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Without Gender Prejudice

Sex Discrimination

Without Gender Prejudice

Speech delivered by Pru Goward,
Federal Sex Discrimination Commissioner at the Local Government and Community
Services Association of NSW, Without Prejudice Forum, Macquarie
University, Sydney, 15 November 2002

Ladies and gentlemen,
thank you for inviting me here today.

I am delighted to
be have been given the opportunity to address the Local Government and
Community Services Association of NSW 'Without Prejudice' Forum.

Creating a society
without gender prejudice is the core of what I do in my role as Sex Discrimination
Commissioner and I appreciate the opportunity to speak about a number
of issues that are very much in the forefront of my work. Issues that
go to the heart of enhancing choices for women and promoting equality
of choice. Issues that contribute to a society without prejudice.

Prejudice and departure
from equality of choice demeans not only women but men and diminishes
our whole community. It also distorts the efficient working of the Australian
economy, a point that should not be forgotten by business leaders, economists
and politicians.

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 ordinary earnings of full
time women workers is still 84.6% of that of men's. [1]

If over-award and
overtime payments are included, this figure drops to 80%, as these types
of payments are on average lower for women than for men. [2]
Then, of course, build in part-time and casual wages and the gap becomes
even more stark.

The position of women
in the workforce also contributes to this gap. There aren't many women
in professional or managerial positions and even fewer in the relatively
well paid trade 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. [3]

Even for women who
are in managerial positions, equality of opportunity and pay equity are
not guaranteed.

Only recently, a
long-running study of graduate salaries has shown that the gap between
male and female pay rates has not closed since 1977, when the study first
began. The survey, conducted by the Graduate Careers Council of Australia,
shows that in 2000, the average salary of a male graduate was $34,500,
$2,500 more than for female graduates.

This gap may reflect
the inclusion of nursing as a degree course offering menial pay and the
relative downgrading of teachers' salaries over the past 30 years as women
have grown to dominate this profession.

Another significant
factor is part-time work. In 2000 73% of part-time workers were women.
[4] This represented 45% of women in the workforce.
[5] There is nothing to suggest this has fallen since.

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.

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 66%. [6]

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.

It is clearly open
to us to conclude that pay inequity is a systemic and cultural issue.
It is widespread prejudice. 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.

The NSW Pay Equity
Inquiry of 1998 illustrates 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." [7] - thank you Mary Gaudron.

That Inquiry has
had industrial ramifications around the country, but has never been seen
as the final step in establishing equal pay for work of equal or comparable
value. [8] In the Report made to the NSW Government
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." [9] The Inquiry was simply that, an enquiry
into why it wasn't so.

A number of examples
of female dominated industries were used to show the historic undervaluation
of women's work in comparison to male-dominated industries. Librarians
and nurses were used as examples of female dominated industries that typify
the poorly paid nature of work performed predominantly by women.

Justice Glynn's report
noted that the rates of pay received by librarians have been the lowest
of all public sector professionals over a long period. [10]
Not only had men obtained most senior positions, but the wage rates have
been out of step with the increased professionalism of the industry, and
a significant shift in the experience and qualifications required for
any advancement.

It was only earlier
this year that the full bench of the NSW Industrial Relations Commission
ruled that library workers in NSW have been underpaid because their profession
is dominated by women. This decision, hailed as one of the most significant
pay equity decisions in the past 30 years will mean librarians may receive
pay increases of up to 25 per cent. It may also act as a benchmark decision
for other female dominated careers - childcare workers and nurses for
example.

These occupations
were also examined in the NSW Pay Equity Inquiry. They provided useful
examples of the historical undervaluation of certain types of work because
of the simple assumption that this work is what women do effortlessly
anyway.

Comparing provisions
of the Metal Industry Award with the Child Care Industry Award is salutary.

There are stark disparities
between the two groups of workers' entitlements. The Report concluded
that in the child care industry there were few or no over-award payments,
no available paid overtime and lack of recognition for in-house training.
It's worth noting that there is also low union membership and low bargaining
power in the child care industry; a large number of casual and part-time
workers; high turnover and high labour costs as a proportion of total
costs. Conversely in the metal industry, capital equipment costs are a
high proportion of labour costs.

The Pay Equity 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.
[11] She did not accept arguments that the wage differential
would be "washed out" over time by the better wage positions
of younger women workers. [12]

Still today, a female
first year law graduate will - after one year experience - earn on average
$9,200 less than her male counterpart.

