Equal Remuneration Decision 2015
[2015] FWCFB 8200
•30 NOVEMBER 2015
[2015] FWCFB 8200
The attached document replaces the document previously issued with the above code on 30 November 2015.
The appearances for the Independent Education Union of Australia and for the Commonwealth have been corrected to I Taylor and L Andelman for the Independent Education Union of Australia and K Eastman and E Raper for the Commonwealth.
Miriam Henry
Associate to Justice Ross
Dated: 3 March 2016
| [2015] FWCFB 8200 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.302—Application for an equal remuneration order
Equal Remuneration Decision 2015
(C2013/5139 and C2013/6333)
JUSTICE ROSS, PRESIDENT |
|
Equal remuneration – Children’s services and Early childhood education industry.
CONTENTS
Page | Paragraph | |
1. Introduction and background 1.1 General 1.2 Pay Equity, International Instruments and the Fair Work Act 2009 (Cth) Pay equity International Instruments The FW Act | 5 7 7 9 10 | [1] [20] [20] [30] [34] |
2. Statutory Construction – the General Principle | 11 | [41] |
3. The Historical Context 3.1 The 1969 Equal Pay Case 3.2 The 1972 Equal Pay Case 3.3 The 1986 and 1987 Nurses Pay Equity Cases 3.4 The 1993 and 1996 federal legislation The first HPM case The second HPM case The first Age case The second Age case The Gunn and Taylor case 3.5 The 2005 Federal legislation 3.6 Developments at State level New South Wales Queensland Tasmania, Western Australia and South Australia 3.7 The FW Act – The SACS Case May 2011 decision February 2012 decision | 13 13 15 18 21 24 25 27 28 29 30 32 32 32 34 34 35 37 | [50] [51] [57] [68] [77] [84] [89] [91] [95] [99] [105] [114] [114] [119] [125] [130] [136] [144] |
4. Part 2–7 4.1 Overview 4.2 Detailed considerations Equal remuneration for work of equal or comparable value The discretion The scope and type of orders under s.302(1) | 40 45 46 47 52 | [160] [183] [191] [195] [218] |
5. Key issues in contention 5.1 Is a male comparator required? 5.2 Discounting 5.3 Alternative remedies 5.4 Guiding principles? | 56 57 71 75 83 | [247] [252] [295] [313] [352] |
6. Summary | 85 | |
7. Next Steps | 90 | [368] |
List of Cases | 101 | |
Bibliography | 104 |
Page | |
Annexures | |
1. 24 issues to be addressed | 107 |
2. Timetable outlining key events in this process | 117 |
3. Index of material | 118 |
4. State principles of wage fixation – equal remuneration | 123 |
ABBREVIATIONS
ABS | Australian Bureau of Statistics |
ACA | Australian Childcare Alliance, Australian Childcare Centres Association, Industrial Organisation Of Employers and The Creche and Kindergarten Association Ltd |
ACCI | Australian Chamber of Commerce and Industry |
ACCI and others | Australian Chamber of Commerce & Industry, Australian Business Industrial, New South Wales Business Chamber, Tasmanian Chamber of Commerce and Industry, and State and Territory Local Government Associations |
ACTU | Australian Council of Trade Unions |
AEU | Australian Education Union |
AFEI | Australian Federation of Employers and Industry |
AFPC | Australian Fair Pay Commission |
Ai Group | Australian Industry Group |
AMWU | “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) |
APCS | Australian Pay and Classification Scale |
AWE | Survey of Average Weekly Earnings |
AWOTE | Average Weekly Ordinary Time Earnings |
CCIWA | Chamber of Commerce and Industry of Western Australia |
Commission | Fair Work Commission1 |
EEH | Survey of Employee Earnings and Hours |
Equal Remuneration Case | Applications by United Voice and AEU, and IEUA for equal remuneration orders in the children’s services and early childhood education industries |
FW Act | Fair Work Act 2009 (Cth) |
IEUA | Independent Education Union of Australia |
ILO | International Labour Organization |
IR Act | Industrial Relations Act 1988 (Cth) |
Layton et al. report | Layton, R., Smith, M. & Stewart, A. (2013), A Report for the Pay Equity Unit of the Fair Work Commission, Equal Remuneration under the Fair Work Act 2009 |
NES | National Employment Standards |
NSW IR Act | Industrial Relations Act 1996 (NSW) |
NSW IRC | New South Wales Industrial Relations Commission |
Panel | Annual Wage Review Decision, Expert Panel |
QIRC | Queensland Industrial Relations Commission |
Qld IR Act | Industrial Relations Act 1999 (Qld) |
RANF | Royal Australian Nursing Federation |
Research Report 5/2011 | Romeyn, J., Archer, S-K. & Leung, E. (2011), Review of equal remuneration principles, Research Report 5/2011, Fair Work Australia, Melbourne |
SA FW Act | Fair Work Act 1994 (SA) |
SACS Case | Application for an equal remuneration order for the social, community and disability services sector C2010/3131 |
SACS Case No 1 | SACS No 1 Decision, 16 May 2011, (2011) 208 IR 345 |
SACS Case No 2 | SACS No 2 Decision, 1 February 2012, (2012) 208 IR 446 |
WA IR Act | Industrial Relations Act 1979 (WA) |
WAIRC | Western Australian Industrial Relations Commission |
WR Act | Workplace Relations Act 1996 (Cth) |
1. Introduction and background
1.1 General
[1] United Voice and the Australian Education Union (Victorian Branch) (United Voice and AEU) have made an application for an equal remuneration order pursuant to s.302(3)(b) of the Fair Work Act2009 (Cth) (the FW Act) in the children’s services and early childhood education industry. An additional application was subsequently made by the Independent Education Union of Australia (IEUA). These applications are being heard concurrently and are collectively referred to as the Equal Remuneration Case.
[2] The United Voice and AEU application was filed on 15 July 2013 and amended applications were subsequently filed on 23 September 2013, 27 November 2013 and 3 September 2015.2 The IEUA application was filed on 8 October 2013 and amended on 28 November 2013.
[3] In broad terms the United Voice and AEU amended application seeks an equal remuneration order for ‘… employees who perform work in a long day care centre or preschool(s)’ covered by the Children’s Services Award 2010; the Educational Services (Teachers) Award 2010; or the Educational Services (Schools) General Staff Award 2010. The amended application excludes employees ‘employed by a local government authority’.3
[4] The IEUA’s amended application seeks an equal remuneration order for ‘early childhood teachers (including early childhood teachers appointed as directors) who perform work in a long day care centre or preschool covered by the Educational Services (Teachers) Awards 2010’4, other than those employed by a state or territory government.5
[5] On 19 March 2013, the former Government announced the establishment of a Pay Equity Unit within the Fair Work Commission (the Commission). The primary function of the Pay Equity Unit was to provide the Commission with specialist pay equity research and information to inform matters related to pay equity under the FW Act.In June 2013 the immediate research priorities of the Pay Equity Unit were set.6 Parties to this case were informed of this research, along with the rest of the research program, in a paper tabled on 19 September 2013, ‘Proposal for facilitated consultation on data for C2013/5139’. The initial research program included, among other things, the procurement and publication of an independent research report into equal remuneration under the FW Act. This work was undertaken by the Hon. Dr Robyn Layton AO QC, Dr Meg Smith and Professor Andrew Stewart. Building on previous Commission research published in Research Report 5/2011—Review of equal remuneration principles7, the report explained key constructs, identified material parties could bring to equal remuneration proceedings, and directed parties to resources which could be relevant to an equal remuneration case.
[6] A draft of the Layton et al. report was published for comment on the Commission website on 23 October 2013 and the final version, titled Equal Remuneration under the Fair Work Act 2009, was published on the website on 6 December 2013.
[7] In addition, pursuant to a direction of the Full Bench issued on 8 October 2013, the Pay Equity Unit undertook a facilitated consultation process with parties to the proceedings. Roundtable research meetings with interested parties were convened on 5 February 2014 and on 28 March 2014 the Pay Equity Unit released a report titled ‘Data report - preschool and long day care sector’.
[8] Early in the course of proceedings it became apparent from the submissions of the parties that there would be some utility in providing greater clarity around the relevant legal and conceptual framework issues and in addressing those issues first.8 Accordingly, the Commission has conducted the proceedings in this matter on the basis that it would first consider the legal and conceptual issues relevant to the applications, and then consider the evidentiary case of the parties. The purpose of clarifying the legal issues first was to ensure that parties did not run their evidentiary case on a particular premise, particularly in relation to the comparator issue, only to discover later that we had come to a different view on that premise.9
[9] At a mention on 24 September 2013, the Commission explained the above approach and directed the parties to file submissions identifying the legal and conceptual issues that should be determined in the first phase, and noted the difference of opinion between the parties on the comparator issue.10
[10] On 8 October 2013, the Commission published draft directions and timetables, including a draft list of issues to be addressed by the parties on the legislative and conceptual framework.
[11] A further mention was held on 19 November 2013 to finalise the timing and the issues to be dealt with on the legislative and conceptual framework.11
[12] The Full Bench issued a revised list of ‘Issues to be Addressed’ on 27 November 2013 along with draft directions proposing times for parties to file written submissions and submissions in reply addressing the issues. Final directions including the list of 24 ‘Issues to be Addressed’, (see Annexure [1]) and times for making submissions on the legislative and conceptual framework, were issued on 20 December 2013.
[13] During 2013 and 2014, a number of submissions were received and hearings were held regarding directions and programming for the Equal Remuneration Case. A timetable outlining key events in this process is provided at Annexure [2].
[14] A list of the materials received in relation to the legislative and conceptual framework is set out at Annexure [3].
[15] On 16 April 2014, the Commission published a Summary of Submissions in Relation to Identified Issues, which was a draft working document providing a summary of parties’ written submissions and submissions in reply in response to the issues to be addressed on the legislative and conceptual framework.
[16] Oral submissions on the legislative and conceptual framework were heard on 22 and 23 April 2014. A number of parties took questions on notice during these proceedings which were addressed in written submissions received in April and May 2014.
[17] A specialised mini website for the Equal Remuneration Case is accessible through the Fair Work Commission website and all material relating to the Equal Remuneration Case is available on the website.
[18] This decision addresses most of the legal and conceptual issues identified in the final directions of 20 December 2013. Annexure [1] is an annotated version of that list of issues containing answers to identified issues by reference to our decision. Not all of the issues are addressed.
[19] The legal and conceptual issues to be determined are dependent on the proper construction of Part 2–7 of the FW Act. Before turning to those provisions we propose to make some general observations about pay equity, relevant International Instruments and the scheme of the FW Act. We then propose to first summarise the general principles relating to statutory construction and the relevant legislative and arbitral history, before turning to Part 2–7.
1.2 Pay Equity, International Instruments and the Fair Work Act 2009 (Cth)
Pay Equity
[20] The gender pay gap (sometimes referred to as the gender wage gap) refers to the difference between the wages earned by men and women. It is usually expressed as a ratio which converts average female earnings into a proportion of average male earnings on either a weekly or an hourly basis.
