An Act to require certain employers to promote gender equality in the workplace and to establish the Workplace Gender Equality Agency, and for related purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Workplace Gender Equality Act 2012.
2 Commencement
This Act shall come into operation on a day to be fixed by Proclamation.
2A Objects of Act
The principal objects of this Act are:
(a) to promote and improve gender equality (including equal remuneration between women and men) in employment and in the workplace; and
(b) to support employers to remove barriers to the full and equal participation of women in the workforce, in recognition of the disadvantaged position of women in relation to employment matters; and
(c) to promote, amongst employers, the elimination of discrimination on the basis of gender in relation to employment matters (including in relation to family and caring responsibilities); and
(d) to foster workplace consultation between employers and employees on issues concerning gender equality in employment and in the workplace; and
(e) to improve the productivity and competitiveness of Australian business through the advancement of gender equality in employment and in the workplace.
2B Simplified outline
The following is a simplified outline of this Act:
• This Act requires various employers (relevant employers) to lodge reports each year containing information relating to various gender equality indicators (for example, equal remuneration between women and men).
• Some larger employers (designated relevant employers) will also, every 3 years, need to select and include in their report targets (gender equality targets) against various gender equality indicators. Such employers are required to meet, or improve against, those targets over the following 3 year period (a target cycle).
• Those reports are available to the public, subject to some exceptions for information that is personal information, information relating to remuneration and information of a kind specified by the Minister. Information contained in those reports may also be used in publishing information for the purposes of showing a relevant employer’s performance and progress in achieving gender equality in relation to remuneration for the employer’s workforce.
• There is a Workplace Gender Equality Agency. Its functions include advising and assisting employers in promoting and improving gender equality in the workplace and undertaking research and programs for the purpose of promoting and improving gender equality in the workplace.
• The CEO has the management of the Agency.
• The Agency may review a relevant employer’s compliance with this Act by seeking further information from the employer.
• If a relevant employer fails to comply with this Act, the Agency may name the employer in a report given to the Minister or by electronic or other means (for example, on the Agency’s website or in a newspaper).
3 Interpretation
(1) In this Act, unless the contrary intention appears:
accountable authority has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
Agency means the Workplace Gender Equality Agency.
appoint includes re‑appoint.
baseline report, in relation to a target cycle; see subsection 13(3AB).
CEO, when used in relation to a relevant employer, means the Chief Executive Officer (however described) of the relevant employer.
CEO, except when used in relation to a relevant employer, means the Chief Executive Officer of the Workplace Gender Equality Agency.
Commonwealth company has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
designated relevant employer means an employer that has become a designated relevant employer under subsection 4A(1) and has not ceased to be a designated relevant employer under subsection 4A(2).
discrimination means discrimination as defined in section 5, 6, 7, 7AA or 7A of the Sex Discrimination Act 1984.
employee organisation has the same meaning as in the Fair Work Act 2009.
employer means an individual, or a body or association (whether incorporated or not), that employs an individual:
(a) under a contract of service, whether on a full‑time, part‑time, casual or temporary basis; or
(b) under a contract for services; or
(c) as described in subsection (5) or (6).
employment matters includes the following:
(a) the recruitment procedure, and selection criteria, for appointment or engagement of persons as employees;
(b) the promotion, transfer and termination of employment of employees;
(c) training and development for employees;
(d) work organisation, including flexible working arrangements;
(e) conditions of service of employees, including equal remuneration between women and men;
(f) arrangements for dealing with sexual harassment, or harassment on the ground of sex, of employees in the workplace, or discrimination against employees in the workplace;
(g) arrangements for dealing with pregnant, or potentially pregnant employees and employees who are breastfeeding their children;
(h) arrangements relating to employees with family or caring responsibilities.
executive summary report, for a relevant employer for a reporting period, means a report that:
(a) is given by the Agency to the relevant employer; and
(b) contains a summary of the information contained in a public report prepared by the relevant employer in respect of the reporting period.
gender equality indicators means the following:
(a) gender composition of the workforce;
(b) gender composition of governing bodies of relevant employers;
(c) equal remuneration between women and men;
(d) availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
(e) consultation with employees on issues concerning gender equality in the workplace;
(ea) sexual harassment, harassment on the ground of sex or discrimination;
(f) any other matters specified in an instrument under subsection (1A).
gender equality standard: see subsection 19(1A).
gender equality target: see subsection 17B(2).
governing body of a relevant employer means the body, or group of members of the employer, with primary responsibility for the governance of the employer.
harass on the ground of sex has the same meaning as in the Sex Discrimination Act 1984.
Note: Other parts of speech and grammatical forms of “harass on the ground of sex” (for example, “harassment on the ground of sex”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
industry benchmark report, for a relevant employer for a reporting period, means a report that:
(a) is given by the Agency to the relevant employer; and
(b) compares the information contained in a public report prepared by the relevant employer in respect of the reporting period with the information contained in public reports prepared by similar relevant employers in respect of the reporting period.
man means a member of the male sex irrespective of age.
personal information has the same meaning as in the Privacy Act 1988.
potentially pregnant has the meaning given by section 4B of the Sex Discrimination Act 1984.
public report means a public report referred to in section 13.
registered higher education provider means a person or body that is a registered higher education provider for the purposes of the Tertiary Education Quality and Standards Agency Act 2011.
