Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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

Other comments on C100

Observation

Direct Request

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The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 10 October 2018.

Articles 1 and 2 of the Convention. Assessing and addressing the gender pay gap. The Committee previously welcomed the measures taken by the Government to narrow the gender pay gap while observing that it remained high, being estimated at 17.9 per cent in 2015. The Committee notes that, according to the ACTU, there has been limited progress towards pay equity as the gender pay gap remains high, together with the gap in retirement savings. The ACTU indicates that, for 2016–17, the full-time gender pay gap was 15.3 per cent, and women’s average full-time base salary across all industries and occupation was 17.3 per cent less than that of men. On average, according to the ACTU, taking into account full time total remuneration, men still earn 22.4 per cent more than women per year. The ACTU also indicates that women face discrimination in hiring practice and start their careers at a pay disadvantage. The ACTU adds that the current pay setting methods affect women’s pay and other conditions as many women are in occupations or industries that are dependent on awards and are not empowered to bargain with employers. The Committee notes the Government’s indication, in its report, that, since 2014, the gender pay gap for average weekly earnings of full-time adult employees decreased from 18.5 to 14.5 per cent in May 2018. The Government however acknowledges that the causes of the gender pay gap are various and complex as they encompass a broad range of factors including: (i) women and men working in different industries and different jobs, with industries and jobs where women workers are predominant attracting lower wages; (ii) discrimination and bias in hiring and pay decision; (iii) women’s disproportionate share of unpaid caring and domestic work; (iv) lack of workplace flexibility to accommodate caring and other responsibilities, especially in senior roles; (v) women’s more “precarious attachment to the workforce” (largely due to their unpaid caring responsibilities); (vi) women’s greater time out of the workforce impacting career progression and opportunities; and (vii) differences in education, work experience and seniority. The Committee notes the Government’s statement that, as highlighted in the report released on July 2017 “Towards 2025: An Australian Government strategy to boost women’s workforce participation”, several measures were taken to address factors that drive pay inequity, such as ensuring affordable, accessible and flexible childcare, improving workplace flexibility and strengthening women’s economic security. The Government indicates that through the Workplace Gender Equality Agency (WGEA), the Government works closely with private sector employers to narrow the gender pay gap, providing a number of resources aimed at promoting pay equity and improving the ability of women and men to combine paid work and caring responsibilities. The Government underlines that the “Balancing the future: The Australian Public Service gender equality Strategy for 2016–19”, which is currently implemented, recognizes that the low representation of women in leadership positions contributes to the gender pay gap and requires every public agency to set targets for gender equality in such positions and to boost gender equality more broadly in the public service. Welcoming this information, the Committee notes however that, in its 2017 concluding observations, the United Nations (UN) Committee on Economic, Social and Cultural Rights expressed specific concerns about limited progress achieved in closing the gender wage gap, which is attributed to persistent industrial and occupational sex segregation, and the concentration of women in low-paid sectors and in part-time work (E/C.12/AUS/CO/5, 11 July 2017, paragraph 25). It further notes that, in its 2018 concluding observations, the UN Committee on the Elimination of Discrimination against Women (CEDAW) was concerned about: (i) industrial and occupational segregation which, together, account for 30 per cent of the 15.3 per cent gender pay gap; (ii) the lack of obligations on employers regarding flexible working arrangements, which contributes to the overrepresentation of women in part-time work and lower-paid sectors; and (iii) the average superannuation balance for men which is 37 per cent higher than for women, and puts women at a particularly high risk of poverty and homelessness in old age (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 43). The Committee asks the Government to provide information on the measures implemented to address the gender pay gap by identifying and addressing its underlying causes, such as vertical and horizontal occupational gender segregation and stereotypes regarding women’s professional aspirations, preferences and capabilities, their role in the family and the concentration of women in low-paid sectors and part-time work, and by promoting women’s access to a wider range of jobs with career prospects and higher pay. It asks the Government to provide information on any assessment made of such measures and their effective impact in addressing the gender pay gap. The Committee asks the Government to provide information on the obligation of employers regarding flexible work arrangements. Last, the Committee asks the Government to continue to provide statistical information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

