Current pay equity obligations

The Collaborative Submission to the House of Representatives Inquiry from leading women's organisations and women's equality specialists to the Inquiry into the effectiveness of the Sex Discrimination Act, provides a full description of pay equity obligations.

It states "individuals' right to be treated equally to others, without discrimination, is a central concept in the UN human rights treaty system (UN HRTS) and is incorporated in the majority of treaties in the UN HRTS. The International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CROC) all establish obligations to prevent discrimination on the basis of sex and achieve equality.

In the view of the CEDAW Committee, to fully realise CEDAW rights, parties need to ensure that they are not simply achieving formal equality for women, but also substantive equality for women.

The CEDAW Committee has elaborated their understanding of substantive equality in four key paragraphs of their general recommendation on temporary special measures which articulate an obligation to ensure that legislative protections pursue a substantive equality agenda which takes into account:

• Biological differences between women and men;
• The ongoing impact of historical inequalities between women and men;
• The importance of non-identical treatment of women and men in certain circumstances as a mechanism to achieve substantive equality; and 
• The transformation of harmful social, political, economic and cultural mores, based on stereotypical assumptions about women and men."

In addition to our international obligations, there are the obligations arising from Australian legislation. Like many other countries, Australia now presents a complex mix of legislation and policies related to gender equity . Discrimination on the grounds of sex, pregnancy and marital status and sexual harassment is prohibited by legislation and other equity obligations are contained in many pieces of Australian legislation, ranging from Commonwealth and States' Industrial Relations laws which promote equal pay and guarantee unpaid parental leave for workers, and the laws that are administered by HREOC and EOWA, to laws related to education, health and other public services.

The reliance on discrimination tests in the industrial legislation is also vexed. Under the Workplace Relations Act 1996 (Commonwealth) the AIRC has the power to see that men and women receive equal remuneration for work of equal value. This applies to all employees in Australia unless a Federal, State or Territory law provides an adequate alternative remedy. If an application is lodged with the Commission and it decides that discrimination has occurred, it can make orders to ensure that equal rates of remuneration for work of equal value will apply. Remuneration includes basic wages or salary, over-award payments and other work-related benefits in cash or kind such as private use of a company car.

These cases are difficult to mount, particularly by individuals, and few have been brought to the AIRC. The State jurisdictions have demonstrated their ability to prosecute equal pay without a discrimination test, and have also demonstrated that there is no need for applicants to:

• Demonstrate that where work is of equal value and different in pay it is discriminatory, and 
• To prove that there was discriminatory intent.

Explicit reference in the legislation to the use of ‘comparator group of employees' has also increased complexities in access to the regulation of pay equity.