Women, Work and Inequality: The Challenge of Equal Pay in a Deregulated Labour Market
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For example, the pay equity ratio in the public sector is 87 percent, whereas it is only 77 percent in the private sector. The relatively slow progress towards equal pay should not blind us to the fact that women in Australia have nonetheless made substantial progress, in small incremental steps, towards equal pay. We have also gained significant understanding of other layers of inequality through the implementation of rights based anti-discrimination legislation, such as the SDA, and related state legislation. Article 11 d enjoins Australia to take all appropriate measures to ensure the right to equal remuneration, including benefits, and in equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work.
Peeling the inequality onion | Australian Human Rights Commission
The requirement for equal remuneration for work of equal value is therefore not just located in the industrial jurisdiction; there is a broad requirement for this principle in the human rights-based SDA. Discrimination legislation, such as the SDA, represents the first step from sex-divided legislation to legal equality. Discrimination legislation cannot deliver complete equality because the old framework of inequality is still there, and cultural support for it is pervasive. However, discrimination legislation is the necessary "circuit breaker", since until it is no longer legal to exclude people from employment on the basis of sex, other problems and issues are not even visible.
The existence of specialist legislation such as the SDA has another important function which relates back to the ILO Committee of Experts comments I outlined earlier - and that is that the operation of such legislation reveals new problems, and generates much greater awareness of the nature of sex inequality in employment. One such example would be sex-based harassment and hostility in the workplace. The pervasive nature of sexual harassment is shown by the fact that it is the main area of complaint under the SDA, and in the 12 years of its operation sexual harassment has moved from being the butt of jokes "I wish someone would harrass me" to being recognised as a serious form of work-based harm.
Further, the cases that come before HREOC indicate that sexual hostility towards women in male-dominated industries presents an alarming picture of the difficulties faced by women attempting to break into these areas. Anti-discrimination legislation has been relatively successful in this area by providing individual redress for a specific form of sex-based harm but it also raises the issue of the effectiveness of specialist bodies such as HREOC in tackling these issues in a broad systemic way. There is little evidence that harassment levels have dropped despite the thousands of cases dealt with by human rights bodies.
The integration of human rights generally, and sex equality legislation specifically, into the old framework of inequity - as has occurred in the federal industrial relations amendments - brings us closer to peeling another layer from the onion of discrimination by formally recognising the importance of different layers of equality provisions, and their interaction. Sex discrimination legislation on its own may not affect workplace structures and systems so much as provide redress for specific acts of discrimination.
At the Federal level, in Australia, they are the critical factor because they are the source of constitutional power for enacting legislation. Until , Australia has relied on a mixture of standards at the federal level with standards - such as equal pay for work of equal value being set by the de facto system, and broad legal principles such as those embodied in the Sex Discrimination Act being established de jure.
The federal industrial relations changes transformed this. For the first time, the industrial system, built on the Australian award system, has moved to one which incorporates specific rights based on the international conventions. Instead of simply peeling each layer, we cut across the layers direct to the smelly centre of the onion. The current Act ensures for the first time that all workers, regardless of their sex, race, colour, sexual preference, age, physical or mental disability marital status, pregnancy, family responsibilities, religion, political opinion, national extraction and social origin, have access to key minimum entitlements required by the international conventions ratified by Australia.
Historically, the human rights jurisdiction had been separate from the industrial. Awards were exempt from the federal sex discrimination legislation until Although the discrimination jurisdiction does permit group actions, unions have generally preferred the collectively based industrial jurisdiction. Provisions now exist for discriminatory provisions in awards and agreements to be referred by me to the AIRC, which is required to remove the discrimination. There are many matters on which there is access to either jurisdiction. Individual rights and individual access to the AIRC have now been introduced.
Historically, only registered organisations of employers and employees could appear in the jurisdiction about collective rights. Currently, individuals now have access to the AIRC in relation to termination of employment, equal pay, minimum wages and parental leave. Sex-based discrimination can be dealt with in the individually - based discrimination jurisdiction, or the legislative system facilitates matters affecting the employment terms and conditions of GROUPS of women being dealt with in the collectively based industrial relations system.
The importance of these dual systems is clear. The more we learn about the complexity of pay inequity, the more it becomes clear that integrated measures to overcome historical and structural barriers are needed to overcome the limitations of a model based on redress for individual complaints.
In Australia, this is currently being addressed through a duality of jurisdictions.
Thus an equal pay claim can be taken in either the industrial or the discrimination jurisdiction, but if a broad solution is sought eg a change in an award or agreement , it can only be taken in the industrial jurisdiction. However, if orders for individual damages are sought, these can only be awarded in the torts-based discrimination jurisdiction. In both jurisdictions there is an increasing emphasis on integrating equality with productivity. For example, in the October National Wage Case decision, the AIRC determined that the third safety net rise would only be granted where attention had been paid to the removal of discrimination from the award, and where a model anti-discrimination clause is inserted into the award.
