Aged Care Award 2010 - [2024] FWCFB 150

[2024] FWCFB 150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Aged Care Award 2010

(AM2020/99 and AM2021/63)

Nurses Award 2020

(AM2021/63)

Social, Community, Home Care and Disability Services Industry Award 2010

(AM2021/65)

JUSTICE HATCHER, PRESIDENT

VICE PRESIDENT ASBURY
DEPUTY PRESIDENT O’NEILL
PROFESSOR BAIRD

DR RISSE

SYDNEY, 15 MARCH 2024

Applications to vary modern awards – work value – Aged Care Award 2010 – Nurses Award 2020 – Social, Community, Home Care and Disability Services Industry Award 2010 – Stage 3 decision.

CONTENTS

Part	Paragraph
1. Introduction	[1]
2. Gender undervaluation
2.1 The amended statutory framework	[10]
2.2 Historical gender assumptions in award wage fixation — 1907–1967	[25]
2.3 The unfinished business of the Equal Pay Cases	[54]
2.4 Implementation of the C10 Metals Framework Alignment Approach	[76]
2.5 Non-implementation of the C1 classification rate	[93]
2.6 The award modernisation process	[95]
2.7 Historical development of the Aged Care Award 2010	[96]
2.8 SCHADS Award — Home care workers	[109]
2.9 Historical development of the Nurses Award 2010	[111]
3. Final assessment of work value — direct care employees	[136]
3.1 Infection prevention and control	[137]
3.2 Staff shortages and work intensification	[147]
3.3 Final work value assessment of direct care employees	[156]
3.4 Fixing a benchmark rate for PCWs, AINs and HCWs	[158]
3.5 Classification structure for PCWs, AINs and HCWs	[174]
3.6 Registered and enrolled nurses	[203]
3.7 Modern awards objective and minimum wages objective	[209]
4. Assessment of work value — indirect care employees
4.1 The issues and the evidence	[213]
4.2 Is there equality in work value between indirect care employees and PCWs/AINs/HCWs?	[224]
4.3 General work value changes — IPC and dementia and other training	[243]
4.4 Specific work value considerations — food service, cleaning and laundry employees	[252]
4.5 Most senior food service employees	[268]
4.6 Modifications to classification structure in the Aged Care Award for indirect care employees	[275]
4.7 Modern awards objective and minimum wages objective	[277]
5. Next steps	[279]

DEFINITIONS

Defined term	Definition
1921 Metals decision	Amalgamated Society of Engineers and The Adelaide Steam-ship Company Limited (1921) CthArbRp 57, 15 CAR 297
1969 Equal Pay Case	[1969] CthArbRp 278, 127 CAR 1142
1972 Equal Pay Case	[1972] CthArbRp 1420, 147 CAR 172
ABS	Australian Bureau of Statistics
ACT Child Care decision	Re Australian Liquor, Hospitality and Miscellaneous Workers Union[2005] AIRC 28, PR954938
ACTU	Australian Council of Trade Unions
Aged Care Award	Aged Care Award 2010 [MA000018]
Aged Care Employers	Aged Care Industry Employer Associations
AIN	Assistant in nursing/Nursing assistant
AIRC	Australian Industrial Relations Commission
Amending Act	Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
ANMF	Australian Nursing and Midwifery Federation
Annual Wage Review 2022–23 decision	[2023] FWCFB 3500
AQF	Australian Qualifications Framework
Archer decision	The Federated Clothing Trades of the Commonwealth of Australia v J A Archer and Others [1919] CthArbRp 99, 13 CAR 647
Basic Wage Inquiry 1949–1950	[1950] CthArbRp 558, 68 CAR 698
Buckland	Buckland Aged Care Services
C10 Metals Framework Alignment Approach	Approach described in the Stage 1 decision at [177]–[178]
CA Commission	Australian Conciliation and Arbitration Commission
CA Court	Commonwealth Court of Conciliation and Arbitration
Clothing Trades Award	Clothing Trades Award 1964 [1964] CthArbRp 863, 108 CAR 687
Clothing Trades decision	Clothing and Allied Trades Union of Australia re Clothing Trades Award 1964 [1967] CthArbRp 406, 118 CAR 286
COE	Australian Bureau of Statistics Characteristics of Employment data
Department	Department of Health and Aged Care
EEH	Australian Bureau of Statistics Employee Earnings and Hours data
EN	Enrolled nurse
ERO	Equal remuneration order
Food Standards	Standard 3.3.1 of the Australia New Zealand Food Standards Code, ‘Food Safety Programs for Food Service to Vulnerable Persons’
Fruit Pickers decision	Rural Workers’ Union and United Labourers’ Union v Mildura Branch of the Australian Dried Fruits Association and Others [1912] CthArbRp 33, 6 CAR 61
FW Act	Fair Work Act 2009 (Cth)
Harvester decision	Ex parte H V McKay [1907] CthArbRp12, 2 CAR 1
HAS Victorian Award 1995	Health and Allied Services – Private Sector – Victorian Consolidated Award 1995, Print M6132
HAS Victorian Award 1998	Health and Allied Services – Private Sector – Victorian Consolidated Award 1998 [AW783872], Print Q2805
HCW	Home care worker
HSU	Health Services Union
Interim Award	Health Services Union of Australia (Victoria – Private Sector) Interim Award 1993 [AW783559] [1993] AIRC 1711, Print L0831
IPC	Infection prevention and control
Joint Employers	Aged & Community Care Providers Association Ltd and Australian Business Industrial
Joint Report	Exhibit HSU 102 (supplementary witness statement of Professor Sara Charlesworth and Professor Gabrielle Meagher with annexure ‘Joint 2023 Supplementary Report’, 30 October 2023)
Junor Report	Exhibit ANMF 1 (witness statement and expert report of Anne Junor, 28 October 2021, as amended on 29 April 2022 and 2 May 2022)
Labour Agreement	Aged Care Industry Labour Agreement, established by the Commonwealth in May 2023
LHMU	Australian Liquor, Hospitality and Miscellaneous Workers Union
Manufacturing Award	Manufacturing and Associated Industries and Occupations Award 2020 (previously named the Manufacturing and Associated Industries and Occupations Award 2010) [MA000010]
Metal Industry Award	Metal Industry Award 1984 [AW819234], Print F8925, later the Metal, Engineering and Associated Industries Award, 1998 – Part I [AW789529], Print Q2527
Metal Trades Award Work Value Inquiry decision	Metal Trades Employers’ Association & Ors re Metal Trades Award, 1952 [1967] CthArbRp 1144, 121 CAR 587
MOU	Memorandum of understanding
MRA	Minimum rate adjustment
National Wage Case 1983	[1983] CthArbRp 400, 291 CAR 3, 4 IR 429
National Wage Case April 1991	[1991] AIRC 281, 36 IR 120, Print J7400
National Wage Case August 1988	[1988] AIRC 595, 25 IR 170, Print H4000
National Wage Case August 1989	[1989] AIRC 525, 30 IR 81, Print H9100
National Wage Case September 1975	[1975] CthArbRp 1544, 171 CAR 79
National Wage Cases 1967	[1967] CthArbRp 504, 118 CAR 655
Nurses Award	Nurses Award 2020 (previously named the Nurses Award 2010) [MA000034]
Nurses Comparable Worth Case	[1986] CthArbRp 64, 300 CAR 185, 13 IR 108, Print G2250
Paid Rates Review decision	[1998] AIRC 1413, 123 IR 240, Print Q7661
PCW	Personal care worker
Pharmacy decision	4 yearly review of modern awards – Pharmacy Industry Award 2010 [2018] FWCFB 7621, 284 IR 121
PPE	Personal protective equipment
Quality Standards	Aged Care Quality Standards
RAT	Rapid antigen test
RFBI	Royal Freemasons’ Benevolent Institution
RN	Registered nurse
Royal Commission	Royal Commission into Aged Care Quality and Safety, established 8 October 2018
SCHADS Award	Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100]
SIRS	Serious incident response scheme
Smith/Lyons Report	Exhibit ANMF 2 (expert report of Associate Professor Meg Smith and Dr Michael Lyons, as amended on 2 May 2022)
Stage 1 decision	[2022] FWCFB 200, 319 IR 127
Stage 2 decision	[2023] FWCFB 40
Stage 2 reasons	[2023] FWCFB 93
Teachers decision	Application by Independent Education Union of Australia [2021] FWCFB 2051
United Voice	Application by United Voice and the Australian Education Union [2018] FWCFB 177, 274 IR 1
UWU	United Workers’ Union
Vehicle Industry Award decision	Re Vehicle Industry Award, 1953 [1968] CthArbRp 471, 124 CAR 295
Whiddon	Whiddon Aged Care

Introduction

These proceedings concern three applications to vary three modern awards to increase the minimum wage rates of aged care sector employees:

·AM2020/99 — an application by the Health Services Union (HSU) and a number of individuals to vary the Aged Care Award 2010 (Aged Care Award)
·AM2021/63 — an application by the Australian Nursing and Midwifery Federation (ANMF) to vary the Aged Care Award and the Nurses Award 2010, now the Nurses Award 2020 (Nurses Award), and
·AM2021/65 — an application by the HSU to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award).

These applications were originally allocated for hearing and determination to a Full Bench consisting of the former President, Justice Ross, Vice President Asbury[1] and Deputy President O’Neill.[2] An initial decision was issued by this Full Bench on 4 November 2022[3] (Stage 1 decision). On 18 November 2022, Justice Ross resigned his position with the Commission and the Full Bench was reconstituted to include Commissioner Bissett. This reconstituted Full Bench issued a further decision on 21 February 2023[4] (Stage 2 decision), made determinations giving effect to the Stage 2 decision on 3 March 2023, and published reasons for the Stage 2 decision on 18 May 2023[5] (Stage 2 reasons). The President constituted the Full Bench in its current form as an Expert Panel for pay equity in the Care and Community Sector on 15 June 2023 in accordance with ss 617(9) and 620(1D) of the Fair Work Act 2009 (Cth) (FW Act) (which provisions took effect on 6 March 2023).

In the Stage 1 decision, the Full Bench determined that the proceedings would be dealt with in three stages.[6] Stage 1, which was finalised by the Stage 1 decision, involved the consideration of the relevant legal principles and conceptual issues, a finding that the modern award minimum wage rates for ‘direct care employees’ in the aged care sector do not properly compensate for the value of the work performed,[7] and a determination that an interim increase of 15 per cent in modern award minimum wages for ‘direct care employees’ was justified by work value reasons.[8] It is necessary to note at this point that ‘direct care employees’ are comprised of personal care workers (PCWs) under the Aged Care Award, home care workers (HCWs) who work in the aged care sector under the SCHADS Award, and registered nurses (RNs), enrolled nurses (ENs), assistants in nursing (AINs) and nurse practitioners who work in the aged care sector under the Nurses Award. The Stage 1 decision included detailed findings as to the work of direct care employees in support of the conclusion that the interim increase was justified on work value grounds.