Note: This definition includes bodies taken to be registered higher education providers for the purposes of that Act by Schedule 3 to the Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Act 2011.
relevant employer: see section 4.
reporting period means:
(a) for a relevant employer that is not a Commonwealth company or a Commonwealth entity—a period referred to in subsection 13A(2); or
(b) for a relevant employer that is a Commonwealth company or Commonwealth entity—a period referred to in subsection 13A(2A).
sexually harass has the same meaning as in the Sex Discrimination Act 1984.
Note: Other parts of speech and grammatical forms of “sexually harass” (for example, “sexual harassment”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
target cycle: see section 17A.
woman means a member of the female sex irrespective of age.
(1A) The Minister may, by legislative instrument, specify matters for the purposes of paragraph (f) of the definition of gender equality indicators in subsection (1).
Note: See also section 33A.
(1B) The matters specified in an instrument under subsection (1A) may relate to employment matters.
(1C) Subsection (1B) does not limit subsection (1A).
(1D) An instrument under subsection (1A) has no effect in relation to a reporting period unless it is made before the first day of that period.
(4) Nothing in this Act shall be taken to require a relevant employer to take any action incompatible with the principle that employment matters should be dealt with on the basis of merit.
(5) For the purposes of this Act, an elected employee organisation official is taken to be employed by the employee organisation, and not by any other employer, and this subsection has effect even if the rules of the employee organisation have an effect contrary to this subsection, or do not deal with the question at all.
(6) For the purposes of this Act, during any time when a Group Training Scheme:
(a) is receiving funding support from the Commonwealth Government; and
(b) has placed a trainee in employment with a host employer; and
(c) pays the trainee, and receives payments from the host employer, for the services rendered by the trainee to the host employer;
the trainee is taken to be employed by the Scheme and not by the host employer.
4 Meaning of relevant employer
(1) A relevant employer means:
(a) a registered higher education provider that is an employer; or
(b) a natural person, or a body or association (whether incorporated or not), that is an employer of 100 or more employees in Australia; or
(c) a Commonwealth company that is an employer of 100 or more employees in Australia; or
(d) a Commonwealth entity that is an employer of 100 or more employees in Australia.
(2) However, a relevant employer does not include:
(a) a State; or
(b) a Territory; or
(c) a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory, other than a registered higher education provider; or
(d) the holder of an office established for a public purpose by or under a law of a State or Territory; or
(e) an incorporated company over which a State, a Territory or a body referred to in paragraph (c) is in a position to exercise control.
(3) For the purpose of the definition of relevant employer in subsection (1):
(a) if an employer is a body corporate that is a subsidiary (within the meaning of the Corporations Act 2001) of one or more other bodies corporate, and the subsidiary employs a person, the subsidiary and each of the other bodies corporate are taken to employ the person; and
(b) if the relevant employer is a Commonwealth company—a Commonwealth company employs a person if the person is employed by another Commonwealth company which is a subsidiary (within the meaning of the Public Governance, Performance and Accountability Act 2013) of the first‑mentioned Commonwealth company; and
(c) if the relevant employer is a Commonwealth entity that is a corporate Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013)—the corporate Commonwealth entity employs a person if the person is employed by another corporate Commonwealth entity which is a subsidiary (within the meaning of that Act) of the first‑mentioned corporate Commonwealth entity.
Note: Example 1: For paragraph (a), a subsidiary employs 150 people. The subsidiary and each of its holding companies (within the meaning of those terms in the Corporations Act 2001) is a relevant employer, regardless of how many people each of the holding companies directly employs.
Note: Example 2: For paragraph (a), a subsidiary employs 90 people. The subsidiary is not a relevant employer. A holding company of the subsidiary directly employs 10 people. The holding company, because it is taken to also employ the employees of the subsidiary (for the purposes of the definition of relevant employer), is a relevant employer.
(4) If, at any time, an employer ceases to be a relevant employer because the number of employees of the employer falls below 100, this Act continues to apply to the employer as if the employer were a relevant employer unless and until the number of employees falls below 80.
4A Meaning of designated relevant employer
(1) A relevant employer becomes a designated relevant employer if:
(a) the relevant employer employs 500 or more employees at any time; and
(b) the relevant employer is not already a designated relevant employer at that time.
(2) An employer ceases to be a designated relevant employer if:
(a) the number of employees of the employer falls below 400 for a continuous period of 6 months; or
(b) the employer ceases to be a relevant employer.
Note: The number of employees for the purpose of this section does not include employees that the employer is taken under subsection 4(3) to employ for the purpose of the definition of relevant employer in subsection 4(1).
5 Application of Act
(1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.
(2) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to employment were, by express provision, confined to employment in connection with trade and commerce:
(a) between Australia and a place outside Australia;
(b) between the States; or
(c) within a Territory, between a State and a Territory, or between two Territories.
(3) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to employment were, by express provision, confined to employment in connection with the provision of a broadcasting service specified in section 11 of the Broadcasting Services Act 1992.
(4) By virtue of this subsection, this Act has the effect it would have to the extent that this Act relates to the collection of statistics.
