ACTU SUBMISSION TO THE REVIEW OF THE AFFIRMATIVE ACTION (EQUAL EMPLOYMENT OPPORTUNITY FOR WOMEN) ACT
D278-91December, 1991
- 1 -
CONTENTS
Page
1.Introduction 2
2.Positive Experiences 5
3.Problems Experienced 5
4.Role of the Agency 6
5.Coverage 7
6.Employers programs and reports 10
7.Consultation with Unions 11
8.Sanctions 13
9.Directors powers 14
10.Clarification of concepts 15
11.Relationship with other legislation 16
12.Conclusion 17
13.Summary of Specific Recommendations 18
- 2 -
1. INTRODUCTION
The ACTU was involved in the development of, and has strongly supported the implementation of the Affirmative Action (Equal Employment Opportunity For Women) Act. Since the legislation was passed the ACTU has worked closely with the Affirmative Action Agency and with affiliated unions seeking to ensure compliance with both the specific legislative requirements and the spirit of the Act.
The need for a legislative framework designed to ensure equality for women in the workforce is as strong now as when the Act was first introduced.
As pointed out in the ACTU’s submission to the House of Representatives Standing Committee On Legal And Constitutional Affairs Inquiry Into Equal Opportunity And Equal Status For Australian Women:
“In 1947, women made up 23% of the paid workforce (June 1947 Census). Now women make up 41% of the paid workforce and the increase has gone on steadily even through periods of high unemployment (ABS Catalogue 6203.0). This influx has included the movement of married women including married women with young children. At present 45% of women with children under 5 are in the labour force (ABS Catalogue 6224.0)” (D111/1990 at p.8)
However whilst women have moved into the workforce they are not equal. As stated in the ACTU’s submission to the Parliamentary Standing Committee (at pages 10 and 11):
“Despite the highly publicised breakthroughs – women becoming pilots, members of parliament and engineers – the reality for most women is very different. The inequality shows up in what we call the “gender segmentation” of the workforce whereby most women are clustered in a small range of occupations (ABS Catalogue 6203.0) which are not highly paid, which have few promotion prospects and which are in some cases wiped out by automation.
Of course, many men are in dead-end jobs too, but not to such a great extent. Men are more evenly spread across a much wider range of occupations and are more likely to be at the tip of any occupational or company hierarchy. (“Australian Women’s Employment Strategy”, AGPS, Canberra 1988, Appendix 2.)
- 3 -
Women are more likely than men to be in part-time or casual jobs (ABS Catalogue 6203.0). Whilst these jobs have made it possible for many women to combine paid work with family responsibilities, they have been usually characterised by low pay, low status, little job security and a lack of training or promotion prospects. (Lewis, Helen “Part-time Work: Trends and Issues”, AGPS, 1990).
Women still do not have equal pay with men. If a man and a women do the same job they are paid the same award rate, but when you compare average weekly earnings across the total workforce you find that women still earn on 65% of men’s earnings (“Equal Pay: A Progress Report and Future Strategies”, ACTU, 1989 [D70-89]). This is because men are in higher paid jobs, work longer hours and are more likely to get over-award or bonus payments. In addition, women are much less likely to be in a superannuation scheme, or if they are in a scheme, to get anything out of it. (“Superannuation and Women ACTU Booklet D26/1986.)
Another reason for women’s inequality in the workforce is the presence of discriminatory attitudes, either conscious or unconscious. Many employers and managers still believe women should not be in the workforce or if they are, they should not be treated as seriously as a male worker. These attitudes lead to discriminatory questions in job interviews, discriminatory hiring practices, women being passed over for training or promotion and a reluctance to give women positions of responsibility. (See annual reports of the Federal and State Sex Discrimination and Equal Opportunity Commissioners and the Affirmative Action Agency.)
- 4 -
It means that the workplace continues to be arranged for the male worker with the assumption that he has someone at home to look after his children and his domestic responsibilities. This, in turn, holds back workplace reforms in terms of flexible hours, family leave and child care.
Nor have our social institutions caught up with the fact that so many women are in the workforce. We have a shortage of good child care, our schools work on a 9 to 3 basis although most adults work 9 to 5, and school holidays stretch way beyond the holidays of the average worker. In addition, schools are now closed several days a year during term time for staff meetings or curriculum matters”.
The ACTU therefore continues to support both the objectives and the legislative framework set out in the Affirmative Action and the work of the Affirmative Action Agency.
In doing so the ACTU has produced a wide range of documentary material for affiliated unions to assist them both implement affirmative action principles within their own organisations and in terms of negotiating with employers. These include:
- Affirmative Action Manual Part One – In The Workplace
- Affirmative Action Manual Part Two – In The Union
- Affirmative Action For Women: Negotiating Document
-5 –
2. POSITIVE UNION EXPERIENCES OF AFFIRAMTIVE ACTION
Affiliated unions have had positive experiences of affirmative action since the introduction of the legislation.
