Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Equal Remuneration Convention, 1951 (No. 100) - Australia (Ratification: 1974)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 31 August 2011.

Legislative developments. The Committee previously noted the adoption of the Fair Work Act, 2009, and notes that, as of 1 January 2010, the States, with the exception of Western Australia, have referred their industrial relations powers to the Commonwealth. Thus, the Fair Work Act now applies to all employers and employees in Victoria, the Northern Territory and the Australian Capital Territory; to private sector employers in New South Wales, Queensland, South Australia and Tasmania; local government employers in Tasmania; as well as applying to national system employers and employees in Western Australia. The Government also refers to the recent enactment of the Sex and Age Discrimination Legislation Amendment Act, 2011, resulting in a specific reference being made to Convention No. 100 in the Sex Discrimination Act. The Committee also notes the Government’s indication that it has launched the Human Rights Framework, with the anti-discrimination consolidation project as a key element, aimed at the consolidation and streamlining of five Commonwealth anti discrimination Acts into a single comprehensive law. The Government also refers to the review of the Equal Opportunity for Women in the Workplace Act, 1999, with one of the objectives being to include an explicit reference to pay equity in the Act. The Committee also notes the adoption of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 of New South Wales, providing that equal remuneration for men and women doing work of equal or comparable value is a paramount policy under the wage-fixing principles (section 5). The Regulation goes on to provide that increases in remuneration that increase employee-related costs by more than 2.5 per cent per annum can only be awarded where sufficient employee-related cost savings have been achieved to offset fully the increase, though such policy is subject to compliance with the paramount policies (section 6).

The Committee asks the Government to provide information on the following:

• (i) the application in practice of the Fair Work Act with respect to the implementation of equal remuneration for men and women for work of equal value;
• (ii) the progress made in the anti-discrimination consolidation project and other initiatives under the Human Rights Framework, as they relate to the principle of the Convention;
• (iii) the status of the adoption of amendments to the Equal Opportunity for Women in the Workplace Act to include a specific reference to pay equity, and the impact of such amendments; and
• (iv) the implementation of section 5 of the New South Wales public service regulation, and to indicate how it is ensured, in the light of the constraints set out in section 6, that the principle of equal remuneration for men and women for work of equal value is fully applied in practice.

Gender pay gap. The Committee notes from the statistics of the Australian Bureau of Statistics of May 2011 that women working full time earn 17.7 per cent less than men working full time (based on adult ordinary time earnings), and that the gap has increased from 17.25 per cent in May 2010. Comparing the total earnings of all employees, the gap was 35.2 per cent in 2010 and 35.5 per cent in 2011. The Committee notes that the Government acknowledges that the gender wage gap is a continuing problem and that more needs to be done to reduce it. The ACTU also urges the Government to implement the recommendations of the Senate Committee Inquiry into Pay Equity, which to date has had no government response. The Committee notes that the Government indicates that it is currently considering its response to the report of the House of Representatives Standing Committee on Employment and Workplace Relations, with a view to closing the gender pay gap. According to information provided in the Government’s report, the gender pay gap in Western Australia is particularly high, at 25.2 per cent overall, and 16.3 per cent in the public sector (statistics from 2010). The Committee notes the Government’s indication that measures are being taken to address the gender pay gap in public sector agencies, by assisting them to undertake pay equity audits, which are voluntary, and promoting the pay equity audit tool. The Committee asks the Government to provide information on specific follow-up being given to the recommendations of the Australian Human Rights Commission in the report “2010 Gender Equality Blueprint” and to the recommendations of the House of Representatives Standing Committee on Employment and Workplace Relations, and any other measures taken or envisaged with a view to closing the gender pay gap. Noting the very large gender pay gap in Western Australia, particularly in the private sector, the Committee also asks the Government to take more proactive measures to determine and address the causes of the gender pay gap, in both the public and the private sectors, and to provide information on specific steps taken in this regard.

Minerals industry. The Committee had previously noted the significant gender pay gap in the minerals industry, and that recommendations had been made on attracting and retaining women in the minerals industry. The Government indicates that, in response to the recommendations, the Government has recently announced the “Attracting and retaining women in the resources and construction sector” initiative. Barriers to female participation in this sector have been identified as including the remoteness of the worksites, flexible work practices, return to work issues and pay equity. The Committee also notes a similar initiative of the Queensland government in partnership with industry to study industry-specific pay issues, including working with the Australian Institute of Minerals and Metallurgy and the Women in Mining Network to analyse the results of a survey and prepare a report on gender pay equity and work practices in the sector. The Committee asks the Government to provide information on the impact of the initiative to attract and retain women in the minerals industry, including the effect it has had on the gender pay gap in that industry. Please also forward a copy of the survey of the minerals, metallurgy and mining industries in Queensland, and provide any information on follow-up taken or envisaged to address the findings of the survey, in particular those related to pay equity.

