1998 review of the legislation
Written Submissions and Findings
Government Response to the Review
Government Response to Recommendations
Changes to the Legislation

1998 Review of Legislation

In December 1997 the then Minister for Workplace Relations and Small Business, the Hon. Peter Reith MP, announced a regulatory review of the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 by an Independent Committee.

The Review examined the effectiveness, including the costs and benefits, of the legislation.

The objectives were:

• to assess whether the benefits to the community from the legislation/regulation outweighed the costs; 
  
• to assess whether the objectives of the legislation/regulation couldn't be achieved more efficiently through other means; 
  
• to have regard to the effects on welfare and equity, economic and regional development, consumer interests, the competitiveness of business and efficient resource allocation; and 
  
• to ensure compliance costs and the paperwork burden to small business be reduced where feasible.
  

The Independent Committee was chaired by Deanne Bevan. Its members were Brendan McCarthy, Barbara Holmes, Heather Carmody and Norah Breekveldt.

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Written Submissions and Findings

In February 1998 the committee invited written submissions from the public. An issues paper was developed in March 1998 to assist with the writing of submissions.

The closing date for submissions was 28 April 1998.

The, at the time named, Affirmative Action Agency (now the Equal Opportunity for Women in the Workplace Agency) presented an in-depth Submission to the Review.

The findings of the Independent Committee, Unfinished Business, Equity for Women in Australian Workplaces, the Final Report of the Regulatory Review of the Affirmative Action (Equal Employment Opportunity for Women) Act 1986, was presented to the Minister in June 1998.

An Executive Summary of the Findings Report is available
(PDF 727 Kb).

If you wish to receive a copy of the full report, please use the order form on the back page of the Executive Summary of the Findings Report.

The Government Response to the Review was released in December 1998.

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Government Response to the Review

In December 1998 the Coalition Government responded to the report of the regulatory review of the Affirmative Action (Equal Employment Opportunity for Women) Act 1986.

"The Coalition Government is firmly committed to promoting equal employment opportunities for women in Australian workplaces.

The labour market system we inherited from Labor was formulated by men, for men, with little regard to the interests of women. The Coalition's Workplace Relations Act 1996 introduced an extensive array of provisions to assist women to enter and remain in the workforce. We included provisions designed to help prevent and eliminate discrimination, to promote good workplace practice and to encourage the spread of flexible working arrangements which suit the needs of employers and employees. There are also provisions requiring equal remuneration for work of equal value, provisions to ensure consultation and information sharing and measures specifically designed to assist workers with family responsibilities.

Above all, the Workplace Relations Act provides the framework for employers and employees to work together cooperatively to develop and implement innovative work practices that will suit the requirements of particular workplaces and that benefit both employers and employees. Coalition policies have created scope for the development of genuinely innovative and flexible workplace-based agreements on working patterns and leave entitlements. This enables women to enter into agreements tailored to their personal or family circumstances. We have also improved career paths and increased job security for women through simplified awards and wider availability of permanent part time employment.

The Coalition Government's workplace relations policy More Jobs, Better Pay builds on these achievements. We will maintain a flexible and fair workplace relations system that protects and promotes women's entry and participation in the workforce, and enables women to make informed choices about their working arrangements.

In December 1997, the Coalition Government appointed an independent committee to assess the effectiveness of the Affirmative Action Act. The Committee consulted extensively with all sectors of the community, including business and women's organisations and in July 1998, presented the Government with a report: Unfinished Business: Equity for Women in Australian Workplaces.

The report concludes that the Act is still fulfilling a valued and valuable role but that it could be made more efficient and effective both for women and for business. The Coalition Government accepts this finding. We will introduce changes to make the Affirmative Action Act more business-friendly and capable of achieving genuine equality of opportunity for Australia's working women.

The Government will strengthen the ownership of key stakeholders in the operation and outcomes of the Affirmative Action Act. We will move quickly to implement a key recommendation of Unfinished Business, namely to set up an Advisory Board comprised of stakeholders which will have a key role in advising the Minister for Employment, Workplace Relations and Small Business to ensure that the Act is operating in the best way possible. 

We will immediately implement the Committee's recommendations that directly relate to minimising compliance costs and paperwork for business. Employers have identified current reporting requirements as a prime area of concern. Unfinished Business confirms that current requirements are onerous. Furthermore, because they focus on processes not outcomes, they do not in themselves contribute to achieving equal employment opportunity for women.

