It will be 40 years in December since the incoming Whitlam government asked the Arbitration Commission to reopen the equal pay case. The government sent Mary Gaudron to argue and the commission brought down the historic decision that women should be paid the male rates for the same jobs. A couple of years later the basic wage was applied to women as well as men. The idea that male wages were “family wages” designed to support a wife and children, the Higgins decision in 1908 was over.

However, the gaps continue. Many women gained more pay but since the early 1980s the gap between the hourly rates of men and women has stubbornly stayed around 17%, sometimes even slipping back a little. So the question of what was equal pay has remained on the agenda.

The current case, led by the ASU, is important because it looks at a feminised industry and put the case that the levels of pay were affected by the 80% plus female workforce. It was the first case to be put under provisions in the new Fair Work legislation and argued that gender was a factor that should be remedied as it discriminated against valuing the work done appropriately.

The decision that came down over the past few moths initially found last year that gender was a factor in the pay scales but did not at that stage state how much of a factor it was. The past few months have involved many submissions on this point that fed into the decision yesterday for rises in the awards that ranged from 18% to 41% for some 150,000 plus workers in the community services sector. This has been a classic low-pay sector that involved mainly publicly funded services for some of the most disadvantaged people. Despite the often high-skill demands and stress levels, the pay rates were often below  or similar to unskilled jobs, such as stacking shelves.

The judgement stated:

“In this decision we have concluded that for employees in the SACS industry there is not equal remuneration for men and women workers for work of equal or comparable value by comparison with workers in state and local government employment. We consider gender has been important in creating the gap between pay in the SACS industry and pay in comparable state and local government employment. And, in order to give effect to the equal remuneration provisions, the proper approach is to attempt to identify the extent to which gender has inhibited wages growth in the SACS industry and to mould a remedy which addresses that situation.”

Later they stated:

“Various studies concerning the extent of the unexplained portion of the gender wage gap were referred to. In particular, the study of Cassells and others and its finding that 60 per cent of the gender pay gap is unexplained by factors other than gender was relied on. The Joint Submission utilises ‘caring work’ as a proxy for gender considerations.”

This is the basis they used to set the rises they recommended. The rises will cover some 25 steps of skill and service length but their introduction is set to happen over an extraordinarily long time. The first tranche will not happen for nearly 12 months and the last payment is delayed until December 2020. This is even two years longer than the agreed view of the union and the Commonwealth that it should take six years.

It seems extraordinary that the remedying of basic wage injustice should take such a long time. These workers have obviously been grossly underpaid for ever, and now should they have to wait a further nearly nine years for their catch up?

The key to this long process is the source of the money. Most of these organisations are not-for-profit community organisations that depend largely on government funding. Therefore, the rises in pay must be met by increased subsidies or cutbacks in services. That has been part of the problem, as their largely female workforces have never had the gall to strike for higher pay as they knew it would damage their vulnerable clients. The commission has taken this payment factor into account and therefore they will still be exploited.

ACOSS and most of the smaller agencies were very supportive of the rises because they also know how hard the low pay is on their workers. It makes it hard to retain and attract skilled people. It therefore affects their capacities to serve their vulnerable clients well. Delaying the rises for so long will not ease current staffing problems. However, some larger agencies, who have a more corporate view, were much less supportive, even thought they “profit” from many government contracts.

Other community service sectors out there, which were not covered, will be looking to take some cases. Aged-care nurses and other staff, child-care workers and other areas of personal services and care that replace unpaid household work are equally underpaid because of the gender of most employees. Many of these are also in commercial sectors.

The business leaders mostly failed to support the claims and are up in arms about the rises. They see the possibilities of more claims by feminised occupations and industries. They need to look at why so often their feminised jobs, e.g. human resources, are paid less than their financial officers who tend to be men.

As an email from a long-term advocate for equal pay said: “Well done all of us, ASU and govt! A down-payment on the first instalment of equal pay on the never-never! good decision rates-wise but 8 yr phasing! — must be unprecedented.”

She notes that it would not have happened without the support of the federal government and their joint submission with the union: “The best thing from a future cases point of view is the gender related undervaluation finding, needing no comparators.”

But we still have to work on how to quantify gender undervaluation. So this is just the beginning.

Peter Fray

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