Stage 2 involved the determination of the following issues:

·the timing of and phasing-in of the interim pay increase for direct care employees;
·whether the interim increase was necessary to achieve the modern awards objective in s 134(1) of the FW Act; and
·whether the interim increase was necessary to achieve the minimum wages objective in s 284(1) of the FW Act.

In the Stage 2 decision, the Full Bench concluded that an interim increase of 15 per cent to minimum wages for direct care employee under the three awards was necessary to achieve the modern awards objective and the minimum wages objective and, in addition, reached the same conclusion in respect of Head Chefs/Cooks and Recreational Activities Officers/Lifestyle Officers under the Aged Care Award.[9] The Full Bench determined that the interim increase for these employees would be operative from 30 June 2023.

The Stage 1 decision contemplated that Stage 3 of the proceedings would involve:

(1)a determination as to whether any further wage adjustments are justified on work value grounds for direct care employees granted interim wage increases in Stages 1 and 2;

(2)a determination as to whether any wage adjustments are justified on work value grounds for aged care sector employees not dealt with in Stage 1 (‘indirect care employees’); and

(3)a more detailed consideration of the classification definitions and structures in the three Awards as they apply to aged care sector employees.[10]

In relation to the third of the above matters, the Stage 1 decision identified[11] that a consideration of the classification structures in the awards would include the following matters:

·the appropriate classification and minimum rates of pay for PCWs, HCWs and AINs, noting the differing rates of pay in the Aged Care Award and the Nurses Award and further noting the suggestion by Aged & Community Care Providers Association Ltd and Australian Business Industrial (Joint Employers) that rewarding administering Schedule 4 medications in a residential facility and working in dedicated dementia and/or palliative care facilities may be dealt with by way of an allowance rather than the classification structure;
·the appropriateness of separating out the PCWs from other employees in the Aged Care Award and creating a new PCW classification stream;
·the appropriateness of inserting in the Aged Care Award the nursing classifications from the Nurses Award;
·the application of the C10 Metals Framework to the relevant Awards, especially in relation to the fixation of wage rates for RNs;
·the application of appropriate internal relativities within each Award; and
·in relation to the SCHADS Award, the impact on disability support workers of the increase sought for aged care employees covered by the SCHADS Award.

On 7 March 2023, after the Stage 2 decision was issued, the ANMF filed a submission[12] in which it contended (for the first time) that the classification of RN, Level 1, Pay Point 1 should be aligned with classification C1(a) under the C10 Metals Framework in Stage 3 of the proceedings, consistent with the provisional view expressed in paragraph [955] of the Stage 1 decision.

This decision deals with all the above matters and issues. In addition, for reasons which are explained below, it is also necessary for us to consider and make findings concerning whether, to the extent that modern award minimum wage rates applicable to the aged care sector do not properly compensate for the value of the work performed (as found in the Stage 1 decision in respect of direct care employees), this undervaluation has occurred historically because of assumptions based on gender. We will deal with this issue first.

Gender undervaluation

2.1 The amended statutory framework

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of amendments to the FW Act relating to gender equality. These amendments took effect on 7 December 2022, after the Stage 1 decision was issued. The amendment of principal relevance to these proceedings is that s 157, which concerns circumstances in which the Commission is empowered to vary modern awards, was varied to add sub-s (2B) as follows:

(2B)The FWC’s consideration of work value reasons must:

(a)be free of assumptions based on gender; and

(b)include consideration of whether historically the work has been undervalued because of assumptions based on gender.

The amended s 157 applies after its commencement on 7 December 2022 in relation, relevantly, to a determination varying a modern award made under s 157 after that commencement date.[13]

The ‘work value reasons’ referred to in s 157(2B) are those described in s 157(2A):

(2A)Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(a)the nature of the work;
(b)the level of skill or responsibility involved in doing the work;

(c)the conditions under which the work is done.

Section 157(2B) imposes requirements as to the Commission’s ‘consideration’ of the work value reasons referred to in s 157(2A). ‘Consideration’ in this context refers to the Commission’s decision-making process. Section 157(2B)(a) requires this decision-making process to be ‘free of assumptions based on gender’. The FW Act, as amended by the Amending Act, does not define what are ‘assumptions based on gender’. This expression has its origins in academic literature concerning gender inequality and was, as a concept in connection with the assessment of work value, discussed in the Stage 1 decision[14] by reference to the expert report of Associate Professor Smith and Dr Lyons (as amended) of 2 May 2022[15] (Smith/Lyons Report). For present purposes, we take its meaning in the context of the consideration of ‘work value reasons’ as being subjective preconceptions and stereotypes derived from cultural and social norms about gender roles, skills and responsibilities. This may include, for example, assumptions that tasks and skills such as caregiving, manual dexterity, human relations and working with children commonly required in female-dominated occupations are inherently female characteristics and as such are of lesser work value than ‘hard’[16] tasks and skills performed in male-dominated occupations.[17] Section 157(2B)(a) requires the Commission to exclude considerations of this nature from its decision-making process.

Section 157(2B)(b) requires the Commission, as part of its decision-making process, to ‘include consideration’ concerning whether ‘historically the work has been undervalued because of assumptions based on gender’. The requirement to ‘include consideration’ may be equated in meaning to statutory requirements to consider, or take into account, or have regard to, specified matters.[18] A requirement of this nature means that the specified matters must, at least, be the subject of active intellectual engagement and given ‘proper, genuine and realistic consideration’.[19] In some circumstances, the terms, statutory context and manner of operation of a term requiring that a matter be considered may indicate a requirement that a determination be made or a conclusion formed about the specified matter.[20]

The term ‘undervalued’ in s 157(2B)(b) is not defined, but the context provided by sub‑ss (2) and (2A) of s 157, to which sub-s (2B) relates, makes its intended meaning apparent. Subsection (2) empowers the Commission to vary minimum award wage rates where this is justified by ‘work value reasons’ and doing so outside the annual wage review process is necessary to achieve the modern awards objective. As earlier stated, sub-s (2A) defines what are ‘work value reasons’ for the purpose of sub-s (2). It is necessarily implicit in the scheme that, where an adjustment to award rates is considered to be justified for work value reasons, the existing award wage rates do not properly reflect the value of the work to which the work applies. Where the relevant adjustment is by way of an increase to the minimum award wage rates, the existing wage rates may therefore be described as ‘undervaluing’ the work in question — that is, assigning a minimum wage rate to the work which is less than the rate which would properly remunerate the work in question in accordance with the work value considerations identified in sub-s (2A).

In this context, s 157(2B)(b) may therefore be concerned with a requirement to consider whether any undervaluation which is found to exist is ‘historical’ in nature — that is, has arisen from some past decision, consideration, act or omission of the Commission or relevant predecessor institutions — and has occurred by reason of assumptions based on gender. This aligns with the well-understood industrial concept of gender-based undervaluation whereby the minimum rates in an award have been established based on an undervaluation of the relevant work that has occurred for gender-related reasons.[21]

The amendments to s 157 concerning gender assumptions were, as earlier stated, part of a ‘package’ of amendments concerning gender equality made to the FW Act by the Amending Act. The other amendments of present relevance were:

(1)the addition of a reference to the promotion of gender equality in paragraph (a) of the object of the FW Act in s 3;

(2)the removal of paragraph (e) (‘the principle of equal remuneration for work of equal or comparable value’) of the modern awards objective in s 134(1), and its replacement by the following as a matter required to be taken into account by the Commission in ensuring that modern awards, together with the NES, provide a fair and minimum safety net of terms and conditions:

(ab)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;

(3)the removal of paragraph (d) of the minimum wages objective in s 284(1) (which was in identical terms to former s 134(1)(e)) and its replacement by the following as a matter required to be taken into account by the Commission in establishing and maintaining a safety net of fair minimum wages:

(aa)the need to achieve gender equality, including by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and addressing gender pay gaps;

These amendments were considered by the Commission in the Annual Wage Review 2022–23 decision.[22] That decision referred to the revised explanatory memorandum for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, which identified the overall purpose of the amendments as being to place the consideration of gender equality ‘at the heart of the FWC’s decision-making’,[23] with the elimination of gender-based undervaluation of work being one of the means by which it is contemplated in ss 134(1)(ab) and 284(1)(aa) that gender equality may be achieved.[24]

In the Stage 1 decision, the Full Bench accepted the expert evidence of Associate Professor Smith and Dr Lyons,[25] Professor Meagher,[26] Professor Charlesworth[27] and Associate Professor Junor[28] concerning the existence of gender undervaluation in the award system generally, the barrier to the proper assessment of work value in female-dominated industries and occupations caused by the alignment of feminised work against masculinised benchmarks such as the C10 Metals Framework Alignment Approach, the undervaluation of care work due to gender assumptions, and the gender basis for the undervaluation of the work of aged care sector employees.[29] However, although as stated the key finding in the Stage 1 decision was that the work of direct care employees in the aged care sector was undervalued in three awards which applied to them, the Full Bench ultimately declined to make a definitive finding that this undervaluation arose historically because of assumptions based on gender. The Full Bench said (at [47]) that ‘it is not necessary for the purposes of these proceedings that we determine why the relevant minimum rates in the 3 awards before us have not been properly fixed’, although it later went somewhat further and said (at [1048]):

… we accept that the aged care workforce is predominantly female and the expert evidence is that, as a general proposition, work in feminised industries including care work has historically been undervalued and the reason for that undervaluation is likely to be gender-based. We also accept the logic of the proposition in the expert evidence that gender-based undervaluation of work is a driver of the gender pay gap and if all work was properly valued there would likely be a reduction in the gender pay gap. While it has not been necessary for the purposes of these proceedings for us to determine why the relevant minimum rates in the Awards have not been properly fixed we accept that varying the relevant awards to give effect to the interim increase we propose would be likely to have a beneficial effect on the gender pay gap and promote pay equity. …[30]

In Stage 2 of the proceedings, it was necessary for the (reconstituted) Full Bench to deal with s 157(2B) of the FW Act, which had taken effect after the Stage 1 decision but prior to the issue of determinations giving effect to the Stage 2 decision. In the Stage 2 reasons, the Full Bench concluded in relation to s 157(2B)(a) that the consideration of the work value reasons justifying the interim increase in the Stage 1 decision was free of gender-based assumptions[31] and, in relation to s 157(2B)(b), that the Full Bench in the Stage 1 decision ‘actively considered the question of historical undervaluation because of gender-based assumptions’.[32]

There is a sound basis for the proposition that the consideration required by s 157(2B) requires the making of findings or the statement of conclusions in respect of each of the matters in paragraphs (a) and (b) of the provision. Two matters favour this conclusion. First, the nature of the requirement in s 157(2B)(a) that the Commission’s consideration of work value be free of assumptions based on gender is such that more is required than simply an assertion in a decision that this requirement has been complied with. Section 157(2B) has given central importance to gender equality issues in the consideration of award wage increases based on work value considerations. Accordingly, we consider that a transparent process of reasoning and findings which demonstrates the way in which any gender-based assumptions have been dealt with and excluded from consideration of the outcome pursuant to paragraph (a) of the subsection is necessary to achieve the new provision’s policy purpose. That would in turn suggest that the consideration required by paragraph (b) must involve an explicit finding as to whether the work in question has historically been undervalued because of gender-based assumptions. Without such findings being made, it will not be demonstrable that gender undervaluation has properly been addressed and that past assumptions about gender have been removed from consideration.

