Extent of Protection
Discrimination in compensation or benefits is prohibited under federal, State and Territory legislation. For example, under the Sex Discrimination Act 1984 (Cth), it is unlawful for an employer to discriminate on the grounds of sex relating to the terms and conditions of employment provided to employees, which relevantly includes, but is not limited to, employees’ pay and related benefits in their employment.
Furthermore, the Workplace Gender Equality Agency is a statutory agency within the Department of Prime Minister and Cabinet that collects mandatory reporting data from all non-public sector employers with 100 or more employees in their corporate structure. Relevantly, the WGEA collects information regarding identified “gender equality indicators” that relate to:
- gender composition of the workforce;
- gender composition of governing bodies of relevant employers;
- equal remuneration between women and men;
- availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
- consultation with employees on issues concerning gender equality in the workplace; and
- sexual harassment and harassment on the ground of sex.
The Agency’s data report can be accessed from its website here https://www.wgea.gov.au/data-statistics/data-explorer
The Fair Work Commission is empowered to make equal remuneration orders requiring that certain employees be provided equal remuneration for work of equal or comparable value. An application for an equal remuneration order can be made by an affected employee, an employee organisation or union that is entitled to represent an affected employee, or the Sex Discrimination Commissioner. Once an equal remuneration order has been made, it will take precedence over any modern award, enterprise agreement, Fair Work Commission order or other indus1.trial instrument that is less favourable than the equal remuneration order.
Remedies
Employees covered by workplace and anti-discrimination laws are entitled to lodge complaints with the relevant body in respect of any unlawful discrimination to which they are subjected. Should the relevant body fail to resolve the complaint by investigation or conciliation, the employee will, then, generally be entitled to proceed to have their complaint determined, either in court or in a tribunal.
Should the court or tribunal find that the employer has engaged in unlawful discrimination, it may generally make “such orders as it thinks fit” including, for example:
- an order declaring the employer has committed unlawful discrimination and directing the employer not to repeat or continue such unlawful discrimination;
- an order requiring the employer to perform any reasonable act to redress any loss suffered by an applicant, which can include an apology and undertaking to train the workforce on gender equality; and
- an order requiring the employer to pay damages, including damages for past economic loss, future economic loss, and “hurt, distress and humiliation” suffered by the employee.
Enforcement/Litigation
Predecessor bodies of the Fair Work Commission have decided several landmark cases regarding the legal concept of “equal pay for equal work”. Such cases include:
- the First Equal Pay Case of Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1969) 127 CAR 1142, which established the principle of “equal pay for equal work”, but, notably, did not apply to work that was “essentially or usually performed by females but is work upon which male employees may also be employed”; and
- the Second Equal Pay Case of National Wage and Equal Pay Case 1972 (1972) 147 CAR 172, which extended the earlier principle established in the First Equal Pay Case to “equal pay for work of equal value”.
The legal concepts established in these cases continue to have significance in the making of equal remuneration orders by the Fair Work Commission. For example, in the Equal Remuneration Case [2012] FWAFB 1000, a majority of the Commission relied upon the “equal pay for work of equal value” principle when it made an equal remuneration order that significantly increased pay rates in the women-dominated social, community and disability services sector.
Pursuant to recent amendments to the Fair Work Act, there is now a requirement on the Fair Commission to consider the promotion of gender equality when performing its functions and exercising its powers. The amendments also now provide for the formation of Expert Panels when the Commission is required to consider equal remuneration and changes to award minimum wages that relate to gender pay equity, and award changes that relate to the Care and Community Sector. The Expert Panels are required to include members that have special knowledge and experience in these areas.
Other Requirements
The Workplace Gender Equality Act 2012 (Cth) requires non-public sector employers with 100 or more employees in Australia to lodge reports in relation to the various gender equality indicators to the WGEA, as indicated above. In 2022, the application of the Fair Work Act was extended to the Commonwealth public sector.
In addition, employers must meet minimum standards under the Workplace Gender Equality (Gender Equality Standards) Instrument 2023 (Cth). Under this instrument, employers with 500 or more staff must put in place policies or strategies to support each of the six gender equality indicators outlined above.
While the legislation places positive obligations on organisations to report, employers are not required to improve gender equality within their workplaces other than the minimum requirement to have policies or strategies in place to support each of the gender equality indicators. However, from early 2024, the gender pay gaps of employers with 100 or more workers will be published by the Workplace Gender Equality Agency, a measure that is intended to drive transparency and action towards closing the gender pay gap.