The Human Rights
and Equal Opportunity Commission has taken a keen interest in pay equity;
for example previous Commissioners have produced guidelines for employers
and employees on pay equity issues. Some of the research the Sex Discrimination
Unit has produced dealt with a variety of issues related to pay equity:
enterprise bargaining, access to training, and access to flexible work
arrangements.

It would be nice
to think the market could fix this. After all, it would mean that the
market worked better. Supporters of market forces, and I am one, would
all wish this. But it hasn't happened. Merit hasn't prevailed. We've had
enterprise bargaining for at least a decade and non-market forces- or
what I would describe as irrational forces- still prevail. The price of
labour is still distorted by prejudice.

It is encouraging
that pay equity and the undervaluation of certain workers' contribution,
many of whom are women, are now 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 lack of information about
comparable pay rates. Where discrimination is indirect, complex and entrenched
in historical practices and workplace culture, it is even more difficult.

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. [13]

Nevertheless, it
is important that this avenue remain open for individuals to pursue claims
about pay inequity.

Paid Maternity Leave

Pay inequity inevitably
leads to another vexed issue for women in the workforce; the fair and
proper combination of work and family responsibilities and the need for
employers and society at large to recognise and support maternity.

Paid Maternity Leave
is one of the supports necessary to enable women to combine these responsibilities
without damage to the health and welfare of either mother or child.

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. [14]

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.

None of these mechanisms
have provided adequate paid leave - Not in terms of the number of women
to whom the leave is offered; nor in terms of the amount of leave offered.

For example, thirty-nine
per cent of all female employees covered by federal certified agreements
made in the 2000-2001 period potentially had access to an average of seven
weeks' paid maternity leave. [15]

This means 61 per
cent of female employees under these agreements have no access to paid
maternity leave.

And for those who
do - the average amount provided is half of the amount recommended under
international standards, set by the International Labour Organization
and World Health Organization.

Under enterprise
bargaining the results are no better. An analysis of both federal and
State enterprise agreements showed that 7.48 per cent of all federal agreements
certified between 1997 and 2000 included a paid maternity leave provision.
[16]

At this rate it will
be 1000 years before paid maternity leave is included in all agreements!

And we are already
lagging - Australia along with the US remain the only two OECD countries
that do not provide paid maternity leave.

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 stated
in its reservation at the time of signing that it was not at present in
a position to take the measures required to introduce maternity leave
with pay or with comparable social benefits throughout Australia.'

That was 1980. Twenty
one years later and no government has yet sought to remove that reservation.

Australia at present
does not have in place legislation that provides universal paid parental
or maternity leave at either the national or State or Territory level.

This is despite the
fact that the employment rate for women, whether in full-time or part-time
work, in the main child-bearing years of 25 to 34 has risen 16 per cent
since 1980. [17] Today, more than 70% of this age group
is in the workforce. Almost seventy percent of families have both parents
in paid work. This includes single parent families, usually headed by
a mother.

Basically, modern
families have working mothers. They need family-friendly work policies.

Paid maternity leave
is one such policy - a crucial one, a necessary one and one whose time
has arrived.

I will be released
my final report outlining possible options for a national scheme of paid
maternity leave next month.

The options in the
paper will be based on the numerous consultations I have had this year
with peak employer associations, unions, women and community groups and
other interested stakeholders. I have sought their views on the issue
of paid maternity leave and how this country might best implement such
a scheme and the costs involved.

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.

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.

Other measures we
will need to address if work and family balance is to become a social
and affordable reality 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.

Of families with
at least one parent employed, 53% indicated that they used one or more
work arrangements to assist them to care for children. Most frequently
used were flexible working hours (32%) and permanent part-time work (23%).
[18]

Not surprisingly,
mothers are seven times more likely than fathers to opt for permanent
part-time work, and three times more likely to opt for job-sharing. [19]

Work/Family

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.

Even then, it may
still not be easy.

In a case recently
before the Federal Magistrates Court for example the difficulty women
face in accessing part time work when they return from maternity leave
was highlighted. [20]

In this case, an
employer at a poker machine manufacturer refused the request by a female
employee to take her lunch break from 2.55 to 3.25pm.

This would allow
her to collect her child from pre-school and drop the child at a neighbour's
house.

The magistrate found
that this was a reasonable request and the employee had been unlawfully
discriminated against on the basis of family responsibilities.

An appeal was lodged
by the employer last month, however it was overruled and the decision
remains.

Transforming this
strong legal dicta into practice in the workforce is the next step - and
to date has proven to be the greatest challenge.