[21] At a conceptual level no party disputes the proposition that employees should receive equal remuneration for work of equal or comparable value. The gender pay gap has narrowed over time, in part as a result of arbitral decisions dealing with equal pay. Yet over 40 years after the commencement of a federal equal pay principle the gender pay gap remains a persistent form of inequality that has been described as ‘one of the most obvious examples of structural gender discrimination’.12
[22] It is generally acknowledged that the determinants of the gender pay gap are complex.13 The most recent pay equity inquiry in Australia was that conducted by the House of Representatives Standing Committee on Employment and Workplace Relations in 2009 (the H.R. Gender Pay Equity Inquiry). It concluded that the factors contributing to the gender pay gap are complex and multi-faceted,14 and summarised the evidence about the factors contributing to pay inequity in the following terms:
● social expectations and gendered assumptions about the role of women as workers, parents and carers resulting in majority of primary unpaid caring responsibilities undertaken by women;
● disproportionate participation in part-time and casual employment leading to few opportunities for skill development and advancement resulting in a concentration of women in lower level classifications;
● invisibility of women’s skills and status leading to an undervaluation of women’s work and the failure to re-assess changing nature of work and skill; unrecognised skills described as creative, nurturing, caring and so forth;
● labour market tenure and engagement, and more precarious attachment to the workforce;
● industry and occupational composition and segregation factors attributable to geography and desirability of work;
● sex discrimination and sexual harassment;
● concentrated in award-reliant employment with less opportunity to collectively bargain for higher wages, working in small workplaces and with low union participation;
● treatment by industrial tribunals and regulation; and the misguided belief that if men and women are subject to the same laws, rules and conditions, then equality will result;
● women’s apparent higher job satisfaction with work at a given wage level means employers less likely to feel under pressure to improve wages for employees. Trade off between monetary rewards and non-monetary rewards;
● working in service rather than product related markets;
● poor recognition of qualifications, including vastly different remuneration scales for occupations requiring similar qualifications and the way that ‘work’ and how we value work is understood and interpreted within the industrial system; and
● women receive lower levels of discretionary payment such as overaward payments, bonuses, commissions and service increments and profit sharing, partly because in the industries where women are employed, overaward payments are not usually available.
[23] Research Report 5/201115 expressed a similar view and observed that the factors influencing the gender pay gap include:
● differences in the types of jobs, such as industry, occupation, location, method of setting pay and the levels of discretionary payments (bonuses, commissions, allowances, etc.);
● structures and workplace practices which restrict the employment prospects of workers with family responsibilities, leading to higher part-time and casual employment and less training; and
● the undervaluation of the work and skills of females.
[24] The gender pay gap may be expressed and measured in a number of different ways.
[25] The two main sources of gender earnings from the Australian Bureau of Statistics (ABS) are the Survey of Average Weekly Earnings (AWE) and the Survey of Employee Earnings and Hours (EEH). The AWE produces estimates for Average Weekly Ordinary Time Earnings (AWOTE) and is the most frequently released data on gender earnings, however, the AWOTE does not consider compositional factors. The EEH can provide an estimate for hourly earnings, thereby considering hours worked, however, up to the 2014 survey, hourly earnings could only be estimated for non-managerial employees. In addition to the above factors, earnings data from the EEH also reflects compositional factors such as the junior, apprentice, trainee and disability rates of pay and overtime payments.
[26] In the 2013–14 Annual Wage Review decision the Expert Panel (Panel) considered the appropriate measure of the gender pay gap.16 In that decision, the Panel noted there are a number of ways to calculate the gender pay gap, each with its strengths and weaknesses. The Panel concluded that AWOTE was its preferred measure,17 but in its 2014–15 Annual Wage Review Decision the Panel added that it would consider estimates from the 2014 EEH which collected hourly earnings for managerial employees when they are made available.18 These data are now available. The EEH is used by the ABS in providing a summary of earnings indicators as part of a catalogue on gender indicators.19
[27] The following table provides estimates of the gender pay gap using data from both AWOTE and EEH.
Table 1: Estimates of the gender pay gap
Measure | Male earnings | Female earnings | GPG |
AWOTE (May 2015) | $1593.60 | $1308.80 | 17.9% |
EEH adult hourly ordinary time cash earnings (hourly) (May 2014) | $41.09 | $34.16 | 16.9% |
EEH non-managerial adult hourly ordinary time cash earnings (May 2014) | $37.66 | $32.95 | 12.5% |
Note: AWOTE is expressed in trend terms.
Source: ABS, Average Weekly Earnings, Australia, May 2015, Catalogue No. 6302.0; ABS, Microdata: Employee Earnings and Hours, Australia, May 2014, Catalogue No. 6306.0.55.001.
[28] The Workplace Gender Equality Agency also calculates a measure of the gender pay gap from reports required to be provided by non-public sector employers with 100 or more employees, covering over 40 per cent of employees in Australia. The gender pay gap was found to be 19.1 per cent based on full-time base salary and 24 per cent based on full-time total remuneration.20
[29] Historically, hourly earnings data for private sector, non-managerial, adult full time employees show a sharp improvement in gender pay equity ratios between 1967 and 1980 (and hence a decline in the gender pay gap), in part attributable to the 1969 and 1972 equal pay decisions (discussed at [50]–[66]). Since 1980 the improvement has been less marked and also subject to fluctuation.21
International Instruments
[30] Australia has ratified the principal conventions dealing with equal remuneration: the International Labour Organization (ILO) Equal Remuneration Convention22and the United Nations Convention on the Elimination of All Forms of Discrimination against Women.23
[31] The ILO has also adopted the Equal Remuneration Recommendation.24 Though not subject to ratification and non-binding, the recommendation provides guidance on the implementation of the Equal Remuneration Convention.
[32] The Discrimination (Employment and Occupation) Convention,ratified by Australia in 1973, and the associated recommendation, provides that Member states should seek to adopt policies which have regard to principles including that of remuneration for work of equal value.25
[33] As with most parts of the FW Act, Part 2–7 is enacted in reliance on the corporations power, not the external affairs power, and no longer has as its object to give effect, or further effect, to the Conventions and Recommendations. Section 3 of the FW Act simply provides that an object of the FW Act is to ‘take into account Australia’s international obligations’. We later discuss the relevance of the Conventions and Recommendations, if any, to the interpretation of Part 2–7.
The Fair Work Act 2009 (Cth)
[34] The objects of the FW Act make no specific mention of pay equity. The principle of ‘equal remuneration for work of equal or comparable value’ appears in three parts of the FW Act: the modern awards objective (s.134(1)(e)); the minimum wages objective (s.284(1)(d)); and the equal remuneration provisions found in Part 2–7. The dictionary in s.12 of the FW Act defines ‘equal remuneration for work of equal or comparable value’ in terms of the meaning given to that expression in Part 2–7 of the FW Act (in s.302(2)).
[35] The modern awards objective is directed at ensuring that modern awards, together with the National Employment Standards (NES), provide a ‘fair and relevant minimum safety net of terms and conditions’ taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). One of the s.134 considerations is:
‘(e) the principle of equal remuneration for work of equal or comparable value’
[36] The modern awards objective is very broadly expressed.26 In National Retail Association v Fair Work Commission the Full Court of the Federal Court made the following observation about the modern awards objective:
‘It is apparent from the terms of s.134(1) that the factors listed in (a)-(h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s.134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)?’27
[37] In the 2014–15 Annual Wage Review decision the Panel applied the above observation to the minimum wages objective in s.284.28
[38] The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision making process. No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award. The Commission’s task is to balance the various s.134 considerations and ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions.
[39] The principle of equal remuneration for work of equal or comparable value also forms part of the minimum wages objective (s.284(1)(d)). In giving effect to both the modern awards objective and the minimum wages objective the Expert Panel constituted to hear and determine the Annual Wage Review must take into account the principle of equal remuneration for work of equal or comparable value.
[40] The interaction between the modern awards objective, the minimum wages objective and the provisions of Part 2–7 are addressed later in our decision.
2. Statutory construction – the general principles
[41] The starting point is to construe the words of a statute according to their ordinary meaning having regard to their context and legislative purpose. Context includes the existing state of the law and the mischief the legislative provisions was intended to remedy.29 Regard may also be had to the legislative history in order to work out what a current legislative provision was intended to achieve.30
[42] Part 2–7 of the FW Act must be read in context by reference to the language of the FW Act as a whole.31 The relevant legislative context may operate to limit a word or expression of wide possible connotation.32 The literal meaning (or the ordinary grammatical meaning) of the words of a statutory provision may be displaced by the context and legislative purpose, as the majority observed in Project Blue Sky:
‘… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’33
[43] The provisions of an act must be read together such that they fit with one another. This may require a provision to be read more narrowly than it would if it stood on its own.34
[44] More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue35 (Alcan)the High Court described the task of legislative interpretation in the following terms:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’
[45] Section 15AA of the Acts Interpretation Act1901 (Cth) requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts Interpretation Act1901, as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires us to construe the FW Act in the light of its purpose, not to rewrite it.36
[46] In considering the purpose or policy of the FW Act we note at the outset that s.578(a) provides that in performing its functions and exercising its powers the Commission must take into account the objects of the FW Act and the objects of the part of the FW Act under which the Commission is performing the particular function or exercising the particular power.
[47] The objects of the FW Act are set out in Section 3.
‘3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.’
[48] Of course it must be borne in mind that the purpose or policy of the FW Act is to be gleaned from a consideration of all of the relevant provisions of the FW Act.37
[49] As we have mentioned, regard may be had to the legislative history in order to work out what a current legislative provision was intended to achieve. We now turn to the legislative history relevant to Part 2–7 of the FW Act.
3. The Historical context
[50] For most of its legislative history pay equity was not an express objective of the federal system of industrial regulation and the awards that set minimum pay rates typically discriminated between male and female employees. It was not until the 1969 and 1972 Equal Pay Cases38 that the Commonwealth Conciliation and Arbitration Commission (as the federal tribunal was then known)39 moved to end the practice of having different rates within awards for male and female workers. The 1969 decision accepted the principle of equal pay for equal work, although confined it to work performed by women that was of a similar or like nature to that done by men, and excluded work that was ‘essentially or usually performed by females’. The 1972 decision embraced the broader principle of ‘equal pay for work of equal value’, as embodiedintheILO’s Equal Remuneration Convention of 1951. The 1974 National Wage Case40subsequently accepted that the minimum wage for award-covered workers should be the same for men and women.
3.1 The 1969 Equal Pay Case
[51] In the 1967 National Wage Case41, the Commission abandoned the practice of awarding separate increases to the basic wage and margins in separate proceedings and introduced the concept of a ‘total wage’. The Commission also decided to award the same general wage increase to both men and women, but observed that ‘there will for the present be a different total wage for males and females and a number of total wages for many classifications’.42 While conscious of these apparent anomalies the Commission considered that it was not practicable to attempt to deal with such matters at that time but it did make the following observation:
‘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(1) affirmed the concept of equal margins for adult males and females doing equal work. The extensions 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. To a lesser extent the same may be said about the abolition of locality differentials. We invite the unions, the employers and the Commonwealth to give careful study to the questions with the knowledge that the Commission is available to assist by conciliation or arbitration in the resolution of the problems.’43
[52] The introduction of the total wage in the 1967 case and the Commission’s remarks in that decision led to the 1969 Equal Pay Case.44 The 1969 Equal Pay Case arose from a series of claims to vary certain awards and determinations so as to eliminate the difference in current rates represented by the difference between the former male and female basic wages.
[53] The Commission found that the concept of equal pay was difficult to define and apply with precision, observing that:
‘While we accept the concept of ‘equal pay for equal work’ implying as it does the elimination of discrimination based on sex alone, we realise that the concept is difficult of precise definition and even more difficult to apply with precision. We do not propose to deal in detail with all these possible different meanings of the phrase, nor do we propose to consider how it could be applied in communities other than ours.’45
[54] The Commission went on to note that, although the international conventions referred to by the parties represented international thinking on the matter, the conventions had not been ratified by Australia and their meaning in an Australian context was by no means clear. It acknowledged that these conventions should carry significant weight in a general way, but stated that they must be considered within the Australian context of wage fixation. The Commission indicated that it was influenced by the position of the States, which had been implementing the principle of equal pay progressively since 1958 through equal pay legislation and the fact that the majority of women were covered by State awards.