(5) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to employment were, by express provision, confined to employment in connection with the business of banking, other than State banking that does not extend beyond the limits of the State concerned.
(6) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to employment were, by express provision, confined to employment in connection with the business of insurance, other than State insurance that does not extend beyond the limits of the State concerned.
(7) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to a relevant employer were, by express provision, confined to a relevant employer that is a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth.
(8) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to employment by a relevant employer were, by express provision, confined to employment by a trading or financial corporation formed within the limits of the Commonwealth, being employment in connection with the trading or financial activities, as the case may be, of that corporation.
(9) By virtue of this subsection, this Act has the effect it would have to the extent that this Act is appropriate to give effect to, or carry out the purposes of:
(a) the Convention on the Elimination of all Forms of Discrimination Against Women, done at New York on 18 December 1979 ([1983] ATS 9); or
(b) the ILO Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, done at Geneva on 29 June 1951 ([1975] ATS 45); or
(c) the ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation, done at Geneva on 25 June 1958 ([1974] ATS 12); or
(d) the ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, done at Geneva on 23 June 1981 ([1991] ATS 7); or
(e) the International Covenant on Economic, Social and Cultural Rights, done at New York on 16 December 1966 ([1976] ATS 5); or
(f) the Convention on the Rights of the Child, done at New York on 20 November 1989 ([1991] ATS 4).
Note 1: In 2012, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Note 2: For paragraphs (b), (c) and (d): ILO refers to the International Labour Organization.
(10) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to employment were, by express provision, confined to employment in a Territory.
(11) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to a relevant employer were, by express provision, confined to a relevant employer that is a corporation incorporated in a Territory.
(11A) By virtue of this subsection, this Act has the effect it would have if each reference in this Act to a relevant employer were, by express provision, confined to a relevant employer that is a Commonwealth company or a Commonwealth entity.
(12) In this section, foreign corporation and trading or financial corporation have the same meanings as in paragraph 51(xx) of the Constitution.
5A Application of Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
5B Binding the Crown
This Act binds the Crown in right of the Commonwealth. However, it does not bind the Crown in right of a State, of the Australian Capital Territory or of the Northern Territory.
Part III—Workplace Gender Equality Agency
8A Workplace Gender Equality Agency
(1) The Workplace Gender Equality Agency is established.
(2) The Agency consists of the CEO and the staff referred to in section 29.
(3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the Agency is a listed entity; and
(b) the CEO is the accountable authority of the Agency; and
(c) the persons referred to in subsection (2) are officials of the Agency; and
(d) the purposes of the Agency include the functions of the Agency referred to in section 10.
10 Functions and powers of Agency
(1) The functions of the Agency are:
(a) to advise and assist employers in promoting and improving gender equality in the workplace; and
(aa) to develop, in consultation with relevant employers and employee organisations, benchmarks in relation to gender equality indicators; and
(b) to issue guidelines to assist relevant employers to achieve the purposes of this Act; and
(c) to review compliance with this Act by relevant employers, to review public reports lodged by relevant employers and to deal with those reports in accordance with this Act; and
(d) to collect and analyse information provided by relevant employers under this Act to assist the Agency to advise the Minister in relation to legislative instruments made under this Act; and
(e) to undertake research, educational programs and other programs for the purpose of promoting and improving gender equality in the workplace; and
(ea) to work with employers to maximise the effectiveness of the administration of this Act, including by minimising the regulatory burden on employers; and
(f) to promote and contribute to understanding and acceptance, and public discussion, of gender equality in the workplace; and
(g) to review the effectiveness of this Act in achieving its purposes; and
(h) to report to the Minister on such matters in relation to gender equality in the workplace as the Agency thinks fit (including a review under paragraph (g)).
Note: Paragraph (d): see also section 33A.
(2) In addition to any other powers conferred on the Agency by this Act, the Agency has power to do all things necessary or convenient to be done for or in connection with the performance of the functions of the Agency.
11 Directions by Minister
(1) The Agency is to exercise its powers and perform its functions in accordance with general instructions given by the Minister in writing.
(2) Where the Minister gives a direction under subsection (1), the Minister shall cause a copy of the direction to be laid before each House of the Parliament within 15 sitting days of that House after the direction is given.
12 Agency to submit reports to Minister
(1) Despite section 46 of the Public Governance, Performance and Accountability Act 2013, the annual report prepared by the CEO for a period for the purposes of that section must be given to the Minister by the last day of the fifth month after the end of the period.
(2) The Agency may, from time to time, submit to the Minister:
(a) a report on the operations of the Agency during the period to which the report relates; or
(b) a report in respect of any matter relating to, or connected with, the exercise of the powers, or the performance of the functions, of the Agency under this Act.
(2A) The Agency must, as soon as practicable after the end of:
(a) the 2‑year period ending on 31 May 2016; and
(b) each later 2‑year period;
submit to the Minister a report on the progress achieved in relation to the gender equality indicators in that period.
(3) Where a report has been submitted to the Minister under this section, the Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
Part IV—Reports by relevant employers
Division 1—Reporting requirements
13 Relevant employers to prepare reports relating to gender equality indicators
(1) In respect of each reporting period, a relevant employer must prepare a public report in writing containing information relating to the employer and to the gender equality indicators.
