Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697631870318.pdf (Australia)
ACTU Submission to the Senate Standing Committees on Finance and Public Administration Reference Committee Inquiry Gender Segregation in the Workplace and its impact on women’s economic equality 10 March 2017 Page 1 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 Table of Contents Introduction ........................................................................................................................ 3 Gender segregation is deeply entrenched ....................................................................... 4 Gender segregation contributes to wage inequality ........................................................ 5 A proactive response to gender inequality is critical ....................................................... 7 Measures to support workers with caring responsibilities .............................................. 8 Measures to promote pay equity .................................................................................... 12 Measures to combat sex discrimination, harassment and violence at work .............. 17 Measures to provide dignity for women in retirement .................................................. 21 Conclusion ........................................................................................................................ 21 Page 2 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 Introduction 1.
The Australian Council of Trade Unions is the peak body representing almost two million working Australians.

The ACTU and its affiliated unions have a long and proud history of representing women workers and advocating for pay equity.

2.

We welcome the opportunity provided to make this submission to the Senate Inquiry into Gender segregation in the workplace and its impact on women’s economic equality.

3.

Gender segregation remains a stubborn feature of our labour market.
Women are more likely to work in lower paid roles and lower paid fields, are more likely to work part-time or casually, and are more likely to take breaks from paid employment to provide unpaid care for others.

Over their lifetimes, as a consequence, they will earn significantly less than men.1 4.

The gender pay gap in Australia has not shifted in two decades and the economic disparity between women and men around the world is rising.
The World Economic Forum estimated that at current rates, it would take another 170 years to close the global pay gap between men and women.2 This injustice must not be allowed to continue.

5.

Legislative reform to address the historic undervaluation of women’s work and structural inequalities that sustain wage inequality is urgently needed.

6.
6.

Numerous government reports and academic studies have shown that reducing the gender pay gap and increasing women’s participation is in Australia’s economic interest.3 Moreover, recognition of women’s rights as human rights demands that we redouble efforts to achieve equality at work.

1 Economics Reference Committee, Inquiry into economic security for women in retirement, Final Report (2016) xi.

2 World Economic Forum, Global Gender Gap Report (2016) 24.
3 2015 Intergenerational Report (2015); Goldman Sachs JB Were Investment Research, Australia’s Hidden Resource: The Economic Case for Increasing Female Participation (2009);J Daley, Game-changers: Economic reform priorities for Australia, Grattan Institute (2012).

Page 3 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 7.
In this submission, we propose measures to recognise and reward care work, address discrimination, harassment and violence against women, and promote pay equity.

8.

The ACTU supports the submissions and recommendations made by our affiliates to this inquiry.

Gender segregation is deeply entrenched 9.

The Australian labour market is highly gender-segregated by industry and occupation, a pattern that has persisted for over twenty years.4 10.
Women predominate in industries such as health care and social assistance (79%) and education and training (71%) while male dominated industries include construction (88%), mining (87%), electricity, gas, water and waste services (79%), transport, postal and warehousing (77%) and manufacturing (72%).5 11.
While roughly half of the male-dominated industries, have seen improvement in female representation, traditionally female-dominated industries have seen the proportion of women increase further.6 Decline in female representation has also been recorded in two male-dominated industries: construction and wholesale trade.7 12.
Occupational gender-segregation has remained fairly consistent since 1995.8 Women make up 74% of clerical and administrative workers and 68% of community and personal service workers while labourers, technical and trade workers and machinery operators and drivers are male-dominated occupations.9 13.

Gender segregation is also evident in relation to the form and level at which men and women are employed.
Women make up more than 70 per cent of all part- 4 Workplace Gender Equality Agency, Gender segregation in Australia’s workforce (2016).

5 Ibid.

6 Ibid.

7 Ibid.

8 Ibid.

9 Ibid.

Page 4 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 time workers.10 Almost half (46%) of all employed women work part-time, compared with 19 per cent of men.