[55] The Commission rejected the union’s application to increase all female wages in line with male wage rates, stating that before rates could be increased the equality of the work must first be determined and that no increase should be awarded without an examination of the work done. The Commission also found that gradual implementation would address economic concerns. It established principles to be applied in deciding future applications, as follows:46
(1) the male and female employees concerned, who must be adults, should be working under 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 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;
(4) for the purpose of determining whether the female employees are performing work of the same or a like nature and of equal value as the male employees the Arbitrator or the Commissioner, as the case may be, should in addition to any other relevant matter, take into consideration whether the female employees are performing the same work or work of a like nature as male employees and doing the same range and volume of work as male employees under the same conditions;
(5) consideration should be restricted to work performed under the determination or award concerned;
(6) in cases where males and females are doing work of the same or a like nature and of equal value, there may be no appropriate classifications for that work. In such a case, appropriate classifications should be established for the work which is performed by both males and females and rates of pay established for that work. The classifications should not be of a generic nature covering a wide variety of work;
(7) in considering whether males and females are performing work of the same or like nature and of equal value, consideration should not be restricted to the situation in one establishment but should extend to the general situation under the determination or award concerned, unless the award or determination applies to one establishment;
(8) the expression of ‘equal value’ should not be construed as meaning ‘of equal value to the employer’ but as of equal value or at least of equal value from the point of view of wage or salary assessment;
(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.
[56] The Commission also provided that where an Arbitrator or Commissioner was satisfied that equal pay should be awarded, implementation of such a decision should be phased in over a four year period.
3.2 The 1972 Equal Pay Case
[57] In 1972 a Full Bench of the Commission was asked to consider whether the male minimum wage should apply to females and to formulate new principles in relation to equal pay for equal work.47 The broad issue to be determined was whether in the then social and industrial climate it was fair and reasonable that the 1969 principles should remain unaltered. This involved the Commission making an assessment of what, if anything, had happened in the area of equal pay since 1969 which would make it just and proper to alter those principles.48
[58] One impetus for the 1972 proceedings was the limited impact of the 1969 equal pay principles. The 1969 principles allowed parties to apply to vary award rates only on the basis of comparisons made within an award, and only where it could be shown that women were performing the same work as men, and did not extend to awards where work was performed predominantly by women. According to the parties in the 1972 proceedings, only 18 per cent of women covered by federal awards had received wage increases and pay parity with male workers as a result of the 1969 decision.49 Researchers have also confirmed that while the 1969 case contributed to an improvement in the relative pay of women, its impact was limited.50
[59] The Commission dismissed the unions’ claims to apply the male minimum wage to females on the basis that the male minimum wage included a family component. However the Commission noted the limited application of the 1969 decision, amendments since 1969 to legislation in State jurisdictions, as well as legislative developments in the United Kingdom and New Zealand which marked changed approaches towards equal pay for females. It also noted the then Commonwealth Government’s support for the concept of equal pay for work of equal value and concluded that the 1969 concept of equal pay for equal work required expansion in light of changing social circumstances:
‘In our view the concept of ‘equal pay for equal work’ is too narrow in today’s world and we think time has come to enlarge the concept to ‘equal pay for work of equal value’. This means that award rates for all work should be considered without regard to the sex of the employee.’51
[60] The Commission also rejected as ‘unwieldy’ the proposition that it should examine in detail the various claims before it and as a result of that examination lay down principles which would have general application. It concluded that a general principle applied by individual Members of the Commission was likely to obtain better results. In addressing the likely cost of the implementation of equal pay for work of equal value, the Commission acknowledged that there would be a substantial increase in total wages bills, but suggested that the community was prepared to accept these costs and that they could be reduced by phasing in over a period of two and a half years.52
[61] The Commission did not rescind the 1969 principles applicable to ‘equal pay for equal work’, which it said would continue to apply in appropriate cases. The stated reason for retaining the 1969 principles was ‘because an injustice might be created in cases based on equal pay for equal work where females could become entitled immediately to male rates under those principles’.53 However, it developed a new principle of equal pay for work of equal value which was based on work value comparisons being performed to determine the value of the work ‘without regard to the sex of the employees concerned’. For the purpose of assessing the value of the work, comparisons could be made between male and female classifications within an award. However, where such comparisons were unavailable or inconclusive, for example where the work was performed exclusively by females, the principle allowed comparisons to be made between female classifications within the award or in different awards. It also acknowledged that in some cases comparisons with male classifications in other awards might be necessary.
[62] The new principle stated as follows:54
(1) The principle of ‘equal pay for work of equal value’ will be applied to all awards of the Commission. By ‘equal pay for work of equal value’ we mean the fixation of award rates by a consideration of the work performed irrespective of the sex of the worker. The principle will apply to both adults and juniors. Because the male minimum wage takes into account family consideration it will not apply to females.
(2) Adoption of the new principle requires that female rates be determined by work value comparisons without regard to the sex of the employees concerned. Differentiations between male rates in awards of the Commission have traditionally been founded on work value investigations of various occupational groups or classifications. The gap between the level of male and female rates in awards generally is greater than the gap, if any, in the comparative value of work performed by the two sexes because rates for female classifications in the same award have generally been fixed without a comparative evaluation of the work performed by males and females.
(3) The new principle may be applied by agreement or arbitration. The eventual outcome should be a single rate for an occupational group of classification which rate is payable to the employee performing the work whether the employee be male or female. Existing geographical differences between rates will not be affected by this decision.
(4) Implementation of the new principle by arbitration will call for the exercise of the broad judgement which has characterised work value enquiries. Different criteria will continue to apply from case to case and may vary from one class of work to another. However, work value inquiries which are concerned with comparisons of work and fixation of award rates irrespective of the sex of employees may encounter unfamiliar issues. In so far as those issues have been raised we will comment on them. Other issues which may arise will be resolved in the context of the particular work value inquiry with which the arbitration is concerned.
(5) We now deal with issues which have arisen from the material and argument placed before us and which call for comment or decision.
(a) The automatic application of any formula which seeks to by-pass a consideration of the work performed is, in our view, inappropriate to the implementation of the principle we have adopted. However, pre-existing award relativities may be a relevant factor in appropriate cases.
(b) Work value comparisons should, where possible, be made between female and male classifications within the award under consideration. But where such comparisons are unavailable or inconclusive, as may be the case where the work is performed exclusively by females, it may be necessary to take into account comparisons of work value between female classifications within the award and /or comparisons of work value between female classifications in different awards. In some cases comparisons with male classifications in other awards may be necessary.
(c) The value of the work refers to worth in terms of award wage or salary fixation, not worth to the employer.
(d) Although a similarity in name may indicate a similarity of work, it may be found on closer examination that the same name has been given to different work. In particular this situation may arise with respect to junior employees. Whether in such circumstances it is appropriate to establish new classifications or categories will be a matter for the arbitrator.
(e) In consonance with normal work value practice it will be for the arbitrator to determine whether differences in the work performed are sufficiently significant to warrant a differentiation in rate and if so what differentiation is appropriate. It will also be for the arbitrator to determine whether restrictions on the performance of work by females under a particular award warrant any differentiation in rate based on the relative value of the work. We should, however, indicate that claims for differentiation based on labour turnover or absenteeism should be rejected.
(f) The new principle will have no application to the minimum wage for adult males which is determined on factors unrelated to the nature of the work performed.
(6) Both the social and economic consequences of our decision will be considerable and implementation will take some time. It is our intention that rates in all awards of this Commission and all determinations under the Public Service Arbitration Act should have been fixed in accordance with this decision by 30 June 1975. Under normal circumstances, implementation should take place by three equal instalments so that one third of any increase is payable no later than 31 December 1973, half of the remainder by 30 September 1974 and the balance by 30 June 1975. This programme is intended as a norm and we recognise that special circumstances may exist which require special treatment.
(7) Nothing we have said is intended to rescind the 1969 principles applicable to equal pay for equal work which will continue to apply in appropriate cases. We have taken this step because an injustice might be created in cases based on equal pay for equal work where females could become entitled immediately to male rates under those principles.
[63] In the National Wage Case 1974,55 the Commission followed the 1972 decision and decided to establish one minimum wage for adults, replacing the separate minimum adult male and female rates. The Commission specified a female minimum wage in the 1974 case, though only for the purpose of it being phased out.
[64] The 1972 principle provided the opportunity for the Commission to make comparisons between different work classifications within and across awards. From 1969 to 1977, average minimum wages for female employees rose from 72 to 92 per cent of the average minimum award wages for male employees.56 The gender pay equity ratio increased from 64 per cent in 1967 to 80.1 per cent in 1980—an increase of 16.1 percentage points over a 13 year period.57 Analysts have suggested that changes of this magnitude could not be explained by market factors related to supply and demand or human capital improvements, and must be attributed in large part to the institutional developments.58
[65] However, a number of commentators have argued that the 1972 principle failed to achieve its full potential, pointing to the plateau in gender pay equity ratios following the anticipated surge in women’s wages in the wake of the 1972 decision.59 Contributing factors identified in these analyses include:
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limited attempts to address work value issues;60
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barriers to properly establishing the value of feminised occupations, continuing a long history of assumptions of women’s work being semi-skilled or unskilled and the difficulty that industrial tribunals have had in properly valuing the ‘skills, exhibited, acquired and used by women in traditional occupations’;61 and
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the significant number of cases where the 1972 principle was applied through award variations by consent without substantive work value inquiries.62
[66] Central to these critiques were said to be the difficulties endemic in any approach based on ‘work value’ which did not address the segregated nature of the labour market and excluded consideration of problems concerning the reward of skill and career progression in feminised industries and jobs, and the effects of maternity and parenting on labour market participation.
[67] No further explicit direction on this issue was given until 1986, when the Commission ruled that the 1972 principle could not be applied by reference to the concept of work of ‘comparable worth’.63 At this point the Commission referred the parties again to the explicit direction to work value in the 1972 equal pay for work of equal value principle. The Commission noted that the 1972 principle remained in operation and directed the parties to the anomalies and inequities principle (as described in [70]), which was subsequently used to secure significant pay increases in some female-dominated industries.64
3.3 The 1986 and 1987 Nurses Pay Equity Cases
[68] In 1986 the Commission handed down two decisions concerning equal pay claims for nurses whose conditions of employment were regulated by federal awards.65
[69] In the first decision, which became known as the Nurses Comparable Worth Case66, a Full Bench ruled on two threshold matters, prior to the commencement of a detailed case for a review of nurses’ rates:
(i) whether the 1972 equal pay decision was still available to be implemented; and
(ii) whether the applications were affected by the Wage Fixing Principles then in operation.
[70] In short, the Full Bench concluded that the 1972 equal pay principle was available to be implemented in awards in which it had not been applied and that all such applications should be processed through the Anomalies Conference procedure set out in principle 6 of the Wage Fixing Principles67, which sought to address anomalies or inequities in wage fixation.
