Regulating for gender equality in the Australian Public Service: Extending Dickens’ tripod of regulation

Abstract

Western governments have used regulation to progress gender equality for workforces in both the private and public sectors, yet gender equality has not yet been achieved. While governments have used various regulatory forms, Dickens (1999) argued that a tripod of collective bargaining, legislation and human resource policy would progress gender equality. Little consideration has been given to how these elements of the tripod fit together. We apply Dickens’ tripod to examine the regulation of gender equality in one Australian public sector. We use institutional analysis, drawing on historical and current documents, legislation, collective bargaining frameworks and human resource policy to examine how the regulatory tripod interlocks, and whether renewed commitments to public sector gender equality can be achieved in the current regulatory environment. We identify regulatory incongruence within the Australian public service and argue for improved congruence to progress gender equality, although we also note that congruence on its own does not lead to better outcomes. We identify that the legs of the tripod are not mutually reinforcing and that all legs need to be supported by better implementation. We extend Dicken's tripod to provide a new path to progress public sector workplace gender equality, enriching both theory and practice.

Keywords

Collective bargaining equality equal opportunity gender regulation public sector labour law women and work workplace relations

Introduction

Regulation is one means to address market deficiencies and power imbalances that create or exacerbate labour market inequalities (Mitchell and Arup, 2006), including gender inequalities. Regulation operates within a broader ‘regulatory ecology’ that shapes the form, operation and intersection of the regulation (Coles and MacNeill, 2017), and contributes to the different approaches to regulation across countries. The regulatory ecology around gender equality within Western countries is not uniform and has been shaped by various policy discourses, debates and developments, based on state actors’ different understandings of gender equality (Verloo et al., 2007).

Broader economic and socio-political environments also shape regulation to progress gender equality. In many Western countries, neoliberalism has informed and shaped gender equality regulation. In this article, we focus on the public sector in Australia, examining the progress of gender equality within an environment of New Public Management (NPM). Just as regulation to progress gender equality in Australia differs from other Western countries (exemplified by Australia's unique industrial relations system), the form of NPM in Australia also differs from comparable countries. However, Western countries have all adopted some aspects of NPM (Bach and Bordogna, 2011). They have also implemented various forms of regulation to progress gender equality, including collective bargaining, legislation and human resource (HR) policy – a tripod which Dickens (1999) has identified as being necessary to progress gender equality. While our analysis is specific to Australia, our findings and recommendations may also be broadly applicable to other countries.

We focus on an Australian public service to highlight the role of regulation in progressing workplace gender equality. We adopt a novel approach by comparing gender equality regulation in Australia over the past 40 years with gender equality regulation in the public sector. We ask: how can governments progress gender equality for their workforces in the current regulatory ecology? We argue that competing and sometimes conflicting positions between gender equality principles and neoliberalism in the form of NPM have resulted in regulatory incoherence, slowing the progression of gender equality. We examine emerging forms of regulation (such as the introduction of positive duties) and suggest ways that regulation could more coherently fit together to progress gender equality within Australia and other Western countries. We draw from industrial relations, HR and organisational psychology to develop an enhanced tripod of regulation.

We focus on the public sector for several reasons. First, public sector employment is highly regulated, with the government being both employer and legislator, able to introduce specific legislation for its own workforce. Second, the public sector has traditionally been viewed as a model employer, providing relatively good job security and generous conditions of employment that often flow on to the private sector (Brown, 2004; OECD, 2019). Third, despite this perception of being a model employer, public sector workforces are often characterised by persistent gender inequality (OECD, 2019). This suggests that these additional layers of regulation have limitations in addressing vertical segregation (where women are concentrated at lower classification levels) and horizontal segregation (where women are often concentrated within certain occupations with high demands and under-valued jobs). These complexities make the Australian public service (APS) a useful study, enabling a close examination of the congruence of regulation in a heavily regulated environment, and in a sector which has a stated commitment to progressing gender equality (Australian Government, 2021a).

We illustrate the limitations of the regulatory tripod, with the public sector being a highly regulated employment context that nonetheless has made uneven progress towards gender equality. The research contribution is to extend Dickens’ (1999) model to incorporate the additional concept of regulatory congruence. This refers to how different forms of regulation fit together – ideally in complementary ways – to achieve common aims. Our research also has practical application by highlighting ways by which regulation can become congruent to progress gender equality. Our examination of the legs of the tripod highlights incongruences: legislation for gender equality is weak; equality bargaining has been stymied; and HR policy has been patchy. We conclude that all legs need strengthening to progress public sector gender equality. Finally, we reflect on new approaches that can increase regulatory congruence to progress gender equality.

Gender equality and labour market regulation

Regulation is ‘the groove in the record that directs the needle of human behaviour’ (Bray and Waring, 2019: 155). Regulation organises human behaviour through rules and rule-making (Bray and Waring, 2019). Murray, Levesque and Vallee define labour regulation as ‘the totality of processes and norms by which actors and institutions, at different levels, contribute to the determination of the conditions of work and employment’ (2000: 246). Such determination is commonly undertaken either through hard (command and control) law, which incorporates formal rules and sanctions (Gahan and Brosnan, 2006) or soft (responsive) regulation, which aims to promote desired behaviours and includes HR policy (Macneil and Liu, 2017).