Second, the requirements in the modern awards objective (s 134(1)(ab)) and the minimum wages objective (s 284(1)(aa)) to take into account the need to achieve gender equality by (among other things) ‘eliminating gender-based undervaluation of work’ will clearly, in a matter concerning award wage rate increases based on work value reasons, interrelate with the requirements of s 157(2B). Proper consideration and weighing of the elimination of gender-based undervaluation of work would require a substratum of findings upon which to proceed, and the findings called for are those to which s 157(2B) is directed. Without a finding as to whether historic gender-based undervaluation has occurred pursuant to s 157(2B)(b) and a demonstration of how the relevant assumptions have been excluded from consideration under s 157(2B)(a), it is difficult to see how the requisite consideration under ss 134(1)(ab) and 284(1)(aa) can proceed.

In any event, whether we are required to do so as a matter of statutory construction or not, we consider that it is appropriate in this decision to make explicit findings pursuant to s 157(2B) of the FW Act. In this matter, the union parties have contended that the pre-existing award wage rates applicable to employees in the aged care sector are inadequate because they have historically undervalued the work in question for gender-related reasons. Their case in that respect is supported by expert evidence which the Full Bench accepted in the Stage 1 decision. The existence of undervaluation, likely for gender-related reasons, has likewise been accepted. In those circumstances, we propose to make findings and state our conclusions pursuant to s 157(2B).

For the reasons which immediately follow, we find that the work of aged care sector employees has historically been undervalued because of assumptions based on gender. We set out later in this decision how we have excluded assumptions based on gender from our consideration of work value reasons and our determination of new award wage rates for the aged care sector.

2.2 Historical gender assumptions in award wage fixation — 1907–1967

The gender undervaluation which has occurred in respect of aged care sector employees must properly be understood in the wider context of gender assumptions which have pervaded the federal industrial relations system since its inception in the early 20th century.

The first sixty years of wage fixation in the federal industrial relations system following the 1907 Harvester decision[33] of the Commonwealth Court of Conciliation and Arbitration (CA Court) (Higgins J, President) involved a dual concept: a basic wage for unskilled workers and additional wage margins for skilled workers. The basic wage was, conceptually, a needs-based wage for the ‘humblest class’ of unskilled worker, whereas the margin or ‘secondary wage’ was ‘for skill and other necessary qualifications’ in addition to the basic wage.[34] In his seminal 1921 decision to make the first federal award for the metals and engineering industry (1921 Metals decision),[35] Higgins J said:

This Court assumes that a skilled man should, as has been the uniform practice, get more for his skill or other necessary exceptional qualifications than a mere labourer—more or better commodities, and to that end more money wages. This Court takes the basic wage for the labourer and then adds to it the extra wage without which, under present conditions, lads will not take the trouble of mastering the difficulties of a skilled trade.[36]

This initial wage-fixing model was, from the outset, affected by gender assumptions reflective of the social and economic norms of the time. In respect of the basic wage, discrimination between genders based on their perceived social roles was explicit. The Harvester decision, which first conceptualised the basic wage in the federal industrial relations system, proceeded on the assumption that the typical worker of the employer in question was a male married with three children, and it was on this basis that a wage to cover the ‘normal needs of the average employee, regarded as a human being living in a civilized society’,[37] was assessed. In two later decisions of Higgins J, the 1912 Fruit Pickers decision[38] and the 1919 Archer decision,[39] the implications of this assumption in setting a basic wage for female workers were made clear.

The Fruit Pickers decision concerned the making of a first award for fruit pickers and packers arising for a dispute between two unions and various fruit growers in the Mildura and Renmark regions. Higgins J set minimum wages for nearly all the workers concerned on the basis that the labour involved was unskilled in nature, with the primary consideration being the cost of living.[40] For fruit pickers, who were predominantly male, this meant establishing a basic wage by reference to the Harvester decision principle stated above. However, for fruit packers, who were predominantly female, a different approach was taken. Under the heading ‘Discrimination on the Basis of Sex’, Higgins J said:

Most of the workers concerned are men, even in the simple process of picking. In the process of packing at the factory, however, such work as wrapping citrus in paper, or trimming and laying paper in the boxes, of packing fruit in cartons, of giving a neat facing to the boxes to be exposed in shop windows, are carried out mainly— almost solely—by women or girls… Now, in fixing the minimum wage for a man, I have been forced to fix it by considerations other than those of mere earning power. I have based, it, in the first instance—so far as regards the living or basic wage— on ‘the normal needs of the average employee regarded as a human being living in a. civilized community’ (see Harvester Judgmental 2 C.A.R. 3, and subsequent cases). No one has since urged that this is not a correct basis; some employers have expressly admitted that it is. I fixed the minimum, in 1907 at 7s. per day by finding the sum which would meet the normal needs of an average employee, one of his normal needs being the need for domestic life. If he has a wife, and children, he is under an obligation—even a legal obligation—to maintain them. How is such a minimum applicable to the case of a woman picker? She is not, unless perhaps in very exceptional circumstances, under any such obligation. The minimum cannot be based on exceptional cases. The employer cannot be told to pay a particular employee more because she happens to have parents and brothers and sisters dependent on her; nor can he be allowed to pay her less, because she has a legacy from her grandparents, or because she boards and lodges free with her parents, and merely wants some money for dress. The State cannot ask that an employer shall, in addition to all his other anxieties, make himself familiar with the domestic necessities of every employee; nor can it afford to let a girl with a comfortable home pull down the standard of wages to be paid to less fortunate girls who have to maintain themselves. Nothing is clearer than that the ‘minimum rate’ referred to in section 40 means the minimum rate for a class of workers, those who do work of a certain character. If blacksmiths are the class of workers, the minimum rate must be such as recognises that blacksmiths are usually men. If fruit-pickers are the class of workers, the minimum rate must be such as recognises that, up to the present at least, most of the pickers are men (although women have been usually paid less), and that men and women are fairly in competition as to that class of work. If milliners are the class of workers, the minimum rate must, I think, be such as recognises that all or nearly all milliners are women, and that men are not usually in competition with them. There has been observed for a long time a tendency to substitute women for men in industries, even in occupations which are more suited for men; and in such occupations it is often the result of women being paid lower wages than men. Fortunately for society, however, the greater number of bread winners still are men. The women are not all dragged from the homes to work while the men loaf at home; and in this case the majority even of the fruit-pickers are men. As a result, I come to the conclusion that in the case of the pickers, men and women, being on a substantial level, should be paid on the same level of wages; and the employer will then be at liberty freely to select whichever sex and whichever person he prefers for the work. All this tends to greater efficiency in work, and to true and healthy competition—not competition as in a Dutch auction by taking lower remuneration, but competition by making oneself more useful to the employer. But in the case of the women in the packing sheds, the position is different. I have had the advantage of seeing the women performing the lighter operations of packing at a factory; and I have no doubt that the work is essentially adapted for women with their superior deftness and suppleness of fingers. The best test is, I suppose, that if the employers had to pay the same wages to women as to men, they would always, or nearly always, employ the women; and in such work as this, even if the wages for men and for women were the same, women would be employed in preference. The position is similar as to apricot cutting (or ‘pitting’). I must, therefore, endeavour to find a fair minimum wage for these women, assuming that they have to find their own food, shelter, and clothing.[41]

(underlining added)

Four assumptions based on gender are apparent in the above passage. First, the basic wage for any particular category or group of workers was dependent upon the predominant gender of the category or group. Second, where the gender of the category or group was predominantly male, the basic wage was to be set according to the Harvester decision model of the cost of living which assumed the worker was a man with a dependent wife and children. This assumption was applied notwithstanding the doubtless existence of single men, or men without children, in this category. It was also applied to women in this predominantly male category in order to prevent women ‘undercutting’ men on the basis of lower wages. Third, where the gender was predominantly female, the basic wage was to be set on the presumption that the worker had no dependants, irrespective of the actual position. Fourth, it is clear that Higgins J regarded work itself, and the skills involved, as being gendered, so that certain types of work were suitable only, or more suitable, for men or for women. The reference in particular to ‘women with their superior deftness and suppleness of fingers’ is an early example of manual dexterity being treated as an inherently female trait rather than a work skill to be valued irrespective of gender.

In accordance with these principles, Higgins J went on to set minimum hourly rates as follows:

I have come to the conclusion that, under the circumstances, as the minimum for men and women pickers in competition is to be fixed at 1s. per hour, the minimum for women workers in these processes, in which men are hardly ever employed, should be fixed at 9d. per hour.[42]

Thus the female fruit packers’ rate was set at 75 per cent of the (predominantly male) fruit pickers’ rate.

The Archer decision concerned a claim made by the Federated Clothing Trades Union for the establishment of minimum pay rates and conditions for employees in the tailoring industry. The principal matter required to be arbitrated was the setting of a basic wage for adult male and female workers in circumstances where the union had claimed lower rates of pay for women than for men. For men, Higgins J determined a basic wage of 65s. per week on the basis of the Harvester decision outcome with adjustments for subsequent changes and regional variations in the cost of living.[43] In respect of setting the basic wage for women, Higgins J described the task to be undertaken in the following terms:

The question of the basic wage for women is much more difficult. But before dealing with it, I wish it to be understood clearly that I am not at this stage deciding for what functions (if any) in this industry a lower minimum rate should be prescribed for women than for men. As I can deal with matters in dispute only, it is obvious that I cannot award in any case more than is claimed; and in this case the claim for females is, as to many items, less than for men. For instance, the claim for a man machinist in order tailoring is £3 15s.; the claim for the female machinist is £2 10s.; the claim for a trouser hand (female) in ready-made clothing is £2. My problem now is to find, in cases where a minimum wage has under the plaint to be prescribed for an adult female, what is, the sum per week necessary to satisfy the normal needs of an average female employee, who has to support herself from her own exertions; and on the basis of the reasonably necessary requirements of a woman living in a civilized community.[44]

Justice Higgins went on to refer to, and elaborate upon, the principles he had stated in the Fruit Pickers decision as follows:

The first case in which I had to deal directly with the problem of female labour was that of the fruit pickers—the fruit pickers and packers of Mildura and Renmark. In that case I took the view that in the case of workers such as blacksmiths, as blacksmiths are usually men, the minimum rate must be a rate sufficient for a small family. Men are under an obligation —under our Statutes a legal obligation—to maintain a wife and children. But in the case of workers such as milliners, or those who trim daintily boxes for display of fruit in shop windows, the minimum rate should be that suitable for a single woman supporting herself only. It is women’s work; if the employers’ had to pay the same wages to women as to men, he would employ women for their superior deftness and delicacy of fingers. Then, in the intermediate case, where men and women are fairly in competition— such as the case of fruit pickers—where the employer would not usually discriminate because of mere sex, there should be the same minimum for women as for men. In that case, the basic wage for a man being fixed at 1s. per hour, the basic wage for a woman (in women’s peculiar work) was fixed at 9d. per hour—or three-fourths. As I explained in my judgment, the evidence was very meagre as to the cost of living for a woman in Renmark or Mildura; and the finding was tentative. I find that Mr. B. Seebohm Rowntree, in his book published last year—‘The Human Needs of Labour’—takes practically the same view, that a woman’s minimum rate in women’s appropriate employments should not be a family rate. As he says (p. 115)—‘It is normal for men to marry and to have to support families, and provision should accordingly be made for this when fixing their minimum wages. It is not normal for women to have to support dependants.’ …[45]

(underlining added)

In considering the amount of the female basic wage to be established, Higgins J took into account evidence concerning the cost of living for female workers (including as to the cost of board, lodging, clothes, amusements, church and ‘sundries’) and decisions of State tribunals on the subject. In the latter respect, he referred to a 1918 decision of the President of the Industrial Court of South Australia in the ‘printing trades case’ in which a ‘bedrock living wage for women’ of 27s. 6d. had been set, and quoted the following passage from this decision:

I refrain from giving precise details as to the way in which this amount is arrived at. There are obvious reasons for reticence on the part of a ‘mere man’ dealing with a problem so intricate and delicate.[46]

The conclusion reached by Higgins J was as follows:

The claim is for £2 per week; and Mr. Carter speaking for the union, makes out his total of necessary expenditure at £2 6s. 6d. per week. I do not think, however, that it would be just to compel employers to pay 15s. per week for clothes alone, as Mr. Carter urges. If the girls will have their finery at the sacrifice of other things more necessary, that is their business; but probably it is not fair to force the employers to pay for all that a girl may fancy as being for necessary human requirements. At the same time, we must not forget the important social function of girls’ dress as a bulwark for self-respect; and it is for women who can afford it to show the way of simplicity and good taste.
I have decided to fix the basic wage for women at 35s. per week.[47]

The above passages from the Archer decision make even clearer the gender-based assumptions upon which Higgins J proceeded in the Fruit Pickers decision, including the concept of ‘women’s work’ based on assumptions about certain female traits. The Archer decision also illustrates another way in which gender assumptions affected the fixation of award minimum wages. The making of awards in the federal industrial relations system was in this period (and, indeed, until 2006) a function of the settlement of interstate industrial disputes. The ‘ambit’ of such disputes was established by claims generated by what were male-dominated unions, and such claims often reflected the gender assumptions of the leadership of the unions involved. In the first passage from the Archer decision above, Higgins J identified that the claimant union had actually claimed lower wages for women than for men doing equivalent work. He expanded upon this when he said:

In other words, a differentiation between men’s wages and women’s wages in most tailoring work has been conceded by the very form of the claim. The territory has been abandoned to the invading army without a struggle; for it is already in that army’s possession. Let it be remembered that the differentiation is not the result of any adjudication of mine.[48]

The female basic wage set in the Archer decision was 54 per cent of the basic wage for men in the same decision. The Archer decision established the norm for women’s basic wages until World War II, with the female rate generally being set at around 54 per cent of the male basic wage for a range of occupations and industries.[49] It remained the case that adult male workers were entitled to a higher basic wage rate whether or not they were married or supporting children. The rationale for this was explained by Higgins J in the 1921 Metals decision as follows:

As matters now stand, I must follow the old lines until some course better has been devised. If some scheme for child endowment should be adopted, as suggested by Mr Rowntree and others, the basic wage payable by the employer could be reduced to meet the mere needs of the man, or the man and wife; but in the meantime I must adhere to the practice of including some rough provision for children in the fixing of the basic wage. If the basic wage were graded according to the number of children, there would be a tendency to employ men with few children or none in preference to men with many children (as in the case of ‘married couples’ caretakers, &c.).[50]

The position in relation to the fixation of margins for skill in addition to the basic wage for employees for different gender was far less transparent and consistent. Because the arbitral function of the CA Court was confined to those matters claimed which remained in dispute after conciliation, many awards were made as a result of settlements reached by the parties. In these cases, the basis for the award wage rates which resulted is usually not apparent. Most commonly, awards for particular occupations and industries developed over time through a combination of settlements and arbitrations, the complex history of which is often difficult to unravel now. The guiding principle for work performed by both men and women, as stated by Higgins J in the Fruit Pickers decision and nominally followed thereafter,[51] was that they should be awarded the same margin for skill for the same work (as well as the same basic wage). This principle, it is apparent, was established more to protect men’s employment in ‘men’s work’ than because of any notion of gender equality. However, this principle was frequently not applied in practice. An example of this is the development of what later became the Clothing Trades Award 1964[52] (Clothing Trades Award), initially established in the Archer decision. It is apparent from a 1950 decision of Conciliation Commissioner Findlay[53] concerning this award that, by the time of his decision, different margins for male and female workers performing work of the same nature and skill level had been established, since he had to consider a union claim that margins be equalised. In respect of this issue, the Commissioner said:

The tailor was the index in the male section and an index in respect of females is found in the new tailoresses classification prescribed by this award. This classification and the definition attached thereto is not objected to by the parties and arises out of evidence and inspections in respect of the work performed by employees who will appropriately be covered by this classification.

There are females working in the industry who have served the required apprenticeship in the order tailoring section and are possessed of the same high degree of skill as tailors. They are applying that high degree of skill in exactly the same manner as are tailors and are performing work identical in every regard in the making of order made coats for males but are being paid by a lesser amount of 65s. per week for the performance of such work. This lesser amount occurs by a discrepancy of 31s. per week in the marginal rate for females as compared to males; and a difference of 34s. per week in the base rate payable to adult males and to adult females.

In my opinion the rates payable to employees in this particular classification, whether males or females, should be the same. They are performing the same highly skilled work and returning to the employer by the application the same price to the customer. I am precluded from making any alteration in any rate, other than the marginal rate, therefore I cannot give effect to my conclusion, but there appear to be some grounds for fear expressed by the Union that the differential rates payable in this classification may ultimately result in the employment of females to the exclusion of males in this particular section of the industry. I intend to prescribe the same marginal rate for a tailoress, as defined, as is prescribed for a tailor and remedy to some extent the discrepancy at present occurring as between the female and her male counterpart in this section of the industry.[54]

However, it is apparent that this decision still did not resolve all the gender-based differences in margins in the Clothing Trades Award, since the issue was considered again in a decision of a Full Bench of the Australian Conciliation and Arbitration Commission (CA Commission) of 1967[55] (Clothing Trades decision). The position was described as follows:

The present award has some 223 classifications spread over 13 groups which range from order tailoring for males to making artificial flowers and brushed silk emblems. The margins clause has a separate section for each of the 13 groups, all of which contain rates of pay for both males and females. There are classifications with the same name but with different rates in the several groups. There are some classifications with the same name for which are prescribed the same total rate, that is, basic wage plus margin, for males and females. There are some classifications with the same name for which are prescribed the same margin for females as males but applied in the case of females to the female and not to the male basic wage. There are also classifications with the same name for which a different margin is prescribed for females from that prescribed for males and applied in the case of females to the female basic wage. …[56]
(underlining added)

We will return to the Clothing Trades decision. In relation to what was referred to as ‘women’s work’ or ‘work suitable for women’ — that is, predominantly female occupations or industries — the nominal approach was that minimum wage rates were set by fixing the basic wage ‘with such marginal additions as may be added having regard to all relevant considerations including the nature of the work, the skill and experience of the employee and the physical conditions under which it has to be carried out’.[57] However, notwithstanding this approach to the assessment of margins for skill was nominally the same as men, the application of gender assumptions in the fixing of marginal rates was either explicit or implicit. An example of the former concerns the fixation of rates for ‘women’s work’ in the Metal Trades Award before World War II, which was summarised in the 1945 Inquiry into Female Minimum Rates as follows:

The next award to be considered is the Metal Trades award and the industries to which it applies were prior to the outbreak of the war industries in which masculinity predominated, the employment of females being limited to work at which they were found to be adept, being work on light metals and materials requiring nimble fingers and dexterity, without calling for the skill and experience of a tradesman. They were excluded from the laborious and unskilled work of the basic wage and lower marginal classifications, their operations covering a range of work which in the case of males would include process working, third class machining and assembly and bench work of a reasonably high grade non-tradesman standard. In such circumstances their wages were fixed in 1930 at a level well above those which prevailed in industries in which femininity predominated and in which females were employed in the unskilled and lower marginal occupations.[58]

(underlining added)

The underlined part of the passage above makes it apparent that, for work in which women were predominantly employed, the CA Court treated the skills they exercised as inherent to their gender (‘found to be adept’) rather than acquired through training and experience as in the case of the tradesman, and having lesser value as a result. Notwithstanding this, the observation in the last sentence is noteworthy: female workers performing ‘women’s work’ in a mainly masculine industry were paid well above those in ‘industries in which femininity predominated’, which were regarded as being unskilled or lower-skilled.

In some awards, the skills of females performing different classifications of ‘women’s work’ were not assessed at all for the purpose of establishing differential marginal rates, but instead a flat margin (sometimes referred to as a ‘constant loading’) was applied to all female workers regardless of relative skill.[59] The application of gender assumptions may be inferred. In other awards, there was obvious gender discrimination in the fixation of margins without any apparent justification. For example, when the CA Commission made the first Shop Assistants etc. (Northern Territory) Award in 1957,[60] despite finding that ‘this field of employment … is predominantly female’,[61] the margin for female shop assistants was set at 75 per cent of that for male shop assistants without any rationale for this being provided.[62]

The socio-economic norms underpinning gender distinctions in basic wage and marginal amounts were disrupted by World War II, which saw a significant expansion in the number and proportion of women in the workforce and a concomitant need to increase wages for female workers in order to attract them into, and retain them in, wartime employment. This was reflected in decisions of the Women’s Employment Board (established pursuant to reg 5 of the National Security (Employment of Women) Regulations 1942), which awarded rates for female workers in war-related industries from 75 to 100 per cent of the male rates of pay, and in the later National Security (Female Minimum Rates) Regulations which set a wartime female rate of 75 per cent of male rates in vital industries.[63] The implications of these developments for the existing approach to the fixation of basic wage rates were first considered by a Full Court of the CA Court in the 1943 Munition Workers Case.[64] The case concerned potential industrial unrest in small arms manufacturing, where the percentage of women employed had greatly increased during the war. Such women were paid 60 per cent of the adult male rate pursuant to a 1940 agreement, and it was contended that an anomaly arose because, by decision of the Women’s Employment Board, in other areas of arms manufacturing in which women had been employed for the first time during the war, the adult female rate was (after probation) set at 90 per cent of the male rate.[65] In considering this alleged anomaly, the Full Court noted that the mandate of the Women’s Employment Board had been to set wages for women in war-related industries based upon a ‘consideration of the relative efficiency and productivity of women as compared to men workers’ — an approach which was inconsistent with the method traditionally used by industrial tribunals to assess minimum wages rates (which involved the gender assumptions earlier described).[66] The Court described this method as follows:

… It can be said that wages for both male and female adult employees have in general been assessed by adding to a foundational amount, called the basic or living wage, whatever sum has been regarded as just and proper by way of special remuneration for such matters as skill, experience, unduly irksome or difficult conditions attending the particular work in question, intermittency of employment, unavoidable losses of working time and such like incidents of the particular occupation. For the unskilled worker whose work does not involve any such considerations, the basic or living wage has been generally deemed to be the appropriate minimum. Whilst in the assessment of the added sums, usually referred to as either loadings or margins or sometimes as secondary wages, some regard has been paid to relative work-values as between workers possessing varying degrees of skill or experience or incurring varying degrees of irksomeness, difficulty, intermittency or loss of time, &c., in their employment, work-value has not been adopted as a measure in the assessment of the foundational or primary or basic wage. This has applied in the assessment of the basic or living wage ingredient of all wages whether of men or of women.[67]

The Full Court affirmed that the male basic wage had originally been conceptualised as a ‘family wage’ and said:

For present purposes it is necessary only to say that the basic wage ingredient of the wage rates determined by the Court was related, not to what has been termed the ‘economic wage’ theory, nor to the assessment of work value, but to an ethical standard designed to meet the necessities of the married worker and at least some of his dependants. It was never denied that it was more than adequate to meet the normal and reasonable requirements of an unmarried unskilled worker with no dependants to support.[68]

The Court however acknowledged that the economic circumstances of the 1930s had caused increasing attention to be paid to economic circumstances and the productive capacity of industry.[69] In relation to the setting of female wages, the Full Court said:

It is beyond question that the general rule adopted and followed by the Australian industrial authorities in the assessment of wages for adult women workers, engaged upon work suitable for women in which they cannot fairly be said to be in competition with men for employment, has been and still is to fix a foundational amount, calculated with reference to the needs of a single woman who has to pay for her board and lodging, has to maintain herself out of her earnings, but has no dependants to support; and to add to this foundational or basic amount such marginal amounts as may be appropriate in recognition of the particular skill or experience of the particular workers in question or as compensation for the particular conditions which they encounter in their occupations.[70]
(underlining added)

Having regard to these matters, the Full Court determined that the wage rates for female workers in small arms manufacture were not anomalous since they were set according to the general rules of wage assessment it had identified — rules which were inconsistent with the regulatory mandate of the Women’s Employment Board. The Full Court concluded:

... The man’s basic wage is more than sufficient for his personal needs; it purports to provide him with enough to support some family. The woman’s, on the other hand, purports to be enough for her to maintain herself only. No allowance is made for the support of any dependents. The man’s wage has been measured by this Court with reference to the dominating factor of the productive capacity of industry to sustain it and with due regard consequently to what its application in industry will mean, to the marginal structure which rises above it, and to the consequent wages which will in accordance with established rules and practice be paid to women and to minors.

In the course of the hearing the Chief Judge drew attention to the necessity which would occur, if women’s rates were to be assessed on the basis that relative efficiency and productivity (as between men and women) were to constitute the dominant factor, for a review of the principles in accordance with which the basic wage has been determined. That this necessity would arise must be apparent. For the basic wage for adult males has been fixed at as high an amount as the Court has thought practicable in all the circumstances of the case, including the circumstance of the existing proportionate levels of wages for women and minors. The share of men workers in the fruits of production will need to be reduced if women are to participate therein on an equal footing, or on a better footing generally than that to which they have hitherto been held to be entitled.

It is desirable that we should indicate as clearly as possible the effect of the conclusions to which the review of the principles of wage assessment we have made has led us. It is that, so long as the foundational or basic wage for women is assessed according to a standard different from that which is the basis of the foundational or basic wage—a family wage—for men, the Court will not, in the exercise of its function of adjudicating between opposing interests, raise the general level of women’s minimum wages in occupations suitable for women, and in which they do not encounter considerable competition from men, according to a comparison of their efficiency and productivity with the efficiency and productivity of men doing substantially similar work. To do so would at once depress the relative standard of living of the family as a group, and of its individual members, as compared with that of the typical single woman wage-earner.[71]

(underlining added)

This issue was revisited by a Full Court in the Basic Wage Inquiry 1949–1950,[72] in which unions claimed (among other things) a uniform basic wage for all adults irrespective of gender, and a different result prevailed. By majority (Foster and Dunphy JJ, Kelly J dissenting), the CA Court determined that it should establish a female basic wage set at 75 per cent of the male basic wage.[73] The Court rejected the claim for a uniform basic wage, and the reasons for this rejection identified by Foster J made explicit the gender assumptions involved:

(a) the male basic wage was a social wage for a man, his wife and family;
(b) no claim was made for a unit wage upon which equality of wages could be based. As this might have resulted in a lower male basic wage the Union’s failure is easily understood, but this approach might furnish an acceptable and perhaps desirable basis for equality of reward but it means procedures which would need the aid of Parliament and is beyond the power of the Court;
(c) ‘equal pay’ based on the male basic wage would put intolerable strain on the economy;
(d) it was socially preferable to provide a higher wage for the male because of his social obligations to fiancee, wife and family:
(e) while single females were said to be anxious to receive the higher wage their interest changed on their marriage which occurred in Australia at the average age of about 25. As married women they became concerned that their husbands should bring home the largest possible pay envelope;
(f) the productivity, efficiency and the needs and the responsibilities etc. of females were substantially less than that of males in this community; and
(g) lastly the re-distribution of the wage fund so that young unmarried females would receive very substantially increased spending power would disturb the economy in a manner certainly to the disadvantage of the married basic wage worker and his wife and family and probably of the whole community.[74]

Justice Foster noted that the demand for female labour as a result of the war had led to higher actual rates as well as higher award rates, and further noted that the decisions of the Women’s Employment Board had generally set female rates at about 90 per cent of the comparable male rates and that the National Security (Female Minimum Rates) Regulations which set a female rate of 75 per cent in vital industries.[75] The result was, he said:

These rates have spread widely through industry and though both the Women’s Employment Board and the vital industry rates have ceased to be binding and effective, the evidence shows that ‘the relatively great shortage of male labor has placed female workers in a uniquely favourable situation in the labor market,’ … so that their actual rates have not fallen back to the award rates. I believe that it would be hard to find today any adult female in Australia working on the 54 per cent, level.[76]

Justice Foster concluded that, since the evidence was that industry was sustaining the higher actual rates for female workers, ‘then it would be safe for the Court to prescribe a sum as a basic wage that would give legal sanction to existing actual rates’ since this would ‘enable the higher standard of living which since the war the community has become accustomed to for females to be protected by an award’.[77] This caused him to fix the female basic wage at 75 per cent of the male basic wage.[78] Justice Dunphy came to the same result, albeit for the scant reason that ‘there should be an upgrading’.[79] The outcome they jointly reached involved a partial departure from the approach of setting the female basic wage by an assessment of the needs of a single adult female with no dependants, and appears to have represented a pragmatic assessment of the highest amount which the economy could sustain.

In the 1967 Clothing Trades decision,[80] as stated above, a Full Bench of the CA Commission addressed the issue of gender inequalities in marginal rates in the Clothing Trades Award. The Full Bench made the following statement of principle:

There is no dispute between the parties that persons performing the same work should be paid the same margins for skill irrespective of sex. We endorse this agreement as to principle. It seems to us to be industrially unjust that women performing the same work as men should be paid a lower margin. This principle can be stated simply but its application presents at least two difficulties in any industry which has an existing involved wage structure and a long history of different margins for men and women for what appears to be the same work.

The first difficulty is to be sure that the work done is the same. If it is not, then the general principle stated above does not apply because the value of the work done by the woman may be different from the value of the work done by the man. If the job title found in the award is the same for both sexes then prima facie the margin may be the same. But this can be no more than a prima facie position, as our examination of this industry and this award has disclosed. For instance, both men and women are described as machinists in a number of different sections of the industry. In fact there are very few men employed as machinists, the great bulk of whom are women. The work done by most of the few men we saw working as machinists comprised many more different operations than the work done by most of the women whom we saw working as machinists. The work done by women as machinists also varied in different sections of the industry. It does not follow, therefore, that the mere similarity of description is sufficient to require the automatic application of the principle of equal margins.

As to the second difficulty, where in the past higher margins have been awarded to men than to women for work which may appear similar there is the problem whether the margin for them should be automatically preferred to the margin for women as a proper assessment of the value of the work being done. If both the male margin and the female margin have as in this case been the subject both of agreement and of arbitration over many years there can be in our view no presumption that the male margin is any better assessment of the work value than is the female margin. If in fact the work is the same but the female margin is less, then it must be a matter of judgment to decide whether or not to apply the existing female margin, the existing male margin, or some other margin.[81]

Three matters may be noted about the above statement of principles. First, the statement of principle in the first paragraph was the same as that articulated by Higgins J in the Fruit Pickers decision some 55 years before with respect to work performed by both men and women, with its restatement being necessary because it had not in fact been applied to a wide extent. Second, as in the Fruit Pickers decision, the principles stated above were only concerned with work performed by both male and female workers, and did not address the margins set for predominantly female work or ‘women’s work’ on any basis. Third, the rectification process contemplated still approached comparisons of work for the purpose of assessing whether the work was the same on a gendered rather than gender-neutral basis. The result was that the new Clothing Trades Award rates of pay established by the Full Bench retained separate classifications and marginal amounts for male and female workers, with a number of female classifications having no male equivalent because the work of the classification was apparently only performed by female workers.