A majority (55%) of all casual employees are women.11 14.
Men continue to dominate at higher levels across all industries and occupations, with little sign of improvement.

In 2014, 20 per cent of men worked in managerial positions compared with 11 per cent of women.

The proportion has increased marginally from 16 per cent of men and 9 per cent of women in 2007.12 15.
Gender segregation is marked at the workplace level with nearly three quarters of employees working in an organisation dominated by one gender.13 Gender segregation contributes to wage inequality 16.

Gender segregation across the labour market is one of the most significant factors contributing to the gender pay gap.

17.

Industries and occupations that have historically been dominated by women attract lower wages than sectors with a high ratio of male workers.
It is estimated that each 10 per cent increase in the ratio of men to women in an industry increases the average wage by 1.9 per cent, while each 10 per cent increase in this ratio in an occupation increases the average wage by 0.8 per cent.14 18.

The value attributed to stereotypically ‘masculine’ work affects the size of the gender pay gap for employees with similar skills working in different fields.
Female managers are more likely to be remunerated closer to their male peers if the managerial environment is heavily male-dominated.15 19.

In general, female-dominated organisations tend to have lower pay (both base and total remuneration) when compared to male-dominated organisations.

This 10 WGEA, Gender workplace statistics at a glance (2016) 11 Australian Bureau of Statistics (ABS) 2015, Characteristics of Employment Australia, August 2014, cat.

no.

6333.0.
no.

6333.0.

12 KPMG, She’s Price(d)less – The Economics of the Gender Pay Gap (2016) 25.

13 Workplace Gender Equality Agency, Gender segregation in Australia’s workforce (2016).

14 KPMG, She’s Price(d)less – The Economics of the Gender Pay Gap (2016) 11.

15 Curtin University,WGEA, Gender Equity Insights 2016: Inside Australia’s Gender Pay Gap (2016) 7.
Page 5 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 pattern exists across full-time, part-time and casual workers.16 Male-dominated organisations have the lowest gender pay gap when assessing base salaries, but the highest gender pay gap when comparing total remuneration.17 20.
A recent report commissioned by the Diversity Council of Australia and Workplace Gender Equality Agency estimates that industry and occupational segregation accounted for 30 per cent of the gender pay gap in 2014.18 A comparative study of the gender pay gap in the US, UK, Australia, Germany and France attributes 38 percent of the gap to the sorting of men and women into jobs that pay differently throughout the economy, which is by far the largest factor explaining gender pay differences.19 21.
Gender gaps in labour outcomes are clearly linked to inequality in unpaid care work.20 The amount of time devoted to unpaid care work is negatively correlated with female labour force participation.

Caring responsibilities are also related to the quality of female employment with the unequal amount of time spent by women on unpaid care work increasing the probability that they will be engaged in part-time or in vulnerable employment.
Moreover, in countries where women spend a large amount of time on unpaid care and there is a large gender gap in time spent, the gender gap in hourly wages is also higher.

22.

Australian women spend nearly twice as long as men on unpaid work including domestic activities and childcare.21 Part-time roles are dominated by women and are significantly lower paid (on a full-time equivalent basis) than full-time roles.22 23.
It is estimated that working part-time accounted for 14 per cent of the gender pay gap in 2007, although the contribution of this factor appears to have reduced in recent years.

Work interruptions for female employees requiring absenteeism for 16 Ibid, 33.

17 Curtin University,WGEA,Gender Equity Insights 2016: Inside Australia’s Gender Pay Gap (2016) 34.

18 KPMG, She’s Price(d)less – The Economics of the Gender Pay Gap (2016) 8.

19 Chamberlain.
19 Chamberlain.

A, Demystifying the Gender Pay Gap: Evidence From Glassdoor Salary Data, Research Report (2016) 20 OECD Development Centre, Unpaid Care Work: the missing link in the analysis of gender gaps in labour outcomes (2014).

