Without Gender Prejudice
Speech delivered by Pru Goward, Federal Sex Discrimination Commissioner at the Local Government and Community Services Association of NSW, Without Prejudice Forum, Macquarie University, Sydney, 15 November 2002
Ladies and gentlemen, thank you for inviting me here today.
I am delighted to be have been given the opportunity to address the Local Government and Community Services Association of NSW 'Without Prejudice' Forum.
Creating a society without gender prejudice is the core of what I do in my role as Sex Discrimination Commissioner and I appreciate the opportunity to speak about a number of issues that are very much in the forefront of my work. Issues that go to the heart of enhancing choices for women and promoting equality of choice. Issues that contribute to a society without prejudice.
Prejudice and departure from equality of choice demeans not only women but men and diminishes our whole community. It also distorts the efficient working of the Australian economy, a point that should not be forgotten by business leaders, economists and politicians.
Pay inequity
For twenty eight years the law has required that women and men be remunerated equally for work of equal value, yet the average weekly ordinary earnings of full time women workers is still 84.6% of that of men's. [1]
If over-award and overtime payments are included, this figure drops to 80%, as these types of payments are on average lower for women than for men. [2] Then, of course, build in part-time and casual wages and the gap becomes even more stark.
The position of women in the workforce also contributes to this gap. There aren't many women in professional or managerial positions and even fewer in the relatively well paid trade areas. Women remain clustered in the lower paid professions or sectors; only 26% of managers and administrators are women.
On the other hand, 88% of advanced clerical and service workers and 73% of intermediate clerical and service workers are women. Only 10% of trades-persons and related workers are women. [3]
Even for women who are in managerial positions, equality of opportunity and pay equity are not guaranteed.
Only recently, a long-running study of graduate salaries has shown that the gap between male and female pay rates has not closed since 1977, when the study first began. The survey, conducted by the Graduate Careers Council of Australia, shows that in 2000, the average salary of a male graduate was $34,500, $2,500 more than for female graduates.
This gap may reflect the inclusion of nursing as a degree course offering menial pay and the relative downgrading of teachers' salaries over the past 30 years as women have grown to dominate this profession.
Another significant factor is part-time work. In 2000 73% of part-time workers were women. [4] This represented 45% of women in the workforce. [5] There is nothing to suggest this has fallen since.
It is essential for pay equity purposes that the difference in pay between full and part time workers reflects only a difference in working hours.
The fact that so many women workers work part-time while the majority of male workers continue to work full-time clearly affects the size of the pay gap. When all wages income is included, the pay equity gap widens to 66%. [6]
Some argue that pay equity would reduce female employment; for this to be so, women would have to be less valuable employees in the first place- that is, worth less to the employer. So long as a man and a woman are contributing equally to the company's output, there is no reason why equal pay would be a problem for any employer.
It is clearly open to us to conclude that pay inequity is a systemic and cultural issue. It is widespread prejudice. It is bigger than individual examples of discrimination or the imposition of conditions that impact differently on women. It is not simply about individual women being treated differently or being offered inferior terms and conditions of employment.
The NSW Pay Equity Inquiry of 1998 illustrates the point that "[w]e got equal pay once, then we got it again, and then we got it again, and now we still don't have it." [7] - thank you Mary Gaudron.
That Inquiry has had industrial ramifications around the country, but has never been seen as the final step in establishing equal pay for work of equal or comparable value. [8] In the Report made to the NSW Government in December 1998, the Inquiry itself was described as "part of a continuum of attempts to achieve a goal that appears to be continually elusive." [9] The Inquiry was simply that, an enquiry into why it wasn't so.
A number of examples of female dominated industries were used to show the historic undervaluation of women's work in comparison to male-dominated industries. Librarians and nurses were used as examples of female dominated industries that typify the poorly paid nature of work performed predominantly by women.
Justice Glynn's report noted that the rates of pay received by librarians have been the lowest of all public sector professionals over a long period. [10] Not only had men obtained most senior positions, but the wage rates have been out of step with the increased professionalism of the industry, and a significant shift in the experience and qualifications required for any advancement.
It was only earlier this year that the full bench of the NSW Industrial Relations Commission ruled that library workers in NSW have been underpaid because their profession is dominated by women. This decision, hailed as one of the most significant pay equity decisions in the past 30 years will mean librarians may receive pay increases of up to 25 per cent. It may also act as a benchmark decision for other female dominated careers - childcare workers and nurses for example.
