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

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

Previous comment

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received with the Government’s report.

Articles 1 and 2 of the Convention. Assessing and addressing the gender pay gap. The Committee takes note of the information, provided by the Government in its report, on the remuneration of men and women by economic activity and in the public and private sectors for 2021. More particularly, it notes that, in 2021, the gender pay gap was higher in the private sector (17 per cent) than the public sector (11.2 per cent). The Committee also notes, from the “Gender Indicators, Gender Pay Gap Measures”, available on the website of the Australian Bureau of Statistics, that the gender pay gap for average weekly earnings of full-time adult employees decreased from 14.5 per cent in May 2018 to 13 per cent in May 2023. However, the Committee notes, from the “Gender Equality Scorecard” published by the Workplace Gender Equality Agency (WGEA) in December 2022, that after taking into account all types of remuneration (superannuation, bonuses and other additional payments), the national average gender pay gap was at 22.8 per cent. The Committee notes, from the WGEA “Common Wealth Public Sector Gender Equality Snapshop 2022” that in the public sector, the gender pay gap is 11.6 per cent in favour of men. The Committee takes note of the information provided by the Government on the various measures in place to reduce the gender pay gap, including: (1) a Women in STEM Cadetships and Advanced Apprenticeships Programme, which supports part-time study for participating women employees looking to upskill in STEM or move into a STEM career; (2) lifting the maximum Child Care Subsidy rate to reduce the costs of childcare; (3) the organization in September 2022 of a Jobs and Skills Summit in which equal opportunities and equal pay for women was a key focus; (4) the adoption of the Australian Public Service Gender Equality Strategy 2021-26; and (5) unpaid parental leave for parents of stillborn babies. The Committee also notes the Government’s indication that, in March 2021, it passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021, which introduced a pathway in the National Employment Standards (NES) for eligible casual employees to convert to full-time or part-time employment. The Government adds that, by providing a pathway to more secure employment, this measure can assist women in low-paid sectors and promote women’s access to a wider range of jobs with career prospects and higher pay. The Committee also notes with interest the adoption of the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Act 2023, implementing recommendation no. 2 of the 2021 review of the Workplace Gender Equality Act 2012, which requires the WGEA to annually publish gender pay gap information of relevant employers (i.e. employers with more than 100 employees) for each reporting period, to promote accountability and encourage accelerated action and change within organizations towards closing the gender pay gap (Division 1 of the Amendment Act 2023). The Committee asks the Government to pursue its efforts and to continue to provide information on the measures implemented to address the gender pay gap and the results achieved. In this regard, it asks the Government to continue to provide information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

Queensland.Noting that the Government does not provide a reply to its previous request, the Committee, once again, asks the Government to provide information on: (i) the impact of the initiatives implemented to attract and retain women in the minerals industry, including the effect it has had on the gender pay gap in the industry; and (ii) the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

New South Wales (NSW). The Committee notes the Government’s indication that, in 2020, a tool was developed to promote existing financial literacy resources to women, such as the “Women’s Financial Toolkit - It’s your future”. The Committee notes that data from November 2021 reveals that the gender pay gap has reduced from 13.4 per cent in 2020 to 12 per cent, reflecting an average pay gap of AUD220 per week between men and women (previously AUD239.70). The Government also states that, in 2021, 42.7 per cent of senior leadership roles in the NSW public sector workforce were held by women, up 9.3 percentage points since 2014. Additionally, women represented 34.2 per cent of board directorships on ASX-200 companies as of 30 November 2021. The Committee takes note of the Government’s statement that its commitment to increasing access to flexible working arrangements for all public sector staff reflects a genuine intent to improve women’s economic participation in a meaningful way. The Committee notes the slight decrease in the gender pay gap. The Committee asks the Government to continue to provide information on the measures implemented to address the existing gender pay gap, as well as on their impact.

