Equality laws still leave women, carers, minorities, struggling

The Fair Work Act is inadvertently unfair to women, minorities and carers but AI could help correct enterprise agreements.

Ex-director of the Workplace Gender Equality Agency, Libby Lyons. Picture: John Feder

Women, minorities and carers are missing out on equal treatment at work because it is so difficult to police the language and conditions in Australia’s more than 10,000 enterprise agreements, former Workplace Gender Equality Agency director Libby Lyons says.

“Do working Australians covered by the Fair Work Act have equality before that law?” she asked when delivering the annual Barry O’Keefe Memorial Lecture at Australian Catholic University on Wednesday.

“And is the Fair Work Act ­really fair? No.’”

Ms Lyons, who left the government agency created to administer the Workplace Gender Equality Act in April, after more than five years at the helm, acquitted the Fair Work Commission of deliberately approving EAs that discriminated, instead blaming “the process around the consultation and negotiation of the EAs by employers, unions and other relevant bodies and the submission and subsequent assessment of them in the commission”.

This “falls short and so inherently and probably unintentionally sanctions discriminatory employment terms and conditions”, she said.

Ms Lyons’ concern was to prevent discrimination against “women and minority groups or employees with caring or responsibilities outside their paid work”.

Preferential treatment of full-time workers was a problem, given that 68 per cent of part-time workers were women, and so was gendered language, Ms Lyons said

In the case of one design and manufacturing company, full-time employees who worked more than two hours weekday overtime could earn double time, but part-timers could receive only time and a half.

At another company, the EA said technicians should work five eight-hour shifts a week and made no provision for part-time work, “inevitably excluding those who wish or need to work part-time — especially women”.

It also referred to specific work requirements by a single technicians as a “one-man” job.

Ms Lyons accepted that occasionally there were safety and rostering issues or that the unique nature of a business necessitated the inclusion of such conditions, “but I know from my work with employers and industry bodies across this nation, that with a diverse workforce – one that represents the communities in which we live – innovative thinking and [being] willing, any such ‘issues’ can be overcome.”

Ms Lyons said the commission did a tremendous job and had far too much to do and that it was “extraordinarily difficult … perhaps even impossible” to pore over every EA to ensure compliance with the Fair Work Act and other legislation.

However, investment in technology – specifically artificial intelligence – could be a game-changer in helping to scrutinise EAs.

“Using AI, with natural language processing, EAs could be analysed to ascertain elements or sections in them where they might contravene the FWA or other applicable law,” Ms Lyons said.

“Such a system could also be used to identify terms and definitions considered discriminatory, as well as provide analysis for conditions that favour one type of employment over another in terms of hours required to be worked, rates of pay, penalties and the like.”

This would deliver oversight on expiry dates, amendment processes and legal challenges, which would also be assisted by the ease with which case law could now be analysed.