is
     especially recommended.^[118]

143. This submission includes recommendations for the adoption of special
     measures to fast track substantive equality outcomes for women in leadership
     roles. See section 8.9.
     

7 The
current context: what are the national laws and institutional
arrangements?

7.1 Introduction

144. This section of the Submission provides an overview of the current
     regulatory environment that most directly impacts on gender equality in the
     workforce. It sets out the three major pieces of legislation, and their
     institutional arrangements, and provides a Table at section 7.4 which contains
     key features of each of the three statutory schemes. It concludes that there is
     currently a lack of clarity about roles and responsibilities amongst the three
     statutory schemes, particularly for action to drive systemic reform to achieve
     gender equality in Australian workplaces. The lead roles of each of the gender
     equality statutory scheme should be clarified, including the role of EOWA. In
     addition, the links between the statutory schemes should be strengthened and
     formalised.

7.2 National laws
impacting on gender equality in the workforce

145. At the national level, there are three main laws that regulate gender
     equality in the workplace:

     • Equal Opportunity for Women in the Workplace Act 1999 (EOWW Act).

     • Sex Discrimination Act 1984 (SDA); and

     • Fair Work Act 2009 (FWA).

146. Each of the states and territories also has anti-discrimination legislation
     that includes gender as a protected
     attribute.^[119] The State and
     Territory anti-discrimination Acts also prohibit direct and indirect
     discrimination in the workplace and operate concurrently with both the
     SDA^[120] and the
     FWA.^[121]

147. It should be noted that a comparable scheme to the EOWW Act regulates
     Federal public sector employment. Employees of government departments are
     covered by the Public Service Act
     1999^[122] and employees of
     statutory authorities are covered by the Equal Employment Opportunity
     (Commonwealth Authorities) Act 1987. Also, a number of states have their own
     equal employment opportunity legislation for public sector
     employment.^[123]

148. The above three national Acts vary in terms of how they regulate equality,
     the scope of the attributes and areas of public life they cover, as well as
     their enforcement mechanisms.

149. The diagram that follows represents the intersection of attributes and areas
     of each of the main national gender equality Acts.

150. The EOWW Act is uniquely targeted at tackling systemic sex discrimination in
     business and employer organisations. It aims to encourage employers to take
     action to achieve equal opportunity for women in the workplace. However, it has
     limited coverage^[124] and weak
     enforcement powers.^[125]

151. The SDA generally prohibits direct and indirect discrimination on the ground
     of sex and related attributes across many prescribed areas of public life, one
     of which is employment. The SDA is primarily enforced through an individual
     complaint process. However, it also gives the Commission some functions that can
     be used to challenge systemic
     discrimination.^[126]

152. The FWA regulates federal workplace relations generally including adverse
     action on the basis of many prohibited attributes, one of which is sex, and
     creates the strongest enforcement powers.

7.3 Institutional
arrangements under national laws impacting on gender equality in the workforce

153. Each of the main national laws that impacts on gender equality in the
     workplace – the EOWW Act, SDA and FWA - establish responsible institutions
     that play an important role in achieving gender equality in Australia. In
     addition, the Australian Government Office for Work and Family, Office for Women
     and the Prime Minister's Women's Advisor all play a role.

154. In summary, the EOWA, the SDC/Commission and FWA/Ombudsman are all empowered
     to challenge systemic discrimination against women. However, only the EOWA has
     dedicated resources to spend on assisting employers to take positive action to
     achieve gender equality in the workplace. The SDC/Commission have an established
     role in monitoring and advocating for gender equality, including gender equality
     in employment, and both the SDC/Commission and the FWA/Ombudsman have individual
     complaint handling functions.

155. The SDC/Commission have some legislative functions that can be used to
     address systemic discrimination which relate to all manifestations of gender
     inequality across all areas of public life and not solely employment.

156. While the FWA/Ombudsman functions and powers are far reaching and focused on
     the area of employment, unlike the SDC/Commission, the FWA/Ombudsman are
     concerned with a broad range of industrial matters across a wide range of
     industries. The FWA/Ombudsman are not specialist gender or discrimination or
     conciliation institutions.

157. Further details of each of the national laws and institutional arrangements
     regulating gender equality in Australian workplaces is provided in Appendix
     2.

158. A summary of the key features of each statutory scheme is set out below.
     

7.4 Table comparing
Australia's gender equality laws & institutions

7.5 Relationship and
interaction between gender equality institutions

159. The below diagram illustrates the relationships between the institutions
     established by the three main gender equality Acts, along with the Australian
     Human Rights Commission established under the Australian Human Rights
     Commission Act 1986 (Cth) (AHRC Act).
     

160. There is no formal institutional relationship between the EOWA and either
     the SDC/Commission, FWA/Ombudsman. There is also no formal relationship between
     the SDC/Commission and the FWA/Ombudsman despite the overlap in their roles.

161. The one formal link between the main responsible institutions is between the
     SDC and the President of the Commission and Fair Work Australia, in relation to
     equal remuneration and discriminatory award matters.

162. Under the FWA, the SDC has standing to apply to Fair Work Australia for
     equal remuneration orders.^[127] The SDC's equal remuneration power is similar to the power under
     Division 3 of the former Workplace Relations Act 1996 (Cth) (and
     the equivalent provisions in the Industrial Relations Act 1988). However,
     the SDC has never made an application under this power, due primarily to limited
     resources and competing
     priorities.^[128]

163. The President of the Commission also has the power to refer discriminatory
     industrial instruments to Fair Work Australia and discriminatory determinations
     to the Remuneration Tribunal or the Defence Force Remuneration
     Tribunal.^[129]

164. The President has this role, as it is expected that discriminatory awards
     will come to the attention of the Commission through its individual complaints
     handling function. The power to refer the award to Fair Work Australia is an
     important means of effecting systemic change in the area of employment. The SDC
     is entitled to make submissions to Fair Work Australia for consideration within
     the review process.^[130]

165. In addition, as outlined above, the Commission may intervene, with leave of
     the court involved, in any matter that involves issues of discrimination on the
     ground of sex, marital status, pregnancy or potential pregnancy or
     discrimination involving sexual harassment – this includes matters before
     Fair Work Australia.^[131]

166. The Commission has been involved in a number of proceedings before the
     former Australian Industrial Relations Commission (AIRC) that concerned sex
     discrimination issues including:

     • In 1990, the Parental Leave Test Case, which established the standard clause
       for maternity, paternity and adoption leave in Awards;

     • In 1994 and 1995, the ACTU test cases that established
       personal/carer's leave entitlements;

     • In 1995, the AIRC central working party pilot award review process, which
       removed discriminatory provisions from federal awards and included model
       anti-discrimination clauses;

     • In 2000, the Australian Metal Workers' Union application to the AIRC
       seeking an increase in the casual loading for workers under the metals
       award;

     • In 2001, the ACTU test cases, which established unpaid parental leave
       entitlements for casual workers employed for more than 12 months with the same
       employer through the award system; and

     • In 2005, the ACTU family provisions test case.

167. While there are some formal links between Fair Work Australia and the
     Commission and the SDC, the links between each of the national statutory schemes
     regulating gender equality in the workplace, including the EOWA, should be
     strengthened and formalised. This would better ensure that each scheme plays its
     specialised role effectively and that efforts to achieve gender equality in
     Australia are mainstreamed but not diluted. The Submission makes recommendations
     to achieve this outcome.

8 Reform proposals: what
needs to change?

8.1 Introduction

168. This Submission has highlighted that Australia has stalled in its progress
     on achieving gender equality in Australian workplaces. This is demonstrated most
     starkly by the poor record on women's leadership amongst Australian
     business, but is indicated across almost all others facets of women's
     experiences of paid work. It is reflected in Australia's fall from 40 to
     50 in the global ranking of women's labour force participation in the past
     12 months.^[132]

169. The current gender equality laws and institutional arrangements have
     contributed to greater attention being given to the problems associated with
     achieving gender equality. However there is far less progress in practical
     outcomes or substantive equality between women and men in their working lives.

170. The current arrangements are not adequate for the Australian context. The
     case for reform is clear.

171. There are several key objectives to be achieved from reform to the current
     gender equality laws and institutional arrangements in order to meet
     Australia's international human rights obligations, secure greater
     economic security for women, improve national productivity and achieve better
     business performance.

172. The key objectives of reform are:

     • greater cohesion amongst national gender equality mechanisms;

     • promotion of gender equality rather than equal opportunity;

     • improved transparency and accountability about success, failures, and what
       needs to be done next;

     • greater emphasis on outcomes rather than processes from the regulatory and
       reporting systems;

     • greater certainty for business and employer organisations;

     • full coverage of employers;

     • targeted effort to close the gender pay gap; and

     • special measures to fast track achieving substantive gender equality.
       

173. This Submission makes recommendations for reform to meet each of these key
     objectives.

8.2 Greater clarity
and cohesion amongst national gender equality regulatory schemes

174. Maintaining effective and adequately resourced national gender mechanisms is
     an important part of realising women's human rights and gender equality.
     The CEDAW Committee and international policy making bodies including the United
     Nations Commission on the Status of Women have detailed the obligation to
     maintain national gender mechanisms as a crucial part of fulfilling
     international human rights obligations to
     women.^[133]

175. National gender equality mechanisms can include mechanisms within government
     such as specific ministries and gender units as well as statutory bodies and
     commissions, and civil society mechanisms such as advisory and consultative
     bodies or non government organisations.

176. As set out above,^[134] there
     are three national statutory schemes that are involved in the regulation of
     gender equality in Australian workplaces being:

     • EOWW Act (and the EOWA);

     • SDA (and the SDC/Commission) and

     • FWA (and the FWA/Ombudsman).

177. Each of the national schemes that regulate gender equality in the workplace
     establishes statutory authorities, two of which have gender specific functions:
     the EOWA and the Commission. Also, the OFW is a gender specific part of the
     Australian Government's national machinery. Together, these entities are a
     part of Australia's national gender equality machinery.

178. The Commission is opposed to collapsing the EOWA Agency into a generalist
     workplace system. It considers that the EOWA Agency should remain a stand alone
     statutory body operating at the highest level of the Australian Government to
     focus specifically on promoting gender equality in the workplace. It should
     retain an exclusive focus on workplace activity in order to ensure close
     integration with the industrial relations systems, particularly through close
     links with FWA/Ombudsman and with the substantive equality/anti-discrimination
     system, being the SDC/Commission.

179. However, in order to strengthen its direct impact on workplace reform, the
     Agency should have formalised links to the participation and employment areas of
     government, so that EOWA responsibilities are clearly viewed as a central
     concern of both gender and employment government portfolios.

180. Whilst the Commission is opposed to the EOWA being collapsed into another
     part of the Australian government workplace system, the national gender
     machinery needs to be reformed to improve clarity about roles, responsibilities,
     and coordinating action.

181. At the present time, each of the three statutory authorities has as part of
     its mandate to undertake systemic action to progress gender equality in the
     workplace. As summarised in section 7 and explained in detail in Appendix 2,
     some statutory functions are common, for example, the statutory functions to
     undertake education and research. Other functions vary, including for example,
     with respect to individual complaint handling functions, investigation and audit
     functions, and powers to initiate or participate in court proceedings.

182. There is a lack of clarity about which statutory authority is responsible
     for which lead roles, particularly in taking systemic action to achieve gender
     equality in the workplace. For example, it is possible that any one of these
     authorities could be responsible for driving systemic action to close the gender
     pay gap in Australia. The same could be said for reporting on progress to
     achieve gender equality in the workplace. There are also no formal links or
     obligations to coordinate action in situations where coordination is required to
     ensure the system operates in a cohesive manner. The lack of clarity about
     roles, and obligations to coordinate action, means that the national gender
     machinery is not as effective as it could be.

183. The Commission considers that the authorities should broadly have the
     following central roles:

184. The EOWA, as a gender specific mechanism, should lead:

     • coordination within the Australian Government on action to achieve gender
       equality in Australian workplaces in partnership with the Office for Women;
       and

     • collaboration with employers, including Australian business, Australian
       Government departments and statutory authorities, to promote strategies, and
       positive action by employers to achieve gender equality in Australian
       workplaces, including through education.

185. The Commission, as a statutory authority with gender specific functions and
     the statutory position of SDC together with an established enforcement and
     monitoring role, should lead:

     • enforcement, particularly at a systemic level, to ensure compliance with
       gender equality workplace obligations;

     • education and advocacy about the gender equality rights of workers; and

     • independent monitoring and reporting to the Australian Parliament and the
       public on progress in achieving substantive gender equality, including in
       Australian workplaces.

186. The FWA/Ombudsman, as a general industrial relations mechanism, should
     collaborate with:

     • EOWA in its lead roles; and

     • SDC/Commission in its lead roles,

to positively
contribute to systemic action required to achieve gender equality in Australian
workplaces.

8.3 Promotion of
gender equality rather than equal opportunity for women

187. There is a growing consensus, both in Australia, and internationally, that,
     in order for women to have better access to paid work, a substantive equality
     framework is required rather than a focus on ‘equal opportunity' or
     ‘formal equality.'

     ‘Formal equality [which
     primarily focuses on equal opportunity or equality of access] is developed on
     the assumption that inequality can be remedied by treating all people in an
     identical manner...

     Critics of this formal model of equality argue that a focus on strict equal
     treatment ... fails to account for the myriad ways in which informal barriers
     operate to prevent, dissuade or undermine women's access to certain professions
     (and to a lesser extent, men's access to historically feminised professions). In
     these circumstances, treating unequally situated people equally will serve to
     further entrench more systemic aspects of
     discrimination.^[136]

188. Achieving substantive equality for women may require treating women and men
     differently, for example through special
     measures.^[137] It may also require
     action to change the paid work and caring experiences of
     men.^[138]

189. At the present time, the name of the EOWA and objects of the EOWW Act are
     confined to eliminating discrimination against women and promoting equal
     opportunity for women in the workplace. The principal objects of the Act
     are:

     • to promote the principle that employment for women should be dealt with on
       the basis of merit;

     • to promote, amongst employers, the elimination of discrimination against,
       and the provision of equal opportunity for, women in relation to employment
       matters; and

     • to foster workplace consultation between employers and employees on issues
       concerning equal opportunity for women in relation to
       employment.^[139]

190. In order for the EOWA to have the strong lead role required to progress
     gender equality in Australian workplaces, the EOWW Act and Agency need to use a
     substantive gender equality framework. This would include promoting special
     measures where required and also promoting different ways of men being involved
     in paid work.

191. In order to adopt this framework, the name of the EOWW Act and Agency should
     be changed, and the objects of the Act amended.

192. The Commission proposes that the name of the Act should be changed to the Gender Equality in the Workplace Act, and the statutory authority renamed
     the Gender Equality in the Workplace Agency, or similar.

193. In addition, the objects of the Act should be amended to include a strong
     key objective of promoting substantive gender equality in the workplace, rather
     than confining the objects to equal opportunity for women.

8.4 Improved
transparency and accountability at the national level

194. As noted in the Commission's Submission to the SDA Review (2008),

     In Australia, regular independent monitoring and
     reporting on progress in achieving gender equality does not occur. Data
     collection is conducted, although there are gaps. There are also many excellent
     examples of high quality research on specific issues (citations
     omitted).^[140]

195. The EOWA publishes several reports on key features of gender equality in the
     workplace.^[141] The SDC/Commission
     has published two major surveys on the nature and extent of sexual harassment in
     the workplace.^[142] It has also
     undertaken inquiries on specific gender equality workplace
     issues.^[143] Under the FWA, the
     General Manager of Fair Work Australia must conduct research and publish a
     report every three years which includes, for example, the effect of the National
     Employment Standard on the right to request flexible work arrangements on
     women.^[144]

196. However, as noted in the Commission's Submission to the SDA Review (2008),

     there is no institutional arrangement in place for an
     agency independent of government to report to Parliament and the Australian
     public, providing a considered evidence-based assessment of progress against an
     integrated set of national gender equality indicators and to benchmark progress
     against those indicators over time.

197. The Commission has previously recommended that it be given adequate
     resources to enable the SDC to develop a set of National Gender Equality
     Benchmarks and Indictors, including workplace benchmarks and indicators. These
     benchmarks and indicators would form the basis for the SDC to independently
     monitor Australia's progress towards achieving substantive gender
     equality.^[145] This recommendation
     has received the general support of the Senate Standing Committee on Legal and
     Constitutional Affairs.^[146]

198. The SDC/Commission would work closely with the EOWA Agency in the
     development of the benchmarks and indicators associated with workplace reform
     including, for example, in the area of:

     • workforce participation;

     • decision-making and leadership;

     • pay equity;

     • sexual harassment and discrimination; and

     • flexible work arrangements

199. The National Gender Equality Benchmarks and Indicators regarding the
     workplace would provide a national policy framework for the design of
     outcome-based reporting by employers as part of Employer Reporting Obligations
     to the EOWA Agency, as well as the research and reporting to be done by FWA
     every three years.

200. The SDC/Commission would work closely with other key bodies, such as the
     Australian Bureau of Statistics and other research bodies to develop other
     benchmarks and indicators relevant to gender equality in Australia
     including:

     • unpaid work and family and carer responsibilities;

     • sexual assault;

     • family and domestic violence;

     • adequate standard of living, including rates of poverty and
       homelessness;

     • gender gap in retirement savings

201. Monitoring of the integrated set of National Gender Equality Benchmarks and
     Indicators would provide Australia with a comprehensive analysis of overall
     progress on gender equality. The integration of workplace analysis with analysis
     of issues outside the workplace would enable links to be made between changes in
     paid work and associated experiences outside of the workplace.

202. The Commission, acting through the SDC, is best placed to undertake the
     independent monitoring role in light of the fully independent status of the
     Commission, both under its legislation, and as an accredited National Human
     Rights Institution under the United Nations Paris
     Principles.^[147] Under the Paris
     Principles, the Commission can only be fully accredited as a national human
     rights institution if it is fully independent of the national government under
     legislation or by the constitution.

203. Whilst the EOWA Agency and the FWA/Ombudsman have a level of independence,
     both are subject to the general directions of the Australian Government. Only
     the SDC/Commission is fully independent.

204. Establishing this independent monitoring process as part of
     Australia's national gender machinery would foster full transparency and
     accountability for the meeting of obligations, including our international human
     rights and labour rights to progress gender equality.

8.5 Greater
emphasis on outcomes rather than processes in Employer Reporting Obligations

205. The Commission considers that the current Employer Reporting Obligations to
     EOWA need to be reformed so that reporting focuses on outcomes being achieved by
     employers to progress substantive gender equality, rather than on the methods
     used.^[148] The Commission
     recognises that regulatory burdens need to be tightly linked to the core
     objectives of the regulatory system. The key objective of the regulation in this
     area is to progressively achieve substantive equality within Australian
     businesses and other employer organisations, rather than what is being done to
     get there. Employer reporting obligations should be guided by the principle
     ‘better reporting, not more reporting.'

206. Whilst the gathering of information from employers about strategies used to
     achieve greater gender equality may be useful for sharing knowledge and
     innovative ideas, this should not be the focus of regulated reporting to the
     Agency. The Employer Reporting Obligations should be developed in order to track
     progress against key indicators of progress including:

     • workforce profiles;

     • decision-making and leadership;

     • pay rates and equity;

     • sexual harassment and discrimination; and

     • flexible work arrangements

207. Outcome-based reporting will generate greater knowledge about the extent to
     which change is actually being achieved within the workplace. It will provide a
     more accurate representation of the extent of real reform within workplace
     profiles, conditions and cultures.

208. Employer Reporting Obligations under the Act should be designed to track
     changes within individual businesses and other employer organisations by
     reference to the higher level National Gender Equality Benchmarks and
     Indicators.^[149]

209. In order to promote transparency and accountability at the employer level
     under the EOWW Act, the Act should be amended to:

     • require the EOWA to issue a certification to the employer that Employer
       Reporting Obligations have been met;

     • empower the EOWA to impose a fine on employers for persistent non-compliance
       with Employer Reporting Obligations; and

     • require the employer to publish:

       • the Report to EOWA and the Certification from EOWA to all employees;
         and

       • the Certification in the employer's annual
         report.