These occupations were also examined in the NSW Pay Equity Inquiry. They provided useful examples of the historical undervaluation of certain types of work because of the simple assumption that this work is what women do effortlessly anyway.
Comparing provisions of the Metal Industry Award with the Child Care Industry Award is salutary.
There are stark disparities between the two groups of workers' entitlements. The Report concluded that in the child care industry there were few or no over-award payments, no available paid overtime and lack of recognition for in-house training. It's worth noting that there is also low union membership and low bargaining power in the child care industry; a large number of casual and part-time workers; high turnover and high labour costs as a proportion of total costs. Conversely in the metal industry, capital equipment costs are a high proportion of labour costs.
The Pay Equity Inquiry had some very positive results in terms of acknowledging obstacles facing women in the workforce. Justice Glynn, presiding over the Inquiry, agreed that there does exist an unexplained pay differential between the sexes. [11] She did not accept arguments that the wage differential would be "washed out" over time by the better wage positions of younger women workers. [12]
Still today, a female first year law graduate will - after one year experience - earn on average $9,200 less than her male counterpart.
The Human Rights and Equal Opportunity Commission has taken a keen interest in pay equity; for example previous Commissioners have produced guidelines for employers and employees on pay equity issues. Some of the research the Sex Discrimination Unit has produced dealt with a variety of issues related to pay equity: enterprise bargaining, access to training, and access to flexible work arrangements.
It would be nice to think the market could fix this. After all, it would mean that the market worked better. Supporters of market forces, and I am one, would all wish this. But it hasn't happened. Merit hasn't prevailed. We've had enterprise bargaining for at least a decade and non-market forces- or what I would describe as irrational forces- still prevail. The price of labour is still distorted by prejudice.
It is encouraging that pay equity and the undervaluation of certain workers' contribution, many of whom are women, are now being addressed at the industry-wide level, because, though it is it is open to an individual under the federal Sex Discrimination Act to make a complaint of discrimination on the grounds of sex if he or she feels that she is being unequally remunerated, there have been very few individual complaints of discrimination to the Human Rights and Equal Opportunity Commission concerning pay equity.
This is perhaps because of the complexity of the pay equity issue, or lack of information about comparable pay rates. Where discrimination is indirect, complex and entrenched in historical practices and workplace culture, it is even more difficult.
Even if a complaint is brought under the Sex Discrimination Act, the legislation has limitations in that it focuses on redressing discrimination through individual complaints, rather than dealing with systemic issues such as workplace change. The Commission is restricted under the Act to looking at single employers, and cannot compare pay across enterprises or industries under the Sex Discrimination Act complaint powers. [13]
Nevertheless, it is important that this avenue remain open for individuals to pursue claims about pay inequity.
Paid Maternity Leave
Pay inequity inevitably leads to another vexed issue for women in the workforce; the fair and proper combination of work and family responsibilities and the need for employers and society at large to recognise and support maternity.
Paid Maternity Leave is one of the supports necessary to enable women to combine these responsibilities without damage to the health and welfare of either mother or child.
The Workplace Relations Act provides for 52 weeks unpaid maternity leave for all workers and this is the extent of federal legislation in terms of maternity leave.
Commonwealth public servants are entitled, after twelve months continuous service, to twelve weeks maternity leave on full pay. [14]
In some States and Territories a similar entitlement exists for public servants.
By contrast, women in the private sector are dependent either upon the policy of their particular employer or upon provisions made in their industrial awards or certified agreements.
None of these mechanisms have provided adequate paid leave - Not in terms of the number of women to whom the leave is offered; nor in terms of the amount of leave offered.
For example, thirty-nine per cent of all female employees covered by federal certified agreements made in the 2000-2001 period potentially had access to an average of seven weeks' paid maternity leave. [15]
This means 61 per cent of female employees under these agreements have no access to paid maternity leave.
And for those who do - the average amount provided is half of the amount recommended under international standards, set by the International Labour Organization and World Health Organization.
Under enterprise bargaining the results are no better. An analysis of both federal and State enterprise agreements showed that 7.48 per cent of all federal agreements certified between 1997 and 2000 included a paid maternity leave provision. [16]
At this rate it will be 1000 years before paid maternity leave is included in all agreements!
