Speech to the LHMU Child Care Conference
Speech to the LHMU Child Care
Conference
by Commissioner Pru Goward,
Brisbane Girls Grammar School, Queensland, 21 October 2001.
Introduction
- I would like
to talk to you about two of the most pressing issues currently facing
women in the labour force - pay equity and paid maternity leave.
- As federal Sex
Discrimination Commissioner with the Human Rights and Equal Opportunity
Commission a major part of my role is educating Australians about their
rights and responsibilities under the Act- which really means to educate
the community about the need for women to enjoy equality of opportunity,
freedom of choice and freedom from discrimination. That any departure
from this equality of choice demeans not only women but men and diminishes
our whole community.
- A crucial aspect
of equality is pay equity. Despite pay equity inquiries in NSW and Queensland
for example, recent statistics show that women still earn only 84.6%
of men's ordinary full-time earnings.[1] The gender
pay gap is an issue that we must all concern ourselves with. As Justice
Mary Gaudron of the High Court said in 1985, "equality is a meaningless
abstract in the absence of economic strength and security".
- If we wish to
eliminate sex discrimination both within the workforce and externally,
confronting the issues that lead to and foster pay inequity is an important
next step in Australia, despite our relatively high gender earnings
ratio.
- Let's take the
child-care industry- a classic case of the undervaluation that has befallen
many industries that are female-dominated. First look at its position
in the labour force overall.
Statistical snapshot
- In general, women
workers continue to earn only two-thirds as much as men when you take
into account all wages, including overtime and considering many more
women than men work part-time.
- Since 1980, the
participation of all women in the workforce has risen 14%- a little
bit more among women in their peak child bearing years of 25-34, but
the overall share of income has risen only by 5%.[2]
This is because most of the increase in work over those two decades
has been in part time, not full-time work.
- Although women
make up only 43% of the total they dominate in the casual workforce.
Women make up 55.4% of all casual employees compared with 45.6% of men.[3]
Despite this only a minority of employees consider they have flexible
hours.
- When it comes
to families, 48% of children were in families with both parents, or
the lone parent, employed either full-time or part-time. The proportion
of children using childcare was 70% where both parents (or the lone
parent) worked full-time and 62% where at least one parent worked part-time.[4]
- What's more,
families juggle using a number of techniques; 32% used flexible working
hours and 23% used permanent part-time work. Not surprisingly, employed
mothers are much more likely to make use of such work arrangements (68%)
than employed fathers (27%).[5]
- In the child care
industry, as many of you would be aware:
- At least
25% of childcare workers either work part-time or as casuals. - There are
over 3,800 childcare services in NSW, employing some 21,000 workers-
and almost all child care workers are women.
- At least
- It may not come
as a surprise to you that women continue to dominate the lowest paid
jobs in society with 26% of women in the lowest income bracket.[6]
The causes of 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 earnings of full time
women workers is still 84.6% of that of men's.[7]
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.[8] As the gap narrows, the rate of narrowing
also slows.
- There are several
reasons suggested for this: first, there aren't many women in professional
or managerial positions and even fewer in the relatively well paid trades
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.[9]
- Even when women
are in managerial positions, equality of opportunity and pay equity
is not guaranteed.
- Another factor
contributing to the lower overall salary rates for women 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.[10] There is nothing to suggest
this has fallen since.
- 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%.[11]
- 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.
- 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.
- The truth is,
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.
- Pay inequities
result from a combination of entrenched historical practices, the invisibility
of women's skills, the lack of a powerful presence in the industrial
system, and the way that "work" and how we value work are
understood and interpreted within the industrial system. So often the
industrial system fails to recognise skills possessed by women as actually
valuable. If women do something well, you sense that has often been
explained away by unions and bosses as an easy skill, not worth a great
deal despite contrary evidence that it can be extremely profitable for
employers.
- Nowhere is this
more likely to be the case than for child care workers. After all, women
were born to be mothers so the argument goes, and along with that the
assumption that caring for other people's children is therefore easy,
not a skill, but just what women do. Certainly not valuable. The truth
is, as we all know, not all women let alone many people, can care for
children, and that caring and nurturing children is a skilful and demanding
occupation. We can all think of women who cannot or will not nurture
their children because their interests and talents lie elsewhere.
- In some cases,
women workers themselves do not recognise the value of their work, and
consequently don't fight for pay equity.
- 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.[12]
However, I do not accept that women should be penalised because they
continue to bear the greater responsibility for raising a family. And
by penalized I mean spending the rest of their time in the workforce
struggling to catch up, unable to take advantage of training or promotional
opportunities because employers don't take their ambitions seriously,
never with enough money to make a decent contribution to superannuation.
