Speech to the LHMU Child Care Conference

by Commissioner Pru Goward, Brisbane Girls Grammar School, Queensland, 21 October 2001.

Introduction

I would like to talk to you about two of the most pressing issues currently facing women in the labour force - pay equity and paid maternity leave.
As federal Sex Discrimination Commissioner with the Human Rights and Equal Opportunity Commission a major part of my role is educating Australians about their rights and responsibilities under the Act- which really means to educate the community about the need for women to enjoy equality of opportunity, freedom of choice and freedom from discrimination. That any departure from this equality of choice demeans not only women but men and diminishes our whole community.
A crucial aspect of equality is pay equity. Despite pay equity inquiries in NSW and Queensland for example, recent statistics show that women still earn only 84.6% of men's ordinary full-time earnings.[1] The gender pay gap is an issue that we must all concern ourselves with. As Justice Mary Gaudron of the High Court said in 1985, "equality is a meaningless abstract in the absence of economic strength and security".
If we wish to eliminate sex discrimination both within the workforce and externally, confronting the issues that lead to and foster pay inequity is an important next step in Australia, despite our relatively high gender earnings ratio.
Let's take the child-care industry- a classic case of the undervaluation that has befallen many industries that are female-dominated. First look at its position in the labour force overall.

Statistical snapshot

In general, women workers continue to earn only two-thirds as much as men when you take into account all wages, including overtime and considering many more women than men work part-time.
Since 1980, the participation of all women in the workforce has risen 14%- a little bit more among women in their peak child bearing years of 25-34, but the overall share of income has risen only by 5%.[2] This is because most of the increase in work over those two decades has been in part time, not full-time work.
Although women make up only 43% of the total they dominate in the casual workforce. Women make up 55.4% of all casual employees compared with 45.6% of men.[3] Despite this only a minority of employees consider they have flexible hours.
When it comes to families, 48% of children were in families with both parents, or the lone parent, employed either full-time or part-time. The proportion of children using childcare was 70% where both parents (or the lone parent) worked full-time and 62% where at least one parent worked part-time.[4]
What's more, families juggle using a number of techniques; 32% used flexible working hours and 23% used permanent part-time work. Not surprisingly, employed mothers are much more likely to make use of such work arrangements (68%) than employed fathers (27%).[5]
In the child care industry, as many of you would be aware:
- At least 25% of childcare workers either work part-time or as casuals.
- There are over 3,800 childcare services in NSW, employing some 21,000 workers- and almost all child care workers are women.
It may not come as a surprise to you that women continue to dominate the lowest paid jobs in society with 26% of women in the lowest income bracket.[6]

