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Affirmative Action (Equal Employment Opportunity for Women) Bill 1986
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LEGISLATIVE RESEARCH SERVICE DEPARTMENT OF THE PARLIAMENTARY LIBRARY
AFFIRMATIVE ACTION (EQUAL EMPLOYMENT OPPORTUNITY FOR WOMEN) BILL 1986
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Date introduced: House: Presented by:
Purpose
19 February 1986 House of Representatives Hon. R.J.L. Hawke, A.C., M.P., Prime Minister
DIGEST OF BILL
To require certain employers opportunity for women in employment; office of the Director of Affirmative related purposes.
Background
to promote equal to establish the
Action; and for
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Austral ia signed the United Nations Convention on the Elimination of All Forms of Discrimination Against Women on 17 July 1980, and ratified this Convention on 28 July 1983. To implement Australia's obligations under this Convent i on, Senator Ryan fi rst introduced a Sex
Discrimination Bill as a Private Member's Bill on 26
November 1981. The objectives of this Bill were to prohibit and eliminate discrimination on the grounds of sex and
marital status in various areas subject to Commonwealth jurisdiction, and to promote affirmative action in public and private employment. This Bill was not proceeded with. On 2 June 1983 Senator Ryan introduced the Sex
Discrimination Bill 1983 into the Senate, and this passed through both Houses (after redrafting and some amendments) by May 1984. The . Sex Discrimination Act 1984 which came into force on 1 August 1984 omitted the provisions for
affirmative action which had been included in the 1981 Bill. Instead the Government decided on a course of pub1 ic discussion and consultation before introducing affirmative action legislation. A Green Paper, Affirmative Action for
Women: A Policy Discussion Paper, was presented to Parliament by the Prime Minister, Mr Hawke, on 5 June 1984. This outlined the reasons or need for affirmative action and the proposed elements of affirmative action programs, as
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voluntary pilot program Work i ng Party with
the Government and the
we 11 as the Government's. plans for a and the estab 1i shment of a
representatives of business, unions, Oppos ition.
An Affirmative Action Resource Unit was established in the Offi ce of the Status of Women to ass i st the Pil ot
Program participants from 30 private sector organisations and three higher education institutions. The role of the Working Party was to monitor the progress of the Pilot Program and to advise the Government on the most appropriate
form of legislation.
The Pilot Program commenced in July 1984 and at the end of May 1985 a Progress Report was issued. The Report of the Working Party on Affirmative Action Legislation was presented to Parliament by the Prime Minister, Mr Hawke on
28 November 1985. Provisions of the Affirmative Action (Equal Employment Opportunity for Women) 8ill, and the other measures outlined by the Prime Minister in his Second Reading Speech, are in line with the recommendations of the
Working Party.
Provisions for equal employment opportunities within the Australian Public Service have already been enacted and EEO programs are being established within Public Service Oepartments. Section 11(1) of the Public Service
Reform Act 1984 inserted a new s.228 into the Public Service Act to provide for equal employment opportunity programs.
Outline.
The Bill provides that higher education
institutions and employers of 100 staff or more will be required to develop and implement affirmative action programs. An affirmative action program is defined as a program designed to ensure that -
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(a) appropriate act i on discrimination by against women in matters; and
is taken to el iminate
the relevant employer relation to employment
(b) measures promote relation
are taken by the relevant equal opportunity for to employment matters.
employer to women in
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Higher education institutions will be required to commence the development and implementation of an affirmative action program for women by 1 August 1986 (or a 1ater date if
prescribed). Companies employing more than 1000 will be required to commence their program by 1 February 1987. companies with over 500 and under 1000 employees by 1 February 1988 and companies with over 100 and under 500 by 1
February 1989. Staff employed by subsidiary companies are taken into account when calculating numbers of employees.
Affirmative action programs are to include eight steps which involve
the issuing by management of a policy
statement notifying employees of the
commencement of an affirmative action program;
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conferring responsibility for the program on a person with sufficient authority and status within the management to enable proper development and implementation of the program;
consultation with trade unions which have members in that work place;
consultation with employees. especially women;
collection and recording of statistical and other relevant information on the program;
a review of policies and practices of the
employer to identify any discriminatory policy or practices or to identify any patterns of
lack of opportunity relating to women;
setting objectives and making forward esti mates; and
monitoring and evaluating the implementation of the program to assess the achi evement of the objectives and forward estimates.
The Bi 11 also provi des for the estab1i shment of the offi ce of a Di rector of Affi rmat i ve Acti on whose functions include advising and assisting employers in the development and implementation of programs. and the issuing of guidel ines
for this purpose; the monitoring and evaluation of reports
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and programs; research, educati onal programs and promoti on of affirmative action through public discussion and community information; reviewing the effectiveness of the Act; and reporting to the Minister.
Employers will be required to prepare a public
report and a confidential report on the development and
impl ementation of the program. The Director may request permission from employers to make information from the confidentidl report available to the public or available for use ina report of the Di rector. Persons employed by the
Director, or the Director, may not reveal information from _
confidential reports without consent, and the penalties for (
so doi ng are $2500 or impri sonment for three months, or /
both.
Fail ure to submit a publ ic or confidential report to the Director as required, or failure to provide further information as required may result in the Director naming the employer, in the Director's Report, as having failed to
provide the report or further information. The Director may grant extensions of time to employers for the lodging of
private and confidential reports, where such a request has been made and where the Director 'considers there are
reasonable grounds for extending the period.