No wonder so many women are putting off having children- they know they
are immediately relegated to the bottom of the working class if they
do, and may never return.
- This needs a
big rethink. Part-time work requires skills upgrading and indeed training
and clearly it should be possible for part-timers to be promoted and
take on leading work place roles.
- There is some
evidence that enterprise and individual bargaining has not been good
to women, who are more likely than men to be employed part-time or casually
and less likely to be unionised, often have less bargaining power than
men or simply lack the required negotiating skills.[13]
Perhaps this is because we have traditionally been taught to be grateful
and not to question, perhaps women have sought different trade offs
in their employment arrangements, but it is certainly true that part-time
or casual workers are not usually in a position of strength and, as
you already know, women dominate the casual employment sector.
- In November 1996,
the Women's Equity Bureau of the NSW Department of Industrial Relations
commissioned Rosemary Kelly of Specialist Research Services to undertake
research into the children's services industry in NSW.
- Although the
benefits of providing quality child care services include improved economic
and social outcomes for the whole community, the outcomes of the study
demonstrated an undervaluation of the work and a failure to recognise
the training, qualifications and competencies of child care workers.
- The following
issues were identified as contributing to this undervaluation.
- Industrial
relations processes have adversely affected pay equity in this industry. - The award
restructuring exercise of the early 1990's did not place due recognition
on the skills and experiences of these workers. - There are
few enterprise agreements covering workers in child care and where
they do exist, they largely deal with working conditions and not
rates of pay. - Lower rates
paid to family day care providers (independent contractors) adversely
impact on the rates of pay of other workers in the industry. - The industrial
relations system links productivity to wage increases. Government
regulation in the form of staff to child ratios and limitations
on numbers and types of places that providers can offer, whilst
maintaining standards, reduces opportunities to identify areas of
increased productivity and therefore wage increases.
Under the minimum rates adjustment process, rates of pay for Child
Care Workers were aligned with certificate (trade) level work rather
than other types of work where an Associate Diploma is required. - Rates of
pay for Early Childhood Teachers were linked to those with equivalent
qualifications employed in schools until the abandonment of centralised
wage fixation in the early 1990's. Since that time, Early Childhood
Teachers in the children's services industry have fallen further
behind their school-based counterparts. - The work has
not been appropriately valued according to skills and qualifications
and this undervaluation is due to the social construction of the
work, compared to the equivalent trade qualifications in traditionally
male dominated areas of employment.
- Industrial
Pay Equity in NSW
- Based on this
case study, the NSW Pay Equity Inquiry reported that the children's
services industry is one of the female dominated industries that typifies
the poorly paid nature of work which is performed predominantly by women.
- The NSW Pay Equity
Inquiry is a good illustration of 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."[14]
- The Inquiry was
not seen as the final step in establishing equal pay for work of equal
or comparable value.[15] In the final Report made
to the Minister 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."[16]
- The 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.[17]
She did not accept arguments that the wage differential would be "washed
out" over time by the better wage positions of younger women workers.[18]
- The Report made
recommendations based upon the "existence of undervaluation of
work in female dominated industries and occupations in NSW "[19]
The report recommended that the legislative definition of remuneration
incorporate over-award earnings, as provided for in the Equal Remuneration
Convention (ILO Convention 100).[20] This important
step will ensure all payments are considered in assessing the earnings
of both men and women.
- The Child care
industry was included as a key case study in the NSW Pay Equity Inquiry's
report. Occupations such as child-care have provided useful examples
of the historical undervaluation of this work because of the simple
assumption that this sort of work is what women do naturally anyway,
so why pay them properly for it?? In comparing provisions of the Metal
Industry Award with the Child Care Industry Award revealed stark disparities
in the extent of entitlements for workers. The Report concluded that
in the child care industry there were few or no over-award payments;
no available paid overtime; low union membership and low bargaining
power; a large number of casual and part-time workers; the lack of recognition
for in-house training; high turnover and high labour costs as a proportion
of total costs.
- The Human Rights
Commission has taken a keen interest in this issue; for starters we
have produced guidelines for employers and employees on pay equity issues.
Some of the research the Sex Discrimination Unit has produced over the
past few of years deals with a variety of issues related to pay equity:
enterprise bargaining, access to training, access to flexible work arrangements
and family friendly policies.
Further pay equity
developments
- It is interesting
to note the enormous impact of the NSW Pay Equity Inquiry has had around
Australia. In July 2000, Tasmania's Industrial Commission handed down
a pay equity principle as part of its review of the State's wage fixing
principles. The State Trades and Labor Council, which applied for the
principle, put forward the model developed by the NSW Labor Council
for the recent NSW pay equity case.