The principles developed in the Clothing Trades decision were not applied more widely to marginal amounts set in other awards because, later in the same year, the system of wage-fixing based on the dual concept of a basic wage to meet employee needs and (where applicable) margins based on skill (or work value) was formally brought to an end. This system had gradually been breaking down in the 20-year period following World War II because economic considerations such as inflation and national productivity became the primary determinant in adjusting both basic wages and margins, thus diminishing the rationale for the distinction between them. In addition, the practice developed of considering and adjusting both basic wages and margins conjointly in the same proceedings, and uniformly on a national basis, culminating in the National Wage Case procedure developed in the mid-1960s.[82] Finally, as a result of legislative change, the adult male minimum wage was introduced in 1966, rendering largely redundant the concept of the basic wage. In the National Wage Cases 1967,[83] the CA Commission determined to abandon the basic wage/margin concept altogether and express all award wages as a single ‘total wage’. The Commission described the new system in the following terms:

This new approach will ensure that under our awards wage and salary earners will annually have applied to them the increases for economic reasons which it is common ground they may normally expect and the increases will be applied to the whole wage instead of only to part of the wage as at present. We are sure that in work-value cases the fixation of total wages will bring to award-making both greater flexibility and greater reality. The minimum wage will give better protection to those whose needs are greatest, namely, those whose take-home pay would otherwise be below the standard assessed by the Commission and will give the Commission more flexibility in assisting them because we will have more scope to give them special consideration.[84]

The introduction of the total wage concept meant that, in awards containing lower female basic wages, those lower wages were incorporated into a separate, and lower, total wage for females.[85] The 25 per cent gender differential established by the Basic Wage Inquiry 1949–1950, thus migrated into the new total wage system (as did any gender differences in marginal amounts). However, the abandonment of the concept of the basic wage assessed on the basis of needs fatally undermined the original rationale for lower female wages. This was implicitly recognised by the Full Bench in the National Wage Cases 1967 when it said:

The community is faced with economic industrial and social challenges arising from the history of female wage fixation. Our adoption of the concept of a total wage has allowed us to take an important step forward in regard to female wages. We have on this occasion deliberately awarded the same increase to adult females and adult males. The recent Clothing Trades decision affirmed the concept of equal margins for adult males and females doing equal work. The extension of that concept to the total wage would involve economic and industrial sequels and calls for thorough investigation and debate in which a policy of gradual implementation could be considered… We invite the unions, the employers and the Commonwealth to give careful study to these questions with the knowledge that the Commission is available to assist by conciliation or arbitration in the resolution of the problems.[86]

(citations omitted)

2.3 The unfinished business of the Equal Pay Cases

The foreshadowed ‘resolution of the problems’ occurred in the 1969 Equal Pay Case,[87] which concerned union applications to vary the Meat Industry Award and certain Commonwealth Public Service determinations by providing for increases in pay ‘which would eliminate the difference in current rates represented by the difference between the former male and female basic wages’.[88] The premise of the unions’ case was as follows:

It was sought that the increases be applied to all females irrespective of the work which they performed. Mr Hawke, who was the principal union advocate in all cases, explained that it was part of the policy of the trade union movement that there should be equal pay for equal work, that to accede to the present claims would be an overwhelmingly important step towards the achievement of equal pay and that any anomalies which remained after the claims had been granted could be dealt with by individual Commissioners dealing with individual awards and by the Public Service Arbitrator with individual determinations. This case, which all unions asked us to treat as a test case, would provide the foundation for ultimate complete equality of wages.[89]

Importantly, the unions’ case focused on the vitiation of the historic rationale for the distinction between male and female basic wages:

[Mr Hawke] related the history of wage fixation in this country to the greater significance which women now have in the workforce. He pointed to the fact that in origin the basic wages for males and subsequently for females were on the one hand for a married man with a family and on the other for an unmarried female. This concept of differing basic wages originated some 60 years ago when both the social attitudes towards women and their contribution to the economy were much different from now. He submitted that the concept of needs which had been important in these early years had become blurred, had first been disregarded in 1931 when wages were reduced for economic reasons and subsequently in post-war years had disappeared from the fixation of basic wages altogether. Once the needs basis of the basic wage had gone, he argued, the social desirability for maintaining the difference between male and female basic wages disappeared, and when the basic wage itself was abolished in 1967 the argument in favour of the differential between males and females became even more tenuous. He said that the difference in their wages is a relic of assumptions and conceptions which existed at the beginning of this century. Although the basic wage was abolished in 1967 the differential between the male and female basic wages which pre-existed could still be ascertained and until it was removed there would be no firm foundation for establishing the principle of equal pay for equal work.[90]

In its consideration of the claims, the Commission described the history of the fixation of the male and female basic wages in a way largely consistent with the unions’ submissions. However, it went further and also identified anomalies in the way in which margins (or ‘secondary wages’) for females had been fixed:

An examination of the history of the secondary wage for females produces an even more confused result. In some instances females doing the same work as males received the same secondary wage as males and in the Commonwealth Public Service this is normal. In some instances in private industry they did not. In other cases, such as the Metal Trades award, they received what might be described as a composite margin to cover a range of classifications. So that when in 1967 the Commission introduced total wages by combining the basic wage and margins the resultant money differences between the wages of males and females were due to a variety of reasons but were referable, at least in part, to the old basic wage differences. The pattern is even more confused when to this already complex situation is added the fact that in a number of awards females have for many years received the full male wage as the result of attempts to prevent what was regarded as unfair competition with men.

The most we are able to say is that there is still a relic of the concept of the family wage in most of the present total wages. It is an amount which has been arrived at for varying reasons and in varying ways, but we consider it no longer has the significance, conceptual or economic, which it once had and is no real bar to a consideration of equal pay for equal work.[91]

After considering the positions of the Commonwealth and State governments (including State legislation concerning equal pay), relevant conventions and recommendations of the International Labour Organisation and the economic effect of any decision to be made, the Commission accepted that the concept of ‘equal pay for equal work’ but identified difficulties in its implementation:

…Though we realise that the various United Nations and I.L.O. declarations and conventions must carry significant weight in a general way, we must consider how, if they are to be applied, they can be fitted into our community. We have certain values which have in part been created by our own institutions including a complex wage system. This Commission cannot escape its own history, including the history of the Court, even if it wanted to. If the arbitration system had in the past not concerned itself with a needs or family wage but had fixed a rate for a job, irrespective of the sex, marital or parental status of the worker, the probabilities are that the rate for the job would lie somewhere between the current male rate and the current female rate. This is speculation on our part but it does highlight the difficulties of finding a satisfactory solution to the issues now before us. We consider it preferable to start from a decision on principle in this case and let that principle be worked through the system.

If there were no history of wage fixation in this country and if we were starting afresh we might well not approach male and female rates as they were approached in the beginnings of the Federal arbitration system. This is in no sense intended as a criticism of the eminent Judges of the past but is merely a reflection of the fact that in our view changes have occurred in social thinking…[92]

The Commission ultimately determined to implement the principle of equal pay for equal work by establishing nine principles for its implementation by application on an award-by-award basis. The most significant principles were:

(1) the male and female employees concerned who must be adults, should be working under the terms of the same determination or award;
(2) it should be established that certain work covered by the determination or award is performed by both males and females;
(3)the work performed by both the males and the females under such determination or award should be of the same or a like nature and of equal value, but mere similarity in name of male and female classifications may not be enough to establish that males and females do work of a like nature;
. . .
(5) consideration should be restricted to work performed under the determination or award concerned;
. . .
(9) notwithstanding the above, equal pay should not be provided by application of the above principles where the work in question is essentially or usually performed by females but is work upon which male employees may also be employed.[93]

Where it was determined in the case of an award that equal pay should be granted, the Commission stated that implementation should be staggered over a specified time period ending on 1 January 1972.[94]

Whilst undoubtedly of historic importance, the outcome of the 1969 Equal Pay Case was subject to significant limitations. The principles it established were carefully confined to gender differentials in pay rates within awards only for work of the same or like nature and of equal value where that work was performed by both males and females. It did not seek to address or remedy gender differentials in pay rates between different awards, or in awards where the work was predominantly performed by females. Moreover, as the Commission stated, the principles were not concerned with historical gender disparities in margins:

As we have already indicated the increases in wages of female employees which were sought in the present cases were specifically limited by the applicants to the amounts which were equivalent to differentials between the male and female basic wages when they were incorporated in the total wages in July 1967. The applications did not extend to any differences arising from the ‘marginal’ content of the total wages. Accordingly, any orders which might be made in these proceedings must be limited to the ‘basic wage’ differentials.[95]

[117] Ibid at 188.

[118] Ibid at 191.

[119] [2018] FWCFB 7621, 284 IR 121 at [150]–[156].

[120] [1988] AIRC 595, 25 IR 170, Print H4000.

[121] Ibid at 175.

[122] [1989] AIRC 345, 27 IR 196, Print H8200.

[123] Ibid at 199–200.

[124] Ibid at 200–201.

[125] [1989] AIRC 525, 30 IR 81, Print H9100.

[126] Ibid at 93.

[127] Ibid at 94.

[128] AW819234, Print F8925.

[129] [1990] AIRC 239, Print J1935.

[130] [1991] AIRC 281, 36 IR 120, Print J7400.

[131] Ibid at 183.

[132] [1998] AIRC 1413, 123 IR 240, Print Q7661.

[133] Ibid at 256.

[134] [2005] AIRC 28, PR954938.

[135] Ibid at [155].

[136] [2022] FWCFB 200, 319 IR 127 at [179].

[137] [1989] AIRC 525, 30 IR 81 at 94.

[138] Exhibit ANMF 2 (expert report of Associate Professor Meg Smith and Dr Michael Lyons, as amended on 2 May 2022) at [92].

[139] [1921] CthArbRp 57, 15 CAR 297.

[140] Metal Trades Employers’ Association & Ors re Metal Trades Award, 1952 [1967] CthArbRp 1144, 121 CAR 587.

[141] Ibid at 677.

[142] Ibid.

[143] Re Vehicle Industry Award, 1953 [1968] CthArbRp 471, 124 CAR 295.

[144] Ibid at 308.

[145] Laura Bennett, ‘Equal Pay and Comparable Worth and the Australian Conciliation and Arbitration Commission’ (1988) 30(4) Journal of Industrial Relations 533 (‘Equal Pay and Comparable Worth’).

[146] Ibid at 536–537.

[147] [1967] CthArbRp 1144; (1967) 121 CAR 587 at 888 (Winter C).

[148] Equal Pay and Comparable Worth (n 145) at 538.

[149] [1967] CthArbRp 1144; (1967) 121 CAR 587 at 888 (Winter C).

[150] Equal Pay and Comparable Worth (n 145) at 539.

[151] [2005] AIRC 28, PR954938.

[152] Ibid at [366].

[153] AW789529, Print Q2527.

[154] [2005] AIRC 28, PR954938.

[155] Ibid.

[156] [2018] FWCFB 177, 274 IR 1.

[157] Ibid at [35].

[158] [2018] FWCFB 7621, 284 IR 121.

[159] [2021] FWCFB 2051.

[160] [2022] FWCFB 200, 319 IR 127.

[161] [2023] FWCFB 3500 at [132]–[136].

[162] Ibid.

[163] Ibid at [136].

[164] [2018] FWCFB 177 at [42].

[165] AW783872.

[166] HSU v Strathgordon Medical Centre & Ors [1992] AIRC 1395, Print K5884.

[167] Australian Liquor, Hospitality and Miscellaneous Workers Union v Aged Care Services Association of NSW & Ors [1993] AIRC 926, Print K8752. This dispute finding was varied on 11 October 1993: [1993] AIRC 1198, Print K9212.

[168] HSU v Strathgordon Medical Centre & Ors and Adahai Nursing Home & Ors [1993] AIRC 1573, Print L0442.

[169] Print L0674.

[170] AW783559, [1993] AIRC 1711, Print L0831.

[171] [1995] AIRC 1737, Print M4442.

[172] Print M6132.

[173] Print Q2510.

[174] Print Q2805.

[175] Print R0710.

[176] National Pay Equity Coalition, Women’s Electoral Lobby and National Foundation for Australian Women joint submissions, May 2008 at 7.

[177] Ibid at 8.

[178] Ibid at 14, but see generally 12–14.

