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New law will make employers "walk the talk" on gender equality
Beware discrimination risksThe Bill, which overhauls the Equal Opportunity for Women in the Workplace Act, moves the emphasis from women to gender equality, raising the need for employers to examine their policies and practices."Employers have got to be careful in how they put together flexible working arrangements," Swebeck says. "Because if it's just slanted toward breast-feeding mothers, for example, then there's a gender inequality in the arrangements, and potentially a discriminatory quality to those arrangements." He notes that as with bullying and harassment claims, which can often rise after a workplace increases awareness of the topic through education and training, increased reporting of flexible work could potentially lead to a spike in discrimination claims by men who feel left out of the arrangements. A key risk area for employers is if their policies are skewed towards women, "because you've got this traditional mindset about who wants flexible hours", he says. "The majority of requests might be made by women, but that's not to say there won't be a request from a male and your policies must ensure you can cater for those requests." The other big risk for employers lies in denying a male employee access to flexible hours because he is, "as they say, a rainmaker and you can't afford to let him go". And, while the Bill's requirements focus solely on gender, employers should ensure they don't neglect other areas of diversity - leading to discrimination risks - in their efforts to comply, Swebeck says. Far-reaching consequencesSwebeck says the Act's requirements could increase the potential for more "equal pay" cases - such as that won by the Australian Services Union for community workers this year - "because applicants will have more evidence [of pay discrepancies]".Further, "you might find more people looking at whether they should be thinking about low-paid bargaining orders under the Fair Work Act". "I'd think some organisations will be pushing for the contents of these reports and diversity targets to be part of enterprise agreements, so that they enshrine, for example, gender equality in an EA," Swebeck told HR Daily. "So not only will you exclude yourself from tenders [for non-compliance], but you might also be in breach of an agreement under the Fair Work Act... There could be a push for that through the ACTU. I certainly think that will lead to consultation... about 'What do your flexible arrangements look like?'" Swebeck says that having gender equality statements in a report and in HR policies "is not going to be enough anymore". "I think some people are going to want to see them in workplace agreements that are registered with Fair Work Australia or if you're in the public sector, the NSW Industrial Relations Commission. "Even though there's a question as to extent of this to state public sector agencies, I would think that those agencies should as a matter of policy adopt - or think about adopting - what this Act sets out. Why have a difference from day one?" Brad Swebeck is presenting a webinar for HR Daily subscribers on contemporary workplace discrimination risks, on 29 August. Click here for details and to reserve your place.
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