- In addition,
Queensland's pay equity inquiry report was released in March 2001 and
recommended the State IRC be given broad powers to ensure equal remuneration.
- Commissioner
Glenys Fisher's report recommended the IRC be given powers to ensure
equal remuneration when it makes or varies awards, agreements and QWAs.
- Besides recommending
the adoption of an equal remuneration principle to guide the IRC, the
report also suggested that the Commission establish a minimum wage,
to be reviewed annually.
- In September
2001, it was announced that Queensland will introduce a minimum wage
for non-award workers and review awards and agreements for gender pay
equity, after the State Government adopted all 20 recommendations of
the State's pay equity inquiry.
- It is encouraging
that it is being recognised that pay equity and the undervaluation of
certain workers' contribution, many of whom are women, is 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 that average female
employees are not aware of what their colleagues earn. Where discrimination
is indirect, complex and entrenched in historical practices and workplace
culture, it is correspondingly more difficult for an individual to perceive,
respond and or formalise a complaint.
- 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.[21]
- Nevertheless,
it is important that this avenue remain open for individuals to pursue
claims about pay inequity.
Unpaid parental
leave for regular casuals
- In light of the
high numbers of women who work as casual employees, and the high numbers
of casual employees in the child care industry, the recent decision
of the Full Bench of the AIRC in the Parental Leave for Regular Casuals
Decision[22] is particularly significant. This
decision allowed some 1.2 million regular casual workers to gain access
to 12 months unpaid parental leave.
- In its decision,
the AIRC noted the significant shift, particularly among females, toward
casual employment, much of it regular and ongoing, and said it would
be inequitable to deny parental leave to such employees while providing
it to regular full-time and part-time employees.
- The new parental
leave test case standard combines the revised parental leave test case
standard arising from the Supplementary Award Simplification decision[23]
with the amended consent clause put forward by the unions. The new entitlements
for regular and systematic casuals with 12 months service would have
"negligible" cost impacts, the Full Bench said, and would
help employees balance work and family responsibilities.
- Most parties
said the change would also assist employers in retaining skilled staff
and boosting employee loyalty. Immediate implications for Australian
employers are that:
- the new Parental
Leave Test Case Standard applies immediately only to a relatively
small number of employees covered by the awards that were the vehicle
for this decision;
- employers
can expect to receive applications to vary existing award provisions
to reflect the new Parental Leave Test Case Standard;
- there may
be some awards or industries for which the new Parental Leave Test
Case Standard is inappropriate. In these cases, the objection must
be referred to the Full Bench of the AIRC, and
- the decision
reflects the growing recognition in Australia of the significance
of the parental rights (both in relation to leave and to alternative
working arrangements) and needs of all employees. My discussions
with employers over the past few months suggest that whether or
not it is part of the award process, employers recognise the need
to keep good and loyal staff and that supporting a young person's
desire to have children AND work is good employment practice. The
business case is strong. That is in addition to any concern employers
might have to prevent claims of discrimination and to do 'the right
thing'.
- the new Parental
- It is also evident
that many casual employees have ongoing roles with their employers and
their employment is not necessarily limited to short periods. Also,
many casuals have reasonably predictable working patterns and regular
earnings with expectations of ongoing employment. Continuing disadvantage
suffered by casual employees, particularly the large numbers of women
who are casuals, remain a central concern for the Human Rights and Equal
Opportunity Commission, which intervened in the Parental Leave for Casuals
matter.
- In light of the
prevalence of women in casual positions, and this is particularly relevant
to the child care industry, and the failure of enterprise bargaining
to provide paid maternity leave to this category of employee, as discussed
above, this is a significant and long overdue development. The granting
of unpaid parental leave to casuals represents a belated recognition
of the fact that many casual employees are women with family responsibilities,
who have historically been denied certain entitlements, despite the
fact that they may work the same hours per week and do the same work
as other employees who are part-time or full-time.
- This leads me
to the contentious issue of paid maternity leave in Australia. 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.[24]
- 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.
- In the developed
world, only three countries do not currently implement some form of
paid maternity leave: the USA, New Zealand and Australia.
- Even then, New
Zealand intends to legislate for the introduction of a Paid Parental
Leave Scheme from 1 April 2002.
- 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
states in its reservation that it is not at present in a position to
take the measures required to introduce maternity leave with pay or
with comparable social benefits throughout Australia.'