210. The meeting of the minimum Employer Reporting Obligations would be mandatory
     under the Act.

211. The EOWA should also have the power of verification, for example, through
     some form of audit process to actively verify employer compliance with their
     obligations under the Act.

212. Currently, Australian Government Procurement Guidelines prevent Government
     departments from buying goods and services from, or entering into contracts
     with, organisations that have not complied with EOWW Act reporting
     obligations.^[150] However, the
     Commission believes that these guidelines could be more effectively monitored
     and enforced by making certified compliance with a revised EOWW Act a condition
     of commercial dealings with government.

213. The Agency should also play a lead role in developing resources for
     employers, for example, through a Community of Practice, to assist employers in
     improving their performance on achieving outcomes for gender equality.

214. In this Submission, the Commission proposes that the EOWA be strengthened
     with the lead role of collaborating with Australian employers in efforts to
     promote substantive gender equality in the workplace. Given this lead role, the
     Agency would also be well placed to join together with individual employers,
     groups of employers, or specific industries to work on the development of
     voluntary ‘Gender Equality Action Plans'.

215. The Action Plan would include reporting about outcomes being achieved, and
     time-bound targets, together with strategies for achieving those targets. As
     detailed in the next part, employers would have the option of seeking to have
     their voluntary Action Plan legally recognised under the SDA as a ‘special
     measure'.

8.6 Greater certainty
for business and employers

216. As Australian business groups identify, certainty for business offers
     benefits in terms of business performance and long term
     sustainability.^[151]

217. At the present time, the regulatory system on gender equality in the
     workplace does not provide for some of the key elements required to achieve substantive gender equality, including

     • a general positive duty to promote gender equality;

     • standards;

     • voluntary action plans; and

     • incentives for compliance nor enforcement mechanisms for
       non-compliance.^[152]

218. In the Commission's Submission to the SDA Review (2008), it
     presented a number of ‘options for reform' about the above proposals
     for consideration in a Stage Two reform
     process.^[153]

219. At that time, the Commission proposed that consideration be given
     to:

     • inserting a general positive duty to promote gender equality into the
       SDA;^[154]

     • developing ‘standards' under the SDA which would apply to all
       employers, and which would provide certainty to employers about the nature and
       extent of their obligations under the SDA, and a measure of protection from
       litigation;^[155] and

     • enabling employer organisations to develop voluntary Gender Equality Action
       Plans which could be lodged with either the Commission or EOWA. Voluntary Action
       Plans which included ‘special measures' could be certified under the
       SDA to provide a measure of protection to the employer from
       litigation.^[156]

220. These recommendations received general support from the Senate Standing
     Committee on Legal and Constitutional
     Affairs.^[157]

221. The Australian Government has yet to respond to the SDA Review.

222. For the purposes of this Submission, the Commission proposes concrete
     recommendations for a mid-way approach towards implementing its Stage Two
     Options for Reform, as part of the SDA Review. In Recommendation 11 of this
     Submission, the Commission proposes that the EOWA Act be amended to enable
     employers, groups of employers or Industry groups to voluntarily develop Gender
     Equality Action Plans. The plans would set out clear targets for increasing
     gender equality in their workplace, and the strategies that will be used to
     achieve these targets.

223. The Commission proposes that consideration be given to amending the SDA to
     allow for legal recognition of Gender Equality Action Plans, at the option of
     employers. A number of models for recognition could be considered.

224. The first would be to allow formal recognition of a Plan as a ‘special
     measure' to confirm that measures taken under it that seek to ensure
     gender equality are taken not to be discriminatory. Such certification could be
     undertaken by the Commission, consistent with its current role in granting
     exemptions under federal discrimination laws.

225. A second option would be to allow recognition of a Plan as a Gender Equality
     Standard, compliance with which would be a defence to a complaint of
     discrimination and a breach of which would be a contravention of the SDA. Such
     an approach would be similar to the operation of Disability Standards under the Disability Discrimination Act 1992 (Cth).^[158] Under this model,
     the Attorney-General would approve a Plan by legislative instrument to give
     effect to a Standard.

226. A third option would be to allow recognition of a Plan as a Gender Equality
     Code which would operate similarly to a Standard, by replacing the obligations
     under the SDA with the obligations contained in the Plan/Code. Approval of such
     codes could be undertaken by the SDC, if satisfied that the Plan/Code provides
     greater protection of gender equality than that otherwise provided for by the
     SDA. Such an approach would be similar to the operation of Privacy Codes under
     the Privacy Act 1988 (Cth).^[159]

227. It would be entirely the option of the individual employer/s (an
     ‘opt-in') as to whether their ‘Gender Equality Action
     Plan' was to be recognised as a ‘special measure', standard or
     code under the SDA.

228. Recognition of an Action Plan under the SDA would offer both benefits and
     risks to employers. The benefit would be that the Action Plan would protect the
     individual employer, group of employers or specific industries from litigation
     under the SDA in relation to matters dealt with under the Plan.

229. This would also protect the employer from an action under the FWA, given
     that action that is not unlawful under the SDA is excluded from the scope of
     adverse action under the FWA. ^[160]

230. This proposal offers a flexible approach, short of the greater challenge of
     developing a ‘one-size-fits-all' standard which applies to, and
     protects, all employers regardless of their context and diverse circumstances.

231. The potential risk to employers of having a voluntary Action Plan adopted as
     a standard under the SDA would be that non-compliance would open the employer up
     to a potential complaint, either by an individual employee or by the SDC.

232. Part of the regulatory reform enabling voluntary Action Plans to be adopted
     under the SDA is for the SDC to be given the power to bring a complaint for
     non-compliance without the need for an individual complainant. The Commission
     previously recommended that the SDC be given this power in its Submission to
     the SDA Review (2008).^[161]

8.7 Full coverage of
employers

233. The EOWW Act should be amended to bring all relevant employers under the
     Act, including Australian Government departments and statutory agencies with 100
     employees or more. This would enable the EOWA to integrate the data analysis of
     comparable employers and foster collaboration amongst employer groups
     generally.

234. Further it is understood that a substantial number of businesses and other
     employers already covered by the Act do not report, and yet are not easily
     identified. This needs to be urgently remedied.

235. There are a number of ways this could be achieved. For example, all relevant
     employers will be known to the Australian Tax Office (ATO) and will provide
     information to the ATO which would enable employers covered by the EOWW Act to
     be identified. The ATO could be required to make available a list of all
     relevant employers to the EOWA on an annual basis.
     

8.8 Targeted effort
to close the gender pay gap: a National Pay Equity Strategy

236. Subject to the outcomes of the House of Representative's Inquiry into
     Pay Equity, the Commission considers that targeting the gender pay gap should be
     a major priority for the national gender machinery in Australia.

237. Closing the gender pay gap should be a specific employment matter covered
     under the EOWW Act.^[162]

238. The Australian Government should also provide the EOWA and the
     SDC/Commission with the mandate and resources to develop a National Pay Equity
     Strategy, which would include specific measures for:

     • EOWA regarding government policy and employer strategies;

     • SDC/Commission regarding enforcement powers, and independent monitoring;
       and

     • FWA/Ombudsman to act in collaboration with EOWA and the SDC/Commission, with
       respect to the above measures.

239. Consideration should be given to adopting measures to promote greater
     transparency in relation to pay rates in the private sector. For example, in the
     United Kingdom, the Equality Bill 2009 contains a provision that will make
     contractual secrecy clauses that prevent employees discussing their pay with
     colleagues
     unenforceable.^[163]

8.9 Special measures
to fast track achieving of substantive gender equality in
leadership

240. As explained in section 5.4, EOWA's Census of Australian Women's Leadership
     in ASX200 companies revealed women hold only 8.3% of Board positions and chair
     only 2% of Boards. Women hold only 2% of Chief Executive Officer positions,
     10.7% of executive management positions and 5.9% of line executive management
     positions. Over 50% of ASX200 companies have no women at all on their boards.

241. Australia is no longer making glacial progress on this issue but rather is
     going backwards.

242. The figures demonstrate the overwhelming need for significant action to
     improve women's representation in these positions. Some of these measures
     may require specific changes to current processes and practices. For example,
     the Productivity Commission has recently released a draft recommendation to end
     the ‘no vacancy rule' on boards, which can be used to limit the
     appointment of directors from outside of the
     ‘club'.^[164]

243. However, given the dismal representation of women at senior executive and
     board level in corporate Australia there is a strong case for special measures
     to fast track women's representation at senior levels in employer organisations
     and particularly publicly listed companies.

244. Australia is having a new debate about the need for reform including the
     need for targets and quotas to ensure greater gender diversity at senior levels.
     In the last month there has been considerable advocacy on this issue and many
     senior board directors have called for reform.

245. In regards to the SDC's suggestion of the implementation of gender
     quotas if no significant gains are made in women's representation in
     leadership positions within five years, Gordon Cairns, Non-executive director of
     Westpac and Origin Energy recently said:

     My suggested approach is do
     the work, find out what the road blocks are, remove the road blocks, make sure
     there is a good measurement system in place to ensure that progress is being
     made, and if that doesn't work we should
     legislate.^[165]

246. Jillian Segal, Company director at the National Australia Bank and the ASX
     supports the setting of voluntary targets as an initial approach to improve the
     representation of women in leadership positions. If there has been no
     significant change in the next five years, Segal suggests,

     At that
     time one needs to have a very serious examination as to why the publically
     disclosable targets that I am seeking at this point in time haven't
     worked...and if it's a question of male management just not hiring women
     then of course one needs to examine how government can make that happen and
     quotas is definitely one way. ^[166]

247. High profile Australian company director, Margaret Jackson, had been opposed
     to the imposition of quotas, but has reviewed her position:

     I think
     I've probably come full circle and completely reversed what I originally
     thought... I now think I agree with SDC when she says let's set some
     objectives and if we don't get there, let's set
     quotas.^[167]

248. As noted in section 6.5, international human rights laws, including CEDAW,
     exclude special measures that treat women and men differently in order to
     accelerate substantive equality outcomes from the definition of discrimination.
     The SDA also permits special measures. CEDAW recognises that the goal or
     eradicating discrimination should not be reduced to sameness of treatment and
     that substantive equality is not necessarily achieved by treating everyone
     equally.

249. In considering the meaning of ‘measures', the CEDAW Committee
     has made it clear that ‘special measures' encompass:

     a
     wide variety of legislative, executive, administrative and other regulatory
     instruments, policies and practices, such as outreach or support programmes;
     allocation and/or reallocation of resources; preferential treatment; targeted
     recruitment, hiring and promotion; numerical goals connected with time
     frames; and quota systems [emphasis added]. ^[168]

250. The choice of a particular measure depends on the specific goal it aims to
     achieve.^[169]

251. In the Australian context, Crennan J in Jacomb v Australian
     Municipal Administrative Clerical and Services
     Union^[170] stated that
     the phrase ‘special measures' in the SDA includes affirmative action
     measures which confer a benefit on a group for the purposes of achieving
     substantive equality. In that case, a quota for women in governance positions
     contained in union rules was upheld as a special measure.

252. The CEDAW Committee recommends that state parties make more use of temporary
     special measures such as positive action, preferential treatment or quota
     systems to advance women's integration into education, the economy,
     politics and employment.^[171]

253. Commenting on Article 7 of CEDAW dealing with the participation by women in
     political and public life, the CEDAW Committee remarked that where countries
     have developed effective temporary strategies in an attempt to achieve equality
     of participation, a wide range of measures had been implemented
     including:

     setting numerical goals and quotas and targeting women
     for appointment to public positions such as the judiciary or other professional
     groups that play an essential part in the everyday life of all
     societies.^[172]

254. The recommendation acknowledges explicitly that in order to secure equal
     participation by women in professional and public life, it may be necessary to
     set numerical goals.

255. In reviewing Australia's implementation of CEDAW in 2006, the CEDAW
     Committee expressed concerns about the lack of specific action designed to
     increase the representation of women in leadership positions. The CEDAW
     Committee observed:

     While noting that the Sex Discrimination Act
     allows for the adoption of special measures to ensure equality of opportunity or
     in order to meet the special needs of women, the Committee is concerned that the
     State party does not support the adoption of targets or quotas to promote
     greater participation of women, particularly indigenous women and women
     belonging to ethnic minorities, in decision-making bodies [emphasis
     added].^[173]

256. The CEDAW Committee recommended Australia:

     consider the adoption
     of quotas and targets, in accordance with article 4, paragraph 1, of the
     Convention and the Committee's general recommendation 25, to further
     increase the number of women in political and public life and to ensure that the
     representation of women in political and public bodies reflect the full
     diversity of the population, particularly indigenous women and women belonging
     to ethnic minorities.^[174]

257. Therefore temporary special measures, such as quotas and targets, aimed at
     accelerating de facto equality for Australian women in the workplace do not
     constitute discrimination against men.

258. Indeed, Australia is obliged to adopt and implement temporary special
     measures that are necessary and appropriate to accelerate the achievement of
     women's substantive equality in the
     workplace.^[175]

259. Publicly listed companies are a sector usually focused on achievable, time
     bound and measurable outcomes. In order to stimulate action on gender equality,
     it is recommended that a two stage process of special measures be adopted. This
     two stage process would be put in place for a specified period of time with the
     aim of intervening so as to increase substantially the number of women at senior
     levels in corporate Australia.

260. Stage One would require publicly listed companies to set their own three and
     five year targets to increase the representation of women on their boards and at
     senior executive level. These targets would be set by the businesses themselves
     as special measures and accordingly will vary depending on a range of factors
     including the industry, the pipeline of available women, the baseline level of
     women's existing representation and other factors.

261. Companies would monitor progress against these targets and report annually
     on progress in a transparent manner. For publicly listed companies, this
     reporting would be included in the ASX Annual Report.

262. The second phase of this process is designed to commence after five years
     and following a full evaluation as to why progress on gender equality at the
     senior level of business has not been achieved. Stage Two may require the
     government to establish mandatory quotas for all government and publicly listed
     boards. Failure to meet these quotas would result in financial or other
     penalties.

263. In relation to government boards, most states and territories have already
     set targets for women on government boards and women at executive level. In
     relation to government boards these targets have resulted in significant
     increases in women's representation. The Victorian Women's Policy
     Framework 2008-11 included a commitment to increasing the proportion of women on
     Victorian Government boards and committees to
     40%.^[176] This target has been
     achieved and was recently increased to
     50%.^[177]

264. In 2007, the South Australian Strategic Plan included a target to
     increase and maintain the number of women on all State Government boards and
     committees to 50% by 2008 and to increase the number of women chairing state
     government boards and committees to 50% by
     2010.^[178] The targets in the SA
     Strategic Plan are measurable and time bound. They are monitored and reported on
     regularly. In January 2004, previous to the target being set, 33.62% of the
     members of government boards and committees were women. By April 2009, this had
     increased to 44.78%.^[179]In
     January 2004, 23.83% of SA government boards and committees were chaired by
     women. Again, in the four years since the baseline was set, women's
     representation had increased to
     34.68%.^[180]

265. The Australian Capital Territory has experienced a similar level of
     improvement since the ACT Government set itself a target to achieve and maintain
     50% representation of women on Government boards and committees in
     2004.^[181] While the policy does
     not include an enforcement mechanism or minimum timing by which the target must
     be achieved, progress towards the target is monitored and reported. In December
     2005, 46% of ACT Government board members were women and by March 2008, this had
     increased to 48%.^[182] In
     December 2005, 26% of Government board were chaired by women were women and
     again, by March 2008, this had increased to
     34.7%.^[183] In addition, the
     percentage of women on ACT Government remunerated boards increased slightly from
     42% in 2002/03 to 45% in December
     2005.^[184]

266. In recognition of the traditionally low levels of women on Queensland
     government boards, in 2006 the Queensland Government committed to ensuring that
     wherever possible, 50% of new appointees to government bodies are
     women.^[185] The representation of
     women on Queensland Government Boards increased from 33.6% in 2006 to 36.5% in
     2008.^[186]

267. Most other states and territories are following this trend to quantify and
     monitor the representation in leadership and management positions. The NSW
     Government has made a commitment to, ‘ensure that progress towards gender
     parity is achieved on public sector boards concerned with economic and
     commercial matters and major public utilities as well as on those that are
     concerned with social and community life and smaller statutory
     boards.'^[187] The Tasmanian
     Government has expressed a similar
     commitment.^[188] Increasing the
     number of women in leadership positions, including in executive positions and on
     boards and committees is one of the Northern Territory Government's aims
     in the Territory 2030 Draft
     Strategy.^[189]

268. The South Australian and ACT governments have also set targets in relation
     to the representation of women in senior leadership roles. The 2007 South
     Australian Strategic Plan included a target to ensure women comprise half of
     public sector employees in the executive levels (including chief executives) by
     2014. In 2003, 29.4% of public sector employees in the executive levels
     (including chief executives) in SA were women. By 30 June 2007, this had
     increased to 35.6%.^[190] The ACT Women's Plan 2004-2009 also aimed to increase the proportion of
     women in senior management and leadership
     positions.^[191] In 2003, 33.9%of
     executive positions in the ACT Public Service were held by women. By 30 June
     2008, this had increased to
     39%.^[192]

269. It is important that the Australian Government also models better gender
     diversity on boards by establishing a target of a minimum of 40% of each gender
     on all Australian Government boards. These targets should be publicly
     disclosed, time bound and regularly reported on in a transparent manner.
     

8.10 Associated
reforms

Sex Discrimination Act 1984 (Cth)

270. In order to integrate the reforms to EOWA proposed in this Submission with
     the other key national gender equality law, the SDA, the Commission considers it
     important that the recommendations of the Senate Standing Committee on Legal and
     Constitutional Affairs' Inquiry into the Effectiveness of the SDA be implemented.^[193] The
     Senate Committee recommendations are consistent with the objectives of the
     recommendations of this Submission, including:

     • Improving clarity and cohesion of the national gender equality mechanisms,
       particularly by giving the Commission, acting through the SDC, a strong
       enforcement and independent monitoring role; and

     • Promoting gender equality rather than equal opportunity for women, including
       giving both women and men equal coverage under the SDA, and providing
       comprehensive protection from discrimination on the grounds of family and carer
       responsibilities.

271. In addition, since the commencement of the operations of the FWA/Ombudsman,
     the Commission proposes further recommendations to foster clarity and cohesion
     between the three statutory agencies impacting on the regulation of gender
     equality in the
     workplace.

Fair Work Act 2009 (Cth)

272. Similarly, the Commission proposes some minor changes to the formal
     institutional arrangements of the FWA/Ombudsman to improve cohesion and
     collaboration between the SDC/Commission and FWA/Ombudsman in relation to
     complaints.

9 Appendices

9.1 Appendix 1:
Australia's International Human and Labour Rights Obligations: Detailed
Descriptions

Convention
on the Elimination of All forms of Discrimination against Women

273. Australia has ratified
     CEDAW^[197] and it is scheduled to
     the SDA.

274. Therefore, Australia is bound by the terms of CEDAW, subject to any express
     reservations made at the time of its ratification. CEDAW is a key international
     instrument which places an obligation on Australia to:

     take all
     appropriate measures to eliminate discrimination against women in the field of
     employment in order to ensure, on a basis of equality of men and women, the same
     rights, in particular... the right to the same employment opportunities...the
     right to promotion...[and] equal
     remuneration.^[198]

275. This obligation applies to women in all
     sectors.^[199]

276. Further, Article 5 of CEDAW obliges Australia to take all appropriate
     measures to modify social and cultural patterns of conduct of men and women,
     with a view to achieving the elimination of prejudices and customary and all
     other practices which are based on the idea of the inferiority or the
     superiority of either of the sexes or on stereotyped roles for men and
     women.

277. The Committee on the Elimination of All forms of Discrimination against
     Women (CEDAW Committee) is responsible for monitoring the implementation of
     CEDAW by those States which are party to it.

