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DECISION |
Fair Work Act 2009
s.302—Equal remuneration order
JUSTICE GIUDICE, PRESIDENT |
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Contents |
Paragraph | |
10.1 The applicants’ academic and other professional witnesses |
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Appendix A: Applicants’ employee witnesses—Summary of evidence | ||
ABI |
Australian Business Industrial |
ABS |
Australian Bureau of Statistics |
ACAC |
Australian Conciliation and Arbitration Commission |
ACCI |
Australian Chamber of Commerce and Industry |
ACE |
Aged Care Employers |
ACOSS |
Australian Council of Social Service |
Act |
Fair Work Act 2009 (Cth) |
ACTU |
Australian Council of Trade Unions |
AEU |
Australian Education Union |
AFCCRA |
Australian Financial Counselling and Credit Reform Association |
AFEI |
Australian Federation of Employers and Industries |
AHRC |
Australian Human Rights Commission |
Ai Group |
Australian Industry Group |
AIRC |
Australian Industrial Relations Commission |
applicants |
Australian Municipal, Administrative, Clerical and Services Union; the Health Services Union; The Australian Workers’ Union of Employees, Queensland; United Voice; and the Australian Education Union |
ASU |
Australian Municipal, Administrative, Clerical and Services Union |
AWU Queensland |
Australian Workers’ Union of Employees, Queensland |
CCAC |
Commonwealth Conciliation and Arbitration Commission |
CCIWA |
Chamber of Commerce and Industry of Western Australia |
CEWA |
Community Employers Western Australia |
Commonwealth |
Australian Government |
CSSA/CCER |
Catholic Social Services Australia and the Catholic Commission for Employment Relations (NSW/ACT) |
FBT |
Fringe Benefits Tax |
HSU |
Health Services Union |
IR Act |
Industrial Relations Act 1988 (Cth) |
IRCNSW |
Industrial Relations Commission of New South Wales |
Jobs Australia |
Jobs Australia Limited |
modern award |
Social, Community, Home Care and Disability Services Industry Award 2010 |
NDS |
National Disability Services Limited |
NPP |
National Partnership Payments |
NSW Pay Equity Inquiry |
Industrial Relations Commission of New South Wales Pay Equity Inquiry |
NSW SACS award |
Social and Community Services Employees (State) Award |
QCOSS |
Queensland Council of Social Service Inc |
QCSEA |
Queensland Community Services Employers’ Association Inc |
QIRC |
Queensland Industrial Relations Commission |
Qld IR Act |
Industrial Relations Act 1999 (Qld) |
QSU |
Queensland Services, Industrial Union of Employees |
Queensland Pay Equity Inquiry |
Queensland Industrial Relations Commission Pay Equity Inquiry |
Queensland SACS award |
Queensland Community Services and Crisis Assistance Award – State 2008 |
SACS industry |
social, community and disability services industry throughout Australia |
SPP |
National Specific Purpose Payments |
UV |
United Voice |
Victorian SACS award |
Social and Community Services – Victoria – Award 2000 |
WACOSS |
Western Australian Council of Social Service Inc |
WiSER |
Women in Social and Economic Research |
Women’s Organisations |
National Pay Equity Coalition and the Women’s Electoral Lobby |
WR Act |
Workplace Relations Act 1996 (Cth) |
[1] These proceedings concern an application for an equal remuneration order under Part 2-7 of the Fair Work Act 2009 (Cth) (the Act). The application was made by the Australian Municipal, Administrative, Clerical and Services Union (ASU) on its own behalf and on behalf of the Health Services Union (HSU), The Australian Workers’ Union of Employees, Queensland (AWU Queensland), United Voice (UV) and the Australian Education Union (AEU). If granted the order would apply to employees of non-government employers in the social, community and disability services industry throughout Australia (the SACS industry). The application was lodged on 11 March 2010 and amended on 23 December 2010 and 15 April 2011.
[2] During 2008 and 2009 the Australian Industrial Relations Commission (AIRC) carried out an award modernisation process pursuant to Part 10A of the Workplace Relations Act 1996 (Cth) (WR Act). Through this process modern awards were established covering national system employers and their employees throughout Australia. The modern awards were intended to replace all of the relevant federal and state awards which applied on an industry or occupational basis. At the commencement of the process all of the federal and state non-enterprise awards were classified by industry and divided into four groups to be dealt with in four consecutive stages. The SACS industry was dealt with in Stage 4. At the time the Full Bench of the AIRC came to consider an award for the SACS industry, the minimum wages and other wage related conditions payable to employees covered by the Queensland Community Services and Crisis Assistance Award – State 2008 (Queensland SACS award) were significantly higher than the wages in the federal and other state awards applying in the SACS industry. On 25 September 2009 the Full Bench published an exposure draft of a modern award for the SACS industry. The wage rates in the exposure draft were lower than those in the Queensland SACS award. During the consultations on the exposure draft the ASU sought to defer the operation of parts of the modern award to permit it to pursue an application for higher wage rates based on pay equity or work value grounds. The AIRC was told that the ASU, a number of other unions and the Commonwealth were parties to Heads of Agreement which provide for the maintenance of the pre-modern award rates in each state pending the outcome of the foreshadowed application.
[3] At about the same time there were discussions between the Commonwealth and the states on the question of whether the states should refer their power to legislate in relation to relevant industrial relations matters to the Commonwealth Parliament. Without referral, the power of the Commonwealth to legislate is limited to employers which are constitutional corporations. It is also relevant to note that all state governments, except Western Australia, referred their power to legislate in relation to relevant industrial relations matters to the Commonwealth and that the referrals took effect on 1 January 2010.
[4] In December 2009 the AIRC made a new award called the Social, Community, Home Care and Disability Services Industry Award 2010 1 (the modern award). The modern award replaced, in whole or in part, the provisions of a number of federal and state awards previously applying in the industry. While the modern award contains a new classification structure and wage rates, when the award was made it contained a provision that the wage rates should not operate until 1 July 2011.2 During these proceedings the operation of the wage rates was further delayed until 1 February 2012.3 Classifications and wage rates in relevant transitional instruments continue to operate until that time. In all other modern awards the classifications and wage rates commenced to operate, subject to transitional provisions, on 1 July 2010.
[5] The application seeks an equal remuneration order applying to employees in the SACS industry nationally, based on the wage rates and classification structure in the Queensland SACS award. Section 306 of the Act provides that a term of a modern award, an enterprise agreement or a Fair Work Australia order has no effect in relation to an employee to the extent that it is less beneficial than an equal remuneration order. It follows that any order we make would override any less beneficial provisions in the modern award and any enterprise agreement.
[6] Three other aspects of the application should be mentioned. First, the application includes more generous payments for employees who are required to sleepover as part of their duties, with payments based on provisions in the Crown Employees (New South Wales Department of Ageing, Disability and Home Care) Community Living and Residential Award (NSW). 4 Secondly, employees with tertiary qualifications would commence at higher pay points than under the modern award and would be entitled to an extended incremental scale. These provisions have their origin in the terms of the Social and Community Service (Queensland) Award 1996.5 Thirdly, disability support workers with Certificate III and Certificate IV qualifications would be entitled to higher commencement rates than specified in the modern award, based on the relevant provisions of the Social and Community Services Employees (State) Award6 (NSW SACS award).
[7] It is also important to note that there are special legislative provisions applying to employees who were covered by the Queensland SACS award prior to the referral of powers by the Queensland Government. In brief, on 1 January 2010 a Division 2B State award came into effect with the same terms as the Queensland SACS award. On the expiry of that award Fair Work Australia is taken to have made a transitional pay equity order, operative on 1 January 2011, which applies to employees who were employed immediately before that date pursuant to the terms of a Division 2B State award based on a pay equity order made by a state industrial body. 7 If an employee to whom a transitional pay equity order applies is entitled to a base rate of pay under the order greater than under the modern award, the relevant term of the modern award is of no effect. Accordingly, employees in Queensland who were formerly covered by the Queensland SACS award are presently covered by a transitional pay equity order.8
[8] The application was supported by a number of bodies including the Australian Council of Trade Unions (ACTU), the Australian Council of Social Service (ACOSS), the Queensland Council of Social Service Inc (QCOSS), Jobs Australia Limited (Jobs Australia), National Disability Services Limited (NDS) and the National Pay Equity Coalition and the Women’s Electoral Lobby (jointly the Women’s Organisations). ACOSS is the peak council of the community services and welfare sector with 46 national member organisations including peak councils, national welfare agencies, consumer groups and professional bodies. It also represents many associate members and members of state and territory councils of social service. QCOSS is an organisation representing not-for-profit employers and individuals in the social and community field. Jobs Australia is the national peak body for non-profit organisations which assist the unemployed and provides industrial relations services to employers in that sector. It supported the application, with the exception of the sleepover provisions claim. NDS is the Australian peak body for non-government disability services and represents not-for-profit organisations in the sector. It supported the claim, but drew attention to the importance of government funding.
[9] A number of individual employers also supported the application. These included Mind Australia, Lifeline Community Care Queensland, Blue Care, Koomarri and On-Focus Inc. In nearly all cases, however, the support was said to be subject to the resolution of funding issues.
[10] Some employer bodies gave qualified support to the application. The Queensland Community Services Employers’ Association Inc (QCSEA), through its agent Employer Services Pty Ltd, drew our attention to the importance of funding should any increase be granted. While it did not take any position on the wage rates claimed, it opposed the sleepover provisions claim. Community Employers Western Australia (CEWA) initially supported the application, subject to the proviso that if the resulting increases were not funded by government the effect on the sector in Western Australia would be disastrous. It subsequently indicated that its support was qualified because the Commonwealth had not committed to fully fund any increase in salaries resulting from the application. CEWA opposed the sleepover provisions claim.
[11] In almost all cases support for the application was on the basis that the increases should be phased in over a number of years.
[12] A number of employer bodies opposed the application. These included the Australian Industry Group (Ai Group), the Australian Chamber of Commerce and Industry (ACCI), Australian Business Industrial (ABI), the Australian Federation of Employers and Industries (AFEI), the Chamber of Commerce and Industry of Western Australia (CCIWA) and Aged Care Employers (ACE). ACE is a group of state and territory peak employer bodies in the aged care sector.
[13] Some submissions addressed matters of principle or general approach but did not take a position on the claim itself. The Australian Human Rights Commission (AHRC) made submissions about the construction and application of Part 2-7 of the Act and the development of principles of general application. Catholic Social Services Australia and the Catholic Commission for Employment Relations (NSW/ACT) (CSSA/CCER) also made general submissions. Mission Australia drew attention to the potential impact of the claim, the significance of changes sought in the advancement criteria, penalty rates for some crisis accommodation workers and the impact of qualifications-based promotion. It opposed the sleepover provisions claim.
[14] The Commonwealth and a number of state and territory governments made submissions. All of these submissions dealt with the operation of Part 2-7 of the Act, the approach to be taken in deciding the claim and matters of principle. The Commonwealth indicated that it is firmly committed to pay equity and acknowledged that “those workers who care for our most vulnerable community members have been undervalued”. It also made submissions about the proper approach and drew our attention to the matters which it considers should be taken into account. It further submitted that it would be appropriate to phase in any increase resulting from our decision. The South Australian Government supported the applicants’ approach to the application of the equal remuneration provisions in Part 2-7 of the Act. The New South Wales Government indicated that New South Wales had long been a supporter of the principle of equal pay for work of equal or comparable value. It made submissions about the application of the equal remuneration provisions and submitted that the applicants have not made out their case for increases. The Queensland Government also made submissions about the operation of Part 2-7 of the Act. The Victorian Government dealt with issues relevant to the construction of Part 2-7, the potential application of the provisions in this case and the development of principles. The Tasmanian Government supported the application in principle but urged us to consider potential negative impacts and phasing-in of increases and delaying commencement. The Australian Capital Territory Government made submissions supporting the development of an equal remuneration principle.
[15] The equal remuneration provisions in Part 2-7 of the Act are set out in full as follows:
This Part allows FWA to make orders to ensure that there will be equal remuneration for men and women workers for work of equal or comparable value.
301 Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer.
Division 2—Equal remuneration orders
302 FWA may make an order requiring equal remuneration
Power to make an equal remuneration order
(1) FWA may make any order (an equal remuneration order) it considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value.
Meaning of equal remuneration for work of equal or comparable value
(2) Equal remuneration for work of equal or comparable value means equal remuneration for men and women workers for work of equal or comparable value.
Who may apply for an equal remuneration order
(3) FWA may make the equal remuneration order only on application by any of the following:
(a) an employee to whom the order will apply;
(b) an employee organisation that is entitled to represent the industrial interests of an employee to whom the order will apply;
(c) the Sex Discrimination Commissioner.
FWA must take into account orders and determinations of the Minimum Wage Panel
(4) In deciding whether to make an equal remuneration order, FWA must take into account:
(a) orders and determinations made by the Minimum Wage Panel in annual wage reviews; and
(b) the reasons for those orders and determinations.
Restriction on power to make an equal remuneration order
(5) However, FWA may make the equal remuneration order only if it is satisfied that, for the employees to whom the order will apply, there is not equal remuneration for work of equal or comparable value.
303 Equal remuneration order may increase, but must not reduce, rates of remuneration
(1) Without limiting subsection 302(1), an equal remuneration order may provide for such increases in rates of remuneration as FWA considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value.
(2) An equal remuneration order must not provide for a reduction in an employee’s rate of remuneration.
304 Equal remuneration order may implement equal remuneration in stages
An equal remuneration order may implement equal remuneration for work of equal or comparable value in stages (as provided in the order) if FWA considers that it is not feasible to implement equal remuneration for work of equal or comparable value when the order comes into operation.
305 Contravening an equal remuneration order
An employer must not contravene a term of an equal remuneration order.
Note: This section is a civil remedy provision (see Part 4-1).
306 Inconsistency with modern awards, enterprise agreements and orders of FWA
A term of a modern award, an enterprise agreement or an FWA order has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that applies to the employee.”
[16] The history of equal pay and equal remuneration in the federal and state jurisdictions is dealt with in a later section of this decision. We also deal with some questions of interpretation, of s.302 in particular, in the section in which we set out our conclusions.
[17] As indicated, in substance the applicants seek an order applying the classification structure and wage rates in the Queensland SACS award to the SACS industry throughout Australia. While the classification structure sought is largely the same as the one in the modern award there are some important differences relating to employees with tertiary qualifications and certificates respectively. In addition, as also noted above, more beneficial sleepover provisions are sought. It is important to point out that no application has been made to vary the modern award. Rather it is proposed that the terms of the equal remuneration order would displace any less beneficial terms of the modern award. The rates in the Queensland SACS award were initially fixed in a decision of the Queensland Industrial Relations Commission (QIRC) on 6 May 2009 (the Queensland Equal Remuneration decision). 9 It will be necessary to consider this decision in more detail later.
[18] There was extensive witness evidence. There were many witnesses who work directly with clients in the SACS industry and who provided information relating to their work and their pay. There were management witnesses who described their employers’ operations and services they provide. Other witnesses were also witnesses in the proceedings which led to the Queensland Equal Remuneration decision. Sixteen union officials with responsibility for representing workers in the SACS industry gave evidence, as well as five union officials who represent employees in state and local government, performing work alleged to be comparable with that performed in the SACS industry. Other witnesses gave evidence about vocational qualifications in the SACS industry and salary packaging respectively. In addition there were four academic or expert witnesses. They dealt with an analysis of the workforce in the SACS industry, the history of equal pay and related matters in the Australian industrial relations system, a skills analysis for five witnesses, an analysis of undervaluation of skills in the SACS industry and the impact of that undervaluation, and material relating to the potential cost of the application.
[19] The applicants submitted that the equal remuneration provisions in Part 2-7 of the Act should be seen in the context of previous legislative provisions and decided cases in the federal jurisdiction. Significantly, it is clear that the provisions differ from earlier provisions in two ways. First, they operate by reference not only to work of equal value but also to work of comparable value. Secondly, in order to obtain an equal remuneration order it is not necessary to demonstrate that the rates in question were established on a discriminatory basis. The words of the provisions reflect the wording of similar provisions in state legislation and the jurisprudence developed in those states, particularly in New South Wales and Queensland, is relevant.
[20] Reference was made to the New South Wales Pay Equity Inquiry conducted by the Industrial Relations Commission of New South Wales (IRCNSW) in 1998. The report of the Inquiry was delivered on 14 December 1998.10 Following the report the IRCNSW modified its wage fixing principles and introduced a new equal remuneration principle.11 The applicants also referred to the Queensland Pay Equity Inquiry. The QIRC conducted the inquiry and released its report in March 2001. The report was entitled Worth Valuing: a Report of the Pay Equity Inquiry.12 In April 2002 the QIRC adopted a new equal remuneration principle. It was submitted that while the equal remuneration principles adopted in Queensland and New South Wales were similar, the Queensland principle was “more expansive” and “provided a more proactive role for the QIRC”. Reference was also made to the equal remuneration principle adopted by the Tasmanian Industrial Commission in July 2000.13
[21] Among the cases decided under the equal remuneration principles in New South Wales and Queensland, the applicants asked us to pay particular regard to the Queensland Equal Remuneration decision.14 In that decision the QIRC provided for a new award covering the non-government SACS sector in Queensland. The Queensland SACS award commenced on 3 November 2008. It incorporated the terms and conditions, except for the wage rates, of two federal awards applying in Queensland. Those awards were the Social and Community Services (Queensland) Award 2001,15 and the Crisis Assistance Supported Housing (Queensland) Award 1999.16 The wage rates were fixed by the QIRC by reference to the rates paid to employees performing similar work in state and local government in Queensland.
[22] When made, the Queensland SACS award only applied to employers which did not fall within the definition of a national system employer in the Act. Accordingly, employers which were not constitutional corporations were covered by the Queensland SACS award, but employers which were constitutional corporations were covered by federal awards and instruments. As indicated above, the Queensland Government referred its legislative powers in relation to employers which are not constitutional corporations to the Commonwealth Parliament with effect from 1 January 2010. On that date employers affected by the referral ceased to be covered by the Queensland SACS award and commenced to be covered by a Division 2B State award, which was generally in the same terms as the Queensland SACS award.17 The Division 2B State award terminated on 31 December 2010. At that time the employers who had been covered by it became covered by the modern award but subject to the terms of a transitional pay equity order under Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).18 The transitional pay equity order preserves the more beneficial wage rates originating from the Queensland SACS award for employees of employers covered by it. There is another category of employers, and their employees, to whom a transitional pay equity order potentially applies. They are employers to whom a transitional award arising under Schedule 6 of the WR Act applied immediately prior to 1 January 2010 and who are prescribed by the Fair Work Regulations 2009.19
[23] The applicants contend that we should take up the approach adopted in the Queensland and New South Wales jurisdictions. There are two stages. The first stage requires findings that:
• the SACS industry is female dominated
• work in the SACS industry is undervalued, and
• the undervaluation is referable to the SACS industry being a female dominated industry.
[24] The second stage involves identifying the steps to be taken to ensure that workers in the industry receive equal remuneration for work of equal or comparable value. In considering the meaning of s.302(1) of the Act the applicants submitted that “there is a mandatory obligation on the tribunal to deliver equal remuneration”.
[25] Section 578, which applies to the exercise of powers under Part 2-7, requires Fair Work Australia to have regard to the objects of the Act, equity, good conscience and the merits of the matter and the need to respect the value and diversity of the workforce by helping to prevent and eliminate discrimination on the basis of, among other things, sex. In seeking to persuade us that granting the application would be consistent with the general objects in s.3 of the Act, the applicants submitted that granting the claim would promote social inclusion, be fair to working women whose work is undervalued, be flexible for business, and take account of the needs of small and medium sized businesses. Because the application can be granted in stages, it would also promote productivity and economic growth and take into account international obligations under relevant treaties. Similarly equity and good conscience dictate that an equal remuneration order should be made.
[26] The applicants also rely upon the requirement in s.302(4) of the Act to take decisions of the Minimum Wage Panel into account. They rely in particular on a statement in the Annual Wage Review 2009–10 decision to the effect that an increase in minimum wages is likely to assist in promoting pay equity.20 On the other hand, the applicants rejected submissions made by a number of employer representatives that the terms of the modern awards objective in s.134 of the Act must be taken into account when exercising functions under s.304.
[27] The applicants addressed submissions concerning the cost of the claim and the possibility of introducing increases in phases or stages, particularly the submissions of the Commonwealth. They stressed that there is an obligation to ensure equal remuneration and therefore possible costs are only relevant to the question of whether the necessary increases should be phased in. The applicants submitted that if the tribunal were to grant increases of the magnitude sought it would be appropriate to phase them in. This would also provide an opportunity to monitor the equalisation process and ensure that the relativity with the identified comparators was maintained. They proposed that we could also “direct interested parties . . . to form a working party to examine the classification structures and descriptors with a view to improving the available career progression for workers in the SACS industry” and for other purposes.
[28] The applicants urged us to reject a submission made by the Victorian Government, among others, based on the terms of the relevant Explanatory Memorandum, that the application of Part 2-7 of the Act requires the identification of a comparator group of male employees with which comparisons of remuneration can be made. They contend that the submission was not based on sound principles of statutory construction, emphasising in particular that if the submission were to be accepted a female dominated industry for which there was no male comparator could not bring a claim for equal remuneration.
[29] The applicants pointed out that the work of the SACS industry is carried out in sectors, many of which can be further broken down into distinct areas. They also referred to the great diversity of services provided by the sector and described the interaction with providers of similar services in state and local government. We refer to these matters in more detail in our conclusions.
[30] As indicated above, the applicants submitted that the first stage of the examination involves three propositions: that the SACS industry is female dominated, that the work in the industry is undervalued and that there is a causal relationship between those two things—the undervaluation arises because it is a female dominated industry.
[31] More than 80 per cent of the employees in the industry are female. This estimate is based on Australian Bureau of Statistics (ABS) data for the Social Assistance Services industry classification, which most closely matches the SACS industry as defined by the application.21 Data produced by the Australian Institute of Health and Welfare for specific occupations within the industry reveals a similar pattern with the proportion of females varying from 55.7 per cent for youth workers through to 94.3 per cent for integration aides.22 The applicants also produced ABS census data indicating that the weighted average proportion of females in various occupations typical of the industry is 85.8 per cent.23 Professor Meagher, Professor of Social Policy at the University of Sydney, estimated that the dominance of females in the SACS industry is even higher than these figures suggest. The following passage appears in her report:
“The most striking characteristic of the care workforce in community service industries is its gender profile. Fully 88.1 per cent of all those recording a primary job in a caring occupation in a community service industry were female in 2006, compared to 46.1 per cent in the workforce overall.”24
[32] The applicants submitted that work in the SACS industry is low-paid and that the level of pay does not properly reflect the skills and qualifications held by employees and the conditions under which the work is performed. They relied on various ABS data to indicate that SACS industry employees are low paid relative to employees in other industries. This was said to be so on an aggregate basis, but also when the earnings of SACS industry employees are compared to other employees with equivalent professional qualifications and educational attainment. It was also submitted that the range of salaries in state awards and agreements reaches a maximum of $64 000 “whereas many very experienced workers with tertiary qualifications and supervisory responsibilities described salaries in the low to mid fifty thousand dollars” in the SACS industry.
[33] It was submitted that we should adopt the so called “indicia approach” to determining whether the undervaluation is gender-based. That approach is to be gleaned from the following passage of the NSW Pay Equity Inquiry report:
“On the basis of the selected industries and occupations, it would seem that a profile which, prima facie, could indicate the possibility, or even the probability, of an undervaluation of work based on gender, would include the following elements:
• female dominated;
• female characterisation of work;
• often no work value exercise conducted by the Commission;
• inadequate application of equal pay principles;
• weak union;
• few union members;
• consent award/agreements, and
• large component of casual workers;
• lack of, or inadequate recognition of, qualifications (including misalignment of qualifications);
• deprivation of access to training or career paths;
• small workplaces;
• new industry or occupation;
• service industry;
• home based occupations.”25
[34] The applicants sought to demonstrate that each of the abovementioned indicia is present in the SACS industry and that, therefore, the undervaluation is gender-based. They submitted that it had already been shown that the industry is female dominated, the first indicium, and turned their attention next to female characterisation of the work.
[35] Some 18 different tasks were listed which are performed by employees in the industry and which were said to have a female characterisation. The list is as follows:
i. collecting and providing information related to benefits and services and community resources available to clients
ii. support and/or crisis counselling
iii. emergency material relief for persons suffering financial hardship
iv. custodial or supportive care and social welfare support for people in residential accommodation, day and occasional care facilities and/or settings; for people who are unable to live independently; and for people who are not living in a family setting, (excluding nursing and/or medical services)
v. assessment of individual, family group or community needs
vi. development, implementation and assessment and/or maintenance of individual casework programs
vii. referral and liaison with other workers and professionals, agencies, community groups, government and other organisations
viii. co-ordination of activities and/or facilities for the development of independent living skills and/or social skills
ix. research and analysis of social, welfare and/or community issues, needs or problems
x. development and maintenance of community resources
xi. community campaign development and organisation
xii. development, maintenance, implementation and evaluation of family, group and community programmes
xiii. social welfare and community planning, policy development, interpretation and/or implementation
xiv. representation, advocacy, negotiation and mediation within and between communities, agencies, institutions and governments, and with individuals
xv. counselling and/or social welfare support (not including nursing or medical services) for people living at home and who are unable to live independently
xvi. development and transfer of skills and knowledge in community organisation, community education, advocacy, resource management, cultural awareness and other relevant areas within the community
xvii. tasks associated with the maintenance of community services and social welfare projects including the preparation of submissions and reports and any incidental financial documentation, and
xviii. clerical and administrative tasks associated with the work described above.
[36] It was submitted that the characterisation of work in the SACS industry as caring work performed by females can lead to undervaluation of the complexity of the skills required. Professor Meagher commented:
“As these female roles are devalued culturally, the skills associated with them are similarly devalued or rendered invisible. Instead of being recognised as skills that some have or have learnt, they are assumed to be natural. Because they are associated with, or replace care tasks that might have previously been offered, unpaid, within religious or voluntary organisations, on the basis of love, altruism, duty or personal pleasure rather than money, these skills are consequently valued and paid less than skills associated with men.”26
[37] Relying on Professor Meagher’s evidence the applicants contend that the devaluation of caring work is a phenomenon which has been observed by academics in other countries and was recognised in the NSW Pay Equity Inquiry as a matter with which the job evaluation principles traditionally applied by industrial tribunals do not adequately deal. It was submitted that:
“[T]he cultural devaluation of the work performed by workers in the SACS industry . . . is exacerbated by, or not addressed by, the usual institutional approaches to work valuation. This in turn reflects the prevalence of male-dominated, non-service industries before industrial tribunals including the predecessors to this tribunal, and the emphasis on valuing the skills associated with male-dominated industries. These skills are generally more visible, and therefore more easily observed and quantified, than the skills identified in the SACS industry.”
[38] The applicants also relied upon evidence given by Associate Professor Junor who has developed a method of identifying hidden skills. It was said that once the hidden skills are properly exposed they can then be taken into account in evaluating the jobs concerned. She applied that method to the jobs of five of the witnesses in this case. This evidence, it was submitted, provided further indications of undervaluation of the skills required in the industry.
[39] The next phase of the submissions involved grouping three of the indicia listed above—no work value exercise, inadequate application of equal pay principles and consent awards and agreements. The submissions traversed the history of award regulation in the SACS industry in order to demonstrate that each of these indicia has adversely affected the valuation of the work in the relevant awards.
[40] Although there had been state award coverage of the emerging community services sector in Victoria since 1968, the growth in award coverage in other states commenced in the 1990s. The first award in the federal system, the Crisis Assistance, Supported Housing Award 1991,27 initially applied in all states and Territories. In the following years the award was partially replaced by federal awards operating on a state basis such as the Crisis Assistance, Supported Housing (South Australia), Award 1995,28 the Crisis Assistance, Supported Housing Industry – Western Australian Award 1997,29 and the Crisis Assistance Supported Housing (Queensland) Award 1999.30
[41] A number of state-based federal awards were made in the SACS industry during the 1990s. These were the Social and Community Services (Queensland) Award 1996,31 the Social and Community Services Industry – Community Services Workers – Western Australia Award 1996,32 the Social and Community Services (Interim) Award 1995,33 which applied only in Victoria, the Social and Community Services Industry – Community Services Workers – Northern Territory Award 1996,34 and the Social and Community Services (ACT) Award 1995.35 In South Australia, New South Wales and Tasmania, SACS industry awards were made in the state jurisdiction—in South Australia in 1990, in New South Wales in 1991 and in Tasmania in 1992.