Referring to its previous comments requesting information about the impact of various initiatives undertaken in Queensland to attract and retain women in the minerals industry where a significant gender pay gap exists, the Committee notes the Government’s commitment to support the Queensland Resources Council/Women in Mining and Resources Queensland Mentoring Programme for a further three years until 2020, including an expansion of the program in 2019 to include girls enrolled in the Queensland Mineral and Energy Academy. It further notes that an initiative called “Towards Gender Parity: Women on Boards Initiative” is being implemented to support organizations to enhance women’s representation on boards, with a focus on industries where men are most represented, such as natural resources, technology, engineering and science industries. The Committee notes the Government’s statement that gender pay equity is identified as one of the key components for the advancement of gender equality under the Queensland Women’s Strategy 2016–21, and that a gender pay equity review across the public sector was conducted in this framework in 2017. It notes that the Queensland Public Service Commission developed a five-year strategy “50/50 on equal footing: Queensland public sector gender equity strategy 2015–20” to support gender equity for the public sector. The Committee notes, from the March 2018 workforce report published by the Queensland Public Service Commission, that while women and men receive the same salary for the same classification job, the full-time equivalent average annual earnings for women was 9,307 Australian dollars (AUD) lower than those of men. The report adds that women are massively concentrated in lower paid jobs, whereas it is estimated that they represent 37.3 per cent of the incumbents of senior executive and equivalent level positions. The Committee, once again, asks the Government to provide information on the concrete 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. It also 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.

With regard to New South Wales, the Committee notes that the State’s Strategy for 2018–22 for advancing economic and social equity, recognizes that women working full-time earn on average AUD239.70 less than men per week, with women being over-represented among lower-paying industries. It notes that, in the framework of the New South Wales Women’s Strategy for 2018–22, the Year One Action Plan provides for an exploratory review in the public service of pay parity for specific categories of workers. The Committee asks the Government to provide information on the concrete measures implemented, in particular in the framework of the New South Wales Women’s Strategy for 2018–22, to address the gender pay gap, as well as on their impact.

With regard to Victoria, the Committee notes the setting-up in March 2017 of the Equal Workplace Advisory Council (EWAC), in the framework of Victoria’s Gender Equality Strategy of 2015, to provide advice to the Minister for Industrial Relations on initiatives that will address the gender pay gap. It notes that EWAC developed a gender equality pledge and that, in March 2018, several public and private sector representatives committed to such pledge in order to address gender equity by using tools that find the causes of gender pay gaps and to implement plans to redress such gaps. The Committee notes that the Victorian Public Sector has a gender pay gap of 12 per cent as a result of women being mostly concentrated in areas traditionally dominated by women, such as junior clerical roles, education aids, nurses, teachers and welfare support workers. The Government indicates that, as a result of its commitment to promote and encourage the appointment of women to Government boards, between March 2015 and June 2018, 52 per cent of all new board appointments were women, increasing the representation of women overall from 39 to 53 per cent of positions on paid Victorian Government boards. The Committee further notes that a pilot gender equity audit is underway, with the assistance of the EWAC, and will provide objective, measurable evidence on performance and progress across several gender equity indicators including pay equity, recruitment and promotion, and flexible working arrangements. The Committee asks the Government to provide information on the nature and impact of the measures implemented and initiatives envisaged, including by the Equal Workplace Advisory Council, to address the gender pay gap and its underlying causes such as vertical and horizontal occupational gender segregation. It asks the Government to provide information on the results of the gender equality audit, in particular concerning the pay equity indicators.

Referring to its previous comments where it requested the Government to indicate how many agencies in Western Australia had undertaken pay equity audits as a result of the Pay Equity Unit (PEU)’s recommendations, the Committee notes the Government’s indication that the PEU was closed on 30 June 2015 as a result of the reduced demand for pay equity services from private sector organizations, following the introduction of the Workplace Gender Equality Act 2012 and the fact that information and assistance on pay equity strategies are available from the federal WGEA. The Government adds that workplace gender equality resources developed by the PEU, including the pay equity audit tool, are still available for public and private sector organizations but data on whether organizations are using this tool or other resources to undertake pay equity audits is not being collected. The Committee asks the Government to provide information on any measures adopted in Western Australia to address the gender pay gap, as well as on their impact. It also asks the Government to provide information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