In 1999, Dickens proposed that a tripod of regulation – consisting of bargaining, legislation and HR policy – was necessary to progress gender equality. She developed this model at a time when the “business case” for equality was becoming prominent, underpinned by the rationale that implementing equality measures could be beneficial for an organisation's bottom line. She critiqued the increasing reliance on business case arguments “because the market tends to produce discrimination, not equality” (Dickens, 1999: 13). Dickens (1999) argued for more effective coordinated legislative approaches, with increased state intervention in the regulation of anti-discrimination legislation and HR/social policy legislation. Collective bargaining for gender equitable provisions (known as equality bargaining) can embed these provisions. She viewed the three tripod ‘legs’ as mutually reinforcing to provide support for gender equality.

Dickens’ model is important for two reasons – for practical application, and for advancing theory. First, researchers have credited this model with providing the underpinning rationale for progressing equality in organisations (Ishaq and Hussain, 2022). Ishaq and Hussain (2022) highlight that Dickens’ model is particularly apt for the public sector. Legislation and bargaining for equality have commonly been associated with this sector, and the business case for equality has been widely accepted. Second, Dickens’ model advanced theoretical frameworks by conceptualising how complementary regulatory forms can progress workplace gender equality. As Bray and Waring (2019) note, much regulatory analysis has failed to examine the interconnectedness of the various forms of regulation. Further, gender equality has not been adequately theorised in industrial relations using regulation theories (Bray and Waring, 2019). Dickens’ model, therefore, addresses these two main gaps, applying an integrated model of regulation to workplace gender equality and contextualising this within industrial relations.

Researchers have applied Dicken's tripod, including to theorise regulation of a universal paid maternity leave scheme in Australia (Baird, Brennan and Cutcher, 2002; Baird, 2003). Others acknowledge the importance of Dickens’ tripod but also its shortcomings, as it operates within dominant paradigms that limit structural change (Gagnon and Cornelius, 2006). Foster and Harris (2005), in their study of the regulation of diversity management, challenged whether the elements of the tripod are mutually supportive and argued instead that a legal compliance approach predominates. This idea of the elements of the tripod being complementary is under-explored and remains a gap in knowledge about how various forms of regulation fit together to progress or impede gender equality. We also question Dickens’ assumption that the three legs are mutually supporting.

Our analysis of how regulation shapes gender equality draws on Bray and Waring’s (2005) conception of regulatory complexity and congruence. Horizontal complexity occurs with the layering of regulation, whereby new regulatory instruments build on top of old instruments, rather than replacing them (Bray and Waring, 2005). Complexity is not inherently negative but can be problematic when forms of regulation lack congruence (discussed below) (Bray and Waring, 2019). In Australia, enterprise bargaining agreements complement legislative provisions; and industrial awards containing the minima for occupations and industries complement enterprise-level collective agreements containing above-minima terms and conditions of employment (for further explanation, see Murray and Owens, 2009).

Bray and Waring (2005, 2019) further examine the notion of regulatory ‘congruence’, being the ‘fit’ between different regulatory instruments, or between rules emanating from different sources. The notion of congruence is part of a wider theory of labour market regulation developed by Bray and Waring (2005, 2019), however, in order to build on Dickens’ model, we limit our discussion to regulatory congruence. Bray and Waring argue that the various industrial instruments – such as legislation, industrial awards, collective agreements and contracts – have historically been seen as ‘disconnected artefacts’ (2019: 161), with limited attention to how they fit together to achieve aims. They also call for researchers to apply the concept of regulatory congruence to workplace gender equality (Bray and Waring, 2019). We take up this call. While some labour law theorists have examined the fit between labour law and anti-discrimination law (Smith, 2011; Chapman, 2018), these analyses do not examine congruence with other forms of gender equality regulation. We add the notion of congruence to our analytical framework, to consider whether this assists to understand effective regulation for gender equality.

Additionally, extant research does not use the language of regulatory ecology, even though it is a useful concept to apply to a study of labour market regulation and gender equality. The term ‘regulatory ecology’ has been used to explain the operation of regulation, and to uncover the interstices and the hidden intersections of the regulation (van der Velden, 2016). For example, Coles and MacNeill (2017) examined how regulatory ecology explains the lack of gender equality in the film and television production industry, due to existing financing and production models. They also analyse the sector for regulatory congruence and critique the lack of fit at the intersection of various types of policy used in cultural industries.

We extend these studies through an examination of the APS, where we explore how gender equality regulation fits together and how it is shaped by a broader neoliberal regulatory ecology. We apply Dickens’ regulatory tripod to consider how governments can progress gender equality for their workforces in the current regulatory ecology. We begin by overviewing the regulatory ecology for workplace gender equality. We then identify key concepts of labour market regulation and how they have been used to progress or hinder workplace gender equality within a neoliberal context. We focus on Dickens’ (1999) argument that a tripod of regulation is required to progress workplace gender equality and align our research to this tripod.