[42] The development of award coverage in the disability sector is more varied and complex. The first award appears to have been the Welfare and Voluntary Agencies Award, made by the Tasmanian Industrial Commission in 1975 which later became the Disability Service Providers Award.36 There were also a number of industry and enterprise awards made by the Western Australian Industrial Relations Commission. A disability services award was made in the South Australian jurisdiction in 1991. The Disability Services Award (Victoria) 1993,37 a federal award, replaced two awards in the Victorian jurisdiction. The Disability Services (Northern Territory) Award 199238 was made at about the same time. Reference was also made to the making and variation of a number of other federal awards applying to the disability sector in Victoria.
[43] The history and development of the award system since 1990 was set out in detail in order to demonstrate that work value had not been properly taken into account. It was emphasised that the process by which federal award rates were reviewed during the award simplification process39 did not result in minimum wages based on a proper evaluation of work covered by the awards. It was also submitted that there has been no work value review of rates in federal awards since that time.
[44] By way of conclusion the applicants submitted that:
“[T]he history of industrial regulation in the SACS industry demonstrates that two of the three characteristics of gender-based undervaluation exist in the SACS industry, namely a lack of proper work value assessment, and a prevalence of consent arrangements governing salary setting. The SACS industry, in its modern context, post-dates the equal pay cases and so this characteristic is irrelevant.”
[45] It was submitted that union membership in the SACS industry is low. Estimates of union density vary but most indicate that fewer than 20 per cent of the employees in the industry are union members. This was said to be the result of high staff turnover and the difficulty of organising multiple small workplaces. There were also limitations on enterprise bargaining. Many employees understand the funding limitations faced by their employers and this is the reason that most enterprise agreements deliver salary packaging or minimal salary improvements only. It was indicated that enterprise bargaining has not generally been possible in the industry due to the following factors:
“i. a low level of unionisation in the workplace,
ii. the number and diversity of small workplaces,
iii. workplaces have only small numbers of employees,
iv. the nature of the work and the priority commitment of workers to the needs of their disadvantaged clients, rather the workers’ own rights,
v. employers comprising volunteer boards with little if any experience in human resource management or industrial relations,
vi. there being little time available to workers to complete their work, and a lack of excess time to address employment or industrial issues, and
vii. The funding relationship means employers are dependent on a third party to provide money for employees.”
[46] The applicants submitted that employees have a range of skills, qualifications and accreditations. There has been an increase in the number of employees who hold post-school qualifications which is in line with the “professionalisation” of work in the industry, a trend which is expected to continue. The current award structure, it was submitted, does not provide sufficient incentive to obtain qualifications, a situation which the application is intended to ameliorate to some degree.
[47] While the evidence suggests that there is a prevalence of part-time rather than casual employment in the SACS industry, the two types of employment are similar. Both types of workers are likely to be low-paid and to have low superannuation balances. There is also evidence of job uncertainty because of funding cycles and the uncertainty of programs or services being renewed. Various estimates were given of the relative size of the part-time and casual workforce. It was suggested that 68 per cent of employees are employed less than full-time in the SACS industry compared with the workforce average of 39.5 per cent.
[48] It was submitted that the nature of the funding arrangements has contributed to the undervaluation of work and led to the following characteristics of work in the industry:
“i. a significant proportion of employees in the industry are engaged on a part-time and/or casual basis;
ii. a significant proportion of employees are engaged on temporary contracts;
iii there is limited access to paid overtime;
iv. there is relatively high turnover of employees between employers but within the SACS industry, leading to very limited access to long service leave;
v. low wages meaning limited accumulation of superannuation benefits;
vi. high levels of unpaid work
vii. employees undertaking unpaid training in the employees’ own time.”
[49] The applicants contend that small workplaces often have limited resources, low staff numbers, are dependent on funding and are run by voluntary boards with limited management skills, particularly human resources expertise. Over 50 per cent of employees in the SACS industry employ 17 or fewer staff and the sector is made up of predominantly small, not-for-profit entities.
[50] The industry has “emerged from a continuing and increasing tendency of governments to outsource services to community groups”. As well, new services have been developed recently to meet community demand.
[51] In submitting that the SACS industry is a service one, the applicants repeated their claim that the valuation of work through the award system has been based on male dominated industries and does not adequately value “skills used in delivering human services in a community context”. The report of the NSW Pay Equity Inquiry was again relied on in this respect.
[52] The reference to home-based services in the report of the NSW Pay Equity Inquiry is a reference to work performed in the employee’s home. However, the applicants sought to draw a parallel between work of that type and work performed in group homes and other residential facilities and some day services. It was submitted the nature of such work and the circumstances in which it is performed make it likely that it would be undervalued.
[53] It was submitted that work in the sector does not have a high profile and people do not understand what the industry is. The nature of the work is not in the mainstream, the sector is disparate and some of the common occupations in the industry do not give a sense of the complexity of the work and its variety.
[54] It was submitted that staff turnover in the SACS industry is higher than the average for all industries.
[55] The applicants relied upon information from the ACOSS Australian Community Sector Survey 2009 as demonstrating that for 69 per cent of respondent agencies their primary source of income is Commonwealth, state or local government and that over 74 per cent of the respondent’s income is derived from those sources. Other data sources suggest that about 63 per cent of funding for non-government community service organisations and not-for-profit organisations comes from government. They contend that this has reduced the opportunity to bargain at the enterprise level and contributed to undervaluation.
[56] Apart from the list of indicia of undervaluation appearing in the report of the NSW Pay Equity Inquiry, the applicants submitted there are other features of work in the industry which support a finding of undervaluation. Clients are often suffering multiple disadvantages and are under stress which exposes the employees to injury, including verbal and physical abuse, and stress-related injuries. The work makes a significant contribution to the Australian community. The description of the work as “charitable” communicates the idea of free or voluntary. Employees with tertiary or vocational qualifications are paid significantly less than employees performing similar work in state and local government. Their wages and conditions, including long service leave, are inadequate by comparison.
[57] The applicants also contend that in recent years the value of work in the industry has increased. They refer to increases in the reporting demands of funding agencies, legislative requirements, skills, knowledge and qualifications required, the complexity of service delivery and case management demands.
[58] The applicants went on to submit that the work performed in the industry is complementary to services provided to clients by other providers. In many cases the total service is delivered in partnership with state and local government. The evidence indicates comparability between work performed by employees in the SACS industry and employees in state and local government. The evidence reveals that there have been changes in work value in the SACS industry nationally which are similar to those which the QIRC identified in the Queensland Equal Remuneration decision and which have not been taken into account in previous work value cases.
[59] The applicants submitted that the undervaluation of work in the SACS industry has a number of undesirable effects. Individual workers and their families suffer the effect of low pay. Attraction and retention of staff is difficult and this in turn impacts on service delivery now and in the future. There are wider economic impacts if wages do not adequately reflect the value of the work, including negative effects on female workforce participation rates. Evidence given by Associate Professor Austen and Professor Meagher was relied on in that regard.
[60] Consistent with this evidence, it was submitted that employees are leaving the industry to seek better paid employment, often in state and local government. Organisations are having difficulty with recruitment and retention, service delivery is suffering, impacting adversely on clients and employees and, given the age profile of employees, there is a “real risk of severe shortage of employees in the medium term”.
[61] The applicants criticised the terms of the modern award and in particular the schedule of wage rates on the basis they are inferior, and submitted that the application would rectify problems with the award structure and rates, as well as the sleepover provisions. The wage rates in the amended application will ensure equal remuneration for work of equal value. They represent the rates awarded in the Queensland Equal Remuneration decision with the addition of two state wage increases plus the equal remuneration component.
[62] Work in the SACS industry is the same throughout Australia and accordingly the Queensland rates, being properly fixed, are appropriate throughout Australia. Equally, it was submitted, the evidence demonstrates that the work carried out in state and local government jobs in Queensland is comparable with the work carried out in state and local government jobs in the rest of Australia. The relevant public sector rates in each state were identified “to contextualise the rates claimed”. It was submitted that the relevant public sector rates are higher than those in the SACS industry and higher than the rates sought in the application, and in that respect the evidence is the same as that which was available to the QIRC in the Queensland Equal Remuneration decision.
[63] Finally it was submitted that in rectifying the undervaluation we should follow the lead of the QIRC and not take account of salary packaging. The Commonwealth indicated that only one-third of employees take advantage of salary packaging and other evidence indicates that the extent to which it is available is unclear. Furthermore the amount of the benefit varies and is likely to be greater at income levels of at least $80 000 per annum—well above the highest award rate. There was also evidence that salary packaging is available to some state and local government employees. Being a benefit administered through the taxation system the future of salary packaging is outside the control of employers and employees. It was also submitted that it is difficult to quantify the benefit for wage fixing purposes.
[64] In broad terms the applicants submitted that while we should take into account the impact of any decision we make on service delivery and that governments ultimately must fund the increases, none of the governments appearing in the proceedings have suggested that funding would not be available to cover any wage increases. The only government which attempted to quantify the costs was New South Wales and its costings are inadequate. The Commonwealth did not calculate the cost of the claim nor did it assess the “broad economic impacts of failing to increase wages”. There is no evidence the increases awarded in Queensland were not fully funded. A number of employers support increased wages, subject to funding being available. Nothing which has been advanced, it was submitted, indicates that funding constraints stand in the way of granting the application.
[65] The applicants examined the evidence concerning sleepovers and submitted that the allowance in the modern award is too low, and undervalues work characterised as caring work carried out for clients with disabilities, young people, women, families and homeless people. Workers covered by other industrial instruments are paid more.
[66] It was said that the amendment will allow employees with tertiary qualifications starting at particular pay points a longer period of incremental progress in the same position. The applicants submitted that there is no evidence that when this provision was in the Social and Community Services (Queensland) Award 1996, from 2002 onwards, employers experienced any problems with them. They also submitted the provisions would better recognise the skills of tertiary qualified employees.
[67] It was submitted that if implemented this provision would maintain the position of disability support workers at the lower levels who were formerly covered by the NSW SACS award.
[68] The ACTU supported the applicants’ submissions. It traced historical developments in relation to measures to remedy the undervaluation of women’s work in federal and state industrial jurisdictions and concluded that Part 2-7 of the Act confers a broad power to implement pay equity without the requirement to deal with concepts of discrimination. Accordingly we are entitled to have regard to the jurisprudence developed in Queensland and New South Wales in particular. While equal remuneration considerations are relevant, along with other factors, in the fixation of minimum wages in safety net awards, Part 2-7 confers a right to equal remuneration which is unqualified. In passing the Act the Parliament has expanded the pay equity provisions by eliminating the link with the international conventions on discrimination, adding the words “and comparable” to the relevant provision, expanding the statutory purpose to encompass the promotion of social inclusion and protection against unfair treatment, and omitting any reference in the Act to comparators.
[69] The ACTU endorsed the applicants’ submissions in relation to the indicia approach to determining undervaluation and submitted that all of the relevant indicia are present in this case.
[70] In its final submission the ACTU stressed that as equal remuneration is an established right we are bound to make an order to remedy the full extent of any gender-based undervaluation which we find to exist. It also submitted that alternative provisions of the Act, such as those dealing with enterprise or low-paid bargaining, are unlikely to provide a remedy because the employees have low bargaining power and employers have limited capacity to bargain given the funding arrangements. Even a low-paid determination would not guarantee equal remuneration because of the statutory criteria governing such a determination.
[71] In this section we deal with what we have loosely described as welfare organisations. In some cases the bodies may also be representatives, directly or indirectly of employers in the industry. A number of welfare organisations, such as ACOSS and QCOSS, supported the application. ACOSS submitted that the survival and sustainability of the SACS industry depends upon redressing pay inequalities as the capacity to attract and retain staff is, in its view, the single greatest issue facing the SACS industry. It also submitted that a phased introduction of any wage increases and government funding commitment are vital. QCOSS, on the other hand, submitted that the lack of a commitment to full funding should not prevent the issuing of an equal remuneration order. It also submitted that salary packaging in the SACS industry should not be taken into account in setting the rates in any equal remuneration order.
[72] The Federation of Community Legal Services (Victoria) supported the application. It submitted that both it and the National Association of Community Legal Services have been concerned that inadequate remuneration, compared with the government and private sectors, has impacted negatively on the ability of their members to recruit and retain suitable staff and in particular experienced lawyers and managers. It supported the view that the work of non-government sector employees in the SACS industry can be compared with government sector employees.
[73] Other welfare organisations gave more qualified support. NDS, while generally supporting the application, submitted that the proposed classification structure does not adequately reflect roles in the disability sector and it also opposed automatic progression. QCSEA and CEWA supported the application and stressed the importance of funding but opposed the sleepover provisions claim. In addition CEWA proposed that any order made should include an “incapacity to pay” provision.
[74] Jobs Australia submitted that gender-based pay inequity exists in the SACS industry and arises from the feminised nature of the workforce, the particular history of charitable and caring work, the structural features of the workplace and funding arrangements which prevent employers from collectively bargaining to any significant extent. It submitted that equity issues need to be addressed in order to avoid current and worsening problems of recruitment and retention. While stressing the importance of funding it submitted that we should make an order remedying the gender-based undervaluation of work in the industry. In that context it welcomed the Heads of Agreement reached between the ASU and the Commonwealth as an acknowledgment of the need to review funding arrangements. It generally supported the application, in the context of the phasing arrangement proposed by the applicants and the Commonwealth, but indicated that it opposed those parts of the application which involve automatic incremental progression and the sleepover provisions claim.
[75] Jobs Australia submitted that Part 2-7 of the Act does not require a male comparator in order to provide evidence of gender-based pay inequity. It submitted that gender-based pay inequity is a complex phenomenon that cannot be reduced to any single causative factor, such as direct discrimination, and that its presence should not be dismissed simply because there are other economic and political forces at play. In this respect, it submitted that the equal remuneration principles developed in the New South Wales and Queensland cases employ a range of indicia that provide a useful starting point for the development of principles in the federal jurisdiction.
[76] It submitted that state and local government employment rates are relevant to determining the comparable value of the work performed in the industry, but submitted that parity with the public sector is neither required nor desirable. It submitted that the tribunal should ensure that there is no “leap frogging” of SACS pay rates beyond public sector rates. It also pointed out that the public sector pay rates reflect negotiated outcomes and that employers in the SACS industry have not yet had a significant opportunity to bargain around productivity.
[77] CSSA/CCER did not support the application directly but drew our attention to matters which they consider we should take into account. Like others they stressed the need for full funding and phasing-in of any resulting increases.
[78] The Child Care National Association drew our attention to various sections of the Act, commented on the nature of remuneration and provided statements in relation to comparable work generally. It expressed concern at potential flow-on effects of any order and submitted that any order should be limited to the specifics of this case. The Western Australian Council of Social Service Inc (WACOSS) detailed difficulties facing service providers and employees in the SACS industry in Western Australia. It submitted that relevant issues for consideration include the gender pay gap in that state, inequitable community sector salaries, services in rural, regional and remote areas, the rising cost of living and rental and accommodation issues. WACOSS contended that many of these challenges are unique to Western Australia and should be taken into account. The Australian Financial Counselling and Credit Reform Association (AFCCRA), the peak body for financial counselling associations in Australia, submitted that financial counsellors are underpaid and the outcome of the application is very important to the prospects of attracting and retaining good counsellors in the SACS industry. It provided information about the roles, qualifications and experience of financial counsellors, their remuneration, and their attitudes based on a survey of the some 700 counsellors in Australia. AFCCRA urged us to ensure that financial counsellors are paid fairly.
[79] Some employers and employer groups supported the claim subject to certain qualifications. Others strongly opposed the application. Various submissions were made about interpretation of the legislative provision and issues of principle and general approach.
[80] Employers such as Blue Care, Koomarri, Lifeline Community Care Queensland, Mind Australia, On-Focus and Centacare Brisbane supported the claim but maintained that it is critical that the resulting increases be fully funded by government. Some of these employers made substantial submissions. For example, On-Focus submitted that factors warranting consideration include the reliance of the disability services sector on government funding, cost drivers (wages, utilities, fuel and transport), increasing demand and unmet need for disability services, the impact of the proposed National Disability Insurance Scheme and the chronic workforce recruitment and retention issues in the disability services sector. Other concerns included training requirements and costs, occupational health and safety issues, conditions of employment in the disability sector including overtime and unpredictable hours, the lack of favourable employment conditions in comparison to state and local government employment, work related stressors and tensions present in the disability sector and the imposition of social justice standards by government without corresponding funding and recognition of workers.
[81] We deal now with the main submissions of employer bodies in opposition to the application.
[82] Ai Group submitted that the application represents a misuse of the equal remuneration provisions to establish award rates on the basis of narrow equal remuneration criteria, rather than on the basis of the wider criteria contained in the modern awards objective and the minimum wages objective (under ss.134 and 284 of the Act respectively). It submitted that wage rates in the modern award have been properly determined and that any attempt to vary them should be made under s.158 of the Act on the basis of work value and in accordance with the minimum wages objective. It also submitted that in the circumstances the low-paid bargaining provisions of the Act should have been invoked rather than the equal remuneration provisions.
[83] Ai Group also contended that an equal remuneration order would undermine the stability and maintenance of the modern award safety net and would be compounded by suggested changes to the classification structure including progression without competency. Making an order would also remove impetus for enterprise bargaining in the SACS industry, contrary to the objects of the Act. Modern award rates should not be aligned with the negotiated outcomes of enterprise or certified agreements, whether the agreements are in the public or private sectors.
[84] In relation to the operation of Part 2-7 of the Act, it was submitted that the identification of a male comparator group is required and that has not occurred in this case. Ai Group rejected the claim that work performed by non-government employees in the SACS industry is comparable with work performed by government sector SACS employees, pointing to legislative obligations imposed on public sector employees. It opposed the indicia approach to undervaluation, claiming that it would distort and destabilise the modern award safety net and submitted that, in any case, the relevant indicia are not present in this case.
[85] Ai Group submitted that a “central issue” is whether the rates in the modern award meet the requirements of the Act, including the equal remuneration requirements and other aspects of the minimum wages objective and the modern awards objective. The rates must be compared with rates in other modern awards taking into account: the primary purpose of an employee’s job; the expected level of competence or skill; the degree of responsibility; judgment, autonomy and accountability; the level of supervision; any supervisory responsibilities; and the qualifications and experience required.
[86] There was opposition also to the proposed Category B wage rates for Crisis Accommodation Workers (Levels 1–3) who are continuous shiftworkers. It was claimed that these rates would be used to calculate employment entitlements such as overtime, which would be inconsistent with established industrial practice, and unrelated to equal remuneration, as the Category B classification is only of limited application in the sector. It also opposed the claim for automatic progression and the sleepover provisions claim on the basis they were not justified by equal remuneration considerations or merit.
[87] In relation to the possible establishment of equal remuneration principles, Ai Group submitted that this is not an appropriate case in which to do so, although it did put forward a proposal for consideration should we decide to establish principles of general application. It is not necessary to set that proposal out.
[88] In relation to the relevant case law, Ai Group submitted that the previous federal equal remuneration cases should guide our approach rather than the equal remuneration cases from state jurisdictions that are relied upon by the applicants. Those decisions were made in a very different legislative context. Neither the Act nor any relevant extrinsic materials indicate a legislative intention to follow the approach adopted in state jurisdictions.
[89] Finally, Ai Group submitted that gender pay equity is a complex issue and that we should not attempt to implement community-wide solutions, including taking into account government commitments in relation to funding, when making decisions about minimum wage cases. In the event that we decide to make an order, the nature of remuneration in the not-for-profit sector, including favourable tax concessions, should be taken into account. Ai Group warned against job losses and reductions in services and the possibility of the outcome being pursued in other industries where the majority of employees are female.
[90] We deal next with the submissions made by ACCI. It submitted that the application should be rejected because an equal remuneration order is not an appropriate vehicle for an increase in wage rates as it would supersede the modern award rates in perpetuity, could not be varied and would lead to consequences contrary to a number of statutory objectives, including the minimum wages objective and the modern awards objective. The modern award rates have been set on gender-neutral grounds in accordance with the objectives of the Act and relevant international obligations. It would be more appropriate to pursue increases through other provisions of the Act, such as those relating to low-paid bargaining. It was also submitted that if the ultimate question is one of funding, as opposed to gender-based undervaluation, the application must not succeed.
[91] In response to the suggestion that our decision in this matter might establish principles of general application, it was contended that the question does not arise because there is no provision in the Act permitting the establishment of principles.
[92] In relation to the construction and operation of Part 2-7 of the Act, ACCI supported a purposive approach which takes into account Australia’s international obligations, including international instruments and supporting materials that recommend pay equity claims be determined on work value grounds. ACCI further submitted that an equal remuneration order can only be made where the applicant has compared remuneration and work of the employees to whom the order applies, with the work of a male dominated group performing work of a similar or comparable value, or where the applicant has compared remuneration and work of the employees to whom the order applies with the work of a female group whose value has been determined on a gender-neutral basis. Neither of these situations has occurred here. Orders and determinations made by the Minimum Wage Panel in annual wage reviews and, by implication, the minimum wages and modern awards objectives, should all be taken into account.
[93] The power to make an order under s.302 is discretionary and s.721 permits us to consider whether there is an adequate alternative remedy. An appropriate alternative remedy would be the variation of minimum wages in a modern award within the four-year review period if there are “work value reasons” and such reasons are relevant when evaluating comparable worth under Part 2-7 and, further, that this approach is supported by paragraph 1191 of the Explanatory Memorandum to the Act.
[94] ACCI rejected the indicia-based approach to valuation. Like other employer bodies it also rejected comparisons between work in the SACS industry and work in state and local government on the basis that public servants are subject to onerous legislative regimes, different funding arrangements and engage in collective bargaining. It also submitted that Australia’s international obligations in relation to anti-discrimination remain relevant considerations when determining whether to make an equal remuneration order. It urged us to reject the approaches derived from state equal remuneration cases because there is no indication in the Act or any of the parliamentary materials that they should be adopted. It was also pointed out that there were substantial areas of consent in the state cases that are not present in this case.
[95] Should we decide to make an order, ACCI submitted that we should take into account the nature of remuneration in the SACS industry, including favourable tax benefits such as salary sacrifice arrangements.
[96] ABI submitted that displacing wages in the modern award by way of an equal remuneration order would not be consistent with the objectives of the Act, including the modern awards objective and the minimum wages objective. Wages in the modern award are appropriately set taking into account the skills, level of education and responsibilities identified in the award, as well as the principle of equal remuneration for work of equal or comparable value.
[97] It was contended that the applicants placed insufficient weight on government funding arrangements as an explanation for remuneration in the sector—the majority of employers in the SACS industry rely on funding and do not have capacity to raise revenue from other sources. There is a strong causal relationship between the funding arrangements in the industry, remuneration and the indicia identified by the applicants. ABI submitted that the application is more appropriately dealt with under Division 5 of Part 2-3 of the Act as a matter going to the safety net and the implementation of the modern awards objective.
[98] ABI also rejected the indicia approach and contended that a male comparator group is required to establish undervaluation under Part 2-7. It further submitted that imposing public sector terms and conditions of employment on private sector employers conflicts with the principle preserved in the Act that entitlements in public sector instruments are to be distinguished from private sector instruments. It further submitted that an order based on negotiated rates of remuneration cannot ensure equal remuneration as required by the Act.
[99] In relation to the general approach to be adopted, ABI submitted that it would be difficult for the tribunal to establish principles to direct parties on this or similar applications that would effectively encompass the variety of issues that may arise from applications made pursuant to Part 2-7.
[100] ABI urged us not to adopt the Queensland Equal Remuneration decision on the basis that it was made in a different legislative context, there was a substantial amount of agreement and the bargaining provisions in particular were quite different.
[101] ABI opposed the sleepover provisions claim on the basis that the majority of the sleepover provisions do not constitute remuneration for the purpose of Part 2-7. It also submitted that the provisions in the modern award should be compared with provisions in other relevant modern awards because they should prescribe minimum conditions only. It also pointed out that an increase in rates would flow through to the sleepover provisions in the award through the application of penalty rates.
[102] To the extent we might find that skills in the SACS industry are undervalued ABI submitted we should apply a work value approach rather than being guided by agreement rates.
[103] AFEI submitted that the tribunal should exercise its discretion and reject the claim. In its view, Part 2-7 of the Act necessitates a gender-based comparison and the application should be rejected because it wrongly compares female SACS employees in the government and non-government sectors and fails to provide a work value comparison on the basis of gender. AFEI also rejected the applicants’ assertion that female employees in the government and non-government sectors perform comparable work. It contended that there are onerous statutory responsibilities and obligations on public servants and that differing qualifications’ requirements indicate fundamental differences between the two sectors and are significant work value considerations.
[104] AFEI further submitted that public sector rates are the result of bargained outcomes that do not concern equal remuneration on the basis of gender and are associated with productivity offsets negotiated through the bargaining process. We are required by Part 2-7 to “ensure” equal remuneration and this can only be done by reference to work value considerations as the extent to which bargained rates are subject to trade-off, attraction/retention and enterprise specific considerations is unknown.
[105] Like most of the other opponents of the application, AFEI rejected the approach to undervaluation based on indicia. It went on to submit that in any case the application of that approach does not demonstrate that the relevant indicia in the SACS industry diverge from the indicia in other sectors to the extent necessary to indicate undervaluation of work on the basis of gender. AFEI submitted that variations in wage rates reflect operational requirements and/or underfunding but not undervaluation, and that if an equal remuneration order were to be considered, discounting would be required for non-gender based factors that contribute to the inequality in wage rates.
[106] AFEI submitted that the minimum rates contained in the modern award have been properly set through the process of award simplification and the review of minimum rates in pre-reform federal awards. It went on to say that the proposed commencement classification level and wage rate of Certificate III employees is not aligned with other awards and refuted the applicants’ claims that there is insufficient scope for recognition of skills and qualifications in the modern award classification structure.
[107] AFEI submitted that the Queensland Equal Remuneration decision should not be followed as it is based on a different legislative framework, adopted paid rates in enterprise agreements, did not involve any assessment of comparable work value, based most of the wage increase on factors other than equal remuneration and is not a minimum rates award. Other distinctions are that the decision applied only to non-constitutional corporations and that there were significant areas of consent not present in this case. It submitted that the discretionary approach contained in Part 2-7 is also in contrast with the legislative context of both the Queensland and New South Wales equal remuneration cases. Furthermore, it argued that the Act does not permit the formulation of principles of general application, unlike the relevant legislation which underpinned decisions in the Queensland and New South Wales jurisdictions.
[108] AFEI submitted that the proposed order would have serious economic and fiscal implications not confined to the SACS industry, and that the merits of application must take into account current cost constraints that will be exacerbated in the absence of full funding and would not be overcome by phasing provisions. An equal remuneration order would only increase participation in the industry if funding were guaranteed and, in the absence of such a guarantee, the order would result in higher unemployment and underemployment. Any order would also need to take into account the nature of SACS industry remuneration, including the wide availability of salary sacrifice arrangements.
[109] AFEI also opposed the sleepover provisions claim on the basis that it does not relate to equal remuneration considerations and would have significant operational consequences within the SACS industry.
[110] CCIWA submitted that the application is in effect a claim to increase minimum wage rates and that the applicants have failed to establish an appropriate comparator group as the basis for a gender comparison. It described the application as an inappropriate attempt to remedy a structural problem, being a lack of adequate government funding, through an equal remuneration order.
[111] CCIWA also submitted that our jurisdiction to make an equal remuneration order is limited to an examination of a specific job or specific group of jobs and does not extend to an analysis of jobs on an industry basis. The evaluation of work which is required to establish an equal remuneration order can only be achieved at the level of the employee, or group of employees, who perform the particular job under evaluation and this requires work value comparisons with a comparator group. It was also submitted that the applicants are under an obligation, where undervaluation is identified, to establish that it is not a result of systemic or incorrect classification under the modern award but is due to undervaluation on the basis of gender when compared with work of equal or comparable value.
