(A truncated version of a paper presented by CDU law lecturer Tanjil Whitnell at: ‘Our Work Our Lives’ 2011 – Dili, Timor-Leste, September 2011, opening of the Timor Leste Womens Working Centre)
Australian legislation currently guarantees women the right to receive remuneration equal to that which men receive when women undertake roles which although different, are nonetheless of equal or comparable value to that of men’s roles.
However practical access to these rights remain limited primarily because of the difficulties posed by the requirement that a judgement be made about a woman’s worth versus a man’s.
THE EMPLOYMENT LAWS – the Australian Experience
The ‘Gender Pay Gap’ is the disparity between women’s earnings and men’s earning, which traditionally evidences that women are paid less for their participation in the workforce than men. It is this gap which has been the focus of much of the discourse in an Australian employment context in recent decades, and the problem which recent legislative changes has sought to alleviate.
The Gender Pay Gap can be explained in part by the different wages that men and women receive when undertaking employment which although not necessarily the same or even similar in role, is nonetheless the same, or similar in terms of its value, or worth.
In recognising and attempting to alleviate this persistent Gender Pay Gap Australia can be seen as relatively proactive in recent decades in terms of the legal underpinnings of such inequity.
Internationally, Australia ratified several Conventions, including the ILO Equal Remuneration Convention 1951 and the Convention On The Elimination Of All Forms Of Discrimination Against Women 1967 both of which expressly state the principle that men and women should be paid equal wages when the jobs they undertake are of ‘equal value’.
Before the Arbitration and Conciliation Commission in 1972, in what became known as the Equal Pay Case,[i] it was expressly accepted that where women are employed in a role of comparable value or worth to a role undertaken by men – although not necessarily the same or even similar in role – women should receive the same remuneration as men.
The legislature, in 1993, included a provision within the then Industrial Relations Act (Cth) accepting the position advanced by the Equal Pay Case.
Although since amended, this provision is now contained in the new Fair Work Act (Cth), and allows for orders to be made to ensure all workers receive equal pay when undertaking employment of equal or comparable value.
Whilst it is true to say that when women undertake the same employment as men they are paid the same, when it comes to women being paid the same as men when undertaking different roles, but nevertheless roles of equal or comparable value, the legal instruments which recognise and indeed promise equality for women, have largely failed to deliver.
Primarily this is because to ‘deliver’ requires employment, which may be quite different in terms of the roles, to be compared to one another, and one role declared to be of equal worth to another – for example, by comparing Nursing to Engineering both roles could be said to be of equal worth, and thus Nurses and Engineers should be paid the same. The difficulty is that there is, and always has been, a traditional reluctance to accept that females are comparable in worth to males, and therefore that female dominated employment is comparable in worth to male dominated employment.
ACCESS TO THE EMPLOYMENT LAWS – The Problem with Determining Worth
Evidencing the lack of practical access to their rights to equal wages for equally valued work are statistics which indicate the Gender Pay Gap in Australia is still considerable at around 17%.[ii]
Real practical access to rights to equal pay for jobs of equal worth is largely illusionary because of the hurdle women face in arguing that a female dominated job such as nursing is worth as much as a male dominated job, such as engineering. This hurdle exists by virtue of the fact that society has traditionally thought of men as far more worthy, and of far greater value than women, therefore employment which men are traditionally employed within are roles which naturally will be considered to be more worthy than those which women are the traditionally employed within.
Whilst persistently low female earnings generally, in comparison to male earnings can be explained in a variety of ways, the pay gap between particular male dominated and particular female dominated professions can be explained simply by the refusal of society to attribute equal worth to a job that women do, because women themselves are considered less worthy.
As a result of this considerable hurdle facing women in their claim for equal pay, many female dominated professions, seemingly ‘comparable’ in many respects to particular male dominated professions are not paid as such. For example, despite both being University degree educated, female dominated Nursing is paid around half that of male dominated Engineering.
Despite both being University degree educated, female dominated teaching[v] is paid less than male dominated accounting[vi], in fact teaching is actually paid less than trade trained male dominated[vii] construction.[viii]
Despite both requiring short periods of training, female dominated enrolled nursing is paid less than male dominated policing.[ix]
Why are the theoretical rights women have to equal pay when undertaking equal worth roles not converting into practical access?
THE LIMITATION V THE EXPECTATION: The Law as Declarer, Not Enforcer
The difficulty with turning theoretical rights on the one hand into practical access to those rights on the other is that the law of itself doesn’t force compliance with the rules, rather its role, particularly in relation to non-criminal laws, is largely only declaratory.
The perception that the law, once declared, is the fixer of all ills is a common misconception, and one which women have arguably fallen victim to. Women appear to have assumed that the existence of various laws recognising their rights somehow meant they were now seen, and will now be treated, as being of equal worth as men. The law recognised it, therefore it must be so.