Regulating the APS

In this section, we provide a brief overview of how the APS is regulated, and impacts on gender equality. These two areas are fulsomely discussed throughout the remainder of this article. First, we provide an overview of the APS, which is the national level of public service in Australia's three-tiered federal system. In 2022, the APS employed almost 160,000 people in 102 agencies (APSC, 2022). In the 1980s, APS employees were covered by APS-specific legislation, an APS industrial award, and determinations that were overseen by a central public service arbitrator (Molloy, 2007). However, like most Australian jurisdictions, the APS undertook extensive reform since the 1980s in accordance with prevailing neoliberal ideologies. The existing regulatory ecology of a sector-wide approach based on traditional notions of public service was replaced with one focused on smaller government, efficiency, and devolved decision-making (Colley, 2001; Brown, 2004; Pollitt and Bouckaert, 2017), in line with NPM ideology. For example, centralised wage regulation that provided equal outcomes for all APS employees gave way to enterprise bargaining at the agency level in the mid-1990s (Molloy, 2007). This localised bargaining allowed for productivity bargaining which was more likely to benefit those agencies that had male-dominated workforces and generated revenue, rather than female-dominated, social policy agencies (Charlesworth, 1996). Bargaining was complemented with HR policies, which were subject to agency discretion and managerial implementation (Molloy, 2007).

By the early 2000s, NPM was superseded by ‘post-NPM’, which focused on a whole-of-government approach and ‘joined-up targets’ (Klent and Reiter, 2019: 4). The role of public servants changed from being business managers to being partners with stakeholders to deliver services. The NPM emphasis on attempting to emulate the private sector, with a focus on efficiency and profit, rebalanced to focus on public value. This refocusing enabled a concomitant refocusing on social justice issues, including gender equality (Jurkiewicz and Mujkic, 2021). By the mid-2010s, this refocusing was evident as global institutions recognised the slow progress of gender equality since the Beijing Declaration (1995), which envisaged the important role of laws, policies and programs to support the achievement of gender equality (OECD, 2019). Refocusing was evident, for example, at the 2014 G20 meeting of the world's largest economies, where all participating governments renewed their commitment to improve gender equality, and specifically to reduce the gap in women's labour market participation by 25% (G20, 2014). The Australian Government also made this commitment, as we later discuss.

The legacy of NPM, however, was long-lasting. The fragmentation of terms and conditions of employment, and lack of central oversight hindered progress towards gender equality and vertical and horizontal segregation persist in a predominantly female workforce. Women are under-represented in very senior management levels and concentrated in agencies responsible for service delivery, health, and ‘softer’ occupations, such as HR and administration (APSC, 2021a). The gender pay gap persists, albeit, at 6.0% in 2021, which was lower than the Australian national gender pay gap for the same year, which was 14.1% (APSC, 2022). Flexible work policies are longstanding, but access is subject to discretion, and part-time work is mostly accessed by women (APSC, 2021a). Having provided the context to our study, we now discuss our methods.

Methods

We use an institutional analysis to examine regulating for gender equality, drawing on historical and current documents and frameworks. Data is structured into three categories, in line with Dickens’ (1999) regulatory tripod of legislation, bargaining and HR policy. First, we examined the historical development of public sector legislation to determine the extent to which it requires public sector agencies to progress gender equality. Second, we examined APS bargaining frameworks, which have increasingly limited the potential for localised APS agency collective bargaining. We focus on more recent bargaining frameworks since the introduction of Australia's main labour legislation, the Fair Work Act 2009, and analyse terms and conditions that directly impact on gender equality.

Third, we examined HR policies at successive points in time. In 2016, the APS Gender Equality Strategy (the Strategy) was released; by 2017 all APS departments had their own gender equality action plan, developed in reference to the Strategy. We analysed all departmental plans to assess congruence with the APS-wide Strategy. Every plan was coded against all gender equality initiatives in the Strategy, to determine which initiatives departments had chosen to implement. Where an initiative was included, we coded this as either ‘comprehensive’, which meant that the initiative was detailed and included timeframes and accountabilities, or ‘good’, which meant that the initiative had some detail and included some performance indicators. The remaining initiatives were coded as either being minimal in detail or non-existent.

In 2020, we examined all departmental websites to assess the extent to which their gender equality action plans had been implemented, evaluated, and reported. In late 2021, a new APS-wide gender equality strategy was released (Australian Government, 2021a), and in August 2022, we analysed whether departments had updated their 2017 strategy to reflect the 2021 strategy and if so, examined which initiatives had been included. Finally, we examined alternative models of regulation for progressing gender equality. In the next sections, we examine the individual elements of the regulatory tripod and how these have been applied to progress gender equality in the APS.

The first leg of the tripod: legislating for gender equality

The Australian regulatory ecology changed in the 1980s, away from the traditional masculine model of industrial relations (Berns, 2002; Smith, 2011). Sex discrimination legislation and affirmative action/equal opportunity legislation (Allen, 2016) were introduced, and unions successfully centrally bargained for carer's leave and parental leave (Chapman, 2018). This demonstrated regulatory congruence between different types of legislation, and between legislation and bargaining, as all systems operated together to secure forms of gender-equitable paid leave, progress gender equality in organisations, and reduces the gender pay gap.