21 ABS, Gender Indicators Australia (2016) 22 Curtin University,WGEA,Gender Equity Insights 2016: Inside Australia’s Gender Pay Gap (2016) 7.
Page 6 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 maternity, childcare and other family reasons account for as much as 21% of the gap.23 A proactive response to gender inequality is critical 24.
The ACTU firmly believes that a new approach to gender pay equity is required, one that acknowledges that relying on market forces, the effluxion of time or improvements in women’s human capital will not remedy the intractable gender pay gap or address the structural inequalities that underpin gender segregation across industries and occupations.

25.
25.

At the heart of the pay gap is the failure to truly value traditional women’s work – paid or unpaid.24 The lack of recognition for ‘feminine’ work and the impact of pervasive sexist norms in the workplace is not effectively addressed by relying on employers to voluntarily and consistently promote diversity, despite the very strong business case for doing so.25 26.
Data compiled by WGEA shows that only 21% of large businesses have a gender equality strategy and only half of those organisations that undertook a gender pay gap analysis in 2014-15 also took action in response to issues identified.26 27.

Further, it is unrealistic to expect that employers will be able to respond to labour market supply issues that affect entire industries or occupations by individually implementing gender equality strategies, at least not in the foreseeable future.

28.
28.

In order to effectively address gender segregation, policy makers must take a proactive role and amend the regulatory and institutional framework in order to drive workplace, economic and cultural change.

23 KPMG, She’s Price(d)less – The Economics of the Gender Pay Gap (2016) 13.

24 House of Representatives Standing Committee on Employment and Workplace Relations, Pay equity and associated issues related to increasing female participation in the workforce (2009) xiv.
25 See for example WGEA, The business case for gender equality, March 2013; M Robinson, C Pfeffer and J Buccigrossi, Business Case for Diversity with Inclusion, wetWare, Inc (2003); D Borisova and O Sterkhova, Women as a Valuable Asset, McKinsey & Company (2012); L Joy and N Carter, The Bottom Line: Corporate Performance and Women's Representation on Boards, Catalyst (2007).
26 WGEA, Australia’s Gender Equality Scorecard (2015) Page 7 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 Measures to support workers with caring responsibilities 29.

The lack of support for employees seeking to balance work and caring responsibilities is a major impediment to economic equality and accounts for poor work-life outcomes for women workers.

30.
30.

Without access to high quality, affordable early education and care, adequate paid parental leave entitlements and quality jobs, women carers will continued to remain locked out of certain occupations, industries and career pathways and reliant on insecure, low paid jobs as the only available means of achieving a degree of workplace flexibility.

31.

Australia faces ongoing demographic changes and an ever increasing number of workers have care responsibilities.
While the proportion of male carers is comparatively low, family friendly workplace arrangements are increasingly being sought by men.27 32.

The ACTU recognises the importance of enabling men and women to share caring responsibilities and the need to increase the participation of men in caring for dependents.

33.

Broad societal change is linked to labour market reforms.
We support measures that recognise and reward caring work and enhance the capacity of workers of both genders to participate more equitably in the labour market.

Extend the current paid parental leave scheme 34.

Universal access to paid parental leave (PPL) is critically important to ensuring that women are able to remain in employment during their child-bearing years and in order to minimise the impact of breaks in employment on career progression.

35.
The Senate Economics References Committee recommends that the Commonwealth Paid Parental Leave Scheme continue to be improved over time 27 ABS Media Release, Dad’s the word (2016) Available at http://abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4125.0~August%202016~Media%20Release~Dad's%20the%20 word%20(Media%20Release)~2 Page 8 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 to allow for 26 weeks paid parental leave through the combination of government and employer funding.
The Committee also recommends that the superannuation guarantee should be paid on the Commonwealth Paid Parental Leave Scheme.28 36.