Victoria. The Committee notes the Government’s indication that Victoria adopted its first Gender Equality Strategy (GES) in 2016, “Safe and Strong”, and is in the process of refreshing the GES, which came to an end in 2021. The Strategy recognizes that work and economic security is a focal point for women’s equality. Women continue to be underrepresented in industries such as finance, construction, utilities, science and technical services. A failure to attract and equip women for careers in these industries leads to a loss of productivity gains, by not drawing on the skills and capabilities of a large sector of the labour force. It also entrenches occupational segregation, with potential to widen the gender pay gap and reduce economic security for women and their families. To further implement the Safe and Strong Strategy, the Victorian Government launched, in 2022, the Women in Construction Strategy, in partnership with the Building Industry Consultative Council (BICC), designed to increase women’s participation in the trades and semi-skilled ‘blue-collar’ work in Victoria. The Committee asks the Government to continue to provide information on the nature and impact of the measures implemented and initiatives envisaged, including by the Equal Workplace Advisory Council and under the new Gender Equality Strategy, to address the gender pay gap and its underlying causes such as vertical and horizontal occupational gender segregation.

Western Australia. The Committee notes that the gender pay gap in Western Australia declined from 22.9 per cent to 21.2 per cent between November 2020 and November 2021. It takes note of the Government’s indication that the statutory criteria in section 50A(3) of the Industrial Relations Act provides that when the Western Australian Industrial Relations Commission (WAIRC) is reviewing and adjusting minimum rates of pay for employees in the State industrial relations system, it must take into account the need to provide equal remuneration. The Government adds that the WAIRC is also required to include an equal remuneration principle in the statement of principles it issues each year. The Committee asks the Government to continue to provide information on: (i) any measures adopted in Western Australia to address the gender pay gap, as well as on their impact; and (ii) the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

Supported bargaining and minimum wages. In its previous comment, the Committee noted the ACTU’s views that the provisions of the Fair Work Act 2009 relating to low-paid assisted bargaining are subject to significant limitations which impede the capacity of these provisions in practice to provide access to collective bargaining for low-paid workers and thereby limit their potential to promote equal remuneration for work of equal value because the majority of low-paid employees are women. The Committee notes with interest that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, in Part 20 of its Schedule 1, replaces low-paid assisted bargaining with supported bargaining. The Committee notes that, as amended, a bargaining representative or a union entitled to represent the industrial interests of a group of employees, may apply for a supported bargaining authorization to the Fair Work Commission (FWC). The FWC may decide to make such an authorization, taking into consideration pay and conditions, common interest, bargaining representation and any other matters it deems relevant. The supported bargaining authorization, will specify the employers and employees which are concerned and the employer will be obliged to enter into a supported bargaining agreement with the employees concerned. The Committee requests the Government to provide information on: (i) the practical application of the new supported bargaining scheme, including on its impact on pay equity; and (ii) any other measures taken or envisaged to implement, in practice, the principle of the Convention.