[112] CCIWA supported ACCI’s submission that Part 2-7 is to be given a purposive interpretation and that we should consider the availability of other remedies under s.721. It submitted that the outcome sought in this case is one covered by the modern awards objective and the minimum wages objective. It also submitted that because minimum wages in modern awards can only be varied within the four-year review period on work value grounds, work value principles should be applied in deciding this application because it will in effect lead to a variation in the minimum rates in the modern award. In addition it was said that an equal remuneration order in this case would run counter to the statutory object of advancing collective bargaining.
[113] CCIWA submitted that any equal remuneration order should include provision for an employer to make application to be exempted in whole or in part from its terms on the basis of “very extreme or serious economic adversity” and we were urged once again not to rely on decisions of state industrial tribunals made in different statutory and historical contexts.
[114] We were alerted to the potential effects on the industry of an order that is not matched by full funding and the potential for increases to flow to other female dominated industries. CCIWA also submitted that the scope of the application requires immediate clarification, and that any increase should be permitted to be absorbed into overaward payments when an employer is not otherwise obliged to maintain the overaward payment. In the event that an order increases rates, CCIWA submitted that appropriate phasing provisions should be provided.
[115] ACE supported Ai Group’s submissions and directed its own submissions to the sleepover provisions claim. It submitted that, if granted, the provisions would significantly increase costs and impose new conditions and restrictions on the SACS industry. Any variation to the sleepover arrangements should be determined in accordance with Part 2-3, Division 5 and not as part of a claim for an equal remuneration order.
[116] Mission Australia detailed the potential impact of the claim on its services and opposed automatic progression, the inclusion of an enterprise bargaining component and the sleepover provisions claim. It also opposed the proposal for promotion on the basis of qualifications alone, saying it would lead to remuneration based purely on qualifications and not necessarily on job function. It submitted that government funding is critical and that even with 100 per cent funding of any increase, there would still be a reduction in its services due to the non-government funded components and the increased costs of corporate and support roles. It further submitted that factors that should be taken into account include the uncertainty of government commitments to fund increases, increased pressure on fundraising, the impact on services, inequalities of remuneration arising from qualifications rather than job descriptions, potential discrimination on the basis of qualifications and tendering difficulties. It rejected the assertion that government and non-government SACS workers have comparable roles, pointing to the unique statutory responsibilities and obligations imposed on public sector employees. It also rejected the contention that differences in pay between the two sectors can be explained on the grounds of pay inequity.
[117] Mission Australia opposed the proposed wage rates in relation to Category B Crisis Accommodation Workers on the basis that the proposed rates would remunerate employees at a lesser rate than the current award rate. It submitted we should take into account the relativities between remuneration for these employees compared with other shiftworkers in the community services and other sectors, as well as whether the proposed changes are consistent with the legislative criteria. It submitted also that any decision in this case should be limited to the safety net because it would be inappropriate to include bargained rates in an order and problems in bargaining can be addressed through the low-paid authorisation provisions in the Act.
[118] It submitted that the increased cost of the sleepover provisions claim should be considered, including where there is a need to convert to active night shifts. Mission Australia contended that a public interest issue will arise if a service ceases to exist due to increased costs, or because it no longer meets the requirements of a sleepover. In this context Mission Australia compared the remuneration for active night shifts and sleepovers and the difficulties in calculating and monitoring disturbances during a sleepover. It submitted that the sleepover provisions claim is not based on pay equity grounds and anything other than a reasonable increase should not be granted.
[119] It also submitted that any increases provided by an equal remuneration order should be limited to employees that perform direct community service work and should not apply to employees working in administrative roles.
[120] Submissions were filed by the Commonwealth and the Australian Capital Territory, New South Wales, Queensland, South Australian, Victorian and Tasmanian Governments. The submissions addressed a wide range of matters and also included information on SACS industry funding considerations and transitional arrangements.
[121] The Commonwealth submitted that the provisions of Part 2-7 of the Act remove the requirement for applicants to prove discrimination to establish that remuneration is unequal and allow comparisons between different but comparable work for that purpose. The provisions only permit Fair Work Australia to make an equal remuneration order if satisfied there is not equal remuneration in the defined sense. Similarly an order made in the exercise of its discretion must ensure there will be equal remuneration in the defined sense. Where undervaluation is established a range of factors are relevant in determining the appropriate remedy or “fair rate of pay” including the objects of the Act, the potential impact on services, the effect on the broader economy and the discounting of comparator rates for factors which are not gender-related. It was also submitted that as this is the first application for an equal remuneration order under the Act, principles to guide the formulation and hearing of future applications should be established.
[122] The submissions noted the importance of funding in the industry and the support provided by the Commonwealth through direct funding, including indexation, and indirect support through taxation measures. Any increase in wages in the industry could impose significant cost pressures which could have adverse impacts on service delivery. Such impacts could be partially mitigated through improving the efficiency of funding and other arrangements between the Commonwealth and service providers. It also referred to the importance of collective bargaining at the enterprise level on improvements in pay and conditions, employment and productivity. It noted, however, that the cost to the Commonwealth of significant wage increases could still be considerable, even taking into account a phased introduction, and budget constraints mean that “any additional Government funding would likely come at the expense of other Government services”.
[123] The Commonwealth submitted that the remuneration of employees in the SACS industry has been undervalued and that a gender-neutral rate of remuneration that reflects the value of work performed, but which excludes other factors such as labour market attraction or retention rates and productivity, should be fixed.
[124] It also provided a great deal of useful information concerning the profile of the industry, some of which is set out later in this decision under the heading “Overview of the SACS industry”.
[125] The Australian Capital Territory Government submitted that it was appropriate to apply the principles adopted in the NSW and Queensland jurisdictions. In referring to the results of a review of wages, conditions and skill requirements of SACS workers in the private sector and in government employment in the ACT, it submitted that there are difficulties in making comparisons because the skills, qualifications, responsibilities and conditions under which work is performed often differ between the sectors. Further, people engaged in the same classifications are not necessarily doing the same work. The report included three examples of private sector and public service positions that are considered comparable. The comparison suggested that employees in the private sector are not paid at a rate below government employees in each comparator group.
[126] The New South Wales Government, which came to office following the election of 26 March 2011, submitted that while it supports equal pay for work of equal or comparable value we should adopt a cautious approach because this is the first case under Part 2-7. It indicated that if an order is made it would seek efficiencies in non-government service delivery to offset the cost and may also be forced “to choose from any or a combination of the following: cutting expenditure on existing government services, foregoing recurrent or capital expenditure directed at enhancing service delivery and increasing taxation revenue and risking harm to the State’s economy”.
[127] In relation to the proper construction of Part 2-7, it submitted that s.302 requires a comparative analysis of the work value of work performed by female and male workers and the tribunal must be satisfied that there is an absence of equal remuneration because of gender. Because the applicants have not presented the necessary comparative analysis the case must fail. After examining the evidence in relation to its public sector, New South Wales submitted in the alternative that the applicants have not provided a sound or reliable basis for relevant comparisons to be made between jobs in the SACS industry and in the public sector.
[128] The Queensland Government made submissions concerning the operation of Part 2-7 of the Act but did not deal with the substance of the application. It sought to assist us in developing a framework to assess the value of the relevant work when dealing with matters of equal remuneration. It submitted that we should adopt an equal remuneration principle like that adopted by the QIRC in April 2002. It also provided an analysis of the development of equal remuneration in federal and state jurisdictions with particular reference to significant recent cases decided by the QIRC, including the Queensland Equal Remuneration decision.
[129] The South Australian Government submitted that we should establish the elements of a principle of equal remuneration and in doing so take into account principles developed in New South Wales and Queensland. Gender-neutral evaluations of job requirements are needed to address the historical undervaluation of women’s contributions. The evaluation should compare educational requirements, the nature of and responsibilities involved in the work and a gender-neutral evaluation of the range of hard and soft skills required to successfully perform a job.
[130] It supported the applicants’ contention that we should first establish that the SACS industry is female dominated, that work in the industry is undervalued and that the undervaluation is due to the SACS industry being female dominated. It submitted that if this is established, then the steps needed to remedy the undervaluation should be considered by Fair Work Australia.
[131] The Victorian Government referred to a number of important issues of construction of the legislative provisions. These include whether it is necessary to demonstrate relative lack of equality between male and female employees or whether it is sufficient to demonstrate inequality by other means such as historical undervaluation. It submitted that the beneficial purpose of the provisions and the legislative history suggest that Parliament intended to broaden the scope of the provisions and may mean that the provisions were intended to remove the requirement to demonstrate inequality by reference to a male comparator. However, it submitted that the retention of the phrase “for men and women workers” in Part 2-7 indicates that a comparative approach is still required. It submitted that the relevant parliamentary materials support this conclusion. For these reasons Victoria submitted that the provisions continue to require a comparison to be undertaken between work performed by women in a female dominated industry and comparable work performed by men in a male dominated industry.
[132] It went on to submit that we should enunciate principles to provide guidance for the determination of future applications in light of the proper construction and operation of Part 2-7. It noted that principles developed in state industrial jurisdictions acknowledge the need to engage in a work value assessment which is gender neutral, and to consider matters such as the nature of the work, skill and responsibility required, the conditions under which work is performed, and the award history. It was submitted, for various reasons, that the Queensland Equal Remuneration decision provides only limited assistance as do decisions in other state jurisdictions.
[133] Victoria questioned the appropriateness of the public sector as a comparator group and submitted that the wages in the public sector are the result of bargaining outcomes and reflect the context in which bargaining has occurred. It indicated that the evidence led by the applicants with respect to Victoria may not provide a basis for satisfaction that the work of employees covered by the application is comparable to the work performed by relevant public sector employees in Victoria.
[134] It accepted that the work in the SACS industry is predominantly undertaken by women and that the value of such work has not always been reflected in the pay SACS workers receive. It submitted that this appears to be the result of multiple factors, some of which have a gender element. In relation to the possible impact of any order on the industry, Victoria submitted that the applicants’ evidence, adduced through Professor Austen, did not establish that the effects of wage increases on employment in the industry would be benign and that material produced by Mission Australia indicated the potential for adverse employment effects under various scenarios. Victoria also urged consideration of the impact on state budgets of any increases ordered and the possible phasing-in of increases.
[135] The Tasmanian Government acknowledged what it describes as “unsustainably low wages in the female dominated SACS sector”. It said that the undervaluation of SACS wages appears to be attributable to a range of factors including: the historical origins of the work as domestic work; the continued use of volunteers and the prevalence of unpaid overtime; changes to the nature of work and skills which have not been recognised; inadequate award coverage in the early stages of the industry’s development; subsequent lack of enterprise bargaining; the inability of clients to pay for services; funding arrangements and supply chain issues; and gender related undervaluation of work.
[136] Tasmania supported an equal remuneration order and a variation to the modern award “to the extent that such an order can sustainably address the historical inequities in remuneration that have persisted for SACS workers”. It submitted that the sustainability of the claim should be considered, including the potential negative impact of an order on the sector through funding shortfalls, program cuts, closures and job losses. Tasmania also submitted that it is essential that the particular scope of each aspect of the claim is clearly articulated to ensure that the sector is able to respond. It also supported the development of pay equity principles. In its final submission it drew attention to the state of the Tasmanian economy and submitted that regard should be had to the limited ability of the State to provide the desired level of increased wages supplementation. In a subsequent letter the Premier reiterated Tasmania’s in-principle support for pay equity in the SACS industry.
[137] Among others to make substantial submissions were the AHRC and the Women’s Organisations.
[138] AHRC made submissions on issues concerning the construction of Part 2-7. It submitted that equal remuneration for work of equal value is a human right, embodied in various international instruments, which many Australian women do not enjoy. On average women earn less than men for work of equal or comparable value. This inequity, which may get worse, has adverse social and economic consequences. The provisions of the Act provide an opportunity to address the situation and it would be useful for the tribunal to develop an “Equal Remuneration Principle” to be applied in other cases. In considering Part 2-7, and in developing the principle, assistance can be found in the approaches of industrial tribunals in Queensland and New South Wales.
[139] In its final submission, AHRC submitted that there is no basis to read down the provisions of Part 2-7 by reference to the safety net provisions which govern the making and variation of modern awards. Equally, the availability of a low-paid authorisation under the Act does not provide any justification for not applying the equal remuneration provisions. AHRC contended that the application of the legislation is not dependent on the identification of a male comparator group, although comparator groups may be useful. Finally, it submitted that where an order is otherwise justified, there is no discretion not to make it on the basis of general considerations such as funding, capacity to pay or economic consequences.
[140] The Women’s Organisations supported the application. They argued that effective bargaining on pay has not been possible in the SACS industry because of the influence exerted through funding models and that the rates in the modern award do not fully reflect the value of the work, as demonstrated by the applicants’ case. In this context they also submitted that the modern award rates for graduates do not properly reflect the rates and relativities in the federal instruments from which the modern award was derived.
[141] They also supported the applicants’ contention that the application of the provisions of Part 2-7 does not require a male comparator group or proof of discrimination, submitting that comparators where work has been properly valued free of gender effects are appropriate. They also submitted that the scheme of the Act envisages that equal remuneration orders may operate above awards and agreements and may alter award relativities. The provisions are intended to provide a remedy where equal remuneration has not been achieved under other provisions of the Act.
[142] The Women’s Organisations contended that collective bargaining is unlikely to produce equal remuneration for a relatively disadvantaged group and that research shows that “collective bargaining in Australia has been associated with an increase in the gender pay gap with worst effects for the most disadvantaged groups of women workers”. The tribunal should make an order with provision for adjustment on an ongoing basis for minimum wage increases. This would provide a proper basis for remuneration in the industry and a stimulus to enterprise bargaining which has so far been inhibited by funding arrangements. It suggested that enterprise bargaining, because of the large number of small organisations and for other reasons, might best be conducted on a multi-employer basis.
[143] They supported the applicants’ submission that the rates resulting from the Queensland Equal Remuneration decision should be adopted and submitted that, generally speaking, the rates fixed for comparable work in state and local government employment are not affected by gender-related undervaluation. They dismissed suggestions that granting the application would lead to unjustified flow-on increases in other areas and submitted that we could be satisfied that the costs of granting the application are manageable, and that the benefits to the industry and its employees of granting the claim outweigh any potential disadvantages.
[144] Finally, the Women’s Organisations submitted that Fair Work Australia should establish principles for the guidance of parties both in future cases and in bargaining.
[145] The applicants relied on testimony from many witnesses. Those witnesses fall into three groups: academics and professionals; union officials; and employees. We deal first with the academics and other professional witnesses.
[146] Professor Meagher is Professor of Social Policy at the University of Sydney, co-convenor of the Australian Paid Care Research Network and Commissioner on the Catholic Commission for Employment Relations. She provided a comprehensive analysis of the workforce in the SACS industry by reference to ABS data. She characterised the industry as being dominated by non-profit organisations. This contrasts with other care industries which feature a more notable presence of for-profit enterprises.40
[147] She said that the structure of organisations in the industry and the activities which those organisations undertake are significantly shaped by government policy. This is due to two factors. First, governments have chosen to fund non-profit organisations rather than deliver the services directly. As governments are isolated from the provision of services they tend to contribute less funding than is necessary and so the non-profit organisations are responsible for making up the remainder of the required funds. Secondly, there is competition for limited government contracts amongst SACS organisations, which leads to reduced operating margins for these entities.
[148] Professor Meagher reflected upon the type of work performed in SACS organisations. She observed that labour costs form a significant part of expenditure. Furthermore, the work is carried out in highly complex institutional environments where employees are required to negotiate government policy, the interests of the employing organisation and the interests of their clients. These policies and interests may often be contradictory, in particular, the best interests of the clients may be opposed to the interests of the employer. In addition, in recent times there have been greater expectations from both services and clients. This is largely due to increased life expectancy of clients and improvements in diagnosis and awareness.
[149] Professor Meagher raised a number of pay equity issues. Because the industry is dominated by non-profit organisations typically there are lower wages, less desirable working conditions and less job security than in comparable positions in the public sector. These factors have caused many employees to move to government positions. She argued that this situation is the result of “nurturing” work being penalised. She examined a number of reasons for this apparent penalty. The work is seen as “women’s work” and perceived as being a natural skill rather than one that is learned or developed. Consequently, it is considered to be less worthy of remuneration. Employees are motivated by personal satisfaction derived from their work rather than just monetary compensation. Professor Meagher agreed, however, that this view could apply equally to any occupation which an employee enjoys.
[150] Other contributing factors include the clients’ limited capacity to pay for services and the fact that it is electorally unpopular for governments to fund these services because the clients are seen as socially undesirable. In addition, there have been industrial impediments to obtaining better wages and conditions for SACS industry employees. Legal barriers meant that the sector struggled to obtain award coverage until 1991. There were also practical difficulties because employees are widely dispersed across small entities which limits their ability to organise. Further, employees have been unwilling to argue for improved wages and conditions in case this led to fewer services being available for clients.
[151] Ms Smith is Senior Lecturer in the Employment Relations Program and Associate, School of Management, University of Western Sydney. She set out the development of gender pay equity provisions in Australian labour law. Her evidence focused on three stages of reform since the 1960s: the adoption of equal pay principles by the Commonwealth Conciliation and Arbitration Commission in 1969 and 1972; the introduction of an entitlement to equal remuneration in the federal legislation in 1993 and the retention of this entitlement in succeeding legislation; and equal remuneration initiatives adopted by state industrial jurisdictions.
[152] Professor Junor is Associate Professor and Deputy Director of the Industrial Relations Research Centre, Australian School of Business, University of New South Wales. She gave evidence concerning the nature of the Spotlight Skills Recognition Tool (the Spotlight Tool) and its application to the work activities of five of the employee witnesses in the case.41 She describes the Spotlight Tool as being an aid to naming and classifying skills which are required for the effective carrying out of work activities but which are difficult to describe and easily overlooked. The purpose of the Spotlight Tool is to identify those elusive skills which are nevertheless the source of visible high-quality work performance. Professor Junor describes these skills as “process” skills which enable employees to construct integrated and ongoing workflows.
[153] The Spotlight Tool is designed around a matrix consisting of three skill sets, each divided into three elements, and all classified at five skill levels. The primary skills are awareness-shaping, relationship management and coordination. The levels of expertise are based on familiarisation, practice, problem solving, solution sharing and system changing. The Spotlight Tool is not a job evaluation tool but rather a supplementary job and personal skill analysis tool. Professor Junor also indicated that job analysis is the stage before job evaluation and provides information on which job evaluation is then based.
[154] Professor Junor’s evidence is that the skill levels set out in the Spotlight Tool are not able to be matched to classification levels. The former reflect levels of experience, complexity and practical expertise rather than competencies. Professor Junor likened classification structures to a vertical axis and the skill levels in the Spotlight Tool as a horizontal axis of the deepening of capacity. In her first statement she provided a detailed analysis and mapping of the skills and skill levels required in the work activities of the five employee witnesses. In her supplementary statement she identified and analysed the concentration of activities at each of the five skill levels.
[155] Professor Austen is Associate Professor, School of Economics and Finance, Director of the Centre for Research in Applied Economics and Co-Director of Women in Social and Economic Research (WiSER), Curtin University of Technology.42
[156] Professor Austen relied on a report relating to women’s employment and wages (the first Austen report) which was in four parts.43 The first part deals with the importance of women’s participation in paid work to Australia’s economic growth prospects and the ability to meet basic community needs in the future. Professor Austen referred to a number of studies conducted in the context of our ageing population which identify barriers to workforce participation as a crucial target for economic policy. The workforce participation rate of Australian women is well below that in comparable OECD countries. Almost two-thirds of all non-employed labour in Australia is female. This is compounded by a high rate of part-time work: 45.1 per cent of Australian working women are engaged on a part-time basis compared to 17.6 per cent of men. She referred to data indicating that women are over-represented among low income/low asset individuals and households that are more likely to experience lack of access to economic resources. They are more likely to receive low pay, work fewer hours than they wish, and be employed in jobs with insecure tenure. Strategies to encourage improved remuneration and workforce participation will assist in facilitating increased social inclusion.
[157] The second part of the first Austen report deals with the economic reasons for the undervaluation of women’s work. Professor Austen testified that low wages are both a feature of women’s employment in Australia and a key determinant of low participation rates. She presented a range of data to show the gap between men’s and women’s wages. These included the highly segmented nature of the Australian labour market and the tendency for women and men to work in different types of jobs. For example, almost 70 per cent of all community and personal services workers are female while only 34.1 per cent of managers, 13.7 per cent of technicians and trades workers and 9.2 per cent of machinery operators and drivers are female. The availability of part-time work in different occupations is a contributing factor to this segmentation. Professor Austen also examined studies on the question of whether the work that women commonly do is undervalued. She considered that the persistence of such undervaluation indicates that there are barriers to female job mobility such as gender-based social norms, work practices associated with certain occupations and the current lack of institutional support for the provision of care for children and elders.
[158] The third part of the first Austen report concerns the economic consequences of the undervaluation of women’s work. A number of theoretical frameworks were considered. These models predict that the low wages which are offered in female-dominated occupations will discourage women’s participation in paid work, reduce the incentive for employees to acquire skills in fields such as social and community service work, lead to adverse outcomes from household bargaining and contribute to an undermining of altruistic motives.
[159] The final part of the first Austen report argues that awarding significant wage increases to low-paid workers to address historical undervaluation is economically appropriate. Professor Austen predicts that such increases are unlikely to have adverse impacts on employment because employers may be able to pass higher wage costs onto the funding provider. She also argues that some low-paid workers may be paid below their value to their employer and, even allowing for the claimed increases, employers may continue to find it profitable to retain their services. She notes that in fields where there is minimal potential to substitute capital for labour, the effect of higher wages on employment is low. She also predicts a number of positive outcomes flowing from a wage increase for SACS industry workers, including an incentive for employers to improve their utilisation of labour and technology, and improved morale among employees. This should lead to higher productivity which will help to offset any adverse effects on employment. Higher wages will also translate into higher superannuation balances and can assist in improving gender equity.
[160] Professor Austen also produced a report in relation to the evidence advanced by Professor Cobb-Clark, a witness for Ai Group (the second Austen report). The second Austen report argues that Professor Cobb-Clark’s statement appears to strongly support the contention that the wages paid to SACS industry workers undervalue their skills and experience and should be increased, and that this would reduce the gender wage gap overall because the workforce is predominantly female. Professor Austen argues that the data produced by Professor Cobb-Clark indicate that women who have similar educational, experience and demographic characteristics as men receive lower wages because they work in jobs where rates of pay are lower. Professor Austen also states that these data imply that the jobs undertaken by lower paid men in each occupational group in the public sector are better remunerated than those done by lower paid women. Concerning data produced by Professor Cobb-Clark relating to the private sector, Professor Austen indicated that the results suggest that, within occupational groups in the private sector, the earnings of lower paid women and men differ according to the industries in which they work, their working hours arrangements, union membership and experience.
[161] The second Austen report argues that these results also support the applicants’ claim as they indicate that women with similar educational and demographic characteristics as men receive lower wages when employed in the private sector. Further, most of the differences in the wages of lower paid men and women is not attributable to the lower labour market experience of the women involved.
[162] A third report provided by Professor Austen addresses issues raised in the Commonwealth’s submission. It deals with matters including the proportion of the budget which is spent on funding social and community services, the estimated effects of the application on government expenditures and revenues, the budgetary implications of any wage increase which might be awarded and possible benefits which might outweigh any economic detriments.
[163] Mr Matthews is a Tax and Advisory Partner of BDO (Australia) Limited. He provided a report on salary packaging. There are two types of employer for salary packaging purposes: a rebatable employer and an employer which is exempt from Fringe Benefits Tax (FBT). A rebatable employer includes non-government charitable organisations and non-profit societies established for community service purposes. An FBT exempt employer includes public benevolent institutions and health promotion charities. For an employee of a rebatable employer there is no benefit salary packaging until their income exceeds $80 000 and the maximum tax benefit is $2468. For an employee of an FBT exempt employer salary packaging provides a financial advantage regardless of income. The maximum tax benefit is $7463 and applies to an employee earning more than $180 000.
[164] Mr Flynn, Research and Policy Manager Community Service and Health Industry Skills Council, gave evidence about skills and vocational qualifications in the SACS industry. He said that there is an increased service demand within the sector which is outstripping its present capacity. This demand, together with changing client demographics and the increasing complexity of issues, requires the formation of new roles and skills for the provision of services. The SACS industry draws on the vocational education and training sector in particular to train employees. There was high growth in the demand for this training during the period 2002–08.
[165] Mr Flynn outlined the development of the Community Services Training Package, the most recent version of which is known as CHC08. This includes 74 qualifications which fall into four groups: individual client support; community services and development; children’s and youth services; and client services. In addition, there are coordination and management qualifications, advanced practice qualifications as well as “pathway” qualifications which enable basic skills entry into the industry. The package establishes “skill sets” which are defined units of competency which link into a licence or regulatory requirement or defined industry need. This promotes new career pathways and enables horizontal career transitions as well as the design of more diverse service options and the deployment of specific skills through education. Mr Flynn also noted that the vocational graduate level qualifications are recent inclusions and that there is potential to expand the competency standards and qualifications at this level to reflect advanced practice and leadership roles in areas such as mental health and disability. Through better linkages between the vocational education and training and educational sectors, supply of the skills necessary for new jobs and employment structures in the industry should increase. Mr Flynn expressed the view that award modernisation and equal remuneration for employees in the SACS industry may assist in meeting workforce capacity issues.
[166] The applicants presented evidence on the undervaluation of work performed in the SACS industry. The evidence was broadly in line with the “indicia of undervaluation” outlined in the NSW and Queensland pay equity inquiries.44 They also tendered witness statements of union officials from comparator industries in state and local government sectors, said to be performing the same or similar work.
[167] Several witnesses used membership records to demonstrate the high proportion of women working in the industry. Ms McManus, Secretary of the NSW and ACT Branch of the ASU, testified that 76 per cent of the branch’s 6000 members in the industry are women. Ms McManus estimated the industry-wide representation by women would be higher because members were more likely to be full-time employees and the greater proportion of those positions are held by men.45 Ms Hildyard, Secretary of the South Australian and Northern Territory Branch of the ASU, put the proportion of female membership in the SACS industry in that branch at 77.3 per cent.46 Similar proportions of female membership were stated for the ASU branches in Western Australia, Queensland and Victoria.
