by Paula Määttä

II. Australia

D. Supervision and enforcement of the equal pay principle

1. Under the Workplace Relations Act 1996

Under the Industrial Relations Act 1988 as amended in 1993, the AIRC had the power to make orders to ensure equal remuneration for work of equal value where there was no adequate alternative mechanism. Under the Workplace Relations Act 1996, Australias obligations under Convention No. 100 are to be met in part through the equal pay requirement in relation to awards (Schedule 5), the equal pay elements of the minimum conditions for employees under certified agreements or Australian workplace agreements (AWAs) (Schedule 13), and the role of the Employment Advocate with respect to AWAs. In general, the provisions relating to equal pay were thought to be redundant as every state or territorial jurisdiction has adequate machinery to deal with the subject. Accordingly, The entire section on equal pay in the Industrial Relations Act 1988 as amended in 1993 (Division 2 of Part VIA) was repealed by the Workplace Relations Act 1996.

Claims that Australian Workplace Agreements breach the equal pay standard may, like other claims, be raised with the Employment Advocate and taken to the Court (with the assistance of the Employment Advocate, if required). Section 83BA of the Workplace Relations Act makes provision for an Employment Advocate. Among the relevant functions of the Employment Advocate are the provision of assistance and advice to employees about their rights under the ct, handling alleged breaches of AWAs, and assisting employees in prosecuting breaches where appropriate (s 83BB). An Employment Advocate has the power to ascertain whether an AWA is being observed, whether relevant provisions of the Act are being complied with, through inspectoral services. The Employment Advocate can direct authorised officers to enter premises, interview employees, and require the production of documents. The Employment Advocate can also assist individuals who are parties to an AWA seek in court the recovery of outstanding entitlements, interest, costs, and a penalty for breaching an AWA or the relevant provisions of the Act. In all cases, using the services of the Employment Advocate is a matter of choice; the employee may instead pursue matters independently through his or her choice of representative.

With respect to certified agreements, the AIRC will review agreements prior to their certification to ensure that they provide for equal pay for work of equal value without discrimination on the grounds of sex.

2. Under the Sex Discrimination Act 1984

The Sex Discrimination Act 1984 makes provision for a general complaints-driven system of remedies in relation to unequal remuneration. The Sex Discrimination Commissioner investigates and makes determinations concerning such matters. There is scope for either an individual or a representative complaint on behalf of an aggrieved member or members (class action) If a complaint relating to direct discrimination in the matter of remuneration has not been resolved at the informal conciliation level, the claimant would be required to prove that she had been treated less favourably than a real or hypothetical man in the same or similar circumstances. Such an approach is more in the nature of an equal work case than an equal value case. In a complaint relating to indirect discrimination case in the mater of pay, it is very difficult to lay the burden of proof upon the claimant at the formal inquiry level because of the way in which the relevant section of the Sex Discrimination Act has been worded. The claimant must first establish that a higher proportion of men than women were able to comply with a particular requirement or condition. Next, the requirement or condition must be unreasonable in thecircumstances. Finally, the complainant must be unable to comply with that requirement or condition. (Thornton 1993, pp. 35-36.)

3. Human Rights and Equal Opportunity Commission and Australian Industrial Relations Commission

In areas of employment not covered by an award, at the federal level and in states containing an exception in their legislative schemes, complaints relating to wage discrimination may be lodged and dealt with by the Human Rights and Equal Opportunity Commission (HREOC). In relation to wage discrimination in an award, the amendments to the Sex Discrimination Act 1984 also provide for complaints to be made to the HREOC. The HREOC will refer allegations of discriminatory conduct to the Sex Discrimination Commissioner (SDC), who will consider whether the complaint relates to a federal award. If the SDC considers that the complaint relates to a federal award and that the act is a discriminatory act, the Sex Discrimination Commissioner must refer the award to the Australian Industrial Relations Commission (AIRC). The AIRC has power to vary awards or agreements that contain discriminatory provisions.