Whilst the ACTU certainly supports these recommendations, we advocate for a more substantial improvement to the existing PPL scheme.
We propose:  extending the minimum period of government-funded paid leave to 26 weeks at no less than the national minimum wage;  providing superannuation at the guaranteed contribution rate for all periods of paid and unpaid parental leave; and  requiring employers to top-up the Government component to full wage replacement.

37.

Our proposal would ensure that new parents are able to take to 26 weeks off work to care for a new-born without suffering a loss of income.
It is common practice across OECD countries to provide parental leave at a level that is close to average earnings and 13 OECD countries already provide maternity benefits that fully replace earnings for an average earner.29 38.
The ACTU further submits that there is merit in moving to a model of shared PPL in which a component of the total amount of leave available to working parents is designated as dad and partner pay (DAPP) available on a ‘use it or lose it’ basis in order to encourage men to play a more active role in fathering.

However we would not support a combined PPL/DAPP model where this involved a reduction to existing leave entitlements.
28 Senate Standing Committee on Economics, Achieving economic security for women in retirement (2016).
29 OECD Family Database http://www.oecd.org/els/family/database.htm OECD - Social Policy Division - Directorate of Employment, Labour and Social Affairs PF2.4: Parental leave replacement rates, available at http://www.oecd.org/els/family/PF2_4_Parental_leave_replacement_rates.pdf Page 9 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 Provide carers with a right to quality part-time work and access to flexible work arrangements 39.
A number of previous inquiries have acknowledged the ACTU’s concerns regarding the operation of section 65 of the Fair Work Act 2009 (FW Act).

40.
In 2016, the Economics References Committee recommended that the Australian Government consult with stakeholders on practical options to implement the relevant findings from the Australian Human Rights Commission's Supporting Working Parents: Pregnancy and Return to Work National Review, which recommends strengthening the 'right to request' provisions under s 65 of the Fair Work Act 2009 by:  removing the qualification requirements in section 65(2)(a) of the FW Act (that is, the requirements for 12 months' continuous service);  introducing a positive duty on employers to reasonably accommodate a request for flexible working arrangements; and  establishing a procedural appeals process through the Fair Work Commission for decisions related to the right to request flexible working arrangements to ensure processes set out in the FW Act have been complied with.
41.

We welcome these recommendations and urge this Committee to recommend that the proposed amendments be implemented as soon as possible.

42.

Through the review of modern awards process, the ACTU will ask the Fair Work Commission for a new right for employees to temporarily reduce their working hours to accommodate their caring or parenting responsibilities.
The proposed entitlement would be confined to employees who are responsible for the care of a child of school age or younger, or of an individual who has a disability, a medical condition (including a terminal or chronic illness), a mental illness, or who is frail and aged, and relates only to the reduction of working hours.
The right to request flexible working arrangements in s 65 extends to a broader group of employees, including older workers, those with a disability and employees experiencing family violence, as well as a broader range of types of flexible working arrangements, Page 10 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 including changes to location and start times.
Our application is intended to complement proposed changes to the right to request outlined above.

Provide universal access to quality, affordable childcare 43.

Formal and informal Early Childhood Education and Care (ECEC) services play a vital role in the development of Australian children and their preparation for school, and in enabling parents to work.30 The highest rates of employment of mothers in the OECD countries are in countries where public investment in childcare is high.

44.
44.

In Australia, public investment continues to fall short of levels needed to enable families to access ECEC services and fully participate in the workforce.

Many parents report difficulties in finding ECEC at a location, price, quality and hours that they want.31 ECEC availability and costs are currently acting as a disincentive for female access to the workforce.

45.
45.

The ACTU recommends that funding for ECEC services be increased to 1% of GDP, in line with best practice in the OECD32 and that every child in Australia be provided with access to at least 15 hours a week for 40 weeks per year of high- quality early childhood education taught by a university-trained teacher in the year before school.

46.
46.

Providing universal access to two days a week of ECEC for children from birth to school age would facilitate a significant increase in the number of hours that women could work who wish to.. 47.