[168] A number of officials gave evidence that the historical nature of the work as “carer” or “women’s work” was a reason for undervaluation despite delivering vital services to people in the community in need. Mr Brown, Secretary of the Tasmanian No. 2 Branch of the HSU, gave evidence that at the time of being made in 1975, the Welfare and Voluntary Agencies Award (Tas) included a classification of “House mother”.47 Ms McManus referred to a May 2009 report of the Social Policy Research Centre, University of New South Wales:
“‘Care penalties’ offer one set of explanations for the undervaluation of community services work. As community services work involves providing care to others, it is often considered an extension of women’s mothering and domestic roles. As such, the skilled dimensions of the work are often invisible, assumed to be natural and voluntary rather than resulting from formal learning, and occurring in private, personal interactions and often in people’s homes.”48
[169] Most union officials presented evidence on the formal qualifications required for different roles within the SACS industry. Mr Williams, Secretary of the Victorian No. 2 Branch of the HSU, gave evidence that the current classification definitions in relevant industrial instruments covering disability services in the SACS industry do not capture the full range of skills necessary to perform the roles. He said that in addition to the skills acquired from training and by experience, a broader range of skills is required. These additional skills can be categorised as empathy and listening, initiative and an ability to problem solve, tolerance and patience, communication skills, and a commitment to the values of respect and dignity and an individual’s rights.49
[170] Union officials contended that the funding structures, the size and geographical spread of workplaces and enterprises and the industrially passive nature of the industry made access to enterprise bargaining difficult. Mr Kelly, Secretary of the Western Australia Branch of UV, estimated that only 10 per cent of employers in the SACS industry in Western Australia are covered by an enterprise agreement.50
[171] Union officials also gave evidence that union density in the industry is low, despite considerable efforts to recruit. The inability to recruit was attributed to the disparate nature of the workforce across small enterprises and, even where the enterprise has a larger number of employees, small workplaces. Ms McManus provided the example of the Matthew Talbot Hostel run by the St Vincent De Paul Society, which was considered to be a large workplace but had only about 50 employees eligible to be members of the ASU.51 Ms Stitt, Secretary of the Victorian Private Sector Branch of the ASU, and Mr Court, Southern District Organiser of the AWU Queensland, said small enterprises, often run by volunteers, do not have the industrial expertise to participate in the bargaining process.52 Mr Gardiner, Secretary of the Northern Territory Branch of UV, added that the considerable number of workers employed on a fixed-term or casual basis also limits bargaining.53
[172] The funding models adopted by governments that fund the services were argued to be restricting the capacity of employers to bargain and made a decentralised approach to wage-setting inappropriate to the industry. Funding, it was said, is often set by reference to award rates, leaving employers with little resources to provide for wage increases. Mr Di Troia, Secretary of the South Australian Branch of UV, gave evidence that where additional funds are available they are often committed to direct service delivery.54 Ms Branson, Assistant Secretary of the WA Branch of the ASU described this practice as part of a broader policy agenda:
“Contracting out by Government to the NGO sector was done initially by Governments in an effort to be seen to reducing [sic] the State Public Service thereby saving money. The savings came because salaries were lower and there were reduced administration costs in the non government sector . . .”55
[173] Ms Darmanin, Assistant Secretary of the Victorian Authorities and Services Branch of the ASU, gave an extensive description of the Victorian funding models in the SACS industry. She contended that indexation, which was meant to anticipate ongoing and one-off costs in the sector, had not kept pace with market rates and resulted in some employers not passing on increases to employees.56 Ms Darmanin gave further evidence that in the past the negotiation and processing of multi-business agreements by the ASU for community legal centres and neighbourhood houses had been administratively burdensome and resulted in employees foregoing entitlements that would otherwise have applied.57
[174] Many of the union witnesses also referred to the unwillingness of employees in the industry to take any or high impact industrial action because of the consequences for the services provided to their clients. Mr Williams gave evidence that even where employees did intend to take action they were limited by the restrictions likely to be placed on protected industrial action.58 Mr Brown also said low pay rates in the industry made it difficult for employees to participate in industrial action.59
[175] Union officials suggested that employees in the state and local government sectors performing the same or similar work to those in the SACS industry receive higher rates of pay because of a culture of bargaining, larger workplaces with higher union membership, broad-based bargaining that includes male dominated professions and employer access to a skilled human resources department. Ms Flanders, Assistant Secretary of the Queensland Public Sector Union of Employees, estimated their union’s density in the Queensland government sector is at about 70–80 per cent of allied health professionals and over 50 per cent of the Department of Communities’ employees.60 Mr Turner, Assistant Secretary of the Public Service Association of New South Wales, stated that union density in the NSW government sector is around 45–50 per cent.61
[176] Comparisons were made between work performed in the SACS industry and in the state and local government sectors. For example, the classifications of social worker, welfare worker, counsellor, lawyer and community development worker in each area were compared. Social workers were also compared with child protection workers and children’s services workers and youth workers were compared with youth justice workers.62 Mr Kelly, Secretary of the Tasmanian Branch of the ASU, also compared the work of workforce development employees in the areas.63 Most witnesses described the work as the same or similar with reference to the work performed and skills required. Generally, the rates of pay under enterprise agreements covering the state and local government sectors were described as “significantly higher” than the rates of pay contained for the same or similar work in awards and any agreements covering the SACS industry. Mr Henderson, Secretary of the Victorian Branch of the Australian Education Union, compared the work of instructors in day services in the SACS industry to that of teachers.64
[177] Award history was referred to by some witnesses as a reason for the disparity in pay rates. Ms Hildyard gave evidence that no work valuation had been performed on work under the Disabilities Services Award (SA).65 She also stated that the greater ability to bargain in the local government sector results in wages significantly higher in that sector than in the SACS industry in South Australia.66 Mr Christopher, Chief Industrial Officer of the Public Service Association of South Australia, explained such disparity was partly due to being able to bargain across government agencies and negotiate agreements covering classifications that apply to both employees performing work similar to that in the SACS industry and male dominated occupations,67 such as engineers and prison staff.68 Ms Cowper, Assistant Industrial Officer of HSU East, gave similar evidence in respect of NSW.69
[178] Mr Williams gave evidence on the history of awards covering disability services in Victoria. He said the Residential Youth and Child Care Award (Vic) had not been subject to a work value exercise comparable to that conducted in respect of the public sector under the Public Service Board Nursing and Direct Care review.70 He argued that the disparity in pay rates had become built into the subsequent federal wage setting for the SACS industry in Victoria and had become more evident with the increased outsourcing noted by Ms Branson. Ms McManus gave evidence that SACS workers employed as caseworkers in the NSW Brighter Futures program perform identical work to that of employees of the NSW Department of Community Services working in the program, but do so for lower rates of pay.71
[179] Ms Thomas, a former Industrial Officer for the Civil Service Association of Western Australia (Inc), gave evidence about a recent work value review conducted for “specified callings” in the Western Australian government sector, including social workers, psychologists, therapists and counsellors. The review resulted in a new pay scale for the specified calling positions and increased rates of pay by 13 per cent for entry level positions, 10 per cent for middle level positions and 8 per cent for senior positions.72 The review recognised that no work valuation had occurred since 1989, the ageing public sector workforce required higher rates to attract new graduates from the private sector and the pay rates had become uncompetitive since the advent of the “mining and resources boom”.73
[180] Ms Darmanin gave evidence that in most cases access to salary packaging is discretionary, employers will often require a portion of the benefit to be paid back to the service and not all SACS employers are in a position to provide the benefit.74 Mr Smith, Secretary of the Queensland Services Branch of the ASU and Secretary of the Queensland Services, Industrial Union of Employees (QSU), gave similar evidence.75
[181] The applicants called evidence from a number of employees currently or formerly employed in the SACS industry. Some of those witnesses held management positions. The employee evidence covered a range of different parts of the industry and a range of positions. The evidence detailed the responsibilities of the individuals concerned, their work history, their current terms and conditions of employment and the work performed by their organisations. A number of employees commented on the different level of pay compared to social and community services conducted by state and local government. Employees in senior roles gave evidence about the problems in attracting and retaining employees within their organisations. They frequently expressed the view that the salaries in the not-for-profit sector were a significant factor leading to problems in attraction and retention. They also expressed concern at the level of funding in the sector and suggested that this was a significant factor in determining the level of salaries paid within their organisations. A brief summary of the evidence of the applicants’ employee witnesses is contained in Appendix A.
[182] The tribunal visited a number of establishments in the SACS industry, as well as some state and local government establishments providing services similar to those provided in parts of the SACS industry. The visits assisted the Full Bench in gaining a better understanding of the nature and range of SACS industry services and the environments in which services are provided. The tribunal met and spoke with many dedicated people in a variety of roles, many of whom also provided statements as to their duties and responsibilities. In some cases objection was taken to material provided by the applicants, which purported to represent what the tribunal saw on these visits. Some objection was also taken to attempts to draw conclusions concerning comparisons between jobs in the SACS industry and jobs in state and local government. We made rulings on these matters during the proceedings. It is not necessary to make detailed findings about them for the purposes of this decision.
[183] Employers and employer bodies filed witness statements from a number of people including senior managers from the SACS industry, academics and others. The evidence dealt with the operations of service providers, the nature of jobs, funding constraints and a range of other matters. Some of the material is referred to in dealing with the submissions of the particular employer or body. There is also a brief summary of some of the witness statements in Appendix B. We deal now with the evidence of Professor Cobb-Clark, called by Ai Group as an expert witness.
[184] Professor Cobb-Clark is the Director and Ronald Henderson Professor of the Melbourne Institute of Applied Economics and Social Research at The University of Melbourne. She provided and referred to an article entitled: Occupational Segregation and the Gender Wage Gap in Private and Public Sector Employment: A Distributional Analysis.76
[185] The analysis indicates, after controlling for demographic characteristics, educational qualifications, labour market experience and factors such as part-time or casual status, industry, size of enterprise and union membership that, in both the public and private sectors, women have, on average, fewer years tenure with their present employer and in their present occupation and have had less time in the labour force since full-time education than men. Women are also more likely than men to work in jobs that are part-time or casual and in enterprises which have fewer than 100 employees.
[186] The findings in relation to pay and the gender wage gap in the private and public sectors suggest that differences in pay between lower paid men and women are much more a matter of differences in the “productivity characteristics” of the population rather than of gender in itself. Professor Cobb-Clark also notes that occupational segregation improves rather than undermines relative wages of women. She testified that the analysis shows that the reasons for the gender wage gap in a particular industry or occupation are complex and multi-faceted and differ between low paid and higher paid employees.
[187] Professor Cobb-Clark also referred to a discussion paper of which she was the co-author entitled: Noncognitive Skills, Occupational Attainment, and Relative Wages.77 She contended that the analysis in the paper indicates that raising minimum wages for an occupation because employees in another occupation are, on average, more highly paid is unlikely to significantly reduce the gender wage gap. This conclusion is based on three findings. First, there is little relationship between the size of the gender wage gap and the extent to which the occupation employs a higher proportion of men or women. Secondly, women have lower wages on average because they earn less than their male colleagues engaged in the same occupations. Thirdly, there is no single explanation for occupational segregation in the Australian labour market.
[188] Professor Cobb-Clark also provided a supplementary statement in which she replied to the statements of Professor Meagher and Professor Austen. It is unnecessary to summarise the criticisms or the subsequent rejoinders in oral evidence. The issues include the difficulties in comparing United States and Australian experiences, how undervaluation is to be assessed and what information is needed to establish it, and whether the data provided by Professor Austen support the applicants’ submission that a wage adjustment is warranted in this case.
[189] The matter of equal remuneration for male and female employees has its origins in decisions of the industrial tribunal in the early 1900s. The President of the Commonwealth Court of Conciliation and Arbitration, Justice Higgins, established the minimum wage in the Harvester Case78 in 1907 based on the needs of a male worker supporting a wife and three children. In the Fruit Pickers Case79 of 1912, Justice Higgins considered the “needs” of a woman supporting a family to be an exceptional circumstance upon which a minimum wage should not be based and women should only be awarded the full male rate where there was the risk of cheap female labour displacing men. Until World War II, the female basic wage was, generally speaking, approximately 54 per cent of the male basic wage.80
[190] In 1941 the Federal Government established the Women’s Employment Board to overcome labour shortages and to set the wage rates of females performing traditionally male work. In 1944, after the Board was disbanded, female wage rates in industries vital to the war effort were determined by the National Security (Female Minimum Wage) Regulations at 75 per cent of the male rate.81 The Basic Wage Inquiry 1949–5082 increased the basic wage for women for all work to 75 per cent of the male basic wage.
[191] In the National Wage Cases 196783 the Commonwealth Conciliation and Arbitration Commission (the CCAC) replaced the basic wage and margins with a “total wage”. In doing so, the CCAC acknowledged it would result in different total wages for males and females due to the then existing basic wage differentials and the “quite complex history of basic wages particularly those for females”.84 The CCAC stated:
“The community is faced with economic industrial and social challenges arising from the history of female wage fixation. Our adoption of the concept of a total wage has allowed us to take an important step forward in regard to female wages . . . The recent Clothing Trades decision affirmed the concept of equal margins for adult males and females doing equal work. The extension of that concept to the total wage would involve economic and industrial sequels and calls for thorough investigation and debate in which a policy of gradual implementation could be considered . . . We invite the unions, the employers and the Commonwealth to give careful study to these questions with the knowledge that the Commission is available to assist by conciliation or arbitration in the resolution of the problems.”85
[192] Subsequently, the 1969 Equal Pay Case86 dealt with union claims to insert into awards an amount of money which would eliminate the difference between the former male and female basic wages. The CCAC decided not to grant the claim as pressed. Instead the CCAC accepted the concept of “equal pay for equal work” and established nine principles for dealing with applications for equal pay between the sexes. The CCAC also decided any equal pay awarded should be phased in.
[193] In the National Wage and Equal Pay Cases 197287 the CCAC noted that approximately 18 per cent of females in the workforce had received equal pay as a result of the 1969 Equal Pay Case decision. The CCAC decided the concept of “equal pay for equal work” was too narrow given developments in respect of equal pay both within Australia and overseas and that it was time to enlarge the concept to “equal pay for work of equal value”. The CCAC determined a new principle pertaining to the relationship between female and male wage rates.
[194] In the National Wage Case, 197488 the Australian Conciliation and Arbitration Commission (the ACAC) extended the minimum wage to females, awarding the same minimum wage to adult males and females in three instalments.
[195] In 1986 in Re Private Hospitals’ and Doctors’ Nurses (A.C.T.) Award 197289 the ACAC confirmed that the 1972 Equal Pay Principle remained available to be implemented in awards in which it had not been applied and that all such applications should be processed through the anomalies provisions of the then national Principles of Wage Determination. The ACAC rejected any notion that the 1972 Equal Pay Principle could be equated with the doctrine of “comparable worth” and considered that the use of the term in the Australian context would lead to confusion.
[196] Pay equity claims for nurses, dental therapists, Australian public service social workers and childcare workers were subsequently processed through the anomalies and inequities and structural efficiency provisions of the Wage Fixing Principles.
[197] The Industrial Relations (Reform) Act 1993 (Cth) amended the Industrial Relations Act 1988 (Cth) (IR Act) to permit the Australian Industrial Relations Commission (the AIRC) to make orders to ensure equal remuneration for men and women workers for work of equal value. The legislation noted that “equal remuneration for men and women workers for work of equal value” refers to rates of remuneration established without discrimination based on sex.
[198] The WR Act, which replaced the IR Act, made limited changes to the equal remuneration provisions of the earlier legislation.
[199] The provisions of the WR Act were considered by the AIRC in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v HPM Industries.90 The case concerned an application for an order requiring equal remuneration for work of equal value in circumstances where female process workers and female packers at HPM Industries were receiving a lower rate of pay than, respectively, male general hands and male storepersons. The applicants maintained the work of these respective classifications were of equal value having regard to their competency standards. In dismissing the application, the AIRC said:
“It follows from the definition of equal remuneration for work of equal value that as a first step to making an order the Commission must be satisfied that rates of remuneration have been established without discrimination based on sex. Both the applicant and the respondent to these proceedings, and some of the interveners addressed this question and accepted that a necessary precursor to establishing this was to establish that the work is of equal value . . .
. . .
Work value is defined in the context of the existing [wage fixing] principles (Work Value Changes) as:
‘the nature of the work, skill and responsibility required or the conditions under which the work is performed. [71 IR at 73; Print P1997 p. 98.]’
. . .
It follows . . . I am not satisfied, on what is before me, that the different remuneration paid to Process Workers and Packers by comparison to that paid to General Hands and Storepersons arises in circumstances that are sufficiently similar as to amount to discrimination based on sex . . .”91
[200] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v David Syme & Co Ltd,92 in considering a union application for an equal remuneration order providing for the company’s female clerical employees to be paid the same as certain male employees of the company, the AIRC said:
“A first step in the determination . . . is to decide whether the rates of remuneration in question have been ‘established without discrimination based on sex’. In this case the AMWU would need to show that the rates of pay for the relevant clerical employees were established haveing [sic] regard to the gender of the employees concerned or at least a large proportion of those employees.”93
[201] The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) amendments to the WR Act in 2006 made the Australian Fair Pay Commission largely responsible for setting and adjusting minimum wages. The Fair Pay Commission did not make, adjust or vary any pay scales for reasons relating to equal remuneration.94
[202] State government initiated pay equity inquiries were conducted in New South Wales in 1998,95 Tasmania in 2000,96 Queensland in 2001,97 Western Australia in 200498 and Victoria in 2005.99
[203] The NSW Pay Equity Inquiry resulted in the IRCNSW promulgating a new Equal Remuneration and Other Conditions Principle100 to be included in its state wage fixing principles. The IRCNSW also provided that, on application, an award could be varied or another award made without the application requiring consideration as a special case where the application claimed that work had been undervalued on a gender basis and wages should be adjusted in accordance with the new Equal Remuneration and Other Conditions Principle. In addition, the IRCNSW rescinded the principle it had established in the State Equal Pay Case, 1973.101 The Equal Remuneration and Other Conditions Principle ordered by the IRCNSW was as follows:
“15 Equal Remuneration and Other Conditions
(a) Claims may be made in accordance with the requirements of this principle for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required or the conditions under which the work is performed have been undervalued on a gender basis.
(b) The assessment of the work, skill and responsibility required under this principle is to be approached on a gender neutral basis and in the absence of assumptions based on gender.
(c) Where the undervaluation is sought to be demonstrated by reference to any comparator awards or classifications, the assessment is not to have regard to factors incorporated in the rates of such other awards which do not reflect the value of work, such as labour market attraction or retention rates or productivity factors.
(d) The application of any formula, which is inconsistent with a proper consideration of the value of the work performed, is inappropriate to the implementation of this principle.
(e) The assessment of wage rates and other conditions of employment under this principle is to have regard to the history of the award concerned.
(f) Any change in wage relativities which may result from any adjustments under this principle, not only within the award in question but also against external classifications to which the award structure is related, must occur in such a way as to ensure there is no likelihood of wage leapfrogging arising out of changes in relative positions.
(g) In applying this principle, the Commission will ensure that any alteration to wage relativities is based upon the work, skill and responsibility required, including the conditions under which the work is performed.
(h) Where the requirements of this principle have been satisfied, an assessment shall be made as to how the undervaluation should be addressed in money terms or by other changes in conditions of employment, such as reclassification of the work, establishment of new career paths or changes in incremental scales. Such assessments will reflect the wages and conditions of employment previously fixed for the work and the nature and extent of the undervaluation established.
(i) Any changes made to the award as the result of this assessment may be phased in and any increase in wages may be absorbed in individual employees’ overaward payments.
(j) Care should be taken to ensure that work, skill and responsibility which have been taken into account in any previous work value adjustments or structural efficiency exercises are not again considered under this principle, except to the extent of any undervaluation established.
(k) Where undervaluation is established only in respect of some persons covered by a particular classification, the undervaluation may be addressed by the creation of a new classification and not by increasing the rates for the classification as a whole.
(l) The expression ‘the conditions under which the work is performed’ has the same meaning as in Principle 6, Work Value Change.
(m) The Commission will guard against contrived classification and over classification of jobs. It will also consider:
(i) the state of the economy of New South Wales and the likely effect of its decision on the economy;
(ii) the likely effect of its decision on the industry and/or the employers affected by the decision; and
(iii) the likely effect of its decision on employment.
(n) Claims under this principle will be processed before a Full Bench of the Commission, unless otherwise allocated by the President.
(o) Equal remuneration shall not be achieved by reducing any current wage rates or other conditions of employment.”102
[204] The Queensland Pay Equity Inquiry recommended amendments to the Industrial Relations Act 1999 (Qld) (Qld IR Act). Subsequently, in 2002, the QIRC declared an Equal Remuneration Principle103 as a Statement of Policy. The following sets out the principle declared:
“EQUAL REMUNERATION PRINCIPLE
This principle applies when the Commission:
(a) makes, amends or reviews awards;
(b) makes orders under Ch 2, Pt 5 of the Industrial Relations Act 1999;
(c) arbitrates industrial disputes about equal remuneration; or
(d) values or assesses the work of employees in ‘female’ industries, occupations or callings.
In assessing the value of work, the Commission is required to examine the nature of work, skill and responsibility required and the conditions under which work is performed as well as other relevant work features. The expression ‘conditions under which work is performed’ has the same meaning as in Principle 7 ‘Work Value Changes’ in the Statement of Policy regarding Making and Amending Awards.
The assessment is to be transparent, objective, non-discriminatory and free of assumptions based on gender.
The purpose of the assessment is to ascertain the current value of work. Changes in work value do not have to be demonstrated.
Prior work value assessments or the application of previous wage principles cannot be assumed to have been free of assumptions based on gender.
In assessing the value of the work, the Commission is to have regard to the history of the award including whether there have been any assessments of the work in the past and whether remuneration has been affected by the gender of the workers. Relevant matters to consider may include:
(a) whether there has been some characterisation or labelling of the work as ‘female’;
(b) whether there has been some underrating or undervaluation of the skills of female employees;
(c) whether remuneration in an industry or occupation has been undervalued as a result of occupational segregation or segmentation;
(d) whether there are features of the industry or occupation that may have influenced the value of the work such as the degree of occupational segregation, the disproportionate representation of women in part-time or casual work, low rates of unionisation, limited representation by unions in workplaces covered by formal or informal work agreements, the incidence of consent awards or agreements and other considerations of that type; or
(e) whether sufficient or adequate weight has been placed on the typical work performed and the skills and responsibilities exercised by women as well as the conditions under which the work is performed and other relevant work features.
Gender discrimination is not required to be shown to establish undervaluation of work.
Comparisons within and between occupations and industries are not required in order to establish undervaluation of work on a gender basis.
Such comparisons may be used for guidance in ascertaining appropriate remuneration. The proper basis for comparison is not restricted to similar work.
Where the principle has been satisfied, an assessment will be made as to how equal remuneration is to be achieved. Outcomes may include but are not limited to the reclassification of work, the establishment of new career paths, changes to incremental scales, wage increases, the establishment of new allowances and the reassessment of definitions and descriptions of work to properly reflect the value of the work.
There will be no wage leapfrogging as a result of any changes in wage relativities arising from any adjustments under this principle.
The Commission will guard against contrived classifications and over classification of jobs.
The Commission may determine in each case whether any increases in wages will be absorbed into overaward payments.
Equal remuneration will not be achieved by reducing current wage rates or other conditions of employment.
The Commission may decide to phase in any decision arising from this principle. Any affected employer may apply to have any decision phased in. The merit of such application will be determined in the light of the particular circumstances of each case and any material relating thereto will be rigorously tested.
Claims brought under this principle will be considered on a case by case basis.”
[205] In November 2008, QSU sought to increase the rates of pay in the Queensland SACS award pursuant to various provisions in the Qld IR Act, namely: s.125, which concerns the making, amending and repealing of awards; s.126(e), which provides that the QIRC must ensure its awards provide equal remuneration for men and women employees for work of equal or comparable value; and Part 5, which deals with equal remuneration specifically. Reliance was also placed on the QIRC’s Equal Remuneration Principle and its Work Value Changes of the Statement of Policy – State Wage Case 2008.104 The applicants asked us to adopt the rates resulting from the QIRC decision—the Queensland Equal Remuneration decision—in this case. We discuss the decision and its relevance to these proceedings in some detail later.
[206] The ACTU submitted that capacity to pay is not a relevant consideration. It asserted that the position of employers or funders is irrelevant under s.302 of the Act. Further, the ACTU argued that the employer groups have not provided evidence in relation to incapacity to pay.
[207] The Commonwealth submitted that funding arrangements are complex. It argued that due to the complexity, it is difficult to assess the impact of significant wage increases.
[208] Commonwealth funding is through contracts, grants and fee-for-service provided through Commonwealth Own Purpose (COPE) programs. Funding is generally indexed on an annual basis. The Commonwealth also provides funding to state and territory governments through National Specific Purpose Payments (SPP) and National Partnership Payments (NPP). SPPs are provided with base funding on an ongoing basis. This funding is indexed on 1 July each year. Indexation arrangements are outlined in the Intergovernmental Agreement on Federal Financial Relations and are intended to capture both sector and economy-wide pressures for each SPP. NPPs are outcome-based.
[209] The sources of funding are provided by five departments:
[210] The vast majority of Department of Families, Housing, Community Services and Indigenous Affairs funding arrangements are formalised using agreements which articulate services to be delivered, reporting arrangements and payments to be made. In exceptional circumstances, Memoranda of Understandings or purchasing contracts are used. Types of funding include one-off grants or sponsorships, time limited or project based and recurrent service delivery. Funding for particular programs may be dealt with through an open or restricted competitive tender or by direct selection. For providers that deliver a recurrent service, in a normal process, a direct selection process is used where current grant recipients are offered a renewal of their funding agreement if delivery requirements are met. Indexation is applied to these arrangements.
[211] Funding arrangements specify that the grant recipient must comply with all relevant laws, codes of ethics, regulations or other industry standards and Commonwealth policies.
[212] The Department of Health and Ageing funds three main areas in respect to the SACS industry: aged care; mental health; and drug and alcohol treatment programs. The majority of grant activities support the ongoing delivery of services. Treasury-to-Treasury payments are made to state and territory governments under the National Partnership Agreement—Health Services.
[213] Funding arrangements delivered by the Attorney-General’s Department vary from program to program depending on the type of service being delivered. It provides funding to five main programs that may (depending on individual circumstances) employ SACS industry workers:
[214] The Department of Veterans’ Affairs provides a range of funding programs to services provided to veterans. The Department of Immigration and Citizenship provides funding to the SACS industry primarily on a fee-for-service and contract basis. The Australian Red Cross is one of the main service providers funded by the Department of Immigration and Citizenship.
[215] The Commonwealth does not accept the findings of the WiSER report, relied on by the applicants, on the grounds that it uses incorrect assumptions and inappropriate data. It submitted that the report does not include all relevant government programs; uses labour market data from the Commonwealth’s original submission that is only a snapshot; does not take into account all payments made by the Commonwealth to other governments through SPPs and NPPs; and is based on the assumption that all employees work full-time. It also submitted that there were flaws in the treatment of GST revenue and the phasing of any increase.
[216] The Commonwealth supports a phased approach to the implementation of any significant wage increase and the need for implementation arrangements to consider the impact on service providers and funders. The Heads of Agreement with the ASU outlines the suggested approach to implementation. It was agreed that any increase would not take effect until at least six months from the date of a decision, that the increase should be phased in by instalments over a four and a half year period and annual minimum wage adjustments should be applied during the phase-in period. It is committed to working with interested parties in discussing potential implications of a substantial wage increase.
[217] The NSW Government adopted the evidence provided in an earlier submission by Mr Gadiel, who is employed as an advisor in the Fiscal Strategy Branch of the New South Wales Treasury. According to his evidence, the impact of the claim on NSW and Commonwealth funded programs is $2.1 billion over five years.105 That figure reduces to $1.3 billion if Mr Gadiel’s assumptions about translation from the current classification grades and pay points are adopted. The calculations assumed future increases to funding of 2.5 per cent per annum consistent with current indexation.106 Therefore, the five-year budget impact of the claim for NSW would be $998 million (adopting the Union Translation Table) and $390 million if adopting Mr Gadiel’s classification translation assumptions.107
[218] Ai Group submitted that SACS industry employees are low paid due to the lack of federal and state government funding over the years:
“If the real problem is a lack of Federal and State Government funding then the problem should not be portrayed as a problem relating to minimum wage rates. Governments could of course increase funding to the SACS sector and employers could pass on wage increases to employees in the form of over-award payments or enterprise agreements, without the negative consequences which would flow from the unions’ proposed order.”108
[219] AFEI submitted that granting the application will have a significant cost impact on the SACS industry. Further, the only government that has made a commitment to funding is the Victorian Government. It asserted that the NSW Government provided an estimate that the impact of the claim on New South Wales and Commonwealth funded programs would be $2.1 billion over five years. According to AFEI estimates, the cost of the claim for New South Wales, Victoria and Queensland will be in excess of $3 billion. As the states only fund approximately half of the sector, the remainder of funding would need to be provided by the Commonwealth. AFEI submitted:
“It is noted that these are additional costs to budget. No account in these estimates is made for the current levels of under funding or for the actual increases in labour costs to employers. No provision is made for the additional costs . . .”109
[220] ACOSS submitted that the Productivity Commission’s study into the contribution of the not-for-profit sector revealed that government funding routinely covers only 70 per cent of the full cost of service. Community sector organisations will require time, funding and expertise to implement changes, in particular, higher wages. ACOSS supports full funding of any pay increases that emerge from this matter and they seek a commitment from the major funders of the industry to provide new and full funding of any increases awarded by the Full Bench.
[221] NDS supported the application and submitted that all governments will be required to commit to and fund any wage increases that may be granted. The introduction of a National Disability Insurance Scheme is a very significant reform faced by the disability services sector. NDS contended that the scheme would “profoundly alter both the nature of disability service provision and the way disability services are funded”.
