EQUAL REMUNERATION CLAIM - HPM ACTU/AMWU SUBMISSION

1. APPLICATION

1.1 This application C.No. 23933 of 1995 is brought by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). It is for an order for equal remuneration for work of equal value in respect to certain female employees at HPM Industries. The ACTU supports the union's application.

1.2 The original application is included in Exhibit D1 and a revised application is set out in Exhibit D2 in these proceedings. Subsequently a letter setting out a revised order has been sent to the parties on the 10th of October, 1997. These documents have sought to set out the nature of the order that the union seeks and specify the employees to be covered by such an order. These employees are the female Process Workers and female Packers who are employed at the Darlinghurst premises of HPM Industries.

1.3 The ground on which the application is made is common to the various applications; that is, that these employees do not currently receive equal remuneration for work of equal value when compared to the male General Hands and male Storepersons employed at the same premises in respect to whom they perform work of equal value.

1.4 The application is brought under Division 2 of Part VIA of the Workplace Relations Act.

1.5 As stated in the Commission on 23rd of September 1997 (pages 25-28 of Transcript), what the union and ACTU are seeking from the Commission are the following findings:-

(i) That in relation to HPM's Darlinghurst premises, the work performed by Process Workers and Packers is of equal value to the work performed by General Hands and Storepersons.

(ii) That the current wage rates paid to the Process Workers and Packers are generally lower than the rates paid to General Hands and Storepersons.

(iii) That the current wage rates paid to the Process Workers and Packers have been established in whole or in part on the basis of the sex of these employees, in particular on the basis that the Process Workers are overwhelmingly women and all of the Packers are women.

(iv) Therefore, the wage rates of the female workers in these jobs at HPM have been established in whole or in part on the basis of discrimination based on sex.

1.6 Consequent upon the making of these findings the union and ACTU seek an order in four parts:-

(i) That the female Process Workers and female Packers at HPM's Darlinghurst premises should receive equal remuneration for work of equal value.

(ii) That all current female Process Workers classified at C13 of the award shall receive at least the same rate of pay as the highest paid male General Hand classified at either C14 or C13 of the award.

(iii) That all female Packers classified at C12 of the award shall receive the same rate of pay as the highest paid male General Hand and/or Storeperson classified at C12 of the award.

1.7 Further, the union seeks a recommendation:-

 That all female Process Workers classified at C13 shall receive an amount equal to the differential between the C14 and C13 award minimum rates more than the highest paid General Hand classified at C14.

1.8 In respect to the actual rate being sought, the rate initially specified in the application in Exhibit D2 was $452.96. This had been nominated by HPM as the rate which was the highest paid to any of the male workers in relation to whom the union claimed female workers were performing work of equal value. That is the principle that the union/ACTU have sought to have reflected in any order, arising out of these proceedings.
1.9 In respect to the rates of pay that have been referred to in the documentation, as pointed out to the Commission on the 23rd of September, from the pay period commencing on the 18th of September 1997, all of the rates applying to the workers covered by the application have been increased by 4%, pursuant to the Enterprise Agreement which applies to this workplace.
1.10 The union/ACTU have consistently stated that payment of the highest rate currently paid to any of the male workers is the fairest resolution of the discriminatory situation that has been identified. On the basis of the evidence regarding skills we submit that female employees should have access to that same rate of pay.
1.11 However, on the basis of the evidence produced by HPM during the hearings in September 1997, the union/ACTU has now specified revised orders in the terms set out above.
1.12 This is on the basis that the union accepts that the majority of workers classified at the C12 award level achieved that classification through valid award processes.
1.13 The union therefore accepts that it was appropriate for HPM to pay a differential in actual rates between employees classified at C12 and C13 respectively.
1.14 In these circumstances, the union accepts that is not appropriate to seek that the female employees classified at C13 should receive the same rate of pay as the highest paid male employee classified at C12.
1.15 However, it remains appropriate, and consistent with both the union's original and revised applications, for the union to seek that the female workers employed at HPM in both the C13 and C12 classification levels should receive the same rate as the highest paid male employee at either the same or lower classification level.
1.16 The revised orders now sought are aimed at implementing this principle.
2. OVERVIEW
2.1 In these submissions which are made jointly by the AMWU and the ACTU, the Commission will be taken to evidence on issues which it is submitted are relevant to this application.
2.2 The first of these is the importance of this case and issue of equal pay generally. In so doing Exhibits will be tendered which are attached to this written submission in the form of Attachments relating to the following:-
  • Relevant statistics regarding women's pay and employment;
  • Government publications regarding equal pay;
  • The position of women in the Manufacturing industry;

The 1995 Australian Workplace Industrial Relations Survey.