These are highlighted in documentation distributed by the Agency.
They relate to an attitudinal change which has occurred within the community and in particular amongst many larger employers.
Initiatives which have been undertake include:
- the proper introduction of more flexible working hours ensuring all pro-rata award benefits, access to training and career paths etc.,
- introduction of work related child care,
- attention to the working environment through removal of sexist posters etc.
It is clear that the most positive experience of affirmative action initiatives has been evident where employers and unions, working together, have pursued specific strategies and linked these to an overall industrial framework such as award restructuring.
In the future the ACTU would expect that successful affirmative action programs will only be achieved if they follow this model, that is that they are developed through proper consultative practices and are properly integrated with overall industrial relations policies especially over the coming months linked to initiatives in enterprise bargaining.
- 6 -
3. PROBLEMS EXPERIENCED BY UNIONS
By far the greatest problem experienced by unions in terms of the implementation of the legislation has been the failure by a majority of employers to consult with unions as required by the legislation.
In some cases this failure to consult with unions has been assisted by a lack of awareness and apathy on the part of the relevant union.
However in other instances where unions have actively sough to be involved in meaningful consultation in both the development and further implementation of programs they have met with resistance and obstruction.
A further problem, which is emerging to a greater extent with the passage of time since the legislation was enacted, is a growing cynicism on the part of both workers and unions due to a lack of consultation about, and lack of quality of programs, particularly in terms of specific outcomes at a workplace level.
To be ultimately successful affirmative action programs must involve unions and their members in a pro-active way to ensure commitment to and joint ownership of initiatives undertaken.
Whilst the union movement accepts responsibility for taking up the issues of effective consultation and the quality of programs with individual companies, the ACTU believes a more effective legislative basis should be provided to ensure these two issues can be more effectively dealt with.
- 7 -
4. ROLE OF THE AFFIRMATIVE ACTION AGENCY
The ACTU believes the Agency has been successful in establishing an effective regulatory framework underpinning the legislation. This is especially so given its limited resources and the requirement to establish a completely new role for a government agency. It has been particularly effective in terms of:
(1) identification of employers bound by the legislation
(2) ensuring compliance with the legislation in terms of basic reporting requirements
(3) educating the community at a broader level, in particular senior executive levels of management, about the objectives and principles of the legislation.
Given the widespread hostility to the legislation and ideologically based antagonism to it which formed part of the debate prior o its passage through Parliament, the success of the Agency in these terms is commendable and the ACTU congratulates the Director and Agency staff in gaining acceptance of the legislation and establishing a credible role for the agency.
We now have an environment where there is widespread community support for the principle of equal employment opportunity and affirmative action principles. With respect to the specific details of the legislative framework instead of hostility there is active support in a relatively small but significant section of the business sector.
However with respect to the specific legislative requirements it would seem there is a lack of knowledge amongst the majority of enterprises in particular at middle and lower management levels and amongst employees. There remains a greatly diminished, but vocal, number of employers who are ideologically opposed to both the concept of the legislation and the specific legislative requirements.
- 8 -
Having established the framework thus far, the ACTU believes the Agency should now focus its resources to a greater degree on:
(4) assessing the quality of programs,
(5) ensuring information about the specific requirements of the Affirmative Action Act is disseminated broadly at a “grass roots” level,
(6) developing a framework for more effective consultation between unions and employers,
(7) providing information based on the public reports about affirmative action initiatives undertaken as part of programs eg work related child care, part-time work etc.,
(8) developing codes of practice or information on “best practice” initiatives relating to all of the steps involved in a program and recommending these standards be met generally.
In terms of continuing to perform functions (1) and (2) a more effective utilisation of the limited recourse available to the Agency would be enhanced by:
(a) imposing self registration requirements on companies bout by the Act,
(b) providing access by the Agency to other Government data bases relating to company sizes/structures.
- 9 -
5. COVERAGE
At present the Act applies to all employers with over 100 employees. It does not apply to voluntary bodies.
Coverage of unions as employers should be treated in the same manner as other employers. The ACTU supports the current interpretation of the legislation that elected union officials do not come within the scope of the legislation. This is appropriate given the different power relationships within union offices between elected officials and employees.
The ACTU is aware that a number of its affiliates and State branches have made submissions to this Review recommending an extension of coverage to employers of a smaller number of employees than that covered by the Act at present, (eg SDAEA 20 employees, VTHC 40 employees).
Another ACTU affiliate, ITFA, supports an extension of coverage to the non-government education sector where 65% of employees are women, who are significantly under-represented at senior levels. ITFA seeks that such coverage be extended to all schools regardless of size.
The ACTU believes that in determining whether coverage should be extended the following criteria should be considered:
(1) the need for equitable treatment of all employment relationships,
(2) the resources which are available to the Agency,
(3) the number of women workers affected by any exclusion,
(4) the status of women workers affected ie managerial/non-managerial, and nature of employment practices ie measured by complaints of discrimination etc.
