by Paula Määttä

II. Australia

B. Scope of the concepts on equal pay

1. The definition of "pay"

The Workplace Relations Act makes provision for minimum conditions in relation to the wages of employees covered by either certified agreements or Australian workplace agreements (AWAs). Regular employees, pieceworkers, and employees participating in Labour Market Programs are dealt with separately in sections 170XF, 170XG, and 170XH of the Workplace Relations Act.

Section 179XF applies to all employees who are not casual, approved trainees, or apprentices, pieceworkers or participating in a Labour Market Program. In its consideration of employees wages under an award, the AIRC considers hours worked at ordinary time, overtime, work paid at penalty rates, allowances under the award, and any recreation leave loadings payable under the award. In determining wages payable under an agreement, any amount payable to the employee in respect of personal/carers leave not taken during the period in question is to be disregarded. An agreement may provide for the pay component of the entitlement of paid personal/carers leave to be paid otherwise than at the time leave is taken. Normally, an employee will be paid for personal/carers leave in the pay period in which that leave is taken. To ensure a fair comparison between wages under the agreement and pay arrangements under the award, any payment received for personal/careers leave paid beyond what would have been paid on use during the period of comparison should be ignored.

For pieceworkers who are not casuals, s 170XG provides that wages includes any allowances or loadings, penalty rates, rates paid for waiting time, or any guaranteed minimum payments.

For casual employees, s 170XP components of wages that must be included in the calculation of award wages includes ordinary pay, overtime, penalty rates, casual ladint payable under the award, any allowance payable under the award, and any recreational leave loading payable under the award. For casual pieceworkers employed under an agreement, the employee is entitled to receive at least the value of any allowances and loadings payable under the relevant award (s 170XQ).

2. The definition of "equal work"

In 1972 the Australian Conciliation and Arbitration Commission defined equal pay for work of equal value as the fixing of award wage rates by a consideration of the work performed irrespective of the sex of the worker. The value of the work refers to worth in terms of award wage or salary fixation, not worth to the employer. The principle of equal pay for work of equal value could be formally incorporated into awards either by means of agreement or through arbitration, if agreement could not be reached (Thornton 1993, 26).

The Industrial Relations Act had included the term "equal remuneration for work of equal value", which had the same meaning as in the Equal Remuneration Convention. The term "equal remuneration for men and women workers for work of equal value" refers to rates of remuneration established without discrimination based on sex. In determining questions relating to equal remuneration for work of equal value, relativities based on skill, responsibility, the conditions under which work is performed, were taken into consideration in wage-fixing under the Industrial Relations Act 1988.

3. Scope of the equal pay provisions

The equal pay provisions apply to all employees in the private and public sector. In addition to whole-time employment, part-time, casual and temporary employment are covered as well. In relation to Australian workplace agreements and certified agreements under Schedule 13 of the Workplace Relations Act 1996, employees undertaking an approved trainee-ship or apprenticeship are also included within the protective scope of the equal pay provisions (s 170XZ).

The Sex Discrimination Amendment Act 1991 states that it is unlawful for a person exercising discretion with respect to the payment of a superannuation benefit to discriminate on the basis of sex. These amendments removed the exemption regarding discrimination in superannuation.