[222] Most state and territory funded disability service providers rely on funding from government as their main source of income. Insufficient levels of income make it difficult for service providers to attract and retain suitably skilled staff. Salary levels are not determined by the market but by the level of government funding.
[223] Indexation of funding in recent years has barely covered wage increases and failed to compensate for increases in other operating costs. Indexation is provided by governments to address the effect of wage increases, inflation, and other cost increases. Current funding models place pressure on the ongoing viability of disability services and force providers to decide on the best allocation of resources. From 2003 to 2006, non-government service providers in NSW experienced a total variation between the level of indexation received and the cost of wage increases of 2.58 per cent.
[224] Wage costs are approximately 80 per cent of the full cost of service delivery. Any shortfall in the level of indexation and the wage bill needs to be absorbed in the remaining 20 per cent of costs. Service providers are also required to meet the difference between the level of indexation and the effect of Consumer Price Index increases on indirect costs including insurance, utilities, workers compensation premiums and travel costs. Where indirect costs have risen at a greater proportion than indexation, they will take up a greater proportion of service delivery costs. NDS New South Wales has collected data since June 2006 and identified that the costs for wages, utilities and electricity have increased during that period and that the inflation cost for fuel has fluctuated with most future forecasts predicting an upward trend.
[225] Before setting out our conclusions we think it is necessary to give an overview of the industry with which the case is concerned. The Commonwealth’s submission contains information on the industry and the history of its development. The following passage is a convenient summary of many of the important features of the industry (tables and references have been omitted):
“4.21. There is a strong tradition in Australia of charities, not-for-profit entities and religious institutions providing social services, particularly before the Second World War. The 2008 Senate Economic Committee Inquiry into the Disclosure regimes for charities and not-for-profit organisations noted that Australia’s first not-for-profit entity, the NSW Society for Promoting Christian Knowledge and Benevolence in these Territories and the Neighbouring Islands (since renamed the Benevolent Society), was established in 1813. Soon after started district nursing services (1820), asylums for the poor, blind, aged and infirm (1821), maternity hospitals (1866) and the first Women’s Hospital in Australia (1901), followed by the introduction of the Age Pension (1909), Invalid Pension (1910), Maternity Allowance (1912), Child Endowment (1941), Widow’s Pension (1942) and Unemployment and Sickness Benefits (1945). After the Second World War, governments increasingly undertook responsibility for the provision of social services.
4.22. The origins of the modern non-government community services sector can be traced to the 1950s and the late 1960s, when the Commonwealth began to fund community services in response to demands of advocacy groups.
4.23. Since the mid-1960s the variety of community services organisations operating as public, for-profit and not-for profit has grown, ranging in size from single worker organisations to those employing more than 10,000 people.
4.24. In the 1980s and 1990s governments began to introduce new mechanisms to provide welfare services. In essence governments moved away from being direct service deliverers to policy makers and introduced contracts for the non-government sector to deliver services. Part of the rationale for this movement was the view that not-for-profit organisations could deliver services more efficiently and cost effectively.
4.25. The not-for-profit sector has become more ‘professionalised’ than it used to be, and the line between the not-for-profit sector and the business sector, increasingly blurred. For-profit organisations work in areas that may traditionally have been considered the domain of not-for-profit organisations and not-for-profit organisations are involved in competitive tendering and running social enterprises. In many cases, the not-for-profit sector also now operates much more closely in partnership with government, bidding for contracts to carry out tasks that in earlier times the government would have administered itself.
4.26. The way the not-for-profit sector now operates commercially as an arms-length of government is most starkly highlighted by the Job Network. This was set up in 1997 when the federal government shut down its Commonwealth Employment Service and invited businesses and not-for-profit organisations to bid to supply job placement and training services to the unemployed. More than 10 years on, not-for-profits accounted for half of Job Network turnover, and some of Australia’s leading not-for-profit welfare organisations, including the Salvation Army, the Wesley Mission, Mission Australia, and Catholic Welfare, now rely heavily on government employment service contracts for a proportion of their income.
4.27. The variety of service types in the community services sector today is reflected in its complex industrial landscape and history. The SACS sector today provides services as diverse as drug and alcohol counselling to support for migrants. Commonwealth Government agencies work in partnership with other government and non-government organisations to manage a diverse range of programs and services designed to support and improve the lives of Australians.
. . .
Organisations in the SACS sector
4.29. The SACS sector is made up of predominantly small, not-for-profit organisations.
4.30. It is estimated that in June 2007 there would have been up to 6,093 organisations operating in the SACS sector that could be subject to the equal remuneration application. This figure is based on 5,250 organisations being in the Other social assistance services class (8790), and 843 organisations in the Other residential care services class (8609).
4.31. Of the estimated 6,093 organisations operating in the SACS sector, around 43 per cent (or 2,607 businesses) were employing businesses.
4.32. Of the 2,607 employing businesses:
• 71.8 per cent had 1-19 employees (‘small employing businesses’)
• 24.9 per cent had 20-199 employees (‘medium employing businesses’) and
• 3.3 per cent had 200 or more employees (‘large employing businesses’).
4.33. The more recent ABS Community Services survey suggests that at the end of June 2009, there were around 4,033 businesses in the SACS sector subject to the pay equity case. While this data does not provide a breakdown by business size, it does show that of the 3,287 businesses operating in the Other social assistance services class (8790), around 76 per cent were not-for-profit organisations. Of the 746 businesses operating in the Other residential care services class (8609), around 87 per cent were not-for-profit organisations.
Economic contribution to the sector
4.34. The Productivity Commission found in its 2010 report into trends in the not-for-profit sector, that the sector makes a significant contribution to the Australian economy, noting that in 2006-07, the not-for-profit sector accounted for 4.1 per cent of GDP.
4.35. The available ABS industry performance data indicates that the SACS sector makes a similarly large contribution to the Australian economy. In 2008-09 the combined industry value added for the SACS sector (covering ANZSIC codes 86 and 87) was 1.8 per cent of the total value add for all industries (see Table 4.1). This amounted to around $14.9 billion.
4.36. While the share of total employment for the SACS sector was around 4.4 per cent for this period, the share of total wages and salaries for the sector was only around 3.2 per cent, reflecting the lower average wages and salaries within the SACS sector.
4.37. The profit margin for the Residential care services subdivision (86) was 5.6 per cent and 10.0 per cent for the Social assistance services subdivision (87). Both are below the all industries average of 11.2 per cent. The data also shows that organisations in these two subdivisions were more likely to make a loss than other industries (see Table 4.2).
4.38. According to the ABS Community Services survey, there were around 153,322 employees in the SACS sector in June 2009, of which around 90 per cent worked for not-for-profit organisations. The sector employed around 90,271 full-time equivalent staff.
4.39. Of this total, there were around 121,780 people employed within the Other social assistance services class (8790), with 88.3 per cent of these employed by not-for-profit organisations. This amounts to 74,363 full-time equivalents.
4.40. There were also 31,548 workers employed in the Other residential care services class (8609). Of these, 92.8 per cent were employed by not-for-profit organisations. This amounts to 15,908 full-time equivalents.
4.41. The August 2008 Employee Earnings and Hours data shows that approximately 16.1 per cent of non-managerial employees in Social assistance services (subdivision 87) were employed in small businesses (those with fewer than 20 employees). This data should be taken as an indication only, given the small sample sizes.
Female concentration in the sector
4.42. Women form the majority of people working in the SACS industry and in the health sector overall. According to the Australian Institute of Health and Welfare (AIHW), those health occupations with the highest proportion of females in 2006 included social workers at 81 per cent and other allied health workers at 80 per cent.
4.43. The May 2010 ABS Labour Force survey showed that 76.2 per cent of employees in the Other social assistance services group (879) and 83.9 per cent of employees in the Residential care services (860) were female. This compares with 46.9 per cent across all industries for the same period.
4.44. According to the ABS Community Services survey which provides more specific SACS industry data, there were 87,939 persons providing direct community services in the Other social assistance services class (8790) and females accounted for 67,069 or 76 per cent of these persons. Meanwhile, there were 23,137 females employed in the Other residential care services class (8609), accounting for 73 per cent of total employment.
Part-time casual employment
4.45. The Government contends that there is a very high proportion of employees working part-time within the SACS industry. The rate of casual employment is lower than the average rate across all industries, however when considered together, the overall proportion of employees not in full-time employment is high.
Part-time employment
4.46. The May 2010 Labour Force data suggests that around half of all workers in the sector are employed on a part-time basis. By comparison the rate of part-time employment across all industries is 29.2 per cent.
. . .
4.54. Available data show that volunteers make a significant contribution to the SACS sector workforce, particularly in not-for-profit organisations.
4.55. The Community Services survey indicates that during 2008-2009, around 172,482 volunteers assisted Other social assistance services organisations (8790), with 61 per cent of these people providing direct community services. In addition, around 26,205 volunteers provided assistance to organisations in the Other residential care services class (8609), with 99 per cent of these people assisting not-for-profit organisations.
4.56. The data on the number of people volunteering in the SACS sector indicates that volunteer numbers are greater than the 153,322 employees in the paid workforce. While the ABS suggests caution when using this data, the data does indicate the significant contribution by volunteers to the SACS sector.
Levels of unionism in the sector
4.57. The ABS Employee Earnings, Benefits and Trade Union Membership data indicates that union membership levels within some parts of the SACS sector are below average.
4.58. In August 2009, 16.1 per cent of employees in the Other social assistance services group (879) and 24.3 per cent in the Residential care services group (860) were members of a trade union. By comparison, trade union membership across all industries averaged 21.0 per cent.
4.59. The average of these two groups is only slightly below the all industries average level of unionisation. However, given that the Other social assistance services group (879) in the Government’s view most closely covers SACS sector employees, the Government assumes that the actual level of union membership in the sector is closer to 16.1 per cent.
Duration and cessation of employment
4.60. The annual ABS Forms of Employment survey indicates that the duration of employment for SACS sector workers is similar to that of employees across all industries.
4.61. In November 2009, the proportion of employees in the Residential care services group (860) and the Other social assistance services group (879), who had worked a continuous period of less than one year with their current employer (21.3 per cent and 19.2 per cent respectively), was similar to that across all industries (21.3 per cent).
4.62. Similarly, the annual ABS Labour Mobility survey (unpublished) suggests that the proportion of employees leaving SACS sector employment was roughly the same as for all other industries.
4.63. The same survey also shows that 70.9 per cent of job leavers from the Other social assistance services group (879), and 86.9 per cent of employees from the Residential care services group (860) left voluntarily. The same figures for employees in all industries who ceased a job during the year ending February 2008, showed that 70.2 per cent did so voluntarily.
4.64. Duration and cessation of employment are relevant factors to consider in a pay equity case. In the SACS sector, however, the results indicate that there is not an especially proportionately high level of turnover of employees in the sector. The results therefore do not support that these factors represent gender inequity in the SACS sector. However, it is not clear from the available data whether those employees who do cease employment do so due to programs ceasing or whether they go on to other jobs in the sector, move on to similar jobs in the public sector, or move outside of the industry completely.
4.65. The November 2009 Working Time Arrangements publication indicates that SACS sector employees are less likely to work overtime than employees in other industries. The data further indicates that for employees in the Other social assistance group (879), any overtime worked is much less likely to be paid and more likely to be provided as time off in lieu. This does not appear to be the case in the Residential care services group.
4.66. As at November 2009, 32.4 per cent of employees in the Other social assistance services group (879) usually worked extra hours or overtime. Of those who usually worked extra hours or overtime, 35.0 per cent were paid for overtime, 21.7 per cent were not compensated and 37.5 per cent were entitled to receive time off in lieu.
4.67. As at November 2009, 28.7 per cent of employees in the Residential care services group (860) usually worked extra hours or overtime. Of those employees who did usually work extra hours or overtime, 44.7 per cent were paid overtime, 36.9 per cent were not compensated and 13.7 per cent were entitled to receive time off in lieu.
4.68. By contrast, 37.6 per cent of employees in the all industries category usually work extra hours or overtime. Of these, 42.2 per cent were paid for overtime, 26.6 per cent were not compensated and 16.3 per cent were entitled to receive time off in lieu.
4.69. Compared with the all industries average, employees in the Other social assistance services group (879) have a slightly greater degree of control over the hours they choose to work. For example, 48.3 per cent of employees in this industry reported they had some say in start and finish times (compared with 41.5 per cent across all industries) and 79.1 per cent were able to choose when holidays are taken (compared with 73.6 per cent across all industries) (see Table 4.6).
Employees by age group
4.70. The SACS sector is ageing and is relatively older when compared to the overall Australian workforce.
4.71. ABS Labour Force data shows that there is a clear difference in the age profile of employees in Residential care services (86) and Social assistance services (87) compared with that across all industries. In these two industries there are higher proportions of employees in all the older age groups (45 years and above) and lower proportions of employees in the younger age groups (age groups below 45 years) (see Table 4.8).
4.72. This data suggests an ageing workforce as well as low participation rates among the youngest age cohort within the SACS sector.
4.73. According to the AIHW Health and Community Services Labour Force report, the average age of employees in the community services workforce is 41 years, compared to the average age of 39 years in the general labour market.
4.74. The health and community services workforce aged between 2001 and 2006. In the community services workforce, the highest proportion of community services workers were aged 45 to 54 years in 2006. This is compared to 2001 when the highest proportion of community services workers fell into the 35 to 44 age group.
4.75. In addition, between 2001 and 2006, the proportion of community services workers in the 55 to 64 age group increased, whereas the proportion aged 35 to 44 years decreased.
4.76. During this same period, the proportion of female workers in the 55 to 64 age group increased from 8.9 per cent to 13.6 per cent. Whereas, the proportion of female workers aged 35 to 44 years decreased from 27.0 per cent to 23.9 per cent.
4.77. According to the Productivity Commission, the community services sector faces particular workforce challenges in attracting suitably qualified staff, due to issues such as high turnover and vacancy rates, high share of part-time and casual workers, and a high proportion of employees approaching retirement age.
Qualifications attained
4.78. The level of qualifications attained by those in the SACS sector varies due to the broad nature, skills and requirements of the work performed.
4.79. National Centre for Vocational Education Research (NCVER) data shows that the proportion of welfare and community workers with no post-school qualification fell from 32 per cent in 1996 to 18 per cent in 2006, while the proportion with a bachelor degree increased by 13 percentage points during this time.
4.80. A report by the AIHW into the health and community services labour force found that a relatively high proportion, that is 64 per cent of community services employees, held a post-school qualification. This is compared to 52 per cent of the general workforce.
4.81. The most common highest qualification among community services workers was a certificate, with 36 per cent of the community services workforce reporting as holding such a qualification.
4.82. Further, the distribution of qualification level differs across various occupations in the sector. For example, family services, disability and other community services managers were more likely to hold a bachelor degree (47.3 per cent, 35.4 per cent and 39.4 per cent respectively) than another qualification. In contrast, aged and disability care workers (67.7 per cent) typically held a certificate.
4.83. The Productivity Commission Report notes the increasing reporting requirements attached to government funding, with professionals recruited by not-for-profit organisations to write tender applications for government services and philanthropic trust grants.
4.84. In addition, the Productivity Commission report notes that ‘The past few decades have seen a clear trend to the professionalisation of the community services direct care workforce’. The expectation is that this trend will continue due to ‘more complex client requirements and increased community expectations of care’.
4.85. These trends indicate that the complexity of the roles and the professionalism required of SACS sector employees is increasing. As mentioned above, this has been reflected in an increase in the number of employees gaining vocational and technical qualifications. It has also resulted in an increase in the number of enrolments in relevant courses. For example, the number of students undertaking Community Services Training Packages increased from 77,200 in 2004 to 108,200 in 2008.
Workforce shortages
4.86. In 2008, 64 per cent of community service organisations indicated that they had experienced difficulty over the past year attracting staff, particularly appropriately qualified staff. A significant proportion of respondents also reported that they had difficulties retaining such employees.
4.87. Surveys undertaken by the Department of Education, Employment and Workplace Relations (DEEWR) support these findings, reporting skills shortages in all states and territories for social workers in 2008 and skills shortages for welfare workers in New South Wales and Queensland and recruitment difficulties in other states.
4.88. More recent DEEWR data indicates that in 2010 there was no longer a national shortage of social and welfare worker occupations, however, recruitment difficulties were experienced in NSW along with regional shortages in Queensland for social workers. Welfare workers shortages were experienced in NSW, SA and NT, with regional shortages occurring in WA.
4.89. The 2007 AIHW report Australia’s welfare 2007 also found that the disability workforce is, on average, older than the general workforce in Australia. Disability services in particular may therefore experience shortages sooner than other industries due to the number of disability services workers expected to retire in the next ten years.
4.90. DEEWR data indicates that in 2010, employers based in Brisbane and major regional centres in Queensland reported few difficulties in attracting suitably qualified social workers. By contrast, respondents in remote areas of Queensland reported significant recruitment difficulties, due in part to the isolation and cost of living associated with these locations.
4.91. Some employers in the non-government sector have commented that the low levels of remuneration, compared with equivalent positions in the public sector, and the lack of job security due to funding arrangements, has contributed to the recruitment and retention difficulties experienced.
4.92. Employers said they attempt to overcome recruitment and retention difficulties associated with low salaries by offering staff incentives such as salary packaging and flexible working arrangements.
4.93. Some employers have also commented that although positions were filled by qualified experienced candidates, at times their experience did not always match the experience being specifically sought by the organisation.
Conclusion
4.94. The Government estimates there are approximately 4,000 businesses in the SACS industry subject to the case, of which around three-quarters operate on a not-for-profit basis. A significant number of these organisations are small employing businesses, who are heavily reliant on the receipt of government funding.
4.95. The available data indicates that there are around 153,000 employees in the sector, the majority of which work in the not-for-profit sector. These employees are predominantly female, with around half of these employees working part-time.
4.96. The data available also indicates that the SACS workforce is ageing, and that skill shortages have been, and are likely to continue to be a concern in the future. This trend is unlikely to be helped by the low wage levels evident in the sector – more detail on wage rates are provided in chapter 5.
. . .
5.32. The ABS Employee Earnings and Hours data shows that in all industries women were more likely to be award-reliant than men (19.9 per cent compared with 13.3 per cent for men). Award reliance has declined for both women and men over the period May 2006 to August 2008 (down from 23.4 per cent and 14.7 per cent respectively).
5.33. Compared to the general workforce, a large proportion of employees in the SACS sector have their pay and conditions determined by awards.
. . .
5.39. The data indicate that the overall levels of pay for SACS sector employees are below average which may be due to workers in the SACS sector not achieving the same bargaining outcomes compared to workers in other sectors and the fact that a higher proportion of SACS workers are covered by award rates (30.9 per cent compared to the all industries average of 18.1 per cent).
5.40. The 2008 ABS Employee Earnings and Hours survey shows that around 51.3 per cent of non-managerial employees in the SACS sector had their pay determined by a collective agreement. This is substantially higher than the all industries average of 42.8 per cent. However, this data also indicates that pay levels for employees in the SACS sector on collective agreements are low.
5.41. This data also indicates that there is a significant variance in the hourly and weekly wage rates received by employees covered by a collective agreement in the Other residential care services class (8609) compared to the Other social assistance services group (879), highlighting a diversity of pay rates in the SACS sector.
5.42. The Department of Education, Employment and Workplace Relations (DEEWR) Workplace Agreements Database (the Database) contains information on collective bargaining in the federal sphere. Information from the Database suggests that average wage increases of 3.7 per cent in federal collective agreements in the SACS sector are below the average 4.1 per cent wage increases for all current agreements. However, this data is limited due to the small number of SACS agreements in the Database which may include employees who are not employed in the SACS sector.”
[226] The applicants, supported by a number of others, submitted that the terms of Part 2-7 of the Act are broader than the terms of any previous federal legislation dealing with equal remuneration because they include the concept of work of comparable value. We agree that this is a significant departure and decisions under the WR Act are not directly applicable, being made under provisions limited to equal remuneration for work of equal value.
[227] The applicants also submitted that if undervaluation of the kind at which Part 2-7 is directed is found to exist, s.302 requires Fair Work Australia to make an order which ensures equal remuneration. The ACTU supported the submission. We think the submission overstates the case. Obviously an order cannot be made unless the tribunal is satisfied that, for the employees in question, there is not equal remuneration for work of equal or comparable value.110 But we think the better view is that when that finding is made the tribunal still retains a discretion to make an order or not. That view gives effect to the ordinary meaning of the word “may” appearing in ss.302(1), (3), (4) and (5). But if an order is to be made, the tribunal is required to be satisfied that for the employees concerned the order will lead to equal remuneration for work of equal or comparable value.111
[228] The clear implication, on normal principles of statutory construction, is that in exercising its discretion the tribunal is to be guided by the matters specified in s.578 of the Act, including the objects in s.3 and the matters in s.302(4). It is unnecessary to speculate about the circumstances in which it might be decided, despite a finding that remuneration was not equal in the relevant sense, that no order should be made. The important point is, however, that such a decision could be made in the exercise of the discretion conferred by s.302.
[229] It is necessary to deal with a number of submissions which suggest that in one way or another our discretion should be guided by the terms of s.134—The modern awards objective and s.284—The minimum wages objective. It follows from our conclusions concerning the matters which should guide the exercise of discretion that ss.134 and 284 have no direct application in these proceedings. Nevertheless considerations related to the safety net, including the terms of modern awards, are apt to be taken into account pursuant to the object in s.3(f) of the Act. We are required, therefore, by s.578(a) to take into account, among other things, the need to ensure there is a safety net of fair, relevant and enforceable minimum terms and conditions.
[230] The applicants asked us to find that questions of the funding required to assist employers to comply with any order should only be taken into account under s.304 of the Act. That section permits an order which operates in instalments. That submission is consistent with the submission we have rejected earlier, that if relevant undervaluation is found to exist an equal remuneration order must be made. We reject this latter submission also. No doubt questions of cost, including questions of cost to a funds provider which is not the employer, might lead to an order implementing equal remuneration in instalments as provided for in s.304. But it does not follow that cost, and funding, cannot be taken into account in deciding whether to make an order at all. It is possible to imagine a case in which the making of an equal remuneration order might lead to significant unemployment. In our view the potential for such a result could be taken into account pursuant to s.578 in deciding whether to make any order at all.
[231] A number of employer bodies and some governments submitted that it is implicit in the terms of Part 2-7, and in the terms of s.302(2) in particular, that in order to establish the necessary grounds for an equal remuneration order the applicants must identify a relevant male comparator group for the purpose of establishing undervaluation. On that approach a comparison is required between work performed by women in a female dominated industry or occupation and work performed by men in a male dominated industry or occupation. On the other hand, the applicants contended that it is only necessary that the work of a predominantly female workforce is undervalued. They submitted that this is the inevitable result of the change in the statutory concept from equal remuneration for work of equal value to equal remuneration for work of equal or comparable value and by the absence of any specific legislative requirements for a male comparator group. Other reasons based on decisions in state industrial systems were also advanced.
[232] In our view this issue should not be seen simply as one of statutory construction. The question is whether and how gender-based undervaluation is to be established. The existence of a valid male comparator group which receives higher remuneration than a female dominated group performing work of equal or comparable value is one way of demonstrating the need for an equal remuneration order. We do not accept that as a matter of logic it is the only way. The presence of a male comparator group might make the applicants’ task easier and the absence of such a group make the task relatively more difficult, but it does not follow that in the absence of a male comparator group the application must inevitably fail. This issue has some significance in this case because the applicants have in fact not sought to directly establish the existence of a relevant male comparator group.
[233] The applicants also submitted that where a remedy is sought under Part 2-7 it is unnecessary to demonstrate that the rates in question were established on a discriminatory basis. It is not necessary to make a general finding on that submission, but the submission may involve a misapprehension about what the provisions require. The essence of a successful application is that the prevailing rates are discriminatory. Whether that discrimination is the result of a conscious act or course of conduct by a particular individual or individuals may be relevant in some cases—for example some cases involving a single employer. But we are dealing with a broad range of rates operating in a diverse industry spread throughout Australia. The idea that the great diversity of rates actually paid has been fixed in a consciously or unconsciously discriminatory way would be difficult to demonstrate and perhaps somewhat artificial. In the particular circumstances of this case, it seems unlikely that discrimination in that sense could play a significant role in deciding whether, for the employees concerned, there is not equal remuneration for work of equal or comparable value. On the other hand, where it can be shown that rates have been fixed on a discriminatory basis, that will be a clear indication of gender-based undervaluation. A case in which no predominantly male comparator group is relied upon can only succeed if the applicant establishes that the remuneration paid is subject to gender-based undervaluation.
[234] Our conclusions on the last two issues discussed: that a male comparator group is not required and that it is not necessary to establish that rates have been established on a discriminatory basis, receive some reinforcement from the following passages in the Explanatory Memorandum for the Act:
“1191. The principle of equal remuneration for men and women workers for work of equal or comparable value requires there to be (at a minimum) equal remuneration for men and women workers for the same work carried out in the same conditions. However, the principle is intentionally broader than this, and also requires equal remuneration for work of comparable value. This allows comparisons to be carried out between different but comparable work for the purposes of this Part. Evaluating comparable worth (for instance between the work of an executive administrative assistant and a research officer) relies on job and skill evaluation techniques.
1192. The Bill also removes the current requirement for the applicant to demonstrate (as a threshold issue) that there has been some kind of discrimination involved in the setting of remuneration. Instead, an applicant must only demonstrate that there is not equal remuneration for work of equal or comparable value.”
[235] We have set out in an earlier part of this decision extracts from the Commonwealth’s submissions containing useful information about the history and development of the SACS industry and some of its important characteristics. It is also useful to adopt part of the summary contained in the applicants’ submissions. They identified the following sectors:
• Disability services
• Youth and children’s services
• Community centres
• Women’s services
• Family support services
• Community legal centres
• Home and community care services
• Drug and alcohol services
• Community housing services
• Specialist health services
• Peak organisations
• Indigenous services
• Tenancy services, and
• Mental health services.
[236] As the applicants noted, a number of these sectors can be broken down into further distinct areas. Disability services include such services as residential accommodation (either permanent or respite), day services, home-based services and case management. Youth and children’s services include activities in disadvantaged areas, out of home care, supported accommodation and community social housing, domestic violence counselling and support, resilience building programs in schools and health services. Women’s services include health and legal services, sexual assault counselling, support for women escaping domestic violence including accommodation, and support for women transitioning from prison. Despite the diversity of services, there is significant interaction between the sectors in the industry as well as between the sectors and state and local government bodies delivering similar or complementary services.
[237] The applicants’ final written submissions stated:
“108. It was also apparent that all services were united in delivering services to clients who are affected by some form of disadvantage, from those suffering chronic health, financial or other problems that inhibit their opportunities to participate in what would be considered a normal lifestyle – having a job, living in a house, having sufficient to eat, and being in functioning relationships with family and friends – to those experiencing acute crisis such as unexpected homelessness through domestic violence, or financial crisis due to losing a job.
109. In summary, the SACS industry is predominantly a service industry delivering service to the members of the community who, through chronic or acute issues are marginalised or in crisis.”
[238] It is important that we record a finding that workers in the SACS industry are predominantly female. It is unnecessary to be precise about the proportion. Apart from the material referred to in the passage from the Commonwealth’s submission, it is sufficient to refer to the following data given by Professor Meagher: 88.1 per cent of those recording a primary job in a “caring” occupation in a community service industry were female in 2006, compared with 46.1 per cent in the workforce overall. In the SACS industry specifically, 80 per cent of those recording a primary job in a “caring” occupation were female. It was contended that a very high proportion of roles in the SACs industry are “caring” ones. We agree. The applicants’ submission that the workforce in the SACS industry is predominantly female is correct.
[239] The applicants’ contend that employees in the SACS industry are low paid. We accept that pay in the SACS industry is low by comparison with pay generally. Data supplied by the Commonwealth indicate that although more than 50 per cent of employees in the industry are covered by collective agreements, compared with the average for all industries of 43 per cent, pay levels for non-managerial employees are below average. A higher proportion of SACS workers are covered by award rates—30.9 per cent compared with the all-industries average of 18.1 per cent. It appears that collective bargaining has had a limited effect on rates of pay and that overaward payments are not of great significance. It is likely that a large proportion of employees are paid at or quite near the relevant award rate. Comparisons were also made with the pay of employees doing work claimed to be of equal or comparable value employed in state and local government.