[179] See [2009] AIRCFB 50 at [75]–[76].

[180] [2009] AIRCFB 345.

[181] [2009] AIRCFB 865.

[182] See [1949] CthArbRp 459, 65 CAR 212; (1987) 20 IR 420 at 429.

[183] See [1958] CthArbRp 413, 90 CAR 360 at 362.

[184] Hospital Employees Federation of Australasia v The Canberra Community Hospital & Anor [1958] CthArbRp 413, 90 CAR 360.

[185] Ibid at 363.

[186] Ibid.

[187] [1966] CthArbRp 272, 114 CAR 422.

[188] Ibid at 424–425.

[189] The Canberra Mothercraft Society (Nursing Staff) Award 1964.

[190] [1970] CthArbRp 444, 132 CAR 459.

[191] Ibid at 467.

[192] Ibid at 468.

[193] Ibid.

[194] Ibid at 471.

[195] Ibid.

[196] Ibid.

[197] [1976] CthArbRp 1457, 177 CAR 1141.

[198] [1982] CthArbRp 24, 269 CAR 66.

[199] [1983] CthArbRp 373, 290 CAR 324, 5 IR 389.

[200] [1986] CthArbRp 64, 300 CAR 185, 13 IR 108.

[201] (1987) 20 IR 420 at 424.

[202] Ibid at 429.

[203] Ibid at 432.

[204] Ibid 446–447.

[205] [1989] AIRC 1012, 32 IR 170 at 171.

[206] Ibid at 172.

[207] [1990] AIRC 49, Print J1288.

[208] [1990] AIRC 862, Print J4011.

[209] [1991] AIRC 630, Print J8402.

[210] [1990] AIRC 862, Print J4011.

[211] [1992] AIRC 680, Print K3662.

[212] [1998] AIRC 1413, 123 IR 240, Print Q7661.

[213] Ibid at 7.

[214] Ibid at 20.

[215] [2009] AIRCFB 50 at [79].

[216] [2022] FWCFB 200, 319 IR 127.

[217] [1998] AIRC 1413, 123 IR 240, Print Q7661.

[218] Re Australian Liquor, Hospitality and Miscellaneous Workers Union[2005] AIRC 28, PR954938.

[219] [2022] FWCFB 200, 319 IR 127

[220] Ibid at [56], [968].

[221] Ibid at [973].

[222] Exhibit HSU 34 (witness statement and report of Professor Susan Kurrle, 26 April 2021).

[223] Exhibit JE 3 (witness statement of Mark Sewell, 3 March 2022).

[224] Transcript, 12 May 2022 (cross-examination of Mark Sewell) at PNs 12900–12901.

[225] Exhibit JE 21 (witness statement of Johannes Brockhaus, 31 Oct 2023) at [17].

[226] Exhibit ANMF 28 (report of Associate Professor Noleen Bennett, ‘Independent Infection Prevention and Control Expert Opinion’, filed 15 September 2023).

[227] Ibid at [73].

[228] Exhibit JE 21 (third witness statement of Johannes Brockhaus, 31 October 2023).

[229] Exhibit JE 22 (witness statement of Chris Mamarelis, 1 November 2023).

[230] Exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023).

[231] Exhibit HSU 101 (supplementary witness statement of Virginia Ellis, 20 September 2023).

[232] Exhibit HSU 85 (third witness statement of Catherine Evans, 19 September 2023).

[233] Exhibit HSU 90 (witness statement of Susan Digney, 15 September 2023).

[234] Exhibit HSU 88 (witness statement of Paul Jones, 20 September 2023).

[235] Exhibit ANMF 33 (witness statement of Heila Brooks, 15 September 2023).

[236] Exhibit ANMF 31 (further witness statement of Stephen Voogt, 15 September 2023).

[237] Exhibit ANMF 30 (second witness statement of Hazel Bucher, 15 September 2023).

[238] ANMF 32 (witness statement of Joanne Purdue with annexures JP-1 and JP-2, 15 September 2023).

[239] [2022] FWCFB 200, 319 IR 127 at [216].

[240] Exhibit HSU 94 (witness statement of Christoper Friend with annexures CF1 to CF3, 22 September 2023).

[241] [2022] FWCFB 200, 319 IR 127 at [890(1)].

[242] Ibid at [938].

[243] Exhibit ANMF 1 (witness statement and expert report of Anne Junor, 28 October 2021, as amended on 29 April 2022 and 2 May 2022).

[244] [2022] FWCFB 200, 319 IR 127 at [848].

[245] Ibid at [551].

[246] Ibid at [685]–[694].

[247] [2011] FWAFB 2700.

[248] [2009] QIRComm 33.

[249] [2011] FWAFB 2700.

[250] Ibid.

[251] Ibid at [239].

[252] Ibid at [285].

[253] Ibid.

[254] Ibid at [292].

[255] Ibid at [291].

[256] [2012] FWAFB 1000.

[257] Ibid at [58].

[258] Ibid.

[259] Ibid at [67], [69] and [73].

[260] Ibid at [73].

[261] PR525485; see [2012] FWAFB 5184 at [5].

[262] [2021] FWCFB 2383 at [1235]–[1260].

[263] Ibid at [1256]–[1257].

[264] [2023] FWCFB 3500.

[265] [2022] FWCFB 200, 319 IR 127.

[266] [2022] FWCFB 200, 319 IR 127.

[267] Ibid.

[268] Ibid.

[269] Exhibit HSU 102 (supplementary witness statement of Professor Sara Charlesworth and Professor Gabrielle Meagher with annexure ‘Joint 2023 Supplementary Report’, 30 October 2023).

[270] Ibid.

[271] ANMF submissions, 7 March 2023 at [39]–[40].

[272] Exhibit ANMF 37 (further witness statement of Annie Butler with annexures AB 9 and AB 10, 1 November 2023) at [71]–[74].

[273] Ibid at [48].

[274] [2022] FWCFB 200, 319 IR 127.

[275] [2021] FWCFB 2051 at [653]–[657].

[276] [2022] FWCFB 200, 319 IR 127.

[277] Ibid.

[278] [2021] FWCFB 2051.

[279] Ibid at [647].

[280] [2022] FWCFB 200, 319 IR 127.

[281] [2023] FWCFB 93.

[282] Exhibit A (spreadsheet, ‘ABS Census 2021 – Aged care industry – Occupation analysis’, sent to parties 14 December 2023).

[283] Joint Employers submissions (wage adjustment issues), 1 November 2023 at [16].

[284] [2022] FWCFB 200, 319 IR 127 at [935].

[285] Ibid at [931].

[286] [2023] FWCFB 40 at [16]–[17].

[287] [2022] FWCFB 200, 319 IR 127 at [49]; see also [900] and [922].

[288] Ibid at [899]–[901].

[289] Ibid at [557]–[739].

[290] Ibid at [739].

[291] Ibid attachment C; see also [558]–[559].

[292] Transcript, 1 September 2022 at PNs 15661–15662.

[293] [2022] FWCFB 200, 319 IR 127 at [546].

[294] Exhibits HSU 55 (witness statement of Peter Doherty, and HSU 79 (witness statement of Lorri Seifert, 6 October 2021).

[295] Exhibit HSU 51 (witness statement of Jennifer Wood, undated, filed 20 May 2022).

[296] Exhibits HSU 39 (witness statement of Susan Digney, 27 October 2021) and HSU 90 (witness statement of Susan Digney, 15 September 2023); exhibits HSU 56 (witness statement of Catherine Evans, 26 October 2021), HSU 57 (witness statement in reply of Catherine Evans, 20 April 2022) and HSU 75 (third witness statement of Catherine Evans, 19 September 2023); exhibit HSU 76 (witness statement of Susanne Wagner, 28 October 2021).

[297] HSU submissions, 22 September 2023 at [8].

[298] [2022] FWCFB 200, 319 IR 127 at [846]–[848].

[299] Report to the Full Bench (O'Neill C, as she then was), 20 June 2022 (‘Lay Witness Report’) at [104].

[300] Ibid at [184],

[301] Exhibit HSU 20 (witness statement of Pamela Little, 30 March 2021) at [28(d)].

[302] Exhibit HSU 53 (witness statement of Lynette Flegg, 30 March 2021) at [18(c)]; exhibit HSU 63 (reply statement of Charlene Glass, 12 April 2022) at [13(g)].

[303] Exhibit HSU 18 (witness statement of Fiona Gauci, 29 March 2021) at [33(v)]; exhibit HSU 20 (witness statement of Pamela Little, 30 March 2021) at [28(d)]; exhibit HSU 65 (witness statement of Kathleen Sweeney, 1 April 2021) at [24].

[304] Exhibit HSU 53 (witness statement of Lynette Flegg, 30 March 2021) at [18(h)].

[305] Exhibit HSU 96 (witness statement of Catherine Watson, 21 September 2023) at [57].

[306] Lay Witness Report at [202].

[307] Transcript, 29 April 2022 (cross-examination of Mark Castieau) at PNs 1146–1156.

[308] Exhibit HSU 7 (reply witness statement of Mark Castieau, 20 April 2022) at [29]; see also exhibit HSU 22 (witness statement of Carol Austen, 29 March 2021) at [18(e)], [18(w)] and [27]–[36].

[309] Exhibit JE 4 (witness statement of Kim Bradshaw, 4 March 2022) at [86].

[310] Exhibit HSU 6 (witness statement of Mark Castieau, 29 March 2021) at [58].

[311] Exhibit UWU 30 (witness statement of Heather Pumpa, 15 September 2023) at [25]–[36].

[312] Exhibit HSU 6 (witness statement of Mark Castieau, 29 March 2021) at [32]; exhibit HSU 22 (witness statement of Carol Austen, 29 March 2021) at [18(c)] and [18(w)].

[313] Exhibit UWU 10 (witness statement of Ross Heyen, 31 March 2021) at [12]; exhibit HSU 82 (witness statement of Tracy Roberts, 23 March 2021) at [34]–[36].

[314] Exhibit HSU 89 (witness statement of Rhonda Jones, 20 September 2023) at [21].

[315] Lay Witness Report at [222]–[224].

[316] See, e.g. exhibit HSU 98 (witness statement of Carina Moll, 21 September 2023) at [45].

[317] Lay Witness Report at [234].

[318] Exhibit UWU 7 (witness statement of Jane Wahl, 21 April 2022) at [13]–[14]; exhibit HSU 75 (witness statement of Kevin Mills, 30 March 2021) at [24] and [27]; Joint Employers submissions (wage adjustment issues), 1 November 2023 at [19(a)].

[319] Exhibit HSU 77 (witness statement of Eugene Basciuk, 28 May 2022) at [16]–[31], [51] and [56]–[57].

[320] Exhibit UWU 10 (witness statement of Ross Heyen, 31 March 2021) at [33]–[34]; exhibit HSU 82 (witness statement of Tracy Roberts, 23 March 2021) at [31]–[50].

[321] Exhibit HSU 70 (witness statement of Anita Field, 30 March 2021) at [29(a)]–[29(e)].

