Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

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Articles 1 and 2 of the Convention. Legislative developments. The Committee recalls the Australian Council of Trade Unions (ACTU) concerns regarding the reporting process implemented under the Workplace Gender Equality Agency that it is neither rigorous nor detailed enough, as companies do not have to disclose actual pay data, but merely to tick a box advising whether or not they have an equal remuneration policy in place. The Committee notes the Government’s indication, in its report, that a review of the Workplace Gender Equality Act 2012 was undertaken in 2021 to consider how progress on gender equality in workplaces could be accelerated and reporting for employers to the Workplace Gender Equality Agency (WGEA) could be streamlined. Following the publication of the WGEA report, the Committee notes with interest the adoption of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which implements a number of the recommendations of the 2021 Review, namely by: (1) changing the object of the Fair Work Act and introducing “the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable “value”, eliminating genderbased undervaluation of work and providing workplace conditions that facilitate women’s full economic participation” (Part 4 Schedule 2); (2) the establishment and requirement of an Expert Panel to make determinations regarding substantive gender pay equity matters (Part 6 Schedule 1); (3) the prohibition of pay secrecy clauses in contracts of employments, which are used to prohibit employees from divulging and discussing their pay with others (Part 7 Schedule 1); and (4) expanding the right to flexible work for employees. In addition, it notes with interest the adoption of the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Act 2023 which further implements some of the recommendations of the 2021 Review of the Workplace Gender Equality Act, including: (1) the new requirement of the WGEA to publish gender pay gap information of relevant employers (with 100 or more workers); and (2) setting of “gender equality standards” (Division 2). The Committee welcomes these legislative developments and requests the Government to continue providing information on the measures taken or envisaged to give effect to the principle of the Convention and to indicate how the legislative developments have impacted the reporting process and addressed the ACTU’s previous observations.

Queensland. In reply to the Committee’s previous request, the Government indicates that the Equal Remuneration Principle (ERP), established in 2002, was codified and incorporated into the Queensland Industrial Relations Act 2016, and therefore, the ERP continues to operate as a guiding principle for the decisions of the Queensland Industrial Relations Commission (QIRC).The Committee also notes the Government’s indication that the Five-year Review of the Industrial Relations Act 2016 (IR Act 2016) identified the persistence of gender pay inequality as a central issue in collective bargaining. The Government indicates that proposed amendments are currently in front of Parliament to update the good faith bargaining requirement set out in section 173 of the IR Act 2016 to give the negotiating parties the opportunity to understand and address the gender pay gap relating to the proposed agreement at the outset of bargaining. The amendments will require the parties to provide detailed wage-related information on the gender pay gap as soon as practicable after bargaining commences. The Committee asks the Government to continue to provide information on: (i) the practical implementation of the Industrial Relations Act 2016 and the Industrial Relations Regulations 2018, including on the application of the ERP by the Queensland Industrial Relations Commission to ensure equal remuneration for work of equal “value” in awards, agreements and through equal remuneration orders in accordance with the obligations imposed by the Convention; and (ii) any difficulties encountered in the implementation of the Act and the Regulations, as well as the measures taken or envisaged to overcome them.

Victoria. The Committee notes the adoption of the Gender Equality Act 2020 (GE Act), which came into effect in March 2021, and which now requires Victorian public sector organisations to take positive action towards promoting workplace gender equality and to consider and promote gender equality in their policies, programmes and services. The GE Act applies to around 300 Victorian public sector organisations that have 50 or more employees (defined entities), including universities and local councils. The Committee indicates that the GE Act sets out seven gender equality indicators that represent the key areas where workplace gender inequality persists and where reasonable and material progress towards gender equality must be demonstrated (section 16). One of the indicators is equal remuneration for work of equal or comparable “value” across all levels of the workforce, irrespective of gender (section 3). Entities with obligations under the GE Act (defined entities) are required to conduct a workplace gender audit every four years which requires them to collect and report data on the gender equality indicators, including the gender pay gap (section 11). Defined entities are also required every four years to use their audit data to inform strategies and measures to address the gender pay gap and other gender equality indicators in their Gender Equality Action Plans (GEAP) (section 10). The Committee notes the establishment of the Commission for Gender Equality in the Public Sector (CGEPS) to support the Public Sector Gender Equality Commissioner (Commissioner), who is responsible for education, overseeing the implementation of the GE Act, enforcing compliance and playing a key leadership role in promoting gender equality in Victorian workplaces and communities. The Committee requests the Government to provide information on the application in practice of the Gender Equality Act 2020, including: (i) how the adoption of the GE Act has impacted the gender pay gap in the public sector in Victoria; and (ii) the implementation of the GE Act by the CGEPS and the Commissioner, in particular specific strategies and measures undertaken to address any identified gender pay gaps.. The Committee also asks the Government to provide information on the measures in place to ensure that the principle of the Convention is applied to public entities with less than 50 employees.

Western Australia. The Committee welcomes the adoption of the Industrial Relations Legislation Amendment Act 2021 (IRLA Act), which amends the Industrial Relations Act 1979 (IR Act) to include new equal remuneration provisions. The new equal remuneration provisions in Part II Division 3B of the IR Act enable the Western Australian Industrial Relations Commission (WAIRC) to make an equal remuneration order on application from a range of parties, including an individual employee or a group of employees. The Committee notes that the IRLA Act defines equal remuneration as “equal remuneration for men and women for work of equal or comparable value”. Pursuant to section 50A of the IR Act, the WAIRC is also formally required to include an equal remuneration principle in the statement of principles it issues each year when reviewing and adjusting minimum rates of pay for employees in the State industrial relations system. The equal remuneration principle must be applied whenever the WAIRC is determining an application for an equal remuneration order or is otherwise dealing with an equal remuneration matter. The Government adds that when the WAIRC is satisfied that an employee does not receive equal remuneration, it must make a remuneration order. An equal remuneration order may direct any action that the WAIRC considers appropriate, including (but not limited to): (1) reclassifying work; (2) establishing new career paths; (3) implementing changes to incremental pay scales; (4) providing for an increase in remuneration rates; and (5) reassessing definitions and descriptions of work to properly reflect the value of the work. An equal remuneration order may introduce equal remuneration measures immediately, or progressively in stages. The Committee further notes the Government’s indication that, in 2019, the WAIRC introduced an equal remuneration principle in its statement of principles to assist parties in furthering equal remuneration matters. The Government also indicates that, following enactment of the IRLA Act, minor revisions were made to the equal remuneration principle in 2022, to ensure it remains consistent with the new equal remuneration provisions of the IR Act. The Committee asks the Government to provide information on the application in practice of the IRLA Act, including on the number of equal remuneration orders made by the WAIRC relating to the principle of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.