What is the Government doing to address pay equity? Inquiry into pay equity and associated issues related to increasing female participation in the workforce On Thursday 26 June 2008 the Acting Minister for Employment and Workplace Relations, The Hon Brendan O'Connor MP, asked the Committee to inquire into and report on pay equity and associated issues related to increasing female participation in the workforce. The inquiry is now in its final stages with recommendations due to be tabled in October. The report will be made available after it has been tabled in Parliament. 1 To date the Inquiry has received over 150 submissions and has held 28 public hearings throughout the country. Submissions and transcripts are available on the Inquiry website. Terms of Reference That the Committee inquire into and report on the causes of any potential disadvantages in relation to women's participation in the workforce including, but not limited to: The adequacy of current data to reliably monitor employment changes that may impact on pay equity issues; The need for education and information among employers, employees and trade unions in relation to pay equity issues; Current structural arrangements in the negotiation of wages that may impact disproportionately on women; The adequacy of recent and current equal remuneration provisions in state and federal workplace relations legislation; The adequacy of current arrangements to ensure fair access to training and promotion for women who have taken maternity leave and/or returned to work part time and/or sought flexible work hours; and The need for further legislative reform to address pay equity in Australia. Review of the Equal Opportunity for Women in the Workplace Act On the 1 June 2009, the Minister for the Status of Women, the Hon Tanya Plibersek MP, announced a review of the Equal Opportunity for Women in the Workplace Act (the EOWW Act) and Agency (EOWA). The review of the EOWW Act and EOWA is a government review and is being managed by the Office for Women. 2 At the conclusion of the review, any recommendations will be progressed within government. 1 Submissions to the Pay Equity Inquiry can be viewed at; http://www.aph.gov.au/house/committee/ewr/payequity/tor.htm 2 FaHCSIA, Office for Women, Review of the Equal Opportunity for Women in the Workplace Agency: http://www.fahcsia.gov.au/sa/women/progserv/economic/Pages/eowa_review.aspx Terms of Reference The review of the Equal Opportunity for Women in Workplace Act 1999 will: • Examine the role that the EOWW Act and Agency have in gathering and reporting on workplace data. • Examine the contribution that the EOWW Act has made to increasing women’s employment opportunities and advancing women’s equality in the workplace. • Consider the effectiveness of the EOWW legislation and arrangements in delivering equal opportunity for women. • Provide advice on practical ways in which the equal opportunity for women framework could be improved to deliver better outcomes for Australian women. • Consider opportunities to reduce the cost of existing regulation and/or ways to ensure that any new legislation is cost-effective and well-targeted. • Consider the EOWW Act and Agency within the framework of existing and proposed workplace-related and human rights legislation and policy. • Have regard to the effects of the Act, or any proposed recommendations resulting from this review on the economy, the labour market, business competitiveness, social inclusion and the general wellbeing of the Australian community. 3 Federal Government Pay Equity Initiatives Provisions in the Fair Work Act 2009 that address pay equity The Fair Work Act 2009 (FW Act) contains a range of provisions which will better support women in the workplace, including: o Extending equal remuneration provisions to include the right to equal pay for work of equal or comparable value; o Allowing variation of modern awards for work value reasons; o Strengthening the safety net and measures relating to women’s workforce participation; o Access to multi-employer bargaining for the low-paid; and o Enhanced protections form workplace discrimination. The DEEWR supplementary submission on the Fair Work Bill 2008, which was made to the pay equity inquiry in January 2009, contains a most comprehensive analysis on the provisions of the Fair Work Act that relate to pay equity.4 Equal remuneration provisions Comparable value The FW Act will empower Fair Work Australia (FWA) to make orders for equal remuneration for men and women for work of equal or comparable value. This extends the current equal remuneration provisions in the Workplace Relations Act 1996 (which only provides for equal pay for work of equal value). This amendment will boost the scope and effectiveness of the current provisions and reflects the approach already taken in many states and territories. Importantly, 3 FaHCSIA, Office for Women, Review of the Equal Opportunity for Women in the Workplace Agency: Terms of Reference, available at; http://www.fahcsia.gov.au/sa/women/progserv/economic/Pages/eowa_terms_of_reference.aspx 4 DEEWR supplementary submission on the Fair Work Bill 2008, available at http://www.aph.gov.au/house/committee/ewr/payequity/subs/sub58.2.pdf the inclusion of ‘comparable value’ removes the requirement to prove discrimination as a threshold test, and allows comparisons to be carried out between different, but comparable, work for the purpose of assessing an equal remuneration claim. Work value The FW Act also provides FWA