[71] The Commission rejected the proposition advanced by the Australian Council of Trade Unions (ACTU) that the 1972 principle of equal pay for work of equal value should be equated with the principle of comparable worth. In rejecting the argument that the concept of comparable worth should be used to implement the 1972 equal pay principle the Commission indicated its unease with the concept and concern that its acceptance could undermine centralised wage fixation:
‘The other issue relates to the use of the term comparable worth. The applicants, the ACTU and the Commonwealth Government, whilst recognising the need to consider the concept of comparable worth in the context of the Australian industrial environment, attempted to equate the 1972 principle of equal pay for work of equal value with the doctrine of comparable worth. The Council of Action for Equal Pay went even further and suggested that the Commission should adopt the doctrine of comparable worth which would allow for the rates of pay for all women in predominantly female occupations to be reassessed on a case by case basis. …
It is clear that comparable worth and related concepts, on the limited material before us, have been applied differently in a number of countries. At its widest, comparable worth is capable of being applied to any classification regarded as having been improperly valued, without limitation on the kind of classification to which it is applied, with no requirement that the work performed is related or similar. It is capable of being applied to work which is essentially or usually performed by males as well as to work which is essentially or usually performed by females. Such an approach would strike at the heart of long accepted methods of wage fixation in this country and be particularly destructive of the present Wage Fixing Principles. …
Moreover as explained to us by the Commonwealth, in the United States at least, the doctrine of comparable worth refers to the value of the work in terms of its worth to the employer. …
This is quite contrary to what the Full Bench of this Commission envisaged in the 1972 equal pay principle. The principle requires equal pay for work of equal value to be implemented by work value inquiries carried out in the normal manner in which such inquiries are conducted in our wage fixing environment. …
In our view the use of the term “comparable worth” in the Australian context would lead to confusion, and in particular, we believe that it would be inappropriate and confusing to equate the doctrine with the 1972 principle of equal pay for work of equal value. For all of these reasons we specifically reject the notion.’ (emphasis added)68
[72] In accordance with the decision in the Nurses Comparable Worth Case the relevant unions brought a claim before the Anomalies Conference on 19 March 1986 for a review of the salaries of nurses covered by federal awards and determinations. The then President concluded that an arguable case existed for the finding of an anomaly and an inequity and referred the claims to a Full Bench for determination.
[73] In Re Private Hospitals’ & Doctors’ Nurses (ACT) Award 1972 and other Awards69 a Full Bench determined the nurses’ claims. At that time nurses covered by federal awards comprised a small proportion of the total number of nurses in Australia. The vast majority of nurses were subject to the terms of awards made by State industrial authorities and within the public hospital sector State awards applied to over 90 per cent of nurses. The claim before the Commission was for a single salaries and career structure for all nurses covered by federal awards and determinations. The Royal Australian Nursing Federation (RANF) contended that the existing wage scales for nurses did not reflect their professional standards and did not provide adequate career opportunities in the area of clinical nursing. It was submitted that the education, training and duties of nurses were such that they should receive rates equivalent to those of other professional employees within the health care industry. The RANF submitted that the rates of pay of registered nurses had been fixed having regard to the fact that the vast majority of nurses are female; that this sex bias had served to depress the level of wages; and that this bias had never been corrected. It was also claimed that the case provided the Commission with an opportunity to prescribe a national scale which could bring stability into the fixation of nurses’ wages throughout Australia.
[74] The Full Bench concluded that having regard to all the circumstances surrounding the claims, there was a problem of a special and isolated nature which constituted an anomaly within the meaning of principle 6 of the Wage Fixing Principles. The grounds on which the Bench was so satisfied included: the non-application of the 1972 principle to registered nurses covered by federal awards; fundamental problems in the existing career structure; and a shortage of nurses while there was a pool of qualified nurses outside the industry. The Full Bench also concluded that in relation to certain claims, inequities existed within the meaning of the relevant principle. In respect of work value the Commission was satisfied that there had been changes in the nature of the work, skill and responsibility of nurses which constituted a significant net addition to work requirements within the terms of the work value principle.70 However the Commission rejected the proposed movement to ‘professional rates’:
‘We have already found that an anomaly exists with respect to the rates of pay for the Commonwealth nurses who are subject to the awards and determinations which are before us. We fully recognise the fact that Commonwealth nurses rates are depressed, and that their training and skill are relevant factors in determining the appropriate level of rates to be awarded. However we have not been convinced by the RANF or the ACTU in these proceedings of the need to move to professional rates, whatever that term may mean. Nor have we been given any information or material which would justify a fixation of rates beyond the levels of the rates for nurses which have been assessed by recent decisions of State tribunals.’71
[75] The Commission went on to grant a range of increases in respect of the awards before it on the basis of the identified anomaly, inequities and work value changes.
[76] After the Nurses Comparable Worth Case pay equity claims were processed through the anomalies and inequities principle and from August 1989 the Commission used the structural efficiency principle as an adjunct to the anomalies and inequities principle to deal with pay equity claims. The anomalies and inequities principle was dropped in the 1991 National Wage Case decision72 and the potential for using the structural efficiency principle was curtailed with the adoption of the enterprise bargaining principle.73
3.4 The 1993 and 1996 federal legislation
[77] In 1993 the Industrial Relations Reform Act 1993 amended the Industrial Relations Act 1988 (IR Act) by introducing Division 2 of Part VIA, titled ‘Equal Remuneration for Work of Equal Value’. This was the first piece of federal legislation expressly dealing with equal remuneration in Australia and relied on the external affairs power. Under the new provisions, which commenced operation on 30 March 1994, the Commission could make such orders it considered appropriate to ensure that, for employees covered by the order, there will be ‘equal remuneration for work of equal value’ (s.170BC(3)(a)). The expression ‘equal remuneration for work of equal value’ was explicitly defined, by reference to the Equal Remuneration Convention, to mean rates of remuneration established without discrimination based on sex. The provisions in Division 2 of Part VIA of the IR Act are set out in full as follows:
Division 2 -Equal remuneration for work of equal value
SECTION 170BA OBJECT
170BA The object of this Division is to give effect, or further effect, to:
(a) the Anti-Discrimination Conventions; and
(b) the Equal Remuneration Recommendation, 1951, which the General Conference of the International Labour Organisation adopted on 29 June 1951 and is also known as Recommendation No. 90; and
(c) the Discrimination (Employment and Occupation) Recommendation, 1958, which the General Conference of the International Labour Organisation adopted on 25 June 1958 and is also known as Recommendation No. 111.
SECTION 170BB EQUAL REMUNERATION FOR WORK OF EQUAL VALUE
170BB(1) [Equal remuneration for men and women] A reference in this Division to equal remuneration for work of equal value is a reference to equal remuneration for men and women workers for work of equal value.
170BB(2) [Meaning] An expression has in subsection (1) the same meaning as in the Equal Remuneration Convention.
Note: Article 1 of the Convention provides that the term ‘equal remuneration for men and women workers for work of equal value’ refers to rates of remuneration established without discrimination based on sex.
SECTION 170BC ORDERS REQUIRING EQUAL REMUNERATION
170BC(1) [Commission to make appropriate orders] Subject to this Division, the Commission may make such orders as it considers appropriate to ensure that, for employees covered by the orders, there will be equal remuneration for work of equal value.
170BC(2) [Increase in rates of remuneration] Without limiting subsection (1), an order under this Division may provide for such increases in rates (including minimum rates) of remuneration (within the meaning of the Equal Remuneration Convention) as the Commission considers appropriate to ensure that, for employees covered by the order, there will be equal remuneration for work of equal value.
170BC(3) [Conditions to be satisfied before order made] However, the Commission may make an order under this Division only if:
(a) the Commission is satisfied that, for the employees to be covered by the order, there is not equal remuneration for work of equal value; and
(b) the order can reasonably be regarded as appropriate and adapted to giving effect to:
(i) one or more of the Anti-Discrimination Conventions; or
(ii) the provisions of the Recommendation referred to in paragraph 170BA(b) or (c).
SECTION 170BD ORDERS ONLY ON APPLICATION
170BD The Commission must only make such an order if it has received an application for the making of an order under this Division from:
(a) an employee, or a trade union whose rules entitle it to represent the industrial interests of employees, to be covered by the order; or
(b) the Sex Discrimination Commissioner.
SECTION 170BE NO ORDER IF ADEQUATE ALTERNATIVE REMEDY EXISTS
170BE The Commission must refrain from considering the application, or from determining it, if the Commission is satisfied that there is available to the applicant, or to the employees whom the applicant represents, an adequate alternative remedy that:
(a) exists under a law of the Commonwealth (other than this Division) or under a law of a State or Territory; and
(b) will ensure, for the employees concerned, equal remuneration for work of equal value.
SECTION 170BF IMMEDIATE OR PROGRESSIVE INTRODUCTION OF EQUAL REMUNERATION
170BF The order may implement equal remuneration for work of equal value when the order takes effect. However, if it is not deemed feasible to implement it immediately, the order may implement it in stages (as provided in the order).
SECTION 170BG EMPLOYER NOT TO REDUCE REMUNERATION
170BG(1) [Employer not to reduce remuneration] An employer must not reduce an employee’s remuneration (within the meaning of the Equal Remuneration Convention) for the reason, or for reasons including the reason, that an application or order has been made under this Division.
170BG(2) [Reduction of no effect] If subsection (1) is contravened, the purported reduction is of no effect.
SECTION 170BH DIVISION NOT TO LIMIT OTHER RIGHTS
170BH This Division is not intended to limit any right that a person or trade union may otherwise have to secure equal remuneration for work of equal value.
SECTION 170BI ADDITIONAL EFFECT OF DIVISION
170BI(l) [Effect equal to secs 170BA and 170BC(3)(b) repeal] Because of this section, this Division has the effect it would have if section 170BA were repealed and paragraph 170BC(3)(b) were omitted. That effect is additional to, and does not prejudice, the effect that this Division has otherwise than because of this section.
170BI(2) [Application to be determined by arbitration] The Commission must determine by arbitration an application made under this Division as it has effect because of this section.
170BI(3) [Conditions warranting making of order] The Commission may make an order under this Division (as it so has effect) only if:
(a) it considers that the order is necessary to prevent an industrial dispute about equal remuneration for work of equal value; and
(b) it has given to each organisation or other person who, in its opinion, would be likely to be a party to the dispute an opportunity to be heard in relation to the making of the order.
170BI(4) [Persons on whom order binding] An order so made must be expressed to bind only such of the following as the order specifies:
(a) the organisations and other persons to whom the Commission has given, as required by subsection (3), an opportunity to be heard;
(b) the respective members of those organisations.
[78] The stated object of the new Division was to give effect to the ‘Anti-Discrimination Conventions’ (a term defined to include the Equal Remuneration Convention), and the ILO’s Equal Remuneration Recommendation (No. 90) and Discrimination (Employment and Occupation) Recommendation (No. 111). As well as relying on the external affairs power the Division was given an additional operation by s.170BI, allowing it to apply in circumstances where there was a potential industrial dispute over the issue of equal remuneration.74
[79] Orders could only be made under section 170BC if the Commission was satisfied that:
(i) the employees to be covered by the order did not have equal remuneration for work of equal value (s.170BC(3)(a));
(ii) making such an order would give effect to one or more of the Anti-Discrimination Conventions or ILO Recommendations No. 90 or No. 111
(s.170BC(3)(b));
(iii) the application had been made by an employee or trade union entitled to represent the interests of the employees to be covered by the order, or by the Sex Discrimination Commissioner (s.170BD); and
(iv) no adequate alternative remedy was available under a law of the Commonwealth or a State or Territory law (ss.170BE(a) and (b)).
[80] In 1996 the IR Act was amended and renamed the Workplace Relations Act 1996 (WR Act) by the Workplace Relations and Other Legislation Amendment Act 1996. The equal remuneration provisions in the IR Act were retained, with only minor changes. This included the insertion of a new provision, s.170BHA, which precluded the making of an application for an order for equal remuneration for work of equal value if proceedings for an alternative remedy to secure equal remuneration had begun under another provision of the WR Act, or a law of the Commonwealth, State or Territory.
[81] The 1993 legislative provisions attempted to widen the concept of ‘equal pay’ embedded in the 1972 principle to include ‘equal remuneration’, which enabled consideration of overaward earnings.75 Additionally there were clear linkages to the relevant International Instruments.