Further, the regulatory ecology began to change in the mid-1990s amidst the rise of NPM. The Australian Government's focus moved from legislating to encouraging organisations to progress gender equality through their HR policies, particularly ‘family-friendly’ policies (Berns, 2002). In 2005, the Howard conservative government enacted the controversial WorkChoices legislation that undermined existing employment relationships, with especially negative effects for women (Pocock et al., 2008). For example, the award system that had long provided a floor for employment conditions was stripped to a requirement for only five basic provisions, leaving all other conditions to the vagaries of bargaining power, with an emphasis on individual-level bargaining. In one landmark study, lower-paid women reported being unable to bargain to retain their working hours arrangements, with negative consequences for balancing work and caring responsibilities. The increased use of individual contracts also resulted in individual women being unable to negotiate for pay rises; this was also coupled with additional unpaid hours for lower-paid women (Pocock et al., 2008).

Another change in direction occurred in 2009, reflecting a focus towards a public value approach. The Rudd Labor government introduced legislation with improved equal remuneration provisions, legislated rights to unpaid parental leave and to request flexible working arrangements (Smith, 2011), and a universal scheme of parental leave pay (Williamson, 2015). The legislated parental leave pay complemented enterprise agreements and HR policy, both of which can provide employees with paid parental leave (Baird et al., 2002). This brief window of legislative progress largely stalled upon the election of a conservative government in 2013. A Labor government elected in May 2022 expressed a commitment to progressing workplace gender equality (Labor, 2021: undated), and as we discuss, regulation is being developed and implemented which aims to achieve this goal.

APS legislation

APS employment is covered by broad labour market regulation – relating to industrial relations, discrimination and parental leave – but is exempt from overarching gender equality regulation. The Workplace Gender Equality Act 2012 is Australia's primary affirmative action legislation and requires certain organisations to report on initiatives adopted to progress gender equality (WGEA, 2019). However, the APS and other public sectors are outside jurisdiction. This may be due to the APS being covered by the Public Service Act 1999 (Cth), which prescribes principles of employment which include equity and diversity in employment, and freedom from discrimination (Molloy, 2007).

The Public Service Act provides a weak form of a positive duty to progress diversity (and gender equality). It requires each agency head to establish a workplace diversity program but does not require reporting or contain sanctions for inaction. This lack of enforcement falls short of a more positive gender equality duty that complements and extends affirmative action legislation by requiring agencies to do more than meet benchmarks and actively promote gender equality (Allen, 2016). It misses the opportunity to complement sex discrimination legislation by taking a proactive and collective approach, rather than an individual, reactive approach (Conley and Page, 2015). However, the public sector will be required to report to the Workplace Gender Equality Agency on progressing gender equality, implementing a government commitment and recommendation of the Australian Human Rights Commission (WGEA, 2021).

There is a lack of congruence across the legislation affecting APS employment and gender equality. For example, the Maternity Leave Act 1973 regulates paid parental leave for the APS, but its legislative minima have been superseded by more generous provisions in enterprise agreements (Brennan and Williamson, 2017). This legislation is being reviewed – the first major review in 40 years (APSC, 2021b) – and may result in legislation which is more congruent with existing legislation.

The second leg of the tripod: bargaining for gender equality

The second leg of the tripod – collective bargaining – covers a decreasing number of Australian employees. Until the 1980s, bargaining largely occurred at the national level and was overseen by a federal tribunal, with outcomes contained in industrial ‘awards’ that covered occupations or workplaces (Buchanan and Callus, 1993). In the 1980s, a combination of economic downturn and increasing neoliberal ideology saw a shift from centralised bargaining to sector, then enterprise level (Buchanan and Callus, 1993). Bennett (1994) expressed concerns that enterprise bargaining could negatively affect women and examination of early agreements showed minimal increase in equality initiatives, often secured through trade-offs in wage rises (Charlesworth, 1996). Negative impacts appeared to continue in the following decades. A 2016 parliamentary inquiry into bargaining in the APS heard testimony from academics (including the first author), that gender equitable provisions had been amended or removed from some collective agreements in recent bargaining rounds (The Senate Education and Employment References Committee, 2016).

More than 25 years later, enterprise bargaining in Australia is said to be ‘on the brink of collapse’ (Pennington, 2018: 4). The coverage of enterprise agreements in the private sector has declined markedly due to declining union density and capacity, and employer resistance, albeit public sector coverage has remained relatively stable (Pennington, 2018; Peetz, 2018). Bargaining in low-paid, female-dominated private sector industries (such as aged care), is hampered due to limited bargaining power, which legislative provisions have failed to rectify (Charlesworth and Howe, 2018; Stewart et al., 2018). Further, sluggish private sector bargaining in Australia acts as a brake on gender equality, given that women benefit from collective bargaining more than from individualistic forms of regulation. While public sector bargaining appears to be healthier, it is also problematic due to the complexity of industrial and equality regulation, which intersects with public sector regulation and HR policy and has been devolved to the agency level.