278. The CEDAW Committee has noted that stereotypical cultural attitudes can be
     ‘reflected in the low proportion of women in top leadership positions in
     the public sector, including
     academia,^[200]lower pay and
     income, and a ‘lack of equality of opportunity for women in the labour
     market.'^[201]

279. CEDAW requires Australia to modify or abolish existing laws, regulations,
     customs and practices that constitute discrimination against women by taking a
     range of appropriate measures, including
     legislation.^[202]

280. Under Article 24, Australia undertakes to adopt all necessary measures at
     the national level aimed at achieving the full realization of the rights
     recognized in CEDAW.

International
Covenant on Civil and Political Rights

281. Australia has been a party to the
     ICCPR^[203] since 1980. Article 26
     of the ICCPR contains a positive obligation on States parties to take steps to
     protect against discrimination on the ground of sex.

282. The obligation of protection does not refer only to the rights set out in
     the ICCPR but rather to every form of
     discrimination.^[204]

283. The positive duty was expressly and generally emphasized by the UN Human
     Rights Committee in its General Comment on the equal rights of men and women.
     The UN Human Rights Committee stated
     that:^[205]

     The
     principle of equality sometimes requires States parties to take affirmative
     action in order to diminish or eliminate conditions which cause or help to
     perpetuate discrimination prohibited by the ICCPR.

     ...

     Such action may involve granting for a time certain preferential treatment in
     specific matters... As long as such treatment is needed to correct
     discrimination in fact, it is a case of legitimate differentiation under the
     ICCPR.

284. According to Nowak, positive measures of protection are particularly
     necessary when certain groups of people traditionally have been seriously
     discriminated against in the practice of State parties or when they have been
     subjected to specific discrimination in the private
     sector.^[206]

285. While State parties are free to choose in what way and to what degree they
     wish to counteract specific discrimination, Article 26 calls for
     ‘effective protection' and consequently, the absence of adequate
     measures in the event of concrete discrimination may lead to a violation of this
     provision.^[207]

International Covenant on
Economic, Social and Cultural Rights

286. Australia has been party to the
     ICESCR^[208] since 1976. Under
     ICESCR, Australia has an obligation to:

     recognize the right of
     everyone to the enjoyment of just and favourable conditions of work which
     ensure, in particular... Equal opportunity for everyone to be promoted in his
     employment to an appropriate higher level, subject to no considerations other
     than those of seniority and
     competence.^[209]

287. Further, Article 2 of the ICESCR requires State parties to take concrete
     steps by all appropriate means, particularly legislation, to ensure the full
     realization of the rights guaranteed by the
     Covenant.^[210]

288. Importantly, under Article 3, Australia undertakes to ensure the equal right
     of men and women to all of the rights under the ICESCR.

289. The Committee on Economic, Social and Cultural Rights (CESCR Committee) is
     responsible for monitoring the implementation of ICESCR by those States which
     are party to it. In reviewing Australia's implementation of ICESCR in
     2006, the ICESCR Committee expressed the following concerns:

     despite
     the State party's efforts to improve gender equality, a wage gap still persists
     between men and women in the workplace, particularly in managerial positions. It
     is also concerned at the low percentage of women in high-ranking positions in
     political and public
     life.^[211]

290. The ICESCR Committee recommended Australia:

     continue
     strengthening its effort to enhance equality between men and women in the work
     place, in particular those initiatives aimed at implementing the principle of
     equal pay for work of equal
     value.^[212]

International
Labour Organisation Conventions

291. The International Labour Organisation (ILO) regards gender equality as both
     a basic human right and an intrinsic part of their global aim of Decent Work for
     All Women and Men.

292. The ILO Discrimination (Employment and Occupation) Convention (ILO
     111) was ratified by Australia in 1973. As a signatory to this convention
     Australia has undertaken to:

     pursue a national policy designed to
     promote, by methods appropriate to national conditions and practice, equality of
     opportunity and treatment in respect of employment and occupation, with a view
     to eliminating any discrimination in respect
     thereof.^[213]

293. ILO 111 defines discrimination to include:

     Any distinction,
     exclusion or preference made on the basis of...sex...which has the effect of
     nullifying or impairing equality of opportunity or treatment in employment or
     occupation.^[214]

294. Australia also ratified the ILO Convention concerning Equal Remuneration
     for Men and Women Workers for Work of Equal Value (ILO 100) in 1974. This
     convention obliges Australia to “ensure the application to all workers of
     the principle of equal remuneration for men and women workers for work of equal
     value.”^[215]

295. ILO 100 proposes the principle of equal remuneration may be applied through
     the adoption of appropriate national laws or regulations, legally established or
     recognised machinery for wage determination, collective agreements between
     employers and workers or a combination of these various
     means.^[216]

296. In 1990, Australia ratified the ILO Convention concerning Equal
     Opportunities and Equal Treatment for Men and Women Workers: Workers with Family
     Responsibilities, 1981 (ILO 156). As a party to ILO 156, Australia is obliged
     to:

     Make it an aim of national policy to enable persons with family
     responsibilities who are engaged or wish to engage in employment to exercise
     their right to do so without being subject to discrimination and, to the extent
     possible, without conflict between their employment and family
     responsibilities.^[217]

297. ILO 156 applies equally to, “men and women workers with
     responsibilities in relation to their dependent children, where such
     responsibilities restrict their possibilities of preparing for, entering,
     participating in or advancing in economic
     activity.”^[218]

Beijing
Declaration and Platform for Action

298. The Fourth World Conference on Women was held in Beijing in 1995. The
     Beijing Declaration and Platform for Action was adopted by consensus.

299. As a participant in the Beijing Conference, Australia made a commitment to
     implement the Beijing Platform for Action. Women in power and
     decision-making' is one of the Beijing Platform's 12 critical areas
     of concern. The Platform states:

     Without the active participation of
     women and the incorporation of women's perspective at all levels of
     decision-making, the goals of equality, development and peace cannot be
     achieved.^[219]

300. The Platform requires the Australian government to:

     Commit
     themselves to establishing the goal of gender balance in governmental bodies and
     committees, as well as in public administrative entities, and in the judiciary,
     including, inter alia, setting specific targets and implementing measures to
     substantially increase the number of women with a view to achieving equal
     representation of women and men, if necessary through positive action, in all
     governmental and public administration
     positions.^[220]

301. The Government is also asked to, ‘encourage greater involvement of
     indigenous women in decision-making at all
     levels'.^[221]

302. The Platform recognises the importance of collecting and monitoring data and
     research. Governments are required to:

     Monitor and evaluate
     progress in the representation of women through the regular collection, analysis
     and dissemination of quantitative and qualitative data on women and men at all
     levels in various decision-making positions in the public and private sectors,
     and disseminate data on the number of women and men employed at various levels
     in Governments on a yearly basis; ensure that women and men have equal access to
     the full range of public appointments and set up mechanisms within governmental
     structures for monitoring progress in this
     field.^[222]

     Support non-governmental organisations and research institutes that conduct
     studies on women's participation in and impact on decision-making and the
     decision-making
     environment.^[223]

     and

     Recognize that shared work and parental responsibilities between women and
     men promote women's increased participation in public life, and take
     appropriate measures to achieve this, including measures to reconcile family and
     professional life. ^[224]

303. The Platform prescribes additional actions required from governments as well
     as national bodies, the private sector, trade unions, employers'
     organisations, research and academic institutions. These actions include:

     • Take positive action to build a critical mass of women leaders, executives
       and managers in strategic decision-making positions;

     • Create or strengthen, as appropriate, mechanisms to monitor women's
       access to senior levels of decision-making;

     • Review the criteria for recruitment and appointment to advisory and
       decision-making bodies and promotion to senior positions to ensure that such
       criteria are relevant and do not discriminate against women;

     • Encourage efforts by non-governmental organisations, trade unions and the
       private sector to achieve equality between women and men in their ranks,
       including equal participation in their decision-making bodies and in
       negotiations in all areas and at all levels;

     • Develop communications strategies to promote public debate on the new roles
       of men and women in society, and in the family;

     • Restructure recruitment and career-development programmes to ensure that all
       women, especially young women, have equal access to managerial, entrepreneurial,
       technical and leadership training, including on-the-job
       training;

     • Develop career advancement programs for women of all ages that include
       career planning, tracking, mentoring, coaching, training and
       retraining.^[225]
       

9.2 Appendix 2:
Detail of the Key Features of Australia's National Laws and Institutional
Arrangements which impact on Gender Equality in the Workforce

Equal Opportunity for Women in the
Workplace Act 1999 and Agency

Protected attributes and areas

304. Uniquely, the EOWW Act deals only with discrimination against women in
     employment.^[226]

Coverage

305. The EOWW Act applies to all higher education institutions and federal
     employers with 100 or more
     employees.^[227] It does not apply
     to the Commonwealth, a State, a Territory or an
     authority.^[228] The EOWW Act does
     not include as ‘employees' equity partners in professional firms or
     non-executive board members.

306. The Review of the Equal Opportunity for Women in the Workplace Act 1999:
     Issues Paper indicates that as of July 2009, approximately 30% of all
     organisations in Australia were covered by the EOWW
     Act.^[229]

Operative gender equality provisions

307. The EOWW Act does not prohibit direct and indirect discrimination. Instead,
     it tackles systemic discrimination by promoting employers to take action aimed
     at achieving equal opportunity for women in the workplace. Its objects are
     to:

     • promote the principle that employment for women should be dealt with on the
       basis of merit;

     • promote, amongst employers, the elimination of discrimination against, and
       the provision of equal opportunity for, women in relation to employment matters;
       and

     • to foster workplace consultation between employers and employees on issues
       concerning equal opportunity for women in relation to
       employment.^[230]

308. Its primary means of doing this is by requiring covered employers to develop
     a workplace program that is designed to ensure that:

     • appropriate action is taken to eliminate all forms of discrimination against
       women in relation to employment matters; and

     • measures are taken to contribute to the achievement of equal opportunity for
       women in relation to employment
       matters.^[231]

309. The EOWW Act defines ‘employment matters' to include:
     recruitment procedures and selection criteria, promotion, transfer and
     termination, training and development, work organisation, conditions of service,
     arrangements for dealing with sex based harassment of women and arrangements for
     dealing with pregnant or potentially pregnant employees and those breastfeeding
     their children.^[232]

310. Under s.8 of the EOWW Act, covered employers must:

     • confer responsibility for the development and implementation of the program
       on a person having sufficient authority and status within the management of the
       organisation;

     • consult with employees, particularly employees who are women; and

     • prepare a workplace profile and an analysis of issues relating to employment
       matters that need to be addressed in order to achieve equal opportunity for
       women in the workplace.

311. Workplace programs must provide for actions to be taken and an evaluation of
     the effectiveness or otherwise of actions
     taken.^[233]

Enforcement mechanisms

312. Generally, the EOWW Act has the weakest enforcement mechanisms.

313. A covered employer is required to submit a public report on the outcomes of
     their workplace program to the Equal Opportunity for Women in the Workplace
     Agency (EOWA) every 12
     months.^[234]

314. The report must describe the actions taken and planned to be taken to
     achieve equal opportunity for women in the employer's
     workplace.^[235] An evaluation of
     the effectiveness must either appear in the public report or in a confidential
     report.^[236]

315. The EOWA monitors the reports and can request further information from
     particular employers.^[237] The
     EOWA identifies those employers that fail to lodge an annual report or fail to
     provide further information when directed in an annual report to the Minister.
     The report is tabled in
     Parliament^[238] and made available
     on their website.

316. As noted above, the Australian Government Procurement Guidelines prevent
     Government departments from buying goods and services from, or entering into
     contracts with organisations identified in these
     reports.^[239] The Review of the
     Equal Opportunity for Women in the Workplace Act 1999: Issues Paper states
     further, that these organisations may also be ineligible for grants under
     specified industry assistance
     programs.^[240]

Equal
Opportunity for Women in the Workplace Agency

317. The EOWW Act is administered by the EOWA. The EOWA is a statutory authority
     located within the Australian Government Department of Families, Housing,
     Community Services and Indigenous Affairs. The Director of the EOWA is appointed
     by the Governor General^[241] and
     reports directly to the Minister for the Status of Women. The EOWA is to perform
     its functions in accordance with ‘general instructions given by the
     Minister in writing.'^[242]
318. In addition to its role in enforcing the EOWWA by monitoring and reporting
     on compliance with employer's workplace program reporting requirements
     discussed above, the EOWA also:
     • advises and assists employers develop and implement workplace programs;
     • collects, analyses and benchmarks information and provides personalised
       feedback and advice to organisations;
     • develops guidelines and tools;
     • monitors and evaluates the effectiveness of workplace programs in achieving
       purposes of EOWW Act;
     • undertakes research and educational programs to promote EEO for women in
       workplace;
     • promotes understanding and acceptance and public discussion of equal
       opportunity for women in the workplace through Award programs such as the
       Employer of Choice for Women Award and the EOWA Business Achievement
       Awards;
     • reviews the effectiveness of EOWW Act and reports to the Minister on matters
       in relation to EEO for women in the workplace; and
     • provides training and assistance to employers in establishing and developing
       workplace programs.^[243]

Sex Discrimination Act 1986 and
Sex Discrimination Commissioner/Australian Human Rights Commission

Protected attributes and areas

319. The SDA covers discrimination on the ground of
     sex,^[244] marital
     status,^[245] pregnancy or
     potential pregnancy,^[246] as well
     as family responsibilities.^[247] ‘Carer's responsibilities' is not covered by the SDA.

320. The SDA generally applies in all prescribed areas of public life, including
     goods and services,^[248] education,^[249] accommodation,^[250] land,^[251] clubs^[252] and the administration
     of Commonwealth laws and
     programs^[253] as well as
     employment^[254] and
     superannuation.^[255]

321. However, under the SDA, discrimination on the ground of family
     responsibilities is unlawful only where the discrimination is
     ‘direct' discrimination and only in dismissal from
     employment.^[256]

322. The Commission's records show that employment complaints represent a
     significant number of all sex discrimination complaints lodged at the
     Commission.^[257]

323. The SDA also prohibits sexual harassment in many areas of public
     life.^[258]

Coverage

324. The SDA covers all existing and prospective female employees except for
     existing and prospective State
     employees.^[259]

325. Unlike the EOWW Act, the SDA covers all Commonwealth female employees and,
     unlike the FWA, the SDA has a limited application to male
     employees.^[260]

Operative gender equality provisions

326. The SDA prohibits:

     • treating a person less favourably than a person of the opposite sex in the
       same or similar circumstances by reason of the person's sex (direct
       discrimination);^[261] and

     • imposing an unreasonable condition, requirement or practice that has, or is
       likely to have, the effect of disadvantaging persons of the same sex (indirect
       discrimination).^[262]

327. The SDA expressly prohibits both direct and indirect discrimination in all
     prescribed areas of public life, including in relation to employment:

     • in the arrangements made for the purpose of determining who should be
       offered employment;

     • in determining who should be offered employment;

     • in the terms and conditions on which employment is offered or afforded;

     • by denying the employee access, or limiting the employee's access, to
       opportunities for promotion, transfer or training, or to any other benefits
       associated with employment;

     • by dismissing the employee; or

     • subjecting the employee to any other
       detriment.^[263]

328. Sex discrimination is not unlawful in employment where a person's sex
     is a genuine occupational
     qualification.^[264]

329. At the present time, the SDA makes no provision for a general positive duty
     on employers or other bodies to prevent discrimination or promote gender
     equality. The SDA therefore has only a limited role to play in challenging
     systemic discrimination by working to overcome barriers that disadvantage women
     in the workplace.

330. In particular, the SDA has proved inadequate to promote flexible work
     arrangements for both women and men in the workplace. This is primarily because
     the prohibition against indirect discrimination does not extend to the ground of
     family responsibilities and the SDA's limited application to
     men.^[265]

331. The Australian Human Rights Commission and the SDC have some functions that
     seek to address systemic discrimination against women, which will be discussed
     below.^[266]

Enforcement
mechanisms

332. The SDA largely relies on individuals lodging complaints of direct and
     indirect discrimination but is supported by the SDC's functions as amicus
     curiae in discrimination
     proceedings^[267] and the
     Australian Human Rights Commission's inquiry and research
     functions.^[268]
333. Complainants must lodge a complaint with the Commission before seeking
     redress from the Federal Court or Federal Magistrates
     Court.^[269] The President
     inquires into and attempts to conciliate the complaints the Commission receives.
     If the complaint cannot be conciliated, it is terminated and a complainant may
     then lodge an application at the Federal Court or the Federal Magistrates
     Court.^[270]
334. The SDC may appear as amicus curiae in the Federal Court and Federal
     Magistrates Court, with leave of the court
     concerned.^[271]

Sex
Discrimination Commissioner and the Australian Human Rights
Commission

335. The office of the SDC is created by s.96 of the SDA. The Commissioner is
     appointed by the
     Governor-General^[272] and, by
     convention, the appointment is made on the advice of the Federal Attorney
     General.^[273] The gender of the
     person is not specified.

336. The SDC is currently also responsible for age discrimination. The President
     is solely responsible for the handling of complaints under the
     SDA.^[274]

337. Under the SDA, the majority of the functions and powers relevant to the SDA
     (and CEDAW) are not given to the SDC but to the
     ‘Commission'.^[275] The
     SDC is a member of the Commission, together with the President and Human Rights
     Commissioner, the Race Discrimination Commissioner, the Aboriginal and Torres
     Strait Islander Commissioner and the Disability Discrimination
     Commissioner.^[276]

338. The SDA sets out a range of functions to be carried out by the Commission,
     including:

     • Granting temporary
       exemptions;^[277]

     • Promoting understanding and acceptance of, and compliance with, the
       SDA;^[278]

     • Conducting research and education, and other programs on behalf of the
       Commonwealth;^[279]

     • Examining laws or (where requested by the Minister) proposed laws and
       reporting to the Minister;^[280]

     • Reporting to the Minister on new laws or action that should be taken by the
       Commonwealth about unlawful discrimination or sexual
       harassment;^[281]

     • Preparing non-legally binding
       guidelines;^[282] and

     • Intervening in any court proceedings, with leave of the
       court.^[283]
       

339. In addition to these functions under the SDA, the Commission also has
     general duties, functions and powers under the Australian Human Rights
     Commission Act which may be used to promote ‘human rights'.
     ‘Human rights' are defined to include ‘the rights and freedoms
     recognized in the ICCPR' including the right to non-discrimination and
     equality on the ground of
     sex.^[284]

340. The Commission also has the following human rights functions:

     • To examine laws which may be inconsistent with human rights and report to
       the Minister;^[285]

     • To report to the Minister about action that needs to be taken by Australia
       in order to comply with human
       rights;^[286] and

     • To inquire into any act or practice that may be inconsistent with or
       contrary to any human right, and, where appropriate, to attempt conciliation to
       effect a settlement, and in the absence of a settlement, to report to the
       Minister (although this function does not apply to an intelligence agency, such
       as ASIO).^[287]

341. The Commission has the following powers in relation to the exercise of its
     functions:

     • To do all things necessary or convenient to be done for or in connection
       with its functions;^[288]

     • To report to the Minister at its discretion on ‘any matter arising in
       the course of the performance of its functions' and an obligation to
       report to the Minster if requested by the Minister to do
       so;^[289]

     • To work with and consult appropriate persons, governmental organisations and
       non-governmental
       organisations;^[290] and

     • In relation to its formal human rights inquiry function, to require a person
       to give information or produce documents and to examine witnesses. Failure to
       comply constitutes an
       offence.^[291]

342. These functions are to be used across the full range of gender equality
     issues for women in Australia.

343. However, as previously noted in the Commission's Submission to the
     SDA Review, the Commissioner and the Commissioner are significantly
     constrained in the exercise of their powers and functions due to limited
     resources and competing
     priorities.^[292]

Fair Work Act 2009 and Fair Work
Australia and Ombudsman

Protected attributes and areas

344. The FWA covers a person's sex, marital status, family or carer's
     responsibilities and pregnancy, as well as race, colour, age, physical or mental
     disability, religion, political opinion, national extraction or social
     origin.^[293]

345. Unlike the SDA, the FWA includes the ground ‘carer's
     responsibilities' and the ‘family or carer's
     responsibilities' ground is not limited to termination. ^[294]

Coverage

346. The protections against workplace discrimination in the FWA apply to all
     existing and prospective employees^[295] of constitutionally covered
     entities^[296] as well as some
     State employees and prospective State
     employees.^[297]

347. Unlike the EOWW Act, the FWA applies to Commonwealth employees. Unlike the
     SDA, the FWA has equal coverage of men and women.

