The pursuit of equal remuneration remains a key objective for women workers in the 1990s as it has been for women in Australia since the 1940s says Jenny Doran (Senior Industrial Officer, ACTU).
However, it remains an elusive gaol.
The National Women’s Consultative Committee 1990 Report, Pay Equity in Australia, revealed that women “earn less than men in all categories of earnings, all components of earnings, all major occupational groupings, and the majority of benefit categories and allowances.” (p.1)
This is an extraordinary finding and given I am sharing a panel with an academic I thought I would illustrate the point with a relevant example.
The Report, Gender Pay Equity In Higher Education, released by the NTEU in May 1998, found that there was an income gap of $439.00 a fortnight between male and female academics and a gap of $165 between male and female general staff.
You could pick just about any occupational grouping and the story would be the same.
Current statistics reflect this dispiriting reality. Comparing all employees’ average weekly total earnings, women earn only 65.7% of men’s earnings (ABS, Cat. No. 6302). In a worrying development this gender gap has increased by .3% since 1997 – the first time it has increased for some time.
Comparing average weekly total earnings of full-time adults, which takes out the impact of part-time employment on this comparison, women earn 79.5% of men’s earnings. Again, down by .1% since 1997.
Comparing average weekly ordinary time earnings of full-time adults, taking out the impact of over-time; women earn 83.4% of men’s earnings. Again, down by .2% since 1997.
Comparing full-time non-managerial adults, women earned 87.5% of men’s earnings in 1996. That was down from 91% in 1995. (ABS, Cat. No.6306).
Women do best when comparing award rates of pay. In this category full-time non-managerial adult women earned 91.6% of men’s rates in 1996.
This shows the importance of our centralised wage fixing mechanisms for women. Of most importance have been our awards, which set out minimum rates, and the role of the Industrial Relations Commission.
The Commission has advanced women’s pay most dramatically in two equal pay test cases. The effect of these two decisions in 1969 and 1972 respectively, was to reduce the gender gap by approximately 20% (Karen Mumford, Working Women: Economics and Reality).
We tend to gloss over the achievement in 1969 of equal pay for equal work but it was a real victory and one that was fought strenuously by employers. Even after the principle was won in the test case employers in particular industries argued against women getting the consequent wage increase.
For instance, in the NSW hospitals award it was argued female cooks weren’t doing the same work as male cooks because they didn’t do the heavy lifting.
The MTIA, at the time, argued that the classification of Process Worker in the metal industry was a predominantly female occupation and therefore did not have access to the principle. This, despite 30% of Process Workers being men at the time. Fortunately, the Commission rejected these arguments.
Women also earn only 48.2% of men’s over-awards and only 21.2 % of men’s overtime payments (1996 figures).
The overtime disparity can be explained, at least in part, by women’s family responsibilities.
Over-award differences are, I believe, explained primarily by residual discriminatory attitudes held by managers and employers.
This is also the finding of the HREOC Report, Just Rewards, which was the result of a comprehensive inquiry into sex discrimination in over-award payments conducted by HREOC through the Sex Discrimination Commissioner, in 1992.
This inquiry found “it is likely that broadly based over-award differentials reflect practices which constitute direct and indirect discrimination on the basis of sex.” [Finding One]
The Department of Industrial Relations at the time made a submission to that Inquiry which stated: “overall, the evidence is suggestive that discriminatory practices, both direct and indirect, are a contributing factor” (p.91). The department went further and said in situations where a “differential applies between workers in the same classification or between groups which have been distinguished on the basis of sex rather than skill requirements, there is a clear case to be made for direct discrimination” (p. 94).
This is the type of situation for which the equal remuneration provisions of the Workplace Relations Act were framed.
Division 2 of Part VIA of the Act was first inserted into our industrial legislation by the 1994 Reform Act by the Labor Government. It was only maintained in the Workplace Relations Act after an intensive campaign by unions and women’s organisations after the Government initially proposed to remove it.
The provisions of the Division are based on international equal remuneration and anti-discrimination conventions and the specific objective of the Division is to give effect to these conventions.