[82] However, as a number of commentators have remarked, a notable feature of the 1993 equal remuneration provisions was the relatively small number of applications made under them, the uncertainties and limitations associated with their interpretation and application and, as a result, their failure to make a significant contribution to achieving gender pay equity.76 The legal hurdles associated with the provisions meant that, in practice, it favoured prosecution at the level of the individual worker or workplace, rather than providing the broader, award-based solutions of the 1969 and 1972 cases77. In particular the use of the term ‘without discrimination’ in the Equal Remuneration Convention was interpreted by the Commission to require the applicants to demonstrate that disparities in earnings had a discriminatory cause. As Smith has observed, a lack of clarity around the meaning of the term ‘discrimination’ and difficulty in applying the test of discrimination added to the difficulties associated with the provisions.78
[83] Following their commencement in March 1994, there were only 18 applications in total under the new equal remuneration provisions, four of which arose from claims for equal remuneration at HPM Industries and David Syme & Co. Only one claim was arbitrated and no equal remuneration orders were made by the Commission.79 The key cases are outlined below.
The first HPM case
[84] In the first HPM case80 the Australian Manufacturing Workers’ Union (AMWU) applied for an equal remuneration order for process and packer workers at HPM Industries’ Darlinghurst site in Sydney. The employees concerned were employed under the Metal Industry Award 1984. The general hands and storepersons were all men and all of the packers and all but four of the 302 process workers were women. Their remuneration was not equal. The primary ground advanced by the union in support of the claim was that the female process workers and female packers did not receive equal remuneration for work of equal value when compared to ‘male General Hands and male Storepersons employed at the same premises’81. The work of the females, it was argued, was at least of equal value to the men as measured by the competency standards adopted by HPM.
[85] In assessing what was required of applicants, Commissioner Simmonds noted that the legislation required the Commission to be satisfied, as a ‘first step’ to making an order, that the relevant rates of remuneration were established ‘without discrimination based on sex’—the test set out in Article 1 of the Equal Remuneration Convention.82 The Commissioner considered the definition of discrimination that should be applied for this purpose and decided to adopt the definition of discrimination adopted by a Full Bench of the Commission inthe Third Safety Net Adjustment and Section 150A Review decision(theOctober 1995 decision),83rather than the definition contained in the Sex Discrimination Act 1984 (Cth), on the basis that it would be undesirable for the Commission to follow two different definitions of discrimination; one for its award making functions and another for the purpose of equal remuneration orders.
[86] To determine whether there had been different treatment of men and women in the same circumstances—and, therefore, direct discrimination—the Commissioner considered whether the work in question was of equal value. On this point, the Commissioner decided that in the absence of agreement, the competency standards relied on by the AMWU ‘are not an adequate tool for assessment for the purposes of this matter’.84 While the Commissioner found that the competency standards provided ‘an objective and gender neutral mechanism for measuring the relative competencies’, they did not provide a means for assessing other attributes, such as ‘elements of responsibility that are not skill-related, the nature of the work and the conditions under which the work is performed’.85
[87] The Commissioner expressed the view that in the absence of agreement ‘the appropriate method of examining ‘equal value’ is to apply the criteria of work value, as described in the relevant wage fixing principle’86. The Commissioner came to this view having regard to the words of the Equal Remuneration Convention at Articles 2 and 3 and subsequent reports of the Committee of Experts. The Commissioner determined that the appropriate authority remained the 1972 Equal Pay Case. The principle adopted in that case explicitly required the Commission to use work value inquiries to determine applications that sought equal pay orders. Commissioner Simmonds defined work value in terms of the wage fixing principles in place at the time of the case, namely ‘the nature of the work, skill and responsibility required or the conditions under which the work is performed’. The Commissioner noted that it was not appropriate for a single Member to establish a new method of work value evaluation applying award competencies in place of the Commission’s established work value principles.87
[88] The Commissioner dismissed the union’s application on the basis that he was not satisfied on the evidence and arguments presented that the different remuneration paid to process workers and packers by comparison to that paid to general hands and storepersons arose in circumstances that were sufficiently similar as to amount to discrimination based on sex. The Commissioner summarised his conclusions in the following terms:
1. That the Commission as presently constituted must follow the definition of discrimination established in the Third Safety Net Adjustment and Section 150A Review decision of the Full Bench [Print M5600].
2. To establish that equal remuneration for work of equal value is justified it is necessary to establish that the rates of remuneration have been established without discrimination based on sex. In the case of direct discrimination it is necessary to establish that the same circumstances exist, and thus the equivalence of the work needs to be established.
3. In the absence of agreement about establishing the equivalence of the work, the competency standards process as provided in clause 6E of the Award is not appropriate. Where there is no agreement the appropriate method is to apply the criteria of work value.
4. There was no agreement in this matter to the use of the competency standards as a method of determining the equivalence of the work.
5. There is insufficient evidence to satisfy the Commission that HPM has indirectly discriminated, in a relevant way, so as to justify the making of an order under Part 2 of Division VIA of the Act.
6. There is no basis for an order of the kind proposed by the Women’s Organisations to mandate a program of equal opportunity and supervise its implementation.88
The second HPM case
[89] In 1998, the AMWU lodged a second application for an equal remuneration order for female process workers and packers at HPM’s Sydney site and sought a retrospective application of any order made dating back to 1985. The matter was settled by the parties in late 1998 by making an enterprise agreement, after more than three years of proceedings before the Commission. Prior to that settlement Justice Munro made a number of observations about the statutory provisions, particularly concerning the meaning of ‘work of equal value’.
[90] While noting that the Commission’s established work value principles and practice should be a primary source of guidance, Justice Munro suggested that a number of evaluation techniques could be applied:
‘14. For the applicant to succeed in this matter, one point on which it will need to satisfy the Commission is that there is not equal remuneration for work of equal value for the class of employees subject to any order that might be made. It may be prudent to assume that the Commission will only be satisfied as to that circumstance if it exists at a time material to, and covered by any order to be made …
15. It follows that evidence about past inequity in the remuneration of work of equal value may be of some probative value in establishing a current inequality. But such evidence is not compelling and it is unlikely to be sufficient to establish the condition precedent in paragraph 170BC(3)(a). On the other hand, evidence about the record of the employment, the positions advertised, the pattern of duties habitually undertaken and practice as to fixing remuneration may be relevant. It could be considered to be so if it were logically probative of facts from which at least inferences might be drawn about the nature and limits of the work and of actual duties, or about remuneration practices, managerial reasons, or the credit of the respondent company’s witnesses. For that reason it is in my view proper for the applicant to seek production of the detailed records available about such matters over a reasonable time period … …
17. Views may differ about what considerations would constitute the elements upon which a particular member of the Commission may be satisfied that, for a particular employee or set of employees, there is not equal remuneration for work of equal value. A subjective judgment is a necessary component of the paragraph 170BC(3)(a) condition precedent to an order. However there must at least be a clear and relatively complete depiction and hopefully finding about both the “work” of the employee(s) to be subject to the order, and the “comparator” work of equal value. Upon the relevant two sets of work content being established, the valuation and relative equivalence of them will need to be established. That forensic task involves a requirement to persuade the Commission of both the validity of an evaluation principle to be used and of the equivalence of value of the work resulting from the application of it.
18. From the submissions put to me, and from the documentation submitted by the applicant union to HPM for agreement, it is apparent that the parties are at issue about the factors or considerations that should be the foundation of any “work value” evaluation. It seems likely that there will be no agreed method of evaluation of the relevant “work”. If that is the case, the applicant will be at liberty to rely upon a method of its own choosing. The adequacy and effectiveness of that, or any competency method if there be one employed by the respondent, will be among the matters that will need to be considered by the relevant Commission member in the determination of the merits of the application. In my view, so far as that determination turns upon the paragraph 170BC(3)(a) condition precedent, it will be open to the Commission member concerned to adopt any method of evaluation that he or she may hold to be adequate and effective in persuading the member to be satisfied about the fact that the relevant work is of equivalent value. As Simmonds C stated in his decision on 4 March 1998, the Commission’s principles and practice related to work value comparison and changes are a primary source of guidance about what factors and considerations are of accepted relevance to such evaluation. However, experience of work value cases suggests that work value equivalence is a relative measure, sometimes dependent up [sic] an exercise of judgment. A history of such cases would disclose that a number of evaluation techniques have been applied for various purposes and with various outcomes from time to time.’89
The first Age case
[91] In Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v David Syme & Co Ltd90 the AMWU made an application for an equal remuneration order for female clerical employees at The Age newspaper. The union argued that female telesales advisers and copy control clerks paid at level one should be paid the same rates as male employees in production jobs classified at level four and machine room operators classified at level three.
[92] The application was for an order under s.170BC of the WR Act, which set out the primary operation of Division 2 of Part VIA. The application also stated that the applicant sought the exercise of the Commission’s powers under s.170BI to prevent an industrial dispute about equal remuneration for work of equal value. As mentioned earlier, s.170BI extended the operation of the Division to empower the Commission to make an equal remuneration order if, among other things, it considered that the order was necessary to prevent an industrial dispute about equal remuneration for work of equal value. The respondent company made four jurisdictional objections to the claim, one of which was that an application for an order under Division 2 of Part VIA cannot rely on the additional operation of the Division created by s.170BI while simultaneously relying on the primary operation of the Division (the ‘alternative remedy point’).
[93] Section 170BHA dealt with applications for alternative remedies. The section provided that ‘an application must not be made under this Division for an order to secure equal remuneration for work of equal value’ if proceedings for an alternative remedy to secure equal remuneration for work of equal value have begun ‘under another provision’ of the FW Act.
[94] On the issue of alternative remedy, Vice President Ross (as he then was) upheld the company’s jurisdictional objection:
‘The determination of the point raised by the Company requires a consideration of the proper construction of s170BHA, in particular:
● what is meant by the expression “An application … under this Division for an order to secure equal remuneration for work of equal value for an employee” in s.170BHA(1); and
● is an application under s.170BI an application for an alternative remedy “under another provision of this Act” within the meaning of s.170BHA(1)(c).
In relation to the first matter I am satisfied that the expression in the opening words of s.170BHA(1) is a reference to an application under s.170BD for an order under s.170BC. In other words the expression refers to an application for an order pursuant to the primary operation of Div 2 of Pt VIA.
Turning to the second issue I have concluded that s.170BI application is an application for an alternative remedy under “another provision” of the Act, within the meaning of s.170BHA(1)(c). In reaching this conclusion I have found the following matters particularly persuasive:
● the distinct differences between the nature of the jurisdiction conferred under s.170BI and that conferred by the other provisions of Div 2 of Pt VIA; (In this regard I have not taken into account the potential effect of s89A(3). This is an important issue which having regard to the other factors I have relied on it is unnecessary for me to determine and I have decided not to do so.)
● s.170BI proceeds on the basis that s.170BA was repealed and s.170BC(3)(b) was omitted. These provisions are fundamental to the Commission’s jurisdiction under the primary operation of Div 2 of Pt VIA.
In my view s.170BI is ‘‘another provision’’ of the Act in the context of s.170BHA(1)(c).