with the capacity to vary minimum wages in modern awards on ‘work value’ grounds. Work value grounds are reasons justifying the amount an employee should be paid for performing a particular kind of work, and relate to the nature of the work; the level of skill or responsibility involved; and the conditions under which work is performed. Work value claims have been an important historical avenue for award review, particularly for female dominated occupations or industry sectors, in state and federal industrial tribunals. Safety net A fair and comprehensive safety net of 10 National Employment Standards (NES) and modern awards will provide all employees in the federal system with clear, comprehensive and enforceable minimum protections. This is particularly relevant as a vast proportion of women are award reliant compared to men (21% compared to 14% in 2008). Unpaid parental leave The new NES effectively doubles the amount of unpaid parental leave available to parents and also provides a new right to request an extension of unpaid parental leave beyond 12 months, which the employer can only refuse on reasonable business grounds. Alternatively, parents can access separate periods of up to 12 months unpaid leave, of which the parents can take up to three weeks unpaid leave concurrently. Right to request flexible working arrangements The NES also provides an employee who is a parent or has the responsibility for the care of a child under school age or who has a disability with the right to request flexible working arrangements until their child reaches school age or 18 (if the child has a disability). Employers will only be able to refuse a request on reasonable grounds. The FW Act allows parties to agree in an industrial instrument to allow FWA to hear and settle disputes arising from an employer’s refusal of request for a flexible work arrangement. The General Manager of FWA will conduct research into the operation of requests for flexible working arrangements under the NES. The research will need to examine the circumstances in which employees make such requests; the outcome of such requests; and the circumstances in which such requests are refused. Personal/Carers leave The NES also entitles an employee (other than casual employees) to 10 days paid personal/carer’s leave for each year of service. An employee may take carer’s leave to care for a member of the employee’s immediate family or household who requires care or support because of a personal illness, injury or unexpected emergency affecting the member. All employees, including casuals for the first time, will be able to access two days of unpaid carer’s leave for each permissible occasion. Bargaining Individual Flexibility Arrangements The FW Act allows employers and employees to make arrangements in enterprise agreements and modern awards that suit their particular needs through Individual Flexibility Agreements (IFAs). IFAs must make employees better off overall compared to their award. Individual flexibility arrangements are particularly beneficial to employees who would like to modify their employment conditions to better facilitate the combining of work and family responsibilities. Low paid bargaining The FW Act introduces special provisions for FWA to facilitate multi-employer bargaining for low paid employees who have not historically had the benefits of enterprise level collective bargaining. This would include areas like child care, aged care, community services and cleaning where female employment is high. FWA will play a key role in the low-paid stream in order to facilitate the bargaining process and assist parties to negotiate multi-employer agreement. This will include broad powers to mediate, conciliate and make recommendations. Anti-discrimination measures The FW Act contains expanded anti-discrimination protections to prohibit an employer from taking adverse action, such as dismissing an employee, altering their position or paying them less, against an employee or prospective employee of the employer because of the person’s race, colour, sex, sexual preference, age, physical disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The protections against discrimination have expanded on current legislation by prohibiting discriminatory behaviour falling short of dismissal and adding carer’s responsibilities as a ground of discrimination. Under the FW Act, modern awards, collective agreements and individual flexibility agreements will not be able to include discriminatory terms. The FW Act preserves certain state or territory laws dealing with discrimination and/or equal opportunity that might otherwise be excluded by making clear they are intended to apply to national system employees and employers. Interaction rules in the FW Act also ensure employees have access to the most appropriate remedy for their circumstances while also providing protection from ‘double- dipping.’ Australian Government Fair Work Ombudsman The Fair Work Ombudsman administers the Fair Work Act and investigates workplace complaints and enforces compliance with Australia's workplace laws. Complaints can be made to the Fair Work Ombudsman in relation to pay, conditions, workplace rights, or discrimination by current or prospective employers. The Ombudsman’s section of the new Fair Work Online website contains best practise guides to assist businesses implement best practice initiatives. Topics include Work and Family, and Gender Pay Equity. Click here to access this section of the website. Australian Human Rights Commission The Australian Human Rights Commission administers The Sex Discrimination Act 1984 which protects individuals across Australia from discrimination on the basis of sex, marital status or pregnancy and, in relation to employment, family responsibilities. The Act also makes sexual harassment against the law. Under the Act, individuals can lodge complaints of sex discrimination and sexual harassment with the Australian Human Rights Commission. The Sex Discrimination Commissioner works to address discrimination, sexual harassment and other barriers to equality by reviewing legislation, conducting research and providing policy advice on key issues. In July 2008, Commissioner Broderick launched her Plan of Action towards Gender Equality. The Plan of Action has been shaped by the findings of the Commissioner's national Listening Tour. The Commissioner will focus on a range of program areas to address sex discrimination and promote gender equality in Australia, one of which is the gender gap in retirement savings. Commissioner Broderick is currently working with experts to investigate the factors contributing to the gender gap in retirement savings and inform solutions for increasing women’s economic independence over their lifetime. State Responses into Gender Pay Equity Queensland In 2000, the Queensland Government conducted an inquiry into the extent of pay inequity in Queensland. 5 Their submission outlined the initiatives taken in respect to advancing pay equity for women in the public and private sectors. 6 The Queensland Office for Women is also implementing a range of initiatives which target some of the underlying causes of gender pay inequity, in particular, occupational segregation. 7 Initiatives include Women in Hard Hats and Women on Boards Strategies and a gender analysis toolkit, available on their website. 8 For more information, including a gender analysis toolkit, click here. 5 Queensland Government, Submission to the Pay Equity Inquiry, available at; http://www.deir.qld.gov.au/industrial/publications/submissions/submissions/qirc/payequity/index.htm 6 Queensland Industrial Relations Commission, Pay Equity: Time to Act, September 2007, Section 5, available at http://www.qirc.qld.gov.au/inquiry/pay_equity/final/pay%20equity%20report.pdf 7 Queensland Office for Women, available at http://www.women.qld.gov.au/ 8 Queensland Office for Women, Gender Analysis Toolkit, available at http://www.women.qld.gov.au/about-us/gender-analysis/ New South Wales In 1996 the Industrial Relations Commission of NSW held a Pay Equity Inquiry and in 2000 it established Australia's first Equal Remuneration Principle to redress the historical gender-based undervaluation of women's paid work. 9 Since 1996 a Pay Equity Strategy has been produced annually, outlining various pay equity policies and initiatives. Most recently the Office for Women’s Policy in the NSW Department of Premier and Cabinet conducted the Quality Part-time Work Round Table. 10 For more information, click here. Western Australia The Western Australia Government undertook a review of the gender pay gap in 2004. Currently the Labour Relations and Economic Analysis Unit provides advice and assistance to organisations that are interested in improving pay equity, including a pay equity audit tool which is available on both the EOWA website, and the Unit’s pay equity page available below. For more information, click here. Victoria In 2004, the Minister for Industrial Relations, Victoria, announced a Pay Equity Inquiry to identify the extent of the gender pay gap in Victoria and to investigate the factors contributing to differences in pay rates between men and women in Victoria. The Inquiry released its findings in 2005, which included a list of comprehensive recommendations. 11 Business Victoria has a comprehensive Gender Pay Equity website including case studies, reports and tools to assist employers. For further information, click here. South Australia The Office for Women in South Australia has been successful in gaining an Australian Research Council (ARC) Grant to develop a self-assessment audit tool focussed on Gender Analysis. The Gender Analysis Project is funded for three years and the tool will provide a means for Government agencies to ensure they are meeting the needs of citizens and will explore, develop and refine techniques for making public policy gender-inclusive and therefore increasingly effective. For further information, click here. 9 New South Wales Government, Department of Commerce, Office of Industrial Relations, Pay Equity Inquiry, available at; http://www.industrialrelations.nsw.gov.au/About_OIR/Issues_and_policy/Archive/Pay_equity_inquiry. html 10 New South Wales Government, Department of Premier and Cabinet, Office for Women’s Policy, available at http://www.women.nsw.gov.au/RoundTable.html 11 Victorian Pay Equity Working Party to the Minister for Industrial Relations, Pay Equity- their future depends on it (2005) http://www.business.vic.gov.au/busvicwr/_assets/main/lib60047/85_pay-equity-final-4-3-2005.pdf Northern Territory The Northern Territory (NT) Government has recognised the importance of the right to equal pay for work of equal value in Principle 6 of its Workplace Rights Standards. Australian Capital Territory The Australian Capital Territory (ACT) Office for Women has identified pay equity as a key element in the economic security of women in the ACT. There is an Equity and Diversity Toolkit on the Government's website.