Specified matters to be included in the report
(2) The public report in respect of a reporting period must contain details of the matters specified in an instrument under subsection (3).
(3) For the purposes of subsection (2), the Minister must, by legislative instrument, specify matters in relation to each gender equality indicator.
Note: See also section 33A.
Gender equality targets to be selected in the report
(3AA) If:
(a) a designated relevant employer is required to prepare a public report for a reporting period (the relevant period); and
(b) the employer made a public report for the reporting period that ended immediately before the start of the relevant period; and
(c) either:
(i) the relevant period ends at the same time as a target cycle for the employer; or
(ii) the employer did not have a target cycle in the relevant period and it is at least 12 months since the day the employer became (or became again) a designated relevant employer;
the employer must, in the public report for the relevant period, select gender equality targets that the employer commits to achieving in the target cycle that begins immediately after the end of the relevant period.
(3AB) The public report mentioned in (3AA)(b) is the baseline report for the target cycle that begins immediately after the end of the relevant period.
(3AC) A designated relevant employer’s selection of targets under subsection (3AA) must be done in accordance with any rules made under paragraph 17B(1)(b).
Exclusion of operationally sensitive information etc.
(3A) Subsection (3B) applies to a relevant employer that is a law enforcement or security agency (within the meaning of the Independent National Security Legislation Monitor Act 2010).
(3B) The relevant employer is not required to include in a public report any information:
(a) that is operationally sensitive information (within the meaning of the Independent National Security Legislation Monitor Act 2010); or
(b) the publication of which could prejudice the security, defence or international relations of Australia.
Timing of instrument
(4) An instrument under subsection (3) has no effect in relation to a reporting period unless it is made before the first day of that period.
Reports to be signed
(5) The public report must be signed by:
(a) if the relevant employer is a Commonwealth entity—the accountable authority of the Commonwealth entity; and
(b) otherwise—the CEO of the relevant employer.
13A Reporting periods for reports
(1) A relevant employer must lodge with the Agency public reports in respect of each of the periods set out in this section unless subsection (3) applies to the employer in respect of a reporting period.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(2) A relevant employer, other than a Commonwealth company or Commonwealth entity, must prepare a public report in respect of the period of 12 months commencing on 1 April 2000 and after that, in respect of each consecutive period of 12 months.
(2A) A relevant employer that is a Commonwealth company or Commonwealth entity must prepare a public report in respect of the period of 12 months commencing on 1 January 2022 and after that, in respect of each consecutive period of 12 months.
(3) If the relevant employer had the status of relevant employer for less than 6 months of a particular reporting period, the employer does not have to comply with an obligation under this section to report in respect of that particular period.
13B When public reports are due
Unless a relevant employer has received an extension of time in which to lodge a report under section 17:
(a) if the relevant employer is a Commonwealth company or Commonwealth entity—the employer must lodge a public report under section 13A within 2 months after the day determined by the Agency for the purposes of this paragraph; and
(b) otherwise—the relevant employer must lodge a public report under section 13A within 2 months after the end of the period to which the report relates.
13C Personal information
(1) At the time of lodging a public report under section 13A, a relevant employer must, in writing (either in the report or otherwise), inform the Agency of the information included in the report that is personal information.
(2) Subject to subsection (3), that personal information:
(a) must not be published under section 15; and
(b) must not be used in a report under:
(i) section 12; or
(ii) section 46 of the Public Governance, Performance and Accountability Act 2013.
Note: However, such information may be used for the purposes of publishing information under subsection 15A(1) (see subsection 15A(3)). The publishing of information under subsection 15A(1) is subject to certain protections (see subsection 15A(4)).
(3) Particular personal information may be so published or used if the individual to whom the information relates consents in writing to the publication or use.
14 Information relating to remuneration
(1) Subject to this section, any information relating to remuneration that is included in a public report lodged by a relevant employer under section 13A:
(a) must not be published under section 15; and
(b) must not be used in a report under:
(i) section 12; or
(ii) section 46 of the Public Governance, Performance and Accountability Act 2013.
Note: However, such information may be used for the purposes of publishing information under subsection 15A(1) (see subsection 15A(3)). The publishing of information under subsection 15A(1) is subject to certain protections (see subsection 15A(4)).
(2) Information referred to in subsection (1) (except personal information) may be so published or used if the relevant employer has, by written notice given to the Agency, agreed to that information being so published or used.
Note: Section 13C deals with personal information.
(3) Information referred to in subsection (1) may be so published or used if the information is in an aggregated form that does not disclose, either directly or indirectly, information about a specific relevant employer or another specific person.
14A Information of a kind specified by the Minister
(1) Subject to this section, information of a kind specified in an instrument under subsection (2):
(a) must not be published under section 15; and
(b) must not be used in a report under:
(i) section 12; or
(ii) section 46 of the Public Governance, Performance and Accountability Act 2013.
Note: However, such information may be used for the purposes of publishing information under subsection 15A(1) (see subsection 15A(3)). The publishing of information under subsection 15A(1) is subject to certain protections (see subsection 15A(4)).
(2) The Minister may, by legislative instrument, specify kinds of information for the purposes of subsection (1).
Note: See also section 33A.