Obviously, early education and care must be funded in its own right and not contingent on cuts to other measures that support families.

A net loss in measures to support women with caring responsibilities is inconsistent with gains in gender equality.
ECEC is a very efficient measure in that it is of benefit for 30 Productivity Commission, Childcare and Early Learning Inquiry Report (2014) p3.

31 Ibid.

32 New Zealand, Finland, Bulgaria, Norway, France, Denmark, Sweden and Iceland all spent at least 1% of GDP on ECEC services in 2013.

Sweden spent over 1.6% and Iceland over 1.8%.


See OECD Social Policy Division, Public Spending on Childcare and Early Education, available here: https://www.oecd.org/els/soc/PF3_1_Public_spending_on_childcare_and_early_education.pdf, accessed March 2017.

Page 11 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 children, whether or not their parents are in work, and assists welfare needs of parents including female carers.
Measures to promote pay equity A fairer modern award safety net 48.

The safety net provided by modern award minimum wages contributes to pay equity in a number of ways.

First, to the extent that modern awards establish minimum rates for work of equal or comparable value, they ensure that the gender pay gap among award dependent workers remains lower than it otherwise would be.

Second, a higher proportion of women than men are dependent on awards.
Consequently, increasing minimum rates benefits women relative to their current pay position and reduces the overall difference between male and female earnings.

49.

The FW Act requires the Expert Panel to review modern award minimum wages annually.

As part of the 2015-16 Annual Wage Review, United Voice proposed that the Expert Panel set a medium-term target as an additional tool to assist it in the performance of its obligations.

50.
50.

The ACTU strongly supports the introduction a medium-term target for the national minimum wage as year-on-year variations in nominal and real wage measures tend to mask the net outcomes in terms of longer term trends.

51.

The National Minimum Wage (NMW) has grown particularly slowly in Australia over the last three decades, contributing to widening inequality.
The failure to provide minimum wage increases that are commensurate with growth in average earnings disproportionately affects women as women are more likely to be award dependent.

Hence the adoption of and adherence to a relative target is likely to promote pay equity.

52.

In our view, the existing legislative framework permits the Commission to adopt a medium term target.
Nevertheless, the ACTU recommends that consideration should be given to amending the FW Act to ensure that wage rates for the lowest Page 12 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 paid are improved over time relative to average earnings.

This follows the model adopted by the UK Low Pay Commission in its administration of the Living Wage.

53.
53.

Further, in light of the recent Commission decision to lower penalty rates for low- paid hospitality and retail workers, the ACTU submits that specific legislative reform is required to ensure that penalty rates are protected for all workers and all workers are properly compensated for working unsocial, irregular or unpredictable hours.

This recognises the significance of work at unsociable hours, disproportionately performed by women at minimum pay and award only rates.
Review the equal remuneration provisions 54.

The primary means of addressing gender pay inequity under the FW Act is the provision of Equal Remuneration Orders under Part 2-7 of the Act.

The relevant legislative provisions were intended to provide the Commission with broad powers to make remedial orders to ensure equal remuneration for work of equal or comparable value.

55.

To date only one successful case has been run under these provisions.
While the ACTU is pleased with the outcome of the application in respect of workers in the social, community and disability services sectors, we share the concerns raised by ASU, United Voice and others regarding the effectiveness of the existing provisions as a means of providing equal remuneration for work or equal or comparable value.

56.
56.

The pursuit of equal pay orders under the existing provisions has proved to be an extremely costly, time-consuming and highly adversarial process, despite widespread recognition that feminised industries and occupations are low paid due to the under-valuation of care work.

57.

The 2009 Inquiry into pay equity and associated issues related to increasing female participation in the workforce examined the adequacy of the FW Act as a means of closing the gap between male and female pay and conditions.
The committee concluded that the recognition of pay equity in the Act needed to be strengthened.

