Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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 2012.

Legislative developments. The Committee recalls 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 of 2009 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; and national system employers and employees in Western Australia. The Committee notes the Government’s indication that a post-implementation review of the Fair Work Act of 2009 was undertaken by an independent panel of experts in 2012. With regard to the Commonwealth anti-discrimination acts consolidation project under the Human Rights Framework, which was launched in April 2010, the Committee notes the Government’s indication that the Senate Legal and Constitutional Affairs Committee released its inquiry report on the “exposure draft” of the Human Rights and Anti-discrimination Bill on 21 February 2013, and that the Government is now considering this report.

The Committee notes with interest the enactment of the Workplace Gender Equality Act on 6 December 2012, incorporating all amendments to the Equal Opportunity for Women in the Workplace Act No. 91 of 1986. As a result, the Act now makes specific reference to Convention No. 100 (section 5(9)), relevant employers (those in the higher education sector, and those with more than 100 employers) are required to prepare a public report relating to the gender equality indicators, including equal remuneration between women and men (sections 3(1)(c) and 13(1)), and the Minister will, by legislative instrument, set minimum standards in relation to specified gender equality indicators by 1 April 2014 (section 19(1)).

The Committee recalls 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), and providing for the constraints on increases in remuneration subject to compliance with the paramount policies (section 6). It notes the Pay Equity Audit Report 2011 by the New South Wales Public Sector Workforce, attached to the Government’s report, and the Government’s indication that the legislative changes do not prevent unions, on behalf of public sector employees, from bringing cases for equal remuneration before the New South Wales Industrial Relations Commission. The Committee notes that in Queensland, Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulation 2012 (No. 1), which came into force on 9 February 2012, provides for a prescribed source pay equity order made by the Queensland Industrial Relations Commission (section 3.03C), and transitional pay equity orders (section 3.03A). The Committee asks the Government to provide information on the following:

• (i) the application in practice of the Fair Work Act of 2009 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, including any follow-up to the Senate Committee’s inquiry report;
• (iii) the practical application of the Workplace Gender Equality Act of 2012, including any consideration given to clarifying that the gender equality indicator on equal remuneration between women and men includes the concept of “work of equal value”;
• (iv) the practical application 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 of this legislation, that the principle of equal remuneration for men and women for work of equal value is fully applied in practice, including information on any cases brought before the New South Wales Industrial Relations Commission; and
• (v) the practical application of Queensland Fair Work (Transitional Provisions and Consequential Amendments) Amendment Regulation (No. 1) of 2012, including the impact of the prescribed source pay equity order and the transitional pay equity order on reducing the gender pay gap.

Gender pay gap. The Committee notes from the statistics of the Australian Bureau of Statistics of May 2012 that average weekly total cash earnings were 1,122.60 Australian Dollars (AUD) for all employees, AUD1,342.50 for male employees and AUD904.00 for female employees, showing that the gender pay gap was 32.66 per cent in 2012. Women working full time earned 17.95 per cent less than men working full time (based on average weekly total cash earnings). The Committee recalls that the ACTU urged the Government to implement the recommendations of the Senate Committee Inquiry into Pay Equity, and notes the Government’s indication that it is considering its response to the report of the House of Representatives Standing Committee on Employment and Workplace Relations.

The Committee also notes the Government’s indication that the gender pay gap in Western Australia is particularly high, at 16.4 per cent in the public sector (statistics from 2011). The Committee notes the Government’s indication that the Western Australia Pay Equity Unit assisted a number of private and public sector organizations to undertake pay equity audits, and audits were completed by nine organizations in the public sector, three universities and four organizations in the private sector. 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 large gender pay gap in Western Australia, the Committee also asks the Government to consider taking 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. Please provide detailed information on the result of the pay equity audits conducted by the Western Australia Pay Equity Unit.

Minerals industry. The Committee recalls that a significant gender pay gap exists in the minerals industry, and that recommendations had been made on attracting and retaining women in this sector. The Committee notes the Government’s indication that a three-year project, which was led by the Australian Mines and Metals Association, and supported by the Government, commenced in June 2011 on helping enterprises to overcome barriers for women’s participation in the resource sector. Achievements of this project include the establishment of the Australian Women in Resources Alliance, a network for improving employment of women, and a pay equity special interest group, in response to the identified barriers to female participation in this sector as including the remoteness of the worksites, flexible work practices, return to work issues and pay equity.