The causes of 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 earnings of full time women workers is still 84.6% of that of men's.[7] If over-award and over-time payments are included this figure drops to 80%, as these types of payments are on average lower for women than for men.[8] As the gap narrows, the rate of narrowing also slows.
There are several reasons suggested for this: first, there aren't many women in professional or managerial positions and even fewer in the relatively well paid trades 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.[9]
Even when women are in managerial positions, equality of opportunity and pay equity is not guaranteed.
Another factor contributing to the lower overall salary rates for women is part-time work. Five years ago 73% of part-time workers (including casuals who work less than full-time hours) were women. This represented 46% of women in the workforce.[10] There is nothing to suggest this has fallen since.
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 67%.[11]
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.
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.
The truth is, pay inequity is a systemic and cultural issue. 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.
Pay inequities result from a combination of entrenched historical practices, the invisibility of women's skills, the lack of a powerful presence in the industrial system, and the way that "work" and how we value work are understood and interpreted within the industrial system. So often the industrial system fails to recognise skills possessed by women as actually valuable. If women do something well, you sense that has often been explained away by unions and bosses as an easy skill, not worth a great deal despite contrary evidence that it can be extremely profitable for employers.
Nowhere is this more likely to be the case than for child care workers. After all, women were born to be mothers so the argument goes, and along with that the assumption that caring for other people's children is therefore easy, not a skill, but just what women do. Certainly not valuable. The truth is, as we all know, not all women let alone many people, can care for children, and that caring and nurturing children is a skilful and demanding occupation. We can all think of women who cannot or will not nurture their children because their interests and talents lie elsewhere.
In some cases, women workers themselves do not recognise the value of their work, and consequently don't fight for pay equity.
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. And yes, it is true that many women who work part-time while raising a family are happy working less than full-time.[12] However, I do not accept that women should be penalised because they continue to bear the greater responsibility for raising a family. And by penalized I mean spending the rest of their time in the workforce struggling to catch up, unable to take advantage of training or promotional opportunities because employers don't take their ambitions seriously, never with enough money to make a decent contribution to superannuation. No wonder so many women are putting off having children- they know they are immediately relegated to the bottom of the working class if they do, and may never return.
This needs a big rethink. Part-time work requires skills upgrading and indeed training and clearly it should be possible for part-timers to be promoted and take on leading work place roles.
There is some evidence that enterprise and individual bargaining has not been good to women, who are more likely than men to be employed part-time or casually and less likely to be unionised, often have less bargaining power than men or simply lack the required negotiating skills.[13] Perhaps this is because we have traditionally been taught to be grateful and not to question, perhaps women have sought different trade offs in their employment arrangements, but it is certainly true that part-time or casual workers are not usually in a position of strength and, as you already know, women dominate the casual employment sector.
In November 1996, the Women's Equity Bureau of the NSW Department of Industrial Relations commissioned Rosemary Kelly of Specialist Research Services to undertake research into the children's services industry in NSW.
Although the benefits of providing quality child care services include improved economic and social outcomes for the whole community, the outcomes of the study demonstrated an undervaluation of the work and a failure to recognise the training, qualifications and competencies of child care workers.
The following issues were identified as contributing to this undervaluation.
- Industrial relations processes have adversely affected pay equity in this industry.
- The award restructuring exercise of the early 1990's did not place due recognition on the skills and experiences of these workers.
- There are few enterprise agreements covering workers in child care and where they do exist, they largely deal with working conditions and not rates of pay.
- Lower rates paid to family day care providers (independent contractors) adversely impact on the rates of pay of other workers in the industry.
- The industrial relations system links productivity to wage increases. Government regulation in the form of staff to child ratios and limitations on numbers and types of places that providers can offer, whilst maintaining standards, reduces opportunities to identify areas of increased productivity and therefore wage increases.
  Under the minimum rates adjustment process, rates of pay for Child Care Workers were aligned with certificate (trade) level work rather than other types of work where an Associate Diploma is required.
- Rates of pay for Early Childhood Teachers were linked to those with equivalent qualifications employed in schools until the abandonment of centralised wage fixation in the early 1990's. Since that time, Early Childhood Teachers in the children's services industry have fallen further behind their school-based counterparts.
- The work has not been appropriately valued according to skills and qualifications and this undervaluation is due to the social construction of the work, compared to the equivalent trade qualifications in traditionally male dominated areas of employment.

Pay Equity in NSW

Based on this case study, the NSW Pay Equity Inquiry reported that the children's services industry is one of the female dominated industries that typifies the poorly paid nature of work which is performed predominantly by women.
The NSW Pay Equity Inquiry is a good illustration of 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."[14]
The Inquiry was not seen as the final step in establishing equal pay for work of equal or comparable value.[15] In the final Report made to the Minister 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."[16]
The 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.[17] She did not accept arguments that the wage differential would be "washed out" over time by the better wage positions of younger women workers.[18]
The Report made recommendations based upon the "existence of undervaluation of work in female dominated industries and occupations in NSW…"[19] The report recommended that the legislative definition of remuneration incorporate over-award earnings, as provided for in the Equal Remuneration Convention (ILO Convention 100).[20] This important step will ensure all payments are considered in assessing the earnings of both men and women.
The Child care industry was included as a key case study in the NSW Pay Equity Inquiry's report. Occupations such as child-care have provided useful examples of the historical undervaluation of this work because of the simple assumption that this sort of work is what women do naturally anyway, so why pay them properly for it?? In comparing provisions of the Metal Industry Award with the Child Care Industry Award revealed stark disparities in the extent of entitlements for workers. The Report concluded that in the child care industry there were few or no over-award payments; no available paid overtime; low union membership and low bargaining power; a large number of casual and part-time workers; the lack of recognition for in-house training; high turnover and high labour costs as a proportion of total costs.
The Human Rights Commission has taken a keen interest in this issue; for starters we have produced guidelines for employers and employees on pay equity issues. Some of the research the Sex Discrimination Unit has produced over the past few of years deals with a variety of issues related to pay equity: enterprise bargaining, access to training, access to flexible work arrangements and family friendly policies.