APS bargaining

Public service bargaining followed a similar trajectory to that outlined above, but governments soon imposed limitations that affected the congruence between bargaining and legislation. While the first APS enterprise agreement in 1994 covered all Commonwealth agencies (Colley, 1996), the Public Service Act 1999 decentralised the setting of wages and conditions to the agency level, with each agency head becoming the nominal employer. However, this broad legislative provision was limited by APS-wide bargaining frameworks that imposed limits on the quantum of wage rises, and the terms and conditions that agencies could negotiate (Molloy, 2007).

The bargaining frameworks were revised for each bargaining round, approximately every three years, and the scope for equality bargaining followed party-political lines. In 2007, the framework required APS agencies to demonstrate that increases to pay and conditions would be offset by increased productivity (Molloy, 2007). Gender-equitable conditions (such as domestic violence leave and a right to work part-time on return from parental leave) had been traded off or removed from some enterprise agreements through bargaining (The Senate Education and Employment References Committee, 2016). In 2010 a Labor government restored the option to bargain for increased or enhanced parental leave provisions above the legislated minimum by amending the bargaining framework (APSC, 2011). In 2014, the conservative Coalition government's bargaining framework stipulated that agencies were not to bargain for increases to paid parental leave (APSC, 2014), in anticipation of a legislated increase that never eventuated (Williamson, 2015). These examples highlight the incongruence between legislation and bargaining, as bargaining policies imposed constraints in a manner not intended by the legislation.

The lack of congruence continued in a different form in the 2018 and 2020 bargaining frameworks, which allowed bargained outcomes that were ‘reasonable’, reflecting ‘community standards’ (APSC, 2018: 1, 2020). Conditions of employment could not be enhanced overall, but trade-offs between employment conditions of ‘similar value’ could occur (APSC, 2018, 2020). Unions continued attempts to negotiate for gender equality provisions without trade-offs, such as for paid domestic violence leave (CPSU, 2018). This form of leave will now be universally provided following legislation introduced by the new Labor government which was passed late last year (Parliament of Australia, 2022). The legislation enshrined a decision by the Fair Work Commission to include 10 days of paid domestic violence leave in industrial awards (Fair Work Commission, 2022), evidencing congruence. The philosophy underpinning the 2018 and 2020 bargaining frameworks – for productivity trade-offs and an unwillingness to collectively support victims of domestic violence – is consistent with the regulatory ecology of NPM, with its focus on individual actions to progress equality, rather than a systemic approach. The restrictions on bargaining limited the potential to enhance gender equitable provisions. This evidences a lack of congruence between forms of regulation, demonstrating a stark difference with the private sector. Even though bargaining in the private sector has decreased, the ability for parties to negotiate improvements to gender equitable provisions in collective agreements remains.

The latest approach following the election of the new government demonstrates an alignment with a post-NPM, public values approach. The most recent bargaining policy notes the government's aim to become a model employer, harking back to traditional public service values (Australian Government, 2022). The government has committed to (re)introducing APS-wide bargaining and common terms and conditions of employment. This would reverse some of the fragmentation which occurred due to NPM. In partial achievement of this aim, the latest (interim) bargaining policy references other reforms underway, which include the introduction of paid family and domestic violence leave, and reviewing the parental leave provisions (Australian Government, 2022). This indicates congruence is occurring between these forms of regulation, with elements fitting together.

The third leg of the tripod: gender equality policy

The third leg of Dickens’ tripod is HR policy. Slow progress on gender equality led the Australian Government to make a G20 policy commitment to reduce the gap between men’s and women's labour market participation by 25% by 2025 (Australian Government Department of Employment, 2016; G20, 2014). Australia is on track to meet this target, despite severe COVID-19 pandemic effects, with the labour market participation rate gap reducing from 12.3% in June 2014 (being 70.9% men and 58.6% women) to 8.7% in June 2022 (being 71.2% men and 62.5% women) (ABS, 2022).

Approximately 77% of Australian organisations that reported to the Workplace Gender Equality Agency had a gender equality policy in 2020 (WGEA, 2020). This was an increase from two-thirds of organisations having a policy in 2014 (WGEA, 2020). Organisations are also increasingly incorporating gender equality into specific HR policies. For example, in 2020, 70% of organisations had a policy or strategy to progress gender equality in their “talent identification” processes, an increase from 47% in 2014 (WGEA, 2020: 23).

Gender equality policies complement legislation, as they potentially operationalise the compliance requirements of the Workplace Gender Equality Act. Gender equality policies also complement both collective bargaining and legislation. These forms of regulation can be congruent as they operate together to progress gender equality. However, HR policy is also limited in its capacity to progress gender equality. Dickens (1999) argued that HR gender equality policy was driven by business case arguments. This argument still holds although the ascension of neoliberalism has reframed the business case so that gender equality has now become depoliticised and marketable (Elomäki and Ylöstalo, 2021). This framing can make gender equality initiatives subject to the vagaries of the market and obstruct ongoing culture change, entrenching gender inequality. Policies can also be susceptible to variable commitment and discretion of managers as to who can access the policies, and resourcing constraints (Williamson et al., 2020b). Further, a gap often exists between HR/gender equality policies and implementation (Williamson, et al., 2020b).