Low-paid assisted 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 asked the Government to provide information concerning the implementation of these provisions and its impact on pay equity as well as on any other developments in relation thereto. It notes the Government’s indication that there have been no changes to the low-paid bargaining provisions and that there have been no further applications for low-paid bargaining authorisations made to the Fair Work Commission since the last reporting period. According to the ACTU, this demonstrates that, as the current provisions are unable to provide an effective means of promoting equal remuneration for work of equal value, unions have abandoned pursuing this avenue. The ACTU reiterates that amendments to the Fair Work Act are required to address this situation, as the simplification of current rules and facilitation of collective bargaining is an essential element of achieving gender equality at work. The Committee asks the Government to provide information on any assessment made of the provisions of the Fair Work Act of 2009 on low-paid bargaining and their impact on pay equity, as well as any measures taken or envisaged to implement, in practice, the principle of the Convention.

Minimum wages and the equal remuneration principle. In its previous comment, the Committee noted that the Fair Work Commission is responsible for setting and reviewing modern awards and minimum wages for Australian workers and must, in this regard, take into account the principle of equal remuneration. The Committee notes the ACTU’s indication that the Minimum Wages Expert Panel of the Fair Work Commission has not been able to give much weight to the fact that an increase in minimum wages is likely to promote pay equity. The ACTU adds that, in determining the minimum wage increases 2016–17, the Panel indicated that “the application of the principle of equal remuneration for work of equal or comparable value is such that it is likely to be of limited relevance in the context of the review […]. Review proceedings are of limited utility in addressing any systemic gender evaluation of work”. The Committee also notes that the Government indicates that, while the principle of equal remuneration was found likely to be of “only limited relevance in the context of a Review” by the Expert Panel in the Annual Wage Review decision of 1 June 2018, the Expert Panel also accepted “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.” (Annual Wage Review 2017–18 Decision [2018] FWCFB 3500, paras 35–38). The Committee 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 notes that the Fair Work Act provides that the Fair Work Commission may make equal remuneration orders that “it considers appropriate to ensure that, for the employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value” (section 302 of the Act). The Committee notes that in its report the Government indicates that the Fair Work Commission may make equal remuneration orders but has not provided further detail in this regard. The Committee also notes the ACTU’s indications that the pursuit of equal remuneration orders has proved to be extremely costly, time consuming, highly adversarial and an ineffective process. The ACTU indicates that this is demonstrated by the decision of the Fair Work Commission to dismiss the application by the Australian Education Union and United Voice for Equal Pay for the children’s services and early childhood industry. The ACTU indicates that the interpretation of the provisions of the legislation by the Fair Work Commission is unduly narrow and that the above case demonstrates not only that there is a need for legislative amendment to ensure that the equal remuneration provisions are strong, clear and effective, but also that they must be supported and appropriately implemented by key institutional actors, such as the Federal Government and Fair Work Commission. The ACTU also indicates that legislative amendment is required to ensure that the Fair Work Commission has broad powers to make orders to remedy gender inequality. The Committee therefore requests the Government to provide its comments regarding the ACTU’s observations, in particular information regarding 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 requests the Government 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. The Committee also requests the Government to indicate any measures, including legislation, envisaged in order to achieve full implementation in law and practice of the principle of the Convention in this respect.

Enforcement. The Committee notes that the WGEA continues its work with employers to help them comply with the reporting requirements under the Workplace Gender Equality Act 2012, and uses the reporting data to develop educational Competitor Analysis Benchmark Reports based on six gender equality indicators. It further notes that the Fair Work Ombudsman continues to promote the principle of equal remuneration for work of equal value through the resources provided on its website, including delivering tailored advice and information regarding the Equal Remuneration Order. The Fair Work Ombudsman’s Pay and Conditions Tool (PACT) reflects updated rates of pay following the Equal Remuneration Order and all other relevant Fair Work Commission decisions. The Committee notes that the ACTU highlights that the institutions and legal instruments designed to reduce pay inequality have not been sufficiently resourced. The ACTU indicates that the Fair Work Ombudsman confirmed the high levels of non compliance with workplace instruments and the underpayment of wages and legal entitlements especially among small-sized employers. The Committee asks the Government to provide information on the nature of the training and awareness-raising activities carried out by the Workplace Gender Equality Agency and the Fair Work Ombudsman concerning the promotion and enforcement of the principle of equal remuneration between men and women for work of equal value, and the results achieved. It also asks the Government 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.