Changes to reporting requirements will cut the current paperwork burden associated with this legislation by more than half. Reporting requirements will be retained, but on a biennial not annual basis. There will also be greater flexibility to employers in the way they report. Reports will focus on workplace priorities and achievements rather than simply being a form-filling exercise. In addition, there will be a greater capacity to waive reporting requirements for employers who demonstrate compliance with the legislation.

The Government also supports a name change. Unfinished Business found that the term 'affirmative action' is often mistaken for the United States' style system of quotas. To dispel the notion of quotas once and for all, the Act will be renamed the "Equal Opportunity for Women in the Workplace Act". The Affirmative Action Agency will be renamed the "Equal Opportunity for Women in the Workplace Agency" and the Agency Director will be the Director of Equal Opportunity for Women in the Workplace".

The Government's new "Equal Opportunity for Women in the Workplace Act" will be a fair and contemporary law which serves the interests of both employers and of working women. It will reflect and positively reinforce the major objectives of the Government's workplace relations policy:

1. To put workers and businesses first, not institutions;
2. To be relevant to modern Australia;
3. To build on the common interests which exist in the workplace; and
4. To provide fair and productive outcomes which reflect our national economic and social goals".

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Government Response to Recommendations

The Government's response in its entirety to the report's recommendations follows.

Recommendation 1: addresses changing the name of the AA Act, the Director and the Agency in order to distinguish Australian affirmative action from the United States' former system of quotas and preferential treatment.

Government response:
The Government supports a name change and will adopt the following title and terms: the Equal Opportunity for Women in the Workplace Act; the Equal Opportunity for Women in the Workplace Agency, and the Director of Equal Opportunity for Women in the Workplace.

Recommendation 2: calls for the insertion in the AA Act of an objects clause putting Parliament's view that all employers should strive to provide EEO for women (but making it clear that no specific actions or reports are required of small business). The objects clause would also: emphasise the merit principle; replace the old union consultation requirement with a general statement of support for consultation; and clarify the new emphasis on an incentive-based, educative and conciliatory approach to compliance.

Government response:
The Government agrees that the objects of the legislation should emphasise merit, replace the old union consultation requirement with a general statement of support for consultation and emphasise a facilitative rather than punitive approach to compliance.

Recommendation 3: calls for the AA Act to remain targeted to women, as opposed to being broadened to cover other special needs groups.

Government response:
The Government agrees that the Act should not be broadened to cover groups other than women. Furthermore, the legislation should not be broadened to apply to small or medium-sized businesses employing less than 100 employees. 

Recommendation 4: calls for the establishment of a Board of experts drawn from stakeholders and appointed by the Minister to: provide administrative guidance to the Agency and its Director; advise on the development of industry guidelines; make decisions about waiving, naming and eligibility for contract compliance sanctions; and improve feedback between the Agency and its clients.

Government response:
The Government will establish a seven to nine member Advisory Board to provide advice to the Minister for Employment, Workplace Relations and Small Business. The Agency's Director will consult with and report to the Board on certain matters, but the Director will remain directly accountable to the Minister. An explicit part of the role of the Advisory Board will be to: 'provide advice, at the request of the Minister, on matters relevant to the operation of the AA Act.' 

Recommendation 5: calls for the development of educative material, including voluntary guidelines for employers about implementing the objects of the AA Act and meeting their obligations under the AA Act. 

Government response:
The Government, aware of business concerns about the confusion of affirmative action with the setting of quotas and targets, agrees with the proposal to develop educative materials for business, including wholly voluntary guidelines. The Advisory Board will have an important role in developing these materials.

Recommendations 6, 7, 8, 9 and 10: address reporting. The proposed changes refocus the reporting requirement on the achievement of 'reasonably practicable' outcomes rather than on following the current 8-step process. The new emphasis is on workplace priorities and achievements; the requirements will be far less prescriptive than currently, and there is considerable flexibility available to reporting organisations. Organisations will be broadly asked to address: analysis of their EEO issues; priority areas for achieving EEO; an action plan; and measures used and outcomes sought. An optional reporting format is to be developed for businesses who prefer this form of assisted reports; and the system of rating reports is to be discontinued. A biennial reporting period is proposed for complying organisations.