[240] In dealing with the applicants’ submission, it is necessary to have regard to material produced by AFEI and added to by the applicants. That material indicates that in relation to common classifications in the industry, wage rates are significantly higher for equivalent classifications in state and local government employment. Of course the claim is, for the most part, based on the rates applying to certain employees in the state of Queensland as a result of the Queensland Equal Remuneration decision. That decision adopted, with some qualifications, the rates applying to what was found to be comparable work in state and local government employment in Queensland. The equivalent rates in state and local government in other states vary significantly. Although the rates under the relevant state and federal instruments in the SACS industry are lower in general terms, the differences vary from state to state.
[241] A number of employer interests argued that the applicants have not established that the work performed in the SACS industry covered by the modern award is comparable with work performed in state and local government under various awards and agreements in evidence. It was submitted that the material concerning the nature of jobs and the work performed by employees in the SACS industry on the one hand and state and local government employment on the other was not sufficient to make the case.
[242] In one sense these submissions are correct. Although there is a great deal of material on the requirements of particular jobs in the SACS industry and in state and local government employment, there has not been an item by item comparison of job requirements for all of the many classifications covered by the industrial instruments concerned. The case has been put at a more generalised level and is concerned with comparing the nature of the work in the SACS industry and the programs and services it delivers, with the work of employees delivering similar programs and services in state and local government. We have no doubt that at that level the value of the work is, generally speaking, comparable. The lack of detailed evidence is not fatal to the applicants’ case. As we have noted the applicants need only to establish that remuneration in the industry results from gender-based undervaluation.
[243] One other employer submission should be mentioned in this context. It concerns the question of salary packaging or salary sacrifice. Salary packaging is one of many terms used to describe the arrangements legitimately available to employees to increase after-tax income. The means by which this can be done are dealt with in our summary of the evidence of Mr Matthews and need not be repeated here.112 Many parties argued that because of the availability of this form of tax relief it should be taken into account in assessing the remuneration of employees in the industry. The Commonwealth submitted, relying on data from the Australian Taxation Office, that in the 2008–09 financial year, approximately one-third of the employees in the SACS industry took advantage of salary packaging arrangements. This compares with a rate of 13.2 per cent in the workforce generally. It is clear that salary packaging is a significant contributor to income for many employees in the SACS industry, but there are good reasons why it should not be taken into account in deciding whether undervaluation exists.
[244] The option to enter into salary packaging arrangements and the potential benefits are not consistent across the industry. Accepting the Commonwealth’s submissions, two-thirds of employees in this industry derive no benefit whatsoever from salary packaging. It is also apparent that even among the one-third of employees likely to take advantage of salary packaging, the benefits vary depending upon the tax status of the employer, the wage level and the employee’s household situation. The suggestion that tax considerations be taken into account in calculating equality of remuneration poses a number of difficulties. At the general level, tax policy is clearly a matter beyond the control of the tribunal being a matter for government and the Parliament. Fixing remuneration on the basis of the tax regime prevailing at a particular time involves some uncertainty. While the submissions rely in part on the fact that salary packaging is more prevalent in the SACS industry than in state and local government employment, we do not think it would be appropriate to regard the possible benefits of salary packaging as equivalent to remuneration.
[245] The applicants submitted that the work of employees in the SACS industry is undervalued and that the undervaluation is based on gender. They conceded that undervaluation can occur for reasons other than the fact that the workforce is predominantly female. In examining the question of undervaluation, the applicants relied heavily on the indicia approach formulated by the IRCNSW in the NSW Pay Equity Inquiry report. The Inquiry found that in six industries and occupations there was gender-based undervaluation of the work. The report identifies some of the common characteristics of the industries and occupations which the IRCNSW considered could indicate undervaluation in a particular industry. The relevant passage reads:
“On the basis of the selected industries and occupations, it would seem that a profile which, prima facie, could indicate the possibility, or even the probability, of an undervaluation of work based on gender, would include the following elements:
• female dominated;
• female characterisation of work;
• often no work value exercise conducted by the Commission;
• inadequate application of equal pay principles;
• weak union;
• few union members;
• consent award/agreements, and
• large component of casual workers;
• lack of, or inadequate recognition of, qualifications (including misalignment of qualifications);
• deprivation of access to training or career paths;
• small workplaces;
• new industry or occupation;
• service industry;
• home based occupations.”113
[246] The applicants set out to demonstrate that each of these indicia was present in this case and that accordingly we could be satisfied that there is gender-based undervaluation in the SACS industry. We have summarised the submissions earlier.
[247] Opinion was divided on the utility of the indicia approach and on whether the specific indicia are met in this case. AFEI, for example, submitted that the indicia approach should not be adopted and challenged its application in this case. It questioned the characterisation of work in the industry as “feminised”. It submitted that the level of union membership in the SACS industry is probably about the same as the average of the workforce overall. It also submitted that enterprise bargaining is common, with 50 per cent of SACS industry employees covered by enterprise agreements, and that recent bargaining has resulted in average annualised wage increases of 3.7 per cent. It submitted that the prevalence of consent awards in the SACS industry is a neutral factor and not indicative of gender-based undervaluation. It also refuted the applicants’ submissions concerning the other indicia on the basis that the indicium in question was not a valid indicator of gender-based discrimination in any event.
[248] In our view the manner in which the applicants seek to apply the indicia approach has a number of limitations. Many if not most of the indicia may in themselves be gender neutral. While the indicia may be indicative of gender-based undervaluation of work in some circumstances, they may also be observed in workplaces, sectors or industries which are mainly male or in which neither gender predominates. Many workers employed by a small employer are not union members and have low bargaining power. This may be so whether the workforce is predominantly female, predominantly male or neither. The applicants’ approach may therefore tend to conceal some of the real causes of undervaluation by imputing a gender bias where none exists.
[249] We do not think that the indicia approach was ever intended to be a prescriptive formula. That is apparent from the prefatory words in the relevant passage from the NSW Pay Equity Inquiry report. Even if all of the indicia are present it does not necessarily follow that gender-based undervaluation exists. Conversely, if none or only a minority of the indicia are present in a particular occupation or industry it does not necessarily follow that there is no gender-based undervaluation. The list of indicia is no more than a framework for considering whether there is undervaluation.
[250] There are two other matters arising out of the NSW Pay Equity Inquiry report which are relevant to the indicia approach. First, that the approach was developed in the context of the first term of reference for the Inquiry. That term of reference required the IRCNSW to inquire into and report on “whether work in female dominated occupations and industries is undervalued in terms of remuneration paid relative to work in comparable male dominated occupations and industries”.114 The context for the discussion of the indicia may be important. In this case, it appears that the comparisons relied upon by the applicants are from areas of employment which are likely to be predominantly female, and certainly not predominantly male.
[251] Secondly, the Inquiry report emphasises that care needs to be taken in considering whether undervaluation is truly gender-based. The following paragraph, which immediately follows the list of indicia, illuminates the point:
“Originally in the Inquiry there was perhaps the expectation that merely looking at issues globally, such as qualifications, competencies and the like, would be sufficient to properly address the issues raised by Term 1. However, what the Inquiry has shown is that, in the actual assessment of an industry or occupation, the history of the area and of its award regulation is vital to discovering if inequities are truly suffered by employees, and whether any such inequities, if found to exist, are gender based or otherwise. There may well be a combination of factors acting to create undervaluation, and hence, care needs to be taken to avoid simplistic and single dimension approaches to ascertaining whether any undervaluation exists and what remedies, if any, are required.”115
[252] The final sentence of the passage recognises that undervaluation can be the result of a range of factors, not only gender, and that the identification of the gender-based element is critical to the development of an equal remuneration remedy. Assessments of the gender element of pay differentials made in other jurisdictions in Australia and overseas are consistent with this approach.116 Against this background it is appropriate to make comment on some of the indicia in light of the evidence in this case.
[253] We have already recorded our view that the workforce is predominantly female. We deal next with the female characterisation of work. There is much to be said for the view that work in the industry bears a female characterisation. In our view the applicants have established the following propositions:
(a) much of the work in the industry is “caring” work
(b) the characterisation of work as caring work can disguise the level of skill and experience required and contribute, in a general sense, to a devaluing of the work
(c) the evidence of workers, managers and union officials suggests that the work, in the SACS industry, again in a general sense, is undervalued to some extent, and
(d) because caring work in this context has a female characterisation, to the extent that work in the industry is undervalued because it is caring work, the undervaluation is gender-based.
[254] These conclusions are consistent with the evidence of academics and others in this case and with similar conclusions in the Queensland Equal Remuneration decision.
[255] The applicants also submitted that in the SACS industry there has been no proper work value exercise, inadequate application of equal pay principles and a prevalence of consent awards and agreements. We do not accept the contention that the application of job evaluation principles, at least in the federal system, has led to a devaluation of caring work in minimum rates awards. The applicants have failed to demonstrate that this is the case. We note that the contention is based in part on decisions of state tribunals, including the NSW Pay Equity Inquiry report. As we point out later, because of substantial differences between the federal and state approaches to award wage fixation, these decisions have no direct application in the federal system. We do not regard the prevalence of consent awards and agreements as indicative, at least in the federal system, of gender-based undervaluation. Given the encouragement provided by legislative policy to consent arrangements and their prevalence in the workplace relations system, there is no reason, nor is there any firm basis in the evidence, to conclude that such arrangements are more likely than not to indicate gender-based undervaluation.
[256] The applicants next contended that there is a weak union presence in the industry with membership likely to be less than 20 per cent. As pointed out by AFEI, it is equally likely that union membership is not far off the workforce average. It nevertheless seems legitimate to conclude that the fact that the workforce is predominantly female could have a bearing on its preparedness to “organise” in the traditional sense and could be a reason why wages are not higher. It is not possible to draw any firm conclusion in that respect.
[257] The applicants expanded the concept of casual employment, another of the indicia identified by the NSW Pay Equity Inquiry report, to include such things as part-time employment, fixed term and temporary employment, and unpaid work, including overtime. It was also submitted that these characteristics of employment are common and the result of the funding arrangements in the industry. While employment which has the features identified by the applicants may reduce employee bargaining power, perhaps even remove it, it is not clear that any impact on the level of wages is entirely gender-based.
[258] All of the other indicia in the list are controversial. Whether they are characteristics of the SACS industry or not their significance in terms of gender is debatable.
[259] In considering whether an equal remuneration order should be made it is necessary to evaluate the two principal propositions on which the applicants’ case rests. The first proposition is that the wages and some other conditions in the modern award are inferior and that the order sought would rectify problems with the award structure and rates and the sleepover provisions. The second proposition is that the rates resulting from the Queensland Equal Remuneration decision should be adopted because work in the SACS industry is the same throughout Australia and accordingly the Queensland rates, being properly fixed, are appropriate throughout Australia. Before dealing with those propositions some general remarks are necessary.
[260] Since the early 1990s wage fixation in the federal jurisdiction has been based on two dominant ideas. The first is the creation and maintenance of a safety net of minimum wages fixed by award. The second is a system of above-award bargaining, primarily at the enterprise level. Both elements of the system are important and there are fundamental differences between them. Generally speaking minimum rates in one award are not varied, other than in general wage reviews, except on grounds of relative work value. While historically there were many federal awards containing paid rates, during the last decade of the last century these awards were converted to minimum rates awards in an attempt to provide a stable and consistent award safety net. In the federal system paid rates, to the extent they are the subject of regulation, now appear only in agreements. This approach to wage fixation, which has been developed over many years and has statutory recognition, contributes to the maintenance of stability in award relativities. It involves a strict separation between minimum wages and paid or market rates. While increases in non-award earnings may be relevant when the Minimum Wage Panel is reviewing minimum award wages as a whole, market or paid rates have not been used as a basis to adjust minimum wages in particular awards for many years. The distinction between minimum award wages and wages in other instruments, such as enterprise awards and agreements, which has long been observed in the federal system, has not been a feature of wage-fixation in all states. The Queensland Equal Remuneration decision illustrates that. Rates which had been reached by consent in the state and local government sectors of employment were used as the basis for the fixation of the new Queensland SACS industry award rates. We turn now to the two propositions.
[261] We deal first with the applicants’ submission that the minimum wages in the modern award do not properly reflect the value of the work. Given the basis on which minimum rates are fixed, it is not possible to demonstrate that modern award wages are too low in work value terms by pointing to higher rates in enterprise agreements, or in awards which clearly do not prescribe minimum rates. In order to succeed in their submission it would be necessary for the applicants to deal with work value and relativity issues relating to the classification structure in the modern award and potentially to structures and rates in other modern awards. No real attempt has been made to deal with those important issues.
[262] We next deal with a submission made by the Commonwealth concerning the modern award rates. The submission deals with the fixation of rates in the modern award, in particular the rates for graduates, and traces the relevant award history.117 The submission suggests that the graduate rates may not have been properly translated from predecessor awards when the classification structure in the modern award was finalised by the Full Bench of the AIRC in late 2009. In the Commonwealth’s submission, the potential loss of relativity for graduates is between 2.3–2.7 per cent. In our view this matter requires further investigation. If an error occurred in the fixation of the rates and relativities in the modern award, or if the existing relativities were departed from for no good reason, the situation should be rectified. We return to this question later.
[263] We deal now with the proposition that we should adopt the rates resulting from the Queensland Equal Remuneration decision. The applicants submitted that, in general, the rates awarded by the QIRC in its Queensland Equal Remuneration decision constitute the relevant benchmark. They submitted that those rates reflect a proper valuation of the work performed in the SACS industry and should be adopted. There are a number of features of the decision to which attention should be drawn. The first important feature is that the decision was made on the basis of agreed facts. The agreed facts, as summarised in the decision, were:
“• Undervaluation exists;
• Community sector work is care work;
• Government funding models contribute to undervaluation of the work;
• Industry features have influenced undervaluation;
• Changes in the value of the work have not been recognised in award rates; and
• Undervaluation raises public interest concerns.”118
[264] It is important to note that the employers and other parties had agreed that undervaluation existed. In this case while some parties, including the Commonwealth agree that the award rates are undervalued to some extent, others disagree. It is also important to note that the agreed statement specifically dealt with the influence of funding models on wage rates.
[265] It is also significant that the case was conducted under several provisions of the Qld IR Act, not only the equal remuneration provisions and two of the wage fixing principles developed by the QIRC—one of which related to equal remuneration and one of which related to work value changes generally.119 On our reading, the decision to award significant wage increases was not based solely on equal remuneration considerations.120 To the extent that gender was a factor, it is unclear what component or proportion was attributable to it. It is clear enough, however, that the 1 per cent annual equal remuneration component was not intended to deal exclusively with gender-based undervaluation. As appears from the reasons for decision, the purpose of the equal remuneration component instalments was to keep the rates which had been fixed current.121
[266] The applicants sought to specifically rely upon some of the QIRC’s findings in relation to work value. They submitted that the value of the work in the industry has increased as the result of the increased reporting requirements of funding agencies, new legislative requirements, increases in the skills knowledge and qualifications required and the increased complexity of service delivery and case management. In summary they submitted that the changes in work value identified in the Queensland Equal Remuneration decision as having occurred in Queensland have occurred in the rest of Australia. We observe that although work value change is not irrelevant under Part 2-7, it is clear that the equal remuneration provisions are directed not at undervaluation itself, but at undervaluation which is gender-based.
[267] There is another potential difficulty. The decision adopted the rates paid pursuant to enterprise agreements and awards in state and local government employment in Queensland. To that extent the resulting rates reflect local factors. We were provided with material indicating that rates paid in state and local government employment in other states differ substantially in some cases as between each other and from those paid in Queensland. In making an order to apply uniformly on a national basis, it is necessary to have regard to a range of rates applying in the SACS industry throughout the country and not just those applying in Queensland.
[268] For these reasons it would not be appropriate to simply adopt the rates resulting from the Queensland Equal Remuneration decision, although the decision is clearly a very significant one.
[269] Before leaving the Queensland Equal Remuneration decision we should mention that the QIRC was dealing with an application for a new award in the state jurisdiction in which it was asked to find that the rates in the relevant federal award were inadequate. The QIRC so found. The federal award in question was one of the predecessor awards to the modern award. For reasons we have already explained, the QIRC’s finding, being based on considerations extraneous to the proper fixation of minimum rates in the federal system, cannot be relied on in relation to the correctness of the modern award rates.
[270] There is considerable evidence in this matter and widespread acceptance by the parties that a major reason for the actual wage rates in the SACS industry is the level of funding provided by governments. This situation appears to be similar across the industry, even in parts which are less female dominated than others such as community legal work. The applicants submitted that the level of funding has given rise to gender-based differences, because it is at such a level that employers generally only pay award wages and overaward payments are limited. The Commonwealth stated that it uses various mechanisms of funding such as contracts, grants, and fee-for-service. These funding mechanisms will not necessarily include or require a breakdown on cost of inputs, including salaries. The Commonwealth also contributes to state funding through SPP and NPP. Some of the funding arrangements are subject to indexation or some other growth factor. Some are ongoing. Some are fixed term. Most are linked to outputs rather than inputs. It appears that part of the rationale for the current level of funding can be explained by historical inertia and the operation of the market for government funding. Factors such as the high level of volunteer labour and competition for funding have also contributed to the current funding levels.
[271] We deal now with funding so far as it relates to the possible effects on the industry if the application is granted in whole or in part. Opponents of the claim and supporters alike all agreed that if remuneration is increased in the SACS industry as a result of these proceedings, employment levels and services will be affected unless the additional costs are fully met by government. It was also suggested that there is a significant part of the industry which is not dependent on government funding at the moment and the effect on employers in that part should also be taken into account. We were also told that a number of employers fund their operations through a combination of government funding and reserves, as well as income from philanthropy.
[272] We accept that there is widespread reliance on government funding and that because of the pervasive influence of funding models any significant increase in remuneration which is not met by increased funding would cause serious difficulties for employers, with potential negative effects on employment and service provision.122 We have summarised the applicants’ submissions on this issue earlier. The nub of those is that no government, federal, state or territory, has indicated that it will not fund any increase and that we should assume that funding will be available. Against this we note submissions by most governments that we should take into account the potential effect of any increase on government expenditure. We infer that there are limits to governments’ ability to fund increased labour costs in this industry without placing pressure on expenditure in other areas. We note that the information provided by governments concerning the cost of the claim is generally unsatisfactory, with only one government, New South Wales, even attempting to put a figure on the cost. In light of the dimensions of the claim and the potential consequences that is most unfortunate. Given the course we have decided to take we expect that more precise estimates of cost may become available.
[273] The applicants also submitted that apart from the statutory mandate to provide for equal remuneration for work of equal or comparable value, there are independent discretionary grounds to make an order in this case. Workers and their families are suffering the effects of low pay. Staff turnover is affected which in turn affects service delivery. The low wage rates are also a discouragement to female participation in the SACS industry as employees leave to take better paid jobs in state and local government. It was submitted that we should act to remedy the situation.
[274] As we have indicated, the power to make an order under s.302 is a discretionary one. Considerations of the kind advanced by the applicants are important. Of course there are also other relevant considerations. A range of other matters were raised and we mention just some of them. The potential negative effects of an order on employment and services if the cost is not fully funded by government, the impact on the award rates, the fact that an order may discourage enterprise bargaining and deprive employers of the productivity benefits associated with such bargaining and the effect of our decision in other areas of employment. Some of the matters raised by the applicants support the desirability of making an order if the necessary grounds are established, and must be considered along with all other relevant matters.
[275] One other discretionary consideration should be mentioned, although it goes to the nature of any order rather than to the question of whether we should make an order at all. ABI submitted that there is a potential for an equal remuneration order to be negated through enterprise bargaining because it would not be required to be included in the application of the better off overall test. It was suggested that the situation could only be remedied by including the order in the award. This is a matter of potential significance in the formulation of any order we decide to make.
[276] We have found that employees in the SACS industry are predominantly women and are generally remunerated at a level below that of employees of state and local governments who perform similar work. There does not seem to be any doubt that as a general proposition employees are paid at or just above the relevant award rate, even where enterprise agreements apply. The discretionary nature of the remedy and the requirement to make an order only where there is not equal remuneration for men and women workers for equal or comparable value requires a consideration of the reasons for these differences and, where there may be a number of reasons, an assessment of the extent of contributing factors.
[277] The application seeks an order in relation to an entire industry, which is made up of numerous different sectors and thousands of predominantly small employers. This is not a case where the applicant submits that there is undervaluation of women workers compared to men within the enterprises under consideration. Nor is it a case where the applicant has sought to challenge the award rates of pay compared to award rates for any comparator group. The comparisons are between the actual remuneration of employees in the SACS industry and the actual remuneration of certain public sector employees, accepting as we do that the wage rates in the Queensland SACS award and the transitional pay equity order have their origin in state and local government awards and agreements. Differences in rates of remuneration between any one enterprise and another are to be expected. Indeed there are significant differences within the SACS industry itself. The reasons for differences between enterprises will be many and varied and are the result of the peculiar circumstances of each enterprise. In the public sector they may include considerations of relativities within the public sector, issues of restructuring and productivity, attraction and retention issues, cost of living factors, industrial negotiations, bargaining, informal dispute settlements, arbitrations, historical fixations for paid rates awards and the general disposition of various governments. It goes almost without saying that it is also difficult to identify the quid pro quo for a particular wage rate in a particular agreement.
[278] If consideration were only given to the position of the direct employers in the SACS industry and the reasons they pay their employees as they do, it would be hard to ascribe any gender based reasons for salaries paid. The employers clearly value the work of their employees and would like to attract and retain the best employees possible and reward them on a fair basis given the work they perform and wages paid in the community. There is no evidence of a preference for one gender over another. Employers in the SACS industry heavily rely on volunteer labour, they compete for government funding and donations and generally attempt to respond to community needs within the limits of their capability.
[279] It is also important that the employees chosen by the applicants as notional comparators are themselves likely to be mainly women. The applicants have not sought to establish unequal remuneration for men and women workers by a comparison between employees covered by the claim and a group of employees of a different gender. The fact that there are differences in general rates of remuneration between one workforce made up predominantly of women and another workforce made up predominantly of women may suggest that factors other than gender have contributed to the differences. We note the submission, however, that female workers in state and local government may have benefited from being part of a much larger negotiating bloc which is not predominantly female, and which has more bargaining power than some of its predominantly female constituent groups.
[280] We think it is significant that the type of employment involved in the SACS industry is mainly professional or semi-professional. A high proportion of employees in the industry have qualifications of one type or another. Although comparisons can be made at key points for the purposes of minimum award wages, comparisons between the actual work of professional employees with different levels of skills and responsibilities performing different types of work at different levels of performance is notoriously difficult. Even within one establishment there may be entirely justified reasons for remunerating professional employees differently. When comparisons are sought to be made outside an employing entity, it can hardly be assumed that actual rates of pay should or could be similar or the same. Beyond the industry the comparisons are even more tenuous.
[281] But regardless of the reasons, the fact remains that there is a large gap in many cases between the rates paid in the SACS industry and those paid in state and local government. To the extent that the gap is gender-based we should take action to correct it if we can. This requires an examination of the causes or probable causes of the differences in rates. In that inquiry it is apparent that many factors are related and it is not possible to separate various factors entirely from each other. To illustrate this point, it may be possible to say that wages are low because the employees have low bargaining power. But that statement prompts the further question of why bargaining power is low. Gender factors, particularly the “feminised” nature of work in the industry and the fact that it is carried out mainly by females, are a contributor to low bargaining power. The same may be said of the dominant influence which funding arrangements have in restraining wages growth in the industry. The same gender factors may play some part in influencing, and limiting, the workforce’s response to restraints imposed through funding models.
[282] The principal parties to the proceedings have all acknowledged, either directly or by implication, that the differences between wages in the SACS industry and those paid to employees in state and local government for comparable work are based on a number of factors. And some parties which agree with the applicants that wages in the SACS industry are affected by gender-based undervaluation have submitted that we should discount for other factors such as attraction and retention, funding constraints and so on. We agree that it would be wrong to conclude that the gap between pay in the sector with which we are concerned and pay in state and local government employment is attributable entirely to gender, but we are in no doubt that gender has an important influence. In order to give effect to the equal remuneration provisions in these complex circumstances, we consider that the proper approach is to attempt to identify the extent to which gender has inhibited wages growth in the SACS industry and to mould a remedy which addresses that situation. We have reached some conclusions about how that might be done, but it would not be appropriate to finally decide the application without giving parties an opportunity to make further submissions in light of this decision.
[283] In our view the applicants have not made out a case for adoption of a classification structure in the equal remuneration order different from that in the modern award. It would be undesirable to have parallel but different classification structures, one in the award and the other in an equal remuneration order. It is preferable that if there are to be alterations in the classification structure they should be reflected in the award itself rather than in a separate equal remuneration order. Also, there is no single classification structure which could be adopted, as there are many differences between the classification structures in the awards and agreements with which comparisons could be made. In the circumstances we do not think that the achievement of equal remuneration for work of equal or comparable value will be compromised if classification structures are dealt with at the award level rather than in an equal remuneration order.
[284] It may be that some amendment to the modern award is required having regard to the Commonwealth’s submissions concerning graduate rates. That submission has the potential to affect the basis for all of the rates in the modern award. We would be interested to know the views of the parties to these proceedings on the issue. If we were persuaded that the rates should be altered in some way as a result of the matters raised by the Commonwealth, we have the power to do so pursuant to s.157 of the Act, subject of course to the requirements of that section. It seems to us that if, after considering the parties’ submissions, we decided it was appropriate to vary the modern award we could do so as part of these proceedings.
[285] We record our view, reached on the material before us, that for employees in the SACS industry there is not equal remuneration for men and women workers for work of equal or comparable value by comparison with state and local government employment. Turning now to the nature of the remedy, our preliminary view is that any equal remuneration order we make should take the form of an addition to rates in the modern award. The addition could take the form of a specific monetary amount or amounts or a percentage. A percentage would recognise, and preserve, award relativities and also result in ongoing adjustment whenever the award rates are altered, thus avoiding the need to review the amount.
[286] We invite further submissions from the parties on the extent to which wages in the SACS industry are lower than they would otherwise be because of gender considerations. Submissions should also address how the amount should be calculated and what it should be. As we have noted previously, a number of parties indicated that work is undervalued but that not all of the undervaluation is gender related. We would be assisted by some concrete estimates from those parties and from others. In this context, we point out again that the wage comparisons advanced so far have not involved a male comparator group.
[287] Other questions will arise concerning the way in which any order interacts with the provisions of the modern award, including the phasing schedule. As indicated earlier, the wage rates provided for in the modern award have not yet commenced operation. But because those rates will have application throughout Australia at the end of the transitional period they provide the base from which to measure any changes in wages resulting from the application. It should be pointed out, however, that in calculating the effect of any increase in a particular state or territory, account must be taken of the wages payable under the transitional provisions. Depending upon the instrument which applied before the modern award came into operation, the current wage levels may be higher or lower than those in the modern award. It follows that any increases flowing from this application will vary in magnitude depending upon the award wages applying at the time, taking into account any overaward payments. There is also the desirability that any order would provide for phasing-in. The potential for complexity in implementation is obvious. It is desirable that parties make further submissions about that issue.
[288] While we have formed the provisional view that any order must be a separate instrument operating independently of the award, although making an addition to it, we would also welcome submissions on whether the amount could or should be included in the award itself.
[289] We do not at this stage think it is desirable to issue a formal statement of principles in this case. To do so on the basis of one case only would be premature and run the risk of limiting the discretion available under Part 2-7. This decision, together with any other decision we make in these proceedings, will constitute a significant precedent in any event.
[290] It is desirable to clarify the position in relation to the remaining claims in the application. Those claims concern sleepover provisions, enhanced progression for employees with tertiary qualifications and reclassification of lower level disability support workers. We have already decided not to alter the modern award classification structure as part of an equal remuneration order. It follows that we reject the claims for enhanced progression for tertiary qualified employees and the alterations sought for lower level disability support workers. We also reject the sleepover provisions claim. It would be undesirable to have working hours regulated through separate instruments and it is preferable that any alterations in sleepover arrangements be reflected in the award itself. In addition to the reasons given earlier, we point out that the remainder of these proceedings provide an opportunity to address the question of equal remuneration more directly than do the additional claims to which we refer in this paragraph. It is appropriate to also make it clear that our decision does not limit any rights the applicants have to seek award variations under other statutory provisions.
