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Equal Remuneration Decision 2015

Equal Remuneration Decision 2015

Case [2015] FWCFB 8200 30 November 2015

Equal Remuneration

Discrimination

Children’s services

Early childhood education industry

Employment & Labour Law

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[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
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HARRISON

MELBOURNE, 30 NOVEMBER 2015

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”…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Equal Remuneration Decision 2015 [2015] FWCFB 8200
Case: [2015] FWCFB 8200
Decision Date: 30 NOVEMBER 2015

CaseChat Overview and Summary

In the case before the Fair Work Commission, the Australian Council of Trade Unions sought an order for equal remuneration for workers in the early childhood education and care sector, asserting that female-dominated roles were undervalued and underpaid compared to male-dominated roles within the same industry. The Commission was tasked with determining whether there existed a gender pay gap within this sector and, if so, whether it was justified under the provisions of the Fair Work Act 2009.

The central legal issue before the Commission was to establish whether there was a gender-based pay disparity in the early childhood education and care sector that warranted intervention under the equal remuneration provisions. Additionally, the Commission needed to assess if any identified disparity could be justified under the Act, considering factors such as skill, responsibility, and working conditions. The Commission also had to determine the appropriate method for calculating the pay equity adjustments necessary to achieve equal remuneration.

The Commission found that there was a significant gender pay gap in the early childhood education and care sector, with female-dominated roles consistently underpaid compared to male-dominated roles. The Commission determined that this disparity could not be justified under the Fair Work Act, as the differences in pay were not attributable to genuine differences in skill, responsibility, or working conditions. Consequently, the Commission ordered a series of pay adjustments to achieve equal remuneration for workers in the sector, with specific recommendations for implementing these changes. The decision underscored the importance of ensuring fair pay practices in industries traditionally dominated by one gender.

Orders