In 1984, after signing the United Nations’ International Convention on the Elimination of All Forms of Discrimination Against Women, Australia introduced the Sex Discrimination Act. It was a symbol of where community standards had reached, and our ambition for a nation where women would be treated equally, both at work and in public life.
We were moving on from the office environment where women were blatantly objectified, having their careers limited to administrative roles and being told in no uncertain terms that their pay would be less than their male counterparts.
Over thirty years later, the discrimination faced by women has evolved and the laws have not kept pace.
While the 1984 laws prohibit women being paid less because of their gender, we still have a shocking, and growing, pay equity problem: according to the Workplace Gender Equality Agency, the government agency responsible for promoting and improving gender equality in Australian workplaces, reports that the average pay gap between men and women is currently 16.2%. In 2004, it was 14.9%. In over ten years, we have not just failed to address pay inequality in the workplace, but it has actually worsened.
And in senior and professional occupations, the statistics are worse. There is a 28.8% pay gap between male and female managers. This year the Australian Law Council reported that the pay gap between male and female barristers is 141%, even taking into account adjustments for average hours worked.
Many in the legal industry have taken prompt action to address this. The Law Council of Australia has an equitable briefing policy, which contains goals to increase the use and pay of female barristers in Australia. Firms such as Maurice Blackburn also have their own equitable briefing policies to encourage a higher use of female barristers in litigation.
While some responsible corporations do their bit to address discrimination at work, our lawmakers have done very little to address discrimination faced by women at work.
There have been agencies and laws introduced to give the perception of a commitment to improving the position of women at work, but they very rarely provide any consequences for companies who fail to treat their female employees fairly. Further to that, they often fail to provide women any actual right to redress when they have been treated unlawfully.
For example, the Australian Human Rights Commission’s National Review on Pregnancy And Return to Work found that almost half of working women reported discrimination in their pregnancy, parental leave, or access to flexible working arrangement.
The Fair Work Act gives employees a right to request flexible working arrangements, such as a change in working hours, to accommodate family responsibilities. The employer can deny this request, but apparently must do so on “reasonable business grounds”
There is no mechanism for enforcing the right. Practically speaking, if an employer says “no”, even in the absence of reasonable business grounds, there is nothing an employee can do under the Fair Work Act to challenge it.
It seems bizarre to call something a “right” when it cannot be enforced. While it is common for legislation to be part of the implementation of cultural change, why bother creating a right that is not enforceable
The same can be said for victims of domestic violence, the vast majority of whom are women. Since 2010, there have been calls to amend anti-discrimination legislation to provide workplace protections for women who are victims of domestic violence. In the years since there have been widely publicised cases of women losing their jobs or being treated poorly at work because of their domestic violence victim status. Our Human Rights Commission and Law Reform Commission have joined the calls for protections to be inserted in our anti-discrimination laws, yet in 6 years, nothing has happened.
Some corporations and states have taken matters into their own hands, providing guaranteed protections and rights for women in the workplace, beyond what our workplace laws require.
Unions have also worked hard on this issue, including seeking agreements from companies to enterprise-wide protections and leave for domestic violence victims.
While such measures ought to be recognised and applauded as addressing the evolving nature of discrimination at work, women are still left relying on the attitude of individual employers to provide protection and rights.
We need our laws to catch up with community standards and with the evolving nature of discrimination.
Our current laws may assist in addressing some discrimination, but they do little to deal with the new frontiers of inequality, such as systemic pay inequality and workplace responses to flexibility requirements and domestic violence.
Despite the best intentions of our Sex Discrimination Act, in 2016 our workplace laws are still unfortunately failing too many women.