Further pay equity developments

It is interesting to note the enormous impact of the NSW Pay Equity Inquiry has had around Australia. In July 2000, Tasmania's Industrial Commission handed down a pay equity principle as part of its review of the State's wage fixing principles. The State Trades and Labor Council, which applied for the principle, put forward the model developed by the NSW Labor Council for the recent NSW pay equity case.
In addition, Queensland's pay equity inquiry report was released in March 2001 and recommended the State IRC be given broad powers to ensure equal remuneration.
Commissioner Glenys Fisher's report recommended the IRC be given powers to ensure equal remuneration when it makes or varies awards, agreements and QWAs.
Besides recommending the adoption of an equal remuneration principle to guide the IRC, the report also suggested that the Commission establish a minimum wage, to be reviewed annually.
In September 2001, it was announced that Queensland will introduce a minimum wage for non-award workers and review awards and agreements for gender pay equity, after the State Government adopted all 20 recommendations of the State's pay equity inquiry.
It is encouraging that it is being recognised that pay equity and the undervaluation of certain workers' contribution, many of whom are women, is 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 that average female employees are not aware of what their colleagues earn. Where discrimination is indirect, complex and entrenched in historical practices and workplace culture, it is correspondingly more difficult for an individual to perceive, respond and or formalise a complaint.
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.[21]
Nevertheless, it is important that this avenue remain open for individuals to pursue claims about pay inequity.

Unpaid parental leave for regular casuals

In light of the high numbers of women who work as casual employees, and the high numbers of casual employees in the child care industry, the recent decision of the Full Bench of the AIRC in the Parental Leave for Regular Casuals Decision[22] is particularly significant. This decision allowed some 1.2 million regular casual workers to gain access to 12 months unpaid parental leave.
In its decision, the AIRC noted the significant shift, particularly among females, toward casual employment, much of it regular and ongoing, and said it would be inequitable to deny parental leave to such employees while providing it to regular full-time and part-time employees.
The new parental leave test case standard combines the revised parental leave test case standard arising from the Supplementary Award Simplification decision[23] with the amended consent clause put forward by the unions. The new entitlements for regular and systematic casuals with 12 months service would have "negligible" cost impacts, the Full Bench said, and would help employees balance work and family responsibilities.
Most parties said the change would also assist employers in retaining skilled staff and boosting employee loyalty. Immediate implications for Australian employers are that:
- the new Parental Leave Test Case Standard applies immediately only to a relatively small number of employees covered by the awards that were the vehicle for this decision;
- employers can expect to receive applications to vary existing award provisions to reflect the new Parental Leave Test Case Standard;
- there may be some awards or industries for which the new Parental Leave Test Case Standard is inappropriate. In these cases, the objection must be referred to the Full Bench of the AIRC, and
- the decision reflects the growing recognition in Australia of the significance of the parental rights (both in relation to leave and to alternative working arrangements) and needs of all employees. My discussions with employers over the past few months suggest that whether or not it is part of the award process, employers recognise the need to keep good and loyal staff and that supporting a young person's desire to have children AND work is good employment practice. The business case is strong. That is in addition to any concern employers might have to prevent claims of discrimination and to do 'the right thing'.
It is also evident that many casual employees have ongoing roles with their employers and their employment is not necessarily limited to short periods. Also, many casuals have reasonably predictable working patterns and regular earnings with expectations of ongoing employment. Continuing disadvantage suffered by casual employees, particularly the large numbers of women who are casuals, remain a central concern for the Human Rights and Equal Opportunity Commission, which intervened in the Parental Leave for Casuals matter.
In light of the prevalence of women in casual positions, and this is particularly relevant to the child care industry, and the failure of enterprise bargaining to provide paid maternity leave to this category of employee, as discussed above, this is a significant and long overdue development. The granting of unpaid parental leave to casuals represents a belated recognition of the fact that many casual employees are women with family responsibilities, who have historically been denied certain entitlements, despite the fact that they may work the same hours per week and do the same work as other employees who are part-time or full-time.
This leads me to the contentious issue of paid maternity leave in Australia. 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.[24]
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.
In the developed world, only three countries do not currently implement some form of paid maternity leave: the USA, New Zealand and Australia.
Even then, New Zealand intends to legislate for the introduction of a Paid Parental Leave Scheme from 1 April 2002.
Further, 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 states in its reservation that it is not at present in a position to take the measures required to introduce maternity leave with pay or with comparable social benefits throughout Australia.'
Australia at present does not have in place legislation that deals with the provision of universal paid parental or maternity leave at either the national or State or Territory level.
Data from the Australian Workplace Industrial Relations Survey[25] indicates that 59 per cent of public sector workplaces and 23 per cent of private sector workplaces offered paid maternity leave as at 1995.[26]
In light of this situation, I understand the ACTU is to begin campaigning for paid maternity leave - funded by employers, government or a combination of both.[27]
One of the first things I've done in my new job was to embark on an investigation into the issue of paid maternity leave and the options available for the implementation of an equitable and workable paid maternity leave scheme in Australia.
As part of this ongoing inquiry, I have conducted numerous consultations with peak employer associations, unions (of which the LHMU was one) and other interested stakeholders to seek their views on the issue of paid maternity leave and how this country might best implement such a scheme and the costs involved.
An interim paper will be released in November that will be forwarded to all participants in the consultations and other interested people and organisations to gain their feedback and I will also be conducting a survey, through the membership of the employer and union groups who took part in the consultations, in order to seek the views of employees on maternity leave and work and family issues.
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.
It is only one measure - there remain other equally important challenges that we will need to address if work and family balance is to become a social and affordable reality. Other measures 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.
A final report on my enquiry will be released in June 2002. 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.
While my discussions with unions are not conclusive on what is the more important process in this - enterprise bargaining or award determination- what is clear is that the business case, the employer of choice case and the equity case are all, for once, working together. This represents a certain maturity in the Australian labour market many might not have suspected and must be commended.

