This article applies to public sector organisations (including public hospitals and health services, TAFE institutes and water authorities), local councils and universities.
Gender Equality Act 2020 (Vic) and Gender Equality Regulations 2020 (Vic)
On 31 March 2021 the Gender Equality Act 2020 (Vic) (the Act) and the Gender Equality Regulations 2020 (the Regulations) (Vic) will commence operation.
The primary purpose of the Act and the Regulations is to require public sector organisations, local councils (councils) and universities to take positive action towards achieving workplace gender equality and to require these organisations to promote gender equality in their policies, programs and services. The Act also establishes the new Public Sector Gender Equality Commissioner (Commissioner) who will oversee compliance with the Act and the Regulations.
The key changes introduced by the Act and the Regulations are discussed further below.
Who is covered by the Act?
The Act applies to ‘defined entities’ who have 50 or more employees. An entity is a defined entity on a particular day if it is, on the most recent 30 June before that day:
- a public service body (e.g. Departments and administrative offices); or
- a public entity (e.g. public hospitals and health services, TAFE institutes and water authorities); or
- a special body; or
- a Council; or
- Court Services Victoria; or
- a university within the meaning of the Education and Training Reform Act 2006 (Vic); or
- the Office of Public Prosecutions; or
- a prescribed entity (as at the date of publication no entities have been prescribed).
An employee means a person employed by the defined entity on a fulltime, part-time, casual or fixed term basis (including an apprentice or trainee), but does not include a contractor or subcontractor, an outworker, a person on a vocational placement, a student gaining work experience, or a volunteer.
Gender Impact Assessments
Under the Act, defined entities have a duty to consider and promote gender equality when developing their policies and programs and when delivering services to the public that have a direct and significant impact on the public. To this end, defined entities are required under section 9 of the Act to undertake a Gender Impact Assessment (GIA) of their new policies, programs and services that directly and significantly impact the public. The GIA requires consideration of the effects that the defined entity’s policies, programs or services have on different genders and how those policies, programs or services address gender inequality and promote gender equality.
Gender Equality Action Plans and Workplace Gender Audits
Under section 10 of the Act, defined entities are required to prepare a Gender Equality Action Plan (GEAP) once every 4 years (with the first GEAP being due by 31 October 2021).
In preparing the GEAP, defined entities are required to take into account the gender equality principles and must consult with the governing body of the entity, the employees, employee representatives as well as any other relevant persons. The gender equality principles are set out in section 6 of the Act and include such principles as, all Victorians must have the right to live in a safe and equal society, and have access to equal power, resources and opportunities and be treated with dignity, respect and fairness, and that gender equality benefits all Victorians regardless of gender.
It is important to note that before developing a GEAP, defined entities are required under section 11 of the Act to undertake a workplace gender audit. This first workplace gender audit must assess the state and nature of gender inequality in the workplace of the defined entity as at 30 June 2021, having regard to the workplace gender equality indicators and other forms of disadvantage or discrimination that a person may experience. We also note that to assist in the development of the audit, the Commission for Gender Equality in the Public Sector (Commission) have published a ‘Workplace gender audit guide’ which defined entities are required to comply with under section 47 of the Act. The guide is available on the website of the Commission here.
Organisations that are defined entities should also be aware that they are required to include the results of the workplace gender audit in the GEAP and must develop strategies and measures to make change based on the results of the audit. It is also important to note that the Commission has developed a Gender Equality Action Plan guide to help organisations develop their GEAP. Under section 47 of the Act, defined entities are required to comply with this guide. The guide is available on the website of the Commission here.
Within a reasonable time after submitting the GEAP to the Commissioner, defined entities are required to publish the completed GEAP on their website and notify the governing body, the employees and employee representatives of the defined entity, of that publication.
Every second year after submitting a GEAP to the Commissioner, defined entities are required under section 19 of the Act to submit a progress report to the Commissioner which must (amongst other things) report on the defined entity’s progress in relation to the measures and strategies set out in the GEAP and which must demonstrate the defined entity’s progress in relation to the workplace gender equality indicators and meeting any gender equality targets or gender equality quotas in relation to that defined entity. We note that the first progress report is due on 31 October 2023.
Section 20 also requires defined entities to publish their progress report on their website as soon as is reasonably practicable after the report is submitted to the Commissioner.
Non-compliance with the Act
It is important to note that the Commissioner has enforcement powers to issue compliance notices to those defined entities who fail to comply with the Act or the Regulations. For example, the Commissioner may decide to issue a compliance notice where a defined entity has failed to submit a GEAP, has not made reasonable progress towards meeting gender equality targets, or has not prepared a progress report in accordance with the Act.
Section 24 of the Act provides that where a defined entity disagrees with a compliance notice, the entity has 14 days after receiving the notice to give a written response to the Commissioner, outlining their reasons for disagreeing with the notice. In the event that the Commissioner confirms a compliance notice, defined entities are empowered under the Act to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the Commissioner’s decision.
Organisations who meet the definition of a ‘defined entity’ under the Act should implement processes and procedures to comply with the Act and the Regulations as discussed above. In particular, organisations that are defined entities should undertake a workplace gender audit by 30 June 2021 and should submit their Gender Equality Action Plan to the Commissioner by 31 October 2021.
We also encourage organisations who are defined entities under the Act to refer to the website of the Commission for Gender Equality in the Public Sector at www.genderequalitycommission.vic.gov.au as this website contains useful and practical guidance on how to satisfy the new obligations under the Act.
For further information please contact the Law Compliance team:
Phone: 1300 862 667