Gender Equality Regulations 2020

Defined entity. The Act applies to “defined entities”, which are listed in section 5 of the Act. Regulation 4A prescribes an additional category: an existing regional library (as defined in regulation 4). This means that any regional library that existed under the old Local Government Act 1989 and continues under the Local Government Act 2020 is bound by the Act’s obligations, including the requirement to prepare a Gender Equality Action Plan, conduct a workplace gender audit and submit progress reports.

Exempt entities. Regulation 5 creates two exemptions. School councils (as defined in the Education and Training Reform Act 2006) are entirely exempt from the Act. The Tribunal (VCAT) is exempt from the Act except for Parts 1, 2, 3, 4, 5, 7 and 8. That means the Tribunal must still comply with the core Parts covering preliminary matters, gender equality principles, the functions of the Commissioner, Gender Equality Action Plans and audits, and the complaint and enforcement framework, but is exempt from the remaining Parts (likely Part 6, which deals with procurement and other matters). The partial exemption reduces the Tribunal’s compliance burden while still holding it to the Act’s main obligations as a “defined entity” itself.

Gender pay equity principles. Regulation 5A sets out six principles that a defined entity must address in its Gender Equality Action Plan under subsection 10(1)(c) of the Act. The principles are:

• equal pay for work of equal or comparable value, assessed by skill, effort, responsibility and working conditions;
• employment and pay practices free from bias and discrimination, including unconscious bias and gender‑based assumptions;
• transparency of employment and pay practices, pay rates and systems, with information readily accessible and understandable;
• recognition and accommodation of different patterns of labour force participation by employees who undertake unpaid or caring work;
• collectively developed, sustainable and enduring interventions and solutions;
• collaborative working between employees, unions and employers to achieve mutually agreed outcomes.

These principles are not merely aspirational; a defined entity must demonstrate how it has taken them into account when preparing its Action Plan. The term “pay” is broadly defined to include salary, bonuses, overtime, allowances and superannuation.

Workplace gender audit assessment period for universities. Regulation 5B provides a conditional exemption for universities from the requirement that a workplace gender audit assess the state of gender inequality as at 30 June. A university may instead use 31 March as the reference date, and must base its data on that date. This adjustment aligns with the academic year and reduces duplication for institutions that already report under Commonwealth gender equality laws.

Progress report format and progress audit method. Regulation 5C, inserted by the 2023 amendments, requires a progress report to be in a format approved by the Commissioner. The progress audit must: collect information on the workplace gender equality indicators; compare that information with the immediately preceding workplace gender audit; and include in the report both the new information and the comparison results. The method standardises how entities track change, but imposes a structured comparison that may reveal little if the preceding audit was a different scope or if the entity is reporting for the first time.

Designated body. The Act defines “designated body” in section 38(1) to include entities prescribed by regulation. Regulation 7 prescribes councils, universities and existing regional libraries. Being a designated body means complaints about a breach of the Act can be made to the Commissioner or VCAT regarding that entity. This adds litigation risk.

The Regulations directly affect defined entities prescribed under the Act, entities granted exemptions, and those designated for complaints. The primary group comprises Victorian councils (through their inclusion as defined entities via the Act itself, and as designated bodies under regulation 7(a)), universities (regulation 7(b)), and existing regional libraries (regulation 4A and regulation 7(c)). These entities must invest time and resources to comply with the Act’s planning, auditing and reporting obligations as modified by the Regulations.

Universities receive special treatment: they may use a 31 March audit reference date (regulation 5B) and a different relevant period for progress reports (regulation 6, referring to the previous two Commonwealth reporting periods under the Workplace Gender Equality Act 2012). This reduces the compliance burden of duplicating state and federal reporting cycles, but still requires alignment between two regimes. University administrators, particularly human resources and legal teams, must coordinate data collection across state and Commonwealth frameworks.

Existing regional libraries are newly captured by the 2023 amendments. Previously they may not have been defined entities. Now they must prepare Action Plans and audits, and they are also designated bodies, making them subject to complaints. For a small library with limited administrative capacity, the compliance costs could be significant relative to its operating budget.

School councils are entirely exempt (regulation 5(1)). This removes a class of volunteer‑run bodies from the Act’s obligations. The rationale likely reflects the burden that would otherwise fall on unpaid members. The Tribunal is partially exempt (regulation 5(2)). It must comply with the core Parts of the Act but not the residual Parts, reducing its reporting scope.