But that is not what the law achieves, the laws role is largely to declare, it is generally quite unable to enforce large scale compliance.
Even for the slightly more coercive criminal laws, the theoretical recognition of a woman’s right not to be assaulted by her husband for example, have not stopped husbands assaulting their wives. Husbands ask themselves ‘why should I stop assaulting my wife?’, if the answer is ‘because a law exists saying I shouldn’t’, far less compliance will occur than if the answer was ‘because my wife is worthy of fair treatment’.
All that is needed to stop the husband assaulting his wife, and for that matter to stop women being poorly treated in all aspects of their lives is just a change in attitude, which thereby brings about voluntary compliance.
That is not to say the role of the law stops at the mere declaration of the rights. Although the law of itself doesn’t enforce compliance, and therefore does little in terms of providing access to rights, it does have the ability to encourage large scale voluntary compliance by establishing social norms which recognise the worth of women.
LAWS ROLE IN SETTING SOCIAL NORMS – the Insistent Voice
It is an important, and significant, function of the law and also the courts to set social norms. In a practical sense, they do this by virtue of the authoritative voice with which they speak, or to quote Antony Duff: because the laws voice is an insistent one. [x]
Whilst the setting of norms can be of tremendous use to a society in terms of outlining acceptable forms of behaviour, norms can also create myths and misconceptions, and perpetuate a particular groups inequitable treatment, as has been the tradition in terms of women.
The ‘voice’ of the law and the courts has been very ‘insistent’ when it comes to issues of women’s rights and protections, or more correctly, very insistent that women have no rights, are not worthy of protection and therefore are of little worth.
For example, in criminal law context, the ‘marital rape immunity’ existed in Australia up until the 1980’s and provided immunity from prosecution to husbands who raped their wives, premised upon the idea that women had given up their right to say no to sex upon marriage. Furthermore, even when the rape laws did allow prosecution, unrealistic requirements establishing lack of consent, such as external signs of injury and corroborating witnesses, along with the victims prior sexual history being admissible evidence, meant the rape laws cast women as inherently unreliable witnesses and resulted in successful prosecutions being few and far between.
Quite apart from the laws of the time, the judiciary in the criminal context also went about setting social norms about women’s worth. In the 1840’s the Australian judiciary was of the opinion that ‘a husband has a legal right to beat his wife as long as it was not in a cruel or violent way’, and even by the 1990’s the infamous Supreme Court Judge, Justice Bolan seemingly advocated the same when he said that a husband, faced with his wife’s refusal to engage in sex, could attempt to persuade her with a measure of ‘rougher than usual handling’.
Property laws, appearing equally as sex biased, existed in Australia up until 1883 to preclude women from acquiring, holding or disposing of property. Until 1892 a woman was unable to claim maintenance from her husband unless he had deserted her, meaning those a woman fleeing violence was not entitled. Until very recently the superannuation a man accumulated over his married life, whilst his wife had reduced or nonexistent earning capacity by virtue of her child raising responsibilities, was not deemed to be part of the marriage property pool that could be distributed upon separation.
In terms of employment laws, up until 1969 the argument that women deserved an award wage equal to that of men when they undertook the identical role as men, was scoffed at by the courts, leaving women’s award wages at around 54% of the male award, later rising to 75%. Even by 1980, ANSETT Airlines were refusing to employ female pilots, simply on the basis that they were female.
Although Australia ratified two important International Conventions (mentioned earlier) recognising women’s rights to equality in the workforce, Australia’s ratification of those conventions came 23 years (and 16 years respectively) after the creation of the Conventions, indicating Australia’s persistent reluctance to recognise women’s rights to equal treatment.
The result of the foregoing examples is that the laws in pronouncing, for example, that women could not hold property, not only meant that legally women could not hold property, but it created a social norm that women were clearly less worthy, less able to be trusted and less intelligent, because what other reason would there be for refusing them the ability to hold property?; or for refusing their right to protection from violence?; or for refusing their right to equal payment for services?
Is it any wonder, after generations of the ‘insistent voice’ of the law educating us about the lack of a woman’s worth, that today, despite having laws prohibiting the assault of one’s wife; or laws insisting women are paid equally, women are still assaulted by their husbands and still paid less?
Hence Australia’s ongoing struggle to turn theoretical rights into practical access to those rights continues.
The solution, in part, rests with recognising that with the laws ability to set negative social norms about women and their worth, comes also the ability to set positive social norms.
If the current laws, the criminal laws, the tort laws, the property laws, the employment laws all declare protection and rights for women, a positive social norm about women’s worth will be created just as surely as the comments of the likes of Justice Bolan created the negative norms.
In this way, society will start to believe that women are worthy, and therefore be able to measure, without sex-bias, the worth of a Nurse against that of an Engineer.
