Equal Employment Opportunity Legislation and Policies: The Australian Experience
Equal Employment Opportunity Legislation and Policies: The Australian Experience
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ABSTRACT
Purpose. Organisations have to respond to a range of legislative and policy initiatives
intended to promote equal employment opportunity for women. This paper analyses
the mix of legislation and policies in Australia: anti-discrimination and equal
opportunity legislation, equal pay, work and family and managing diversity policies.
Approach. Legislation, industrial relations changes and policies relating to pay equity,
non-discrimination on the grounds of sex, affirmative action and equal opportunity,
including work and family policies and managing diversity approaches are reviewed
in the context of changing labour conditions and social trends.
Findings. Organisations are presented with a range of policies from which to choose
and the result is variety in the extent and type of equity programs which produce
variable outcomes for women in the workplace.
Implications. While this paper deals in particular with Australia, the pattern of
multiplicity of approaches is common to other Western countries. As organisations
choose among a variety of approaches in implementing an equal opportunity program,
the outcomes for women will vary.
INTRODUCTION
Support for employment equity for women at the highest level of government is
universal in the developed economies (Wirth 2001, 139-151). The past fifty years
have seen a transition from state and organisation supported inequity and
discrimination against women workers to policies that support the removal of
discrimination and reflect changed social attitudes. In the OECD, the form of these
policies depends on prior practice, cultural expectations, political and industrial
systems and economic circumstances. A detailed examination of the forces
(legislative, judicial, social and industrial) that impact on organisations as they
develop and implement equity policies in Australia, serves to highlight the current
mixture of messages and directives to which organisations must respond.. Industrial
relations practices, workplace relations and anti-discrimination legislation, equal
opportunity/affirmative action legislation, and developments in human resource
management are considered. Together they trace a trajectory which began with the
recognition of the need to redress direct discrimination against women and concludes
with a variety of policy approaches. Al ongt hewa y ,me a surest hatpromot ewome n’s
employment opportunities, help businesses to be profitable and support workers who
are also carers have been absorbed into the legislative and policy mix. In the end, it
can be difficult to talk about organisational equity policies in a country like Australia
where the variation in practice between organisations is great with the result that
outcomes for women are variable and uncertain.
1
In Australia, legislation prohibits discrimination on grounds of sex, pregnancy and
marital status and prohibits sexual harassment. Industrial relations legislation contains
provisions that promote equal pay and guarantee unpaid parental leave for workers
who meet certain employment standards. Provisions that supplement this leave with
paid leave and provide a right to return to work after maternity leave on a part-time
basis are contained in some industrial agreements or organisational policies.
Provisions for leave from work to undertake family caring responsibilities are
generally contained in an award or agreement made in an industrial commission
between an employer and a trade union but may also be contained in organisational
policies. Recent legislation (Workplace Relations Act 2006) has foisted more
responsibility on individual firms to negotiate terms of employment rather than
relying on trade union negotiations or industry-wide determinations.
Large employers in the private sector are required by law to furnish reports detailing
their efforts to ensure equal employment opportunity (EEO) for women, but
employers with fewer than 100 employees are exempt. The public sectors of federal
and state government operate parallel but separate EEO programs (Bacchi 2000;
Burton 1991; Poiner and Wills 1991, 36-56). Al thoug ht henoti
onsof‘ worka nd
fami ly’,‘ wor k-life ba lance’a nd ‘ di
ve r
sity ’
,a nd va riati
onsoft heset e r
ms ,a re
discussed in public fora such as radio discussion programs and are accepted in the
wider community and within organisations, they lack firm definitions.. What an
organisation does to promote gender equity is variously determined by its history and
ethos, the tightness of its specific labour market and the minimum standards set by
legislation. We argue that because employers and employees are faced with a range of
options about the way working arrangements are decided and work itself is organised,
underpinned in a few instances by legislative minima, outcomes for employment
equity are difficult to uncover and unlikely to be consistent among workers and across
employers in similar industries. The plethora of policy options provides new
challenges for realising gender equity in employment.