Main Provisions
For a detailed analysis of the clauses of the Bill
refer to the Explanatory Memorandum.
Sub-cl ause 3( 1) provi des defi niti ons of terms used C
in the Bill such as 'affirmative action program' (see
Outline above). 'Discrimination' means discrimination as defined in section 5, 6 or 7 of the Sex Discrimination Act
1984. 'Relevant employer' means a higher education
institution which is an employer (other than a technical and further education institution), or a person, body or
association which employs 100 or more employees in
Austral ia. The term does not include the Commonwealth, a State, a Territory, an authority or a voluntary body.
Sub-clause 3(4) provides that nothing in the Bill shall be taken to require any action incompatible with the principle that employment matters should be dealt with on the basis of merit.
Clause 5 provides that the legislation will apply throughout Australia and the sub-clauses delimit the areas of specific constitutional val idity.
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Clause 6 requires relevant employers to develop and i mpl ement affi rmati ve acti on programs. Where staff numbers of a relevant employer fall below 100, the legislation will continue to apply to that employer unless or until the
number of employees falls below 80.
Cl ause 7 sets the operative dates for commencement of the programs (see Outline above).
Sub-clause 8(1) sets the eight steps which shall be included in an affirmative action program (see Outline
above). Sub-clause 8(2) provides that an affirmative action program may contain any other provision which the relevant employer thinks fit which is not inconsistent with the eight steps or the purpose of the Act.
Sub-clause 8(3) provides definitions of 'forward estimate' and 'objective' as required in sub-clause 8(1)(g).
Cl auses 9-12 of the Bi 11 provide for the office,
functions and powers of the Director of Affirmative Action. Sub-c I ause 12 (1) provi des that the Di rector shall submit a report to the Minister within six months after each 31 May on the operations of the Di rector duri ng that year to 31
May. The Director may al so submit other reports on matters relating to the operations, powers or functions of the
Director (sub-clause 12(2)). Reports are to be tabled in
Parliament within 15 sitting days of receipt (sub-clause 12(3)).
Cl auses 13 and 14 requi re rel evant employers to
prepare public and confidential reports. Public reports are to provide statistics and related information, including the number of employees of either sex and their types of job or job classifications, and an outline of the processes to
develop and implement the affirmative action program (sub-clause 13(3)). Public reports are to be made available by the Director to a member of the public on request (para. 15(a)).
Confidential reports are required to provide deta.il ed analyses of the processes undertaken by the
employer to deve!lop and impl ement the program (sub-cl ause 14(2)). Where this detailed analysis has been provided in the employer's public report, a separate confi dent i a1 report need not be lodged (sub-clause 14(3)).
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Sub-clause 16(1) provides that the Director of
Affirmative Action may request in writing that information included in a confidential report be made public or be used in a report to the Minister. Sub-clause 16(2) provides that the employer may consent in writing to such a request making the consent subject to specified conditions.
Clause 17 enables the Director to grant extensions of time to employers for the lodging of reports provided
such a request has been recei ved and where the Di rector
considers there are reasonable grounds for extending the period.
Cl ause 18 provi des that, if in the opi ni on of the
Director, the information provided in a report fails to
comply wi th sub-cl ause 13 (3) or 14(2), the Di rector may by notice :in writing request a relevant employer to provide further i nformation withi n such time as specifi ed in the
notice.
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Cl ause 19 provides that where a rel evant employer without reasonable excuse fails to lodge a public or
confidential report as required, or fails to provide further i nformat i on under the requi rements of cl ause 18, the
Di rector may name the re1evant employer ina report of the Director. This is the main sanction clause against
employers in the Bill.
Sub-clause 32(1) provides penalties of $2500 or impri sonment for three months, or both, for di scl osure of confidential reports or confidential information by any person who is, or has been, a Director, a member of staff or C=='
a consultant except as provided for in the legislation or to /
the extent that the i nformati on is the subject of a consent
under sub-clause 16(2). Sub-clause 32(2) provides that any person who is, or has been, a Director, a member of staff or a consultant shall not be required to provide or divulge in court a confidential report or confidential information
except where the i nformati on was the subj ect of a consent under sub-clause 16(2) or where it is necessary for the
purposes of the legislation.
Clauses 20-28 concern the appointment, tenure, remunerat i on and allowances, 1eave of absence provi s ions, outside employment, resignation, termination of employment, disclosure of interest and provisions for an acting
appointment for the position of Director of Affirmative Action. Sub-clause 21(1) provides that the Director shall
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()
hold office for such period as is specified in the
instrument of appointment but not exceeding five years. The Director would be eligible for re-appointment.
Clauses 29-31 provide for the appointment of staff, consultants and advisory committees.
Clause 33 provides for delegation in writing of power or functions by the Director.
Cl ause 34 makes provi si on for regul ati ons requi red or permitted by the legislation.
For further i nformation, if requi red, contact the Education and Welfare Group or Law and Government Group.
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27 February 1986
Bills Digest Service LEGISLATIVE RESEARCH SERVICE
@ Commonwealth of Australia 1986
Except to the extent of the uses permitted under the
COpYright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, inc1udi ng i nformati on storage and retri eval system, without the prior written consent of the Department of the
Parliamentary Library. Reproduction is permitted by Members of the Parliament of the Commonwealth in the course of their official duties.
Printed by c. J. THOMPSON, Commonwealth GOvernment Printer, Canberra