The Committee recalls a similar initiative of the Queensland government in partnership with the Australian Institute of Minerals and Metallurgy (AusIMM) to analyse the results of a survey of members’ perceptions concerning gender pay equity, gender diversity and care giver responsibilities, and to prepare a report. The Committee notes a Gender Pay Equity and Work Practices in the Minerals and Metallurgy Sector report, and notes that the AusIMM Remuneration and Work Practices Survey Reports from 2007–09 show that female workers receive lower salaries at every level of responsibility, with a widening of the gap at higher levels of responsibility (in 2009, the gap was 36.8 per cent at the highest level of responsibility). The Committee also notes the Government’s indication that under the Women in Hard Hats initiative, various projects have been delivered aiming at awareness raising, skilling and retention of women in non-traditional employment. As a result, female participation in the Queensland mining industry has slowly been growing: as of May 2012, women constituted 15.9 per cent of the mining force, compared to 9.2 per cent in 2006, and 8.1 per cent in 2002. The Committee again 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 provide any information on follow-up taken or envisaged to address the findings of the survey, including the Australian Institute of Minerals and Metallurgy Remuneration and Work Practices Survey Reports.

Minimum wages and low-paid assisted bargaining. The Committee recalls the observations by the ACTU indicating that women have unequal access to workplace bargaining and are over-represented in low-paid jobs dependent on minimum wages and conditions. The Committee also recalls the concerns raised by the ACTU concerning bargaining support for low-paid workers provided by the Fair Work Australia, and the decision in the first case brought under the low-paid bargaining provisions of the Fair Work Act preventing workers who were already covered by workplace agreements, despite the low wages and conditions, from accessing the assisted bargaining provisions. The ACTU indicates that the provisions should be amended to ensure low-paid workers on inferior collective agreements, including aged care workers, are not excluded from assisted bargaining. The Committee notes the Government’s indication that in its decision under the same low-paid bargaining case, Fair Work Australia ruled in August 2011 that employers with workplace agreements of significant vintage would still be included in the low-paid bargaining authorisation. The Committee also notes the Government’s indication that a post-implementation review of the Fair Work Act covers the low-paid bargaining provisions. The Committee asks the Government to provide detailed information on the result of the post-implementation review of the Fair Work Act, including concerning the low-paid bargaining provisions, and on the impact of the review on reducing the gender pay gap. The Committee also again 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 recalls the observations by the ACTU concerning the need for more effective monitoring by the Equal Opportunity for Women in the Workplace Agency of pay equity. The Committee notes the statistical information provided by the Government on the number of companies, by size, reporting on pay equity. The Government indicates that 35.1 per cent of 2,334 companies undertook an annual gender pay equity analysis in 2011. The Committee also notes the statistical information provided by the Government on the findings of the New South Wales public service audit, according to which the gender pay gap in 2010 was 6.7 per cent. The Committee asks the Government to provide information on the practical application of sections 3(1) and 13(1) of the Workplace Gender Equality Act of 2012 concerning employers’ reporting obligation of equal remuneration between women and men, including the number of companies, by size, undertaking a reporting on pay equity, as well as information on any follow-up to the reports.

Enforcement. The Committee notes that the Workplace Gender Equality Agency now replaces the Equal Opportunity for Women in the Workplace Agency, pursuant to section 8A of the Workplace Gender Equality Act of 2012. The functions of the Agency now include reviewing compliance with the Act by employers, reviewing public reports by employers, including those on equality indicators, and dealing with those reports, and collecting and analysing information provided by employers (section 10(1)(c) and (d) of the Workplace Gender Equality Act of 2012). Consequences of non-compliance of this Act by employers include naming employers in an Agency report (section 19D of the Act). The Government also indicates that employers failing to comply with the Act may not be eligible to compete for contracts under the Commonwealth procurement framework, and may not be eligible for grants of other financial assistance by the Government. The Government further indicates that in the context of the anti-discrimination consolidation project, it is reviewing the roles and functions of the Australian Human Rights Commission, including the Sex Discrimination Commissioner. The Committee asks the Government to provide information on the practical application of the new sections of the Workplace Gender Equality Act of 2012 concerning enforcement, and on the progress made in reviewing the Australian Human Rights Commission 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 recalls 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 Parts 2–7 of the Fair Work Act. The Committee notes the Government’s indication that the Full Bench of Fair Work Australia handed down its decision on 1 February 2012 awarding wage increases of 23 to 45 per cent (including a 4 per cent loading) on the relevant minimum rates in the SAC sector modern award. On 22 June 2012, Fair Work Australia made the Equal Remuneration Order detailing the calculation and payment for each classification of worker under the decision. In addition, the Government is providing AUD1.2 million to develop the Social and Community Services Education and Information Program, including workshops, seminars, and pay tools, to help the sector transition to the Equal Remuneration Order. The Committee also notes a Best Practice Guide on gender pay equity published by the Fair Work Ombudsman, and notes the Government’s indication that the Fair Work Ombudsman will conduct a compliance campaign targeting the SAC sector and undertake a compliance audit within the sector following the commencement in December 2012 of equal remuneration payment based on the above decision. Welcoming the decision of Fair Work Australia regarding equal remuneration in the social and community services sector, the Committee asks the Government to continue 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 commissions. The Committee also again asks for information on any legal or administrative decisions at the state level relevant to the principle of the Convention. Please continue to provide information on the activities conducted by the Fair Work Ombudsman concerning promoting and enforcing equal remuneration for work of equal value, and the results achieved.