In common with other western democracies in the 1980s and 1990s, Australia adopted
a neo-l i
be r
ala ppr oach,‘ unde rpinn edbybe l
i ef
si nt hee ff
ic acyoft hef reema r
ket’
including policies that prioritise deregulation, privatise public sector assets and adopt
ane w‘ orthodoxy ofi ndivi dua lrespons ibilit
ya nd t he “ eme rg ency ”s a f
ety net’
(Hancock 1999: 5). Over the past two decades a long-held acceptance of arbitrated
collective agreements applying across an industry or occupation has given way to
policies and practices that emphasise individual agreements and negotiating
2
employment conditions at the workplace level, rather than through a centralised
process. In 2006 the dominant discourse is one of individual responsibility1 with an
emphasis on differential conditions in individual workplaces. It embodies a reluctance
to enact policy provisions and minimum conditions in a collective way for the whole
labour force or an industry, and offers a reduced safety net of minimum conditions for
workers.
Equity provisions are justified largely on the basis that they are good for business:
equa loppor tuni ty‘ boos t
sac ompa ny’spr of
itabi
litya nd ma ke si ncrediblys avvy
bus i
nesss ens e’( EOWA 2006a). This further promotes an individual organisation
approach which potentially widens the gap in expectations and outcomes for
employees between organisations and even within the one organisation, because there
are now few minimum conditions that apply to all workers (Sappey et al 2006, 38-44).
The result is that consistency within and between workplaces is increasingly unlikely.
POLICY APPROACHES
Equal Pay
In Australia, equal pay decisions have come through the industrial relations system
rather than through legislation. Until the 1970s unequal pay rates for women were
implemented by the industrial relations system. Indeed, until the Second World War
most women received about half the pay of men doing exactly the same job, with a
later increase to 75 per cent of the male rate (Ryan and Conlon 1989). Yet in the past
four decades the industrial relations system has provided the major route towards pay
equity and few issues have been dealt with through the anti-discrimination pathway.
In the 1960s, against the backdrop of increasing female labour market participation
and the emerging recognition of race and sex discrimination, the peak trade union
organisation, the Australian Council of Trade Unions (ACTU), initiated and led
successful equal pay cases in the Commonwealth Conciliation and Arbitration
Commission in 1969 and 1972. Different pay rates for women and men doing the
same job were no longer allowed, so that many women were accorded pay equity with
men (Ryan and Conlon 1989: 162). Largely as a result of these decisions, Aus tr
a l
ia’s
female to male earnings ratio increased faster in the 1970s than that of any other
country, from around 0.60 to 0.80 in six years (Burgess et al 1998).
1
The pace quickened with the election of a federal conservative government in 1996
and the introduction of workplace or enterprise bargaining (Workplace Relations Act
1996). More recently a conservative majority in both houses of federal parliament
facilitated the introduction widespread changes in industrial relations legislation,
removing all but the most basic protection for workers and reinforcing the existing
emphasis on individual as opposed to collective workplace agreements (Workplace
Relations Amendment (Work Choices) Act 2005). As most of these agreements are
confidential, and there are few legislative minima, changes will occur on an individual
basis and the outcomes for women workers will be hard to discover.
3
neutralba sisa ndint hea bse nc eofa ssumptionsba s edong ende r’(IRCNSW 2000) .
Other states have held similar inquiries and a small number of cases have resulted in
wage increases for specific groups of workers in predominantly female occupations
(Queensland IRC 2002; Victorian Pay Equity Working Party 2005; IRC NSW 2002
and 2006; Teece 2002).
Anti-Discrimination Legislation
The Australian Sex Discrimination Act 1984 which follows the ILO Convention 111
of 1958 (ratified in 1973) makes it unlawful to discriminate on the grounds of sex,
marital status or pregnancy and prohibits sexual harassment. The Act recognises the
phe nome nonofs truct
uralori ndirectdi scri
mi nati
onwhi ch‘arisesfrom thef a c
tt hat
organisational norms, rules and procedures, used to determine the allocation of
positions and benefits, have generally been designed...around the behaviour patterns
of the historically dominant group in public life (Anglo-Australian, able-bodied,
heteros e
xua lma les)’(Hunter1992:5) .Thi sha se nabledg roups of women to pursue
reme dies.A c elebrate
dc asei nvolve dwome nwor ker
sc hal
leng i
ngt he‘ l
aston,f ir
st
off’r ulef orr edunda nciesa tas teelwor kswhi chha dr e
fusedove rma nyy earst o
employ women in operational jobs, hence women had a shorter length of employment
(Scutt 1990: 61-62). I nr ecentc our tc ases,howe ver,t her
eha sbe ena‘ refusalt o
acknowledge the fact that male and female employees are generally not similarly
sit
ua ted’i nr el
a t
iont of amilyrespons ibil
ities(Adams 2005: 34). This suggests that
the legislation does not protect workers with family responsibilities from indirect
discrimination.
