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4. Impact of WorkChoices on Pay Equity

Are there employees, industries or occupations or callings that would benefit from an application of equal remuneration orders under the WRA?

Wage rates and classifications are now no longer an allowable award matter under WorkChoices and therefore any such orders would have limited effect. Wage and classification scales are now dealt with through the Australian Fair Pay Commission. The AIRC must have regard to any decisions of the Australian Fair Pay Commission (AFPC) in making equal remuneration orders.  Additionally, the AIRC cannot deal with applications where the group of employees and the comparator employees are both receiving remuneration that is equal to that provided for under the AFPC scales or where one or both groups of employees are receiving remuneration higher than the AFPC scales. 

Are there employees, industries or occupations that would benefit from equal remuneration orders under the IRA?

As indicated in the body of this submission, there would need to be changes to the Equal Remuneration Principle under the IRA to make it effective. It is of limited utility in the case of clerical and administrative employees as a broad occupational group in its current application. An independent body also needs to be given the power to investigate pay equity issues across industries and also across occupations and to do proper assessments of pay equity issues within base Awards as well as Agreements.  The ASU would support the formation of a Taskforce to undertake this work on the basis that all relevant parties would be invited to participate and appropriate resourcing to allocated to ensure that this could happen.

Also, the provisions regarding the Certification of Agreements would need amendment to require the production of evidence to allow actual assessments to be made of claims that pay equity considerations have been considered in the making of Agreements.

Are there employees, industries or occupations that would benefit from equal remuneration orders under the WRA if it were to adopt the Queensland model of focussing on undervaluation and equal pay for work of comparable value?

As indicated above, wages and classifications are now no longer an allowable award matter, so there would be little benefit in pursuing such orders. As indicated above, the Queensland model in its current form is imperfect.

Does the newly released ABS Earnings and Hours data for May 2006 show that the gender gap continues to widen for women, particularly those on AWAs?

Without presenting a comprehensive statistical analysis within this submission, it is the ASU’s view from all the statistics and analyses that we have viewed that the ABS Earnings and Hours data do in fact show that the gender gap continues to widen for women and that individualised contracts contribute to this worsening in pay equity.

How can the AFPC advance pay equity? 

The AFPC now have responsibility for wage rates and classifications. These have become Australian Pay and Classification Scales and are part of the minimum AFPC standards. There are over 100 000 classifications and wage rates which have been removed from Awards and placed under the jurisdiction of the AFPC. The AFPC can amend or vary pay scales or develop new ones and part of its functions will be to ‘rationalise’ pay scales. The legislation in this regard requires the AFPC to apply the principle of equal pay for work of equal value.

This is different to the Queensland legislation which allows for consideration of comparable worth and is therefore much more limited. Work of equal value refers to situations where the same work is being performed by men and women. The principle of comparable worth is much broader in that it allows consideration of situations where men and women perform different work which can be shown to be of comparable value. 

At this stage, there is no clarity around how the AFPC will conduct its rationalisation of pay scales, nor indeed clarity on what mechanisms will be put in place to review and amend pay scales. It appears to be largely up to the AFPC to determine its own processes, however, to date whilst many organisations have made submissions on a range of issues there have been no formal hearings or formal processes for the consideration of information or submissions from the various parties. There is no process by which a union for example, could make application to the AFPC to vary a pay scale or examine pay scales for gender pay equity issues. As indicated previously, a range of factors impact on pay equity, not just wage rates, and the AFPC does not have jurisdiction to consider those issues. For example, attraction and retention payments are often made in the form of allowances and these are not included in the AFPC pay scales.

Whilst such a body may have or develop the capacity to genuinely examine pay equity issues, it has yet to come to grips with determining processes for rationalising pay scales and in the absence of any prescriptive requirements on how they should deal with pay equity issues, it is unclear how the AFPC can advance pay equity, or indeed, ensure that the AFPC’s role does not contribute to the escalation of the widening of the gender pay gap.

What is the full extent of the impact of the AFPC Standard and the new agreement making processes on non-wage conditions of employment which enhance women’s earning capacity?

