The full bench of Fair Work Australia ruled yesterday that gender is a major factor in the low pay of thousands of workers in the social care and community sector.
There are around 150,000 largely female social and community services (SACS) workers employed in sectors such as mental health, social and youth work and aged and disability care. The ruling affects non-government employers like the Salvation Army and UnitingCare Australia.
What kind of wider impact will the ruling have and could it be challenged, or is the decision now set in stone?
Even though they haven’t called it an interim decision, it is really in effect [an interim decision].
What Fair Work Australia has done is find that yes, there is undervaluation for the SACS workers relative to workers in similar types of work employed by state and local governments.
But they have really asked the parties to come back and tell them how much of that undervaluation is due to gender and then also what proposals they have in terms of adjustments of classifications and wage rates.
It is not a simple 30% increase for all jobs. They have got to go back and say youth workers are undervalued by ‘X’ % relatively and we are arguing that ‘Y’ % of that ‘X’ % is related to gender. It is really quite complex.
At the broader level I think the decision is terribly significant. It is the first time since the equal pay decisions all the way back in 1969 and 1972 that the federal commission has actually found that there has been undervaluation.
Before the Fair Work Act it was almost impossible to do because the federal provisions required you demonstrate discrimination. So it wasn’t enough to find undervaluation, you had to show that this was discrimination.
Traditionally the industrial relations tribunals have not been very good at understanding discrimination. But now that we no longer have that test.
On a symbolic level it is very exciting but it is not the complete decision. I don’t think at this stage there’ll be any appeals from the employer groups.
A number of the employer groups conceded there was relative undervaluation and conceded some of it was to do with gender.
The commission has sent the parties away to try and come to some sort of consent agreement and there may be some argy-bargy around the edges, but that is really what they have set the parties.
Is it only under the Fair Work Act that this could have happened?
Yes. That is absolutely the case but it also really goes back to the Industrial Relations Act of 1993 where theoretically you could bring a claim for equal pay and a number of attempts were made but the commission never found for them.
The equal pay provisions that we had in the Industrial Relations Act and then the Workplace Relations Act made it almost impossible to win a claim because of this element of discrimination. That is what has been specifically removed.
It has been said work tasks women do that mimics work done for free tends to be undervalued.
There are different types of work done by SACS workers. There are professional groups like social workers, there are youth workers, an awful lot of the front line care workers who provide personal care either in institutions as disability support workers which can involve toileting, bathing, getting dressed.
That is work that home carers also provide in people’s homes and that looks very much like the work that women do when they have been traditionally caring for their families. As we have seen an increase in the percentage of women in the paid workforce, we have seen less provision of care in the workforce.
We have got an ageing population so there is an increasing demand for that work, particularly around aged care and disability care, for caring work. This is not just Australia, it is happening across the Western world.
Even now in our modern awards, if you’re an aged care worker as a personal care assistant, you are looking after someone at a facility, you have slightly better conditions than a worker who may be doing exactly the same work in their home.
What I and other academics argue is that when you are delivering care in someone’s home it looks exactly like the work women do for free, therefore it is not valued. Yet although it is not your elderly mother or sibling you are caring for, your responsibilities are enormous.
Home care workers do not simply come in and say “Alright, time for a bath, Mr Bloggs”. By talking to the person, they are monitoring what is happening with them - if they have had a fall, if they understand (their surroundings), if their family has been to visit them - which they can then report that back to their supervisor. It is a really important relationship.
It is what allows people to stay in their homes and in the community and that is what is so important.
But it is really undervalued work. Home carers will complain people say: “All you do is a bit of cleaning in people’s homes”, and yes, that is what happens sometimes, but it is not just like cleaner who ignores you.
They make you a cup of tea, they might take you shopping, they will check and see how you are.
Where does this leave Australia internationally? Does this catch us up or are we ahead of the game?
In some ways we are ahead of the game. In England the equal pay rulings tend to work on an individual basis or you can do it on an enterprise basis, which is where we saw a number of fair pay decisions in the UK. It also happens in places like Canada.
What is exciting about the Australian system is that we can do it industry-wide so that the extent to which there are increases through this decision will affect the whole industry.
People won’t have to negotiate individual worker by individual worker or enterprise by enterprise.