Employees and unions are indirectly affected. The gender pay equity principles require entities to engage collaboratively with unions and employees, and to make pay information accessible. This may empower advocacy and bargaining around pay equity. However, it also risks creating formalised consultation processes that generate documentation rather than substantive change.

The Commissioner for Gender Equality in the Public Sector is affected because the Regulations confer functions: approving progress report formats and publishing them on the website (regulation 5C(3)). The Commissioner’s discretion over the format gives her control over the compliance burden.

Finally, anyone with standing to make a complaint under the Act can now complain against councils, universities and existing regional libraries as designated bodies. This expands accountability, but also increases the risk of vexatious or strategic complaints that impose defence costs.

Duty to address gender pay equity principles in the Action Plan. Under subsection 10(1)(c) of the Act, as operationalised by regulation 5A, a defined entity must explain in its Gender Equality Action Plan how it has taken the six prescribed principles into account. This is not a mere tick‑a‑box obligation: the principles require a detailed analysis of pay equity, bias, transparency, caring‑work patterns and collaborative development. An entity that fails to credibly address any one of these principles may be in breach of the Act, even if other mandates are satisfied.

Duty to conduct a workplace gender audit at the correct reference date. For universities, regulation 5B sets 31 March as the assessment date, conditional on compliance with that regulation. If a university uses the standard 30 June date it must still comply with the Act’s other requirements; but the exemption is conditional, meaning a university that cannot or does not use 31 March must revert to 30 June. The practical effect is that a university must choose a date and then ensure all data is collected accordingly.

Duty to submit progress reports in the prescribed format and using the prescribed method. Regulation 5C requires a progress report to be in the Commissioner’s approved format and to include a progress audit that compares new indicator information with the previous audit. The entity must collect data, compare it, and present both sets. This creates a baselining process that forces the entity to track changes over time, which may reveal stagnation or regression. The methodology is prescriptive, leaving no room for alternative statistical approaches that might better suit the entity’s size or data systems.

Right to exemption or modification. School councils have a blanket right to be exempt from the entire Act. The Tribunal has a right to be exempt from Parts of the Act beyond those listed. Universities have a conditional right to use an alternate audit date and reporting period. These rights reduce compliance costs for those entities.

Right to be a designated body has no benefit; it imposes vulnerability. Being a designated body under regulation 7 gives complainants a pathway to VCAT. The entity gains no corresponding right from that designation; it merely becomes a possible respondent.

Duty to monitor the Commissioner’s website. Regulation 5C(3) requires the Commissioner to publish any approved format. Entities must check the website to know the required format for progress reports. If the Commissioner changes the format without adequate notice, entities face uncertainty and potential non‑compliance.

Rights of complainants. Under the Act, complainants can seek redress against designated bodies. The Regulations expand the pool of potential respondents to include councils, universities and existing regional libraries. This gives complainants an enforcement tool against a broader set of employers, but also invites disputes over the interpretation of the gender pay equity principles.

The Regulations themselves do not create new penalties. Enforcement occurs through the mechanisms of the Gender Equality Act 2020. The Act contains its own offence and enforcement provisions, which are triggered when a defined entity fails to comply with obligations that the Regulations elaborate.

Specifically, a defined entity that fails to prepare a Gender Equality Action Plan addressing the prescribed gender pay equity principles risk breaching section 10 of the Act. A university that uses a 30 June reference date when it has not properly adopted the conditional exemption, or that fails to comply with the conditions of regulation 5B, may be in breach of section 11. A failure to submit a progress report in the Commissioner’s approved format and including a progress audit comparison may breach section 19 of the Act.

The Act gives the Commissioner investigatory powers. The Commissioner may issue compliance notices, require information, and refer matters to VCAT if a breach is found. VCAT can make orders including injunctions, declarations and directions to remedy the breach. The Act likely also contains civil penalty provisions for non‑compliance, though the Regulations do not reproduce them. Any penalty would need to be found in the Act itself.

