Gender Pay Equity Reform in Australia: What is the Way Forward? ‘Women’s Business – Current Issues and Future Agendas’ 7 March 2008 Meg Smith University of Western Sydney

Shaping Gender Pay Equity Reform in Labour Law Three Stages of Gender Pay Equity Reform 1969 and 1972 Equal Pay Principles, tested by the 1986 comparable worth case 1993 federal legislative amendments, tested by way of the ‘HPM’ proceedings New equal remuneration principles at state level (2000, 2002) following state based pay equity inquiries

1972 equal pay for work of equal value principle  Overcame the deficiencies of equal pay for equal work  An instrument of labour law and retained proximity to the wage fixing system  Remedies were collective and aggregate in nature as they were implemented through industry awards  A point of contention remained the assessment of equal value

1986 Comparable Worth Case  Organised labour identified comparable worth as the concept that would advance the application of the 1972 principle. ACAC found comparable worth to be incompatible with its historical reliance on work value as a means of assessing the value of work.  ACAC indicated that while the 1972 principle provided the framework for an inter-award comparative assessment of feminised and masculinised classifications, it viewed these assessments as being one of last resort.  ACAC ruled that the 1972 principle was still extant but narrowed the opportunities through which the principle might be utilised, directing applicants through the anomalies and inequities provisions of the wage fixing principles.

1993 Legislative Amendments Entitlement to equal remuneration given a firm legislative foundation, capacity for the AIRC to issue equal remuneration orders Reference to ILO Convention 100 introduced the concept of discrimination – ‘rates of remuneration established without discrimination based on sex’ Meanwhile other features of Australia’s class settlement were changing by way of decentralised wage fixing

HPM Proceedings (1) Only one application has proceeded to final arbitration, Applicants required to establish a discriminatory cause for any male/female earnings disparity that is the subject of the application Highly limited capacity for Full Bench intervention or award based applications Reluctance by the AIRC to intervene in the regulation of overaward payments

HPM Proceedings (2) Rather than widening the scope for equal remuneration claims, the reference to discrimination, and in turn the Commission’s interpretation that applicants must demonstrate that disparities in earnings have a discriminatory cause, tightened the grounds on which equal remuneration claims can be heard. The case suggested that the 1993 provisions favoured resolution of gender pay inequity at the workplace level - previous phases of equal pay reform have been applied through multi-employer industry awards capable of application across all workplaces falling within the scope and incidence of that award.

State-based principles (1) Inquiries in state jurisdictions instigated by the plateau in gender pay equity ratios and uncertainty concerning the federal legislative provisions New Equal Remuneration Principles in NSW, Queensland and Tasmania Undervaluation, rather than discrimination to be the basis of claims for equal remuneration, a concept capable of disrupting the sameness/difference dilemma

State-based principles (2) There is no presumption that proper assessments have been conducted as part of previous work value assessments. There is no requirement for comparators - comparisons may be utilised but are not a necessary precondition. Principle, most notably in Queensland, is capable of application to a wide range of industrial instruments.

Work Choices and Pay Equity WRA (as amended) retained 1993 legislative amendments – equal remuneration for work of equal value – but with explicit reference to ‘comparator group of employees’ and increased complexities in access to the regulation. Work Choices amendments specifically excluded the operation of new state equal remuneration principles – s.16(1)(c). The erosion of the award system would also exercise a disproportionate influence on women due to the reliance on minimum rates settlements.

A Way Forward (1) Constitutional Head of Power Requires Examination (External Affairs, Corporations, Industrial Relations) - allow intervention of Full Bench (or equivalent) - allow tribunal powers associated with dispute settlement - allow application at the level of industry settlement with proximity to the system of wage fixing - if discrimination is to be a founding construct, then the test becomes a prospective one

A Way Forward (2) Provisions should exclude explicit reference to comparator group of employees Provisions should not prejudice applications on the basis of bargaining arrangements Provisions should be capable of application to industry and workplace settlements.

A Way Forward (3) Conjunction of Federal Equal Remuneration Principle with federal legislative provisions Equal Remuneration Principle should feature: - test of undervaluation as opposed to discrimination - flexibility in comparative benchmarks - contemporary assessment of work value not prejudiced by previous assessments