- 10 -
6. EMPLOYERS PROGRAMS AND REPORTS
The ACTU supports the requirement for an annual report to be submitted by all employers covered by the Act.
There should be a requirement for employers to make their reports available to unions with members employed at the enterprise.
Consideration should be given to allowing greater flexibility in terms of the format of reporting requirements to cater for particular industries and enterprises. This has been a particular problem in terms fo the occupational categories required under Step 5.
The ACTU believes that there should now be a greater emphasis on assessing the quality of programs in addition to ensuring minim reporting requirements are met.
This should be done by the Agency recommending certain standards in relation to the eight steps required of a program under the legislation. This could be done through the development of model codes or publication of examples of identified “best practices” regarding each of the steps.
The successful achievement of such standards would be enhanced by ensuring a proper consultative framework with unions is part of any program.
Assessment as to the quality of programs should be based on an analysis of the reports and if required the exercise of the existing right to request further information ie employment/turnover/absenteeism statistics, or by direct consultation with relevant unions.
A key to successful programs is how effectively they are linked into broader corporate objectives and practices. In particular the ACTU believes programs need to be integrated into industrial relations policies and programs. A requirement to report on how such an integration of affirmative action and industrial relations is being achieved should be considered.
- 11 -
7. CONSULTATION WITH UNIONS
As already stated a major problem experienced by unions has been a failure by many employers to consult with unions as required by the Act.
The requirements regarding consultation with unions should be strengthened.
A range of options have been put in submissions by individual unions to this Review.
These include:
- A requirement to consult at the earliest stages of a program.
- An on-going and jointly agreed consultative process.
- Approach from senior management to the union office and workplace representatives.
- Rights to choose union representatives.
- Adequate time off for representatives.
- Joint issuing of the policy statement.
- Counter-signing of reports. (VTHC)
- A requirement to establish a joint consultative committee.
- Have that committee agree on and issue of policy statement on Affirmative Action.
- 12 -
- Confer responsibility for that committee and Affirmative Action on a senior person. (Tasmanian Public Service Association)
- An obligation to provide copies of reports to shop stewards and the union office prior to submission to the Agency.
- An obligation to form a joint affirmative action committee if requested.
- Availability of TUTA leave on affirmative action to union delegates.. (Federated Liquor And Allied Industries Employees Union).
The ACTU believes the requirements should be:
(1) To consult through the normal industrial relations channels with all unions with member employed at the workplace.
(2) Such consultation to occur prior to the development of a program.
(3) That there be a jointly agreed process for consultation covering the entire program.
(4) That union representatives involved in such consultation be accorded full time off to attend to affirmative action duties and receive trade union trading on affirmative action.
(5) To provide all unions with a copy of reports prior to their submission to the Agency.
- 13 -
8. SANCTIONS
In consultation prior to the enactment of the legislation the ACTU strongly supported the imposition of penalties for non-compliance over and above the naming in Parliament sanction which was ultimately adopted.
However it is our view that on the whole the current sanction has been remarkably successful in ensuring a high compliance rate in terms of the minimum reporting requirements. This must be seen in the context of the large scale devotion of resources by the Agency to this activity.
In Victoria successful tendering for Government contracts is dependent on compliance with the legislation and the ACTU would support consideration being given to the extension of this further sanction to the Federal arena along with the same requirement being imposed on organisations receiving any form of Federal Government funding.
The issue of financial penalties being imposed on “habitual offenders” and those employers who take an ideological stand against the Act should also be considered. The attached Appendix B sets out recent publicity given to a number of employers who have failed to comply with the legislation.
The issue of sanctions also needs to go further than simple reporting requirements – the time has now come for more qualitative assessments of reports and whether all of the requirements of an Affirmative Action programs as set out in the Act are being adequately met.
Consideration should be give to, if the Agency was to make recommendations regarding standards in relation to each of the steps set out in the Act, providing that a failure to meet that standard would attract the existing penalty for non-compliance ie naming in Parliament.
- 14 -
9. DIRECTORS POWERS
Currently powers of the Director are to:
- seek further information
- extend the time for reporting
- exercise a discretion with respect to the naming in Parliament of employers who fail to report.
The ACTU does not believe any further powers are necessary. In order to assess the quality of reports the existing power to seek further information should be sufficient.
- 15 -
10. CLARIFICATION OF CONCEPTS AND WORDING
The ACTU is not aware of any significant problems regarding concepts and working.
Further elaboration of the distinction between affirmative action as defined in the legislation and the concept of compulsory imposition of quotas and so forth is not, in our view, necessary in terms of the legislation itself.
If deemed necessary more detailed explanations of concepts etc can be provided in explanatory material published by the Agency.
Clearly there will be a continuing role for the Agency in publicising and promoting greater community awareness of the concepts and objectives of equal employment opportunity and affirmative action. There is no room for complacency in this regard.