Government response:
The Government will replace the 8 prescribed steps and current ratings system with biennial, outcome-focussed reporting. However, a simple, pro-forma document will be developed to cater for organisations who do not wish to adopt the more flexible style of reporting. Where possible, the changes to reporting requirements will be implemented immediately, although some legislative amendment may be required.

Recommendation 11: proposes that the reporting requirement may be waived on the basis of an organisation's having taken all 'reasonably practicable' actions to eliminate discrimination and promote equity. Waiving can be for any specified period and can be revoked.

Government response:
The Government fully endorses the introduction of an expanded system of waiving reporting requirements for organisations who satisfy specified criteria. The Advisory Board will establish criteria and make recommendations regarding waiving.

Recommendation 12: calls for workplace visits to confirm waived status or to operate as a further step between reporting and naming where reports appear to be unsatisfactory.

Government response:
The Government does not accept the Committee's recommendation to introduce workplace visits.

Recommendation 13: calls for the retention of existing sanctions - contract compliance and 'naming'- and recommends that whether an organisation be made subject to these sanctions be determined by the Board.

Government response:
The Government will retain the sanctions of 'naming' and 'contract compliance'. However, these sanctions will be used only as a last resort against non-complying organisations. The power to impose the sanctions will remain with the Director.

Recommendation 14: responds to complaints made in a number of submissions, mainly from businesses, that some relevant organisations have not registered with the Agency. It calls for the use of current company lists and making self-identification an explicit requirement of the AA Act.

Government response:
The Government rejects the recommendation that self-identification become an explicit requirement of the AA Act. The Government will consider alternative strategies on advice from the Advisory Board on the issue of non-registration.

Recommendation 15: identifies incentive-based strategies currently operating or proposed elsewhere in the recommendations and in addition proposes a biennial conference for the sharing and dissemination of workplace equity research to take place in non-reporting years.

Government response:
The Government supports the sharing of research and experience regarding workplace equity. Effective means to achieve this should be considered by the Advisory Board.

Recommendations 16 and 17: call for the Agency and its Director to retain their current statutory basis and remain located in Sydney, and recommends that the Agency explore options for complementary arrangements with States in relation to the lodgement of reports (with particular regard to duplication experienced by the education sector) and service delivery.

Government response:
The Government will explore harmonisation arrangements with the States and Territories to reduce the administrative burdens on business, remove duplication and overlap and improve service delivery. Arrangements whereby organisations covered by the legislation may lodge reports in their home jurisdiction will be explored as a priority. Over the longer term, we will consider whether co-locating Agency staff in the States and Territories or contracting out advisory and support functions to the jurisdictions would improve service delivery to women and the businesses covered by the Act.

Recommendation 18: proposes that the Director of the Agency be able to refer matters of a systemic industry or sectoral character to the Sex Discrimination Commissioner who may then choose to exercise her present discretion including to conduct an inquiry or report to the Attorney General. Currently there is nothing to prevent the Director from taking this action.

Government response:
The Government notes that there is presently nothing to prevent such referral. The Government may give further consideration to providing an explicit legislative basis for referral. The Government considers that if a legislative basis were to be provided, the Director should be required to consult with the Advisory Board and the Minister for Employment, Workplace Relations and Small Business prior to any referral.

Recommendation 19: refers to transitional and funding arrangements.

Government response:
Where possible, the Government's response will be implemented immediately via administrative means. The Department of Employment, Workplace Relations and Small Business (DEWRSB) will have primary responsibility for implementing the Government's response and developing the legislative amendments to implement the remainder of the Government's response, in consultation with the Agency and the Advisory Board.

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Changes to the Legislation 

Entering a New Era in the Year 2000

The Equal Opportunity for Women in the Workplace Amendment Bill 1999 was passed through the Senate on 9 December 1999.

Changes to the legislation came into effect on 1 January 2000.

The name of the Act changed from the Affirmative Action (Equal Employment Opportunity) Act 1986, to the Equal Opportunity for Women in the Workplace Act 1999.

New name for the Agency

The Affirmative Action Agency became the Equal Opportunity for Women in the Workplace Agency (EOWA).

Reporting requirements

Although organisations will not be required to report to the Agency in 2000, they will be expected to develop their equal opportunity program and report in respect of the period of 12 months commencing on 1 April 2000.

New, simplified report form and guidelines have been developed, taking into consideration feedback from the roundtable consultations held throughout Australia.

Organisations will continue to report to the Agency annually, unless waived from reporting.