Equal Pay Case 1969

Last updated

10 January 2017

(1969) 127 CAR 1142, Moore J, President, Williams J, Public Service Arbitrator Chambers, and Gough C, 19 June 1969

Summary

In the 1969 Equal Pay Case the Commonwealth Conciliation and Arbitration Commission continued in force a system of different minimum wage provisions for men and women. However, it put in place a set of principles which enabled the rates to be reviewed and reconsidered.

This case considered the concept of equal pay for female Commonwealth public servants and meat industry employees. Women's wages were traditionally set lower than those of their male counterparts. The discrepancy was based on the concept of a family wage corresponding to a man’s legal obligation to care for his family.

The unions wanted to ‘eliminate the difference in current rates represented by the difference between former male and female basic wages’. They sought ‘equal pay for equal work’. The unions argued:

[T]here had been significant technological and sociological changes. These changes had altered both the economic structure of the community and the relationships of different groups within the community. The changes were inter-related and could not be better illustrated than in the case of females. Our expanding post-war economy had both required in and attracted into the workforce more women and the tasks which they performed are now more diversified than before. More women are entering the workforce all the time and their status and importance are much greater than they were previously. In this modern atmosphere it was proper, he said, that the Commission should seriously reconsider its wage structure for female employees. [p. 1147]

The unions further argued that 'the needs basis of the basic wage had gone’ and the difference in wages was now a ‘relic of assumptions and conceptions which existed at the beginning of this century' ... social attitudes towards women and their contribution to the economy were much different from now. [p.1148]

The Commission noted:

There is no real dispute as to the origins of basic wage fixations, namely, that the male basic wage was fixed as a family wage and that the female basic wage was fixed as a wage for a single woman without dependants. [p.1152]

In the 1949–50 Basic Wage Case the female basic wage was increased from 54 per cent to 75 per cent of the male basic wage. It was noted that:

[T]he Court [in that case] was prepared to change substantially the relationship between male and female rates and to improve substantially the relative position of females on the basis of what was in fact happening ... [p.1152]

The Commission concluded:

The most we are able to say is that there is still a relic of the concept of the family wage in most of the present total wages. It is an amount which has been arrived at for varying reasons and in varying ways, but we consider it no longer has the significance, conceptual or economic, which it once had and is no real bar to a consideration of equal pay for equal work. [p.1153]

The Commission paid ‘serious regard’ to legislative action taken by Australian State Governments:

Four States, namely, New South Wales, South Australia, Western Australia and Tasmania, have passed virtually identical legislation on equal pay, although the Tasmanian legislation is confined to the State Public Service. This fact in our view is a matter of significance for us for two reasons. The first is that the existence of this legislation demonstrates by implication that there is a belief in this community that the concept of equal pay for equal work is a socially proper one. The second is that if we did not move to bring our awards into line with State legislation we would in those States at least be adopting a different approach to this question from that applied by the laws of those States. We do not think we should merely rubber-stamp the principles of State legislation, but if after having examined them we consider them to be fair and reasonable in the circumstances, we receive considerable support from their existence. [p.1153]

The Commission also noted that ‘coverage of females by award shows a significantly greater number covered by State awards than by Federal awards’ [p.1154]. The ‘only real issue’ was:

[W]hether we should follow the principles laid down by the State Acts or whether we should award the claim of the unions. [p.1154]

The Commission rejected the unions’ claim because:

It seems to us that it is a question of principle which we should decide, namely, whether there should be equal pay for equal work. The granting of the claim for a lesser flat increase would not really decide that issue because, as has been explained, it is intended to be no more than a first step towards the application of the principle. The awarding of an increase to all females whether or not their work is equal to the work of males seems to us to be putting the cart before the horse. The equality of the work must in our view be first determined. [p.1156]

In relation to the concept of equal pay for equal work, the Court remarked:

[W]e realise that the concept is difficult of precise definition and even more difficult to apply with precision. We do not propose to deal in detail with all the possible different meanings of the phrase, nor do we propose to consider how it could be applied in communities other than ours. Though we realise that the various United Nations and I.L.O. declarations and conventions must carry significant weight in a general way, we must consider how, if they are to be applied, they can be fitted into our community. We have certain values which have in part been created by our own institutions including a complex wage system. This Commission cannot escape its own history, including the history of the Court, even if it wanted to. If the arbitration system had in the past not concerned itself with a needs or family wage but had fixed a rate for a job, irrespective of the sex, marital or parental status of the worker, the probabilities are that the rate for the job would lie somewhere between the current male rate and the current female rate. This is speculation on our part but it does highlight the difficulties of finding a satisfactory solution to the issues now before us. We consider it preferable to start from a decision on principle in this case and let that principle be worked through the system. [p.1156]

The Commission followed the 1950s approach, giving effect to what was happening in practice by ‘introduc[ing] into the award and determinations ... the principles of the State Acts’:

We have given serious consideration to the principles of State Acts and although we are aware that they have created some anomalies and inconsistencies we consider that overall they are to be preferred to the present position under Federal awards and determinations and they are fair and reasonable in all the circumstances. Moreover, any attempt by us to lay down different principles and standards could only result in the creation of additional anomalies, inconsistencies and confusion. The wage relationship between males and females currently existing under Federal awards and determinations cannot be completely sustained on the grounds of logic or justice. [p.1157]