The Australian government has implemented a number of schemes to promote and encourage gender pay equity in an effort to ensure that men and women receive equal pay for work of equal or comparable value.

As part of the Global Workplace Insider global theme for this month, we provide an overview of the key pieces of legislation that operate to address gender pay equity in Australia.

Workplace Gender Equality Act 2012 (Cth) (WGE Act)

The WGE Act applies to non-public sector employers with 100 or more staff (Relevant Employer).

The main objects of the WGE Act are to:

  • improve and promote equality in employment and the workplace including equal remuneration between women and men (ie. gender pay equity);
  • support employers to remove barriers to the full and equal participation of women in the workplace;
  • promote the elimination of discrimination on the basis of gender in relation to employment matters;
  • encourage workplace consultation between employers and employees about issues concerning gender equality in employment; and
  • improve the productivity and competitiveness of Australian business through the advancement of gender equality in employment and in the workplace.

The Workplace Gender Equality Agency (WGE Agency)

The WGE Agency was established under the WGE Act and is charged achieving the objects of the WGE Act.

The WGE agency provides advice, guidance, practical tools and education to employers to help them promote workplace gender quality.  More information about this agency and the work they do can be found on their website.

Gender equality indicators

The WGE Act defines a number of “gender equality indicators” which are monitored and enforced by the WGE agency.  The WGE Act defines gender equality indicators as:

  • gender composition of the workforce;
  • gender composition of governing bodies of Relevant Employers;
  • equal remuneration between women and men;
  • availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
  • consultation with employees on issues concerning gender equality in the workplace;
  • any other matters specified by the Minister for Employment in a legislative instrument (see ‘ Minimum standards’ below).

Reporting

The WGE Act requires Relevant Employers to provide annual reports to the WGE Agency in respect of a number of set gender equality indicators.

This data allows the WGE Agency to measure compliance against minimum standards and provide more targeted services/information to assist employers to improve gender equality in the workplace.

Minimum Standards

The WGE Act empowers the Minister for Employment to establish minimum standards (which have legislative force) in relation to specified gender equity indicators.

The Minister has, so far, enacted one set of minimum standards which apply to Relevant Employers with 500 or more employees.  The WGE Agency monitors compliance with these standards through the reporting mechanism referred to above.

Fair Work Act 2009 (Cth) (FW Act)

The FW Act governs the employment of the majority of employees in Australia.

Equal Remuneration

The FW Act at Part 2-7 (Equal Remuneration) empowers the Fair Work Commission (Australia’s federal industrial tribunal), to make any order it considers appropriate to ensure there will be equal remuneration for men and women who perform work of equal or comparable value (Equal Remuneration Order).

The Fair Work Commission can only make an Equal Remuneration Order in circumstances where:

  • an employee; industrial union or the Sex Discrimination Commissioner applies for such an order; and
  • it is satisfied that there is not equal remuneration for work of equal or comparable value performed by employees to who the order will apply.

Once an Equal Remuneration Order has been made, if an employer (to who the order applies) contravenes the order, the employer may be liable for a financial penalty.

Since the FW Act commenced on 1 January 2010, there has only been one application made under Part 2-7.  This application resulted in the Fair Work Commission making an Equal Remuneration Order which covered certain workers under the Social, Community, Home Care and Disability Services Industry Award 2010.

Adverse Action

The FW Act, at section 351, renders it unlawful for an employer to take adverse action against an employee or prospective employee because of their gender.

By way of example, it would be unlawful under section 351 to treat a female employee to her detriment (eg. paying her less) because she is female or to offer a prospective employee employment on less favourable terms (eg. on less pay) because they are female.

Anti-discrimination legislation

Australia has federal and state based anti-discrimination laws which render it unlawful for an employer to discriminate on the grounds of gender in relation to the terms and conditions of employment provided to employees (including rates of pay and other benefits).

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