4
Thel egisl
a t
ion’ s‘ founda tionala ssumpt ion…i st hats oc iety’srul esareg e nerally
functioning fairly, but that a particular attitude produces an unfair behaviour called
“discrimination” whi chr equires“ interve ntion” ’( Ba cc hi1996:18) .Again, the
individual’ssitua t
ioni stheke ytot hispr oc ess.The legislation does, however, provide
a baseline in guarding against overt discrimination and its principles are widely
known (if not always completely understood) in the community.
The 1986 Act was replaced by the Equal Opportunity for Women in the Workplace
Act 1999 (EOWW Act). The overall goals of the two Acts are similar: to promote the
principle that employment for women should be dealt with on the basis of merit, to
promote elimination of discrimination and provision of equal opportunity for women,
and to foster workplace consultation between employers and employees on these
issues (EOWW Act Section 2A). Underlying this legislation is the dual recognition of
benefits for business and the economy together with a commitment to social justice.
Neither Act defines equal opportunity itself butAn‘ EqualOpportunityf orWome ni n
the Wor kpla ce
’ pr ogr am i si nterpre teda sa ppropri
atea ction t oe liminate
discrimination and contribute to the achievement of equal opportunity for women
(EOWW Act Section 3). The 1999 legislation requires organisations to develop a
program by preparing a work place profile, analysing the equity issues for women,
identifying priority issues, taking action to address them and evaluating the
effectiveness of the actions (EOWA 2006b). Reporting has been required on an
annual basis (although this can be waived under certain circumstances if the
organisation can demonstrate consistent good practice and will change to biennial
reporting for many organisations from 2007) (EOWA 2007a). Penalties for non-
compliance under both Acts have been weak: a non-compliant organisation can be
named in parliament and is ineligible to tender for government contracts and industry
assistance (EOWA 2007b). The focus of the Acts is individual enterprise
responsibility as opposed to legislative and economy wide standards in order to
achieve equity goals (Strachan, Burgess and Sullivan 2004).
The affirmative action project in Australia has taken the liberal approach of achieving
equality of treatment rather the radical approach of equality of outcomes (as in the use of
5
quotas) (Thornton 1990, 2001). Critics argue that if equal opportunity requires men and
women to be treated the same, the outcome will be that women are offered equality on
male terms and are required to comply with male centred norms and patterns and this
ma yr ei
n forc ethei d eathatwo me n ’sd if
fere nc
ee qu al
sd i
sadv antage( Be rcussona nd
Dickens 1996: 16). Thus the male norm is not challenged (see Webb 1997):
Equal treatment disadvantages women by ignoring the structural barriers
which limit job opportunities and underestimates the practical difficulties
and cultural expectations which deter women from combining employment
and domestic responsibility (Neave 1992: 806-07).
Ho we v er,th ed ang erina ck n owl e dg i
n gs t
ru ct
uralba r
ri
e rsan di np ro t
ec t
ingwo men ’
s
different roles and responsibilities is that the law may perpetuate stereotypes (Bercusson
and Dickens 1996: 18). Liff and Cameron (1997: 35-36) believe that the consequences
of the special treatment which women may require to allow them to compete in the
workplace, or even the view that women are the problem because they do not fit into
exis t
ingp r
a cti
ces,a rethat‘me nd on o tn eedt ob einvo l
vedi ne qualityme a sure
sa ndth a
t
therei sn on e edtoc h angeo rga n i
sa ti
o nals truc t
ures’
.Th usme asureswh ichr ei
nforcethe
premise that women have primary responsibility for childcare, such as enhanced
maternity leave or part-time work, may be problematic. Nevertheless, this limited
affirmative action agenda has largely been accepted (for example Bacchi 1999) as
preferable to a lack of action even though the beneficiaries of the legislation were
seen as a limited group of white Anglo-Celtic women with education, that is women
already‘ int hes ystem’,whi leofwome ni ns ex-segregated areas of the labour market
were not addressed specifically (Bacchi 1990: 1)
However,by spelling out the issues which it considers comprise the parameters of
EEO for women, EOWA gives employers and their human resource (HR) managers a
broad outline of what comprises equality at work. This outline revolves around
individual rights to protection from discriminatory treatment and the perceived
advantages which employers and employees obtain from largely unspecified equal
opportunity policies and practices. The legislation and reporting procedure may make
managers aware of issues for women in employment and prompt them to action. On
the other hand, penalties for non-compliance are weak. A proportion of organisations
6
respond with programs that address equity issues in a minimal fashion (French and
Strachan 2007; Strachan and Burgess 2000). Since management in each organisation
is responsible for developing its own program, promoting the business case may be an
effective strategy. In the end, the implementation of EEO principles presumes good
corporate citizenship, the effective participation of women employees in its
development, and a process of shared goals and participation.
