Compliance with the Gender Equality Act 2020

The Commissioner will support duty holders to meet their obligations under the Act. In the first instance, this will be done through education and collaboration. This approach acknowledges that in the first years of the Act’s operation, there will be a transition period for duty holders to move towards fully understanding and adequately meeting their obligations under the Act.

In the event that a duty holder is found to be non-compliant with the Act, the Commissioner will first aim to resolve any issues informally. They will consider the context of each duty holder and the long-term objectives of the Act.

The Commissioner has a range of enforcement options available under the Act. They include:

• working directly with an organisation to achieve an informal resolution (section 22(3))
• issuing a compliance notice (section 22(1))
• recommending that the Minister takes action against the organisation (section 26(b))
• naming the organisation and their failure to comply on the Commission’s website (section 26(c))
• as a last resort, making an application to the Victorian Civil and Administrative Tribunal (VCAT) for an order directing the organisation to comply (section 26(d))

Under section 22 of the Act, a duty holder will fail to comply with the Act by:

• not preparing or submitting a Gender Equality Action Plan (GEAP)
• not preparing or submitting a progress report
• not making reasonable and material progress in relation to the workplace gender equality indicators
• not making reasonable and material progress towards meeting relevant gender equality targets or quotas (note that there are currently no targets or quotas in place)

If your organisation fails to comply with the Act, the Commissioner will take steps to resolve the matter informally. This is done prior to taking formal enforcement action (section 22(3)) against your organisation.

Informal resolution may include:

• meeting with you to understand the organisational context for non-compliance
• providing practical recommendations to address the matter, or
• negotiating a mutually agreed informal resolution

If the matter cannot be resolved informally, the Commissioner may issue a compliance notice under section 22 of the Act.

Under section 22 of the Act, if the matter cannot be resolved informally, the Commissioner may issue a compliance notice to a duty holder for:

• not preparing a Gender Equality Action Plan
• not submitting a Gender Equality Action Plan within the time required
• not preparing a progress report
• not submitting a progress report within the time required
• not making reasonable and material progress in relation to the workplace gender equality indicators
• not making reasonable and material progress towards meeting gender equality targets
• not making reasonable and material progress towards meeting gender equality quotas

A compliance notice may require the duty holder to:

• prepare and submit a Gender Equality Action Plan
• prepare and submit a progress report, or
• take any other action that is reasonably required to comply with this Act

Under section 23 of the Act, a compliance notice must include:

• the requirement of the Act with which the duty holder has failed to comply
• the basis for the Commissioner’s belief that the duty holder has failed to comply
• the action that the duty holder must take to comply with the requirement
• the date by which the duty holder must take action:
  • If the action required is to submit a Gender Equality Action Plan or a progress report, this date must be no less than 60 days after the notice is issued.
  • For all other actions required, the date must be no less than 14 days after the notice is issued.
  • The Commissioner may extend the time period specified in the compliance notice for up to 24 months.
• the further action that the Commissioner may take if the duty holder does not comply with the notice
• that the duty holder may disagree with the compliance notice within 14 days after receiving the notice

Under section 24 of the Act, a duty holder may disagree with the compliance notice. This can be done through a written response to the Commissioner within 14 days after receiving the notice.

After considering a response to a compliance notice, the Commissioner may withdraw, amend or confirm the compliance notice.

If the Commissioner confirms the compliance notice, the requirements of the compliance notice still apply.

Under section 25 of the Act, the duty holder may apply to VCAT to review the Commissioner’s decision to confirm a compliance notice. This must be done within 28 days after the duty holder receives notice of the Commissioner’s decision.

Under section 26 of the Act, if the duty holder does not comply with the compliance notice, the Commissioner may:

• accept a written undertaking from the duty holder
• recommend the Minister take action to ensure compliance
• publish on this website the name of the duty holder
• apply to VCAT for an order enforcing the compliance notice

As set out in section 27 of the Act, if a duty holder does not comply with a compliance notice within the time period specified, they may submit a written undertaking to the Commissioner.

A written undertaking could:

• respond to the compliance notice received from the Commissioner
• set out the action that the duty holder will take to comply with the requirement(s), and
• set out the date by which these actions will be completed

The Commissioner may choose to accept the written undertaking. While the undertaking is in force, the Commissioner must not:

• take any further action under section 26, or
• issue any further compliance notice with respect to the matter that is the subject of the undertaking

If the Commissioner considers that the duty holder has failed to comply with any terms of the undertaking, the Commissioner may apply to VCAT for an order enforcing the undertaking.

Under section 2 of the Act, the Commissioner may apply to VCAT to direct a duty holder to comply with a compliance notice (section 26(d)) or enforceable undertaking (section 27(5)).

A duty holder may apply to VCAT to review the Commissioner’s decision to confirm a compliance notice under section 24(2)(c), within 28 days of receiving the decision.

Duty Holder A was not able to submit their Gender Equality Action Plan to the Commission by the due date of 31 October 2021. They had completed their workplace gender audit, but due to an organisational restructure, they were not able to complete their consultation processes and finalise their GEAP by the due date.

They advise the Commissioner, who arranges a set of meetings to understand the organisational context which has led to the non-compliance. The Commissioner recommends that Duty Holder A takes 45 days to consult with their employees, employee representative groups and governing body, and then complete their Gender Equality Action Plan.

Duty Holder A agrees, and submits their Gender Equality Action Plan by the agreed date. The matter is resolved informally.

Duty Holder B was not able to prepare or submit a progress report to the Commission by the due date of 20 February 2024 because they allocated insufficient resourcing to meeting their obligations. They advise the Commissioner, who arranges a set of meetings to understand the organisational context which has led to the non-compliance.

The Commissioner recommends that Duty Holder B allocates dedicated resources to develop the progress report, and submit it within 60 days. Following discussions, the Commissioner is not confident that the entity will allocate resources to submit their progress report, and issues a compliance notice to submit the progress report within 60 days.

Duty Holder B is not able to submit their progress report to the Commission within 60 days, but writes a written undertaking to the Commissioner to prepare their progress report and submit it within 90 days of the date of the compliance notice. The Commissioner accepts the written undertaking.

Duty Holder C submitted their GEAP and workplace gender audit results in October 2021. The workplace gender audit results had an incomplete dataset relating to workplace sexual harassment. Duty Holder C noted the data gaps in their GEAP, proposing to improve their data collection mechanisms in the next two years.

In 2024, when the first progress report is due, Duty Holder C has not been able to improve their data collection mechanism. Duty Holder C notifies the Commission that they have not been able to make progress in this area.

The Commission meets with Duty Holder C to understand the organisational circumstances and nature of the barriers to implementing a sexual harassment reporting system. Together with the leadership team a new implementation timeline is agreed upon within the following 3 months. The matter is resolved informally.