APS gender equality policy: gender equality strategies

Women's workforce participation in Australia has increased in the past 50 years, and several trends are evident in Figure 1. There are clear trends in the broader Australian labour market, with women's participation increasing from around 35% in 1978 to 47.6% in 2021, and men's declining from around 65% in 1978 to 52% in 2021 (APSC, 2021a). There has been a greater shift within the public sector than in the broader labour market. The shift in the participation rate has not been even across the decades. The proportion of women in the APS nearly doubled from 25% to 48% in the 25 years from 1968 to 1993 (most likely due to the removal of legislative barriers, see Colley, 2019). This proportion increased slowly, by only a further 12% over the next 25 years to reach 60% in the 2020s. However, this increase in numbers and participation rate did not result in gender equity, with women over-represented in lower-level classifications and under-represented in senior leadership levels.

Figure 1.

Participation rates by gender in the Australian Public Service (APS) and Australian workforce (1968–2021). APS Employment Data and Australian Bureau of Statistics.

In 2016, the Australian government committed to reinvigorating gender equality within its own workforce through a new, APS-wide, gender equality strategy (APSC, 2016). This was the first APS-wide strategy for gender equality in decades. The strategy focused on five areas, namely: (1) culture change, including through role modelling; (2) increasing gender equality in APS leadership; (3) improving HR processes to embed gender equality in employment; (4) increasing the take-up of flexible working arrangements by men and women; and (5) measuring and evaluating outcomes (APSC, 2016).

The APS-wide strategy contained some good initiatives, however, many of them did not require specific actions to be taken or to publicly report on outcomes. Once the APS strategy was released, agencies then developed their own gender equality action plan, with most released in 2017. Our analysis of the 17 departmental¹ gender equality action plans shows patchy adoption of gender equality initiatives (see Appendix Table 1). No more than four of the 17 agencies had comprehensive implementation plans for each of the 15 main initiatives, with timelines and accountabilities. Between five and 10 agencies had good details on how they would implement actions, but these generally lacked measurement and accountability indicators. In 2020, we searched annual reports and agency websites for information on the implementation of the initiatives and any progress made, but found scant data, suggesting little progress had been made and that gender equality was not a priority.

The 2016-19 strategy was belatedly updated in 2021 (Australian Government, 2021a). The 2021-26 strategy is superior to the first strategy, with initiatives embedded in a comprehensive framework of action areas (leadership and accountability, respectful workplaces, changing gender stereotypes, flexible working, data gathering and influencing external stakeholders to progress gender equality: Australian Government, 2021a). The strategy requires agencies to adopt minimum standards, including around leadership, provide resources to progress implementation, monitor outcomes and report on progress (Australian Government, 2021a). It contains specific and targeted initiatives, such as an enhanced ability to work remotely in a COVID-normal environment, improved reporting mechanisms for those experiencing sexual harassment, increased training for managers to lead teams working flexibly, and the use of ‘nudges’ to encourage behaviour change, such as conducting a visible campaign showing senior men leaders caring for family (Australian Government, 2021a).

In late 2022, we again examined the websites of the 17 current APS departments. We assessed progress against their 2016-2019 plan and whether the strategy had been updated, including to incorporate the new initiatives in the 2021 APS-wide strategy. Twelve agencies had not updated their previous plan; three had developed a diversity and inclusion policy (with only two including minimal commitments to progressing to gender equality), and only two agencies had a new gender equality plan. One of these was vague. The other was comprehensive and contained an evaluation of progress made since the last action plan and detailed many good initiatives to be undertaken. However, it did not reflect the new APS-wide strategy, focusing on leadership, rather than the six action areas outlined in the APS strategy. At the time of writing, eight months had passed since the release of the new APS-wide strategy and it may therefore be too soon to expect new plans, however, the current situation is not promising.

In the next section, we consider alternatives, modifications and new systems of regulation which may have more potential to progress public sector gender equality.

Where to next?

Our analysis has shown that congruence exists within the broader, non-public sector regulation governing gender equality in Australia. Such congruence, however, is not present in regulation specific to the APS. In this section, we examine new regulatory developments and suggest ways forward. We build on Dickens’ (1999) tripod and suggest ways that all legs of the tripod can be enhanced to improve congruence.

Reforming gender equality legislation

We first examine legislative developments in Australia and internationally. In 2021, the Australian Government was under intense scrutiny to take action to prevent violence against women and reform workplace cultures (see e.g. Dent, 2021). It belatedly responded to a landmark report by the Australian Human Rights Commission examining the prevalence and causes of sexual harassment (Australian Government, 2021b). The government agreed that Australia's affirmative action legislation be amended to cover the public sector (Australian Government, 2021b), and agencies will commence reporting from the 2022-23 period (WGEA, 2021).

Some jurisdictions are making progress towards positive duties relating to discrimination and progressing gender equality. Sometimes this is along partisan lines. The previous conservative Australian government rejected a recommendation to introduce a more proactive positive duty requiring employers to prevent sex discrimination and harassment (Patten, 2021). In contrast, the newly elected Labor government enacted legislative amendments to the Sex Discrimination Act, which requires employers to implement a positive duty to prevent sex discrimination, sexual harassment and victimisation (Dreyfus, 2022). This positive duty aims to make workplaces safer for women and to progress workplace gender equality (Dreyfus, 2022). While preventing discrimination is an important principle, the federal legislation potentially has a narrower focus than some state jurisdictions that introduced positive duties to actively progress gender equality and develop and report on gender equality action plans (see the Gender Equality Act 2020 (Vic) and the Public Sector Act 2022 (Qld)).