…
In my view the Company is correct in contending that the Commission cannot determine applications under Div 2 of Pt VIA simultaneously in the primary and secondary operation of the Division.’91
The second Age case
[95] In April 1999, the AMWU made a second application for an equal remuneration order for clerical employees at The Age newspaper. The union’s second application was not limited to female employees but sought an order applicable to all clerical workers employed by the company.92 The company again raised a number of jurisdictional matters as threshold issues, including in relation to the Commission’s jurisdiction to issue a summons for the production of documents. Commissioner Whelan considered the matters required to make out the successful elements for an equal remuneration order and agreed with Justice Munro’s comments in the second HPM case that ‘considerable uncertainty exists about the elements necessary to make out a proper case’.93 She also observed that in determining whether there is equal remuneration for work of equal value:
ANNEXURE 4 – State principles of wage fixation – equal remuneration
New South Wales
Industrial Relations Commission of New South Wales
State Wage Case 2008
Wage Fixing Principles
14. Equal remuneration and other conditions
a. Claims may be made in accordance with the requirements of this principle for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required, or the conditions under which the work is performed, have been undervalued on a gender basis.
b. The assessment of the work, skill and responsibility required under this principle is to be approached on a gender neutral basis and in the absence of assumptions based on gender.
c. Where the undervaluation is sought to be demonstrated by reference to any comparator awards or classifications, the assessment is not to have regard to factors incorporated in the rates of such other awards which do not reflect the value of work, such as labour market attraction or retention rates or productivity factors.
d. The application of any formula, which is inconsistent with proper consideration of the value of the work performed, is inappropriate to the implementation of this principle.
e. The assessment of wage rates and other conditions of employment under this principle is to have regard to the history of the award concerned.
f. Any change in wage relativities which may result from any adjustments under this principle, not only within the award in question but also against external classifications to which the award structure is related, must occur in such a way as to ensure there is no likelihood of wage leapfrogging arising out of changes in relative positions.
g. In applying this principle, the Commission will ensure that any alternation to wage relativities is based upon the work, skill and responsibility required, including the conditions under which the work is performed.
h. Where the requirements of this principle have been satisfied, an assessment shall be made as to how the undervaluation should be addressed in money terms or by other changes in conditions of employment, such as reclassification of the work, establishment of new career paths or changes in incremental scales. Such assessments will reflect the wages and conditions of employment previously fixed for the work and the nature and extent of the undervaluation established.
i. Any changes made to the award as the result of this assessment may be phased in and any increase in wages may be absorbed in individual employees’ overaward payments.
j. Care should be taken to ensure that work, skill and responsibility which have been taken into account in any previous work value adjustments or structural efficiency exercises are not again considered under this principle, except to the extent of any undervaluation established.
k. Where undervaluation is established only in respect of some persons covered by a particular classification, the undervaluation may be addressed by the creation of a new classification and not by increasing the rates for the classification as a whole.
l. The expression ‘the conditions under which the work is performed’ has the same meaning as in principle 6, Work Value Change.
m. The Commission will guard against contrived classification and over classification of jobs. It will also consider:
i. the state of the economy of New South Wales and the likely effect of its decision on the economy;
ii. the likely effect of its decision on the industry and /or the employers affected by the decision; and
iii. the likely effect of its decision on employment.
n. Claims under this principle will be processed before a Full Bench of the Commission, unless otherwise allocated by the President.
o. Equal remuneration shall not be achieved by reducing any current wage rates or other conditions of employment.
p. In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award.
Source: Extract from Industrial Relations Commission of New South Wales, State Wage Case 2008 [2008] NSWIRComm 122.
Queensland
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
EQUAL REMUNERATION PRINCIPLE
1. This principle applies when the Commission:
a. makes, amends or reviews awards;
b. makes orders under Chapter 2 Part 5 of the Industrial Relations Act 1999;
c. arbitrates industrial disputes about equal remuneration; or
d. values or assesses the work of employees in “female” industries, occupations or callings.
2. In assessing the value of work, the Commission is required to examine the nature of work, skill and responsibility required and the conditions under which work is performed as well as other relevant work features. The expression “conditions under which work is performed” has the same meaning as in Principle 7 “Work Value Changes” in the Statement of Policy regarding Making and Amending Awards.
3. The assessment is to be transparent, objective, non-discriminatory and free of assumptions based on gender.
4. The purpose of the assessment is to ascertain the current value of work. Changes in work value do not have to be demonstrated.
5. Prior work value assessments or the application of previous wage principles cannot be assumed to have been free of assumptions based on gender.
6. In assessing the value of the work, the Commission is to have regard to the history of the award including whether there have been any assessments of the work in the past and whether remuneration has been affected by the gender of the workers. Relevant matters to consider may include:
a. whether there has been some characterisation or labeling of the work as “female”;
b. whether there has been some underrating or undervaluation of the skills of female employees;
c. whether remuneration in an industry or occupation has been undervalued as a result of occupational segregation or segmentation;
d. whether there are features of the industry or occupation that may have influenced the value of the work such as the degree of occupational segregation, the disproportionate representation of women in part- time or casual work, low rates of unionisation, limited representation by unions in workplaces covered by formal or informal work agreements, the incidence of consent awards or agreements and other considerations of that type; or
e. whether sufficient and adequate weight has been placed on the typical work performed and the skills and responsibilities exercised by women as well as the conditions under which the work is performed and other relevant work features.
7. Gender discrimination is not required to be shown to establish undervaluation of work.
8. Comparisons within and between occupations and industries are not required in order to establish undervaluation of work on a gender basis.
9. Such comparisons may be used for guidance in ascertaining appropriate remuneration. The proper basis for comparison is not restricted to similar work.
10. Where the principle has been satisfied, an assessment will be made as to how equal remuneration is to be achieved. Outcomes may include but are not limited to the reclassification of work, the establishment of new career paths, changes to incremental scales, wage increases, the establishment of new allowances and the reassessment of definitions and descriptions of work to properly reflect the value of the work.
11. There will be no wage leapfrogging as a result of any changes in wage relativities arising from any adjustments under this principle.
12. The Commission will guard against contrived classifications and over-classification of jobs.
13. The Commission may determine in each case whether any increases in wages will be absorbed into overaward payments.
14. Equal remuneration will not be achieved by reducing current wage rates or other conditions of employment.
15. The Commission may decide to phase in any decision arising from this principle. Any affected employer may apply to have any decision phased in. The merit of such application will be determined in the light of the particular circumstances of each case and any material relating thereto will be rigorously tested.
16. Claims brought under this principle will be considered on a case by case basis.
Source: Queensland Industrial Relations Commission, Equal Remuneration Principle (2002) 114 IR 305.
Western Australia
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
2008 STATE WAGE ORDER,
Schedule 2
STATEMENT OF PRINCIPLES – July 2008
10. Making or Varying an Award or issuing an Order which has the effect of varying wages or conditions above or below the award minimum conditions
10.1 An application or reference for a variation in wages which is not made by an applicant under any other Principle and which is a matter or concerns a matter to vary wages above or below the award minimum conditions may be made under this Principle. This may include but is not limited to matters such as equal remuneration for men and women for work of equal or comparable value.
10.2 Claims may be brought under this Principle irrespective of whether a claim could have been brought under any other Principle.
10.3 All claims made under this Principle will be referred to the Chief Commissioner for him to determine whether the matter should be dealt with by a Commission in Court Session or by a single Commissioner.
Source: Western Australian Industrial Relations Commission, extract from 2008 State Wage Order, schedule 2, 2008 WAIRC 00366.
South Australia
SOUTH AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
STATE WAGE CASE, JULY 2005
STATEMENT OF PRINCIPLES
Statement of Principles
4. WHEN AN AWARD MAY BE VARIED OR ANOTHER AWARD MADE WITHOUT THE CLAIM BEING REGARDED AS ABOVE OR BELOW THE SAFETY NET
In the following circumstances an Award may, on application, be varied or another Award made without the application being regarded as a claim for wages and /or conditions above or below the Award safety net:
4.1 to include previous State Wage Case increases in accordance with principle 5;
4.2 to incorporate test case standards in accordance with principle 6;
4.3 to adjust allowances and service increments in accordance with principle 7;
4.4 to adjust wages pursuant to work value changes in accordance with principle 8;
4.5 to reduce standard hours to 38 per week in accordance with principle 9;
4.6 to adjust wages for Arbitrated Safety Net Wage adjustments in accordance with principles 10 and 12.3;
4.7 to vary an Award to include the State Minimum Award Wage in accordance with principle 11;
4.8 to provide procedures for Awards with outstanding adjustments in accordance with principle 12;
4.9 to vary an Award to provide for equal remuneration for work of equal value.
Source: Extract from South Australian Industrial Relations Commission, State Wage Case, July 2005 [2005] SAIR Comm 29 (29 July 2005)
Tasmania
TASMANIAN INDUSTRIAL COMMISSION REVIEW OF WAGE FIXING PRINCIPLES
JULY 2008
THE PRINCIPLES
10. PAY EQUITY
10.1 In this Principle ‘pay equity’ means equal remuneration for men and women doing work of equal value.
10.2 Applications may be made for making or varying an award in order to implement pay equity.
Such applications will be dealt with according to this principle.
10.3 Pay equity applications will require an assessment of the value of work performed in the industry or occupation the subject of the application, irrespective of the gender of the relevant worker. The requirement is to ascertain the value of the work rather than whether there have been changes in the value of the work. The Commission may take into account
the nature of the work, the skill, responsibility and qualifications required by the work and the conditions under which the work is performed (which has the same meaning as it does for Principle 9 - Work Value Changes).
10.4 A prior assessment by the Commission (or its predecessors) of the value of the work the subject of the application, and /or the prior setting of rates for such work, does not mean that it shall be presumed that the rates of pay applying to the work are unaffected by the gender of the relevant employees. The history of the establishment of rates in the award the subject of the application will be a consideration. The Commission shall broadly assess whether the past valuation of the work has been affected by the gender of the workers.
10.5 The operation of this principle is not restricted by the operation of other wage fixing principles. However, in approaching its task, the Commission will have regard to the public interest requirements of Section 36 of the Act.
Source: Extract from Tasmanian Industrial Relations Commission, State Wage Case Decision and Review of Wage Fixing Principles, 2008.
1 For convenience, the term ‘Commission’ has been used to also describe the various predecessor bodies in the federal jurisdiction i.e. Conciliation and Arbitration Commission, Australian Industrial Relations Commission, Fair Work Australia and the Fair Work Commission.
2 The amended application of 3 September 2015 was served on the parties on 26 and 27 November 2015.
3 United Voice and the Australian Education Union, Further amended application by United Voice and the Australian Education Union, 27 November 2013, Further Amended Annexure A at paras 2A–3.
4 Independent Education Union of Australia, Amended application by the Independent Education Union of Australia, 28 November 2013, Annexure B at para 2.
5 Ibid, Annexure A at para 4.1.
6 Pay Equity Unit, Proposal for facilitated consultation on data for C2013/5139, 19 September 2013, p. 2.
7 Romeyn, J., Archer, S-K. & Leung, E. (2011), Review of equal remuneration principles, Research Report 5/2011, Fair Work Australia, Melbourne.
8 Transcript of proceedings, 24 September 2013, PN293.
9 Transcript of proceedings, 24 September 2013, PN420.
10 Transcript of proceedings, 24 September 2013, PN438–PN440.
11 Transcript of proceedings, 19 November 2013, PN586.
12 ILO (2012), ‘Giving Globalisation a Human Face: General Survey on the Fundamental Conventions concerning rights at work in light of the ILO Declaration for Social Justice for a Fair Globalisation 2008’, ILC. 101/111/1B.
13 See Human Rights and Equal Opportunity Commission (HREOC) ( 2007), It’s about time: Women, men, work and family, HREOC, Sydney; Swepston 2000; Gunderson, M. ( 1994), Comparable worth and gender discrimination: An international perspective, International Labour Office, Geneva, pp. :5–9; Making it Fair: Pay equity and associated issues related to increasing female participation in the workforce, House of Representatives Standing Committee on Employment and Workplace Relations 2009: pp. 8–9; and Preston A. and Whitehouse, G. ( 2004), Gender differences in occupation of employment within Australia’, Australian Journal of Labour Economics, vol. 7 no. 3, pp. 311–312..
14 Making it Fair: Pay equity and associated issues related to increasing female participation in the workforce, House of Representatives Standing Committee on Employment and Workplace Relations 2009: pp. 8–9.
15 Romeyn, J., Archer, S-K. & Leung, E. (2011), Review of equal remuneration principles, Research Report 5/2011, Fair Work Australia, Melbourne.
16 FW Act, s.284(1)(d) and s.134(1)(e).
17 [2014] FWCFB 3500 at paras 476–484.
18 [2015] FWCFB 3500 at para 481.