[322] Exhibit HSU 96 (witness statement of Catherine Watson, 21 September 2023) at [74].

[323] Ibid at [14] and [74]; exhibit HSU 62 (witness statement of Charlene Glass, 29 March 2021) at [2] and exhibit HSU 63 (reply witness statement of Charlene Glass, 12 April 2022) at [14] and [74]–[76]; exhibit HSU 82 (witness statement of Tracy Roberts, 23 March 2021) at [11], [27] and [29].

[324] See, e.g. exhibit HSU 96 (witness statement of Catherine Watson, 21 September 2023) at [14], [68]–[75].

[325] Exhibit HSU 22 (witness statement of Carol Austen) at [8].

[326] See Carpenter v Corona Manufacturing Pty Ltd[2002] AIRC 1562, (2002) 122 IR 387 at [9].

[327] [2022] FWCFB 200, 319 IR 127 at [15] and [933].

[328] Exhibits HSU 56 (witness statement of Catherine Evans, 26 October 2021), HSU 57 (witness statement in reply of Catherine Evans, 20 April 2022) and HSU 75 (third witness statement of Catherine Evans, 19 September 2023); exhibit HSU 76 (witness statement of Susanne Wagner, 28 October 2021).

[329] Exhibit HSU 51 (witness statement of Jennifer Wood, undated, filed 20 May 2022) at [46]–[48].

[330] Exhibit HSU 20 (witness statement of Pamela Little, 30 March 2021) at [21]–[23]; exhibit HSU 75 (witness statement of Kevin Mills, 30 March 2021) at [9]–[10]; exhibit UWU 7 (witness statement of Jane Wahl, 21 April 2022) at [22]; exhibit UWU 10 (witness statement of Ross Heyen, 31 March 2021) at [8]; ]; exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [13(c)]; exhibit JE 21 (witness statement of Johannes Brockhaus, 31 Oct 2023) at [16]–[22]; exhibit JE 22 (witness statement of Chris Mamarelis, 1 November 2023) at [22]–[27].

[331] Exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [13(c)(i)]; exhibit JE 22 (witness statement of Chris Mamarelis, 1 November 2023) at [26].

[332] Exhibit HSU 96 (witness statement of Catherine Watson, 21 September 2023) at [57] and [98]–[100].

[333] Exhibit HSU 89 (witness statement of Rhonda Jones, 20 September 2023) at [37]–[41].

[334] Exhibit HSU 98 (witness statement of Carina Moll, 21 September 2023) at [45]–[46].

[335] Ibid at [40] and [47(a)].

[336] Ibid at [47(c)]–[47(e)].

[337] ‘Quality Standards’, Aged Care Quality and Safety Commission (Web Page) < Exhibit HSU 96 (witness statement of Catherine Watson, 21 September 2023) at [15].

[339] Exhibit HSU 97 (witness statement of Fleur Collins, 22 September 2023) at [32]–[33]; transcript, 4 December 2023 at PNs 801–816, 843.

[340] Exhibit HSU 99 (witness statement of Michelle Giaquinto, 21 September 2023) at [13]; transcript, 4 December 2023 at PNs 1002–1013.

[341] Transcript, 5 December 2023 at PNs 1108–1109.

[342] Exhibit UWU 26 (witness statement of Jessica Hood, 28 November 2023) at [46]; transcript, 5 December 2023 at PNs 1389–1400.

[343] Exhibit UWU 27 (witness statement of Julie Holmes, undated, filed 15 September 2023) at [71]; transcript, 5 December 2023 at PNs 1604–1610.

[344] Exhibit UWU 29 (witness statement of Bianca Wren, 15 September 2023) at [21]–[23] and annexure BW-2; transcript, 6 December 2023 at PNs 2783–2788.

[345] Exhibit UWU 30 (witness statement of Heather Pumpa, 15 September 2023) at [106], [124] and [138]; transcript, 6 December 2023 at PNs 2951–2966.

[346] Exhibit JE 22 (witness statement of Chris Mamarelis, 1 November 2023) at [22]–[27] and annexure CM-1; transcript, 8 December 2023 at PNs 4452–4469.

[347] [2022] FWCFB 200, 319 IR 127 at [602]–[612] and [739].

[348] Exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [13].

[349] Exhibit JE 22 (witness statement of Chris Mamarelis, 1 November 2023) at [22]–[27] and annexure CM-1.

[350] Exhibit ANMF 8 (witness statement of Lisa Maree Bayram, 29 October 2021) at [65]; transcript, 6 May 2022 (cross-examination of Lisa Maree Bayram), PNs 8148–8158; exhibit JE 6 (witness statement of Emma Brown, 2 March 2022) at [35]–[39].

[351] Exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [39].

[352] Exhibit JE 21 (witness statement of Johannes Brockhaus, 31 October 2023) at [17]; exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [13].

[353] Exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [34].

[354] Exhibit JE 6 (witness statement of Emma Brown, 2 March 2022) at [78(b)].

[355] Exhibit JE 21 (witness statement of Johannes Brockhaus, 31 October 2023) at [44].

[356] Exhibit HSU 77 (witness statement of Eugene Basciuk, 28 May 2022) at [44].

[357] Exhibit HSU 53 (witness statement of Lynette Flegg, 30 March 2021) at [26]; transcript, 5 May 2022 (cross-examination of Lynette Flegg) at PNs 5939–5945.

[358] Exhibit UWU 7 (witness statement of Jane Wahl, 21 April 2022) at [36].

[359] Exhibit HSU 96 (witness statement of Catherine Watson, 21 September 2023) at [29].

[360] Exhibit A (spreadsheet, ‘ABS Census 2021 – Aged care industry – Occupation analysis’, sent to parties 14 December 2023).

[361] Exhibit HSU 6 (witness statement of Mark Castieau, 29 March 2021) at [77]; transcript, 29 April 2022 (cross-examination of Mark Castieau) at PNs 1131–1136.

[362] Exhibit HSU 95 (witness statement of Alison Guevara, 21 September 2023) at [71].

[363] Ibid at [72].

[364] Exhibit UWU 30 (witness statement of Heather Pumpa, 15 September 2023) at [25]–[36].

[365] Exhibit HSU 22 (witness statement of Carol Austen, 29 March 2021) at [29]–[36].

[366] Exhibit UWU 24 (witness statement of Emily Lipps, 14 September 2023) at [19]; exhibit UWU 30 (witness statement of Heather Pumpa, 15 September 2023) at [43]–[46].

[367] Exhibit UWU 30 (witness statement of Heather Pumpa, 15 September 2023) at [46].

[368] Exhibit UWU 10 (witness statement of Ross Heyen, 31 March 2021) at [12]–[13].

[369] Transcript, 7 December 2023 (cross-examination of Louanne Riboldi) at PN 3472.

[370] Exhibit HSU 89 (witness statement of Rhonda Jones, 20 September 2023) at [30].

[371] Exhibit JE 8 (witness statement of Johannes Brockhaus, 3 March 2022) at [136].

[372] Ibid at [132]–[134].

[373] Exhibit JE 4 (witness statement of Kim Bradshaw, 4 March 2022) at [118]; exhibit JE 8 (witness statement of Johannes Brockhaus, 3 March 2022) at [129].

[374] Exhibit JE 8 (witness statement of Johannes Brockhaus, 3 March 2022) at [129].

[375] Exhibit UWU 22 (witness statement of Mitchell Wood, 27 November 2023) at [27].

[376] Exhibit HSU 84 (witness statement of Carolyn Moorfield, 19 September 2023) at [49].

[377] Exhibit HSU 92 (witness statement of Teresa Laidlaw, 14 September 2023) at [98]–[100].

[378] [2022] FWCFB 200, 319 IR 127 at [673]–[684] and [739].

[379] Exhibit HSU 73 (witness statement of Kathleen Eagar, 29 March 2021) annexure KE-1 at 12.

[380] See, e.g. Catherine Watson’s evidence that if she notices a resident who ‘seems a bit off’, she reports this to the (direct) care employees: exhibit HSU 96 at [76]; see also evidence of Mark Castieau and Carol Austen, above n 312.

[381] Joint Employers submissions (wage adjustment issues), 1 November 2023 at [54].

[382] Exhibit JE 21 (witness statement of Johannes Brockhaus, 31 October 2023) at [33].

[383] Exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [33]–[37].

[384] Exhibit JE 6 (witness statement of Emma Brown, 2 March 2022) at [79] and annexure EB-12, exhibit JE 21 (witness statement of Johannes Brockhaus, 31 October 2023) at [34]–[37]; exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [38]–[40], exhibit JE 22 (witness statement of Chris Mamarelis, 1 November 2023) at [55]–[59].

[385] Exhibit JE 17 (witness statement of Louanne Riboldi, 31 October 2023) at [38]; exhibit JE 21 (witness statement of Johannes Brockhaus, 31 October 2023) at [34]–[36]; exhibit HSU 92 (witness statement of Teresa Laidlaw, 14 September 2023) at [70] and [72]; exhibit UWU 18 (witness statement of Lynnette Hutchinson, 15 September 2023) at [42].

[386] Exhibit UWU 24 (witness statement of Emily Lipps, 14 September 2023) at [70].

[387] Ibid at [76].

[388] Exhibit UWU 10 (witness statement of Ross Heyen, 31 March 2021) at [34].

[389] Exhibit HSU 89 (withess statement of Rhonda Jones, 20 September 2023) at [34].

[390] [2022] FWCFB 200, 319 IR 127 at [695]–[707] and [739].

[391] Aged Care Award 2010 [MA000018] clauses B.1.4 to B.1.7.

[392] [2023] FWCFB 40 at [16]–[17].

[393] [2023] FWCFB 93 at [32].

[394] Ibid at [74].

[395] [2022] FWCFB 200, 319 IR 127 at [716]–[724] and [739].

[396] Ibid at [716].

[397] See, e.g. exhibit HSU 67 (witness statement of Darren Kent, 31 March 2021) at [91] and [93]–[96]; exhibit HSU 7 (reply witness statement of Mark Castieau, at [17]–[18].

[398] Exhibit HSU 6 (witness statement of Mark Castieau, 29 March 2021) at [50].

[399] Exhibit HSU 67 (witness statement of Darren Kent, 31 March 2021) at [107].

[400] Exhibit HSU 6 (witness statement of Mark Castieau, 29 March 2021) at [40].

[401] Ibid at [69]–[70].

[402] Exhibit HSU 7 (reply witness statement of Mark Castieau, at [17]–[18].

[403] Exhibit HSU 6 (witness statement of Mark Castieau, 29 March 2021) at [32]–[36].

[404] Exhibit A (spreadsheet, ‘ABS Census 2021 – Aged care industry – Occupation analysis’, sent to parties 14 December 2023).

[405] Transcript, 29 April 2022 (cross-examination of Mark Castieau) at PNs 1157–1162.

[406] Exhibit HSU 70 (witness statement of Anita Field, 30 March 2021) at [29(b)].

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