Fruit Pickers Case
The Rural Workers Union and The South Australian United Labourers' Union v. The Employers
(1912) 6 CAR 61, Higgins J, President, 20 June 1912
In The Rural Workers’ Union and The South Australian United Labourers' Union v. The Employers, the Court considered for the first time the question of how the Harvester ‘living’ or ‘family’ wage would be applied to women. It decided that women should not receive a family wage, because they were not under an obligation to support a family, but instead should receive a ‘living’ wage if they were working in jobs performed almost exclusively by women, such as fruit packing or millinery. If they were working in jobs in competition with men, such as fruit picking or blacksmithing, they would receive the same award wage as men. The basic wage for women became 54 per cent of the male basic wage, and after World War II this became 75 per cent of the male basic wage. This lasted until 1972, when both men and women received the same award wage.
This case concerned minimum wages for women in the fruit-growing/fruit-picking industry.
The union movement insisted on ‘equal pay for equal work’. The Court said:
This phrase has an attractive sound, and seems to carry justice on its face; for, obviously, where a woman produces as good results as a man in the same kind of work, she ought not to get less remuneration. But the phrase is really ambiguous. If it means equal pay for those who turn out the same result in quantity, it means piece-work — for 100 tins of fruit, so much pay; for 80 or 50 tins of fruit, so much less. As Mr Cater [the representative for the fruit-growers] justly says, equal pay for equal work involves unequal pay for unequal work. [p.71]
Higgins J went on to note that:
The employer is not bound to retain a woman in his employ if her work is not up to his standard; but if he do retain her, he practically admits that it is. But Parliament, recognising that an employer, with his tremendous power of giving or refusing bread, can often force an applicant for work to accept less than is just in order to get bread, prescribes — or allows this Court to prescribe — a minimum below which the employer must not go. It still leaves him free to dispense with the services of any worker who does not come up to his standard, and to give higher wages to exceptionally good workers whose services he desires to secure. [p.71]
In assessing wages paid to men and women, Higgins J, President, commented:
I have been forced to fix it by considerations other than those of mere earning power. I have based it, in the first instance — so far as regards the living or basic wage — on ‘the normal needs of the average employee regarded as a human being living in a civilized community’ (see Harvester Judgment, Ex parte H.V. McKay, 2 CAR 3, and subsequent cases). No one has since urged that this is not a correct basis; some employers have expressly admitted that it is. I fixed the minimum in 1907 at 7s. per day by finding the sum which would meet the normal needs of an average employee, one of his normal needs being the need for domestic life. If he has a wife and children, he is under an obligation - even a legal obligation - to maintain them. How is such a minimum applicable to the case of a woman picker? She is not, unless perhaps in very exceptional circumstances, under any such obligation. The minimum cannot be based on exceptional cases. The employer cannot be told to pay a particular employee more because she happens to have parents and brothers and sisters dependent on her; nor can he be allowed to pay her less, because she has a legacy from her grand parents, or because she boards and lodges free with her parents, and merely wants some money for dress. The State cannot ask that an employer shall, in addition to all his other anxieties, make himself familiar with the domestic necessities of every employee; nor can it afford to let a girl with a comfortable home pull down the standard of wages to be paid to less fortunate girls who have to maintain themselves. [p.71]
The President noted that some jobs were more likely to be performed by one or the other gender:
If blacksmiths are the class of workers, the minimum rate must be such as recognises that blacksmiths are usually men ... If milliners are the class of workers, the minimum rate must, I think, be such as recognises that all or nearly all milliners are women, and that men are not usually in competition with then. [p.72]
In that context, he held that in the present case the expression ‘the minimum rate for a class of workers’ meant:
If fruit-pickers are the class of workers, the minimum rate must be such as recognises that, up to the present at least, most of the pickers are men (although women have been usually paid less), and that men and women are fairly in competition as to that class of work ... There has been observed for a long time a tendency to substitute women for men in industries, even in occupations which are more suited for men; and in such occupations it is often the result of women being paid lower wages than men ... in the case of the pickers, men and women, being on a substantial level, should be paid on the same level of wages; and the employer will then be at liberty freely to select whichever sex and whichever person he prefers for the work ... But in the case of the women in the packing sheds, the position is different. I have had the advantage of seeing the women performing the lighter operations of packing at a factory; and I have no doubt that the work is essentially adapted for women with their superior deftness and suppleness of fingers. The best test is, I suppose, that if the employers had to pay the same wages to women as to men, they would always, or nearly always, employ the women; and in such work as this, even if the wages for men and for women were the same, women would be employed in preference ... I must, therefore, endeavour to find a fair minimum wage for these women, assuming that they have to find their own food, shelter, and clothing. [p.72]
A common rate was set for men and women pickers. Having found that the class of workers packing at the factory was wholly female, the President fixed a ‘fair minimum wage’ which would provide for the woman’s food, shelter and clothing but not that of her family.