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Speech to the LHMU Child Care Conference

Sex Discrimination

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.


  • 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.

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'.


  • 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