DUPLICITY– The Insistent Voice Duplicated
Changing social norms does not happen overnight, and the process of doing so is made considerably more difficult if there are not feminist organisations, social justice groups, workplace unions and a multi-faceted approach by the legislature.
This is not a process which is complete in Australia, evidenced by the ever persistent gender pay gap which still means women in Australia earn less than men, but the process can be said to be well underway.
Referring again to the criminal law context, Australia has progressed from the misogynist ‘marital rape immunity’ laws to:
Recognition of the seriousness of husband-on-wife abuse which is now prosecuted through generic assault and rape provisions within legislation in every state and territory.
There have been amendments made to rape evidence laws removing the requirement for external signs of injury and corroboration in proving lack of consent.
Furthermore, sentencing provisions now categorise rape in the special category of a ‘serious violent offence’, meaning the offender is likely to serve a greater portion of their sentence before being granted parole.
Australia has gone from sex-bias criminal laws which allowed assault within marriage, to 98% of Australian’s recognising that violence against women is a crime. Major advertising campaigns encouraging Australian’s to ‘say no to violence against women’ illustrate wide spread and increasingly deep-seated societal support for such recognition. For example, the recent ‘I Swear’ series of advertisements, featuring well known Australian men swearing an oath – and encouraging others to swear an oath – against such violence, has been well received and acts as a powerful advocate in favour of the argument that women are worthy of fair treatment. This type of widespread media coverage, in conjunction with initiatives such as the Government’s National Plan to Reduce Violence against Women 2010‐2022, promoting zero tolerance to such offences, also indicates a clear re-evaluation of women’s worth.
In terms of the judiciary, we have gone from ill-informed white male judges to a judiciary which increases its female presence each year, and a High Court bench which since the inception of the first female judge in 1987, now has three female High Court judges (out of a bench of seven) sitting together.
In terms of property laws, Australia has progressed from the court refusing spousal support where the wife left as a result of violence, to:
Spousal maintenance being provided for within the Family Law Act (Cth), as well as provisions allowing for the husbands superannuation to form part of the marital property pool.
Property is divided, upon marriage break down, by need rather than by who ‘earned it’, and takes account of the non-financial contributions of the wife, such as homemaking and child rearing.
In fact, we have gone from property laws precluding women from acquiring, holding or disposing of property to a female, Ms Gina Reinhart, topping the ‘Richest Australian’ list in 2011 for the first time.
In terms of the employment laws which left women paid less than men when doing the same employment, Australia has progressed to:
A gender pay gap, which although still higher than some, is half that of Korea and Japan and still sits below the OECD[xi] average.
The Australian government offers paid maternity leave and means tested child care subsidies to allow mothers to participate meaningfully in the workforce, and participate in the workforce they do. Women now represent 50% of high school and university graduates and 45% of the workforce.
Their workforce participation has increased to the point where, during 2010, three of the eight states/territories were governed by a female premier, and also in 2010 Australia welcomed its first female, Ms Julia Gillard, to the ‘top job’, of Prime Minister.
In recognising that Australia’s employment laws promise the right for women to be paid the same as men when employed in roles of similar worth, there must also be recognition of the lack of practical access to those rights by virtue of the difficulty in attributing ‘worth’ to women, particularly when they are being compared to men. This is not a problem unique to Australia, it is shared worldwide, and thus lack of access to rights for women is unsurprising when we consider the social norms, set by the laws over many generations, which have acted to severely undermine women’s worth.
Where ever a law seeks to re-instate women’s worth, or provide equality, as employment laws necessarily must, it will face historic hurdles, requiring consideration of both the existing position of women in society and the limitations of the laws to achieve compliance.
Such employment laws require therefore, a duplicitous approach, whereby all laws work in support of each other. Only then will employment laws, such as those discussed herein, result in practical access to the rights promised, and thus acceptance that Nurses are worth as much as Engineers.
[i] National Wage and Equal Pay Case (1972) 147 CAR 172
[iii] Australian Bureau of Statistics, Income Distribution: Female/male earnings, 4102.0 – Australian Social Trends.
[iv] Australian Bureau of Statistics, Income Distribution: Female/male earnings, 4102.0 – Australian Social Trends.
[v] Australian Bureau of Statistics, Income Distribution: Female/male earnings, 4102.0 – Australian Social Trends.
[vi] My Career, Accounting Salary Centre, http://content.mycareer.com.au/salary-centre/accounting/
[vii] Australian Bureau of Statistics, Income Distribution: Female/male earnings, 4102.0 – Australian Social Trends.
[viii] Pay Equity Statistics, Equal Pay Day, EOWA.
[ix] Australian Bureau of Statistics, Income Distribution: Female/male earnings, 4102.0 – Australian Social Trends.
[x] Antony Duff, Theories of Criminal Law, 2008
[xi] OECD: Organisation for Economic Co-operation and Development