Designated bodies face an additional enforcement layer: complaints under Division 3 of Part 7. A complainant can lodge a complaint with the Commissioner or directly with VCAT if the Commissioner declines to investigate. VCAT can then make a range of orders against the designated body, including requiring action to remedy the breach or preventing further breaches. The cost of defending a complaint, even if unsuccessful, falls on the respondent entity. This creates a significant deterrent against non‑compliance, particularly for smaller libraries.

The Regulations also increase the risk of inconsistency: if the Commissioner approves a format after an entity has already prepared its progress report, the entity may need to re‑work the report to match the format. The Act’s offence provisions could then apply if the report is not submitted on time. The Commissioner’s website publication duty mitigates this risk only if the format is published well before the reporting deadline.

Practitioners should note that the Regulations do not include a transitional provision for the first progress report when there may not be an immediately preceding workplace gender audit. Regulation 5C(2)(b) requires comparison with “information from the immediately preceding workplace gender audit”. For an entity submitting its first progress report after its initial audit, that audit is the preceding one, so comparison is possible. But for an entity that was required to prepare an Action Plan but not yet a full audit? The Act likely requires an initial audit. Still, if an entity has changed its reporting framework, the comparison may be meaningless. This gap is a potential trap.

Commonwealth Workplace Gender Equality Act 2012. The most explicit interaction concerns universities. Regulation 6 prescribes the relevant period for a university’s progress report as “the previous 2 reporting periods described in section 13A of the Workplace Gender Equality Act 2012 of the Commonwealth”. This ties the Victorian reporting cycle to the federal cycle, reducing duplication but also making Victorian compliance contingent on the Commonwealth’s schedule. If the Commonwealth amends its reporting periods, the Victorian Regulations automatically incorporate that change, potentially without notice. Universities must monitor both regimes.

Local Government Act 2020. The definition of “existing regional library” refers to section 330 of the Local Government Act 2020. Libraries that were established under the old Local Government Act 1989 and continue under the new Act are captured. This interaction ensures that libraries operated by or on behalf of councils are treated consistently, but it may capture entities that are not traditional employers (e.g., community‑managed libraries). The overlap with other local government infrastructure obligations could create a cumulative compliance burden for small councils.

Education and Training Reform Act 2006. Both “school council” and “university” adopt the definitions from this Act. That means any entity that qualifies as a school council under the Education and Training Reform Act is automatically exempt under the Regulations, regardless of its size or function. Universities that are not technically “universities” under that Act may be treated differently. For instance, private providers or overseas university campuses registered as training organisations may not satisfy the definition, and thus would not benefit from the audit date or reporting period modifications.

Subordinate Legislation Act 1994. The Regulations will sunset on 22 September 2030 unless remade. This requires the government to review and remake the Regulations if they want to continue the exemptions and prescriptions. If the Regulations are not remade, the Gender Equality Act will revert to its default provisions: no prescribed defined entities beyond those in the Act, no exemption for school councils or the Tribunal, no alternative audit date for universities, and no prescribed designated bodies. This sunset mechanism forces periodic reconsideration but also creates uncertainty for entities that rely on the exemptions.

Procurement provisions (likely Part 6 of the Act). The Regulations do not directly address procurement, but the partial exemption of the Tribunal from Parts other than 1‑5, 7 and 8 may mean the Tribunal is exempt from any procurement‑related obligations in Part 6. That is a material relief for the Tribunal’s contracting functions. Entities that are not exempt must comply with both the procurement provisions of the Act and the Regulations‑based planning requirements.

Potential overlap with equal opportunity and anti‑discrimination law. The gender pay equity principles in regulation 5A mirror concepts found in the Equal Opportunity Act 2010 (Vic) and the Fair Work Act 2009 (Cth). A court or tribunal may use the principles to interpret duties under those other Acts. Conversely, a defined entity that complies with the Regulations may still face claims under other laws if its pay practices are discriminatory. There is no safe harbour.

The Regulations were originally made on 22 September 2020 and came into operation on 31 March 2021 (S.R. No. 97/2020). They have been amended twice.

First amendment: Gender Equality Amendment Regulations 2021 (S.R. No. 177/2021). Made on 21 December 2021, commenced 1 February 2022. This amendment inserted new regulation 1(ab) (matters for Gender Equality Action Plans) and regulation 1(d) (any other matters required to be prescribed). It added regulation 5A (gender pay equity principles) and regulation 5B (workplace gender audit assessment period for universities). It also substituted regulation 7, replacing the original list of prescribed designated bodies with a new list that included councils and universities (and later expanded in 2023). The effect was to flesh out the content requirements for Action Plans, tailor the audit date for universities, and expand the entities that can be complained against.