[291] In this decision we have concluded that for employees in the SACS industry there is not equal remuneration for men and women workers for work of equal or comparable value by comparison with workers in state and local government employment. We consider gender has been important in creating the gap between pay in the SACS industry and pay in comparable state and local government employment. And, in order to give effect to the equal remuneration provisions, the proper approach is to attempt to identify the extent to which gender has inhibited wages growth in the SACS industry and to mould a remedy which addresses that situation. We have reached some preliminary views about how that might be done, recognising that simply adopting the pay rates resulting from the Queensland Equal Remuneration decision is not appropriate. It is desirable, however, that we give the parties the opportunity to make further submissions on the matters.
[292] The matters on which we would be particularly interested to know the views of the parties are as follows:
[293] We require the applicant unions to file any further written submissions they wish to make by 10 June 2011, the Commonwealth is to file its further written submissions by 30 June 2011 and other interested parties are to file their further written submissions by 21 July 2011.
[294] The applications will be listed for further hearing before the Full Bench at 10.00 am on 8, 9 and 10 August 2011 in Melbourne, with video links to other capital cities to be made available on a party’s early request.
[295] In the meantime we encourage the parties to hold discussions about the matters addressed in this decision with a view to reaching agreement on the matters or, at least, narrowing the area of disagreement. Fair Work Australia will make a member available to assist those discussions should the parties deem that desirable.
PRESIDENT
Appearances:
P Lowson of counsel, T Slevin of counsel and M Irving of counsel with K Harvey and J Wright for the Australian Municipal, Clerical and Services Union and others.
H Borenstein SC with M Harding of counsel for the Australian Government.
R Doyle SC with S Moore of counsel and K Bugeja for the Minister for Industrial Relations for the State of Victoria.
K Eastman of counsel and L Doust of counsel with G Boyd for the Minister for Finance and Services for New South Wales (formerly appearing for the New South Wales Minister for Industrial Relations).
W Ussher with B O’Brien and L Booth for the Queensland Attorney-General and Minister for Industrial Relations.
R Warren of counsel with G Brack, D Makins, T Doyle and G Allen for the Australian Federation of Employers and Industries.
S Smith with M Mead for the Australian Industry Group.
J Fetter with E Thornton for the Australian Council of Trade Unions.
B Briggs for Australian Business Industrial.
M Pegg for Jobs Australia.
D Gregory with D Mammone for the Australian Chamber of Commerce and Industry.
C Howell of counsel with M Lindley and B Ackers for the Australian Human Rights Commission.
B Lawrence with A Matreve and M Cusack for the Catholic Commission for Employment Relations and Catholic Social Services Australia.
C Smith for the Australian Council of Social Service.
R Davidson for Mission Australia.
S Hammond for the National Pay Equity Coalition and the Women’s Electoral Lobby.
G Muir for the Queensland Community Services Employers Association Incorporated.
L Maloney for the Australian Childcare Centres Association and the Australian Community Services Employers Association.
D Grozier for Australian Business Industrial and National Disability Services.
S Bibby with J Lawton on behalf of Community Employers of Western Australia.
D Jones with C Harris for the Chamber of Commerce and Industry Western Australia.
D Proietto for Open Families Australia Incorporated.
Hearing details:
2010.
Before the Full Bench
Melbourne–Brisbane–Sydney (by video link):
April 22.
Melbourne–Brisbane–Perth–Sydney (by video link):
August 13.
Melbourne:
September 6.
Before Giudice J
Melbourne–Perth–Sydney (by video link):
September 24.
Before the Full Bench
Melbourne–Sydney (by video link):
December 20.
2011.
Before the Full Bench
Sydney:
January 31.
February 1–3.
Melbourne:
February 8, 10–11.
Before Giudice J
Melbourne–Sydney (by video link):
February 25.
Before the Full Bench
Melbourne–Sydney (by video link):
April 11–12.
Site visit details:
2010.
Before the Full Bench
Melbourne:
September 6–8.
Ballarat:
September 9.
Adelaide:
September 10.
Brisbane:
September 13.
Sydney:
September 14–16.
2011.
Before the Full Bench
Sydney:
January 24–25.
Melbourne:
January 27–28.
2 Award Modernisation Stage 4 decision, [2009] AIRCFB 945 at paras 79 and 80, 4 December 2009.
3 PR508395 [MA000100], 12 April 2011.
4 Award code 1424, IRCNSW [now known as the Crown Employees Ageing, Disability and Home Care – Department of Human Services NSW (Community Living Award) 2010].
5 AW796896.
6 Award code 783, IRCNSW.
7 The operation of transitional pay equity orders is governed by the terms of the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act); see in particular item 30A of Schedule 3A.
8 There was also a Division 2B State award based on a pay equity order made by the Industrial Relations Commission of New South Wales. While this may have resulted in a transitional pay equity order on 1 January 2011, it seems to be common ground that the wages in any such order would be lower than those in the modern award.
9 Re Queensland Community Services and Crisis Assistance Award – State 2008, [2009] QIRComm 33; (2009) 191 QGIG 19.
10 Exhibit ASU 92.
11 Re Equal Remuneration Principle, (2000) 97 IR 177; [2000] NSWIRComm 113.
12 Re Equal Remuneration and Other Conditions Principle, (2000) 97 IR 177; [2000] NSW IRComm 113.
13 T8413 and T8483 of 1999.
14 op. cit., Re Queensland Community Services and Crisis Assistance Award – State 2008.
15 AP808848.
16 AP777903.
17 See item 3 of Schedule 3A to the Transitional Act.
18 See item 30A of Schedule 3A to the Transitional Act.
19 See item 43 of Schedule 3 to the Transitional Act.
20 [2010] FWAFB 4000 at para 319.
21 ABS 6291.0.55.003, Labour Force, Australia, Detailed, Quarterly, Table 6 (Employed persons by industry subdivision and sex).
22 Australian Institute of Health and Welfare 2009, Health and Community Services Labour Force 2006, AIHW, Canberra, pp. 37–9.
23 ABS, 2006 Census of Population and Housing, Cat. No. 2068.0, custom table, Occupation unit groups by sex, Employed persons aged 15 years and over, ASCO 1996 classifications.
24 Exhibit ASU 1 at p. 20.
25 Exhibit ASU 92 at pp. 46–7.
26 Exhibit ASU 1 at p. 34.
27 AW772292.
28 Print M2731 [C0866].
29 AW774643.
30 AW777903.
31 AW796896.
32 AW796963.
33 Print M5778 [S0825].
34 AW796835CRN.
35 AW8796621CRA.
36 Award P072, Tasmanian Industrial Commission.
37 Print K9931 [D0104].
38 AW778716.
39 See items 46–54 of Schedule 5 to the Workplace Relations and Other Legislation Amendment Act 1996.
40 The Social and Community Services Sector in NSW; Structure, Workforce and Pay Equity Issues; Becoming an Industry: The Struggle of Social and Community Workers for Award Coverage 1976-2001.
41 Exhibit ASU 3.
42 Professor Austen provided separate reports on the following three matters: Women’s Employment & Wages (Exhibit ASU 10), Professor Cobb-Clark’s Witness Statement (Exhibit ASU 11) and Australian Government’s submission (Exhibit ASU 11) in these proceedings.
43 Exhibit ASU 10.
44 Exhibits ASU 92 and ASU 93.
45 Statement of Sally McManus, Exhibit ASU 34 at para 5.
46 Statement of Katrine Hildyard, Exhibit ASU 46 at para 2.
47 Statement of Chris Brown, Exhibit ASU 60 at paras 59–60.
48 New South Wales, N Cortis et al, Labour dynamics and the non-government community services workforce in NSW; Final Report for the Department of Premier and Cabinet and the NSW Department of Community Services (2009) at p. 15.
49 Statement of Lloyd Williams, Exhibit ASU 51 at paras 196–9.
50 Statement of David Kelly, Exhibit ASU 90 at para 8.
51 Statement of Sally McManus, Exhibit ASU 34 at para 13.
52 Statement of Ingrid Stitt, Exhibit ASU 88 at para 22; and Statement of Kevin Court, Exhibit ASU 27 at para 41.
53 Statement of Matthew Gardiner, Exhibit ASU 91 at para 13.
54 Statement of David Di Troia, Exhibit ASU 39 at para 15.
55 Statement of Patricia Branson, Exhibit ASU 48 at para 30.
56 Statement of Lisa Darmanin, Exhibit ASU 63 at paras 32–40.
57 ibid., at paras 47–50.
58 Statement of Lloyd Williams, Exhibit ASU 51 at para 127–30.
59 Statement of Chris Brown, Exhibit ASU 60 at para 81.
60 Statement of Kate Flanders, Exhibit ASU 28 at para 9.
61 Statement of Steve Turner, Exhibit ASU 23 at para17.
62 See, for example, Statement of Michelle Robertson, Exhibit ASU 12; Statement of Kim Cowper, Exhibit ASU 24 at paras 10–3; Statement of Lisa Darmanin, Exhibit ASU 63, Attachments H and L; and Statement of Mandy Coulson, Exhibit ASU 69.
63 Statement of Sean Kelly, Exhibit ASU 89 at paras 8–21.
64 Statement of Brian Henderson, Exhibit ASU 49 at paras 24–41.
65 Statement of Katrine Hildyard, Exhibit ASU 46 at para 15.
66 ibid., at paras 35–9.
67 Statement of Gayle Peak adopted by Peter Christopher, Exhibit ASU 68 at para 15.
68 Transcript at paras 4820–22, 11 February 2011.
69 Statement of Kim Cowper, Exhibit ASU 24 at para 15.
70 Statement of Lloyd Williams, Exhibit ASU 51 at paras 70–7.
71 Statement of Sally McManus, Exhibit ASU 34 at paras 146–9.
72 Statement of Susan Thomas, Exhibit ASU 47 at para 13.
73 ibid., at para 11.
74 Supplementary Statement of Lisa Darmanin, Exhibit ASU 64.
75 Supplementary Statement of David Smith, Exhibit ASU 19.
76 JD Baron and DA Cobb-Clark, Occupational Segregation and the Gender Wage Gap in Private and Public Sector Employment: A Distributional Analysis, The Economic Record, vol 68, No. 273, June 2010, pp. 227–46.
77 DA Cobb-Clark and M Tan, Noncognitive Skills, Occupational Attainment, and Relative Wages, IZA DP No. 4289, July 2009.
78 Ex parte H.V. McKay, (1907) 2 CAR 1.
79 The Rural Workers’ Union and The South Australian United Labourers’ Union v The Employers, (1912) 6 CAR 61.
80 Fair Work Australia, Review of Equal Remuneration Principles, Research Report 5/2011, February 2011, at p. 4.
81 ibid.
82 (1950) 68 CAR 698.
83 (1967) 118 CAR 655.
84 ibid., at 660.
85 ibid.
86 (1969) 127 CAR 1142.
87 (1972) 147 CAR 172.
88 (1974) 157 CAR 293.
89 (1986) 13 IR 108.
90 (1998) 94 IR 129; Print P9210, 4 March 1998, Simmonds C.
91 ibid., at 159–62.
92 (1999) 97 IR 374.
93 ibid., at 380.
94 op. cit., Fair Work Australia, at p. 24.
95 Industrial Relations Commission of New South Wales, Pay Equity Inquiry - Reference by the Minister for Industrial Relations pursuant to section 146(1)(d) of the Industrial Relations Act 1996, Report to the Minister for Industrial Relations (1998).
96 Tasmanian Parliament, Department of Premier and Cabinet Annual Report 1999–2000, (2000), pp. 47–8.
97 Queensland Industrial Relations Commission, Worth Valuing: A Report of the Pay Equity Inquiry, Report to the Minister for Employment, Training and Industrial Relations (2001).
98 T Todd and J Eveline, Report on the Review of the Gender Pay Gap in Western Australia, Report to the Minister for Consumer and Employment Protection (2004).
99 Victorian Pay Equity Working Party, Advancing Pay Equity - their future depends on it, Report to the Minister for Industrial Relations (2005).
100 op. cit., Re Equal Remuneration Principle.
101 [1973] AR (NSW) 425.
102 op. cit., Re Equal Remuneration Principle.
103 Equal Remuneration Principle, (2002) 114 IR 305.
104 (2008) 188 QGIG 350.
105 Exhibit NSW 2 at para 46.
106 ibid., at para 48.
107 ibid., at para 49.
108 Ai Group, Final submission at para 6.
109 AFEI, Final submission at para 249.
110 Section 302(5) of the Fair Work Act 2009 (the Act).
111 Section 302(1) of the Act.
112 See also Australian Government, Outline of contentions at paras 5.49–5.55.
113 NSW Pay Equity Inquiry report, Volume 1 at pp. 46–7.
114 ibid., at p. 43.
115 ibid, at p. 47.
116 Gibson and Ors v Sheffield City Council, [2010] EWCA Civ 63, especially at para 20 and following.
117 Australian Government, Outline of contentions, 18 November 2010.
118 Queensland Equal Remuneration decision at para 1.3.
119 ibid., at para 1.1.
120 See, for example, ibid. at para 4.5.
121 Queensland Equal Remuneration decision at para 7.2.
122 See also AFEI Report relied upon in submission, R Bennett, A Report on the Funding and Sustainability of the Community Services Sector, at paras 67–8, filed 15 December 2010.
[1] W23 is employed in New South Wales on a part-time basis as a Family Worker at an undisclosed Family Centre that provides early childhood education, intervention and family support services. Her role involves running supported playgroups in different locations for families from diverse backgrounds including refugee families and families experiencing financial disadvantage and mental health issues. She states that, although now covered by the modern award, she is currently remunerated at Grade 3, Year 5 of the Social and Community Services Employees (State) Award (NSW SACS award).
[2] Her evidence is that her job is stressful as there is no downtime and she finds it difficult to complete her required tasks in only four days per week. She is also often exposed to distressing information revealed by clients and many of her clients suffer from depression. She sometimes takes work home but is generally able to take time off in lieu when this occurs. She enjoys working in the SACS industry but states that the low pay and the difficulties in accruing long service leave remain a concern for her and her family.
[3] W24 is employed in New South Wales in the role of Transitional Worker for Women at O24, a non-government organisation providing support services to persons affected by the criminal justice system including prisoners, ex-prisoners and their families and friends. Her duties include direct service work with clients, writing case notes and providing training to organisations, including government departments, and community workers. She states that, although now covered by the modern award, she is remunerated at Year 4, Grade 4 of the NSW SACS award.
[4] She regularly attends meetings in relation to her clients with government sector employees. She provides examples of government roles that she believes are very similar to her non-government role which are remunerated at higher rates than her current role. She has considered leaving the sector due to the low pay.
[5] W25 is employed in New South Wales in the position of Family Support Team Leader at the Riverwood Community Centre. Her duties include, but are not limited to, direct service provision to clients, translation and language services, advocacy roles, staff management and supervision and liaising with government workers and local community service providers. She states that she is remunerated at Grade 5, Year 2 of the NSW SACS award.
[6] She was recently offered a Child Protection position by the Department of Community Services which is remunerated at approximately $5000 above the rate at which she is currently paid. She sometimes takes work home and does not claim time off in lieu for this work. She is not planning to leave her current place of employment despite receiving what she perceives as low wages for the work that she does.
[7] W26 is employed in New South Wales as a Team Leader (Manager)/ Community Project Worker at the South Penrith Neighbourhood Centre Inc, a branch of Spyns Inc, a non-government organisation that provides community development and early intervention services in the Penrith local government area. Her duties include direct service work with clients, project work, supervising and supporting staff members, implementing strategic plan objectives, reporting on organisational performance and engaging in organisational development which at times involves writing funding submissions. She states that, although she is now covered by the modern award, she is currently remunerated at Grade 6, Pay Point 2, of the NSW SACS award. She also receives an above award payment due to her previous position as the General Manager of the Centre.
[8] Her evidence is that Spyns experiences significant difficulties in recruiting and retaining quality staff. She provides examples of existing staff who have been “cherry picked” by the government sector by offering significantly higher salaries. Her daughter also previously worked in the government sector and received higher levels of remuneration than her own position despite having less responsibility, less experience and fewer qualifications. She states that her organisation cannot compete with the remuneration, security and career opportunities offered by the government sector. Salary packaging is not available in her organisation. She has not considered leaving the sector due to her high levels of job satisfaction but is likely to retire within the next four years.
[9] W27 is employed in New South Wales on a full-time basis as an Administrative Coordinator at the Fairfield Migrant Resource Centre, a division of the Cabramatta Community Centre, a non-government organisation that provides settlement services to newly arrived refugees and migrants within the Fairfield local government area. She states that although now covered by the modern award, she is currently remunerated at Grade 5, Year 2 of the NSW SACS award. Her main duties include coordination of case management services, casework, development and maintenance of data collection and reporting systems, supervision of bilingual workers and regular review and evaluation of projects.
[10] She works alongside government employees and sometimes works in partnership with her public sector counterparts in providing services to shared clients. Her evidence is that comparable positions to her own in the government sector are remunerated at a rate of approximately $15 000 per annum above what she is currently earning. She is remunerated at the top pay point of the relevant award classification to her position and this means that she cannot progress beyond this pay point in her current role. She sometimes works beyond her contracted hours in her position and is not paid overtime but is generally able to take time off in lieu. Salary packaging is provided by her employer and she utilises this. She intends to remain in the industry.
[11] Ms Clay is the Chief Executive Officer of Southern Youth and Family Services (SYFS). She also holds a number of other positions including that of President of both the Australian Services Union, NSW and ACT (Services) Branch and the Australian Services Union of NSW.
[12] SYFS is a non-government organisation whose main focus is to provide care and support to vulnerable, disadvantaged and homeless young people or those who are at risk of disadvantage and homelessness. It also provides support to their families. The organisation operates in the Illawarra, Shoalhaven and Southern Tablelands areas of New South Wales. The support provided by SYFS includes supported accommodation, community social housing, counselling and mediation, as well as a range of programs aimed at improving the life situations of the client group. Details of the services which are offered are set out in the witness statement.
[13] SYFS employs 102 staff in a range of positions. Approximately two-thirds of employees are engaged on a full-time basis and one-third are casuals. There are three part-time employees.
[14] SYFS does not have an enterprise agreement but is able to provide some overaward conditions including 35 hour weeks for full-time staff, extra annual and study leave, higher superannuation contributions and additional pay increments.
[15] Ms Clay’s evidence is that over time the jobs of community services employees have become much more demanding and complex. They have greater responsibilities in relation to compliance with legislation and funding requirements. Employees also have greater administrative workloads. Many are required to have a detailed knowledge of the legal aspects of tendering and managing contracts.
[16] Ms Clay’s evidence is that SYFS has experienced recruitment and retention issues within the last three years as the result of an increase in public sector human services positions which offer much higher salaries and greater job security than SYFS in the same geographical area that SYFS services. She states that difficulties in recruiting and retaining experienced staff are now adversely impacting on the effectiveness and appropriateness of service delivery and that this has negative outcomes for clients.
[17] She states that SYFS employees are regularly required to work alongside employees in public and private sector jobs and that these staff feel undervalued with the knowledge that they are remunerated at a lower rate than their government sector counterparts. She believes that the sleepover provisions sought in the application provide more appropriate remuneration and conditions for workers than those that currently apply.
[18] Ms Dickson is the Director, Community Support Services and Business Improvement of Disability Services Australia (DSA). She is responsible for three operational branches and has responsibility for management of a re-current budget of 20 million dollars, over 250 direct support staff and an executive team of 32. She has held positions in the National Disability Services sector and is a member of various committees. DSA started providing New South Wales State funded specialist disability services in 1992. It now encompasses four Australian business enterprises, five regional offices, 14 day programs and 22 lifestyle support (supported accommodation) teams across New South Wales. DSA has over 900 employees including 650 supported employees.
[19] Ms Dickson estimates that DSA has a workforce requirement of over 300 employees who are covered by the application, but has up to 50 vacancies and is heavily reliant on for-profit employment agencies. DSA’s current Community Support Service workforce of 251 is comprised of 30 casuals, 159 part-time and 62 full-time workers. There are 179 females and 71 males.
[20] Ms Dickson’s statement sets out information about the services DSA provides and details concerning the work, qualifications, experience and pay of its employees. She emphasises particular characteristics of the work and refers to work stressors and tensions. She also provides information concerning staff training, funding, recruitment and retention considerations and occupational health and safety issues applying to the DSA workforce.
[21] Ms Willis is the Executive Officer of the NSW Rape Crisis Centre. The Centre is a non-profit community organisation which is funded by NSW Health. It employs professionally-qualified and experienced counsellors, each of whom is engaged on a permanent basis. The Centre holds an exemption under the NSW Anti-Discrimination Act and only employs female counsellors.
[22] The Centre provides a 24/7 telephone and online crisis counselling service to anyone who has been affected by sexual violence.
[23] Ms Willis states that the Centre has experienced a significant increase in demand over the last four years. This resulted in considerable financial difficulties. Additional state government funding has been provided to address some of these difficulties as well as to provide additional counselling services to adult survivors of childhood sexual assault and to offer an online therapeutic support group for young people who have experienced sexual violence.
[24] As from the end of September 2010 the Centre has been providing clinical services for a national online and 1800 counselling service throughout Australia. The Centre is also engaged in a number of projects including the Sex and Ethics component of the Commonwealth’s Respectful Relationships Program, the National Rugby League’s Playing by the Rules Program and the Vicarious Trauma Management Program.
[25] Ms Willis states that staff at the Centre are graded in accordance with the NSW SACS award from which most of their conditions of employment are derived. The actual salaries paid to employees are above the rates in that award. Details of the updated award rates and salaries paid are set out at Attachment C to Ms Willis’ supplementary statement. The attachment also contains rates paid for positions in the NSW public sector which were found to have equivalent job evaluation scores in a job evaluation exercise undertaken in November 2009.
[26] W6 is employed in Victoria as a caseworker in the Kildonian Uniting Care’s Strengthening Families Program, a non-government program that provides services to families experiencing social and economic hardship. Her duties include conducting home visits, making referrals to other services and providing information on relevant parenting methods and strategies. She states that, although now covered by the modern award, she is remunerated at the Level 2, Year 3 classification level of the Social and Community Services – Victoria – Award 2000 (Victorian SACS award).
[27] She works side by side with employees with identical roles in the government sector and is aware that they receive significantly higher rates of pay. She estimates that if she were to gain employment in the government sector in her current role, she would be paid between $15 000 and $20 000 more per year than her current level of remuneration. She also notes that there is no pay point progression beyond her current classification involving direct client work. She currently utilises salary packaging and can at times take time off in lieu. She is not planning to leave the non-government sector due to her belief that her clients can manage most of their issues with non-government agencies and with the support of the community.
[28] W8 is employed in Victoria on a full-time basis as a Social Policy Researcher at Good Shepherd Youth and Family Service, a non-government organisation that provides support services to women, families and young people who experience disadvantage, primarily in Melbourne and surrounding areas. Her duties involve designing and undertaking empirical research, managing research projects and budgets, implementing advocacy campaigns, analysing and writing policy material and providing responses to the media and stakeholders. Her evidence is that, although now covered by the modern award, she is remunerated at Social Worker Class 4 and pay point Year 2 of the Sisters of the Good Shepherd Agreement 2007.
[29] Her agency is not able to pay her above-award rates and so she has received an additional week of paid annual leave for the past two years. She is not able to progress to a higher pay point in her classification as she is already at the top pay point of the relevant scale. She utilises salary packaging provisions and she feels that this makes a tangible difference to her income.
[30] She frequently works alongside employees from other sectors including government. She is aware of a colleague in the government sector who is also employed as a policy researcher and has a starting level salary of approximately $13 000 above her own salary. She has considered leaving the sector to work as an academic due to the low pay but has no immediate plans to leave.
[31] W9 is employed in Victoria as a Manager at the AIDS Housing Action Group, a non-government organisation that provides services to people living with HIV who are homeless or at risk of homelessness. Her current responsibilities involve managing a state-wide housing service, supervising staff, managing budgets and reporting to the Committee of Management. She also provides direct services to a small caseload of clients. She states that although now covered by the modern award she is remunerated at Year 6, pay point Class 2B of the Victorian SACS award.
[32] She is aware of colleagues and friends who work in the government sector without her level of responsibility and are remunerated at or above her current level of remuneration. She states that without a significant improvement to her wages and conditions she will no longer consider remaining in the sector. She currently has plans to move to another industry within the next few years.
[33] W12 is employed in Victoria as a Team Leader of the Personal Helpers and Mentors Program (PHaMs) at Prahran Mission, a non-government organisation that provides support services to people experiencing mental illness or extreme social and economic disadvantage. She is responsible for supervising and managing staff members of the PHaMs team, administrative and reporting tasks and direct service provision. Her evidence is that, although now covered by the modern award, she is paid at the level of Social Worker Class 3, pay point 1 of the Prahran Mission Collective Agreement 2007.
[34] She estimates that she completes up to 10 hours of unpaid work a fortnight and is entitled to a maximum accrual of four hours which she rarely takes. She accesses salary packaging and finds it beneficial. She is aware that her colleagues in the government sector receive higher wages and better conditions than those at which she is currently remunerated. As a result she has often considered leaving the community sector.
[35] W13 is employed in Victoria on a part-time basis as a School Focused Youth Service Coordinator at Connections UnitingCare, a non-government organisation that provides support to families. She does not provide direct services to young people but instead provides information to schools as to where they may obtain support for young people. Her duties involve responding to requests for information by telephone and email, linking schools and support agencies, and facilitating and attending network meetings. Her evidence is that, although now covered by the modern award, she is remunerated at Social Worker Class 3, Level 2 of the Victorian SACS award.
[36] She has compared her remuneration with similar roles in the government sector and feels that her role is not adequately valued in comparison.
[37] W14 is employed in Victoria as a Case Manager at Quantum Support Services, a non-government organisation that provides services to disadvantaged persons in the Gippsland area. She is the advocate for Consumer Affairs Victoria for the Gippsland area for two days per week. She is also the Case Manager for the Indigenous Tenants at Risk Program for three days per week. She states that, although now covered by the modern award, she is paid at the classification of Social Worker Grade 1, Level 7 of the Victorian SACS award.
[38] She works alongside government employees and although she has not personally compared pay scales, she is aware from conversations with peers that there is a large discrepancy between their wages. She previously worked in the Victorian Police Force and has considered returning to the force due to the higher levels of pay. She utilises salary packaging which she finds is of great financial assistance. She does not have current plans to move from the sector although she states that this is partly because her options are restricted as she does not intend to move from her regional area.
[39] W16 is employed in Victoria as a Tenancy Worker at North East Housing Service Ltd, a non-government organisation that provides assistance to homeless persons or persons at risk of homelessness. Her role is to provide assistance to clients in the form of information, assessment and planning. Her duties involve visiting properties, attending Victorian and Civil Administrative Tribunal hearings and attending meetings and workshops. She states that, although she is now covered by the modern award, she is currently remunerated as a Community Development Worker, Class 2(b) under the Victorian SACS award.
[40] Her evidence is that her work is becoming increasingly complex and is both stressful and at times dangerous. Her employer provides salary packaging and she utilises it. She does not plan to remain in the sector on account of the low wages, limited training and limited career opportunities and is currently looking for work within the government sector.
[41] W17 is employed in Victoria as a Families First Case Worker at Connections UnitingCare, a non-government organisation that provides community services to children, young people and families in the southern and eastern areas of Melbourne. She is an intensive case worker and provides intensive family work services to two clients per week. Her duties include providing parenting support, conducting interviews and assessments, counselling, education, referrals and practical support. Her evidence is that, although she is now covered by the modern award, she is remunerated at the level of Social Worker Grade 3 at pay point 1 of the Victorian SACS award.