348. It is estimated that the FWA will cover approximately 85% of Australian
     employees.^[298]

Operative gender equality
provisions

Unlawful discrimination

349. The FWA discrimination provision prohibits a covered employer taking
     ‘adverse action' against an existing or prospective covered employee
     because of a protected
     attribute.^[299]

350. Adverse action
     includes:^[300]

     • 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.

351. As the FWA is remedial legislation, it is likely that ‘adverse
     action' will be interpreted broadly to cover a wide range of actions
     touching upon terms and conditions of employment, operation of workplace
     policies, training opportunities, access to promotions, other benefits
     associated with employment or any form of detriment.

352. There is an overlap between the concept of ‘adverse action' and
     the ‘discrimination in work' provisions in the
     SDA^[301] and ‘employment
     matters' in the EOWW
     Act^[302] outlined above.

353. ‘Adverse action' is not defined with reference to concepts of
     direct or indirect discrimination and is therefore potentially broader in scope
     than the SDA.

354. It is not yet clear to what extent it will extend to cover claims of
     indirect or systemic discrimination. However, it seems possible that courts
     would be open to treating an allegation of systemic bias or adverse outcome
     discrimination because of a prohibited attribute as coming within the scope of
     ‘adverse action'.

355. The Government's new national anti-discrimination information gateway
     states that:

     The discriminatory adverse action provisions of the
     Fair Work Act 2009 are extremely broad in scope, not differentiating between
     direct or indirect, inadvertent or deliberate discrimination.

     The Fair Work Ombudsman has a particular interest in investigating and
     addressing indirect and systemic workplace discrimination and discriminatory
     policies and
     practices.^[303]

356. The FWA also makes it unlawful for a person to take adverse action because
     another person has, or exercises a workplace
     right.^[304] A workplace right
     includes an entitlement under an industrial law, such as parental
     leave.^[305]

357. ‘Adverse action' will not be unlawful if the action taken is not
     unlawful under any of the federal or state anti-discrimination laws in
     force.^[306] This means that the
     exemptions under the SDA will apply equally to adverse action claims under the
     FWA.

358. Unlike the SDA, the onus of proof is reversed so that once a complainant has
     shown some evidence that the respondent took ‘adverse action' for a
     prohibited reason, the respondent has to establish that the conduct was not
     carried out unlawfully.^[307]

359. FWA also provides unlawful termination protections for all employees
     in Australia. The FWA makes it unlawful to terminate an employee's
     employment for sex, marital status, family or carer's responsibilities,
     pregnancy or absence from work during maternity leave or other parental leave
     reasons.^[308]

Positive
rights (flexible work arrangements)

360. The FWA provides for ten national employment standards that will act as a
     minimum safety net for all employees under the federal system from 1 January
     2010.^[309]

361. The standards that will help both male and female workers better accommodate
     their family responsibilities are:

     • a right to request flexible working arrangements for the care of a child who
       is under school age or a child under 18 with a
       disability;^[310]

     • a right to 12 months unpaid parental leave for each
       parent;^[311]

     • request for extra parental leave up to 12
       months;^[312]

     • a right to paid and unpaid personal/carer's leave and compassionate
       leave;^[313]and

     • an obligation on employers to take an employee's family
       responsibilities into account when requiring them to work
       overtime.^[314]

362. Many of the entitlements are framed as positive, enforceable rights. This is
     in contrast to the SDA, which is framed in terms of prohibitions on unlawful
     behaviour.^[315]

363. However, the right to request flexible work arrangements and the right to
     unpaid parental leave is limited – it applies only to children under
     school age, it does not apply to workers unless they have at least 12 months
     continuous service^[316] and also,
     in the case of casual workers, a reasonable expectation of continuing
     employment.^[317]

364. Employees will not be able to challenge an employer's decision to
     refuse:

     • a request for flexible work arrangements on reasonable
       grounds;^[318] and

     • a request for extended parental leave on reasonable business
       grounds.^[319]

Equal remuneration

365. The FWA provides Fair Work Australia with the power to make an order it
     considers appropriate to ensure that there will be equal remuneration for men
     and women workers for work of equal or comparable value in relation to employees
     to whom the order will
     apply.^[320]

366. Importantly, it is no longer necessary for an applicant to demonstrate that
     there has been some discrimination involved in the setting of remuneration.
     Instead, Fair Work Australia need only be satisfied that there is not equal
     remuneration for work of equal or comparable
     value.^[321]

367. Further, the FWA prohibits discriminatory terms in modern
     awards^[322] and Fair Work
     Australia may vary modern award minimum wages on ‘work value'
     grounds.^[323]

Enforcement mechanisms

368. The FWA is enforced through both individual complaints as well as the broad
     powers of the Fair Work Ombudsman to investigate breaches and institute legal
     proceedings. It has the strongest enforcement mechanisms of the three federal
     Acts.

369. Fair Work Australia provides conciliation services which are compulsory for
     dismissal claims^[324] and
     voluntary for all other kinds of discrimination
     claims.^[325]

370. The Fair Work Ombudsman may appoint Fair Work
     Inspectors.^[326] Unlike the
     Australian Human Rights Commission, the Fair Work Ombudsman can use workplace
     inspectors and the powers conferred on inspectors to access premises and obtain
     relevant documents.^[327]

371. Under the FWA, Fair Work Inspectors may enter business premises without
     force and:

     • inspect any work, process or object;

     • interview any person;

     • require a person to tell the inspector who has custody or access to a record
       or document;

     • require a person to produce a record or document;

     • inspect and make copies of records or documents that is kept on the premises
       or accessible from any computer on the premises; or

     • take any samples of any goods or
       substances.^[328]

372. Fair Work Inspectors may also issue compliance notices if an inspector
     reasonably believes that a person has contravened the FWA or a Fair Work
     Instrument, including amongst other things, the provisions of the National
     Employment Standards or an equal remuneration
     order.^[329]

     A
     compliance notice may require the person to take action to remedy the direct
     effects of the contravention and/or produce reasonable evidence of the
     person's compliance with the
     notice.^[330]

     The Fair Work Ombudsman may also commence proceedings or represent employees
     in court or in applications before Fair Work
     Australia.^[331]

Fair Work Australia and Fair Work
Ombudsman

373. Fair Work Australia replaces the former Australian Industrial Relations
     Commission. It is the national workplace relations tribunal with specific
     dispute resolution functions under the FWA.

374. Fair Work Australia has functions under the FWA in relation to:

     • the national minimum standards;^[332]

     • modern awards;^[333]

     • workplace determinations;^[334]

     • minimum wages;^[335]

     • equal
       remuneration;^[336]

     • granting remedies for unfair
       dismissal;^[337]

     • regulating the taking of industrial
       action;^[338]

     • resolving a range of collective and individual workplace disputes through
       conciliation, mediation and in some cases
       arbitration.^[339]

375. Fair Work Australia also has the function of providing assistance and advice
     about its functions and
     activities.^[340]

376. Fair Work Australia has the following powers to inform itself in relation to
     any matter before it:

     • requiring a person to attend before it;

     • inviting oral or written submissions;

     • requiring a person to provide copies of documents or records, or to provide
       any other information to FWA;

     • taking evidence under oath or affirmation in accordance with the regulations
       (if any);

     • requiring an FWA Member, a Full Bench or the Minimum Wage Panel to prepare a
       report;

     • conducting inquiries;

     • undertaking or commissioning research;

     • conducting a conference; or

     • holding a
       hearing.^[341]

377. The FWA also creates the office of the Fair Work Ombudsman which is an
     independent statutory office.^[342] The FWO is appointed by the Governor General and must prepare an annual report
     for presentation to federal parliament. The FWO has extensive systemic powers of
     enforcement, including to:

     • monitor compliance with the FWA and Fair Work Instruments;

     • inquire into and investigate practices contrary to the FWA;

     • commence proceedings in court or make applications to Fair Work
       Australia;

     • promote compliance with the FWA;

     • provide education, assistance and advice to employees, employers,
       outworkers, outworkers entities and organisation;

     • monitor compliance with the FWA and fair work instruments;
       and

     • referring matters to relevant
       authorities.^[343]

378. The FWA does not confer any specific functions on the Fair Work Ombudsman to
     investigate or conciliate discrimination claims.

Australian Government Office of
Work and Family

379. The Office of Work and Family resides in the Department of Prime Minister
     and Cabinet. The role of the Office of Work and Family is to ensure that the
     formulation of policies in balancing work and family life takes place at the
     highest level and is central to Government policy decisions.

380. The Office of Work and Family provides support for government policies on
     child care and early childhood education and produces an annual State of the
     Family Report.^[344]

Australian Government Office for
Women

381. The Office for Women is a gender specific office of the Australian
     Government which is located within FAHCSIA. Its role is to influence policy and
     decision-making to ensure women's interests are considered, to act as the
     central source of advice for Government agencies on policies and programs for
     Australian women.^[345]

382. The Office for Women also provides high level advice to the Minister for the
     Status of Women and administers programs relating to women, represents the
     Australian Government in national and international forums on women's
     issues and provides support for trafficking victims.

9.3 Appendix 3:
Comparative Gender Equality Laws and Institutional Arrangements in the UK,
Canada, New Zealand and Norway

United
Kingdom

383. There are three key pieces of national legislation relevant to sex
     discrimination and gender equality in the United Kingdom: the Equal Pay Act
     1970; Sex Discrimination Act 1975 and Equality Act 2006. The
     Government Equalities Office has responsibility for the equalities policy and
     legislation.^[346] The Human
     Rights Act 1998 (HRA) also makes provision for non-discrimination and
     equality, including in respect of gender.

384. In April 2009 the Equality Bill 2009 was introduced in the House of
     Commons.^[347] The United Kingdom
     Government hopes the Bill will receive Royal Assent in spring 2010 with the
     majority of its provisions taking effect in October 2010. ^[348] The Bill, if passed, will
     consolidate all United Kingdom discrimination legislation, increase protection
     for women and extend enforcement mechanisms for sex discrimination and
     equality. ^[349]

The National
Human Rights Institution

385. The Commission for Equality and Human Rights (‘EHRC') was
     established by the Equality Act 2006 (UK) and commenced operation on 1
     October 2007.

386. The EHRC continues the work of the three previous equality commissions in
     the United Kingdom (the Equal Opportunities Commission, the Commission for
     Racial Equality, and the Disability Rights Commission). It has also taken on
     responsibility for promoting human rights and equality, and combating unlawful
     discrimination in three new strands: age, sexual orientation and
     religion or belief. The EHRC also encourages compliance with the HRA.

387. The EHRC has jurisdiction over England, Wales and some human rights issues
     in Scotland and liaises with the Equality Commission for Northern Ireland which
     has the equivalent equality jurisdiction for that
     region.^[350]

388. The EHRC describes itself as ‘the independent advocate for equality
     and human rights in
     Britain'.^[351] It aims to
     reduce inequality, eliminate discrimination, strengthen good relations between
     people, and promote and protect human
     rights.^[352] The EHRC enforces
     equality legislation on age, disability, gender, gender assignment, race,
     religion or belief, sexual orientation and encourages compliance with the Human
     Rights Act. It also gives advice and guidance to businesses, the voluntary and
     public sectors and to
     individuals.^[353]

389. The EHRC is a non-departmental public body which is accountable for its
     public funds, but independent of
     government.^[354] It has a range
     of powers to support its promotional work, as well as specific powers relating
     to the enforcement of discrimination (but not human rights) legislation. ^[355]

Anti-discrimination Framework

390. The EHRC may investigate whether an unlawful act of discrimination or
     harassment has occurred.^[356] It
     need only suspect that an unlawful act of discrimination or harassment has taken
     place in order to commence the
     investigation.^[357] The EHRC has
     the power to compel evidence for
     investigations.^[358]

391. Following an investigation, if the EHRC concludes that unlawful
     discrimination or harassment has taken place, it may issue an ‘unlawful
     act notice'.^[359] This
     notice can require the recipient to prepare an action plan setting out the steps
     they will take to stop or rectify the discrimination and may include recommended
     action.^[360] If the person does
     not comply with the action plan, the EHRC may then apply to the courts to
     enforce it.^[361]

392. Alternatively, where a person is willing to work with the EHRC to achieve
     improvement, they can enter into a binding agreement with
     it.^[362] An agreement may be made
     before, during or after an investigation if the EHRC thinks unlawful
     discrimination or harassment has
     occurred.^[363] In exchange
     for the EHRC's agreement not to investigate the matter further, the
     agreement may include a commitment to take, or refrain from taking, a specified
     action such as best practice
     audits.^[364] If the EHRC thinks
     the person may not comply or has not complied with any part of the agreement, it
     can apply to the courts to enforce the
     agreement.^[365]

393. The EHRC also has the power to investigate whether or not an unlawful act
     notice or binding agreement is being complied with and it can compel evidence to
     this investigation.^[366]

Positive Duties

394. The Gender Equality Duty (‘GED') came into force in the United
     Kingdom in April 2007.^[367] It
     places a legal obligation on all public authorities to identify and eliminate
     discrimination and harassment, and to proactively promote equality of
     opportunity.

395. All prescribed public authorities are required to prepare and publish a
     gender equality scheme showing how it intends to fulfil its
     GED.^[368] Prescribed public
     authorities are required to implement their gender equality schemes within 3
     years unless it would be unreasonable or impracticable for it to perform the
     requirement.^[369]

396. Prescribed public authorities are also required to review their gender
     equality scheme and publish a revised gender equality scheme every 3
     years.^[370] Further, prescribed
     public authorities must publish an annual report summarising the actions taken
     toward the achievement of its
     GED.^[371]

397. The EHRC enforces the GED by issuing notices to comply if it thinks a public
     authority is failing to comply with the
     GED.^[372] The EHRC may apply to
     the County Court for an order requiring compliance if the public authority fails
     to comply with the EHRC's
     notice.^[373]

Legal proceedings

398. In addition to the EHRC powers to investigate and enforce
     anti-discrimination laws, individuals also have the power to institute legal
     proceedings for breaches of anti-discrimination laws. Claims of unlawful
     discrimination in employment may be lodged with an employment
     tribunal^[374] and proceedings for
     unlawful discrimination in education and training, housing, public
     administration and the provision of goods, facilities and services, may be
     instituted in court.^[375]

399. Only the EHRC can institute legal proceedings against a person for
     discriminatory advertisements and for pressuring or instructing another to
     undertake unlawful
     discrimination.^[376]

Conciliation

400. While conciliation is not a compulsory step in resolving complaints of
     unlawful discrimination, the EHRC is empowered to arrange conciliation services
     in disputes related to discrimination in education and training, housing, public
     administration and the provision of goods, facilities and
     services.^[377] Conciliation is
     delivered by an independent provider to ensure that information about the case
     does not become available to EHRC, which could potentially be involved in
     supporting a case where conciliation broke down or in formal enforcement
     proceedings against a
     discriminator.^[378]

401. The Advisory, Conciliation and Arbitration Service (an independent body that
     is accountable for its public funds) provides free conciliation for
     discrimination in employment
     matters.^[379]

Injunctions

402. If the EHRC thinks that a person is likely to commit an act of unlawful
     discrimination, it may apply to the court for an injunction to prevent
     them.^[380]

Third Party Interventions

403. The EHRC is able to seek leave to intervene in court cases which may have an
     equality or human rights dimension to provide the court with expert
     knowledge.^[381]

Supporting
complainants

404. The EHRC has the power to provide any form of assistance to individuals
     bringing legal proceedings under anti-discrimination legislation (but not the Human Rights Act 1998 (UK)).^[382] There are no
     statutory criteria limiting the EHRC's support for individual
     complainants. This support may include financial assistance or legal advice or
     representation.^[383]

Pay Equity Framework

405. The Equal Pay Act 1970 (UK) makes it unlawful for employers to
     discriminate between male and female employees in terms of pay and conditions
     where they are doing the same or similar work, work rated as equivalent, or work
     of equal value.^[384] This
     legislation covers not just wages and salaries, but bonuses, overtime, holiday
     pay, sick pay, performance related pay, travel concessions and occupational
     pensions.^[385]

406. Complaints of unequal pay may be brought before an employment
     tribunal.^[386]

407. The National minimum wage, overseen by the Low Pay Commission, has had a
     significant effect on the gender pay gap among the low paid in the
     UK.^[387]

Additional Commission
Powers

Independent Monitoring

408. The EHRC is charged with defining (in consultation with interested parties)
     and monitoring progress on equality and human rights in the United
     Kingdom.^[388] Every three years
     it must publish a report which is laid before Parliament outlining the extent of
     progress towards
     equality.^[389]

Codes
of Practice

409. The EHRC may issue statutory codes of practice in relation to any aspect of
     pay equity, unlawful sex discrimination and the
     GED.^[390] Codes of practice
     explain the requirements of the law and are designed to assist business and the
     public sector to understand their legal responsibilities and recommend good
     practice.

410. The EHRC can prepare new codes either on its own initiative or at the
     request of the relevant Secretary of
     State.^[391] It must consult with
     interested parties before it issues a code and must publish proposals for a code
     so that members of the public can provide input on those
     proposals.^[392] The code must be
     approved in draft by the Secretary of State and laid before the
     Parliament.^[393] If neither House
     of Parliament passes a resolution disapproving the draft code within 40 days,
     the code comes into force.^[394]

411. Failure to comply with a code of practice does not itself give rise to
     criminal or civil proceedings, but may be admissible in such
     proceedings.^[395] Courts and
     tribunals are required to take relevant codes of practice into account when
     determining if unlawful discrimination has
     occurred.^[396]

Assessments, Inquiries and Investigations

412. The EHRC may make an assessment as to the extent to which or the manner in
     which a public authority has complied with duties to eliminate
     discrimination.^[397] The EHRC is
     also able to conduct inquiries into any matter relating to its
     duties.^[398] Inquiries may be
     thematic or in relation to one or more named parties.

413. The EHRC may investigate whether or not a person has committed an unlawful
     act, complied with a requirement imposed by an unlawful act notice or complied
     with an agreement to an
     undertaking.^[399]

414. The EHRC may initiate inquiries, assessments and investigations
     independently or at the request of the Secretary of
     State.^[400] The EHRC is required
     to publish terms of reference before launching an inquiry, assessment or
     investigation^[401] and is required
     to publish reports at the end of the inquiry, assessment or investigation
     process, which may include recommendations for
     change.^[402] The EHRC may compel
     evidence relevant to an inquiry, assessment or
     investigation.^[403]

Third Party Interventions

415. The EHRC is able to seek leave to intervene in court cases which may have an
     equality or human rights dimension to provide the court with expert
     knowledge.^[404]

Equality
Bill 2009

416. In April 2009 the Equality Bill 2009 was introduced in the House of Commons.
     The Equality Bill 2009 will consolidate all United Kingdom discrimination
     legislation replacing the nine major pieces of discrimination legislation with
     one Act.