Further concerns for marginalised women

I have been concerned not only with issues facing certain marginalised women who are employed in industries that are undervalued, but marginalised women who are themselves undervalued because of their particular cultural background.
Issues faced by women from culturally and linguistically diverse backgrounds are dependent on a range of factors, including English language proficiency and access to English classes, difficulties associated with recognition of prior skills, length of time in Australia, access to support networks and culturally appropriate services, and in the case of refugee women, experiences of rape or torture in their home countries.
We have found that these women are particularly vulnerable and less aware of their rights in relation to sex discrimination. Additionally, migrant and refugee women with low level English language proficiency tend to be clustered in the lowest paying occupations, where they are further subject to powerless working conditions and sex discrimination, including sexual harassment.
As part of the Commission's consultations for the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in August and September 2001 in Durban, South Africa, the SDU produced an issues paper on the intersections of race and gender in experiences of, and dealing with, racism. In that paper, the Commission committed itself to placing women's experiences of racism centrally in its work for the World Conference and beyond.
It is important to remember that discrimination and disadvantage operate at many levels. The multi-layered experience of many low -paid women workers needs to be addressed in any discussion of pay inequities and the lack of other crucial entitlements at work.
I will be continuing to focus on the particular needs and perspectives of women from migrant and Indigenous backgrounds - the most marginalised among us, throughout my term.
There is still much work to be done to recognise the contributions of low-income workers, predominantly women, in a number of industries, not least the child-care industry.
Issues of pay equity, paid maternity leave, access to numerous entitlements and flexible work arrangements and the multiple experiences of discrimination faced by many women in low-paid jobs are high on my agenda and I appreciate they are of concern to many hard working members of your and other unions.
Whilst I think a transformation in our workplaces, based on the practical realities of people's lives are 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 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 - this persistent gender wage gap should never be tolerated; ultimately the economy loses from any distortions in any of 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 wit of Adam Smith's invisible hand, or the ambitious and competitive employer, or an industrial court that wants the best for the national interest and the nation's workers.
Thank you for asking me to speak to you today; I look forward to your questions.

1. ABS Cat. No. 6302.2 at May 2001.
2. ABS Labour Force Surveys July 1979 to June 2000 - quoted in ABS Australian Social Trends 2001 Cat no 4102.0.
3. Smith and Ewer ABS 6310.
4. ABS Cat No. 4402.0 Childcare June 2000
5. Ibid.
6. ABS Labour Force Surveys July 1979 to June 2000 - quoted in ABS Australian Social Trends 2001 Cat no 4102.0.
7. ABS Cat. No. 6302.2 at May 2001.
8. ABS Statistics, 'Australia Now: A Statistical Profile'.
9. ABS Cat. No. 6203.0 August 2001.
10. ABS 6303.0, May 1996
11. ABS 6302.0 May 2001.
12. I Wolcott & H Glazer, Work and Family Life: Achieving Integration, AIFS Melbourne, 1995.
13. Ibid.
14. 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.
15. Ibid, p5.
16. Ibid , p3.
17. Ibid, p151-155.
18. Ibid, p152.
19. Report to the Minister, Volume II, p150.
20. Ibid, p153 & 167.
21. 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.
22. AIRC, 31 May 2001, Print 904631.
23. AIRC, Print Q5596.
24. Maternity Leave (Commonwealth Employees) Act 1973.
25. AWIRS
26. Morehead et al, 1997
27. ACTU 2000: 2)

Last updated 1 December 2001

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