19 ABS, Gender Indicators, Australia, August 2015, Catalogue 4125.0.
20 Workplace Gender Equality Agency (2015), Australia’s gender equality scorecard: Key findings from the Workplace Gender Equality Agency’s 2014–15 reporting data, Australian Government, November.
21 Smith M (2011), ‘Gender equity: The Commission’s legacy and the challenge for Fair Work Australia’, Journal of Industrial Relations 53(5) at pp. 647–661, see Figure 1 on p. 654.
22 Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 10 December 1983).
23 Recommendation concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 1951 (ILO 90).
24 Equal Remuneration Convention, opened for signature 29 June 1951, ILO 1951 (No. 100) (entered into force 10 December 1974).
25 Convention concerning Discrimination in Respect of Employment and Occupation, 1958 (ILO 111); Recommendation concerning Discrimination in Respect of Employment and Occupation, 1958 (ILO 111), art 2.
26 See Shop, Distributive and Allied Employees Association (No. 2) (2012) 205 FCR 227 at para 35 per Tracey J.
27 (2014) 225 FCR 154 at para 109.
28 [2015] FWCFB 3500 at paras 492–493.
29 See Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue(Northern Territory) (2009) 239 CLR 27 at [4]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at para 408.
30 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at para 59; Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union[2014] FWCFB 2042 at paras 26–37; Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union (2012) 219 IR 139 at paras 16–19.
31 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at para 69.
32 See Prior v Sherwood (1906) 3 CLR 1054; R v Refshauge (1976) 11 ALR 471 at p. 475.
33 (1998) 194 CLR 355 at para 78 per McHugh, Gummow, Kirby and Hayne JJ. Also see Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 at paras 65–66.
34 Ross v R (1979) 141 CLR 432 at para 440; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at para 479.
35 (2009) 239 CLR 27 at para 47.
36 Mills v Meeking (1990) 169 CLR 214 at para 235 per Dawson J; R v L (1994) 49 FCR 534 at para 538.
37 Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at para 579; Bowling v General Motors Holden Ltd (1980) 33 ALR 297 at para 304.
38 (1969) 127 CAR 1142; (1972) 147 CAR 172.
39 For convenience, the term ‘Commission’ has been used to also describe the various predecessor bodies in the federal jurisdiction i.e. Conciliation and Arbitration Commission, Australian Industrial Relations Commission, Fair Work Australia and the Fair Work Commission.
40 (1974) 157 CAR 293.
41 (1967) 118 CAR 655.
42 Ibid at p. 660.
43 Ibid at p. 660.
44 (1969) 127 CAR 1142.
45 Ibid at p. 1156.
46 See Australasian Meat Industry Employees Union v Meat & Allied Trades Federation of Australia (Equal Pay Case) (1969) 127 CAR 1142 at paras 1158–1159.
47 See National Wage and Equal Pay Cases 1972 (1972) 147 CAR 172.
48 Ibid at p. 177.
49 Ibid at p. 177.
50 See: Short C (1986), ‘Equal pay, what happened?’, Journal of Industrial Relations, Vol. 28, No.3, pp. 315–335; Borland J (1999), ‘Earnings inequality in Australia: Changes, causes and consequences’, Economic Record vol. 75, pp. 177–202; Eastough K and Miller P (2004), ‘The gender pay gap in paid and self-employment in Australia’, Australian Economic Papers, Vol. 43, No. 3, pp. 257–276; Smith M (2009), ‘Gender pay equity reform in Australia: What in the way forward?’, Australian Bulletin of Labour, vol. 35, no. 4, pp. 652–670.
51 (1972) 147 CAR 172 at p.178.
52 Ibid at p. 178.
53 Ibid at p. 180.
54 Ibid at pp. 179–180.
55 (1974) 157 CAR 293.
56 Eastough, K. & Miller, P. (2004), ‘The gender pay gap in paid- and self-employment in Australia’, Australian Economic Papers, September 2004, p. 258.
57 Smith, M. (2009), ‘Gender pay equity reform in Australia: What is the way forward?’, Australian Bulletin of Labour, Vol. 35, No. 4, p. 653.
58 Gregory, R. & Duncan, R. (1981) ‘Segmented labor market theories and the Australian experience of equal pay for women’, Journal of Post Keynesian Economics, Vol. 3, No. 3, p. 426; Gregory, R. (1999), ‘Labour market institutions and the gender pay ratio’, Australian Economic Review, Vol. 32, No. 3, p. 277; Whitehouse, G. (2001), ‘Recent trends in pay equity: Beyond the aggregate statistics’, Journal of Industrial Relations, Vol.43, No.1, p. 66.
59 Kidd, M.P. & Meng, X. (1997), Trends in the Australian gender wage differential over the 1980s: Some evidence on the effectiveness of legislative reform’, Australian Economic Review, Vol. 30, No. 1, pp. 40–41.
60 Short, C. (1986), ‘Equal pay — What happened?’, Journal of Industrial Relations, Vol.28, No.3, p. 325.
61 Scutt, J. (1992), ‘Inequity before the law: Gender, arbitration and wages’, in K. Saunders & R. Evans (eds.), Gender domination in Australia: Domination and negotiation, Harcourt Brace, Sydney, p.282.
62 Thornton, M (1981), ‘(Un)equal pay for work of equal value’, Journal of Industrial Relations, Vol.23, No.4, p. 473, 477–480; Bennett, L. (1988), ‘Equal pay and comparable worth and the Australian Conciliation and Arbitration Commission’, Journal of Industrial Relations, vol.30, no.4, pp.540–541; Rafferty, F. (1994), ‘Equal pay: The evolutionary process 1984–1994’, Journal of Industrial Relations, vol.36, no.4, pp.453–454; Smith, M. (2009), ‘Gender pay equity reform in Australia: What is the way forward?’, Australian Bulletin of Labour, Vol.35, No.4, p. 655.
63 See Re Private Hospitals’ and Doctors Nurses’ (ACT) Award 1972 (1986) 13 IR 108.
64 See e.g. Re Private Hospitals’ and Doctors Nurses’ (ACT) Award 1972 (1987) 20 IR 420.
65 The claims did not extend to registered nurses employed by the Australian Government in Victoria.
66 (1986) 13 IR 108.
67 National Wage and Equal Pay Case (1972) 147 CAR 172 p. 179–180 per Moore J, (Acting President) Robinson J, Coldham J Deputy Presidents, Taylor Public Service Arbitrator and Brack Commissioner, 15 December 1972.
68 Ibid at p. 113.
69 (1987) 20 IR 420.
70 The Commission made no finding as to whether the work value principle had been satisfied in relation to the work of nurses at the Repatriation General Hospital, Greenslopes Queensland because no evidence was presented in respect of those nurses: (1987) 20 IR 420 at p. 443.
71 (1987) 20 IR 420 at pp. 446–447.
72 National Wage Case 1991, (1991) 39 IR 127.
73 See Rafferty F (1994), ‘Equal pay: The evolutionary process 1984–1994’, Journal of Industrial Relations Vol. 36, No. 4 pp. 451–467.
74 As it transpired, in Victoria v Commonwealth (1996) 187 CLR 416 the High Court upheld the validity of Division 2 under both the external affairs and conciliation and arbitration powers.
75 Smith, M. (2009), ‘Gender pay equity reform in Australia: What is the way forward?’, Australian Bulletin of Labour, vol. 35, no. 4, pp. 658; Smith, M. (2010), ‘Statement by Meg Smith in the matter of the application by the Australian Municipal, Administrative, Clerical and Services Union and others for an equal remuneration order in the social and community services industry’, Fair Work Australia no. C2010/3131, p. 11.
76 Dale et al., Pay equity: how to address the gender pay gap, A research report for Industrial Relations Victoria, Department of Innovation, Industry and Regional Development, Melbourne, February 2005 (URCOT 2005), pp. 144–147.
77 Smith 2010: 16; URCOT 2005: 148.
78 Smith 2010: 14–15; Smith, M. (2009), pp. 659–660.
79 Smith 2009: p. 658; Smith, M. (2010).
80 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v HPM Industries (1998) 94 IR 129.
81 (1998) 94 IR 129 at para 137.
82 Ibid at para 159.
83 (1995) 61 IR 236.
84 (1998) 94 IR 129 at para 159.
85 Ibid at para 159.
86 Ibid at para 160.
87 Ibid at para 161.
88 Ibid at para 165.
89 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v HPM Industries Print Q1002, 19 May 1998 at paras 14–18.
90 (1999) 97 IR 374.
91 (1999) 97 IR 374 at paras 23–26 and 31.
92 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v David Syme & Co Ltd (Australian Industrial Relations Commission, Print R5199, 26 May 1999).
93 Ibid at para 20.
94 Ibid at para 28.
95 See Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v David Syme & Co Ltd (Australian Industrial Relations Commission, Print R5856, 10 June 1999).
96 URCOT (2005), p. 144.
97 PR914868, 1 March 2002.
98 Automotive, Food, Metals, Engineering and Kindred Industries Union v Gunn and Taylor (2002) 115 IR 353.
99 Ibid at para 23.
100 The WR Act, s.222(1)(a).
101 Workplace Relations Amendment (Work Choices) Bill 2005, Explanatory Memorandum, at 2031.
102 Smith, M. (2009), p. 15.
103 (2008) 172 IR 119 at p. 194.
104 (2009) 183 IR 1 at 11.
105 NSW IR Act s.3(f).
106 NSW IR Act ss.19, 21 and 23.
107 Glynn J. (1998), ‘Pay Equity Inquiry – Report to the Minister’, NSW Government Printer, Sydney, at Volume 1 pp. 45–46.
108 Section 51 provides that a Full Bench of the Commission may, if satisfied that it is consistent with the objects of this Act and that there are good reasons for doing so, make a State decision setting principles or provisions for the purposes of awards and other matters under this Act.
109 Re Equal Remuneration Principle (2000) 97 IR 177.
110 State Equal Pay Case [1973] AR 425.
111 Re Equal Remuneration Principle (2000) 97 IR 177.
112 Crown Librarians, Library Officers and Archivists Award Proceedings – Applications under the Equal Remuneration Principle (2002) 111 IR 48; Re Miscellaneous Workers’ Kindergartens and Child Care Centres etc. (State) Award (2006) 150 IR 290.
113 Fisher, G. (2001) Worth Valuing: A report of the Pay Equity Inquiry, QIRC at p. 13.
114 Ibid at p. 5.
115 Re Equal Remuneration Principles (2002) 114 IR 305.
116 See LHMU v The Australian Dental Association (Queensland Branch) Union of Employers [2005] QIRComm 139; Child Care Industry Award – State 2003 [2006] QIRComm 72; LHMU v Children's Services Employers Association [2006] QIRComm 50; Queensland Services, Industrial Union of Employees v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others[2009] QIRComm 33; AWU v Queensland Community Services Employers Association Inc. [2009] QIRComm 69.
117 Tasmania Department of Premier and Cabinet (2000), Annual report of the Department of Premier and Cabinet 1999–2000, Department of Premier and Cabinet, Hobart, 47–48.
118 State Wage Case July 1999 T8413/1999 T8483/1999 (Tasmanian Industrial Commission, 6 July 2000).
119 WA IR Act, s.6(ac); s. 50A(3)(vii).
120 State Wage Order [2014] WAIRComm 485 (16 June 2014), Schedule 2 (10.1)
121 SA IR Act, s.1(n) , s.69(2), s.90A.
122 See Industrial Relations (Commonwealth Powers) Act 2009 (NSW); Fair Work (Commonwealth Powers) Act 2009 (SA) and Statutes Amendment (National Industrial Relations System) Act 2009 (Tas); Fair Work(Commonwealth Powers) Act 2009 (Vic).
123 The Health Services Union, the Australian Workers’ Union of Employees (Queensland), United Voice and the Australian Education Union.