Minimum wages and the equal remuneration principle. The Committee notes the Government’s indication that, on 1 July 2022, the FWC announced the Government’s increase of the national minimum wage to AUD21.38 per hour (up from AUD20.33) or AUD812.60 per week (up AUD40 from AUD772.60) based on a 38-hour week for a full-time employee. The Committee notes the Government’s indication that around 60 per cent of award reliant workers are women. The Government points out that the Expert Panel of the FWC must consider the principle of equal remuneration for work of equal or comparable “value” when determining the National Minimum Wage, and that the Annual Wage Review decision of 15 June 2022 found that “moderate increases in the national minimum wage and modern award minimum wages would be likely to have a relatively small, but nonetheless beneficial, effect on the gender pay gap”. The Committee notes the ACTU’s acknowledgment that women are disproportionately represented among the group of workers who are reliant on the minimum wages system, and that the FWC has observed on several occasions that women are more likely to be reliant on minimum wages than men at every level of the award classification system. The ACTU stresses that for the most recent annual wage review, minimum wages increased more than general movements in market wages, and that it is envisaged that this combination of factors will result, at least temporarily, in a reduction in the gender pay gap. However, the ACTU also observes that the FWC has also often observed that its annual wage review function does not present an opportunity to examine whether the pay rates which it adjusts were in fact fixed in a manner that ensures equal remuneration for work of equal or comparable value. Whilst a separate mechanism exists in the Fair Work Act to adjust rates of pay having regard to the equal remuneration principle, the ACTU is of the view that this has proved insufficient, predominantly because it has been interpreted to require a mechanistic comparison between male and female workers as opposed to inviting an inquiry into gender-based undervaluation more generally. Because the annual wage review process provides a mechanism merely to adjust existing pay rates without questioning any underlying biases or undervaluation in their initial fixation, the only mechanism left for addressing pay equity is a variation which effectively involves a de-novo assessment of work value unrelated to gender pay equity issues. The Committee notes, from the amendments brought to the Fair Work Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, that the FWC, in making modern awards, must now take into account “the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation”. The Amendment Act, also provides, in Part 5 of Schedule 1 that the FWC’s consideration of work value reasons must be free of assumptions based on gender and include consideration of whether historically the work has been undervalued because of assumptions based on gender. In addition, in deciding whether there is equal remuneration for work of equal or comparable value, the FWC may also take into account comparisons within and between occupations and industries to establish whether the work has been undervalued on the basis of gender. The Committee also notes that under Part 6 of the Amendment Act, the FWC must establish an Expert Panel to make determinations regarding substantive equity pay. The Committee notes these amendments with interest. It asks the Government to continue to provide information on the manner in which the principle of equal remuneration is taken into consideration in practice in the determination of minimum wage and the impact of minimum-wages decisions on the gender pay gap.

Equal remuneration orders. The Committee recalls the ACTU’s comments that the pursuit of equal remuneration orders under section 302 of the Fair Work Act, is in their view extremely costly, time consuming, highly adversarial and an ineffective process. The Committee notes, the Government’s indication that the Fair Work Commission has received 27 applications of equal remuneration orders, among which, 21 were withdrawn prior to determination, 5 were dismissed and 1 equal remuneration order was issued. The Committee takes note of the information provided by the Government on some applications of equal remuneration orders. In light of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the Committee requests the Government to provide information on the practical operation of section 302 of the Fair Work Act, which gives the Fair Work Commission power to make equal remuneration orders. The Committee also requests the Government to continue to provide information regarding the number and nature of the cases (indicating the groups of employees and the work undertaken by them and the relevant sectors) in which an application has been made for equal remuneration orders, their outcome, the reasons for the results and their impact in light of the achievement of the principle of the Convention requiring equal pay for work of equal value.

Enforcement. With reference to its previous comment, the Committee notes the Government’s indication that it works in collaboration with employers to provide advice, practical tools and education to help them improve their performance on gender equality and comply with the reporting requirements under the Workplace Gender Equality Act 2012. This assistance is delivered by the WGEA through three specific programmes: (1) Reporting: a mandatory programme for all ‘relevant employers’ under the Workplace Gender Equality Act 2012; (2) Employer of Choice for Gender Equality citations: a programme designed to encourage, recognize and promote organizations’ active commitment to achieving gender equality in Australian workplaces; and (3) Pay Equity Ambassadors: the WGEA works with a network of CEOs, heads of departments and directors in the public and private sector committed to pay equity and gender equality. The Committee further notes from the Government’s information that: (1) Pay Equity Ambassadors help to create change by playing a leadership role in their business community and to the broader public; (2) the activities of the Fair Work Ombudsman, such as the publication of the Gender Pay Equity Best Practice Guide, which explains why gender pay equity is important and how employers and managers can use best practice initiatives to support gender pay equity in business; (3) the 2021 review of the Workplace Gender Equality Act; and (4) apart from one court case in South Australia, there have been no cases or complaints relating to the application of the principle of equal remuneration between men and women. The Committee asks the Government to pursue its efforts to raise awareness of the principle of equal remuneration between men and women for work of equal value. It requests the Government to provide information on the measures taken to this end, including by the Workplace Gender Equality Agency and the Fair Work Ombudsman. It also asks the Government to continue to provide information on the awards and decisions of the Fair Work Commission, as well as on the number, nature and outcome of any cases or complaints concerning pay inequality dealt with by the labour inspectors, the courts or any other competent authority.