(3) Information referred to in subsection (1) may be so published or used if the information is in an aggregated form that does not disclose, either directly or indirectly, information about a specific relevant employer or another specific person.
15 Agency’s use of public report
(1) Subject to sections 13C, 14 and 14A, a public report, or a part of a public report (including a copy of the report or part of the report):
(a) may be published by the Agency by electronic or other means; and
(b) may be used, either in whole or in part, in a report under:
(i) section 12; or
(ii) section 46 of the Public Governance, Performance and Accountability Act 2013.
(2) If:
(a) a relevant employer lodges a public report under section 13A in respect of a reporting period; and
(b) the report is lodged within the time allowed by section 13B or 17;
then, during the period of 28 days beginning on the day the report is lodged, subsection (1) of this section does not apply in relation to the report.
15A Agency must publish information for relevant employers—achieving gender equality in relation to remuneration
(1) The Agency must publish aggregate information, for each relevant employer for each reporting period, for the purpose of showing the employer’s performance and progress in achieving gender equality in relation to remuneration for the employer’s workforce.
(2) The information may be published by electronic or other means.
(3) The Agency may use information in a public report for the purposes of subsection (1).
(4) However, the Agency must not publish information under subsection (1) that discloses, either directly or indirectly:
(a) personal information; or
(b) other information about the remuneration paid to a specific individual.
16 Relevant employer to make public reports accessible to employees and shareholders etc.
(1) A relevant employer must, as soon as reasonably practicable after lodging a public report under section 13A, inform:
(a) the employees of the employer; and
(b) any shareholders or members of the employer;
that the employer has lodged the report and of the way in which the report may be accessed (whether electronic or otherwise).
(2) The relevant employer must, as soon as reasonably practicable after that lodgement, provide those employees and shareholders or members with access (whether electronic or otherwise) to the public report (excluding information to which subsection (3) applies).
(3) This subsection applies to the following information:
(a) personal information;
(b) information relating to remuneration that the relevant employer considers should not be subject to the requirement in subsection (2);
(c) information of a kind specified in an instrument under section 14A.
(4) Paragraph (3)(a) does not apply in relation to particular information if the individual to whom the information relates consents in writing to the information being subject to the requirement in subsection (2).
16A Relevant employer to inform employee organisations of lodgement of public report
A relevant employer must, within 7 days after lodging a public report under section 13A, take all reasonable steps to inform each employee organisation, that has members who are employees of the employer, that the employer has lodged the report.
16B Relevant employer to inform employees and employee organisations of the opportunity to comment
A relevant employer must, when informing employees under section 16 or an employee organisation under section 16A, advise the employees or employee organisation that comments on the report may be given to the employer or to the Agency.
16C Certain reports to be given to relevant employer’s governing body
Executive summary reports
(1) The CEO of a relevant employer must, after receiving from the Agency an executive summary report for the employer for a reporting period, cause a copy of the report to be given to each member of the employer’s governing body (if any).
Industry benchmark reports
(2) The CEO of a relevant employer must, as soon as reasonably practicable after receiving from the Agency an industry benchmark report for the employer for a reporting period, cause a copy of the report to be given to each member of the employer’s governing body (if any).
Giving reports together
(3) If, as at the time a relevant employer receives an industry benchmark report for the employer for a reporting period from the Agency:
(a) the employer has received from the Agency an executive summary report for the employer for the period; but
(b) copies of the executive summary report have not been given to members of the employer’s governing body as mentioned in subsection (1);
then the CEO of the employer must cause the copies of the executive summary report to be given to the members of the governing body together with the copies of the industry benchmark report.
Commonwealth entities
(4) If the relevant employer is a Commonwealth entity, a reference in this section to the CEO of the relevant employer is taken to be a reference to the accountable authority of the Commonwealth entity.
17 Agency may grant extensions
(1) A relevant employer may, before the end of the relevant period within which the relevant employer is required to lodge with the Agency a public report under section 13B, apply to the Agency to extend the period for a further period to enable the employer to lodge the public report.
(2) Where the Agency:
(a) has received a request under subsection (1) to extend a period in respect of a report; and
(b) considers that there are reasonable grounds for extending the period;
the Agency may grant an extension in respect of the report for such period, not exceeding 6 months, as the Agency thinks fit.
Division 2—Gender equality targets
17A Target cycles
(1) A target cycle for a designated relevant employer is a 3‑year period that begins on the same day as the next reporting period following a reporting period for a public report in which the employer has selected gender equality targets in accordance with subsection 13(3AA).
(2) If an employer ceases, in accordance with subsection 4A(2), to be a designated relevant employer:
(a) the employer does not have a target cycle; and
(b) section 17C does not apply to the employer in relation to a target cycle that the employer had immediately before ceasing to be a designated relevant employer.
Note: If the employer later becomes a designated relevant employer again, the employer’s new target cycle will be worked out in accordance with subsection (1) of this section.
17B Minister to set gender equality targets and selection rules
(1) The Minister must, by legislative instrument:
(a) set targets in relation to specified gender equality indicators and specified target cycles; and
(b) specify rules for the selection of targets by designated relevant employers in specified target cycles.
Note 1: The Minister must consult the Agency before making legislative instruments under this Act (see section 33A).
Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) A target set by an instrument in force under subsection (1) is a gender equality target.
(3) Rules specified in accordance with paragraph (1)(b) may (without limiting that paragraph) include rules that do any of the following:
(a) provide for classes of targets;
(b) require the selection of a specified number of targets;
(c) require the selection of a specified number of targets of a specified class;
(d) require a designated relevant employer to nominate the level of improvement against a specific target that is required for the employer to have met the target.
(4) An instrument under subsection (1) has no effect in relation to a target cycle unless it is made before the first day of that cycle.
17C Failure to comply with gender equality targets
For the purposes of section 19D, a designated relevant employer is taken to fail to comply with this Act if, at the end of a target cycle for the employer, the employer has not, without reasonable excuse, in respect of each gender equality target selected by the employer for the target cycle, either:
(a) met the target; or
(b) demonstrated improvement against the target in the public report for the final year of the target cycle, as compared to the baseline report for the target cycle.
Note: If the employer does not have a reasonable excuse for the failure, the Agency may name the employer in a report given to the Minister or by electronic or other means: see section 19D.
Part IVA—Reviewing compliance with this Act and consequences of non‑compliance
18 Simplified outline
The following is a simplified outline of this Part:
• The Minister must set gender equality standards in relation to gender equality indicators, relevant employers and reporting periods.
• The Agency may review a relevant employer’s compliance with this Act by seeking further information from the employer. The Agency may do this on a random basis.
• If a relevant employer fails to comply with this Act, the Agency may name the employer in a report given to the Minister or by electronic or other means (for example, on the Agency’s website or in a newspaper).
• Examples of a failure to comply with this Act are a failure by a relevant employer to lodge a public report on time or to give the Agency information under section 19A.
• If the Agency proposes to name a relevant employer, the Agency must give the employer notice in writing of the proposal and the reasons for the proposal.
• Relevant employers failing to comply with this Act may not be eligible to compete for contracts under the Commonwealth procurement framework and may not be eligible for Commonwealth grants or other financial assistance.
19 Minister to set gender equality standards in relation to gender equality indicators
(1) The Minister must, by legislative instrument, set standards in relation to specified gender equality indicators, specified relevant employers and specified reporting periods.
Note 1: The Minister must consult the Agency before making legislative instruments under this Act (see section 33A).
Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Note 3: An instrument under subsection (1) may make different provision with respect to different relevant employers and different reporting periods (see subsection 33(3A) of the Acts Interpretation Act 1901).
(1A) A standard set by an instrument in force under subsection (1) is to be known as a gender equality standard.
(2) An instrument under subsection (1) has no effect in relation to a reporting period unless it is made before the first day of that reporting period.
19A Agency may review compliance with Act
(1) The Agency may, by written notice, require a relevant employer to give the Agency information:
(a) that relates to the employer’s compliance with this Act or to the employer’s performance against the gender equality standards; and
(b) that is specified in the notice.
(2) The notice must specify the period within which, and the manner in which, the information must be given.
(3) A period specified in a notice under subsection (1) must be at least 14 days after the notice is given.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
19B Relevant employer fails to comply with Act if employer gives false or misleading information
For the purposes of section 19D, a relevant employer is taken to fail to comply with this Act if:
(a) the employer lodges a public report under section 13A and any information included in the report is false or misleading; or
(b) the employer gives the Agency information under section 19A and the information is false or misleading.
Note: If the employer does not have a reasonable excuse for the failure, the Agency may name the employer in a report given to the Minister or by electronic or other means: see section 19D.
19C Relevant employer fails to comply with Act if employer fails to improve against gender equality standard
If:
(a) a relevant employer lodges a public report under section 13A in respect of a reporting period (the base period); and
(b) in a case where a gender equality standard (the base standard) applies in relation to the employer and the base period—at the end of the base period, the employer fails to meet that standard; and
(c) the employer lodges a public report under section 13A in respect of the second reporting period (the comparison period) after the base period; and
(d) at the end of the comparison period, the employer’s performance against the base standard has failed to improve from the employer’s performance against that standard at the end of the base period;
then the failure referred to in paragraph (d) is taken, for the purposes of section 19D, to be a failure to comply with this Act.
Note: If the employer does not have a reasonable excuse for the failure referred to in paragraph (d) of this section, the Agency may name the employer in a report given to the Minister or by electronic or other means: see section 19D.
19CA Relevant employer fails to comply with Act if certain reports are not given to governing body
(1) For the purposes of section 19D, a relevant employer is taken to fail to comply with this Act without reasonable excuse if the CEO of the relevant employer fails, without reasonable excuse, to comply with subsection 16C(1), (2) or (3) (certain reports to be given to relevant employer’s governing body).
Note: The Agency may name the employer in a report given to the Minister or by electronic or other means: see section 19D.
(2) If the relevant employer is a Commonwealth entity, a reference in this section to the CEO of the relevant employer is taken to be a reference to the accountable authority of the Commonwealth entity.
19D Consequences of non‑compliance with Act
(1) This section applies if a relevant employer, without reasonable excuse, fails to comply with this Act.