417. The Equality Bill, if passed, will impose a Public Sector Equality Duty on
     certain public authorities.^[405] The existing framework for equality places three separate duties on public
     authorities: a Race Equality
     Duty^[406], a Disability Equality
     Duty^[407] and a Gender Equality
     Duty.^[408] The Equality Bill 2009
     will place just one equality duty on public authorities that covers the nine
     protected attributes of sex, maternity and pregnancy, marriage and civil
     partnership, disability, race, age, gender reassignment, sexual orientation,
     religion or belief.^[409]

418. The Equalities Office is currently running a consultation on making the
     Equality Bill work, including the introduction of a specific duty, which will be
     contained in secondary legislation, requiring all public bodies with 150 or more
     employees to report annually on their gender pay gap, their ethnic minority
     employment rate and their disability employment
     rate.^[410]

419. The Equality Bill 2009, if passed, will also provide a Minister of the Crown
     with the power to make regulations requiring private sector employers with at
     least 250 employees to publish information about the differences in pay between
     their male and female employees. ^[411] The regulations may specify the
     form and timing of the publication, which will be no more frequently than
     annually. Further the regulations may specify penalties for non-compliance,
     including civil enforcement procedures or liability for criminal offences
     punishable by fines of up to ₤5,000. The Government has however stated
     that its aim is for employers to regularly publish information on a voluntary
     basis. The Government does not intend to make regulations under this power
     before April 2013 in order to allow voluntary gender pay reporting arrangements
     time to work.^[412] The power would
     only be used if sufficient progress on reporting had not been made by that
     time. ^[413]

420. The EHRC is currently running a consultation on private sector gender pay
     reporting in order to determine the least burdensome way for employers to report
     on gender pay inequality.^[414]

421. The Equality Bill 2009 also contains a provision that will make contractual
     secrecy clauses that prevent employees discussing their pay with colleagues
     unenforceable. ^[415] Further,
     being involved in a relevant pay discussion will be a protected act for the
     purposes of the relevant victimisation
     provisions.^[416] If passed, the
     Equality Bill 2009 will also extend the use of positive action in the
     workplace.^[417]

422. The Equality Bill 2009, if passed, will also extend the recommendation
     powers of Employment Tribunals so that recommendations can be made for the
     benefit not only of the individual claimant but also others who may be affected
     by the act of discrimination.^[418] The EHRC will be notified of any recommendations made by the Employment Tribunal
     and will be able to monitor its implementation using its existing
     powers.^[419]

New
Zealand

423. There are five pieces of national legislation relevant to gender equality
     and sex discrimination in New Zealand: the New Zealand Bill of Rights Act 1990
     (NZ), the Human Rights Act 1993 (NZ), the Equal Pay Act 1972 (NZ) and
     the Employment Relations Act 2000 (NZ) and the State Sector Act 1988 (NZ), which
     contains the ‘good employer' responsibilities relating to the public
     sector.^[420]

424. The national human rights institution has a role in the country's
     anti-discrimination framework, pay equity framework and a role in monitoring
     progress towards equality, preparing guidelines and voluntary codes of practice,
     and conducting inquiries. There is also a Ministry of Women's Affairs,
     whose mission is to be a source of advice on ways to improve the lives of
     women.^[421]

National
Human Rights Institution

425. New Zealand's Human Rights Commission (‘NZHRC') was
     established by the Human Rights Commission Act 1977 (NZ). It is
     independent of government but accountable for its public funds.

426. The NZHRC's primary functions are:

     • to advocate and promote respect for, and an understanding and appreciation
       of, human rights in New Zealand society; and

     • to encourage the maintenance and development of harmonious relations between
       individuals and among the diverse groups in New Zealand
       society.^[422]

427. The Human Rights Amendment Act 2001 (NZ) established the position of
     the Equal Employment Opportunities Commissioner within the NZHRC. The role of
     the Equal Employment Opportunities Commissioner includes monitoring and
     analysing progress in improving equal employment opportunities, and leading
     discussions about equal employment opportunities (including pay
     equity).^[423]

Anti-discrimination
Framework

428. A person has a right to be free from discrimination under the New Zealand
     Bill of Rights Act 1990 (NZ)^[424] and the Human Rights
     Act 1993 (NZ).^[425]

429. The NZHRC seeks to provide a mediated settlement for complaints of unlawful
     discrimination. If a settlement cannot be reached, the complainant or the NZHRC
     may institute legal proceedings in the Human Rights Review
     Tribunal.^[426]

430. The Office of Human Rights Proceedings is an independent part of the Human
     Rights Commission. In certain circumstances, it provides free legal
     representation before the Human Rights Review Tribunal for people who have
     complained of unlawful
     discrimination.^[427]

431. Where an individual alleges unlawful discrimination in employment, as an
     alternative^[428] to lodging a
     complaint with the NZHRC, they may pursue the matter as a ‘personal
     grievance' under the Employment Relations Act 2000 (NZ).^[429] That is, the individual
     must first send a written complaint to their employer then, if unsatisfied with
     the response, they may lodge their complaint with the Employment Relations
     Authority and undergo mediation. If still unresolved, the complaint is then
     investigated by the Authority.

Pay Equity
Framework

432. The Equal Pay Act 1972 (NZ) provides that employers must afford
     employees the same terms and conditions of employment including pay and fringe
     benefits, as are made available to people of the same or substantially similar
     qualifications employed in the same or substantially similar circumstances on
     work of that description regardless of
     sex.^[430]

433. Complaints of unequal employment conditions or pay may be lodged with the
     Employment Relations Authority for resolution. ^[431] Alternatively, the complaint can
     be brought to the NZHRC as an allegation of unlawful discrimination in
     employment under the Human Rights Act 1993. The complainant may only
     undertake one of these two options.

434. The Employment Equity Act (NZ) passed in 1990 was promptly repealed
     by the incoming National Government later in the same year and has not been
     replaced.

Additional Commission
Powers

Independent Monitoring

435. One of the New Zealand Human Rights Commission's (NZHRC) functions is
     to develop and use benchmarks to evaluate the role regulation plays in
     facilitating and promoting best practice in equal employment opportunities.
     Every two years the NZHRC publishes a census on the representation and status of
     women in leadership and decision-making roles in the public sector, corporate,
     legal, academia, politics and other fields. ^[432]

Guidelines and Voluntary Codes of Practice

436. The NZHRC may prepare and publish guidelines and voluntary codes of practice
     to explain legal rights and responsibilities under the Human Rights Act
     1993 (NZ) and to promote best practice in equal employment
     opportunities.^[433]

Inquiries

437. The NZHRC may inquire into any matter including any law, practice or
     procedure (governmental or non-governmental) where it thinks human rights might
     be, or have been, infringed.^[434] The NZHRC may apply to the court to compel evidence relevant to the
     inquiry.^[435] If such an inquiry
     discloses or may have disclosed a breach of human rights, the NZHRC is empowered
     to bring civil proceedings before the Human Rights Review
     Tribunal.^[436]

Third
Party Interventions

438. The NZHRC has the power to apply to a court or tribunal to be appointed as
     intervenor or as counsel assisting the court or tribunal, or to take part in
     proceedings before the court or
     tribunal.^[437] The NZHRC may
     exercise this power if it thinks taking part in those proceedings will
     facilitate its role in advocating for human rights and the promotion and
     protection, respect for, and observance of, human
     rights.^[438]

Canada

439. There are two key pieces of national legislation relevant to sex
     discrimination and gender equality in Canada: the Canadian Human Rights Act, RS
     1985, c H-6 and the Employment Equity Act, 1995, c 44. The national human
     rights institution has a role in the country's anti-discrimination
     framework, pay equity framework, proactive duties framework and a role in
     preparing guidelines.

The National Human Rights
Institution

440. The Canadian Human Rights Commission (‘CHRC') was established by
     the Canadian Human Rights Act 1985.^[439]

441. The CHRC investigates and attempts to settle complaints of discriminatory
     practices in employment and in the provision of services. It is also
     responsible for ensuring that employers provide equal opportunities for
     employment to women, Aboriginal people, people with disabilities, and members of
     visible minorities. Further, the CHRC is mandated to develop and conduct
     information programs and discrimination prevention
     programs.^[440]

Anti-discrimination Framework

442. The CHRC receives and seeks to provide a mediated settlement for complaints
     of alleged discriminatory
     practices^[441] by federally
     regulated organisations (including government agencies, unions, banks and
     airlines).^[442] Complaints
     against other organisations must be dealt with by provincial and territory human
     rights commissions. If the CHRC has reasonable grounds for believing a
     discriminatory practice has occurred, it may initiate a complaint
     itself.^[443]

443. The CHRC may apply for a warrant to search premises for evidence relevant to
     an investigation of a
     complaint.^[444]

444. A complaint can only be settled if the CHRC approves the terms of the
     settlement.^[445] If the CHRC is
     unable to mediate a settlement and it considers that further inquiry is
     warranted, it may refer the complaint to the Human Rights Tribunal for
     hearing.^[446] The Tribunal is
     independent of the CHRC. Any interested party can intervene in a Tribunal
     inquiry.^[447]

445. If the complaint is found to be substantiated, the Tribunal can make an
     order that a person take measures to redress the discrimination or prevent its
     continuation.^[448] For example,
     the order may require a person to compensate the victim or to adopt a special
     program, plan or arrangement to improve opportunities to a particular group of
     people such as people with disability or
     women.^[449] The Tribunal's
     order may also require the payment of additional compensation if the act is
     found to have been made wilfully or
     recklessly.^[450] The
     Tribunal's order can be made an order of the Federal Court and enforced as
     such.^[451] The Tribunal's
     final report on a complaint (which may include recommendations) is submitted to
     the Minister of Justice.^[452]

Pay equity framework

446. The Canadian Human Rights Act provides for equal pay between male and
     female employees in the same establishment performing work of equal
     value.^[453] This protection
     extends to commissions, vacation pay, bonuses and any other advantage received
     directly or indirectly from an
     employer.^[454] The Equal Wages
     Guidelines 1986 set out the criterion to be applied to determine whether work is
     ‘of equal value'. ^[455]

447. Complaints of unequal pay by federally regulated organisations may be made
     to the CHRC.^[456] The CHRC and
     the Human Rights Tribunal deal with these complaints in the same way as
     complaints of discriminatory practices.

Positive
Duties

448. The Employment Equity Act 1995 requires employers in the public
     sector and federally regulated private
     sector^[457] to proactively
     implement employment equity by:

     • identifying and eliminating employment systems, policies and practices which
       act as barriers to women, Aboriginal people, people with disability and members
       of visible minorities, and

     • instituting positive policies and practices and make reasonable
       accommodations to ensure women, Aboriginal people, people with disability and
       members of visible minorities are represented to the same degree in their
       workforce, as they are represented in the wider, national
       workforce.^[458]

449. Specifically, employers are required to:

     • analyse the degree of representation of women, Aboriginal people, people
       with disability and visible minorities in their
       workforce^[459]

     • analyse and review their employment systems, policies and
       practices^[460]

     • prepare, implement, monitor and periodically review and revise an employment
       equity plan to progress towards greater equity in the
       workforce^[461]

     • provide information to their employees explaining the purpose of employment
       equity and the measures the employer is taking to progress towards employment
       equity, and ^[462]

     • establish and maintain records regarding employment
       equity.^[463]

450. Every year employers must report on their progress in achieving a truly
     representative workforce.^[464] Reports are consolidated and tabled in
     Parliament.^[465]

451. The CHRC is responsible for monitoring, enforcing and reporting on the
     performance of employers' obligations under the Employment Equity Act. The Commission conducts employment equity audits to assess whether
     employers are meeting their positive
     duties.^[466] If an
     employer cannot demonstrate compliance with their legislation obligations, the
     CHRC attempts to negotiate a written undertaking that they will remedy the
     situation.^[467] If
     this approach fails, the CHRC may issue a
     Direction.^[468] If an
     employer fails to comply with a Direction, the CHRC may refer the matter to the
     Employment Equity Review Tribunal for
     determination.^[469]

Guidelines

452. The CHRC has the power to issue guidelines “on application” or
     by its own initiative.^[470] Guidelines are published in the Canada Gazette and
     binding.^[471]

Norway

453. There are several key pieces of national legislation relevant to sex
     discrimination and gender equality in Norway, for instance: the Gender
     Equality Act 1978, the Public Limited Companies Act 1997 and
     the Local Government Act 1992. The national equality and
     anti-discrimination institution has a role in the country's
     anti-discrimination framework, pay equity framework, proactive duties framework
     and quota framework.

454. A proposal for a compiled and more comprehensive anti-discrimination Act has
     been made in 2009 by a commission appointed by the Norwegian Government. ^[472] The proposed Act shall include
     gender, ethnicity, disability, sexual orientation, age and other grounds of
     discrimination, and replace existing discrimination laws such as the Gender
     Equality Act 1978.

455. In 2008, Norway had the narrowest gender gap in the world, according to the
     overall ranking in the World Economic Forum's Global Gender Gap Report
     2008.^[473]

The
National Equality and Anti-Discrimination Institutions

456. The Equality and Anti-Discrimination Ombud and the Equality and
     Anti-Discrimination Tribunal Act 2005 established the Equality and
     Anti-discrimination Ombud (“Ombud”) and the Equality and
     Anti-Discrimination Tribunal (“Tribunal”) on 1^st January
     2006. These institutions replace the Gender Equality Ombudsman and the Gender
     Equality Tribunal established in 1979. Both the Ombud and the Tribunal are
     independent of government but accountable for their public funds.

457. The Ombud has the power to investigate and give an opinion as to whether a
     matter is in contravention of the Act 1978, as well as other
     discrimination acts such as the Anti-Discrimination and Accessibility Act
     2008, the Anti-Discrimination Act 2005 and chapter 13 in the Working Environment Act 2005 (discrimination on grounds of disability,
     ethnicity, religion and belief, sexual orientation, age and political
     views). ^[474] The Ombud shall
     seek to secure the parties' voluntary compliance with this opinion. ^[475] If a voluntary arrangement
     cannot be reached the Ombud or one of the parties may bring the case before the
     Tribunal which can make an administratively binding decision. Such decisions can
     however be overruled by a
     court.^[476] If the parties do not
     voluntarily comply with the opinion of the Ombud and waiting for an
     administrative decision by the Tribunal will cause inconvenience or have a
     harmful effect, the Ombud may make the administrative
     decision.^[477] The Ombud's
     administrative decision may be appealed to the Tribunal. ^[478]

458. The Tribunal may order an act to be stopped or remedied and may set a time
     limit for compliance with the
     order.^[479] If the time limit is
     exceeded the Tribunal may impose a fine which begins to run when the time limit
     for complying with the order is exceeded and shall normally run until the order
     has been complied with.^[480] A
     decision of the Tribunal may be overruled by a court of law. ^[481]

Anti-discrimination
Framework

459. Direct or indirect differential treatment of women and men is not
     permitted.^[482] Affirmative action
     in favour of one of the sexes to promote the Acts legislative purpose is
     permitted.^[483]

460. The Ombud receives, investigates and provides statements for complaints of
     alleged discrimination. If the complaint is found to be substantiated the Ombud
     can make a statement that a person take measures to redress the discrimination
     or prevent its continuation and may order
     compensation.^[484]

Pay Equity Framework

461. The Gender Equality Act 1979 provides for equal pay between male and
     female employees for the same work or work of equal value regardless of whether
     such work is connected with different trades or professions or whether the pay
     is regulated by different collective wage
     agreements.^[485]

462. Complaints regarding gender equality may be made to the
     Ombud.^[486] A decision of the
     Ombud may be appealed to the Equality and Anti-Discrimination
     Tribunal.^[487]

Positive
Duties

463. The Gender Equality Act 1979 places a duty on public
     authorities to make active, targeted and systematic efforts to promote gender
     equality in all sectors of society and a duty on employers to make active,
     targeted and systematic efforts to promote gender equality within their
     enterprise.^[488] The Ombud does
     not enforce this duty.

464. Enterprises that are subject to a statutory duty to prepare an annual report
     are required to give an account of the actual state of affairs as regards gender
     equality in the enterprise, measures implemented and measures that are planned
     to be implemented in order to promote gender equality. ^[489] Public authorities and public
     enterprises that are not obliged to prepare an annual report shall give a
     corresponding account in their annual
     budget.^[490]

Quotas

465. The Gender Equality Act 1979 requires at least a 40% representation
     of each sex in all public
     committees.^[491]

466. Further, Act 19 2003 amending the Public Limited Companies Act
     1997 requires 40% representation of each sex on the board of all
     state^[492] and
     private^[493] public limited
     companies. The law entered into force on 1 January 2004 for state-owned
     companies and 1 January 2006 for public limited companies. All companies were
     given a two year period of transition to comply with the law from these dates.
     Contravention of the Public Limited Companies Act 1997 is punishable by
     fines or under aggravating circumstances with imprisonment of up to one
     year. ^[494] Complicity is
     punishable in the same way.^[495]

467. All new public limited companies must comply with these rules or the
     Register of Business Enterprises will refuse to register a company
     board.^[496] A company which does
     not have a board that fulfils the statutory requirements may be dissolved by
     order of the court.^[497] The King
     (the Ministry) can however decide that a forced dissolution shall not be
     executed because of ‘substantial public
     interests'.^[498] In such
     cases, the company will have to pay a compulsory fine until the conditions are
     in accordance with the
     law.^[499]

468. The Local Government Act 1992 requires gender balance in
     popularly elected bodies - both sexes shall be represented by 40
     %.^[500] A rule requiring
     administrative boards in Municipal private limited companies that are 2/3 owned
     by the Municipality to have both sexes represented by 40% has just been adopted
     in the Local Government Act 1992 but has not yet entered into force.

469. In the yearly state budget every ministry has to report gender budgeting. ^[501] This implies that the
     ministries have to show what consequences proposals and decisions have for women
     and men. This gender budgeting will often show that equal political measures can
     give unequal results for men and women, and therefore have unintended
     discriminatory results. ^[502]
     

^[1] The Australian Human Rights
Commission was until recently known as the Human Rights and Equal Opportunity
Commission. In this submission, all references to documents produced prior to
this change retain the name they were originally published
under.

^[2] Human Rights and Equal
Opportunity Commission, It's About Time: Women, Men, Work and
Family (2007). At www.humanrights.gov.auhttps://humanrights.gov.au/our-work/commission-general/broken-link?humanrights+our+work+sex+discrimination+publications+its+about+time (viewed 31 August 2009).

^[3] Human
Rights and Equal Opportunity Commission, What matters to Australian women and
men: Gender equality in 2008: the Listening Tour Community Report (2008). At www.humanrights.gov.auhttps://humanrights.gov.au/our-work/sex-discrimination (viewed 28 October 2009).

^[4] Human
Rights and Equal Opportunity Commission, Submission to to the Productivity
Commission on the Inquiry into Paid Maternity, Paternity and Parental Leave (June 2008). At www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 28 October 2009); Human Rights and Equal Opportunity Commission, Submission to to the Productivity Commission on the Inquiry into Paid
Maternity, Paternity and Parental Leave (November 2008). At www.humanrights.gov.auhttps://humanrights.gov.au/our-work/commission-general/broken-link?humanrights+our+work+legal+submission+paid+maternity+leave (viewed 28 October 2009).

^[5] Human
Rights and Equal Opportunity Commission, Submission to the House of
Representatives Standing Committee on Family, Community, Housing and Youth
Inquiry into Better Support for Carers (2008). At www.humanrights.gov.au/legal/submissions/2008/20080715_carers.html (viewed 28 October 2009).

^[6] Human
Rights and Equal Opportunity Commission, Submission to the Senate Legal and
Constitutional Affairs Committee Inquiry into the Effectiveness of the Sex
Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender
Equality (2008). At www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 28 October
2009).

^[7] Australian Human Rights
Commission, Submission to the House of Representatives Standing Committee on
Employment and Workplace Relations on the Inquiry into Pay Equity and associated
issues related to increasing female participation in the workforce (2008).
At www.humanrights.gov.au/legal/submissions/2008/20080923_pay_equity.html#Heading368 (viewed 26 October 2009).

^[8] Australian Human Rights Commission, Submission to the Review Panel on
Australia's future tax system (2009). At www.humanrights.gov.auhttps://humanrights.gov.au/our-work/commission-general/broken-link?humanrights+our+work+legal+submission+discrimination+tax+transfer+system (viewed 28 October 2009).

^[9] Australian Human Rights Commission, Accumulating Poverty: Women's
experiences of inequality over the lifecycle (2009). At www.humanrights.gov.auhttps://humanrights.gov.au/our-work/sex-discrimination (viewed 28 October 2009).