2.3 The second concerns issues related to sex bias in evaluating skills. The relevant Exhibit is called "Defining Skills".

2.4 The issue of discrimination in over-award payments generally is a further relevant matter. This will involve an Exhibit relating to the Just Rewards Report by the Human Rights and Equal Opportunity Commission which has been marked Exhibit HREOC 6 in these proceedings.
2.5 The role of the Industrial Relations Commission in dealing with these issues is also relevant. This includes consideration of Exhibit D9 which contains various Equal Pay Case decisions as well as a further Exhibit containing Extracts From National Wage Cases.
2.6 The legislative requirements will be considered in detail. This involves an overview of:-
  • The General Framework of the Act;
  • Specific requirements relevant to this application;
  • Objectives of the provisions.
2.7 The International Conventions specified in the Act need to be dealt with. This will involve Exhibits covering:
  • Relevant Conventions;
  • Summaries of General Surveys.
2.8 Further Discrimination Cases will also be considered for guidance. This will involve a consideration of various cases contained in Exhibit D9 which deals with both Australian and International case-law relating to discrimination.
2.9 Finally facts specific to this application regarding HPM will be reviewed. This will involve an analysis of the inspection and witness evidence. It will also involve a detailed consideration of the process undertaken by the parties which is drawn together into a further Exhibit. The results of the competency standards process and conclusions to be drawn will also be dealt with.
3. OUTLINE OF FACTS AND REQUIREMENTS OF THE APPLICATION

3.1 The Commission has already been taken through a brief outline of the facts at Transcript at pages 25 to 28.

3.2 At HPM's Darlinghurst premises there are four groups of workers which the union/ACTU submit are performing work of equal value.

3.3 Prior to the information supplied by HPM the union/ACTU had stated that there were 326 female Process Workers and 3 male Process Workers (the latter work solely on the afternoon shift); 8 General Hands who are all male; 28 female Packers and 18 male Storepersons affected by the application. HPM's figures subsequently provided during these proceedings show there are a total of 357 employees in these classifications. 303 are Process Workers. 12 are General Hands. 24 are Packers and 18 are Storepersons. Of the 303 Process Workers, 4 are male, 3 of whom work solely on the afternoon shift. All the General Hands are male. All the Packers are female. All the Storepersons are male.

3.4 The central tenet of the ACTU/union application is that the women employed in the job categories of Process Worker and Packer do not receive equal remuneration for work of equal value when compared to the men who are employed as General Hands and Storepersons.

3.5 This requires a finding that the rates of remuneration of the Process Workers and Packers have been established on a discriminatory basis because of the sex of these workers.

3.6 Remuneration as it is defined in the Equal Remuneration Convention clearly includes over-award payments.

3.7 In terms of showing discrimination on the basis of sex, the most appropriate definition is that contained in the Sex Discrimination Act. This Act is Australia's domestic expression of the Convention on the Elimination of All Forms of Discrimination Against Women. The definition of discrimination is consistent with both this Convention and the Discrimination (Employment and Occupation) Convention. The Industrial Relations Commission is also expressly required to have regard to the Sex Discrimination Act in performing its functions.

3.8 It will be shown that these women are being treated less favourably in their terms and conditions of employment on the basis of their sex in circumstances which are not materially different. They are working under the same conditions and performing work of equal value but are receiving lower rates of pay, that is they are being directly discriminated against in terms of the Sex Discrimination Act.

3.9 Alternatively, the facts show indirect discrimination as defined by the Sex Discrimination Act against these workers, in that a requirement or condition has been imposed on the women because of their sex or a characteristic associated with their sex - that is, they are segregated into "women's jobs" within the factory. As a direct consequence of this they do not have access to the higher rates of pay available to the men. This disadvantages them in relation to their male colleagues, and is not reasonable in the circumstances.

3.10 The ACTU/union case is that the work is of equal value because the skills and knowledge required to be exercised and competence required indicate the work performed by the women is at least of equal value. This is based on the competency standards material which it is submitted is the most appropriate method of valuing the work. This is because it is recognised in the award as an appropriate test for determining the classification levels of employees. It fits the requirements of a non-discriminatory test as described by HREOC. Further, the parties agreed to its use in the context of this application. Indeed, the Commission itself required the competency standards process to be undertaken.