As the AFPC has not yet established processes and procedures for dealing with these issues, it is impossible to assess the full extent of the new Standard on either wages or non-wage conditions of employment.

It is noteworthy however, that the Standards do not include paid maternity leave or other wage or non-wage conditions which would enhance women’s earning capacity.

Of course, as the vast majority of agreements made under the federal system are not required to be published, there is no way that the public can be assured that significant inroads aren’t being made into what progress had been made in the last decade.  Given the recent research regarding this, as well as the federal government’s refusal to provide access to the public to scrutinise such agreements, it is obvious that difficulties in identifying trends and analysing data will stymie such an aim.

Should the Queensland Government join with other state governments to persuade the federal government to review and amend the WRA to make it more effective with respect to pay equity?

It is difficult to comment on the efficacy of such action. The problem with WorkChoices is its emphasis on de-regulation of the labour market and in particular on promoting individual employment contracts. Recent amendments to the WRA to introduce a ‘fairness’ test do not include any requirements regarding pay equity or other provisions which would assist in the achievement of pay equity.

That having been said, it may be worthwhile for the Queensland government to combine with other state governments to put pressure on the federal government to make such legislative changes.

We believe however, in the first instance, the Queensland government needs to consider more effective strategies for achieving pay equity in the state system. This would put the Queensland government in a much stronger position to point to what could be achieved in relation to pay equity if appropriate legislative mechanisms, other strategies and resources are applied to this issue.

The Queensland model provides a reasonable basis for further work, however as we have pointed out, amendments are necessary to improve the model before seeking to apply it elsewhere.

Should the Queensland government look to human rights law, not labour law to provide legislative remedies to pay inequity?

While at first glance this may appear to be a desirable development in relation to pay equity, there are a number of issues which would need to be considered. Firstly, is the jurisdictional issue. Any such attempt to transfer jurisdiction, particularly if it were a proposal to allow the ADCQ or HREOC to play a role in determining wages and working conditions would be rejected by the federal government if it allowed for any such intervention in the now predominant federal industrial relations system. This would probably include legal challenges which would no doubt result in matters proceeding to the High Court.

The second issue is the issue of resources. As indicated in this submission, our members in the “QANTAS Mum’s Case” appealed to the ADCQ in relation to the removal of the provision to allow them to work a four (4) day week on return to work from maternity leave. That matter was not resolved through Conciliation and will be going to a Tribunal hearing in September 2008. In the meantime, there is no ability for the ADCQ to restore the ‘status quo’ that would allow our members to continue to work four days per week. In this instance, those who cannot sustain the new five (5) day arrangement will resign (some already have) and others who remain will continue to bear the cost, both financial and personal, of the imposition of five (5) day rosters. Any such proposal to look to human rights law to provide legislative remedies to pay inequity would require a massive injection of specialist resources into the ADCQ.

Similarly, for the ADCQ or HREOC to play a role in vetting agreements the question of specialist resources to achieve this in a timely manner would need to be seriously addressed.

How can the Queensland Anti-Discrimination Act be amended to provide genuine remedies for pay inequity on both an individual and collective basis?

Conditional upon the resolution of jurisdictional and resource issues, it may be possible to consider amending the Anti-Discrimination Act to allow the ADCQ to conduct Inquiries into Pay Equity across either industries, occupations or even more broadly.

Additionally, it may be possible to give the ADCQ the power to vet agreements as mentioned above and to require the ADCQ to ‘sign off’ on agreements, after proper investigation, to indicate that they do not violate pay equity principles.

However, the requirement to vet Certified Agreements in relation to pay equity already exists for the QIRC, and we believe it would be more appropriate to amend these provisions to require the QIRC to properly examine agreements for pay equity, rather than simply accept employer affidavits regarding same. It is noteworthy that this only applies to the Queensland jurisdiction. Such a power of review could be deferred to the ADCQ, however, there would have to be appropriate resources and clear timeframes applied to the process.

Consideration should also be given to the alignment of “100% rates” within Awards and Agreements based on skill relatives as determined by the Australian Qualifications Framework as one mechanism for achieving some new benchmarks for pay equity.