Public sector equality duties have been found to have a normative impact, spreading ideas and strategies about equality from the public to the private sector. However, some researchers argue that the impact of the UK gender equality duty has been tempered due to weak enforcement measures and a focus on process rather than outcomes (Manfredi et al., 2018; Conley and Page, 2015). Manfredi et al. (2018) recommended that a positive gender equality duty can be strengthened through effective data collection, education, leadership and strong enforcement mechanisms. Enforcement powers could mirror those in labour law and workplace health and safety, supported by inspectorates, audit institutions, and ombudsman's offices, as recommended by the OECD (2019).

Reforming bargaining

We next examine the collective bargaining leg of Dickens’ tripod. Equality bargaining has been shown to be effective in progressing gender equality for both public and private sectors (Proctor-Thomson et al., 2021; Williamson, 2012; Williamson et al., 2009; Gregory and Milner, 2009). Equality bargaining is mandatory in France, with legislation requiring organisations with over 50 employees to negotiate gender equality issues as part of regular collective bargaining (Milner et al., 2019). Such requirements can progress gender equality but need to include effective enforcement mechanisms to avoid becoming merely a compliance exercise (Milner et al., 2019). For collective bargaining to be effective, state-level sanctions are required, such as financial penalties and/or incentives such as tax relief (Milner et al., 2019).

Equality bargaining in the APS could be reinvigorated in three ways. The Australian Government is reviewing the bargaining guidelines, representing an opportunity for meaningful reform (Australian Government, 2022). We suggest that first, the Australian Government review the bargaining parameters. Specifically, it could amend bargaining frameworks, dropping the current constraints on bargaining over gender equality initiatives or requirements for trade-offs. Second, stronger regulation would see equality bargaining mandated through legislation. Such a mandate would be supported by a memorandum of understanding with unions, as occurs in France (Milner et al., 2019) and enforcement mechanisms. Third, the government could reform the APS bargaining process. The new Labor government has committed to introducing APS-wide negotiations for core common terms and conditions (Australian Government, 2022). A sector-wide approach is potentially more advantageous to women than is the current process (Stewart et al., 2018). An APS-wide approach to common terms and conditions, complemented with agency-specific conditions negotiated at the local level, without a requirement for trade-offs may not only progress gender equality, but also increase the congruence between these industrial instruments.

Reforming HR policy

In this section, we examine the HR policy leg of the tripod and suggest that this leg be strengthened. We note, however, that if APS agencies incorporate the initiatives in the 2021–26 APS gender equality strategy into their gender equality action plans, that this may progress gender equality. Firstly, requiring agencies to report on progress aligns with proposed changes to the Workplace Gender Equality Act, which will see public sector agencies report to the agency. This was a recommendation in the Australian Human Rights Commission report on sexual harassment (Australian Government, 2021b). The importance of requiring the public sector to meet legislative reporting requirements cannot be underestimated. Second, the review of the parental leave provisions indicates potential congruence as the Maternity Leave Act may be amended or replaced with provisions which mirror or exceed current entitlements in enterprise agreements. The legislation and enterprise agreements may align. Third, we suggest that industrial relations and HR practitioners go beyond disciplinary boundaries and borrow tactics from organisational psychology. We suggest that the use of behavioural nudges can extend HR policy beyond implementation, to target individual behaviours.

Behavioural insights emanate from psychology, social and cognitive sciences to explain how people make choices (van der Heijden, 2019). It recognises that individuals may not always act rationally, thereby thwarting intended policy outcomes, and so includes policy interventions designed to ‘nudge’ people to act in certain ways (Waylen, 2018). The OECD (2019) considers that behavioural insights may provide the key to progressing public sector gender equality. Behavioural nudges are a form of responsive regulation involving individual learning, monitoring, and reporting as a complement to traditional regulation (Amir and Lobel, 2012). While Waylen (2018) criticised behavioural economics (which includes behavioural insights) for being individualistic and not addressing systemic discrimination, behavioural approaches can incorporate a systemic approach, if the new knowledge is applied to changing HR systems and processes (OECD, 2019).

The UK Government has implemented behavioural approaches (Behavioural Insights Team, 2018), and smaller experiments have also been conducted in Australia (NSWBIU, 2020; Victorian Government, 2018; Hiscox et al., 2017). While not all nudges have been successful (as with one-off unconscious bias training, which has been found to be ineffective: Atewologun et al., 2018), the potential for this form of regulation is promising. For example, a behavioural intervention of emailing and calling women candidates for senior leadership positions significantly reduced the gender gap between the numbers of men and women reapplying from 45% to 4% (NSWBIU, 2020). A behavioural approach would increase the congruence of regulation governing public sector gender equality, with behavioural insights focusing on individual behaviour change, complementing HR policy and collective bargaining (organisational level regulation) and legislation (sectoral and national level regulation).