Page 13 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 58.
Key amendments recommended by the Committee to give effective recognition to the right to equal remuneration included the following:  State pay equity as an explicit and key objective of the Act  Upgrade pay equity from principle to be taken into account to explicit obligation in award making  Expand variation of award on the grounds of work value to include historical under-valuation of work value on the basis of gender  Impose an obligation to negotiate on equal remuneration in collective bargaining  Require enterprise agreements implement equal remuneration and not provide certification unless the Commission is satisfied the agreement implement pay equity  Upgrade equal remuneration from principle to be taken into account in minimum wage fixing in annual wage reviews an national wage order to explicit obligation  Require the President of the Commission to state explicitly the appropriate equal remuneration principle and give detailed direction on how equal remuneration is to be handled.
 Establish a discretionary fund for the pursuit of cases in relation to remuneration orders.

59.

The ACTU supports a review to determine the effectiveness of Equal Remuneration Orders in addressing gender pay equity, and consequently in closing the gender pay gap.
As recommended in 2016, the review should consider alternative mechanisms to allow for a less adversarial consideration of the undervaluing of women's work.33 33 Senate Standing Committee on Economics, Achieving economic security for women in retirement (2016).

Page 14 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 Provide public funding to support improvements in wages and conditions for workers in low-paid feminised industries 60.
A significant barrier to collective bargaining in low-paid highly feminised industries (such as early education, aged care, disability services) is that employers in these industries commonly operate on a not-for-profit basis and wage rises are dependent on additional public investment.

61.

Equal pay orders are subject to the same limitation.
The implementation of the equal pay decision in relation to social and community service ultimately relied on an agreement from the Commonwealth to fund wage increases and Commission gave weight to government budgetary considerations in reaching its decision.

62.
62.

In order to improve wages and conditions in feminised industries and provide salaries that are high enough to attract and retain both male and female workers, it will be necessary for Governments to increase funding in a way that flows through to employee pay packages and use public procurement to promote pay equity among service providers.

63.
63.

The ACTU submits that without Government assistance to these industries, there is relatively little that can be achieved through the industrial relations framework to address pay inequity.

64.

We would contend that budget constraints are questionable in a context where taxing and government spending as a share of GDP is one of the lowest in the OECD.
Providing public funding to support improvements in wages and conditions will, in fact, assist the budget in the longer run, as increased tax revenue is generated from the increased access to employment.

Strengthen the existing workplace gender equality framework 65.

The Workplace Gender Equality Act 2012 requires non-public sector employers with 100 or more staff to submit an annual report to the Workplace Gender Equality Agency (WGEA).
Businesses are required to report against six gender equality indictors.

Page 15 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 66.

Mandatory annual reporting provides an incentive for employers to improve their practices and make use of the tools developed by the WGEA to promote gender equality.

Though progress has been slow, there is strong evidence that the reporting requirements have contributed to promote pay equity in larger businesses.

67.
67.

The ACTU recommends that reporting requirements be extended to apply to all businesses to ensure that organisations are accountable with respect to gender equity issues.

Further we recommend that businesses be required to provide gender pay data at a more granular occupational level, consistent with the ANZSCO level 4 occupational categories.
Page 16 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 Measures to combat sex discrimination, harassment and violence at work 68.

In recent years, there have been several inquiries that have confirmed the prevalence of discrimination and recommended strengthening existing anti- discrimination laws.34 Unfortunately, many of the recommendations arising from these inquiries have not been implemented.

69.
69.

Sexual harassment, discrimination and violence toward women are highly prevalent, especially in male dominated occupations and industries.

One in two (49%) mothers reported experiencing discrimination in the workplace at some point during pregnancy, parental leave or on return to work and over a quarter (27%) of the fathers and partners surveyed reported experiencing discrimination in the workplace related to parental leave and return to work as well.
Women working in male dominated industries during pregnancy are more likely to report experiencing discrimination (31%) than those who work in female dominated industries (21%).35 70.