^[10] It
is also necessary for the Equal Opportunity for Women in the Workplace Agency to
work closely with other key government departments, including the Australian
Government Office for Women and Office for Work and Family. However, these links
are internal to the Australian Government, and would not be suitable for
legislative formalisation.

^[11] Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness
of the Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting
Gender Equality (2008). At www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 26 October 2009).

^[12] Relevant provisions would be defined to include adverse action on ‘gender
equality employment matters', being sex, marital status, family or
carer's responsibilities and pregnancy.

^[13] Relevant provisions of the
National Employment Standards (NES) would be defined to include the NES on
unpaid parental leave, and rights in relation to family and carers leave and
responsibilities.

^[14] Human
Rights and Equal Opportunity Commission, note 3.

^[15] Human Rights and Equal
Opportunity Commission, note 3, p 3.

^[16] Anonymous, comment, Women's focus group 7, Human Rights and Equal Opportunity Commission Sex
Discrimination Commissioner's Listening Tour
(2008).

^[17] Australian Human
Rights Commission, Annual General Report 2008-09 (2009), p 74. At www.humanrights.gov.au/about/publications/annual_reports/index.html (viewed 29 October 2009).

^[18] Australian Human Rights Commission, note 17, p
73.

^[19] Australian Bureau of
Statistics, 6202.0 - Labour Force, Australia, Table 03. Labour force status
by Sex, July 2009 (2009). At www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/6202.0Jul%202009?OpenDocument (viewed 24 August 2009).

^[20] World Economic Forum, Global Gender Gap Report 2009 (2009), p 63. At www.weforum.org/pdf/gendergap/report2009.pdf (viewed 28 October 2009).

^[21] Australian Bureau of Statistics (ABS), note
19.

^[22] Statistics Norway, Labour Force Survey, Q3, 2009: Lower labour force participation, www.ssb.no/aku_en/ (viewed 29 October
2009).

^[23] Statistics New
Zealand, Household Labour Force Survey: June 2009 quarter, www.stats.govt.nz/browse_for_stats/work_income_and_spending/Employment/HouseholdLabourForceSurvey_HOTPJun09qtr/Commentary.aspx (viewed 29 October).

^[24] Organisation for Economic Co-operation and Development, Babies and Bosses:
Reconciling Work and Family Life: A Synthesis of Findings for OECD Countries (2007) Volume 5.

^[25] Women
with disability are less likely to be in the paid workforce than men with
disability: Human Rights and Equal Opportunity Commission, Issues paper 1:
Employment and Disability – the Statistics (2005). At www.humanrights.gov.au/disability_rights/employment_inquiry/papers/issues1.htm (viewed 15 September 2008).

^[26] Aboriginal and Torres Strait Islander people have a labour market participation
rate of 56%. The labour market participation rate for Indigenous men is 65%,
while for Indigenous women it is 48%: Australian Bureau of Statistics, Labour
Force Characteristics of Aboriginal and Torres Strait Islander Australians,
Estimates from the Labour Force Survey, 2007, Cat No 6287.0 (2008).

^[27] In 2004, migrant men had a
similar age standardised labour force participation rate (74%) to
Australian-born men (75%). Migrant women's age standardised labour force
participation (52%) was lower than Australian-born women (60%), and much lower
than migrant men: Australian Bureau of Statistics, Australian Social Trends,
2006, Cat No 4102.0, (2006).

^[28] Australian Bureau of
Statistics, Average Weekly Earnings, May 2009, Cat No 6302.0 (2009). At www.abs.gov.au/ausstats/abs@.nsf/mf/6302.0 (viewed 31 August 2009).

^[29] Australian Bureau of Statistics, note
28.

^[30] For example
approximately 45% of women in the workforce are employed part-time compared with
approximately 16% of men: Australian Bureau of Statistics (ABS), 6202.0 - Labour Force,
Australia, Table 03. Labour force status by Sex, September 2009 (2009). At www.ausstats.abs.gov.au/ausstats/meisubs.nsf/0/2DE8EA310F563A2BCA257648001518D9/$File/6202003.xls#A163137K (viewed 29 October 2009).

^[31] Australian Bureau of Statistics, Labour Force, Australia, Detailed,
Quarterly, May 2008 Cat no. 6291.0.55.003 (2008).

^[32] Graduate Careers
Australia, GradStats, Number 13, December 2008 (2008). At www.graduatecareers.com.au/content/view/full/24 (viewed 28 October 2009).

^[33] Graduate Careers Australia, note
32.

^[34] Equal Opportunity for
Women in the Workplace Agency, Pay, Power and Position: Beyond the 2008 EOWA
Australian Census of Women in Leadership (2009), p. 6. At www.eowa.gov.au/Australian_Women_In_Leadership_Census/2008_Australian_Women_In_Leadership_Census/Pay_Power_Position/Pay_Power_Position_Beyond_the_Census.pdf (viewed 26 October 2009)

^[35] Australian Public Service Commission, State of the Service 2007/08 (2008). At www.apsc.gov.au/stateoftheservice/0708/index.html (viewed 29 October 2009).

^[36] University of Sydney, Annual Report 2008 (2009). At www.usyd.edu.au/about/publications/annual_report/2008/hr_annual_report_2008.pdf (viewed 29 October 2009).

^[37] Department Education, Employment and Workplace Relations, ‘Table
2.7: Number of Full-time and Fractional Full-time Staff by State, Higher
Education Provider, Function and Gender, 2008,' Staff 2008: Selected
Higher Education Statistics. At www.dest.gov.au/NR/rdonlyres/7D7AC7D2-C71E-462B-A778-D4814776E729/25898/Numbers.xls (viewed 24 August 2009).

^[38] Equal Opportunity for Women in the Workplace Agency, 2008
EOWA Australian Census of Women in Leadership (2008), p 8. At www.eowa.gov.au/Australian_Women_In_Leadership_Census.asp (viewed 29 October 2009).

^[39] Equal Opportunity for Women in the Workplace Agency, note 38, p
3.

^[40]Equal Opportunity for
Women in the Workplace Agency, note 38, p 12.

^[41] Anonymous, comment, Women's focus group 4, Human Rights and Equal Opportunity
Commission Sex Discrimination Commissioner's Listening Tour
(2008).

^[42]Equal Opportunity
for Women in the Workplace Agency, note 38, p 12.

^[43]Equal Opportunity
for Women in the Workplace Agency, note 34, p
12.

^[44]Equal Opportunity for
Women in the Workplace Agency, note 34, p
12.

^[45]Equal Opportunity for
Women in the Workplace Agency, note 38, p
5.

^[46]Equal Opportunity for
Women in the Workplace Agency, note 38, p
7.

^[47]Equal Opportunity for
Women in the Workplace Agency, note 38, p
5.

^[48] Equal Opportunity for
Women in the Workplace
Agency,above.

^[49]Equal
Opportunity for Women in the Workplace Agency, above.

^[50] Office for
Women, Department of Families, Housing, Community Services and Indigenous
Affairs, Women in Australia 2009. At www.fahcsia.gov.au/sa/women/pubs/general/womeninaustralia/2009/Pages/chapter4.aspx (viewed 29 October 2009).

^[51] Office for Women, Department of Families, Housing, Community Services and
Indigenous Affairs, Appoint Report 2006, p 6.

^[52]The Department of
Immigration and Multicultural Affairs is now known as the Department of
Immigration and Citizenship.

^[53] Office for Women, Department of Families, Housing, Community Services and
Indigenous Affairs, note 51, p 6.

^[54] Office for Women, Department of Families, Housing, Community Services and
Indigenous Affairs, note 51, p
3.

^[55] Australian Human Rights
Commission, Sexual harassment: Serious business

Results of the 2008
Sexual Harassment National Telephone Survey (2008). At www.humanrights.gov.auhttps://humanrights.gov.au/our-work/commission-general/broken-link?humanrights+our+work+sex+discrimination+publications+serious+business+sexual+harassment+workplace (viewed 28 October 2009).

^[56] Based on being provided the definition of sexual harassment from the Sex
Discrimination Act 1984 (Cth).

^[57] Australian Human
Rights Commission, note 55.

^[58] Australian Human Rights Commission,
above.

^[59] Anonymous, comment, note 16.

^[60] Anonymous, comment, note
41.

^[61] Anonymous, Blog
entry, Human Rights and Equal Opportunity Commission Listening Tour website
(10 February 2008).

^[62] Human
Rights and Equal Opportunity Commission, Annual Report 2007-08 (2008). At www.humanrights.gov.au/about/publications/annual_reports/index.html (viewed 29 October 2009).

^[63] This includes complaints within workplaces and to external agencies such as the
State and Territory equal opportunity commissions and the Australian Human
Rights Commission.

^[64] Anonymous, comment, Adelaide Business Consultation with Committee for
Economic Development Australia, Human Rights and Equal Opportunity Commission
Sex Discrimination Commissioner's Listening Tour
(2007).

^[65] Human Rights and
Equal Opportunity Commission, Pregnant and Productive: It's a right not a
privilege to work while pregnant (1999). At www.humanrights.gov.au/sex_discrimination/publication/pregnancy/report.html (viewed 16 August 2009).

^[66] R
Cassells, R Miranti, B Nepal & R Tanton, She works hard for the money:
Australian women and the gender divide, AMP.NATSEM Income and Wealth Report
(2009), Issue 22, p 18. At http://phx.corporate-ir.net/External.File?item=UGFyZW50SUQ9MjA5fENoaWxkSUQ9LTF8VHlwZT0z&t=1 (viewed 2 July 2009).

^[67] Australian Human Rights Commission, note 17, p
73.

^[68] R Clare, Retirement
Savings Update (2008), Association of Superannuation funds of Australia
Research and Resource Centre, p 6. At www.superannuation.asn.au/Reports/default.aspx (viewed 11 February 2009).

^[69] Human Rights and Equal Opportunity Commission, Sex Discrimination
Commissioner ‘Listening Tour' consultation data (2007).

^[70] Human Rights and
Equal Opportunity Commission, note
69.

^[71] R Cassells, R Miranti, B
Nepal & R Tanton, note 66, p 18; L Craig, 'Is there really a "second shift",
and if so, who does it? A time-diary investigation' (2007) 86 (1) Feminist
Review pp 149-170.

^[72] Human
Rights and Equal Opportunity Commission, Striking the Balance: Women men,
work and family (2005) p 35. At www.humanrights.gov.auhttps://humanrights.gov.au/our-work/sex-discrimination/publications (viewed 31 August 2009).

^[73] L
Craig & K Mullan, The impact of gender and parenthood on men's and
women's total work in Australia 1992-2006 (paper for the Australian
Labour Market Research Workshop, 11-12 December, Wellington, New Zealand
2008), p 12.

^[74] See Human
Rights and Equal Opportunity Commission, note 2, p 79; Human Rights and Equal
Opportunity Commission, note
3.

^[75] Anonymous, comment, Men's focus group 3, Human Rights and Equal Opportunity Commission Sex
Discrimination Commissioner's Listening Tour
(2007).

^[76] Anonymous, comment, Darwin Community Consultation, Human Rights and Equal
Opportunity Commission Sex Discrimination Commissioner's Listening Tour
(2008).

^[77] See Department of
Victorian Communities and Industrial Relations Victoria, Paving the Way for
Older Women in the Workforce 2025 (2005) p 33. At www.women.vic.gov.au/web12/rwpgslib.nsf/GraphicFiles/Pavign+the+Way+Chapter+3/$file/PTW+Chapter3.pdf (viewed 18 August 2009).

^[78] W
Loretto, C Duncan & P White, ‘Ageism and employment: controversies,
ambiguities and younger people's perceptions' (2000) 20(3) Ageing & Society, pp 279-302, p
285.

^[79] B Partridge,
‘Avoiding Stereotypes,' (2008) Nov.-Dec, Management Today, pp
22-24, p 24.

^[80] Australian
Human Rights Commission, Age Discrimination Consultation data (2009).

^[81] B Partridge,
note 79. See generally Victorian, South Australian and Western Australian Equal
Opportunity Commissions & Australian Employers Convention, Age Limits:
Age-related discrimination in employment affecting workers over 45 (2001), p
7.

^[82] Quoted in Ernst &
Young News Release, ‘The strength women bring to rebuilding the world
economy,' News Release, 28 January 2009. At www.ey.com/CH/en/Newsroom/News-releases/20090128-The-strength-women-bring-to-rebuilding-the-world-economy (viewed 24 August 2009).

^[83] Australian Bureau of Statistics, note
28.

^[84] Australian Human Rights
Commission, note 9.

^[85] R
Cassells, R Miranti, B Nepal & R Tanton, note 66, p
1.

^[86] R Tanton, Y Vidyattama, J
McNamara, Q Ngu Vu & A Harding, Old Single and Poor: Using
Microsimulation and Microdata to Analyse Poverty and the Impact of Policy Change
Among Older Australians (Paper for Presentation at UNU-WIDER Conference on
Frontiers of Poverty Analysis, Helsinki, 26-27 September 2008), p 15. At https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880 (viewed 26 October 2009).

^[87] This includes: working age couple with no children, working age couple with
children, working age lone female, working age lone male, lone mother household,
elderly couple household, elderly lone male and elderly lone female.

^[88] B Heady & D Warren,
Families, Incomes and Jobs, Volume 3: A Statistical Report on Waves 1 to 5 of
the HILDA Survey (2008), p 55. At www.melbourneinstitute.com/hilda/statreport/statreport-v3-2008.pdf (viewed on 9 February 2009). NB The poverty measurement tool for this study is
50% of the median income poverty
line.

^[89] Australian Human
Rights Commission, note 9, p 1.

^[90] Australian Human Rights
Commission, note 9, p 24.

^[91] Australian Human Rights Commission, note 9, pp
24-26.

^[92] Equal Opportunity for
Women in the Workplace Agency, note
38.

^[93] Chief Executive Women, The business case for women as leaders: one woman is not enough, CEW
Discussion Paper (2009), p
1.

^[94] Department of Education,
Employment and Workplace Relations, Students 2007 (full year): Selected
Higher Education Statistics, Table 2 (2007). At www.dest.gov.au/NR/rdonlyres/D204A8AB-39DD-46E0-A93A-B24CE3CD00C8/23916/2007AwardCourseCompletions1.xls (viewed 29 October 2009).

^[95] Equal Opportunity for Women in the Workplace Agency, note 38, p
12.

^[96] Equal Opportunity for
Women in the Workplace Agency, note 38, p
5.

^[97] B McKinnon, ‘The
Hard Sell', (2000) May/June, The Open Road, p 11.

^[98] Catalyst, The Bottom
Line: Connecting Corporate Performance and Gender Diversity (2004). At www.catalyst.org/file/44/the%20bottom%20line%20connecting%20corporate%20performance%20and%20gender%20diversity.pdf;
Catalyst, The Bottom Line: Corporate Performance and Women's
Representation on Boards (2007). At www.catalyst.org/file/139/bottom%20line%202.pdf;
G Desvaux, S Devillard-Hoellinger & M Meaney, ‘A Business Case for
Women' (2008) September The McKinseys Quarterly, p 2. At www.mckinseyquarterly.com/ghost.aspx?ID=/A_business_case_for_women_2192

^[99] See for example G Desvaux,
S Devillard-Hoellinger & M Meaney, note 101; Ernst & Young, Groundbreakers: Using the strength of women to rebuild the world economy (2009). At www.ey.com/groundbreakers; McKinsey
& Company, Women Matter: Gender diversity, a corporate performance
driver (2007). At www.mckinsey.com/locations/swiss/news_publications/pdf/women_matter_english.pdf (viewed 29 October 2009); A Howard & R Wellins, Holding Women Back:
troubling discoveries and best practices for helping female leaders succeed (2009). At www.ddiworld.com/pdf/GenderReport09_tr_ddi.pdf (viewed 29 October 2009).

^[100] G Desvaux, S Devillard-Hoellinger & M Meaney, note 101, p 2; Ernst &
Young, note102, p 9.

^[101] Catalyst, The Bottom Line: Corporate Performance and Women's
Representation on Boards (2007) (see note 98).

^[102] R Sunderland,
‘Woman's touch helps hedge funds retain their value,' The
Guardian, Monday 19 October 2009. At www.guardian.co.uk/business/2009/oct/19/women-hedge-funds (viewed 26 October 2009).

^[103] R Sunderland, above.

^[104] World Economic Forum, note 20, p 63.

^[105] The proportion of people
65 and over is likely to double between 2004 (13%) and 2051(27%).

The
proportion of people 85 and over is likely to quadruple between 2004 (1.5%) and
2051(7%): Australian Bureau of Statistics, Population Projections, Australia,
2004 to 2101 (2006).

^[106] J Harmer, Department of Families, Housing, Community Services and Indigenous
Affairs, Pension Review Background Paper (2008) p 6. At www.fahcsia.gov.au/sa/seniors/progserv/PensionReview/Documents/pension_review/pension_review_paper.pdf (viewed 29 October 2009); R Tanton, Y Vidyattama, J McNamara, Q Ngu Vu & A
Harding, note 86, p 15.

^[107] Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), (1979). Article 11(1)(b), 11(1)(c) and 11(1)(d). Article
11(1)(c) provides ‘the right to free choice of profession and employment,
the right to promotion, job security and all benefits and conditions of service
and the right to receive vocational training and retraining.' Article
11(1)(d) provides ‘the right to equal remuneration, including benefits,
and to equal treatment in respect of work of equal value, as well as equality of
treatment in the evaluation of the quality of
work.'

^[108] CEDAW,
Article 2(f)

^[109] International Convenant on Economic, Social and Cultural Rights, ICESCR,
Art 7(c).

^[110] Note that
Article 5 of the International Labour Organisation (ILO) Convention No
111 also provides that special measures to protect groups of workers for
reasons such as sex shall not be considered discrimination.

^[111] See s 7D(2) of the Sex Discrimination Act 1984 (Cth) (SDA) which provides that a
person does not discriminate against another person by taking special measures.

^[112] Report of the Committee
on the Elimination of Discrimination against Women Committee (CEDAW Committee),
UN GAOR 59th sess, Supp No 38, UN Doc A/59/30 (2004), [15].

^[113] Report of the CEDAW
Committee, note 112, [15],
[21].

^[114]Report of the CEDAW
Committee, note 112, [15],
[33].

^[115] CEDAW Committee,
General Recommendation No. 25 (2004), [27] in Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc
HRI/GEN/1/Rev.9 (Vol. II) ( 2008), p 320.

^[116] CEDAW Committee, note
115, [23], p 320.

^[117] Report of the CEDAW Committee, note 112, [15],
[20].

^[118]CEDAW Committee,
note 115, [34], p 320.

^[119] See Anti-Discrimination Act 1977 (NSW), s 24 includes
breastfeeding and pregnancy, also a person's responsibilities as a carer
is covered under s 49T and marital status under s 39; Equal Opportunity Act
1995 (Vic), s 6; Discrimination Act 1991 (ACT), s 7(1); Anti-Discrimination Act 1991 (Qld), s 7; Equal Opportunity Act 1984 (SA), Part 3 but note that carers or family responsibilities are not covered
; Anti-Discrimination Act 1998 (Tas), s 16; Anti-Discrimination Act (NT), s 19 includes family responsibilities but not carers responsibilities; Equal Opportunity Act 1984 (WA), s 8 (sex), s 10 (pregnancy), s 9
(marital status), s 35A (carers and family responsibilities) but note that
breastfeeding is not explicitly included as a separate
ground.

^[120] SDA, s
11.

^[121] Fair Work Act
2009 (FWA), s 27(1).

^[122] Sections 10 and 18 of the Public Service Act 1999.

^[123] See Equal Opportunity
in Public Employment Act 1992 (Qld); Anti-Discrimination Act 1977 (NSW) Part 9A; Equal Opportunity Act 1984 (WA) Part IX; Public
Administration Act 2004 (Vic); Public Sector Management Act 1994 (ACT) Part 3; Public Sector Employment and Management Act (NT).

^[124] See Appendix 2: Detail of
the Key Features of Australia's National Laws which impact on Gender
Equality in the Workforce at Section
8.3(a)(ii).

