“Be Bold for Change” – equal pay in 2017

Public commentary surrounding International Women’s Day on March 8 often focuses on the progress women have made in the workplace throughout history. This is a consequence of the fact that many of the injustices faced by women stem from entrenched economic disadvantage arising from discriminatory workplace practices.

While the details of the historical fight for equal pay are familiar to large sections of the Australian community, gender pay inequity currently facing women in 2017 is less understood by mainstream Australia.

All too often, conservative commentators frivolously allege that the fight for equal pay has already been won.

Therefore, on an important occasion such as International Women’s Day, it is important to be clear about what “the fight for equal pay” means in 2017 in practical terms.

The most significant development in this space in recent times is the equal pay case brought by United Voice and the Australian Education Union in respect of employees engaged in the early childhood education sector.

This case was commenced by an application for an Equal Remuneration Order under section 302 of the Fair Work Act in early 2013 and is still going on.

Section 302 of the Fair Work Act requires the Fair Work Commission to be satisfied that workers are paid equal remuneration according to the concept of “equal or comparable value”.

In the important previous ASU equal pay case, the Full Bench of the Commission established that an application under section 302 needs to be decided in two stages.

First, the applicant must show that the workforce is dominated by women, that the industry is undervalued and that there is a causal connection between the two. Secondly, the applicant must show the steps that would be required to address the inequity.

This two-step approach has again been followed in the UV/AEU case.

In terms of the first step, contrary to the view in the previous ASU case, in late 2015 the Commission found that a male comparator was in fact an essential component of an application under section 302.

On this point, the Commission held that:

“the Commission must be satisfied that an employee or group of employees of a particular gender to whom an equal remuneration order would apply do not enjoy remuneration equal to that of another employee or group of employees of the opposite gender who perform work of equal or comparable value. This is essentially a comparative exercise…. We do not accept that s.302(5) could be satisfied without such a comparison being made.”

This is significant because it means that a determination that the work performed by women in female dominated industries in inherently undervalued is not possible under this section of the legislation.

On this point, leading academics Meg Smith and Andrew Stewart have argued that “Narrow and binary forms of job comparison may not be capable of assessing the complex means through which undervaluation may be embedded in the classification, organisation and remuneration of women’s work”.

However, this was rejected by the Fair Work Commission.

In response to the Commission’s decision on this point, the unions have identified the C5 and C10 classifications of the Manufacturing and Associated Industries and Occupations Award 2010 as the appropriate male comparator for the Diploma Level and Certificate III classifications of the Children’s Services Award 2010 respectively.

Whether or not this is an appropriate comparator is yet to be decided by the Commission.

Given this year’s theme for International Women’s Day is “Be Bold for Change”, the continuation of the fight for equal pay in 2017 is certainly an example of the union movement, led by women, being bold and fighting for change, as they have, and will continue to do, in the future.