Women in male dominated industries and occupations are also less like to report gender discrimination.

For example a 2014 survey of women in mining found that 60 per cent of women don’t report discrimination for fear their claims will not be taken seriously by their male superior.
70% of the blue-collar female workers surveyed had routinely experienced discrimination while working on a mine site compared with 30% of female white-collar workers.36 34 Australian Human Rights Commission, Supporting Working Parents; Pregnancy and Return to Work National Inquiry (2014) see Recommendation 3, Appendix 6; Senate Economics Committee, Inquiry into Pay equity and associated issues related to increasing female participation in the workforce (2009) see Recommendation 6; Standing committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (2008) 35 Australian Human Rights Commission, Supporting Working Parents; Pregnancy and Return to Work National Inquiry (2014) 36 http://www.qmeb.com.au/60-per-cent-women-mining-dont-report-discrimination/ Page 17 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 Address existing gaps in anti-discrimination law 71.
The ACTU has consistently expressed the view that, in order to improve the effectiveness of the anti-discrimination legal framework, reform is required which will deliver:  A positive approach, including a clear statement of the objective of the consolidated Act to achieve substantive equality and the introduction of an obligation to take reasonable and appropriate measures to eliminate discrimination as far as possible;  New regulatory models that actively uncover discrimination, assist organisations to eliminate discrimination, prevent its recurrence, and enforce non-compliance;  Greater synergy between anti-discrimination law and complementary legislation such as the Workplace Gender Equality Act; and  The social and economic benefits of inclusive employment practices to the Australian community based on full participation of a diverse range of skilled, experienced and talented labour market.
72.
In our view, the key specific shortfalls in the anti-discrimination legal framework include:  A lack of clear, positive objectives to prevent and eliminate discrimination and promote substantive equality;  Out-dated definitions and technical requirements which serve to make it difficult for meritorious claims to progress;  The reliance on individual complainants is biased in favour of large, well- resourced organisations and does not facilitate resolving systemic discrimination;  There is insufficient provision for the Australian Human Rights Commission (AHRC) and other appropriate organisations to initiate investigations and claims of systemic discrimination; Page 18 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38  There is insufficient advocacy support and representation of vulnerable and disempowered complainants;  The complaints process is time consuming, overly legalistic and costly;  There are insufficient regulatory tools to encourage and assist organisations to prevent and eliminate discrimination; and  The enforcement provisions are insufficient both in terms of regulation and the level of punitive damages, particularly when compared to similar jurisdictions such as occupational health and safety and consumer protection legislation.
73.

These broad reform areas must be addressed if we are to improve the efficacy of the anti-discrimination laws to eliminate discrimination and promote substantive equality.

74.

The ACTU submits that further consideration should be given to implementing the outstanding recommendations from the 2008 Senate Inquiry into the Effectiveness of the Sex Discrimination Act 1984.
37 In particular we recommend:  Adopting a reverse onus of proof once the complainant has established a prima facie case of discrimination consistent with the adverse action provisions of the FW Act;38  Removing the requirement for a comparator to establish discrimination39  Removing the distinction between direct and indirect discrimination;40 and  Expanding the powers of the Sex Discrimination Commissioner to investigate breaches of the Act without requiring an individual complaint, commence legal action in the Federal Court or Federal Magistrates Court and promulgate legally binding standards.
37We refer the Committee to our 2012 Submission to the Attorney-General’s Consolidation of Commonwealth Anti- Discrimination Laws Discussion Paper for further information concerning this proposal.

38 See s361 FW Act.
38 See s361 FW Act.

39 The Racial Discrimination Act, FW Act and anti-discrimination legislation in some jurisdictions does not require a comparator 40 The relevant provisions of the FW Act and the Racial Discrimination Act do not distinguish between direct and indirect discrimination Page 19 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 75.
We support the Australian Human Rights Commission’s recommendation to amend the Sex Discrimination Act 1984 (Cth) (SDA) to:  extend the discrimination ground of ‘family responsibilities’ under the SDA to include indirect discrimination, and  include a positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family responsibilities.

