Can good law reduce the gender gap, or does it need to go hand in hand with awareness-raising around the law’s core intent and purpose? In Part 2 of this series on Australia’s gender responsive legislation Ramona Vijeyarasa discusses the Equal Opportunity for Women in the Workplace Amendment Act.

In Part 1 of this series on Monday, I introduced readers to the Gender Legislative Index: a tool designed to measure how well a law responds to the differences in the needs and interests of men and women. The ultimate goal is gender-responsive legislation: laws that actually challenge stereotypes and norms about women’s roles as carers, the need to marry and have a family or even what that family should look like. Gender-responsive laws are those that acknowledge and respond to historical discrimination – work sectors that have excluded women or tolerated less pay for women for equal work with men, to name an example.

In this article, I present what the Gender Legislative Index considers a quintessentially strong law from a gender equality perspective: the Equal Opportunity for Women in the Workplace Act. 

The law is explicit in its intention to promote equality of opportunity in the workplace. The law’s entire goal is to better protect women from workplace discrimination and inequality. This includes removing barriers to women’s participation, eliminating discrimination in relation to family and caring, and fostering workplace consultation.

The act makes specific references to a host of international instruments, including CEDAW and ILO Conventions. By substituting ‘trade union’ for ’employee organisation’ it may also facilitate the involvement of a wider group of women worker representatives.

The Equal Opportunity for Women in the Workplace Amendment Act also provided women workers with an oversight body, resulting in the creation of the Workplace Gender Equality Agency (WGEA). WGEA is a beacon for the advancement of women’s rights in Australia. The agency is responsible for assessing compliance with the law and for promoting women’s equality at work. While one evaluator in the Gender Legislative Index raised concerns that its ‘naming and shaming’ powers were too weak to ensure accountability, they are nonetheless a first step. Another significant benefit too is praise from WGEA for those organisations leading the way in closing the pay gap.

The law is one of the few that explicitly seeks to better understand the situation of women workers. It requires relevant employers to lodge reports which provide accountability against certain gender equality indicators, such as in relation to equal remuneration between men and women.

Complicated terrain

The Equal Opportunity for Women in the Workplace in some respects is a convenient choice. A law that explicitly aims to promote equality for women is naturally going to score well in the Gender Legislative Index. When we move away from the terrain of equality laws, agreeing on the end goal gets a little more complicated.

This point is well illustrated by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The Act is situated in the context of a previous law that was enacted to promote shared parenting in cases of separation. This Amendment sought to respond to the risk of violence for the child within that context.

While much of the law is written in gender-neutral terms, it is likely to have gender-responsive effects. The law seeks to provide a broad and inclusive definition of violence and it states that although the child’s best interest is important, greater emphasis will be placed on the risk of violence to the child or within the family. It also defines violence and abuse of the child as including instances where the child witnesses violence or is somehow affected by family violence. The law also enables the court to make interim or procedural orders to protect parties to a proceeding and deal with the issues as expeditiously as possible, which is likely to provide protection for women victims of family violence.

While promoting equal responsibilities at home and seeking to address violence in the household against women, the law reminds us that implementation is key. One evaluator of the law raised concerns that enforcement officials will struggle to find the balance between the best interests of the child resulting from shared parenting, and protecting the child and mother from violence. In cases where legislation places discretion in the hands of decision-makers, a relatively strong law on paper alone is not sufficient to guarantee strong protections for women’s rights. Awareness-raising and knowledge-building, especially among enforcement officials, is key.

Where to from here?

This sample of Australian laws demonstrates how far we have come as a nation in better considering the gendered implications of draft laws. In fact, scholars and activists several decades ago realised that merely calling for gender-neutral language was far from the solution. To the contrary, women need to be seen, heard and written as women in the law. These very distinct examples of workplace and family law legislation illustrate the usefulness of having a set of guiding questions, such as those in the Gender Legislative Index, to help achieve the drafting of more gender-responsive bills. At the same time, the process is evidently not always straight forward. Yet two lessons can be gleaned from the above example.

… getting a good law on the books is merely the first step in a longer trajectory that involves implementation and awareness-raising.

First, the law may at times be overt in its reinforcement of gendered norms and stereotypes. The much-celebrated paid parental scheme – justifiably so – perhaps allowed some to overlook how clearly the law reinforced the role of women as primary carers and the implications this has on shared caring in the home. While progress has been made, reform is evidently still needed.

Second, getting a good law on the books is merely the first step in a longer trajectory that involves implementation and awareness-raising. At the same time, these examples illustrate what a fundamental role the law can play in establishing legal guarantees for Australian women’s basic rights that include equal pay, freedom from discrimination at work and personal safety and security.

Ramona Vijeyarasa is a scholar in the Faculty of Law at the University of Technology Sydney and the 2020 Women’s Leadership Institute Australia (WLIA) Research Fellow. This research has been made possible, in part, thanks to WLIA, as well as the UTS Centre for Social Justice and Inclusion Social Impact Grant 2020.