In the second reading speech relating to both the Reform Act and the Workplace Relations Act, it was made clear the provisions are designed to give the Commission comprehensive power to deal with discrimination in over-award payments.
The first claim for equal remuneration under these provisions in the Industrial Relations Commission is currently being pursued by the ACTU and AMWU.
Our experience with this case shows how hard it is to make gains in equal pay. It is being brought against electrical component manufacturer HPM Industries in Sydney.
It involves some 300 Process Workers who all earn one rate of pay $413.90, which includes a $27 over-award payment. These women are being compared to some ten General Hands who earn between $426 and $443 – with over-award payments of between $58 and $76.
The women perform general assembly work, some of it quite skilled involving use of hand tools, a range of machines, extensive testing and inspection. They make products that are vital in the public interest like smoke detectors, surge protectors in electric switches and general power points and power boards etc.
The men deliver the components for these products around the factory.
The company has argued the work of the men is heavier (despite the fact that it is the women who have most workers compensation claims for physical exertion) and that the men’s work is more important to the company.
We are claiming a $30 wage increase for the women Process Workers to take them up to the highest paid General Hand.
We are also claiming that 27 female Packers do work of equal value to 22 male Storepersons. Again, the women are on the same rate of pay ($440.50) and the men are on seven different rates. We are seeking a $77 wage increase for these women.
The men all have access to a three tier wage structure purportedly based on a merit evaluation performed by their supervisors after one and two years service. The women don’t.
The men who have long periods of service also all have higher rates of pay which appear to be based on service and similarly long serving women do not.
A history of how this application has been dealt with by the Commission is instructive:
The application was first made in early December 1995.
It was referred to conciliation and undertaking of a competency standards assessment.
A hearing before a Full Bench was convened in May 1996 to deal with the union’s attempts to get wage and job details from the company. At the same time we sought a Statement of Principle from the Commission.
The Full Bench found it had no jurisdiction to hear the application. It gave no guidance on the conduct of the matter and referred it back to a single Commissioner.
The ACTU and union asked again for a Statement of Principle, in this forum and this was rejected by the single Commissioner in September 1996.
Competency standards assessment was embarked upon in October 1996 and continued until March 1997. This revealed that all of the women’s jobs were at least as skilled as the men’s jobs and in some instances much more skilled. Men’s skill points ranged between 2 and 14, and the women’s from 6 to 24.
The matter was finally dealt with by arbitration between September and November 1997. A decision was handed down in March 1998. This held that competency standards was not the appropriate tool to make a comparison of the work and what was needed was a work value inquiry.
The union filed a new application March 1998. This was brought on in the Commission on 6th April 1998. The company argued no work value inquiry should commence because it was now undertaking its own competency assessment process.
The Commission decided on19th May 1998 that the case should proceed and set down dates 7th and 10th July, 1998, for directions and possibly inspections.
On 18th June 1998 and 23rd June 1998 the union was involved in competency standards assessments for General Hands. No mention was made of new jobs for these workers.
On 29th June 1998 the union notified the company and Commission that it would be seeking inspections on 7th to 10th July, 1998.
On Thursday 2nd July, 1998 twenty workers were told they were redundant, their jobs had been abolished and 20 new jobs had been established. They were advised they would be able to apply for these new jobs. If there were no satisfactory internal applicants, the new jobs would be advertised externally.
Workers were given between one and eight weeks notice. Some had thirty years’ experience with HPM. The dismissed workers were:
- all ten General Hands;
- four of the least skilled Storepersons;
- all of the Packers (six) employed on the Ground floor Packing Table (who the company have always argued were Process Workers despite a Commission finding to the contrary).
All of the abolished jobs had particular relevance to the equal pay claim.
General Hands were the comparator classification for the Process Workers.
The Storepersons sacked had similar or lesser skills than the Packers with whom they were being compared.
The Packers were a discrete group that we were trying to have made equal to the Storepersons with whom they worked side by side.
The Storepersons included those same Storepersons who worked on the Packing Table.