3.11 In terms of showing the disparity in the rates of remuneration the union/ACTU has already noted (Transcript page 26) that the wages information supplied by the company has been relied upon. The limited information available prior to the week of the 22nd of September revealed that all of the Process Workers and a great majority of the Packers receive less by way of remuneration than the majority of the male employees in the other two job categories. This has been confirmed by the material that has subsequently been provided to the Commission.

4 IMPORTANCE OF CASE/PROBLEM OF EQUAL PAY

4.1 General

4.1.1 First, the ACTU and the union believe this is a case of great significance broader than the immediate employees involved. This is because the issue of equal pay for women is a fundamental human right. It is recognised as such by the international community and by individual governments, including Australian governments at both federal and state level, regardless of political persuasion. It is also of great concern to women. Many women and women's organisations, again both internationally and within Australia, have been active in the pursuit of equal pay. The interveners in this case reflect this broader significance. It was also referred to by Ms. Walpole in her evidence at page 169 of Transcript.

4.1.2 Whilst the role of the Industrial Relations Commission in dealing with this issue will be dealt with in greater detail in the course of these submissions, it should be noted at the outset that in both the 1969 and 1972 test cases on equal pay the Commission was taken to, and had regard to, the general position of women in the workforce and to the general position regarding women's wages. In more recent times the Commission has also concerned itself with discrimination matters more directly in respect to the general functions of the Commission.

4.1.3 The ACTU/union regard this case as the next phase in what has been the Commission's historically significant role in addressing the issue of equal pay which was started - but not finished - in the equal pay cases.

4.1.4 The statistics, research and policy responses are relevant with respect to the particular circumstances of this application. This is because the fact situation at HPM, Darlinghurst, accords with both the general statistical picture and research into the reasons why that picture is as it is.

4.2 Statistics [Attachment A]

4.2.1 The statistical material contained in Attachment A shows continuing wage differentials between men and women in Australia. Comparing full-time non-managerial adults, average weekly ordinary time earnings, women earned 87.5% of what men earned in 1996. Comparing average weekly earnings of full-time adults women earn 79.6% of men's earnings. Comparing all employees women earn only 66.4% of men's earnings. These figures show that the achievement of equal pay in practice remains an objective rather than a reality.

4.2.2 In terms of over-award payments women earned 48.2% of men's over-awards in 1996. This shows that the disparity in over-awards paid to women is a significant factor in the remaining differential which exists between women and men's pay. As will be shown, this is the specific problem that the Parliament was seeking to address when it enacted Division 2 of Part VIA of the Act.

4.2.3 The statistics also show significant gender segmentation of the Australian workforce. They show a highly gender segmented workforce in terms of industries in which women work. This was a point referred to by Ms. Walpole in her evidence (Transcript page 165). Women are concentrated in four industries. Significantly Manufacturing is the fourth largest employer of women. It employs 8.2% of all women who are employed. Women make up just over a quarter of employees in the industry. This underlines the importance that needs to be attached to remedying any discriminatory work or payment practices that are found to exist in this industry. The continuation of such practices will have a major impact on the wages of women workers and the achievement of equal pay.

4.2.4 The statistics also show significant gender segmentation in occupations. Labourers is the fourth largest category of women workers after Professionals, Clerks and Sales workers. 8.4% of all employed women work in this job category. This represents 303,300 individual women. This again reinforces the importance of remedying any examples of discriminatory practices affecting women working in this occupational category which includes Process Workers.

4.2.5 In both the Manufacturing industry and the occupational category of Labourer it should be noted that women represent much less than half of all employees unlike the other industries in which women are concentrated. In two of the other industries (Retail/Wholesale Sales and Health and Community Services) women represent over 77% of total employees. Similarly in the occupational categories of Clerks and Sales Workers, women constitute a majority of all employees.

4.2.6 The statistics also show over-award differentials by industry and occupation. The second highest differential between women and men occurs in Manufacturing, where women earn only 52.4% of men's over-awards. With respect to occupation, female labourers which includes Process Workers earn 62.9% of male labourers over-awards. This needs to be seen in the context of Manufacturing being an industry in which significant over-awards are paid. (See below)

4.2.7 Finally, the AMWU Survey of 1991, the last undertaken, shows that the situation in the metal industry reflects this broader picture. It shows female labourers earning half of the over-awards of male labourers in the Metal Industry.

4.3 Government Publications [Attachment A]

4.3.1 Various documents published by the Federal Government are also included in Attachment A. These show that the pursuit of equal pay has been supported as an important social objective on both economic and social grounds by Australian Governments through a range of strategies over the last decade.