There is now a vast amount of discussion about this topic in Australia (for example, see
Charlesworth, Campbell and Probert 2002; Goward et al 2005). While this debate is
premised on radical changes to work and caring patterns in the community the term
‘wo rka ndf ami l
y’h asb e ena p pr
op r
ia t
e dtore fertoamu lt
itude of workplace issues. In
Australia as elsewhere there is no single definition of the family friendly workplace or
work-life balance, but there is a broad consensus of desirable policies and practices
(Burgess and Strachan 2005; OECD 2002; Eaton 2003; Thornthwaite 2002, Strachan
and Burgess 1998). I nt heAu s t
ral
ianc onte
xt‘ wo rka ndf ami l
y ’ha sbee nusedt oj ustify
significant workplace changes which may or may not promote sharing of responsibilities
or make the combination of responsibilities easier to bear. While recognising that
individuals have to combine both public and private parts of their lives, the private
bur de noff ami l
yc arer ema i
nsgr eate rforwome nwho‘ havec onti
nue dt oc arryt he
grea te rre
s pons i
bil
ityf orc aringa ndot herunpa idwor k’( Goward et al 2005: ix) and
therefore these policies have greater relevance for women whose family commitments
necessitate temporal flexibility The central issues for women who are carers revolve
around a limited agenda that allows enough flexibility to take leave from paid work to
fulfil family responsibilities without jeopardising job security or other opportunities at
work. Table 1 outlines a suggested list of provisions.
.
Table 1: Checklist of arrangements for work-family balance
Type of arrangement Comment
7
Income security Rates of pay, having a regular and secure income
Employment security Predictable hours, ongoing employment, able to take
career breaks, able to undertake financial commitments
Access to care arrangements Affordable, accessible childcare, other care (e.g. elder)
Access to flexible leave Standard leave entitlements, parental leave, switch
between types of leave, leave in emergencies
Flexible working time Able to vary hours, start/finish times, flextime, job
arrangements share or other innovations over the life-course
Control over unfriendly Vary or avoid long, unpredictable, unsociable working
working hours hours or changes at short notice
Access to training and Includes access for part-time workers and career
career path breaks
Innovative work Study leave, home work, telecommute etc.
arrangements
Source: Burgess and Strachan 2005.
Th erei sar i
skt ha t‘flex i
b l
e’wo rkpatt
ernss i
mp lyme ansderegu l
atedwo rkingh o ursa nd
conditions. These ‘ flexible’conditions can include longer working days, a longer
working week, and increased numbers of part-time and casual (temporary) workers who
have little access to full-time or permanent work, employment benefits or career path but
do not preclude arrangements that enable work and family balance (Burgess and
Strachan 1999, Burgess et al 2005). The question of choice and power in the
employment relationship is a critical determinant of which arrangements are beneficial
to employees in managing work and family commitments. Changes to the industrial
relations system in Australia in 2006 that promote individual bargaining mean that
tempor alf lexibilityi se speciallydepende ntont hestre
ngthoft hee mpl oy ee ’
svoi ce
and the state of the particular labour market.
8
producing socially marginalized groups today (Prasad, Pringle and
Konrad 2006, 8).
Kirton and Greene (2005: 123) summarise the variety of approaches in the literature
describing MD a s‘ ane vol ut
iona rys tepf rom e qual
ity
’;‘as ophi
stication of the
equa l
itya pproach’
;‘ ar e
pa cka gingofe qua lit
y ’
;‘as ani
ti
zed,pol
iti
cal
lyunt hr
ea t
e ning
and market-or ient
ed not ion’ ;a p olicyt ha ta llowse mployer
s‘ t
oa voi da ctively
fi
ght i
ngdi sc
riminati
on’ .Managing Diversity thus leaves organisations with a wide,
even confusing, choice of directions and rationales.