The company is relocating some workers to Bruce Street, Waterloo. The union has always understood this to involve Packers and Storepersons in a section called Dispatch. Not the workers who were sacked.
The union has always said it is happy to look at any new classification structure that the company wishes to discuss. But the union has not been prepared to delay the Equal Pay case in order to do this.
The union accepts that re-classification might be a valid response to an equal remuneration claim – so long as any re-classification results in women’s undervalued work being valued properly. This is what has happened in all our settled cases.
We believe it is just not right to re-classify male workers to upgraded jobs in order to justify higher rates – this response leaves women’s jobs still undervalued.
Difficulties we have with the Commission’s handling of this application are:-
It initially insisted on the competency standards assessment being undertaken.
It provided no assistance to the union to have competency standards implemented when the company obstructed that process.
It did not order HPM to provide job descriptions and wage rates until very late in the piece – job descriptions were given this year, wage rates were provided in the arbitration in September last year.
It refused to issue a Statement of Principles advising how the Commission would deal with these sorts of applications. This is the first arbitration under these provisions therefore we thought it reasonable to seek guidance – especially given the inconsistent approach subsequently taken by the Commission.
In the final arbitration of our first application the Commission said competency standards were not the proper tool for evaluating whether work was of equal value rather than the Commission required a work value inquiry.
The Commission has not in our view had due regard to international discrimination and equal pay case law and practice that recognises employers have the relevant information systems and that workers usually don’t have access to this material.
The Commission has also in the initial processing of this application not paid due regard to the vulnerable position of these workers. These are predominantly non-English speaking women as for that matter are the men. For most, it is their first job in Australia. They are reliant upon their employer for jobs. They are frightened of victimisation.
In these sorts or cases we need sensitivity to the special nature of these applications recognising the unequal bargaining power of these workers and an understanding of discrimination issues.
This case was, and is, eminently reasonable in the context of our wages system. It:-
- Compared workers in one factory;
- Compared workers on the same classification;
- Used the processes endorsed by the Commission in the relevant award i.e. competency standards to undertake the evaluation as to whether the work was of equal value.
The facts supported a quick finding. They were exactly the facts identified by the HREOC Inquiry into Discrimination in over awards which HREOC said would be discriminatory i.e. same classification , women lower pay, no gender free rationale for the difference.
Instead these women have been forced to wait three years while the company successfully obstructed the substantive hearing on the merits.
The women at HPM are to be congratulated for their courage in standing up for the principle of equal pay and their patience. 13 women have made witness statements in support of this current application. For many of them this is their first job in Australia. They come from many different countries i.e. Indonesia, Portugal, China, the Philippines. They need these jobs to support their families. They are standing up for a principle.
They also don’t want their male colleagues disadvantaged. They believed the union when we said that under the Act this couldn’t happen. That the Commission wouldn’t let it happen.
The question of the dismissals and the re-hiring that has subsequently taken place has been before the Commission and has been negotiated. The union argued that no worker be worse off. And this was the outcome.
We are, as I said, now embarking on the work value inquiry which has been indicated as required, in order to show that the women’s work is of equal value to the men with whom we have sought to have them compared.
Problems facing women in bringing these sorts of cases have been identified by the ACTU in the course of investigating and dealing with potential cases. These include:-
The lack of transparency in pay systems – at HPM the women did not know what the men earnt.
The difficulties in obtaining relevant information in the face of company hostility – HPM refused to provide pay rates or company job descriptions relating to the relevant jobs.
The range of material which is in the hands of the company in any such case.
These are matters that have been dealt with in international equal pay cases and in the discrimination jurisdiction in Australia.
This is new territory for the Industrial Relations Commission.
In any event, we are confident that ultimately this claim will be successful. We are certainly determined to pursue it until we achieve equal pay for these women.
Under these provisions, the Commission has the opportunity to continue its historic role in moving women closer to the reality of equal pay in practice and not just principle.
Jenny Doran, Senior Industrial Officer, ACTU. Address to the Annual Convention of the Industrial Relations Society of Queensland. 26 September 1998.