Women continue to
be penalised because they bear the greater responsibility for raising
a family- for the benefit of society as a whole.

And by penalised
I mean spending the rest of their time in the workforce struggling to
catch up in seniority, unable to take advantage of training or promotional
opportunities because employers consider the ambitions of part-time workers
as secondary, and finally with never with enough money to make a decent
contribution to superannuation. No wonder so many women are putting off
having children-or not having them at all. They know they will be immediately
relegated to the bottom of the working class if they do, and may never
return.

This whole issue
of life/work and family balance, needs a big rethink. Part-time work,
so apparently ideal for parents, never less still requires skills upgrading
and training. Clearly it should also be possible for part-timers to be
promoted and take on leading work place roles. Part-time work is great
in the short term but part-time work, 2001 Australian style, isn't working
for women, or parents, in the longer term.

Again, the market
has been unable to fix this. There is some evidence that enterprise and
individual bargaining has not been good to women when they are employed
part-time or casually. On the other hand, enterprise bargaining has often
delivered women the flexibility they have so keenly sought, but this is
not as likely to be the case for casuals and part-timers. The majority
of women in the work force work part-time. Apart from anything else, casuals
and part-timers are also less likely to be unionised, often have less
bargaining power than men or simply lack the required negotiating skills.

What can I do about
this?

As federal Sex Discrimination
Commissioner with the Human Rights and Equal Opportunity Commission a
major part of my role is consulting, stimulating discussion and educating
Australians about their rights and responsibilities under the Act. This
really means educating the community about the need for women to enjoy
equality of opportunity, freedom of choice and freedom from discrimination.

I have an obligation
to promote the rights and obligations for all Australians in the SD Act
and to monitor its implementation around the nation. As I have done with
issues such as sexual harassment and pregnancy discrimination, I am able
to publish and promote guidelines for the avoidance of discrimination.

In the area of discrimination
on the basis of family responsibilities, pay equity and paid maternity
leave, I have consulted and spoken widely on the topics and hope to encourage
a continuing constructive and productive dialogue on ways to combat and
change the current workplace cultures and assumptions that perpetuate
discrimination in these areas.

The time has well
and truly come to rid our workplaces of archaic attitudes, prejudices
and practices that fail to respond to the realities of work and family
life today.

Conclusion

Issues of pay equity,
paid maternity leave, access to numerous entitlements and flexible work
arrangements and, incidentally, the multiple experiences of discrimination
faced by many women are high on my agenda.

The public debate
that has been generated around paid maternity leave and work and family
in general suggest that I am not alone in my concern on this issue.

Whilst the need to
transform our workplaces is 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 clarify or 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 - the persistent gender
wage gap should never be tolerated; workplaces must accommodate the work/life
responsibilities of all employees.

We should also challenge
the nation's employers to take action; a healthy, productive and committed
workforce is vital to them. Ultimately the entire economy loses from distortions
in 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 comprehension of an ambitious and competitive
employer, or an industrial court that wants the best for both the national
interest and the nation's workers!!


1.
ABS Cat. No. 6302.2 at May 2001.

2. ABS Statistics, 'Australia Now: A Statistical Profile'.

3. ABS Cat. No. 6203.0 August 2001.

4. ABS 4102.0 Australian Social Trends Commonwealth
of Australia Canberra 2001, 118.

5. ABS Labour Force Australia August 2001, 14.

6. ABS 6302.0 May 2001.

7. 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.

8. Ibid, p5.

9. Ibid , p3.

10. Justice Glynn, in Report to the Minister: Volume
I,
14 December 1998, p.461.

11. Ibid, p151-155.

12. Ibid, p152.

13. 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.

14. Maternity Leave (Commonwealth Employees) Act
1973
.

15. It should be borne in mind that as at May 2000,
only 21.7 per cent of the Australian workforce had their pay set under
the provisions of federally registered collective agreements. Commonwealth
Department of Employment and Workplace Relations Agreement Making in
Australia under the Workplace Relations Act: 2000 and 2001
Commonwealth
of Australia Canberra 2002, pp1,140.

16. M Baird D Brennan and L Cutcher "A pregnant
pause: Paid maternity leave in Australia" (2002) 13 (1) Labour
and Industry
1 at 10.

17. ABS Labour Force Surveys July 1979 to June 2000
- quoted in ABS Australian Social Trends 2001 Cat no 4102.0.

18. Ibid.

19. Ibid.

20. Song v Ainsworth Federal Magistrates Court,
28 August 2002.

Last
updated 30 January 2003.