Both jurisdictions now mandates a redistribution of work and family responsibilities and their rewards. Similarly, federal industrial relations jurisdiction also currently protects non-award employees, such as contractors and managers, in relation to equal pay and unjust dismissal. This is a growing issue for women, and employees more generally, as 20 percent of workers are outside the award system.
This broadening of protection for all employees is of particular importance to women, who are the majority of all part time and casual workers, and thus have represented a higher proportion of non-award covered employees. The importance of incorporating equality into the collective industrial systems is demonstrated by international comparisons. Legislative provisions for sex equality do not, on their own, appear to produce the most equitable pay outcomes. Whitehouse demonstrates that while Canada had the most sophisticated sex equality legislation, it had worse outcomes that Sweden or Australia and the UK with respect to equal pay.
She relates achievement of equality to centralised labour market institutions, and points to the ability of Sweden and Australia to run incomes policies which have addressed the interest of the low paid and so benefitted women. In a later study she found that a collective framework, centralised industrial relations and a high proportion of employment in the public sector were related to higher earnings for women, while equal pay and anti-discrimination legislation, in itself, was not.
The importance of central institutions is especially clear in Australia where equal pay provisions were introduced without any legislation.
It slices across the onion! Preventing and eliminating discrimination on a number of grounds, including sex, is an object of the Industrial Relations Act IRA. This is reflected in the termination of employment provisions, which explicitly prohibit termination related to one of those grounds. A number of recent unfair dismissal decisions have been heartening for anti-discrimination practitioners. In one decision, the Judicial Registrar recognised sexual harassment as a form of sex discrimination. The Registrar cited and applied the SDA definition of sexual harassment, and found that the Applicant would not have been subject to the harassment she experienced had she not been a woman.
The respondent behaved the way he did towards the Applicant because she was a woman.
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Of course, that principle is nothing new in the anti-discrimination jurisdiction. Case law firmly established that sexual harassment is sex discrimination, quite some years ago. What is new here is that this long-established anti-discrimination principle has now been applied in the industrial jurisdiction. Significantly, this did not occur until the requirement to take into account the principles embodied in the SDA relating to discrimination in employment was inserted into the Industrial Relations Act.
Legislative change was required to achieve it. N of , IRC No. A manager was dismissed after a complaint of sexual harassment was found to be made out through internal investigation. Minimum wages and equal remuneration are seen as redundant and are to be repealed 17 and the government has announced that what it sees as the "complex consultation requirements" of sections MC 1 e f and MG will be removed, and absence of discrimination will be removed as a precondition to certification. This will be replaced with a right of redress for individuals who can show that they have been discriminated against by the operation of the agreement.
Nor does there seem to be any evidence that the review requirements to ensure such equity issues are at least nominally addressed has impeded the bargaining process. Government policy is that minimum conditions will include "equal pay for equal work of equal value without discrimination based on sex".
By limiting the application of the principle of equal remuneration for work of equal value, the government removes the right of women to challenge discrimination in all forms of remuneration - and those in which the biggest pay inequalities occur. I mentioned earlier that there is evidence that discretionary payments - payments outside the award - contain elements of discrimination.
Over award payments are one such example. In total, women earn only 35 percent of the over award payments made to men; if managerial employees are excluded, adult women still only earn nearly 50 percent of the over awards paid to adult men. Women senior executives with the same level of experience and of similar age earn around 20 percent less than their male counterparts.
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Only those individuals with the personal and financial resources to pursue a remedy through the discrimination route will be able to achieve a remedy. So what have we learnt from our history in this area? What we know is that as we regulate, as we legislate, we improve, slowly but surely, equity for women. Anti discrimination legislation across industrialised countries shares basic similarities, through prohibitions on discrimination, which are generally based on definitions in international conventions. The primary European law on equality, the Treaty of Rome, included equal pay for equal work in The Equal Remuneration Convention was adopted in , the equal opportunity and treatment convention in , the workers with family responsibilities convention in and the Plan of Action on Equality of Opportunity and Treatment of Men and Women in Employment in Pittard, M.
ABS Cat No Catalogue No. Since joining the Institute in she has focused on a wide range of issues of importance to women and their families, including poverty, access to education, health, work-life balance, political engagement, and the need for expanded preschool and child care options for working parents. She received her Ph. Prior to coming to the USA she taught comparative European human resource management at Cranfield School of Management in the UK where she was a founding researcher of the Cranet Survey of International HRM, the largest independent survey of human resource management policies and practices, covering 25 countries worldwide.
Marc Bendick, Jr. His research on employment discrimination, innovative employment practices, and enhanced opportunities for traditionally-disadvantaged workers has been presented in four books, many scholarly articles, and frequent testimony before Congressional committees.
Supreme Court. An honors graduate in economics and social psychology from the University of California, Berkeley, he holds a Ph. Half of the gender wage gap is due to women working in different occupations and sectors than men. Persistent low pay and quality of care jobs could widen the genderwagegap. In Utah, Native American women are among those women with the lowest earnings. Just because the explanation of the gender wage gap is multi-faceted does not make it a lie.
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