By Lindy Richardson (Partner), Christopher Charalambous (Senior Associate) and Elise Pascoe (Graduate Lawyer) of Maddocks.
The new Gender Equality Act 2020 was passed in Parliament at the end of February and will take effect 31 March 2021.
The first of its kind, this new state-based gender equality legislation will apply to public sector organisations, universities and local councils (described as Defined Entities). The Act will require Defined Entities to engage in ongoing positive action to achieve gender equality within their organisation.
Practically, the Act will see the entire public sector workforce conducting audits, developing action plans, and publishing progress reports, to ensure gender equality.
Albeit in an aspirational manner, the Act will also enshrine general duties to promote gender equality for Defined Entities. This includes duties to consider and promote gender equality, and to take necessary and proportionate action towards achieving gender equality.
The Act will also see the establishment of the Public Sector Gender Equality Commissioner (Commissioner). The Commissioner’s role will be to support Defined Entities to comply with the Act, provide them with advice, and undertake education programs. The Commissioner will also have enforcement powers, which we set out below.
Practical Guide to the new obligations
We explain the key practical aspects of the Act below:
|INCOMING OBLIGATION||WHAT DOES THIS MEAN FOR YOU?|
|Gender Impact Assessment||The Act will require that each time a Defined Entity develops or reviews a policy, program or service that has a ‘direct and significant’ impact on the public, it assesses the relevant venture against criteria which inspires equality.|
|Workplace Gender Audit||Defined Entities will be required to conduct a Workplace Gender Audit by 2021, then once every four years thereafter.|
When conducting an Audit, the Defined Entity is to have regard to (among other things):
– the state and nature of gender inequality within the organisation’s workplace;
– the workplace gender equality indicators (which are criteria set out in the Act against which data will be measured). They include matters such as equal remuneration, gender composition and gender segregation;
– any targets or quotes prescribed in relation to the Defined Entity; and
– the disadvantages or discrimination that a person may experience on the basis of certain factors including age, disability, ethnicity and sexual orientation.
|Gender Equality Action Plan||Following the Audit, the Act requires that a ‘Gender Equality Action Plan’ be submitted to the Commissioner on or before 31 October 2021 and once every four years thereafter.|
The Defined Entity will also be required to publish the Action Plan on its website.
The plan must consist of the results of the Audit and strategies and measures for promoting gender equality based on the results of the entity’s Audit.
|Progress Report||Every second year after the Defined Entity has submitted its Action Plan it must submit a progress report to the Commissioner, which must (among other things):|
– state the progress of the measures and strategies set out in the Action Plan;
– demonstrate progress with respect to certain defined indicators; and
– for any Gender Impact Assessments undertaken, outline how a particular policy, program or service was developed or varied.
|Enforcement by Commissioner||The Commissioner will oversee compliance with the Act.|
The Commissioner’s enforcement powers under the Act will include the ability to:
– issue a compliance notice for failure to comply with the Act’s obligations; and
– issue a compliance notice for a failure to make reasonable and material progress for gender equality indicators, targets or quotas.
The Act also sets out a procedure under which the Commissioner can accept an enforceable undertaking from a Defined Entity, under which the Defined Entity would undertake to take certain action to comply with the Act.
Broad jurisdiction: Enterprise Agreement Disputes
A notable feature of the Act is that the Commissioner will be able to deal with disputes arising under an enterprise agreement or a workplace determination where:
– the dispute relates to a systematic gender equality issue; and
– the dispute is referred to the Commissioner in accordance with a term of the enterprise agreement or workplace determination by a person covered by the enterprise agreement or workplace determination.
Preparing for your new obligations
While the Act is due to take effect 31 March 2021, much of the detail regarding the obligations will be contained in the Act’s accompanying Regulations. The Regulations are expected to outline the relevant gender equality quotas and targets, and provide further practical guidance for the purposes of completing the Gender Impact Assessment, Workplace Gender Audit, Gender Equality Action Plan and the Progress Report. The Regulations have not yet been released however we will monitor their progress and provide further updates.
This article was originally published on the Maddocks website and has been reproduced with permission.