Minimum wages and low-paid assisted bargaining. The ACTU indicates that women have unequal access to workplace bargaining and are over-represented in low-paid jobs dependent on minimum wages and conditions. The ACTU indicates further that the Fair Work Act may assist in promoting equal remuneration as it enables Fair Work Australia to provide bargaining support for low-paid workers who have not historically had access to benefits of collective bargaining and face substantial difficulty in bargaining at the enterprise level, many of whom are women due to their concentration in precarious employment, low-paid sectors and community or government-funded sectors. However, as the decision in the first case brought under the low-paid bargaining provisions prevented workers who were already covered by workplace agreements, despite the low wages and conditions, from accessing the assisted bargaining provisions, the ACTU considers that the potential to address workplace inequalities has been significantly limited. The Committee asks the Government to respond to the specific concerns raised by the ACTU regarding the application of the low-paid assisted bargaining provisions of the Fair Work Act. The Committee also asks the Government to provide information regarding how it is ensured in practice that, as required under the Fair Work Act, minimum wages are determined in accordance with the principle of equal remuneration for men and women for work of equal value.

Gender equality analysis and pay audits. The Committee notes that in the context of the reforms of the Equal Opportunity for Women in the Workplace Act and the Equal Opportunity for Women in the Workplace Agency (EOWA), the Government states that businesses with 100 or more employees will need to report on pay equity, and smaller organizations will be able to access the Agency’s advice, education and incentive activities. The Government considers that this will improve the ability of the EOWA to better identify where wage gaps are and where they are emerging to provide targeted assistance to business to address those gaps. The ACTU states that less than half of businesses that report to the EOWA conduct an annual gender equality analysis. The ACTU considers that continuing with the same EOWA scheme will only serve to perpetuate the gender wage gap. The Committee notes the information provided on the audit of pay rates in the New South Wales public service which has been undertaken with a view to identifying and analysing the gender pay gap, and included approximately 66,000 public sector employees. The Committee asks the Government to provide information on the concrete steps taken to ensure more effective monitoring by the EOWA of pay equity, and the results achieved. The Committee asks the Government to provide information on the number of companies, by size, undertaking a reporting on pay equity, and whether such process was undertaken voluntarily or pursuant to the mandatory provisions, as well as information on any follow-up to the reports. The Committee also asks the Government to provide information on the findings of the New South Wales public service audit, and the follow-up thereto, including any measurable impact on the gender pay gap.

Enforcement. The Committee also notes that in the context of the recently launched Human Rights Framework, the Government indicates that it has committed to considering the role and functions of the Australian Human Rights Commission, including the specific powers of the Sex Discrimination Commissioner. The Government also indicates that it is expected that the review of the EOWA will lead to stronger, fairer and more effective compliance measures. The Committee asks the Government to provide information on the progress made in reviewing the Australian Human Rights Commission and the EOWA with a view to improving monitoring and compliance of the principle of equal remuneration for men and women for work of equal value.

The Committee also notes that both the Government and the ACTU refer to the preliminary decision of the Full Bench of Fair Work Australia of 16 May 2011, considering an application by the Australian Services Union (ASU) and four other unions seeking an equal remuneration order for workers in the social and community services (SAC) sector pursuant to Part 2-7 of the Fair Work Act. Fair Work Australia found that workers in the SAC sector do not have equal remuneration when compared to workers employed in State and local governments who perform similar work and that gender had been important in creating the gap in pay. Fair Work Australia stated that it would provide the parties with an opportunity to make further submissions regarding the extent to which gender had inhibited wage growth in the sector and regarding an appropriate remedy and encouraged the parties to hold discussions with a view to reaching an agreement on the matter. The Committee notes that in its submission in the context of the case, the Commonwealth Government acknowledged that “those workers who care for our most vulnerable community members have been undervalued.” The Government indicates that it has established the community sector wage group, involving representatives from the federal, state and territory governments, employers and peak bodies in the SAC sector, and unions, to manage the potential implication of any wage increases. The ACTU points to the importance of this case since proof of discrimination against a male comparator was not required in order to establish pay inequity, and it determined unequal remuneration in a female-dominated industry where the value of work is undervalued because of a gendered perception of the value of the skills, qualifications and work being undertaken. The Committee also notes the decisions of the Queensland Industrial Relations Commission referred to in the Government’s report, resulting in two equal remuneration orders awarding wage increases of between 11–35 per cent to workers in the community service and disability services sector, finding that there had been historical undervaluation on gender grounds. Welcoming the decision of Fair Work Australia regarding equal remuneration in the social and community services sector, the Committee asks the Government to provide information on any further proceedings or settlement in this matter, and the implications thereof on addressing unequal remuneration in the sector in practice. The Committee also asks the Government to continue to provide information on the awards and decisions of Fair Work Australia and of the courts and state commission. The Committee also again asks for information on any determinations of the workplace authority relevant to the principle of the Convention, including how the fairness principle has been interpreted in this regard, and details regarding the role of the Office of the Workplace Ombudsman in promoting and enforcing equal remuneration for work of equal value.