^[125] See Appendix
2: Detail of the Key Features of Australia's National Laws which impact on
Gender Equality in the Workforce at Section
8.3(a)(iv).

^[126] Human Rights
and Equal Opportunity Commission, note 6, p 211-5 and Appendix 2 at 8.3(b).

^[127] FWA, Part 2.7, s 302.

^[128] See further Australian
Human Rights Commission, note 7, p 19.

^[129] Australian Human
Rights Commission Act 1986 (AHRCA), ss 46PW, 46PX and
46PY.

^[130] FWA, s
161.

^[131] SDA, s 48(gb).

^[132] World Economic Forum,
note 20, p 63.

^[133] See CEDAW
Committee, General Comment No. 6: Effective National Machinery and Publicity
(1988). At www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom6;
Beijing Declaration and Platform for Action (1995), Fourth World Conference on
Women, 1995, A/Conf.117/20 and A/Conf.117/20/add.1.

^[134] See Section 6 of this
Submission..

^[135] It is also
necessary for the Equal Opportunity for Women in the Workplace Agency to work
closely with other key government departments, including the Australian
Government Office for Women and Office for Work and Family. However, these links
are internal to the Australian Government, and would not be suitable for
legislative formalisation.

^[136] K Guest, ‘The
Elusive Promise of Equality: Analysing the Limits of the Sex Discrimination Act
1984' (1999), Research Paper 19 1998-99, Parliamentary Library. At www.aph.gov.au/library/pubs/rp/1998-99/99rp16.htm#9 (viewed 25 October 2009). See further M Thornton, The liberal promise:
anti-discrimination legislation in Australia (1990); C Burton, The
Promise and the price: the struggle for equal opportunity in women's
employment (1991); R Graycar & J Morgan, ‘Thinking about
Equality,' (2004), 27(3) University of New South Wales Law Journal, p 833-839. At www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLJ/2004/44.html?query=%2220%20Australian%20Feminist%20Law%20Journal%2023%22 (viewed 26 October 2009); S Maddison, & E Partridge, How Well Does
Australian Democracy Serve Australian Women (2007), Audit Report No 8, 2007,
Democratic Audit of Australia. At https://humanrights.gov.au/our-work/commission-general/broken-link (viewed 26 October 2009); G Strachan, J Burgess & L Henderson, 'Equal
Employment Opportunity Legislation and Policies: the Australian Experience'
(2007) 26(6) Equal Opportunities International, pp
525-540.

^[137] For further
detail about special measures, see Section 5.5.

^[138] Human Rights and Equal
Opportunity Commission, note 2. NB p 92.

^[139] Equal Opportunity for
Women in the Workplace Act 1999 (EOWW Act), s
2A.

^[140] Human Rights and
Equal Opportunity Commission, note 6, p 236.

^[141] See, eg, EOWA, Pay,
Power and Position: Beyond the 2008 EOWA Australian Census of Women in
Leadership (2009); EOWA, 2008 EOWA Australian Census of Women in
Leadership (2008); EOWA, (A)gender in the Boardroom (2008). At www.eowa.gov.au/Information_Centres/Resource_Centre/EOWA_Publications.asp (viewed 26 October 2009).

^[142] Australian Human Rights Commission, Sexual harassment: Serious business:
Results of the 2008 Sexual Harassment National Telephone Survey (2008) and
Human Rights and Equal Opportunity Commission, 20 Years On: The Challenges
Continue...Sexual Harassment in the Australian Workplace (2004). At www.humanrights.gov.auhttps://humanrights.gov.au/our-work/sex-discrimination/publications (viewed 26 October 2009).

^[143] See for example Human Rights and Equal Opportunity Commission, What matters
to Australian women and men: Gender equality in 2008: the Listening Tour
Community Report (2008); Human Rights and Equal Opportunity Commission, It's About Time: Women, Men, Work and Family (2007); Human Rights
and Equal Opportunity Commission, Striking the Balance: Women men, work and
family (2005).

^[144] FWA,
s 653.

^[145] Human Rights and
Equal Opportunity Commission, note 6, Recommendation 51, pp 236-40. See also
Australian Human Rights Commission, note 7, Recommendation 11, p 7.

^[146] The Senate Committee
proposed that the reporting be done every four years, in order to link with the
Australian Government's cycle of reporting to the CEDAW Committee: Senate
Standing Committee on Legal and Constitutional Affairs, note 11, p 161.

^[147] The Australian Human
Rights Commission is Australia's national human rights institution and
operates in accordance with the Principles Relating to the Status and Functions
of National Institutions for the Promotion and Protection of Human Rights (Paris
Principles). The Paris Principles require a national human rights institution to
be independent and autonomous from Government. (Principles relating to the
Status of National Institutions (The Paris Principles) endorsed by the
Commission on Human Rights in March 1992 (resolution 1992/54) and by the General
Assembly in its resolution A/RES/48/134 of 20 December 1993. At www2.ohchr.org/english/law/parisprinciples.htm (viewed 26 October 2009).

^[148] See Equal Opportunity from Women in the Workplace Agency, Public Report
form. At www.eowa.gov.au/Reporting_And_Compliance/What_do_I_Need_to_Include/Public_Report_Form.asp (viewed 28 October 2009).

^[149] See Recommendation 5 in this
Submission.

^[150] Officials
must not enter into any contract with an organisation which has been named in
Parliament as non-compliant with their reporting obligations under the EOWW Act.
Australian Government Department of Finance and Administration, Guidance on
Complying with Legislation and Government Policy in Procurement (2005), p
12. At www.finance.gov.au/publications/fmg-series/10-complying-with-legislation.html (viewed 28 October 2009).

^[151] See Business Cuncil of Australia, Business Regulation, www.bca.com.au/Content/100834.aspx (viewed 28 October 2009).

^[152] Human Rights and Equal Opportunity Commission, note 6. See also Collaborative
Submission from leading women's organisations and women's equality
specialists, Inquiry into the effectiveness of the Sex Discrimination Act (2008); Women's Electoral Lobby Australia, Submission to the Legal and
Constitutional Affairs Committee Inquiry into the Effectiveness of the Sex
Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender
Equality (2008); National Foundation of Australian Women, Submission to the
Inquiry into the effectiveness of the Commonwealth Sex Discrimination Act
1984 in eliminating discrimination and promoting gender equality (2008). All
at www.aph.gov.au/SEnate/committee/legcon_ctte/sex_discrim/submissions/sublist.htm (viewed 28 October 2009).

^[153] Human Rights and Equal Opportunity Commission, note 6, p
11.

^[154] Human Rights and
Equal Opportunity Commission, note 6, Option for for Reform A, p
82.

^[155] Human Rights and
Equal Opportunity Commission, note 6, Option for Reform I, p 245. See also pp
240-245

^[156] Human Rights and
Equal Opportunity Commission, note 6, Option for Reform J, p 248

^[157] Senate Standing
Committee on Legal and Constitutional Affairs, note 11, pp
145-165.

^[158] See Disability Discrimination Act 1992 (Cth), Division 2A Disability
standards.

^[159] See Privacy
Act 1988 (Cth), Part IIIAA Privacy
codes.

^[160] FWA, s 351(2).

^[161]Human Rights and Equal
Opportunity Commission, note 6, Recommendation 46, p
229.

^[162]‘Employment
matter' is defined in the EOWW Act 1999, s
3(1).

^[163] Equality Bill, 2009 (UK), cl 74.

^[164] Productivity Commission, Executive Remuneration in Australia,
Discussion Draft, (2009), pp XXX and
144.

^[165] Gordon Cairns,
interview with Fran Kelly, Radio National Breakfast (26 October 2009). At www.abc.net.au/rn/breakfast/stories/2009/2723739.htm (viewed 26 October 2009).

^[166] Jillian Segal, interview with Fran Kelly, Radio National Breakfast (22 October
2009). At www.abc.net.au/rn/breakfast/stories/2009/2720803.htm (viewed 26 October 2009).

^[167] Margaret Jackson interview with Fran Kelly, Radio National Breakfast (22 October
2009). At www.abc.net.au/rn/breakfast/stories/2009/2720803.htm (viewed 26 October 2009).

^[168] CEDAW Committee, note 115, [22], p 320.

[169] Report of the CEDAW Committee, note
112, [15], [21]-[22].

^[170] [2004] FCA 1250 (Unreported, Crennan J, 24 September 2004).

^[171] CEDAW Committee, CEDAW
General Recommendation No. 5 (1988) in Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc
HRI/GEN/1/Rev.9 (Vol. II), (2008), p 365.

^[172]CEDAW Committee, General
Recommendation 23 (1997), [15] in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.9
(Vol. II) ( 2008), p 347.

^[173] CEDAW Committee, Concluding Comments on Australia, Thirty Fourth session,
16 January-3 February 2006, CEDAW/C/AUL/CO/5,
[16].

^[174]CEDAW Committee,
note 173, [17].

^[175] CEDAW
Committee, note 115, [24], p 320.

^[176] Office of Women's
Policy, Department of Planning and Community Development, Victorian
Women's Policy Framework 2008-11 (2008), p 18. At www.women.vic.gov.au/web12/rwpgslib.nsf/GraphicFiles/Women's+Policy+Framework+2008-11/$file/DPCD+Vic+Women+Pol+Frameworkv14.pdf (viewed 29 October 2009).

^[177] John Brumby, Premier of Victoria, ‘Private Sector Needs More Women
Leaders,' Media Release, 8 September 2009. At www.premier.vic.gov.au/component/content/article/8075.html (viewed 29 October 2009).

^[178] Government of South Australia, South Australia's Strategic Plan (2007). At https://plan.sa.gov.au/ (viewed 28 October 2008).

^[179] Government of South Australia, South Australia's Strategic Plan Target
Factsheet, T:5.1 https://plan.sa.gov.au/ (viewed 28 October 2008).

^[180] Government of South Australia, South Australia's Strategic Plan
Target Factsheet, T:5.2 https://plan.sa.gov.au/ (viewed 28 October 2008).

^[181] ACT Office for Women, ACT Women's Plan 2004-2009 (2004), p
5. At www.dhcs.act.gov.au/__data/assets/pdf_file/0020/39053/actwomensplan.pdf (viewed 29 October 2009). NB Consultation is currently underway to develop a
new plan.

^[182] ACT Office for
Women, Department of Disability Housing and Community Services,
‘Indicators of Success,' Taking Stock, Reporting on the ACT
Women's Plan 2004-09 (2009), p
3.

^[183] ACT Office for Women,
above.

^[184] ACT Office for
Women, note 182, p 3.

^[185] Queensland Government, Office for Women, Profile Queensland Women 2009 (2009), p 92. At www.women.qld.gov.au/resources/statistical-snapshot/documents/profile-qld-women-2009.pdf (viewed 29 October 2009).

^[186] Queensland Government, Office for Women,
above.

^[187] Office for Women,
NSW Premier's Department, Our Commitment To Women, p 18. At www.women.nsw.gov.au/PDF/OurCommitment.pdf (viewed 29 October 2009).

^[188] Tasmanian Department of Premier and Cabinet, Women on boards:
Increasing women's participation, www.dpac.tas.gov.au/divisions/cdd/women/leadership/women_on_boards (viewed 29 October 2009).

^[189] Northern Territory Government, Territory 2030 Draft Strategy (2009), p 31. At www.territory2030.nt.gov.au/pdf/draftTerritory2030Strategy.pdf (viewed 29 October 2009).

^[190] Government of South Australia, South Australia's Strategic Plan
Progress Report 2008. At https://plan.sa.gov.au/ (viewed 28 October 2009).

^[191] ACT Office for Women, note 182, p 5.

^[192] ACT Office for Women,
note 182, p 3.

^[193]Senate
Standing Committee on Legal and Constitutional Affairs, note 11, pp
145-165.

^[194] Senate Standing
Committee on Legal and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender
Equality (2008). At www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 26 October 2009).

^[195] Relevant provisions would be defined to include adverse action on ‘gender
equality employment matters', being sex, marital status, family or
carer's responsibilities and pregnancy.

^[196] Relevant provisions of
the National Employment Standards (NES) would be defined to include the NES on
unpaid parental leave, and rights in relation to family and carers leave and
responsibilities.

^[197]CEDAW
opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3
September 1981).

^[198] CEDAW,
Article 11(1)(b), 11(1)(c) and 11(1)(d) . Article 11(1)(c) provides ‘the
right to free choice of profession and employment, the right to promotion, job
security and all benefits and conditions of service and the right to receive
vocational training and retraining.' Article 11(1)(d) provides ‘the
right to equal remuneration, including benefits, and to equal treatment in
respect of work of equal value, as well as equality of treatment in the
evaluation of the quality of
work.'

^[199] Under
Article 2(e) of CEDAW, Australia undertakes to take all appropriate measures to
eliminate discrimination against women by any person, organisation or
enterprise.

^[200]U.N. GAOR,
58th Sess., Supp. No. 38, U.N. Doc. A/58/38 (Mar. 13, 2003), 411, providing a
record of the 28th CEDAW Committee report that discussed the fifth and sixth
periodic reports of Norway.

^[201] U.N. GAOR, 55th Sess., Supp. No. 38, U.N. Doc A/55/38 (Feb. 4, 2000), 408,
providing a record of the 446th and 447th CEDAW Committee meeting that discusses
the third periodic report of Luxembourg.

^[202] CEDAW, Article
2(f).

^[203]International
Covenant on Civil and Political Rights (ICCPR), opened for signature 16
December 1966, 999 UNTS 171 (entered into force 23 March 1976 except Article 41
which came into force on 28 March 1979).

^[204] M, Nowak, U.N
Covenant on Civil and Political Rights: CCPR Commentary (2^nd ed,
2005), p 630-631.

^[205] UN Human Rights Committee,
General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 146
(2003).

^[206] M, Nowak, note
204, p 630-631.

^[207] M,
Nowak, note 204, p 631.

^[208] ICESCR opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3
January 1976).

^[209] ICESCR,
Art 7(c).

^[210] Article 2(1)
of the ICESCR provides that each state party ‘undertakes to take steps,
individually through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized in the
present Covenant, by all appropriate means, including particularly the adoption
of legislative
measures'.

^[211] Committee on Economic, Social and Cultural Rights, Concluding Observations on
Australia, Forty-second session, 4 - 22 May 2009, 12 June, E/C.12/AUS/CO/4,
[17].

^[212] Committee on
Economic, Social and Cultural Rights, above,
[17].

^[213] ILO
Discrimination (Employment and Occupation) Convention, 1958 (ILO 111),
Article 2.

^[214] ILO
Discrimination (Employment and Occupation) Convention, 1958 (ILO 111),
Article 1(a).

^[215] ILO
Convention concerning Equal Remuneration for Men and Women Workers for Work of
Equal Value (ILO 100), Article
2.

^[216] ILO Convention
concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (ILO 100), Article 2(a)(b)(c) and
(d).

^[217] ILO Convention concerning Equal Opportunities and Equal Treatment for Men and
Women Workers: Workers with Family Responsibilities, 1981, (ILO 156),
Article 3.

^[218]ILO Convention concerning Equal Opportunities and Equal Treatment for Men and
Women Workers: Workers with Family Responsibilities, 1981, (ILO 156),
Article 1.

^[219] Beijing
Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1. [181]. At www.un.org/womenwatch/daw/beijing/platform/index.html (viewed 28 October 2009).

^[220] Beijing Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1, [190(a)].

^[221] Beijing Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1,
[190(g)].

^[222] Beijing
Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1,
[190(e)].

^[223] Beijing
Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1,
[190(f)].

^[224] Beijing
Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1, [190(i)].

^[225] Beijing Declaration and Platform for Action (1995), A/Conf.117/20 and
A/Conf.117/20/add.1,
[192].

^[226] EOWW Act, s
2A

^[227] EOWW Act, s 3 and 6.
Section 5 of the EOWW Act sets out its limited application based on the
Constitutional heads of
power.

^[228] EOWW Act, s 3.
‘Authority' is defined as a body or the holder of an office,
established for a public purpose by or under a law of the Commonwealth or of a
State or Territory, other than a higher education institution, as well as an
incorporated company or public purpose body over which the Commonwealth, a
State, a Territory is in a position to exercise control.

^[229] Office for Women, Review of the Equal Opportunity for Women in the Workplace Act 1999: Issues
Paper (2009), p 7.

^[230] EOWW Act, s 2A.

^[231] EOWW
Act, s 3. See ‘Equal Opportunity for Women in the Workplace
Program.'

^[232] EOWW Act,
s 3.

^[233] EOWW Act, s
8(4).

^[234] EOWW Act, ss 13,
13A, and 13B. Although, these requirements may be waived under s 13C of the EOWW
Act.

^[235] EOWW Act, s 13(2).

^[236] EOWW Act, ss 13(3) and
14.

^[237] EOWW Act, ss 10 and
18.

^[238] EOWW Act, ss 19 and
12.

^[239] Officials must not
enter into any contract with an organisation which has been named in Parliament
as non-compliant with their reporting obligations under the EOWW Act: Australian
Government Department of Finance and Administration, Guidance on Complying
with Legislation and Government Policy in Procurement (2005), p 12. At www.finance.gov.au/publications/fmg-series/10-complying-with-legislation.html (viewed 28 October 2009)

^[240] Office for Women, note 229, p 10.

^[241] EOWW Act, s 20(1).

^[242] EOWW Act, s 11(1). Where
the Minister gives a written direction, the Minister is required to table a copy
of the direction before each House of the Australian Parliament within 15
sitting days (EOWW Act, s
11(2)).

^[243] Office for Women,
note 229, p 11.

^[244] SDA, s
5.

^[245] SDA, s
6.

^[246] SDA, s 7.

^[247] SDA, s
7A.

^[248] SDA, s 22.

^[249] SDA, s
21.

^[250] SDA, s 23.

^[251] SDA, s 24.

^[252] SDA, s
25.

^[253] SDA, s 26.

^[254] SDA, s14. See also ss 15
-20 for workplace discrimination.

^[255] SDA, s 14.

^[256] SDA, s 14
(3A).

^[257] Australian Human
Rights Commission, note 17, p
73.

^[258] SDA, s
28.

^[259] See SDA, s 13(1).

^[260] SDA, s 9.

^[261] SDA, s
5(1).

^[262] SDA, ss 5(2), 7B
and 7D.

^[263] SDA, s 14(1) and
(2).

^[264] SDA, s 30. The SDA
contains various other permanent in Division 4 of Part II and the Australian
Human Rights Commission is empowered under s 44 of the SDA to grant temporary
exemptions.

^[265] See further:
S Redmond, ‘Positive Rights for Workers with Family
Responsibilities' (2009) 47

NSW Law Society Journal, p 44.

^[266] Part III Division I of
the SDA empowers the Australian Human Rights Commission with specific functions
that aim to tackle systemic discrimination. Part V of the SDA establishes the
Sex Discrimination Commissioner.

^[267] See s 46PV of the AHRC
Act.

^[268] See s 48 of the SDA
and s 11 of the AHRC Act.

^[269] AHRC Act, s 46PO.

^[270] AHRC
Act, s 46PO.

^[271] AHRC Act, s
46PV.

^[272] SDA, s 96.

^[273] SDA, s 97. Note the
appointment is to be for a specified period, not exceeding 7 years, and the
Commissioner is eligible for re-appointment at the end of her or his term.

^[274] SDA ss 8(6) and
11(1)(aa) of the AHRC
Act.

^[275] For a more detailed
description of the powers of the SDC and the Commission, see Human Rights and
Equal Opportunity Commission, note 6, p 211-6.

^[276] AHRC Act, s
8.

^[277] SDA, s
44.

^[278] SDA, s
48(1)(d).

^[279] SDA, s
48(1)(e).

^[280] SDA, s
48(1)(f).

^[281] SDA, s
48(1)(g).

^[282] SDA, s
48(1)(ga).

^[283] SDA, s
48(1)(gb).

^[284] ICCPR,
Articles 26 and 2.

^[285] AHRC
Act, s 11(1)(e).

^[286] AHRC
Act, s 11(1)(k).

^[287] AHRC
Act, s 11(1)(f).