Note: Examples of a failure to comply with this Act are:
(a) a relevant employer fails to lodge a public report on time (see sections 13A, 13B and 17); and
(b) a relevant employer fails to inform employees, shareholders or members of the employer that a public report has been lodged (see section 16); and
(c) a relevant employer fails to inform employees and relevant employee organisations as required by sections 16A and 16B; and
(d) a relevant employer fails to give the Agency information under section 19A; and
(e) a designated relevant employer fails to select gender equality targets for a target cycle (see subsection 13(3AA)).
Naming employer in Agency report
(2) The Agency may name the employer as having failed to comply with this Act, and set out details of the non‑compliance, in a report under:
(a) subsection 12(2); or
(b) section 46 of the Public Governance, Performance and Accountability Act 2013.
Naming employer in other ways
(3) The Agency may, by electronic or other means, name the employer as having failed to comply with this Act and set out details of the non‑compliance.
Note: For example, the Agency may do this on the Agency’s website or in a newspaper.
Prior notice to employer
(4) If the Agency proposes to:
(a) name an employer in a report under:
(i) subsection 12(2); or
(ii) section 46 of the Public Governance, Performance and Accountability Act 2013; or
(b) name an employer under subsection (3) of this section;
the Agency must:
(c) give the employer notice in writing of the proposal and the reasons for the proposal; and
(d) invite the employer to make written representations to the Agency about the proposal within the period of 28 days beginning on the day the notice is given; and
(e) have regard to any written representations made by the employer within that period.
(5) If:
(a) a relevant employer lodges a public report under section 13A in respect of a reporting period; and
(b) the report is lodged within the time allowed by section 13B or 17;
then, during the period of 28 days beginning on the day the report is lodged, the Agency must not give the employer a notice under subsection (4) of this section in relation to the lodgement of that report.
19E Agency to offer relevant employers advice and assistance if employers fail to meet gender equality standards
If:
(a) a relevant employer lodges a public report under section 13A in respect of a reporting period; and
(b) in a case where a gender equality standard applies in relation to the employer and that reporting period—the Agency becomes aware that, at the end of that reporting period, the employer fails to meet that standard;
the Agency must offer to provide the employer with advice and assistance in relation to improving the employer’s performance against that standard.
Part V—CEO
20AA CEO
(1) There is to be a Chief Executive Officer of the Workplace Gender Equality Agency.
(2) The Chief Executive Officer has the management of the Agency.
(3) The office of Chief Executive Officer of the Workplace Gender Equality Agency is, for all purposes, a continuation under that name of the office of Director of Workplace Gender Equality established under section 9 of this Act as in force immediately before the commencement of this section.
Note: See also section 25B of the Acts Interpretation Act 1901.
20 Appointment of CEO
(1) The CEO shall be appointed by the Governor‑General.
21 Tenure of CEO
(1) The CEO holds office for such period, not exceeding 5 years, as is specified in the instrument of appointment, but is eligible for re‑appointment.
(2) The CEO holds office, subject to this Part, on such terms and conditions as are determined by the Governor‑General.
22 Remuneration and allowances
(1) The CEO shall be paid:
(a) such remuneration as is determined by the Remuneration Tribunal; and
(b) such allowances as are prescribed.
(2) This section has effect subject to the Remuneration Tribunal Act 1973.
23 Leave of absence
The Minister may grant leave of absence to the CEO upon such terms and conditions as to remuneration or otherwise as the Minister determines.
24 Outside employment
The CEO shall not engage in paid employment outside the duties of the office of CEO except with the approval of the Minister.
25 Resignation
The CEO may resign the office of CEO by writing signed and delivered to the Governor‑General.
26 Termination of appointment
(1) The Governor‑General may terminate the appointment of the CEO for misbehaviour or physical or mental incapacity.
(2) If the CEO:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;
(b) engages, except with the approval of the Minister, in paid employment outside the duties of the office of CEO;
(c) is absent from duty, except on leave of absence granted by the Minister, for 14 consecutive days or 28 days in any 12 months; or
(d) without reasonable excuse, contravenes:
(i) section 27; or
(ii) section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section;
the Governor‑General shall terminate the appointment of the CEO.
27 Disclosure of interest
(1) The CEO shall give written notice to the Minister of all direct or indirect pecuniary interests that the CEO has or acquires in, or in relation to, a relevant employer.
(2) Subsection (1) applies in addition to section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests).
28 Acting appointment
(1) The Minister may appoint a person to act as the CEO:
(a) during a vacancy in the office of CEO (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the CEO is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office of CEO;
but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.
(2) While a person is acting as the CEO, the person has and may exercise all the powers, and shall perform all the functions, of the CEO.
(3) An appointment of a person to act as CEO may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
(4) The Minister may:
(a) determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed to act as the CEO; and
(b) terminate such an appointment at any time.
(5) Where a person is acting as the CEO otherwise than by reason of a vacancy in the office of CEO, and the office of CEO becomes vacant while the person is so acting, then, subject to subsection (3), the person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.
(6) A person appointed to act as the CEO may resign by writing signed and delivered to the Minister.
(7) The validity of anything done by or in relation to a person purporting to act as the CEO shall not be called in question on the ground that the occasion for the appointment had not arisen, that there was a defect or irregularity in or in connection with the appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.