Second amendment: Gender Equality Amendment Regulations 2023 (S.R. No. 94/2023). Made on 29 August 2023, commenced 30 September 2023. This amendment inserted regulation 1(aa) (defined entities) and regulation 1(ac) (format and method for progress reports). It inserted regulation 4A (prescribed defined entity: existing regional library) and amended the definitions in regulation 4 to add the “existing regional library” definition. It inserted regulation 5C (progress report format and progress audit method). It also amended regulation 7 by adding existing regional libraries to the list of prescribed designated bodies and updating the reference to universities.

The 2023 amendment significantly expanded the scope of the Regulations: it brought existing regional libraries into the Act’s framework for the first time, and it introduced a mandatory method for progress reporting that had previously been left unspecified. This change increased compliance costs for a new class of entity and added rigidity to reporting that may reduce flexibility. The amendment also required the Commissioner to publish any approved format, adding a layer of procedural transparency.

The Regulations themselves have not been the subject of any reported litigation as of the date of publication of the source material. The endnotes contain no entries in the explanatory details section, and no cases are cited in the Regulations or in the table of amendments. This absence does not mean no disputes have arisen; it may reflect the fact that disputes are likely to be framed under the Gender Equality Act 2020 rather than under the Regulations directly.

The Regulations operate as subordinate legislation, so challenges would typically be on procedural grounds (ultravires, improper delegation, failure to consult) or on the interpretation of specific prescriptions. For example, a university might challenge the Commissioner’s approved format under regulation 5C(1) on the basis that it exceeds the scope of what the Regulations allow. Or a designated body might argue that it is not a “university” under the Education and Training Reform Act 2006 and thus not subject to regulation 7(b). No such challenges have been reported.

The absence of litigation may also indicate low enforcement activity to date. The Act came into operation on 31 March 2021, and the Regulations have been in effect for only a few years. Education‑related disputes take time to surface. As more entities submit progress reports and complainants become aware of the designated‑body pathways, litigation may increase. The broad language of the gender pay equity principles (especially “recognise and account for different patterns of labour force participation”) is fertile ground for interpretive disputes.

Practitioners should also note that VCAT as a body is partially exempt from the Act under regulation 5(2), but VCAT also hears complaints under the Act. If a dispute arises about the validity of the Regulations themselves, VCAT may have to rule on its own jurisdiction, which may raise conflict‑of‑interest concerns. No such case has arisen yet.

Conditional exemption for universities traps the unwary. A university that fails to comply with the substitute requirement in regulation 5B(2) and (4) loses its exemption and must revert to the standard 30 June reference date. If the university has already prepared its audit as at 31 March but the condition is not met (e.g., because it has not used the correct data sources), the audit is not compliant. The regulations do not say whether the Commissioner can grant an extension or waive the condition. The risk is that a university inadvertently falls out of compliance by failing to meet the condition, even if it has substantially used the alternative date.

Progress audit method assumes a comparable previous audit. Regulation 5C(2)(b) requires comparison with “information from the immediately preceding workplace gender audit”. If the entity’s previous audit was conducted under different indicators or a different scope (e.g., because the entity changed its workplace composition), the comparison may be meaningless. The regulation does not provide for adjustments or explanations of methodological changes. The entity must include the comparison results anyway, potentially producing misleading trend data.

No grandfathering for entities that become defined entities. Existing regional libraries were added by the 2023 amendment with no transitional provisions. They must now prepare a Gender Equality Action Plan and conduct an audit from scratch. The immediate compliance burden on a library that had no such obligations before 30 September 2023 could be substantial. The Regulations do not allow a grace period.

Commissioner’s format approval is discretionary but binding. If the Commissioner approves a format under regulation 5C(1), that format becomes mandatory. If the Commissioner changes the format close to a reporting deadline, an entity that prepared its report in a previous approved format may need to re‑do the report. The regulation only requires the Commissioner to publish the format on its website; it does not require advance notice or a consultation period.