^[288] AHRC
Act, s 13(1).

^[289] AHRC Act, s
13(2).

^[290] AHRC Act, s 15.

^[291] AHRC Act, ss
21-30.

^[292] Human Rights and
Equal Opportunity Commission, note 6, p
216-9.

^[293] FWA, s 351.

^[294] FWA, s
351.

^[295] Section 335 of the
FWA provides that in Part 3.1, employee and employer have their ordinary
meaning. Section 15 excludes a person on a vocational placement from the
definition of an
employee.

^[296] Constitutionally covered entities include: a constitutional corporation, the
Commonwealth, a Commonwealth authority, a body corporate incorporated in a
Territory and an organisation (FWA
s338(2)).

^[297] Part 3.1 may in
some circumstances also apply to prospective or existing State employees because
ss 338 and 339 of the FWA provide that Part 3.1 applies to ‘action'
that is taken by a constitutionally-covered entity, action that affects the
activities, functions, relationships or business of a constitutionally-covered
entity, action that consists of advising, encouraging or inciting a
constitutionally covered entity, action taken in a Territory or a Commonwealth
place; and action taken by a ‘trade and commerce employer' or
employee of such an employer that affects, is capable of affecting or is taken
with intent to affect an employee.

^[298] Explanatory Memorandum,
Fair Work Bill 2008 (Cth), r 7, p
V.

^[299] FWA, s 351.

^[300] FWA, s 342. Adverse
action taken by a prospective employer against a prospective employee is defined
in s 342(1).

^[301] SDA, s
14(2).

^[302] EOWW Act, s 3.

^[303] Attorney-General's
Department, National anti-discrimination information gateway:
Australia's new workplace relations system, www.antidiscrimination.gov.au/www/nadig/nadig.nsf/Page/Employment (viewed 15 September 2009).

^[304] FWA, s 340.

^[305] FWA, s 341. Note that as
of 1 January 2010, s 6 of the FWA will provide 10 National Employment Standards
to most Australian employees, including parental
leave.

^[306] FWA, s 351(2)(a).
See also s 342(3) which provides that ‘adverse action' does not
include action authorised by or under the FWA or any other law of the
Commonwealth or a law of a State or Territory prescribed by the regulations.

^[307] See s 361 of the FWA.

^[308] FWA, s
772(1).

^[309] See Part 2-2 of
the FWA.

^[310] FWA, s
65.

^[311]The parental leave
provisions apply to all Australian employees and include birth-related leave and
adoption-related leave: FWA, s
70.

^[312] FWA, s
76.

^[313] See FWA, ss 96,
97,102,104. A worker can use carer's leave to provide care or support to a
member of the worker's household or immediate family who requires care or
support because of illness, injury or an unexpected
emergency.

^[314] FWA, s
62(3)(b).

^[315] See S Redmond,
note 265.

^[316] FWA, ss
65(2)(a), 67(1).

^[317] FWA, ss
12, 65(2)(1), 67(1).

^[318] FWA,
s 65(5).

^[319] FWA,
s76(4).

^[320] FWA, s 302. An
employee, an employee organisation or the Sex Discrimination Commissioner may
apply to Fair Work Australia for an equal remuneration order.

^[321] To seek an equal
remuneration order see FWA
302(s)

^[322] FWA, ss
150,153.

^[323] FWA, s 135(1).

^[324] In relation to
‘adverse action' dismissals, Fair Work Australia has powers to
direct a person to attend a conference (FWA s592) or make a recommendation or
express an opinion (s 595). If the conference does not resolve the dispute, the
complainant may issue proceedings at the Federal Magistrates Court or the
Federal Court (FWA s371). In relation to unlawful terminations, a complainant
may issue proceedings at the Federal Magistrates Court or the Federal Court to
deal with the Fair Work Australia conference does not resolve the dispute (FWA s
779). Note that in either case, complainants can apply directly to the courts
where their application includes an application for an interim injunction (FWA
ss 371(1), s 779(1)).

^[325] FWA, s 372, 374(1) and s 539.

^[326] FWA, s 700.

^[327] FWA, s 709.

^[328] See FWA, ss 707, 708,
713, 713A, 714.

^[329] FWA, s
716.

^[330] FWA, s 716.

^[331] FWA, s
682.

^[332] FWA, Part 2-2
and Part 6-3.

^[333] FWA, Part
2-3.

^[334] FWA, Part
2-5.

^[335] FWA,
Part 2-6.

^[336] FWA,
Part 2-7.

^[337] FWA, Part
3-2.

^[338] FWA, Part
3-3.

^[339] FWA, Part 3-1,3-2
and 6-4.

^[340] FWA, s
576.

^[341] FWA, s 590.


^[342] FWA, s
681.

^[343] FWA, s 682.

^[344] See: Department of
Families, Housing, Community Services and Indigenous Affairs, Office of Work
and Family, www.fahcsia.gov.au/sa/women/progserv/economic/Pages/office_work_family.aspx,
(viewed 28 September 2009).

^[345] See: Department of
Families, Housing, Community Services and Indigenous Affairs, Office for
Women, www.fahcsia.gov.au/sa/women/overview/ofw/Pages/default.aspx,
(viewed 28 September 2009).

^[346] Government Equalities
Office, About Geo, www.equalities.gov.uk/about_geo.aspx,
(viewed 17 September
2009).

^[347] G Scoular, Equality Bill 2009 – Legal Q &A, 2009. At www.personneltoday.com/articles/2009/05/05/50545/equality-bill-2009-legal-qa.html (viewed 28 October 2009).

^[348] G Scoular, above.

^[349] G
Scoular, above.

^[350] Commission of Equality and Human Rights, Our history: the DRC, CRE &
EOC. At https://humanrights.gov.au/our-work/commission-general/broken-link (viewed 28 October 2009).

^[351] Commission for Equality and Human Rights, Vision, Mission and Priorities, https://humanrights.gov.au/our-work/commission-general/broken-link,
(viewed 17 September
2009).

^[352] Commission for
Equality and Human Rights,
above.

^[353]Commission for
Equality and Human Rights,
above.

^[354] Commission for
Equality and Human Rights, About us. At https://humanrights.gov.au/our-work/commission-general/broken-link (viewed 28 October 2009).

^[355] Commission for Equality and Human Rights, above.

^[356] Equality
Act 2006 (UK), s
20(1)(a).

^[357] Equality Act 2006 (UK), s 20(2).

^[358] Schedule 2 to the Equality Act 2006 (UK), cl
12.

^[359] Equality Act 2006 (UK), s 21(1).

^[360] Equality Act 2006 (UK), s
21(4).

^[361] Equality
Act 2006 (UK), s
22(6)(c).

^[362] Equality Act 2006 (UK), s 23.

^[363] Equality Act 2006 (UK), s
23(2).

^[364] Equality Act 2006 (UK), s
23(1)(a).

^[365] Equality Act 2006 (UK), subs 24(2) and (3).

^[366] Equality Act 2006
(UK), s 20(1) and Schedule 2, para 9.

^[367] The Equality Act 2006 (UK) inserted sections 76A and 76B into the Sex Discrimination Act
1975 (UK).

^[368] The Sex
Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006 (UK), Article 2.

^[369] The
Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order
2006 (UK), Article 3.

^[370] The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order
2006 (UK), Article 4.

^[371] The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order
2006 (UK), Article 6.

^[372] Sex Discrimination Act 1975 (UK), s 76D.

^[373] Sex Discrimination
Act 1975 (UK), s
76D(6).

^[374] Sex
Discrimination Act 1975 (UK) s 63.

^[375] Sex Discrimination
Act 1975 (UK) s 66.

^[376] Equality Act 2006
(UK) s 25.

^[377] Equality
Act 2006 (UK) s 27.

^[378] Equality and Human Rights Commission, What We Do, https://humanrights.gov.au/our-work/commission-general/broken-link,
(viewed 17 September
2009).

^[379] See Advisory,
Conciliation and Arbitration Service, Conciliation, www.acas.org.uk/index.aspx?articleid=2010 (viewed 21 September 2009).

^[380] Equality Act 2006
(UK), s 24(1).

^[381] Equality Act 2006 (UK), s 30
(1).

^[382] Equality Act 2006 (UK), ss 28(1) and
29.

^[383] Equality Act 2006 (UK), s 28 (4).

^[384] Equal Pay Act 1970 (UK), subs 1(2)(a),(b)and
(c).

^[385] Equal Pay Act 1970 (UK), s1. See also Barber v Guardian Royal Exchange Assurance
Group (C-262/88) [1991] 1 QB 344; Equality and Human Rights Commission, Pay Benefits And Workplace Conditions. At www.equalityhumanrights.com/advice-and-guidance/information-for-employers/areas-of-responsibility/pay-benefits-and-workplace-conditions/ (viewed 28 October 2009).

^[386] Equal Pay Act 1970 (UK) s
2(1).

^[387] Low Pay Commission, National Minimum Wage: Low Pay Commission Report 2008, 2008, Chapter 3,
para 3.2-3.4). At www.lowpay.gov.uk/lowpay/report/pdf/2008_Min_Wage.pdf (viewed 28 October 2009).

^[388] Equality Act 2006 (UK), sub 12 (1),(2) and
(3).

^[389] Equality Act 2006 (UK), sub 12 (4) and
(5).

^[390] Equality Act
2006 (UK), s 14 (1).

^[391] Equality Act 2006 (UK), sub 14 (1) and
(5).

^[392] Equality Act
2006 (UK), s 14 (6).

^[393] Equality Act 2006 (UK), s 14
(7).

^[394] Equality Act
2006 (UK), s 14 (8).

^[395] Equality Act 2006 (UK), s 15
(4)(a).

^[396] Equality Act
2006 (UK), s 15(4)
(b).

^[397] Equality Act
2006 (UK), s 31.

^[398] Equality Act 2006 (UK), s 16
(1).

^[399] Equality Act
2006 (UK), s 20.

^[400] Schedule 2 to the Equality Act 2006 (UK).

^[401] Schedule 2 to
the Equality Act 2006 (UK) cl
2-4.

^[402] Schedule 2 to the Equality Act 2006 (UK) cl 15 and
16.

^[403] Schedule 2 to the Equality Act 2006 (UK) cl 9 and
10.

^[404] Equality Act 2006 (UK), s 30 (1).

^[405] Equality Bill 2009 (UK), cl
145.

^[406] Race Relations
Act 1967 (UK), s 71.

^[407] Disability Discrimination Act 1995 (UK), s
49A(1).

^[408] Equality Act
2006 (UK) s 23(2).

^[409] Section 4 of the Equality Bill 2009 (UK) lists the protected
characteristics as age, disability, gender reassignment, marriage and civil
partnership, pregnancy and maternity, race, religion or belief, sex and sexual
orientation.

^[410] Equalities
Office, Equality Bill: Making it work, Policy proposals for specific duties,
A consultation (June 2009). At www.equalities.gov.uk/pdf/Specific%20Duties%20Consultation%20DocumentWEB.pdf,
(viewed 30 September
2009).

^[411] Equality Bill
2009 (UK), cl 75.

^[412] Equality and Human Rights Commission, Proposals for promoting greater
transparency in the private sector: A consultation on improving gender equality
in the workplace (2009), p 29. At www.equalityhumanrights.com/uploaded_files/consultations/gender_pay_consultation.pdf,
(viewed 30 September
2009).

^[413] Equality and Human
Rights Commission, above.

^[414] Equality and Human Rights Commission, note
412.

^[415] Equality Bill
2009 (UK), cl 74.

^[416] Equality Bill 2009 (UK), cl 74.

^[417] Equality Bill 2009
(UK), cl 154-155.

^[418] Equality Bill 2009 (UK), cl
118.

^[419] Equality Bill 2009
(UK), cl 110.

^[420] The
‘good employer' is also referred to in the Crown Entities Act
2004 (NZ) and the Local Government Act 2002 (NZ).

^[421] Ministry of
Women's Affairs, Home, www.mwa.govt.nz/, (viewed 17 September
2009).

^[422] Human Rights
Act 1993 (NZ), s 5 (1).

^[423] Human Rights Act
1993 (NZ), s 17.

^[424] New Zealand Bill of Rights Act 1990 (NZ), s 19.

^[425] Human Rights Act
1993 (NZ) part 1a and part
2.

^[426] The Human Rights
Review Tribunal is a judicial authority independent of the NZHRC which was
established by the Human Rights Commission Act 1977 (NZ).

^[427] Section 92 of
the Human Rights Act 1993 (NZ) sets out the matters which the Director of
the Office for Human Rights Proceedings must consider in determining whether to
provide legal representation to a particular complainant.

^[428] Section 112 of the Employment Relations Act 2000 (NZ) and section 79A of the Human Rights
Act 1993 (NZ) provide that a person must choose to either lodge a complaint
with the NZHRC or pursue the matter as a personal grievance.

^[429] Employment Relations
Act 2000 (NZ), ss 102, 103.

^[430] Equal Pay Act
1972 (NZ), s 2A(1).

^[431] Equal Pay Act 1972 (NZ), s
2A(2)

^[432] Human Rights Act
1993 (NZ), s 17(c). NZ Census Results available at www.hrc.co.nz/home/hrc/eeo/eeopublications/eeopublications.php (viewed 28 October 2009).

^[433] Human Rights Act 1993 (NZ), ss 5(2)(e) and
17(d).

^[434] Human Rights
Act 1993 (NZ), s
5(2)(h).

^[435] Human Rights
Act 1993 (NZ), s 126A and
127.

^[436] Human Rights Act
1993 (NZ), s 92E.

^[437] Human Rights Act 1993 (NZ), s 5 (2)
(j).

^[438] Human Rights Act
1993 (NZ), s 5 (2)
(j).

^[439] Canadian Human
Rights Act, RS 1985, c H-6, s
26.

^[440] See Canadian Human
Rights Commission website, About Us. At www.chrc-ccdp.ca/about/default-en.asp (viewed 28 October 2009).

^[441] ‘Discriminatory practices' are set out in Canadian Human Rights
Act, RS 1985, c H-6, ss 5-14.1. (which should be read in conjunction with Canadian Human Rights Act, RS 1985, c H-6, s 3
(1)).

^[442] A more detailed
list of federally regulated organisations is available from the Canadian Human
Rights Commission. See Canadian Human Rights Commission, Overview: Resolving Disputes, www.chrc-ccdp.ca/discrimination/federally_regulated-en.asp (viewed 21 September 2009).

^[443] Canadian Human Rights
Act, RS 1985, c H-6, s 40
(3).

^[444] Canadian Human
Rights Act, RS 1985, c H-6, s 43
(2.1).

^[445] Canadian Human
Rights Act, RS 1985, c H-6, s 48
(1).

^[446] Canadian Human
Rights Act, RS 1985, c H-6, s 49
(1).

^[447] Canadian Human
Rights Act, RS 1985, c H-6, s 48.3
(10).

^[448] Canadian Human
Rights Act, RS 1985, c H-6, s 53
(2).

^[449] Canadian Human
Rights Act, RS 1985, c H-6, s 53
(2).

^[450] Canadian Human
Rights Act, RS 1985, c H-6, s 53
(3).

^[451] Canadian Human
Rights Act, RS 1985, c H-6, s
57.

^[452] Canadian Human
Rights Act, RS 1985, c H-6, s 48.3
(12).

^[453] Canadian Human
Rights Act, RS 1985, c H-6, s 11
(1).

^[454] Canadian Human
Rights Act, RS 1985, c H-6, s 11
(7).

^[455] For Equal Pay
Guidelines see Canadian Human Rights Commission, Resources, www.chrc-ccdp.ca/publications/tfa_appendix4-en.asp (viewed 28 October 2009).

^[456] Canadian Human Rights Act, RS 1985, c H-6, ss 11 (1), 39 and 40 (1).

^[457] Employment Equity
Act 1995 (Canada), c 44, s 4 (1).

^[458] Employment Equity
Act 1995 (Canada), c 44, s
5.

^[459] Employment Equity
Act 1995 (Canada), c 44, s 9 (1)
(a).

^[460] Employment Equity
Act 1995 (Canada), c 44, s 9 (1)
(b).

^[461] Employment Equity
Act 1995 (Canada), c 44, ss
12,13.

^[462] Employment
Equity Act 1995 (Canada), c 44, s
14.

^[463] Employment Equity
Act 1995 (Canada), c 44, s
17.

^[464] See Employment
Equity Act 1995 (Canada), c 44, ss 18 (1), 21(1). In practice,
private sector employers report to the Department of Human Resources and Social
Development Canada and public sector employers report to the Public Service
Human Resources Management Agency of
Canada.

^[465] Employment
Equity Act 1995 (Canada), c 44, ss 20,
21(5).

^[466] Employment
Equity Act 1995 (Canada), c 44, s 23
(1).

^[467] Employment Equity
Act 1995 (Canada), c 44, s 25
(1).

^[468] Employment Equity
Act 1995 (Canada), c 44, s 25 (2),
(3).

^[469] Employment Equity
Act 1995 (Canada), c 44, s 27
(2).

^[470] Canadian Human
Rights Act, RS 1985, c H-6, s 27
(2).

^[471] Canadian Human
Rights Act, RS 1985, c H-6, s 27 (3),
(4).

^[472] An English summary
of the commissions report (Official Norwegian Report (NOU) 2009: 14
“Et helhetlig diskrimineringsvern”) can be downloaded from www.regjeringen.no/nb/dep/bld/,
(viewed 6 October 2009).

^[473] World Economic Forum, The Global Gender Gap Report (2008). At www.weforum.org/pdf/gendergap/report2008.pdf (viewed 21 September 2009). NB In the most recent Report released 27 October
2009, Norway slipped to third position behind Iceland and Finland. See World
Economic Forum, note 20.

^[474] See Arbeidslivets lover, Act Relating to Working Environment, Working Hours
and Employment protection, ETC (Working Environment Act) 2007 (Norway). At www.arbeidstilsynet.no/binfil/download.php?tid=42156 (viewed 28 October 2009)

^[475] Equality and Anti-Discrimination Ombud and the Equality and
Anti-Discrimination Tribunal Act 2005 (Norway), s
3.

^[476]Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
3.

^[477]Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
4.

^[478] Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s 4.

^[479] Equality and Anti-Discrimination Ombud and the Equality and
Anti-Discrimination Tribunal Act 2005, s
7.

^[480]Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
8.

^[481] Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
12

^[482] Gender Equality
Act 1979 (Norway), s
3.

^[483] Gender Equality
Act 1979 (Norway), s
3a.

^[484] Gender Equality
Act 1979 (Norway), s
17.

^[485] Gender Equality
Act 1979 (Norway), s
5.

^[486] Gender Equality
Act 1979 (Norway), s
9.

^[487] Equality and
Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal Act 2005 (Norway), s
7.

^[488] Gender Equality
Act 1979 (Norway), s
1a.

^[489] Gender Equality
Act 1979 (Norway), s
1a.

^[490] Gender Equality
Act 1979 (Norway), s
1a.

^[491] Gender Equality
Act 1979 (Norway), s
21.

^[492] Public Limited
Companies Act 1997 (Norway), s
20-6.

^[493] Public Limited
Companies Act 1997 (Norway), s
6-11a.

^[494] Public Limited
Companies Act 1997 (Norway), s
19-1.

^[495] Public Limited
Companies Act 1997 (Norway), s
19-1.

^[496] The Business
Enterprise Registration Act 1985 (Norway), s
5-2.

^[497] Public Limited
Companies Act 1997 (Norway), s
16-15.

^[498] Public Limited
Companies Act 1997 (Norway),
s16-17.

^[499] Public Limited
Companies Act 1997 (Norway),
s16-17.

^[500] Local
Government Act 1992 (Norway), s
16.

^[501] Norwegian Ministry of
Children and Equality, Guide to gender equality assessment and discussion in
ministry budget propositions (2007), p 3. At www.regjeringen.no/upload/BLD/Veiledning%20og%20brosjyrer/2007/Guide_likestillingsvurdering_eng_link.pdf (viewed 29 October 2009).

^[502] Norwegian Ministry of Children and Equality, above.