And we are already lagging - Australia along with the US remain the only two OECD countries that do not provide paid maternity leave.
Australia's commitment to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is limited by a reservation that the government has entered concerning paid maternity leave.
The Government stated in its reservation at the time of signing that it was not at present in a position to take the measures required to introduce maternity leave with pay or with comparable social benefits throughout Australia.'
That was 1980. Twenty one years later and no government has yet sought to remove that reservation.
Australia at present does not have in place legislation that provides universal paid parental or maternity leave at either the national or State or Territory level.
This is despite the fact that the employment rate for women, whether in full-time or part-time work, in the main child-bearing years of 25 to 34 has risen 16 per cent since 1980. [17] Today, more than 70% of this age group is in the workforce. Almost seventy percent of families have both parents in paid work. This includes single parent families, usually headed by a mother.
Basically, modern families have working mothers. They need family-friendly work policies.
Paid maternity leave is one such policy - a crucial one, a necessary one and one whose time has arrived.
I will be released my final report outlining possible options for a national scheme of paid maternity leave next month.
The options in the paper will be based on the numerous consultations I have had this year with peak employer associations, unions, women and community groups and other interested stakeholders. I have sought their views on the issue of paid maternity leave and how this country might best implement such a scheme and the costs involved.
I am pleased that employer and union groups and other individuals have been so cooperative in this process and hope that the release of this report will increase the impetus for Australia to implement a workable and equitable arrangement for parents, and that mostly means mothers, with both work and family commitments.
It is true that paid maternity leave is just one of a suite of measures that we must provide to ensure that parents are able to manage their work and family obligations; that women in particular are not disadvantaged by their greater role in family responsibilities and that men are able to take their place as equal partners at home as well as work.
Other measures we will need to address if work and family balance is to become a social and affordable reality include ensuring that women are able to return to work following the birth of their children without disadvantage and on flexible terms, and that women's need to work part-time does not stall their career or otherwise disadvantage them.
Of families with at least one parent employed, 53% indicated that they used one or more work arrangements to assist them to care for children. Most frequently used were flexible working hours (32%) and permanent part-time work (23%). [18]
Not surprisingly, mothers are seven times more likely than fathers to opt for permanent part-time work, and three times more likely to opt for job-sharing. [19]
Work/Family
Women's disproportionate share of family care reduces workforce participation, interrupts progression and affects training investment by women and employers. It is sometimes argued that women choose lower paid positions for the non-financial trade-offs such as flexibility to allow for family responsibilities.
Even then, it may still not be easy.
In a case recently before the Federal Magistrates Court for example the difficulty women face in accessing part time work when they return from maternity leave was highlighted. [20]
In this case, an employer at a poker machine manufacturer refused the request by a female employee to take her lunch break from 2.55 to 3.25pm.
This would allow her to collect her child from pre-school and drop the child at a neighbour's house.
The magistrate found that this was a reasonable request and the employee had been unlawfully discriminated against on the basis of family responsibilities.
An appeal was lodged by the employer last month, however it was overruled and the decision remains.
Transforming this strong legal dicta into practice in the workforce is the next step - and to date has proven to be the greatest challenge.
Women continue to be penalised because they bear the greater responsibility for raising a family- for the benefit of society as a whole.
And by penalised I mean spending the rest of their time in the workforce struggling to catch up in seniority, unable to take advantage of training or promotional opportunities because employers consider the ambitions of part-time workers as secondary, and finally with never with enough money to make a decent contribution to superannuation. No wonder so many women are putting off having children-or not having them at all. They know they will be immediately relegated to the bottom of the working class if they do, and may never return.
This whole issue of life/work and family balance, needs a big rethink. Part-time work, so apparently ideal for parents, never less still requires skills upgrading and training. Clearly it should also be possible for part-timers to be promoted and take on leading work place roles. Part-time work is great in the short term but part-time work, 2001 Australian style, isn't working for women, or parents, in the longer term.
Again, the market has been unable to fix this. There is some evidence that enterprise and individual bargaining has not been good to women when they are employed part-time or casually. On the other hand, enterprise bargaining has often delivered women the flexibility they have so keenly sought, but this is not as likely to be the case for casuals and part-timers. The majority of women in the work force work part-time. Apart from anything else, casuals and part-timers are also less likely to be unionised, often have less bargaining power than men or simply lack the required negotiating skills.
