HR Law Conference Speech
Sex Discrimination
HR Law Conference Speech
Speech Delivered by Pru Goward,
Federal Sex Discrimination Commissioner
21 November 2001 - Park Royal,
Sydney
28 November 2001 - Rydges Carlton, Melbourne
Introduction
- Thank you for
inviting me here to talk to you today. I appreciate the opportunity
to speak about a number of issues that are very much in the forefront
of my work as Commissioner- paid maternity leave is my current area
of enquiry and pay equity is an area of fundamental concern to women
in the workforce. Both are issues that go to the heart of enhancing
choices for women and promoting equality of choice.
- Any departure
from this 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.
- Utilising all
human resources effectively, fairly and profitably for the individual
and the organisation, makes great business sense. I was very gratified
to hear from one of the AMP's leading property trust managers recently
that those companies identified as socially responsible companies tend
to outperform the Dow Jones stock exchange index by 20% - that is, they
were 20% more profitable for investors than non-socially responsible
companies.
- What that tells
us is that socially-responsible management is actually just good management.
It's making the most of your people so they make the most for you.
- It is time we
stopped apologising for non-discriminatory management as a soft issue,
an unwelcome additional responsibility and cost burden. In fact more
effective deployment of staff is a plus, not a negative, for the company's
bottom line. Since one of a company's major costs is its staff, this
should not come as a surprise, but apparently often is!
- So what does
that mean for human resource practitioners in relation to sex discrimination
and issues of equality for women?
- To begin with,
of course, it means paying men and women equally for work of equal value.
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 over-time 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 wages and the gap becomes even more
stark.
- The campaign to
accord women equal pay for work of equal value has occupied much time
and energy for decades, as has resistance to that campaign.
- The continuing
undervaluation of women's skills reflects a range of social, historical
and industrial factors. The lack of industrial bargaining presence and
the way we value work and its relationship with capital contribute to
its undervaluation.
- Sometimes women
themselves do not value their own work sufficiently highly.
- 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. Five years ago 73% of part-time workers (including
casuals who work less than full-time hours) were women. This represented
46% of women in the workforce. [4] 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 67%.
[5]
- 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 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." [6] - thank you Mary Gaudron.
- That enquiry
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. [7] 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." [8] The Enquiry 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. [9]
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.
- Other occupations
such as child-care workers and nurses were also examined, providing
useful examples of the historical undervaluation of this work because
of the simple assumption that this 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. [10] She did not accept arguments that
the wage differential would be "washed out" over time by the
better wage positions of younger women workers. [11]
- 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. Afterall, 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. [12]
- 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. [13]
- 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.
- Overall, data
from the Australian Workplace Industrial Relations Survey [14]
indicates that 59 per cent of public sector workplaces and 23 per cent
of private sector workplaces offered paid maternity leave as at 1995.
[15]
- In the developed
world, only three countries do not currently implement some form of
paid maternity leave: the USA, New Zealand and Australia.
- Even here, New
Zealand intends to legislate for the introduction of a government- funded
Paid Parental Leave Scheme from 1 April 2002.
- Australia's maternity
allowance of $900 is not classified as paid maternity leave because
it is means-tested.
- Further, 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. [16] 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.
- Overall, 74%
of mothers of children under the age of fifteen are in paid work. 37%
are part timers and 37% are in full time work.
- For mothers of
children under 5, 16% are in full time work, 32 % are in part time work.
- Working from
ABS data, it is clear that just over 70% of women return to work, either
full or part time, within a year of the birth of a child. Sixty percent
of women take more than six months. They need family-friendly work policies.
- Basically, modern
families have working mothers.
- In light of this
situation, I understand the ACTU is to begin campaigning for paid maternity
leave - funded by employers, government or a combination of both. [17]
- Any employer
funded scheme would clearly be of concern to employers and to women
fearing job discrimination as a result and thus adds a layer of complexity
to the development of suitable options for Australia.
- The difficulties
and complexities of introducing paid maternity leave into Australia
is one of the reasons why I elected to make an investigation of the
options available for the implementation of an equitable and workable
paid maternity leave scheme in Australia my first priority.
- As part of this
ongoing inquiry, I have conducted numerous consultations with peak employer
associations, unions and other interested stakeholders to seek their
views on the issue of paid maternity leave and how this country might
best implement such a scheme and the costs involved.
- An interim paper
will be released soon and forwarded to all participants in the consultations
and other interested people and organisations to gain their feedback
and I will also be conducting a survey, through the membership of the
employer and union groups who took part in the consultations, in order
to seek the views of employees on maternity leave and work and family
issues.
- A final report
on my enquiry will be released in June 2002. 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.
- While my discussions
with unions are not conclusive on what is the more important process
in this - enterprise bargaining or award determination- what is clear
is that the business case, the employer of choice case and the equity
case are all, for once, working together. It should make the push for
paid maternity leave an irresistible force!
- 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.
- And yes, it is
true that many women who work part-time while raising a family are happy
working less than full-time. [20] However, I do not
accept that women should be penalised because they continue to bear
the greater responsibility for raising a family- for the benefit of
society as a whole. And by penalized 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, neverless 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 thee 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 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 and I appreciate they are
of concern to many practitioners here today.
- 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.
6.
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.
9.
Justice Glynn, in Report to the Minister: Volume I, 14 December 1998,
p.461.
12.
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.
13.
Maternity Leave (Commonwealth Employees) Act 1973.
16.
ABS Labour Force Surveys July 1979 to June 2000 - quoted in ABS Australian
Social Trends 2001 Cat no 4102.0.
20.
I Wolcott & H Glezer, Work and Family Life: Achieving Integration,
AIFS Melbourne, 1995.
Last
updated 10 December 2001
