The Workplace Gender Equality Act 2012 (the Act) specifies a relevant employer’s obligations as well as the consequences for non-compliance. If an employer does not meet all compliance requirements, WGEA may:
- name the employer in a report to the Minister that is tabled in both Houses of Parliament
- name the employer publicly by electronic or other means
- not issue the employer with a certificate of compliance.
For further information, refer to Reporting compliance.
Corporate groups – impact on parent organisation
If a subsidiary fails to meet any compliance requirement – other than those that specifically apply to designated relevant employers (DREs) – the parent company will be considered non-compliant. This is because the parent company is ultimately responsible for the subsidiary.
DREs have additional compliance requirements to meet related to Gender Equality Standards and Gender Equality Targets. Failure to meet these additional requirements will result in the DRE’s non-compliance, but this will not affect the compliance status of other related entities in the organisational structure.
For further information, refer to:
Tendering for government contracts
Relevant employers who do not meet their compliance requirements will not receive a certificate of compliance from WGEA.
For information on how this might affect your ability to tender for contracts, or receive Commonwealth grants or other financial assistance, refer to Government tenders.
Have you received a section 19A notice?
If you have received a section 19A notice, WGEA has identified that your organisation may not have met one or more requirements under the Workplace Gender Equality Act 2012.
For example, your organisation may have:
- failed to lodge its Gender Equality Report by the due date or within an approved extension period
- failed to select gender equality targets, if this requirement applied to your organisation
- failed to meet another requirement under the Act.
A section 19A notice requires your organisation to provide specified information about its compliance within the timeframe stated in the notice.
What you need to do
Read your notice carefully. The action available to your organisation will depend on whether the reporting program is still open.
If the reporting program is still open
Your notice may require your organisation to:
- lodge its Gender Equality Report before the reporting program closes, or
- provide the information requested in the notice by the specified response date.
Lodging before program closure may prevent further compliance action in relation to the failure to lodge. However, your organisation remains non-compliant for lodging after its applicable due date and will not receive a Certificate of Compliance for that reporting period.
If the reporting program has closed
Your organisation can no longer lodge its Gender Equality Report for that reporting period.
You must provide the information requested in the notice by the specified response date. This is your opportunity to explain the circumstances and reasons for your organisation’s non-compliance, including any circumstances relied on as a reasonable excuse.
Information to include in your response
Your notice will specify the information you must provide. This may include:
- the reasons your organisation did not lodge by the due date or within its approved extension period
- the circumstances your organisation relies on as a reasonable excuse
- supporting information or evidence
- the steps your organisation has taken, or proposes to take, to prevent the non-compliance from happening again.
If the notice also relates to a failure to select gender equality targets, your response should address the circumstances and reasons for that failure.
You should also tell WGEA if:
- your organisation or corporate structure’s employee count has fallen below 80
- your organisation’s legal or corporate structure has changed
- your organisation has ceased trading or is in liquidation or receivership
- an organisation included in the notice is no longer required to report
- relevant organisation or contact information held by WGEA is incorrect.
Include supporting information where available.
What happens after you respond?
WGEA will assess your response and the circumstances of the non-compliance.
If WGEA accepts that your organisation had a reasonable excuse:
- your organisation will remain non-compliant for the reporting period
- your organisation will not receive a Certificate of Compliance
- your organisation will not be publicly named as non-compliant for the matter covered by the accepted reasonable excuse.
If your organisation does not respond, or WGEA does not accept the excuse as reasonable, WGEA may consider further compliance action. This may include issuing a section 19D notice advising that WGEA intends to publicly name your organisation as non-compliant.
WGEA will advise your organisation of the outcome of its response and whether any further action will be taken.
Need help?
If you need help to understand or respond to a section 19A notice, contact WGEA using the contact details provided in your notice before the response deadline.
Non-compliance notification process
These steps apply to relevant employers identified as not meeting a requirement under the Workplace Gender Equality Act 2012.
1. Compliance review and initial notice: section 19A
WGEA may issue a written notice under section 19A requiring an employer to provide specified information relating to its compliance with the Act.
The notice will:
- identify the relevant area or areas of non-compliance
- specify the information the employer must provide
- state how and when the employer must respond
- explain the possible consequences of non-compliance.
The response period specified in the notice will be at least 14 days after the notice is given.
For employers that have not lodged their Gender Equality Report, the action available depends on whether the reporting program is still open.
Notice issued while the reporting program is open
If the reporting program is still open, the employer may be able to:
- lodge its Gender Equality Report before program closure, or
- provide the information requested in the notice by the specified response date.
The notice will explain the action available and the applicable deadline.
If the employer lodges before program closure, WGEA may take no further compliance action in relation to the failure to lodge. However, the employer remains non-compliant for lodging after its applicable due date and will not receive a Certificate of Compliance for that reporting period.
Notice issued after the reporting program has closed
If the reporting program has closed, the employer can no longer lodge its Gender Equality Report for that reporting period.
The employer must provide the information requested in the notice by the specified response date. This gives the employer an opportunity to explain the circumstances and reasons for its non-compliance and provide information supporting a reasonable excuse.
2. Assessment of the employer’s response
WGEA assesses each employer’s response according to its individual circumstances.
WGEA may consider:
- the reasons for the non-compliance
- whether the circumstances were unexpected or outside the employer’s control
- the information and evidence provided
- the employer’s compliance history
- the action taken, or proposed, to prevent the non-compliance from happening again
- any other relevant circumstances.
If WGEA accepts that the employer had a reasonable excuse, the employer will remain non-compliant but will not be publicly named as non-compliant for the matter covered by the accepted reasonable excuse.
An employer that is non-compliant will not receive a Certificate of Compliance, even if WGEA accepts its reasonable excuse.
If the employer does not respond, or WGEA does not accept the excuse as reasonable, WGEA may:
- decide not to pursue public naming in the circumstances, or
- proceed to the next stage of the notification process.
3. Notice of intention to name: section 19D
If WGEA proposes to publicly name an employer as non-compliant, WGEA will issue a section 19D notice.
The notice will:
- identify the employer’s non-compliance
- advise that WGEA intends to publicly name the employer
- give the employer at least 28 days to make a written representation explaining why it should not be named.
A written representation responding to a section 19D notice is different from a response to a section 19A notice.
A section 19A response explains the circumstances and reasons for the non-compliance, including any reasonable excuse. A section 19D representation gives the employer a further opportunity to explain why it should not be publicly named.
The employer may provide information about:
- why public naming would be inappropriate in the circumstances
- its response to the non-compliance
- action it has taken to address the causes of the non-compliance
- measures it has implemented to prevent the non-compliance from happening again
- any other relevant circumstances.
4. Final decision
WGEA will consider any written representation received in response to the section 19D notice before making a final decision.
WGEA may decide to:
- publicly name the employer as non-compliant, or
- not publicly name the employer.
WGEA will notify the employer of the outcome.
Employers that are publicly named as non-compliant will be included on the named-as-non-compliant list published on WGEA’s website.
To view the legislative authority for these notices, refer to sections 19A and 19D of the Workplace Gender Equality Act 2012.
Considerations prior to naming a non-compliant employer
WGEA assesses an employer’s response and context before making a final decision on whether to name the employer as non-compliant.
WGEA considers the employer’s response, in addition to its context, size and compliance history, in deciding whether to take compliance action.
Where a relevant employer is repeatedly non-compliant, WGEA is more likely to publicly name them as non-compliant. WGEA is unlikely to accept the following reasons as a reasonable excuse for non-compliance:
- The employer was busy during the lodgement period.
There were changes to the CEO or other key personnel during the lodgement period.