Equal Remuneration Principle, Re (Statement of Full Bench) [2000] NSWIRComm 116

Industrial Relations Commission of New South Wales

CITATION : Equal Remuneration Principle, Re (Statement of Full Bench) [2000] NSWIRComm 116 PARTIES : FILE NUMBER: IRC 1841 of 1999 CORAM: Wright J President; Hungerford J; Schmidt J; Sams DP; McKenna C CATCHWORDS : STATEMENT ISSUED BY FULL BENCH WHEN HANDING DOWN DECISION IN Re Equal Remuneration Principle [2000] NSWIRComm 113 on 30 June 2000 Re Equal Remuneration Principle [2000] NSWIRComm 113

CASES CITED :

HEARING DATES: DATE OF JUDGMENT: 06/30/2000

LEGAL REPRESENTATIVES:

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: Wright J, President Hungerford J Schmidt J Sams DP McKenna C Friday, 30 June 2000

Matter No IRC 1841 of 1999

RE EQUAL REMUNERATION PRINCIPLE Application by the Labor Council of New South Wales for a State decision pursuant to section 51 of the Industrial Relations Act 1996 STATEMENT OF THE COMMISSION

1 These proceedings concerned a claim brought by the Labor Council of New South Wales for the variation of the Wage Fixing Principles established in the State Wage Case June 1999 (1999) 88 IR 363 by insertion of a new Equal Remuneration principle, together with consequential variations and the rescission of the existing Equal Pay principle established in the State Equal Pay Case, 1973 [1973] AR (NSW) 425. 2 The parties' positions developed during the proceedings to the point where all parties urged the Commission to establish a new principle, albeit various differences between the parties as to the terms of such a principle continued to be advanced. 3 The Commission has accepted the common view of the parties that a new principle should be formulated and the old Equal Pay principle rescinded, but (by majority, McKenna C dissenting) has not adopted the terms of the various proposals advanced. This follows not only from a lack of clarity in the drafting of the principles proposed, but also from the Commission's rejection of the parties' various constructions of the Act, upon which the principles they advanced depended. The new principle will be known as the Equal Remuneration and Other Conditions principle. 4 We have concluded that it is appropriate to adopt a principle, albeit not one in the terms proposed by the various parties, which deals with the issue of equal remuneration. We have done so for a number of reasons, including the significance both in policy terms and the requirements of the Act, such as ss 3(f) and 169 thereof reflecting as they do important human rights, that wage fixing principles in relation to the question of equal pay reflect the priority, importance and the failure hitherto of some awards to address appropriately the issue of equal pay for equal or comparable work. We consider that, provided necessary safeguards are built into the principle, an Equal Remuneration and Other Conditions principle should be inserted into the Commission's Wage Fixing Principles. We do not consider that the principles urged upon us appropriately reflect the evidence or provide a proper method for the Commission to address these matters. 5 The principle adopted is designed to ensure there are no artificial barriers created to a proper assessment of wages on a gender neutral basis. We consider this will be achieved if the criterion for a revaluation of the work is that it be demonstrated the rate of payment hitherto fixed does not represent a proper valuation of the work and that any failure is related to factors associated with the sex of those performing the work. 6 The Commission is satisfied that if a case of gender based undervaluation is demonstrated it would properly follow that the award in question did not fix 'fair and reasonable conditions of employment' for the work to which it applied and that, in accordance with s 10 of the Act, the Commission should act to rectify the problem so demonstrated. We have therefore concluded that the new principle which we establish will permit gender undervaluation applications to be advanced and considered separate from the Special Case principle. 7 In framing the principle we have rejected the submission of the Employers' Federation that the principle should be confined to claims of discrimination. Claims of undervaluation may be based on identification of discriminatory matters. However, if it can be demonstrated that particular work is undervalued an appropriate adjustment to the applicable award rate should follow, without the necessity of establishing also that the undervaluation flowed from a particular act of discrimination. 8 Further, the principle adopted permits appropriate comparisons to be drawn but does not require them. The principle does, however, require appropriate attention to be given to award relativities - both internal and external. The principle ensures that undervaluation claims do not give rise to leapfrogging. The principle also includes provisions to minimise adverse effects on employment arising from claims under it. 9 The principle which the Commission has adopted is modelled on the existing Work Value principle. In permitting award claims that work has been undervalued having regard to gender it also ensures that the principle operates consistently with the existing Wage Fixing Principles. 10 Pursuant to ss 50(4) and 51 of the Industrial Relations Act 1996 the Full Bench of the Commission orders the adoption of the new Equal Remuneration and Other Conditions principle to take effect on and from today until further order of the Commission.