What can I do about this?
As federal Sex Discrimination Commissioner with the Human Rights and Equal Opportunity Commission a major part of my role is consulting, stimulating discussion and educating Australians about their rights and responsibilities under the Act. This really means educating the community about the need for women to enjoy equality of opportunity, freedom of choice and freedom from discrimination.
I have an obligation to promote the rights and obligations for all Australians in the SD Act and to monitor its implementation around the nation. As I have done with issues such as sexual harassment and pregnancy discrimination, I am able to publish and promote guidelines for the avoidance of discrimination.
In the area of discrimination on the basis of family responsibilities, pay equity and paid maternity leave, I have consulted and spoken widely on the topics and hope to encourage a continuing constructive and productive dialogue on ways to combat and change the current workplace cultures and assumptions that perpetuate discrimination in these areas.
The time has well and truly come to rid our workplaces of archaic attitudes, prejudices and practices that fail to respond to the realities of work and family life today.
Conclusion
Issues of pay equity, paid maternity leave, access to numerous entitlements and flexible work arrangements and, incidentally, the multiple experiences of discrimination faced by many women are high on my agenda.
The public debate that has been generated around paid maternity leave and work and family in general suggest that I am not alone in my concern on this issue.
Whilst the need to transform our workplaces is being slowly recognised by all stakeholders in the workplace, there still needs to be more of a focus on broad community education, constant stimulation of public debate, greater commercial enlightenment, intervention into the industrial system whenever and wherever possible and sound management of individual complaints from which much can be gained including legal precedents which clarify or challenge existing boundaries.
We need to get individual employers to recognise and value traditional women's skills, reward them fairly and encourage them to seek out and to eliminate discriminatory workplace practices and policies.
We also need women both individually and collectively to take action - the persistent gender wage gap should never be tolerated; workplaces must accommodate the work/life responsibilities of all employees.
We should also challenge the nation's employers to take action; a healthy, productive and committed workforce is vital to them. Ultimately the entire economy loses from distortions in its markets, including the labour market. To undervalue the work of women is to overvalue the work of men - to value each of us on our merits shouldn't be beyond the comprehension of an ambitious and competitive employer, or an industrial court that wants the best for both the national interest and the nation's workers!!
1.
ABS Cat. No. 6302.2 at May 2001.
2. ABS Statistics, 'Australia Now: A Statistical Profile'.
3. ABS Cat. No. 6203.0 August 2001.
4. ABS 4102.0 Australian Social Trends Commonwealth
of Australia Canberra 2001, 118.
5. ABS Labour Force Australia August 2001, 14.
6. ABS 6302.0 May 2001.
7. Justice Mary Gaudron, cited in Ex 456 Pay Equity Inquiry
p97 - Final Submissions of NPEC and others, cited in Report to the
Minister: Volume I, 14 December 1998, p5.
8. Ibid, p5.
9. Ibid , p3.
10. Justice Glynn, in Report to the Minister: Volume
I, 14 December 1998, p.461.
11. Ibid, p151-155.
12. Ibid, p152.
13. Neither the "direct" nor the "indirect"
models of discrimination are able to capture the complexity of the pay
inequity phenomenon. However, the SDA may provide some redress for pay
inequity that occurs through discrimination. For example, where the pay
inequity occurs within one workplace, there is a male worker who provides
an easy comparator and pay systems are transparent, a complainant may
bring a successful complaint of pay inequity. In other words, sex discrimination
law can target the clearest forms of pay inequity.
14. Maternity Leave (Commonwealth Employees) Act
1973.
15. It should be borne in mind that as at May 2000,
only 21.7 per cent of the Australian workforce had their pay set under
the provisions of federally registered collective agreements. Commonwealth
Department of Employment and Workplace Relations Agreement Making in
Australia under the Workplace Relations Act: 2000 and 2001 Commonwealth
of Australia Canberra 2002, pp1,140.
16. M Baird D Brennan and L Cutcher "A pregnant
pause: Paid maternity leave in Australia" (2002) 13 (1) Labour
and Industry 1 at 10.
17. ABS Labour Force Surveys July 1979 to June 2000
- quoted in ABS Australian Social Trends 2001 Cat no 4102.0.
18. Ibid.
19. Ibid.
20. Song v Ainsworth Federal Magistrates Court,
28 August 2002.