76.
76.

We also advocate for legislative reforms to be implemented through separate amendments to state and territory legislation to ensure comprehensive protection from anti-discrimination and achieve substantive equality.

Workplace Support for employees affected by Domestic and Family Violence 77.

Sexual harassment, discrimination and victimisation of women at work should be viewed in the broader context of violence against women.

78.
78.

Workplace laws that protect job and financial security for women seeking to escape family and domestic violence are critical in the prevention of gendered violence.

Ensuring that employees affected by family and domestic violence have access to workplace support including paid domestic violence leave helps promote safe and secure workplaces.

79.

Gender segregation across the economy is underpinned by, and serves to reinforce sexist attitudes towards women.
Implementing enforceable workplace rights that promote respect for women and send a clear message that violence against women will not be tolerated in any form, helps challenge those attitudes, reshape cultural norms and empower women.

80.

The ACTU advocates for a minimum of 10 days paid domestic violence leave for all workers to be implemented through modern awards and the NES.
In addition, we call for:  Government funding to support the provision of workplace training to employers and employees regarding the implementation of paid domestic violence leave; Page 20 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38  Initiatives to generate greater awareness and adoption of workplace strategies to support cultural changes aimed at eliminating family and domestic violence; and  The conduct of appropriate further research to identify the key issues relating to the interface of family and domestic violence and the workplace.
Measures to provide dignity for women in retirement 81.

The ACTU strongly endorses the recommendations made by the Senate Economics Committee regarding Economic security for women in retirement.

82.
82.

Immediate and effective action to moderate gender segregation across industries and occupations and reduce the differential between male and female earnings must be taken in conjunction with targeted policies that improve women’s superannuation savings and assist women to live comfortably and securely as they age.

Conclusion 83.
Conclusion 83.

Legislative reform is required to address gender discrimination, assist workers to more effectively balance their work and care responsibilities and enable both genders to participate more equitably in the labour market.

84.

Voluntary business initiatives and educative strategies do not provide an effective means of addressing gender equality.

We have had decades of precisely that policy approach and the evidence is unequivocal: gender segregation has worsened.

85.
85.

The ACTU urges the Committee to acknowledge that substantive change to the regulatory framework is necessary in order to make genuine progress.
It is recommended the following strategies be adopted: Page 21 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 a) Provide carers with a right to quality part-time work and implement the relevant findings from the Australian Human Rights Commission's Supporting Working Parents: Pregnancy and Return to Work National Review concerning flexible work arrangements as soon as possible.
b) Extend the current paid parental leave to 26 weeks at the national minimum wage plus superannuation; c) Provide universal access to at least 15 hours per week of full-funded early education and care; d) Strengthen the provisions FW Act to ensure that wages and penalty rates for the lowest paid are improved; e) Review the provisions of the FW Act with respect to Equal Remuneration Orders and consider alternative mechanisms to allow for a less adversarial consideration of the undervaluing of women's work.
f) Provide additional public funding to support improvements in wages and conditions for workers in low-paid feminised industries.
g) Establish a minimum legislative standard of 10 days paid domestic violence leave for all workers and Government funding to support the provision of workplace training to employers and employees; h) Implement amendments to improve the effectiveness of the anti- discrimination legal framework and achieve substantive equality; i) Build on the existing Workplace Gender Equality Framework by extending reporting requirements to all businesses and pursuing increased granulation of ANZSCO occupational reporting categories; j) Implement all of the recommendations arising from the Senate Economics Committee regarding Economic security for women in retirement.
Page 22 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38 ADDRESS ACTU 365 Queen Street Melbourne VIC 3000 PHONE 1300 486 466 WEB actu.org.au D No: 28/2017 Page 23 of 23 Gender segregation in the workplace and its impact on women's economic equalitySubmission 38