- Australia at
present does not have in place legislation that deals with the provision
of universal paid parental or maternity leave at either the national
or State or Territory level.
- Data from the
Australian Workplace Industrial Relations Survey[25]
indicates that 59 per cent of public sector workplaces and 23 per cent
of private sector workplaces offered paid maternity leave as at 1995.[26]
- 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.[27]
- One of the first
things I've done in my new job was to embark on an investigation into
the issue of paid maternity leave and the options available for the
implementation of an equitable and workable paid maternity leave scheme
in Australia.
- As part of this
ongoing inquiry, I have conducted numerous consultations with peak employer
associations, unions (of which the LHMU was one) 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 in November that will be 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.
- 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.
- It is only one
measure - there remain other equally important challenges that we will
need to address if work and family balance is to become a social and
affordable reality. Other measures 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.
- 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. This represents a certain
maturity in the Australian labour market many might not have suspected
and must be commended.
Further concerns for marginalised women
- I have been concerned
not only with issues facing certain marginalised women who are employed
in industries that are undervalued, but marginalised women who are themselves
undervalued because of their particular cultural background.
- Issues faced
by women from culturally and linguistically diverse backgrounds are
dependent on a range of factors, including English language proficiency
and access to English classes, difficulties associated with recognition
of prior skills, length of time in Australia, access to support networks
and culturally appropriate services, and in the case of refugee women,
experiences of rape or torture in their home countries.
- We have found
that these women are particularly vulnerable and less aware of their
rights in relation to sex discrimination. Additionally, migrant and
refugee women with low level English language proficiency tend to be
clustered in the lowest paying occupations, where they are further subject
to powerless working conditions and sex discrimination, including sexual
harassment.
- As part of the
Commission's consultations for the United Nations World Conference Against
Racism, Racial Discrimination, Xenophobia and Related Intolerance held
in August and September 2001 in Durban, South Africa, the SDU produced
an issues paper on the intersections of race and gender in experiences
of, and dealing with, racism. In that paper, the Commission committed
itself to placing women's experiences of racism centrally in its work
for the World Conference and beyond.
- It is important
to remember that discrimination and disadvantage operate at many levels.
The multi-layered experience of many low -paid women workers needs to
be addressed in any discussion of pay inequities and the lack of other
crucial entitlements at work.
- I will be continuing
to focus on the particular needs and perspectives of women from migrant
and Indigenous backgrounds - the most marginalised among us, throughout
my term.
- There is still
much work to be done to recognise the contributions of low-income workers,
predominantly women, in a number of industries, not least the child-care
industry.
- Issues of pay
equity, paid maternity leave, access to numerous entitlements and flexible
work arrangements and the multiple experiences of discrimination faced
by many women in low-paid jobs are high on my agenda and I appreciate
they are of concern to many hard working members of your and other unions.
- Whilst I think
a transformation in our workplaces, based on the practical realities
of people's lives are 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 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 - this persistent
gender wage gap should never be tolerated; ultimately the economy loses
from any distortions in any of 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 wit of Adam Smith's
invisible hand, or the ambitious and competitive employer, or an industrial
court that wants the best for the national interest and the nation's
workers.
- Thank you for
asking me to speak to you today; I look forward to your questions.
1. ABS
Cat. No. 6302.2 at May 2001.
2. ABS Labour Force Surveys July 1979 to June 2000 -
quoted in ABS Australian Social Trends 2001 Cat no 4102.0.
3. Smith and Ewer ABS 6310.
4. ABS Cat No. 4402.0 Childcare June 2000
5. Ibid.
6. ABS Labour Force Surveys July 1979 to June 2000 -
quoted in ABS Australian Social Trends 2001 Cat no 4102.0.
7. ABS Cat. No. 6302.2 at May 2001.
8. ABS Statistics, 'Australia Now: A Statistical Profile'.
9. ABS Cat. No. 6203.0 August 2001.
10. ABS 6303.0, May 1996
11. ABS 6302.0 May 2001.
12. I Wolcott & H Glazer, Work and Family Life:
Achieving Integration, AIFS Melbourne, 1995.
13. Ibid.
14. 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.
15. Ibid, p5.
16. Ibid , p3.
17. Ibid, p151-155.
18. Ibid, p152.
19. Report to the Minister, Volume II, p150.
20. Ibid, p153 & 167.
21. 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.
22. AIRC, 31 May 2001, Print 904631.
23. AIRC, Print Q5596.
24. Maternity Leave (Commonwealth Employees) Act 1973.
25. AWIRS
26. Morehead et al, 1997
27. ACTU 2000: 2)
Last
updated 1 December 2001