Victoria’s new Gender Equality Act

The Gender Equality Bill 2019 (Vic) passed through the Parliament at the end of February 2020, which the State’s Minister for Women Gabrielle Williams heralded as “a landmark step in breaking down discrimination and gender barriers in the workplace”[1]. The Gender Equality Act 2020 (Vic), Australia’s first ever state-based gender equality legislation, will take effect on 31 March 2021.

The Act applies to public service and public sector organisations, universities and local councils, which will be required to report on their progress against gender equality indicators, such as equal remuneration, sexual harassment in the workplace, and gender composition in the workforce and governing bodies.

The Act also establishes the Public Sector Gender Equality Commissioner (Commissioner) to implement and monitor the performance and progress of organisations under the new laws and seek compliance where necessary. The Commissioner will also have enforcement powers to ensure compliance, which are set out below.

Who is covered by the Act?

The Act applies to various organisations with 50 or more employees that operate within the Victorian public sector. Specifically, the Act applies to:

• public service bodies;
• public entities;
• special bodies (as defined by section 6 of the Public Administration Act 2004 (Vic));
• local government;
• Court Services Victoria;
• universities within the meaning of the Education and Training Reform Act 2006 (Vic);
• the Office of Public Prosecutions; and
• any entity prescribed under regulations made in accordance with the Act,

(together, Defined Entities) [2].

General duty to promote gender equality

Under the new Act, Defined Entities have a duty to promote gender equality and are required by the Act to take positive action towards achieving gender equality by developing policies, programs and services that directly or significantly impact the public [3]. Defined Entities must undertake a Gender Impact Assessment (GIA) when developing or reviewing any policies, programs and services [4].

A GIA must:

• assess the effects that the policy, program or service may have on persons of different genders;
• state how the policy, program or service will be developed or varied in order to meet the needs of persons of different genders, address gender inequality and promote gender equality; and
• if practicable, consider how gender inequality may be compounded by disadvantage or discrimination that a person may experience on the basis of certain factors including age, disability, ethnicity, religion and sexual orientation [5].

Workplace Gender Audit

Before developing a Gender Equality Action Plan (GEAP) (see further below), Defined Entities must conduct a Workplace Gender Audit by 30 June 2021, then once every four years thereafter [6].

When conducting the Workplace Gender Audit, a Defined Entity is to have regard to the following:

• the nature of gender inequality within the Defined Entity’s workplace;
• any workplace gender equality indicators (which include matters such as gender composition of its workforce and governing bodies, equal remuneration across all genders, and gender segregation);
• any gender equality targets or quotas prescribed in relation to the Defined Entity; and
• the disadvantages or discrimination that a person may experience on the basis of certain factors (as noted above) [7].

Gender Equality Action Plan

The Act requires all Defined Entities to prepare a GEAP which is to be submitted to the Commissioner on or before 31 October 2021 and then once every four years thereafter [8].  A Defined Entity must also publish the GEAP on its website, and notify the governing body, the employees and employee representatives of its publication [9].

The GEAP must consist of the results of the Workplace Gender Audit and strategies and measures for promoting gender equality in the workplace based on the results of the Defined Entity’s Audit [10].

Reporting on progress towards gender equality

Defined Entities are required to make reasonable and material progress towards the workplace gender equality indicators [11]. On or before 31 October in every second year after submitting their GEAP to the Commissioner, Defined Entities must submit a progress report to the Commissioner [12].

The Progress Report must:

• address whether a particular policy, program or service has been the subject of a GIA and report on how a report, program or service was developed or varied in order to meet the needs of persons of different genders, address gender inequality, and promote gender equality;
• report the Defined Entity’s progress towards the measures and strategies set out in the GEAP; and
• demonstrate the Defined Entity’s progress towards improving workplace gender equality as measured against the workplace gender equality indicators and any gender equality targets or quotas [13].

Once the Defined Entity has submitted the progress report to the Commissioner, it must then publish the report on its website [14].

The Public Sector Gender Equality Commissioner

The Commissioner’s primary purpose is to promote and advance the objects of the Act throughout the public sector, which will include supporting the compliance of Defined Entities through information and education programs [15].

The Commissioner’s enforcement powers under the Act includes the ability to serve a compliance notice on a Defined Entity if the Commissioner reasonably believes that a Defined Entity, without reasonable excuse, has failed to:

• comply with the Act’s obligations (such as preparing a GEAP or progress report); or
• make reasonable and material progress in relation to gender equality indicators, or towards meeting gender equality targets or quotas.[16]

Notably, the Commissioner is empowered to deal with disputes relating to a “systemic gender equality issue” where the dispute is referred to the Commissioner in accordance with a term of an enterprise agreement or workplace determination by a person covered by the enterprise agreement or workplace determination [17].

Preparing for your new obligations

Regulations are yet to be released. It is expected that the future Regulations will outline gender equality targets and quotas and will be tailored to an industry or sector.

While the Act will take effect on 31 March 2021, it is important Defined Entities become familiar with their obligations to ensure not only compliance but, more importantly, to promote gender equality in the workplace and the wider community.

Contact us

For assistance and/or further information on how your organisation can prepare itself for this new auditing and reporting regime, please contact us.

[1] Minister for Women, Victorian Gender Equality Bill Makes History in Australia, 21 February 2020, https://www.premier.vic.gov.au/victorian-gender-equality-bill-makes-history-in-australia/.

[2] Gender Equality Act 2020 (Vic), s 5.

[3] Ibid, s 7.

[4] Ibid, s 9(1).

[5] Ibid, s 9(2).

[6] Ibid, ss 11(1) and (2).

[7] Ibid, 11(2).

[8] Ibid, s 12(2).

[9] Ibid, s 12(3).

[10] Ibid, 10(1).

[11] Ibid, s 16(1).

[12] Ibid, s 19(1).

[13] Ibid, s 19(3).

[14] Ibid, s 20.

[15] Ibid, s 36.

[16] Ibid, s 22.

[17] Ibid, s 39(1).