by Paula Määttä

II. Australia

A. The legislative provisions for equality in pay

Australia uses the concept of "equal pay for work of equal value".

Australia is a federal state with federal, state and territorial jurisdictions. Under the Industrial Relations Act 1988, wage-setting had been centrally controlled by industrial tribunals at both federal and state level through conciliation and compulsory arbitration. The recently enacted Workplace Relations Act 1996 has extensively amended and retitled the Industrial Relations Act 1988. Under the Workplace Relations Act 1996, the primary focus for wage setting is at the enterprise and workplace levels. Accordingly, the focus of the traditional award system has now been altered to provide merely a safety net of minimum wae conditions. Awards are now to be simplified in that only minimum rates awards are to be made, and the determination of such award minima falls within the jurisdiction of the Australian Industrial Relations Commission (AIRC). Federal jurisdiction applies to the whole of Australia, although it cannot exclude or limit the operation of state jurisdictions. This chapter focuses primarily on the federal jurisdiction. As the statutory regime has been so extensively revised, its full implications in the area of equal pay are not yet readily ascertainable.

Under the Workplace Relations Act 1996, the AIRCs functions in relation to awards includes ensuring that there a safety net of fair minimum wages and conditions is established and maintained, having regard, inter alia, to "the need to apply the principle of equal pay for work of equal value without discrimination based on sex" (s 88B(2)(h)). In relation to Australian Workplace agreements and certified agreements, s 170XM provides that "The rates of pay of the employee must be determined on the basis that a man and a woman employed by the same employer must receive equal pay for work of equal value without any discrimination on the ground of sex".

In relation to equal pay, the philosophy of the Workplace Relations Act is that there is sufficient anti-discrimination legislation at the federal, state and territorial level so that specialised federal labour legislation in the area is rendered largely redundant. The Sex Discrimination Act 1984 of Australia prohibits discrimination on the ground of sex, marital status or pregnancy in the terms and conditions of employment and in access to benefits associated with employment. This legislation sets up a general complaints-based system of remedies against unequal remuneration, enabling the Sex Discrimination Commissioner to investigate and make determinations on sex discrimination in relation to employees remuneration.

Relevant legislation at the state and territorial level are as follows:

-- Australian Capital Territory: the general Discrimination Act, which was enacted in 1991. The Northern Territory: State legislation relevant to equal remuneration are Anti-Discrimination Act 1992 and the Public Sector Employment and Management Act 1993.

-- New South Wales: The Industrial Relations Act 1996 contains equal remuneration provisions that are designed to apply the provisions of Convention No 100. The Anti-Discrimination Act 1977 is also relevant.

-- Queensland: Legislation relevant to equal remuneration are the Anti-Discrimination Act 1991 and the Industrial Relations Act 1990, as amended in 1994. which requires "equal remuneration for work of equal value" (Division 5).

-- South Australia: Legislation relevant to equal remuneration are the Equal Opportunity Act 1984, the Sex Discrimination Act 1984, the Public Sector Management Act 1995, and the Industrial and Employee Relations Act 1994.

-- Victoria: State legislation relevant to compliance with Convention No. 100 are the Public Authorities (Equal Employment Opportunity) Act 1990 (as amended), the Employee Relations Act 1992, and the Equal Opportunity Act 1995.

-- Western Australia: The Equal Opportunity Act 1984 makes discrimination unlawful, and requires employers not to make discriminatory decisions when determining who should be offeredemployment, and when setting the terms and conditions of employment for potential or existing employees.

Australia ratified the Equal Remuneration Convention No. 100 in 1974.