Conclusions

In this article, we briefly overviewed Australian labour market regulation around gender equality, then focused on the APS to demonstrate the application of Dicken's tripod. We make several contributions. First, we highlight that congruence does not necessarily lead to progressing gender equality. A level of congruence has been achieved within regulation governing gender equality for the general population, as evident in legislation, bargaining and HR policy for ‘family-friendly’ working arrangements, paid parental leave, affirmative action and equal remuneration. Industrial awards and cases set the minima for these terms of employment, and legislation and bargaining extended the minima. However, researchers have identified limitations with each of these forms of regulation in progressing gender equality, and a broader problem of regulatory ecology through a lack of congruence between labour law and gender equality law. Therefore, we conclude that congruence on its own does not lead to progress on gender equality.

Second, congruence has not yet been achieved within the forms of regulation governing the APS. While the Australian system of labour law has a level of complexity due to the layering of regulation, the three forms of regulation under examination are complementary. This congruence does not currently exist in the APS and cannot be achieved due to the limitations placed on collective bargaining. This weakens this leg of the tripod. Dickens (1999) argues that the legs of the tripod are mutually reinforcing; we have nuanced this model by highlighting Australia's layered system of employment regulation. Further, we have shown that the tripod legs in the APS are not mutually reinforcing, and suggest that all legs need strengthening to progress gender equality in the APS.

Third, we argue that mutual reinforcement of the legs of the tripod can be undermined by the regulatory ecology of the public sector. We examined the forms of regulation against the regulatory ecology of NPM, which has seen regulation devolved to the agency level and to managers, resulting in incongruences between the forms of regulation. We have examined the intersections, concluding that regulatory incongruence is manifest, however, we note some moves towards congruence with the latest regulatory developments introduced by a new government. While the APS has progressed gender equality, we found that the regulatory tripod has not been successful in reinvigorating progress: legislation has weak requirements and reporting mechanisms are only now starting to be introduced; bargaining for gender equitable provisions has been stymied; and HR policy has resulted in patchy progress. To date, the regulatory ecology has undermined each leg of the tripod.

Finally, we recommend strengthening and reinvigoration of each leg of the regulatory tripod. Government, unions, and organisations all have a role to play in developing/amending and implementing the various forms of regulation covered in this article. Our proposed framework weaves together different forms of regulation. Legislation could be expanded with a public sector gender equality duty to complement Australia's affirmative action legislation. Bargaining could be reformed to allow or even mandate equality bargaining. Finally, HR policy must go beyond normative statements to include active implementation, behavioural initiatives, and accountability for outcomes, as required by the new APS gender equality strategy. Our recommendations would both strengthen each leg of the tripod, make them mutually reinforcing, and improve congruence between the forms of regulation in public sector organisations to make workplaces more gender equitable.

Footnotes

Notes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iDs

Sue Williamson

Linda Colley

Biographical notes

Associate Professor Sue Williamson specialises in two main areas of research – gender equality in the workplace, and public sector human resources and industrial relations. Her most recent research examined the future of flexible working, and she has also researched how public sector employees worked from home during the pandemic. Sue has also focused on how middle managers can progress gender equality, identifying barriers and offering solutions on ways forward. Sue has published widely on these topics and also shares her findings with industry partners and the community.

Professor Linda Colley is an expert gender equality in public sector workplaces. Linda has an extensive track record of completed research projects as well as scholarly publications and practitioner publications from that research.

Appendix

Table 1.

Main gender equality initiatives included in APS Departments Gender Equality Action Plans (2017).

	Action area	Main initiatives (or ‘steps’)	Comprehensive	Good
1	Driving a supportive and enabling culture	Ensuring gender equality is a business objective	3	10
		Role modelling by leaders	4	9
		Recognising that domestic violence is a workplace issue	3	6
2	Gender equality in APS leadership	Agencies to set gender equality targets across leadership levels and business areas.	4	6
		Agency to develop action plans to meet targets	3	10
		Agencies to implement programs that support women's progression into senior leadership positions	4	8
		Agencies to work actively with all jurisdictions to prioritise gender equality in public sector leadership across Australia	2	2
3	Gender equality as part of innovation agendas	Agencies to develop a program of HRM practices to promote gender equality	4	7
		Agencies to review their recruitment, retention, and performance management practices to drive gender equality	4	10
		Agencies to work towards meeting WGEA Employer of Choice for Gender Equality citation	3	7
4	Increased take-up of flexible work arrangements	Agencies to adopt a ‘flexible by default’ approach	4	8
4	Increased take-up of flexible work arrangements	Leaders to put mechanisms in place to improve the take-up of flexible work arrangements by men	4	5
5	Measurement and evaluation	Agencies to evaluate current gender balance across classifications and work areas. Includes reviewing programs, policies, guidance and training to address unconscious bias	3	8
		Agencies to review performance assessment processes and performance indicators across all levels of management	4	6
		Agencies to monitor their progress against actions taken under the strategy and adjust approach as required	3	9

Source: The original source documents for some of these plans are no longer publicly available. For a full list of sources from 2017, see Williamson et al. (2020b).

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