124 Queensland Community Services and Crisis Assistance Award [2009] QIRComm33 at p. 32.
125 Queensland Community Services and Crisis Assistance Award – State 2008.
126 Re Equal Remuneration Case (2011) 208 IR 345.
127 Ibid at p. 227.
128 Ibid at pp. 233–234.
129 Ibid at p. 232.
130 Ibid at p. 233.
131 Ibid at p. 252, 266.
132 Ibid at p. 248–249.
133 Ibid at p. 277.
134 Ibid at p. 279.
135 Ibid at p. 282.
136 Ibid at p. 285.
137 Ibid at p. 291.
138 Ibid at para 289.
139 Re Equal Remuneration Case (2012) 208 IR 446.
140 Joint submission of Applicants and the Australian Government, 17 November 2011, para 2.23.
141 Re Equal Remuneration Case (2012) 208 IR 446 at para 58.
142 Ibid at p. 63.
143 Ibid at p. 63.
144 Ibid at p. 63.
145 Ibid at pp. 64–65.
146 Ibid at p. 84.
147 Ibid at p. 122.
148 Ibid at p. 96.
149 Ibid at p. 99.
150 Ibid at p. 86.
151 Ibid at p. 112.
152 Ibid at pp. 119–120.
153 Ibid at p. 119.
154 Layton et al at p. 104.
155 (1990) 169 CLR 245 at [269]. Also see R v Moore; ex parte Australian Telephone and Phonogram Officers’ Association [1982] HCA 5; (1982) 148 CLR 600 (11 February 1982).
156 Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
157 (2003) 127 IR 205.
158 (2003) 127 IR 205 at para 48. Also see Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
159 The same is true in relation to any ‘old’ awards, agreements or pay scales that remain in effect from previous legislation: Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 10 item 3.
160 See: Commonwealth submission dated 23 May 2014 at p. 3, paras 7–8; Ai Group submission dated 31 March 2014 at pp. 3–4; ABL submission dated 4 April 2014 at p. 11, para 42; AFEI submission dated 31 March 2014 at p. 3 paras 10-11; Transcript of proceedings, 22 April 2014 at PN1079 and PN1150.
161 Re McComb [1999] 3 VR 485.
162 FW Act, s.300.
163 Waugh v Kippen (1986) 160 CLR 156 at para 164. Also see X v Commonwealth (1999) 200 CLR 177 at para 146 per Kirby J.
164 Bull v Attorney General (NSW) (1913) 17 CLR 370 at para 384.
165 See Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638; and ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 at para 29 per French CJ, Crennan, Kiefel and Keane JJ.
166 (1997) 191 CLR 1 at 12.
167 Section 3 only includes a general statement in respect of Australia’s international labour obligations:
‘Section 3 The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations;…’ (emphasis added)
168 HR Pay Equity Inquiry report at paragraphs 5.1–5.81 and recommendations 1–4.
169 (2011) 208 IR 345 at para 234.
170 (2011) 208 IR 345 at para 226.
171 Fair Work Bill 2008, Explanatory Memorandum at paras 1191–1192.
172 (2005) 221 CLR 568 at 12–13.
173 218 CLR 216 at para 103..
174 Bowker, Coombe and Zwarts v DP World and Ors (2014) 221 CLR 568 at paras 12–13.
175 See s.33(2A) of the Acts Interpretation Act 1901 (Cth).
176 Macdonald & Charlesworth 2013: 581–583.
177 21.4 per cent of females and 16.1 per cent of males were award reliant as at May 2014: ABS, Employee Earnings and Hours, Australia, May 2014, Catalogue No. 6306.0.
178 [2015] FWCFB 3500 at paras 492–493.
179 R v Australian Broadcasting Tribunal: Ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49; Bowling v General Motors-Holden’s Pty Ltd (1980) 50 FLR 79 at 94; Liddell at 465 and 473.
180 Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at 579; Bowling v General Motors Holden Ltd (1980) 33 ALR 297 at p. 304).
181 (2011) 208 IR 345 at 273–274.
182 The practical impediments to bargaining faced by small businesses are discussed in the 4 yearly review of modern awards – Annual Leave decision [2015] FWCFB 3406 at paras 287–301.
183 We note that a number of employer parties in the proceedings relied on the decision of Vice President Watson in SACS Case No. 2 and in particular his Honour’s observation at para 119 that:
‘The consequences of this are clear. If the claim in this matter is granted, it is inevitable that there will be very little or no enterprise bargaining in the entire SACS industry for very many years, probably decades. To selectively extract an entire industry from the enterprise bargaining legislative framework is a change of mammoth proportions. It is significant enough for the SACS industry alone. The precedent it creates for many other industries who cannot afford to pay significantly above the award and are female dominated highlights the need for great caution. It is not an overstatement to suggest that the future status of enterprise bargaining in this and other industries with similar attributes is at stake.’
In reply to a question on notice the Commonwealth confirmed that no evidence was tendered by any party in the SACS proceedings that supported the finding set out above.
184 Ai Group, further submissions in reply, 23 May 2014 at paras 13 and 14.
185 See Norbis v Norbis (1986) 161 CLR 513 at 533 per Wilson and Dawson JJ and 537 per Brennan J.
186 Submissions in reply of the New South Wales Minister for Industrial Relations (Intervening), 9 April 2014, para 51.
187 See SACS No 1 Decision, (2011) 208 IR 345 at para 256; Report at p.153.
188 Ai Group submission in reply, 14 May 2014 at paras 17–18.
189 ACCI and others submission on the legislative and conceptual framework, 24 February 2014 at para 162.
190 Ai Group submission in reply, 14 May 2014 at para 17.
191 Commonwealth submission at para 58.
192 Explanatory Memorandum for the Fair Work Bill 2008 at para 1196.
193 Ai Group further submission 15 May 2014 at para 11.
194 IEUA submission, 24 February 2014 at para 88.
195 ACCI and others submission on the legislative and conceptual framework 24 Feb 2014 at para 114.
196 Ai Group submission in reply 14 May 2014 at para 5.
197 (1932) 47 CLR 1 at p. 7.
198 (1949) 78 CLR 529 at p. 550.
199 ACCI and others submission, 24 February 2014 at para 141.
200 (1997) 73 IR 311.
201 Ibid at para 317.
202 IEUA, 24 February 2014 at para 9.
203 Ibid at para 10.
204 Layton et al. report at p. 118.
205 (2000) 97 IR 177.
206 Ibid at para 154.
207 See s.406 of the NSW IR Act.
208 (2002) 111 IR 48.
209 (2006) 150 IR 290.
210 Equal Remuneration Principle (2002) 114 IR 305.
211 See LHMU v The Australian Dental Association (Queensland Branch) Union of Employers [2005] QIRComm 139; Child Care Industry Award – State 2003 [2006] QIRComm 72; LHMU v Children's Services Employers Association [2006] QIRComm 50; Queensland Services, Industrial Union of Employees v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others[2009] QIRComm 33; AWU v Queensland Community Services Employers Association Inc. [2009] QIRComm 69.
212 (2005) 145 IR 120 at para 25.
213 (1997) 78 IR 78 at 81.
214 See e.g. Safety Net Review—Wages June 2005 (2005) 142 IR 1 at 125; Australian Liquor Hospitality and Miscellaneous Workers Union re Child Care Industry (Australian Capital Territory) Award 1998 and Children’s Services (Victoria) Award 1998—re: Wage rates [2005] AIRC 28 at [186]–[190]; Re Public Hospital Nurses(State)Award (No. 4) (2003) 131 IR 17 at [16]–[22].
215 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v HPM Industries Print Q1002, 19 May 1998.
216 Glynn J. (1998), ‘Pay Equity Inquiry – Report to the Minister’, NSW Government Printer, Sydney, at Volume 2, p.129.
217 Re Metalliferous Mines, &c., General (State) Award [1928] AR (NSW) 466 at 471.
218 Explanatory Memorandum, Fair Work Bill 2008 (Cth), 1191.
219 United Voice and AEU submissions, 14 May 2014 at para 4.
220 ‘Smith, M. and Stewart, A. (2014) Equal remuneration and the Social and Community Services case: Progress or diversion on the road to pay equity?, Australian Journal of Labour Law 27(31): 31–56.
221 Ibid at 31–56.
222 (2011) 208 IR 345 at 234.
223 Ibid at para 286.
224 (2012) 208 IR 446 at 60–66.
225 Ibid at para 103.
226 (2009) 239 CLR 27 at para 47.
227 Explanatory Memorandum, Fair Work Bill 2008 (Cth), 1192.
228 Equal Pay Act 1970 (UK), s.1(3); 29 US Code � 206(d)(1).
229 [1930] VLR 25 at 30; also see O’Sullivan v Barton [1947] SASR 4; CFMEU v Hadgkiss (2007) 169 FCR 151; Peabody Moorvale Pty Ltd v CFMEU [2014] FWCFB 2042 at paras 95–98.
230 (2002) 115 IR 353.
231 (1994) 56 IR 447.
232 (1995) 60 IR 68.
233 (1995) 58 IR 40.
234 [1996] IRCA 614 (6 December 1996).
235 See generally: Star D. and R. Catanzariti, ‘Just what is an Adequate Alternative Remedy? (1995) 8 Australian Journal of Labour Law 169; and Stewart A, ‘And (Industrial) Justice for All? Protecting Workers Against Unfair Dismissal’ (1995) 1 Flinders Journal of Law Reform 85.
236 (1994) 55 IR 326.
237 Ibid at 329.
238 Ibid at 330.
239 (1994) 56 IR 447 at 457.
240 Ibid at 458–459.
241 Ibid at 475.
242 Ibid at 458–462.
243 Ibid at 464. Also see Gray J at 472–473.
244 Ibid at 460–462.
245 Ibid at 475–476.
246 Ibid at 455–456.
247 Ibid at 476.
248 Australian Federation of Employers and Industries Submissions, 24 February 2014 at [64] and Australian Industry Group, Submission on the Legislative and Conceptual Framework relevant to the equal remuneration proceedings, 24 February 2014, at p. 15.
249 Commonwealth of Australia, Submissions for the Commonwealth of Australia in response to questions raised by the Full Bench of the Fair Work Commission on 22 April 2014, 6 May 2014 at para 10.
250 ACCI and others submission, 24 February 2014 at p. 3, para 8.
251 IEUA submission, 31 March 2014 at pp.4–5, para 15.
252 CCIWA submission, 31 March 2014 at p. 1, para 3.
253 Commonwealth submission, 24 February 2014 at p. 5, para 26.
254 AEU and United Voice submission, 31 March 2014 at pp. 12–13, para 56.
255 (2011) 208 IR 345 at [289]
256 As noted by Aickin J in R v Moore; Ex parte Australia Telephone and Phonogram Officers’ Association (Moore) (1982) 148 CLR 600 at 627, and see Gibbs CJ with whom Stephen J agreed) at 611–614. Also see R v Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461 at 475 per Dixon CJ which was cited by Gibbs CJ in Moore, at 611, in support of the proposition that the Commission ‘may in the course of settling particular disputes formulate a principle and consistently apply it to cases falling within it’.
257 AEU and United Voice submission, 24 February 2014 at para 98.
258 AEU and United Voice submission, 24 February 2014 at para 98; para 109.
259 ACA et al. submission, 25 February 2014 at paras 6–7.
260 IEUA submission, 14 November 2013 at para 3. IEUA submission, 24 February 2014 at para 11; para 37; para 107.
261 ACCI and others submission, 24 February 2014 at paras 9–11.
262 Ai Group submission, 24 February 2014 at p. 2.
263 CCIWA submission, 31 March 2014 at para 3.
264 Victorian Government submission, 24 February 2014 at para 85.
265 New South Wales Government submission, 9 April 2014 at paras 53–54.
266 Commonwealth submission, 23 May 2014 at paras 5–6.
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