Partial exemption of the Tribunal creates confusion. The Tribunal is exempt from the Act “other than Parts 1, 2, 3, 4, 5, 7 and 8” (regulation 5(2)). A reader must know which Parts of the Act are not listed to understand the exemption’s scope. If Part 6 (procurement) or Part 9 (miscellaneous) are not listed, the Tribunal is exempt from them. But the wording is ambiguous: “exempt from the application of the Act (other than ... )” means the Act applies only to those listed Parts. However, small drafting errors in the amending instrument could cause the listed Parts to be incomplete. Entities should verify the full Table of Parts in the Act.

School councils exemption is blanket but may miss attached employees. A school council itself is exempt, but the employer of staff at a school (the Department of Education or the school’s employer entity) is not necessarily exempt. The regulation does not extend the exemption to the school’s employees or to the principal. If a school council is the nominal employer, it is free of obligations; but if the employer is a separate legal entity (e.g., a governance council for a government school), that entity may still be a defined entity.

Gender pay equity principles are subjective and open to interpretation. The principle requiring “recognition of different patterns of labour force participation by employees who undertake unpaid or caring work” (regulation 5A(1)(d)) is vague. What constitutes “recognition”? Must it lead to pay adjustments? The regulations do not define the standard of compliance. An entity that honestly addresses this principle in its Action Plan could still be found in breach if the Commissioner disagrees with its approach.

No penalty provisions in the Regulations. Practitioners accustomed to regulations that specify fines or infringement notices may be misled. The Regulations rely entirely on the Act for penalties. A breach of a regulation requirement (e.g., using the wrong progress report format) is a breach of the Act, and the Act’s penalties apply. But the Act’s penalty provisions are not set out in the Regulations, forcing the reader to cross‑reference.

Step one: identify whether your entity is a “defined entity” under the Act. If it is a council, university or existing regional library, it is covered. If it is a school council, it is exempt. If it is the Tribunal, it is partially exempt. Check the definitions in regulation 4 and regulation 4A carefully.

Step two: prepare a Gender Equality Action Plan that addresses the six gender pay equity principles in regulation 5A. The plan must explain how the entity has taken each principle into account. This is not a mere statement of commitment, but a demonstration of concrete consideration. Practitioners should document the reasoning and evidence used, and retain records of any consultation with employees or unions.

Step three: for universities only, decide whether to use the 31 March reference date under regulation 5B. If you do, ensure that your workplace gender audit is based on data as at 31 March and that you comply strictly with the conditions in subregulations (2) and (4). Confirm that no future change in the entity’s structure or data systems will invalidate that date. If you cannot guarantee compliance with the conditions, default to the standard 30 June reference date.

Step four: monitor the Commissioner’s website for any approved progress report format under regulation 5C. The format may be updated. Do not assume a previous format remains valid. Before each progress report due date, check the website and use the latest published format.

Step five: when preparing a progress report, conduct a “progress audit” as described in regulation 5C(2). Collect current indicator data, compare it with the data from the immediately preceding workplace gender audit, and include both in the report. The comparison should be meaningful; if the previous audit used different indicators or classification systems, disclose the incompatibility and explain why comparison is valid. This may protect against later allegations of misleading reporting.

Step six: for universities, determine the correct “relevant period” under regulation 6. Use the previous two reporting periods under the Commonwealth Workplace Gender Equality Act 2012 as your relevant period for progress reports. Coordinate your state and federal reporting calendars to avoid lodgement conflicts.

Step seven: if your entity is a designated body under regulation 7 (council, university, existing regional library), be aware that you are subject to complaints under Division 3 of Part 7 of the Act. Ensure your internal grievance procedures and legal response protocols are ready. Designate a contact person for complaints and train staff on the Act’s requirements.

Step eight: maintain documentation of every step: the Action Plan, the audit data, the progress report, and the Commissioner’s format versions. This documentation may be needed if a complaint is made or if an inspector seeks information.

Step nine: review the Regulations at least annually, because amendments have been frequent (2021 and 2023). Also note the sunset date (22 September 2030) and prepare for possible policy changes when the Regulations are remade or expire.

Step ten: if in doubt, seek legal advice. The interplay between state and Commonwealth regimes, the broad gender pay equity principles, and the conditional exemptions create risk. A small error - such as using the wrong reference date or an outdated format - could lead to a breach of the Act and costly enforcement proceedings.