Given the variety of approaches, in some ways an organisation can shape a MD policy
as almost anything it wants, but we have argued that MD will have its own range of
variations in Australia as employers redefine it in the context of past and present
legislation and practice. We predicted that responses would include negating systemic
discrimination or rebadging AA or EEO programs as MD programs, and sanitizing
the equality approach (Strachan, Burgess and Sullivan 2004).
9
OVERVIEW OF THE EQUITY POLICY MIX
The legislation and policies have been propelled by a mixed rationale of social justice
(including acceptance of international standards in the form of ILO conventions) and
business benefits (see table 2). In recent years the legislation has been promoted on
the basis that it is good for business. Work and family or work/life policies are harder
to assess, since they are specific to the work place and work role, and can serve the
needs of employers and/or employees.. MD is an initiative promoted as good for
bus i
ne ss,a ndt hea s
sumpt iont hatiti s‘
fami l
yf rie
ndl y’i sl ar
g el
yunt e st
e d( Strachan,
Burgess and Sullivan 2004).
A pattern can be seen in the development over time of equal pay policies, affirmative
action, equal opportunity, and managing diversity trends in Australia. Early attempts
to eliminate discrimination were followed by a legislated EEO program of setting,
monitoring and achieving gender equity outcomes; currently business is left to
manage its gender equity programs with less government intrusion. The deletion of
the step specifying goals and targets in the 1999 EOWW Act reduced the emphasis on
outcomes, and other changes have allowed greater management discretion in the
development of equity policies. The recent change to biennial rather than annual
reporting is another step along this path (EOWA 2007a). It is quite clear when
sampl i
nga nnua lre port
st ot heEOWA t hatma nyorganisat
ions’r eportsme etthe
minimum requirements of the Act and no more. Overall, most of their HR policies do
not display an understanding of EEO or MD issues (French and Strachan 2007).
10
(Ostenfeld and Strachan, 1999). In Australia the language of choice, flexibility and
work-life balance has largely replaced earlier discourses that involved employment
equity and even earlier ones of positive discrimination or affirmative action (Strachan,
Burgess and Sullivan 2004; Bacchi 2000).
Managing Diversity as a workplace policy has similarities with family friendly work
policies in a number of respects. Both are voluntary and rely on managers to
determine policies and practices. There are no objective standards by which to
measure the success of different programs, and indeed what constitutes a successful
program is unclear. In an era of increasing emphasis on quality assurance of products
and services, it is concerning that these policies come without any measurable goals
and objectives. The EEO/AA legislation in Australia emphasised collection of data on
which to base programs and report to the community; organisations could develop
performance indicators to measure progress towards a defined goal and employment
data and policy outlines were publicly available. Both MD and work and family
policies are individualist: differences in family arrangements support the family
friendly work agenda while differences across the workforce support the MD agenda.
11
only certain about what to do when policies are clearly spelt out in legislation (Liff
1997; Strachan, Burgess and Sullivan 2004).
Like many other OECD countries, Australia now presents a complex mix of
legislation and policies related to gender equity. Prior to the 1970s employment was
characterised by direct discrimination against women in remuneration and availability
of training and jobs. From this position of overt discrimination, legislation from the
1970s recognised direct and subsequently indirect discrimination and put in place
systems through which individuals could process a claim of discrimination. Since the
mid-1980s there has been recognition that pro-active policies and practices are needed
within organisations if women are to achieve equitable employment outcomes. These
policies, while they are in some instances promoted by the government, have only
weak legislative underpinning and are not necessarily observed in many
organisations.
Organisations are able to choose the policies and practices that they believe are
appropriate to their particular business situations, and the extent to which they will
implement them. This might include. a ttentiont owor kers’pr eferenc esinr elationt o
individual work arrangements and career paths; emphasis on recruiting and/or training
women in non-t raditionalrol e
s;i ncreasi
ng‘ flexibili
ty’int hes pa nofhour swor ked,
length of shifts and other temporal arrangements; or any one of a number of other
priorities. Organisations can portray many different policies and practices as related to
EEO without assessing outcomes against specified criteria or undertaking any
measurement of change. Organisational equity policies and practices are determined
by ad hoc business and labour force demands which may be coloured by the
organisation’ sowne thi
c sandva lues(Bur gess,He ndersona ndSt racha n2005) .
Acknowledgements
This research has been funded by an Australian Research Council Grant. The authors
would like to thank Dr Hazel Conley, the editor of this issue, and the anonymous
referees for their insightful comments on an earlier draft of the paper.
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