Part VI—Miscellaneous
29 Staff
(1) The staff required for the purposes of this Act shall be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the CEO and the APS employees assisting the CEO together constitute a Statutory Agency; and
(b) the CEO is the Head of that Statutory Agency.
30 Consultants
(1) The Agency may, on behalf of the Commonwealth, engage as consultants to the Agency persons having suitable qualifications and experience.
(2) The terms and conditions of engagement of persons engaged under subsection (1) are such as are determined by the Agency.
31 Advisory committees
(1) Subject to this section the Minister may, in consultation with the Agency, establish such advisory committees as the Minister considers necessary for the purpose of giving advice to the Minister and to the Agency on particular matters or classes of matters relating to gender equality in the workplace, functions of the Agency or the operation of this Act.
(2) An advisory committee shall consist of such persons as the Minister from time to time appoints.
(3) For the purposes of assisting the Minister in the appointment of the members of an advisory committee, the Agency may provide the Minister with a list of the names of persons:
(a) representing industry or business (including a part of an industry); or
(b) representing employee organisations; or
(c) representing registered higher education providers; or
(e) having special knowledge or interest in relation to gender equality in the workplace, the functions of the Agency or the operation of this Act.
(4) A member of an advisory committee holds office for such period as is specified in the instrument of appointment, but is eligible for re‑appointment.
(5) A member of an advisory committee may resign from office by writing signed and delivered to the Minister.
(6) The number of members of an advisory committee required to constitute a quorum at a meeting of that advisory committee shall be as determined by the Minister.
(7) If the Minister decides that a member of an advisory committee should be remunerated, that member shall be paid such remuneration as is determined by the Remuneration Tribunal.
(8) A member of an advisory committee shall be paid such allowances as are prescribed.
(9) Subsections (7) and (8) have effect subject to the Remuneration Tribunal Act 1973.
32 Non‑disclosure of confidential information
(1) A person who is, or has at any time been, the CEO or a member of the staff referred to in section 29 or a consultant engaged under section 30 or is, or has at any time been, authorised to perform or exercise any function or power under an arrangement in force under section 33, shall not, either directly or indirectly:
(a) make a record of, or divulge or communicate to any person, any confidential information acquired by the first‑mentioned person by reason of that person’s office, employment or engagement under or for the purposes of this Act or by reason of that person being or having been so authorised;
(b) make use of any information as is mentioned in paragraph (a); or
(c) produce to any person a document relating to confidential information of another person furnished for the purposes of this Act.
Penalty: 25 penalty units or imprisonment for 3 months, or both.
(1A) Subsection (1) does not apply to a person’s conduct if the person is:
(a) performing a duty or function, or exercising a power, under, or in connection with, this Act; or
(b) performing a function, or exercising a power, under an arrangement in force under section 33.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) A person who is, or has at any time been, the CEO or a member of the staff referred to in section 29 or a consultant engaged under section 30 or is, or has at any time been, authorised to perform or exercise any function or power under an arrangement in force under section 33, shall not be required:
(a) to divulge or communicate to a court any confidential information acquired by the first‑mentioned person by reason of that person’s office, employment or engagement under or for the purposes of this Act or by reason of that person being or having been so authorised; or
(b) to produce in a court a document relating to confidential information of which the first‑ mentioned person has custody, or to which that person has access, by reason of that person’s office, employment or engagement under or for the purposes of this Act or by reason of that person being or having been so authorised;
except where it is necessary to do so for the purposes of this Act.
(3) Nothing in this section prohibits a person from:
(a) divulging or communicating information, or producing a document, to the Agency or an officer of a State, in accordance with an arrangement in force under section 33; or
(b) divulging or communicating information, or producing a document, that is required or permitted by an Act to be divulged, communicated or produced, as the case may be.
(4) In this section:
confidential information means information which, at the time when it is supplied by a relevant employer, the relevant employer has specified as being supplied in confidence.
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
33 Delegation
(1) The CEO may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the CEO, delegate to:
(a) a person referred to in subsection 29(1); or
(b) an officer in respect of whom an arrangement is in force under subsection (4);
all or any of the powers and functions of the Agency under this Act other than this power of delegation.
(2) A power or function so delegated, when exercised or performed by the delegate, shall, for the purposes of this Act, be deemed to have been exercised or performed by the Agency.
(3) A delegation under this section does not prevent the exercise of a power or the performance of a function by the Agency.
(4) The Minister may make an arrangement with a Minister of a State for and in relation to the exercise of powers, and the performance of functions, of the Agency under this Act by an officer of the State.
(6) An arrangement may contain such incidental or supplementary provisions as the Minister and the Minister of the State think necessary.
(7) The Minister may arrange with the Minister of a State with whom an arrangement is in force for the variation or revocation of the arrangement.
(8) An arrangement, or the variation or revocation of an arrangement, shall be in writing and a copy of each instrument by which an arrangement has been made, varied or revoked shall be published in the Gazette.
33A Minister to consult before making legislative instruments
(1) Before making a legislative instrument under this Act, the Minister must consult the Agency and have regard to any recommendations of the Agency.
(2) The Minister must also consult such persons mentioned in subsection 31(3) as the Minister considers appropriate.
Note: For consultation requirements generally, see section 17 (consultation) of the Legislation Act 2003.
34 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.