[42] She has previously worked in the government sector and continues to work alongside government employees on a daily basis. She is aware that government workers in her role, dealing with the same clients, are paid up to $15 000 per annum more than her current rate of remuneration. She also states that non-government workers experience job insecurity due to funding limitations. She utilises salary packaging but views it as a poor substitute for adequate wages and conditions. She only left the government sector because her role was converted to shiftwork and she plans to return to the government sector if the application in this case is not successful. She believes that the low wages are having a negative impact on skill retention and the quality of services provided to clients in the non-government sector.
[43] W18 is employed in Victoria as a Manager/Lawyer at the Moreland Community Legal Centre, a non-government organisation that provides free legal advice and financial counselling to persons residing, studying or working in the Moreland Municipality. She manages both the legal and financial counselling programs, which involves supervising staff, and also provides legal advice directly to clients. She states that, although now covered by the modern award, she is currently remunerated at Class 6 of the Victorian SACS award.
[44] Her statement provides that recruiting and retaining staff at the Centre is very difficult as the private sector offers potential employees much higher wages and better conditions, including job security. She states that in her role she carries out similar duties and has similar clients/cases to lawyers in Victoria Legal Aid, but that Victoria Legal Aid employees receive better wages and have access to similar salary package provisions. She has contemplated leaving the community sector but is committed to her work and intends to lobby government for increased funding.
[45] W19 is employed in Victoria on a part-time basis as a Networker with Network West Inc., a non-government organisation that provides support and resources in relation to small community development and adult learning organisations. Her role is to work with very small community organisations to strengthen them so that they can service their local communities. Her duties include, but are not limited to, providing support to these organisations in relation to strategic planning, staff and volunteer development and training, marketing, project management, conflict resolution and organisational sustainability. She is classified as a Community Development Worker Class IIB, Level 6 of the Neighbourhood Houses and Learning Centres Collective Agreement 2007. She is currently remunerated at a “small rate” above this agreement.
[46] She considers herself to be underemployed and has, in the past, taken on additional work to supplement her income. She works alongside staff from other sectors including government workers and perceives that these employees are remunerated at higher rates than those at which she is currently remunerated. As a result she is currently applying for positions outside the sector and, at the time of signing her statement, intended to accept a six month fixed term contract with the Department of Planning and Community Development on the basis that she would be paid at a higher rate.
[47] W60 is employed as a Community Support Worker at Kirinari Community Service Ltd, a non-government organisation that provides support services to clients with intellectual, mental or physical disabilities. She works across two houses, ‘DC’ which is in NSW and ‘RD’ which is in Victoria. She states that she is remunerated at Grade IV, Year 3 of the Kirinari Community Services Limited Hume Riverina Branch – Certified Agreement 2006–2008. Her role is to provide direct client services and her duties include, but are not limited to, developing and implementing client plans, undertaking needs assessments, maintaining client records and assisting clients with daily activities.
[48] W60 states that stresses in her role are numerous and some of these relate to lack of sleep and that at times she has taken sick leave in order to catch up on sleep. In relation to sleepovers, W60 states that it is unusual to get a full or even a reasonable night’s sleep at either house during sleepovers due to disturbances by clients, completing administrative tasks that could not be completed prior to the sleepover, noise levels and equipment in the staff sleepover room. She also stated that sleepover allowances operate so that a staff member may be disturbed at multiple separate times during the night, resulting in little sleep, but staff do not receive additional allowances as the duration of individual disturbances may only total less than one hour over the course of the night. She does not receive additional allowances for sleepovers occurring on Saturday or Sunday nights unlike her public sector counterparts.
[49] W65 is employed in Victoria as a Disability Development and Support Officer, Level 3A, by the Department of Human Services. Her place of work is a Community Residential Unit in the north and west metropolitan region of Melbourne, which is a complex medical needs house for people with intellectual and physical disabilities. She is responsible for the management of the house, supervision of 10 staff and the programs for the clients. She has previously worked at Broadmeadows Disability Services, a non-government organisation. In her most senior role there she was Program Manager for three services. In her statement she compares her experiences in the government and non-government sectors of the SACS industry and states that whilst her current government role involves less responsibility and is less complex than her previous non-government role, she is now being remunerated at a higher level.
[50] She gave evidence of the pressures faced by staff at the Broadmeadows Disability Services which include unpaid overtime without time off in lieu, difficulty in recruiting and retaining staff, employees working alongside government workers with the knowledge that they are receiving higher remuneration for comparable work and the loss of staff to the government sector.
[51] W67 is employed on a part-time basis in Victoria as an Occupational Health and Safety Officer at Yooralla, a non-government organisation that provides support services to people with a disability across Victoria. However she is currently on leave from that position and is employed on a temporary part-time basis as a Program Co-ordinator by Wesley Mission Victoria, also a non-government organisation, which provides services to disadvantaged people in Victoria. In both positions she has been responsible for providing leadership and supervision to reporting staff and overseeing service delivery.
[52] She details that in her role at Yooralla she regularly worked unpaid overtime and that time off in lieu arrangements were informal. In her experience, sleepover shifts were often disrupted and she would often need to wake earlier than the beginning of the exit shift in order to prepare for the day ahead. Both organisations have experienced significant challenges in attracting and retaining appropriately skilled staff for direct support level positions. She believes that the major difficulty is that pay rates, salaries and conditions in the non-government sector are below those of people working in comparable positions in the government sector. She believes that funding constraints and the isolated nature of home service provision prevents workers in the non-government sector from bargaining for better wages and conditions.
[53] At the time of providing her statement, W73 had been recently employed in Victoria at Distinctive Option Lifestyles Unit, a non-government organisation providing day program services to intellectually disabled adults. Her statement relates to that position. Her duties involved transporting clients to and from services and assisting clients to participate in day service activities. She also had to undertake administrative tasks, which she often had to complete in unpaid time. In that role she was employed as a Class 3 Instructor and was remunerated at Range 3 of the Distinctive Options Day Services Collective Agreement 2006-2009.
[54] She has since taken on a new position in the local government sector and is now remunerated at a rate of $10 000 to $15 000 higher than she was in her previous non-government role. She also states that she is no longer subject to the same level of stress or occupational health and safety risks.
[55] At the time of preparing her statement W74 was employed in Victoria as an Instructor at the Onemda Association, a non-government organisation that provides support for adults with intellectual disabilities. Her key responsibilities included client support, program management, community participation, team support, professional development and public relations and advocacy. Her evidence is that she was remunerated a Level 10, Band II of the Onemda Association Disability Service Victoria (Part 1) Collective Agreement 2008.
[56] Since making her statement she has left the industry and accepted a position in an online marketing company. Despite having no experience or qualifications in her new field she is now remunerated at a considerably higher level than her previous position in the non-government SACS sector. Her statement provides that she would have liked to have remained in the SACS industry but could not afford to do so on account of the low wages. She is currently retraining as a teacher and plans to find future employment as a Special Education Teacher.
[57] W75 is employed in Victoria as a Support Coordinator at Inclusion Melbourne Inc, a non-government organisation that provides support services to adults with an intellectual disability within the south eastern metropolitan area of Melbourne. Her duties include assessing clients and creating and implementing individual client plans that address the educational, vocational, recreational and social needs of clients. Amongst other duties she is also required to supervise, train and support direct support staff. Her evidence is that, although she is now covered by the modern award, she is remunerated at Level 2, Band 3 of the Disability Services Award (Victoria).
[58] She states that her job is stressful as it is difficult to get everything done within working hours. She estimates that she undertakes six hours of unpaid work on average per week in order to complete paperwork and often takes work home, works back late at night and on weekends. She does receive time off in lieu for this work, although is rarely able to take it as it must be taken within a certain timeframe or it is lost. She has considered leaving the sector because of the low pay.
[59] Mr Chaffers is employed in Victoria as a Human Resource Manager at Melbourne Citymission (MCM), a non-government organisation providing community services to a range of client groups across Melbourne and regional Victoria. Mr Chaffers’ statement is concerned with employees engaged in MCM’s children and disability services portfolio. Mr Chaffers explains that this portfolio is unique as it delivers two types of residential care services which, due to historical funding arrangements, remunerate staff according to whether they are engaged under either public service or private sector conditions. Mr Chaffers’ evidence is that he is well placed to compare the services provided by government sector employees and non-government sector employees as a result of this dual model of service provision. His evidence is that the work performed in both houses is identical in all respects and the differences in staff remuneration between the two types of houses is explained solely by the separate funding arrangements. His statement also provides that MCM experiences significant difficultly in recruiting suitable staff for its non-government houses as well as a high turnover in relation to casual staff.
[60] Ms Calkin is employed in Victoria in the role of Disability Services Manager by Melbourne Citymission (MCM). Her role is to manage MCM’s Residential Services, which operates under the dual model of service provision referred to in the statement of Mr Chaffers. Ms Calkin’s evidence is that there is no distinction between either the clients or the complexity of clients’ needs between the two types of houses and that MCM provides the same level of service in both. She states that staff in the two houses complete training together and attend planning days together. She also states that the work performed by employees at the houses is essentially the same and that the only difference is that they are remunerated differently, according to whether they are engaged under public sector conditions or private sector conditions. She states that MCM experiences difficulties in recruiting and retaining staff in the private sector houses and that staff are reluctant to move from the public service houses to private sector houses due to the lower pay and conditions. Her evidence is that both houses have demanding sleepover shifts and that these are funded as sleepovers, rather than active shifts, even though residents often require attention during the night.
[61] W38 is employed in Queensland as an Education and Information Officer by the National Relay Service and works at Deaf Services Queensland, a non-government organisation that provides advocacy and support services to the deaf and hard of hearing community within Queensland. Her duties include providing information and resources to clients, conducting research, liaising with stakeholders and target groups, conducting regional tours and training sessions, maintaining databases and reporting to supervisors.
[62] Her evidence is that her role is stressful, under-resourced and requires that she undertake significant travel. She has recently applied for government positions outside of the SACS industry which required qualifications and a level of responsibility comparable to her own position but which were remunerated at significantly higher levels. She often works overtime and claims time off in lieu for these hours. Her employer offers salary packaging and she utilises this. She would like to continue working for her current employer but feels that non-government SACS work is undervalued and lacks career opportunities.
[63] At the time of preparing her statement, W39 was a consultant to the SACS industry. Prior to becoming a consultant, she was employed in Queensland as Program Director at Queensland Alliance, the peak body for the Queensland mental health community sector. Since preparing her statement she has accepted a part-time position as a Workforce Consultant at the Health and Community Services Workforce Council and is remunerated under an enterprise agreement made in reference to the current Queensland SACS award. She now receives a higher level of remuneration for a position that she describes as having less managerial responsibility than her previous position at Queensland Alliance.
[64] She gave evidence that there is a lack of understanding of the complexity of work undertaken by the SACS sector and that there is a relationship between this lack of understanding and the wage levels in the SACS industry. In most of her roles in the SACS industry she has worked alongside government workers and she expressed an awareness of disparity in wages between government and non-government workers in the sector. She states that over the years many of her colleagues have left the non-government sector to join the government sector for improved pay and conditions and that this contributes to the skills drain in the community sector.
[65] W40 is employed in Queensland as a Refugee Support Worker at Women’s House Shelta, an organisation funded by the Queensland Department of Communities through the Supported Accommodation Assistance Programme. Her statement provides that she is remunerated as a Crisis Accommodation Employee Level 3 under the modern award. Her statement describes the positive impact that the Queensland Equal Remuneration decision has had on her financial independence.
[66] In her statement she refers to the witness statement that she provided in the Queensland SACS case. That statement described the difficulties that the Women’s House Shelta experiences in attracting and retaining staff and her awareness that, at the time of making that statement, members of the organisation were currently looking for better paying jobs. In that statement she described her work as stressful and underpaid. She also stated that she regularly undertakes unpaid work in the form of taking research and campaign materials home to read. She expressed awareness that some employees in the government sector were paid more than she was.
[67] The witness statement of Ms Anderson was sworn in September 2008 in relation to the Queensland Industrial Relations Commission SACS case. That statement provided that she was an employee of Youth and Family Service (Logan City) Inc. as a Domestic and Family Violence Counsellor. She worked directly with clients and her duties included crisis and short-term counselling, development and planning of community education activities and forums, women’s advocacy, networking and liaising with other community agencies, including government agencies. At the time of her statement, she was remunerated at Level 5 of the Queensland SACS award, at pay point 1.
[68] She was aware of government sector positions comparable to her own that were remunerated at approximately $20 000 per annum more than her then salary.
[69] The witness statement of Ms Arlidge was sworn in October 2008 in relation to the QIRC SACS case. That statement provided that Ms Arlidge was previously employed in Queensland as a Counsellor at Centacare Cairns. In that role she was remunerated at Level 5 of the Queensland SACS award at pay point 3. Her duties included providing counselling to individuals, couples, children and families from low socioeconomic environments.
[70] At the time of her statement, she was employed in a new role at Centrelink on a rate of pay $15 000 higher than the rate at which she had been previously remunerated at Centacare. She had also been offered a locum position at Queensland Health comparable to her previous role at Centacare at rates higher than her current Centrelink position. She stated that she would not consider working in the non-government sector again on the basis of the lower wages.
[71] The witness statement of Ms Cleverly was sworn in December 2008 in relation to the QIRC SACS case. That statement provided that Ms Cleverly was employed in Queensland as a Child Adolescent Support Worker at the North Queensland Domestic Violence Resource Service. At the time of her statement, she was remunerated at Level 5 of the Queensland SACS award at pay point 3. She was involved in direct service provision to clients which included delivering crisis and support services to women and children experiencing domestic violence. Her role also involved providing training sessions, education forums and workshops related to the effects of violence on children.
[72] She stated that providing direct client services involves an element of risk where violent partners of clients attend the agency. Her experience was that her part-time position did not provide adequate income to meet the cost of living. She was aware that similar roles to her own in the government sector were remunerated more highly.
[73] The witness statement of Ms Macleod was sworn in 2008 in relation to the QIRC SACS case. That statement provided that Ms Macleod was the Director of the Gold Coast Centre Against Sexual Violence Inc and that she had responsibility for the overall management of the Centre comprising seven staff. Ms Macleod’s evidence is that retention of staff is an issue for the Centre as staff are aware of the disparity between government and non-government wages within the industry. She believed that job insecurity related to the uncertain nature of funding in the industry compounds retention problems. In her statement she provided a table comparing the wages of Centre employees and Queensland Health employees in order to demonstrate what she believed to be the undervaluation of the non-government sector.
[74] The witness statement of Mr Munce was sworn in September 2008 in relation to the QIRC SACS case. That statement provided that Mr Munce was employed in Queensland as a Coordinator at Youth and Family Service (Logan City) Inc, a non-government organisation that provides a broad range of social welfare services to the Logan community of Queensland. He was remunerated at Level 7 of the Queensland SACS award at pay point 1. His duties included supervising a team of counsellors/group facilitators that provide individual and group-based counselling services to people experiencing or using violence in all forms of domestic relationships.
[75] He gave evidence that his role was similar to that of a Team Leader position within the Queensland Department of Communities, which he believed was remunerated at a level approximately 28 per cent higher than his then current salary. His evidence was that the failure to pay wages comparable with public sector wages combined with the lack of job security has had a significant detrimental impact on the recruitment and retention of staff within the non-government sector of the SACS industry.
[76] The witness statement of Ms Walsh was sworn in October 2008 in relation to the QIRC SACS case. That statement provided that Ms Walsh was employed in Queensland as a Coordinator at Micah Projects Inc, a non-government organisation that provides support services to persons experiencing or at risk of homelessness, young parenting women, people who have experienced abuse in institutions and people living with a mental illness and disability. Ms Walsh is also the President of the Queensland Council of Social Service Inc.
[77] Ms Walsh’s evidence is that Micah experiences difficulties in attracting and retaining suitably qualified staff. In her view this is due to factors such as inadequate and uncompetitive pay rates, the lack of long service leave and paid maternity leave, inadequate career opportunities and inadequate resources in the sector. She also believed that these factors have led to a marked gender imbalance in the workplace and throughout community services generally. Her staff work alongside government employees and often deal with clients with complex needs that have been excluded from the government system. This results in these workers dealing with complex caseloads despite being remunerated at lower levels than their government counterparts.
[78] W52 is employed in South Australia as a Mental Health Worker at Life Without Barriers, a non-government organisation that provides support and assistance to people struggling with mental health issues, children and young people needing out of home care and people living with a disability. Her role is to assist clients living with a mental health issue in their transition from long-term hospital-based care to community-based living. Her duties include building a rapport with the client before they leave hospital, assisting them to find appropriate housing and helping them learn to live independently. She states that, although she is now covered by the modern award, she is currently remunerated at Level 4.1 of the South Australian Social and Community Services Award.
[79] In the course of her duties, she comes into contact with government employees delivering services to shared clients. She is aware of their levels of earning in general terms. She believes she and other Life Without Barriers staff deal with more complex cases and a broader range of issues than their better paid government sector counterparts. She often performs unpaid overtime and whilst she is entitled to time off in lieu, she rarely takes it as it is difficult to arrange replacement staff. She accesses salary packaging which is provided by an organisation other than her employer. She regularly looks for government employment because the government sector pays more and has greater security. She often advises co-workers of the positions she sees advertised.
[80] W53 is employed in South Australia as an Access Worker at the Spastic Centres of South Australia (known as SCOSA) a non-government organisation providing day services to disabled people throughout South Australia. Her duties include planning, delivering and supervising client activities each day. These duties include a mixture of physical care work, administrative tasks and supervision. Her evidence is that she is currently remunerated at Level 3 of the SCOSA Accommodation and Respite Agency/ASU Enterprise Agreement 1994, at pay point 2.
[81] She believes that she is underpaid in her role but continues to work in the non-government sector due to the bond she has with her clients and their families and also due to her experience as the parent of a disabled child. She often works unpaid hours and is entitled to time off in lieu but cannot take this time due to a lack of staff to cover her absence.
[82] W54 is employed in South Australia as a Domestic Violence Case Manager at Central Domestic Violence Service (CDVS), a non-government organisation providing support to women and children experiencing or escaping domestic violence or homelessness. Her duties include providing telephone counselling to clients, assisting clients to obtain restraining orders and supporting clients through family court processes. She is also required to be on-call one week out of every six. She is not often called out to client’s homes but often deals with requests over the phone. She receives an additional week of annual leave for performing this duty. Her evidence is that, although she is now covered by the modern award, she is remunerated at Level 4, Step 3 of the Crisis Assistance, Supported Housing (South Australia) Award. Her other conditions are covered by the Central Domestic Violence Service Enterprise Agreement 2006.
[83] She feels limited by the classification levels in the award as she is currently at the highest pay point for her classification and cannot progress further. She relies heavily on salary sacrificing. She has thought about applying for work in the government sector but considers that it may be difficult as she is not degree qualified. She is confident that her job is secure and has access to long service leave. She is not aware that CDVS has problems retaining staff and she credits this to the supportive workplace culture. She does not have a lot of interaction with workers from other sectors in the industry but she perceives that some workers in the government sector are paid more than their non-government counterparts in comparable roles. She plans to stay in the sector until she retires.
[84] W43 is employed in Western Australia as the Manager of Pat Thomas Memorial Community House Inc, a non-government organisation that provides services to women and women with children impacted by or escaping domestic violence. Her role is to manage all aspects of the organisation including overseeing client service delivery, developing programs, sourcing funding and providing strategic advice to the Board of Management. Her additional duties include supervising permanently funded programs, reviewing budgets, developing case management plans for clients and carrying out human resource functions. She states that, although now covered by the modern award, she is remunerated at Level 9 of the Crisis Assistance, Supported Housing Industry – Western Australian Award. Salary packaging is provided by her employer and she utilises this.
[85] She works alongside government employees and is consulted by government agencies on a regular basis. Her evidence is that the complexity of her work has increased significantly since she began at Pat Thomas House in 1998 and that positions with less responsibility than her own are remunerated more highly in the government sector. She provides examples of Pat Thomas House staff who have left the organisation on account of the low pay and moved to the government sector. She has considered leaving the sector and has applied for employment in another industry.
[86] W47 is employed in Western Australia as a Manager at Midland Women’s Health Care Place (MWHCP), a non-government organisation that provides health services to women within the east metropolitan region of Perth. Her duties include supporting and supervising staff, fulfilling reporting requirements, advocating for clients, preparing funding submissions, negotiating service contracts, handling complaints and overseeing changes to policies and procedures. Her evidence is that she is remunerated as a Community Services Worker at Level 7.2 of the modern award.
[87] Her evidence is that her work has become increasingly complex over time and is often stressful due to both the needs and behaviours of clients and resource pressures. She states that MWHCP experiences difficulty in recruiting and retaining suitable staff due to the low pay rates in comparison with those offered by the government sector and other industries. MWHCP staff also experience job insecurity as funding is often granted on a year-to-year basis. She states that she is embarrassed to discuss her pay rate with her government sector peers as she is aware that government sector workers are remunerated at significantly higher levels than her own position. She is considering reducing her hours in the sector in order to obtain part-time teaching work with a local technical college.
[88] W48 is employed in Western Australia as a Managing Solicitor at Women’s Law Centre of WA Inc (WLC), a non-government organisation that provides free legal services to disadvantaged women. Her role involves staff supervision, client casework, law reform and policy advocacy and tasks associated with the management of the centre. Her statement details the structure of WLC and the nature of the services provided to clients. Her evidence is that, although now covered by the modern award, she is remunerated at Level 9 of the Social and Community Services – Western Australia Award.
[89] She compares her current role to similar roles in the Legal Aid Commission of WA and concludes that a solicitor with her experience would be earning considerably more per annum in the government sector. She states that she often works above her contracted hours and whilst she does take some time off in lieu for these hours, it is not possible to take equivalent time off in lieu.
[90] Her statement provides that WLC often experiences difficulties with recruitment and retention of staff and that potential applicants often expressly turn down positions on the basis that the remuneration is too low. As a result, WLC has begun to pay its employees above the relevant award rate in order to retain and attract staff. In addition it has reclassified existing employees to higher positions, introduced long service leave at seven years and paid staff bonuses on occasions.
[91] At the time of preparing her primary statement W57 was employed in Tasmania as a Workforce Development Officer at the Alcohol, Tobacco and other Drugs Council of Tasmania. She had a policy role and the range of her duties included researching workforce development through conducting literature reviews, surveying and consulting. She did not perform direct client service delivery in her role. She was remunerated at Level 6 of the Community Services Award (Tas) at pay point 3. She also gave evidence of her prior role as a Support Worker at Eureka, a non-government organisation that provides support services to adults with a mental illness in southern Tasmania.
[92] She gave evidence that Eureka experienced difficulties in recruiting and retaining suitable staff, particularly degree qualified staff, due to the better pay and conditions offered by the government sector. She also gave evidence that colleagues were conscious of working for “too long” in the non-government sector out of a concern that it would give future employers the impression that they are content to work for comparably lower wages than are provided in the government sector. Since making her statement she has accepted a comparable role in the government sector and now receives considerably higher remuneration than her previous positions.
[93] W62 is currently employed in Tasmania as a House Manager at an undisclosed non-government organisation that provides residential care to people with disabilities in the southern area of Tasmania. Her evidence is that she is covered by the Disability Service Providers Award but is remunerated under the Disability Services Industry Wages Agreement of 2009. Her role is to ensure that staff members provide encouragement, training, assistance and support to residents for their personal care and domestic duties. Beyond direct care duties she is also required to manage the finances of the home, conduct staff appraisals, fulfil reporting requirements and develop new work systems as necessary. She feels that the current classification structure does not acknowledge her skills, experience and qualification levels. In her experience employees in the sector receive award rates and are not remunerated above these rates.
[94] She gave evidence that staff at the house undertake active night shifts so the sleepover provisions claim is not relevant to their employment. However she is aware that staff at other houses in the organisation that do utilise sleepovers find it difficult to sleep during the night due the lack of appropriate staff sleeping facilities. She also expressed concern that sleepover shifts do not count toward accrual of annual leave entitlements.
[95] W66 is employed in Tasmania on a part-time basis in the role of a Community Service Worker for an undisclosed non-government community support organisation that provides outreach and in-home services for clients with intellectual, mental or physical disabilities and the frail aged in the Hobart area. His role is to provide in-home support and direct care to clients, helping them to live independently and engage in community life.
[96] He is covered by an unnamed enterprise agreement under the classification of Community Service Worker 2B, Year 3. Despite working on a permanent part-time basis W66 has elected to be remunerated at casual rates and forgoes his sick leave and annual leave entitlements as he feels that the normal rate of payment does not meet the cost of living. At times he has also engaged in freelance work outside the sector to supplement his income. He stated that all support workers at his organisation are paid the same rate irrespective of their qualification level and that this removes any incentive to continue training in the sector.
[97] He states that there is a chronic shortage of suitably skilled staff in the SACS industry and that this often results in time pressure during shifts and staff being required to work additional shifts. Where this cannot be accommodated the client’s family is forced to source additional care or provide care themselves. He perceives this problem to be increasing.
[98] W50 is employed in the Northern Territory as a Coordinator/Manager at the Tenant Creek Women’s Refuge (TCWR), a non-government organisation that provides crisis accommodation, support services and referrals to women and their children who are victims of domestic violence or at risk of homelessness. Her duties include supervising all staff, applying for funding, reporting to the Management Committee and funding bodies and overseeing the workings of the Refuge. From time to time she also assists with daily tasks. She has an active caseload and at times has to travel to attend meetings, training or a conference. Her evidence is that, although she is now covered by the modern award, she is currently remunerated at Level 8 of the Social and Community Services Industry – Community Services Workers – Northern Territory Award 2002. She receives an additional week of annual leave as an overaward entitlement and this will soon be increased to two weeks.
[99] Her statement provides that TCWR has experienced excellent staff retention although she finds it difficult to recruit new staff as TCWR cannot compete with the wages, conditions and job security offered by the government sector. In her experience non-government sector workers often have more responsibility and a wider range of job roles than their government sector counterparts. She is not considering leaving the industry.
[1] Ms Broers is employed in Western Australia as the Executive Manager of Organisational Services of Centacare Incorporated, a non-government organisation that delivers counselling, support, accommodation, family dispute resolution and training services to clients. She states that Centacare supports improved wages for staff but only if any increases are supported by a corresponding increase in funding from both state and federal funding sources. Similarly Centacare would support the sleepover provisions claim if it were fully funded. Without an increase in minimum wages supported by a corresponding increase in funding she states that the consequences for Centacare would include increased staff turnover and loss of organisational knowledge, decline in the quality of service provision, decline in full-time equivalents, lower staff morale and difficulties in recruiting new and young staff.
[2] Ms Grech is employed in WA as the Acting CEO of the Association of Services to Survivors of Torture and Trauma (ASeTTS), a non-government organisation providing support services to clients affected by torture and trauma who are predominately from refugee backgrounds. She gives evidence that ASeTTS experiences difficulty in recruiting and retaining appropriately skilled staff as a result of an inability to compete with remuneration offered by the government sector. She states that ASeTTS supports improved wages for staff but only if any increases are supported by a corresponding increase in funding from both state and federal funding sources. Without an increase in funding she states that the organisation would need to downsize staff and renegotiate reduced contract outcomes which would have a negative impact on service outcomes.
[3] Ms Reilly is employed in Western Australia as the Chief Executive Officer of Relationships Australia (WA) Inc, a non-profit organisation that provides a range of relationship and family support services to the WA community. She states that Relationships Australia (WA) Inc experiences difficulty in recruiting and retaining appropriately skilled staff due to low wages. Her statement indicates that Relationships Australia (WA) Inc supports improved wages for staff but only if any increases are supported by a corresponding increase in funding from both state and federal funding sources and that if a corresponding increase in funding is not forthcoming then service delivery targets may not be met.
[4] Ms Walsh is employed in Western Australia as the Chief Executive Officer of Valued Independent People Inc (VIP), a not-for-profit organisation that provides services to clients that have severe and profound disabilities and very high support needs. Her statement provides that salaries within the non-government, not-for-profit community services sector in Western Australia are not fair or just and that VIP experiences difficulty in attracting and retaining suitable staff as comparable roles in the government sector are remunerated at a substantially higher rate. She indicates that VIP supports improved wages for staff, including an increase in the sleepover allowance, but only if any increases are supported by a corresponding increase in funding from both state and federal funding sources. In the absence of funding increases she believes that VIP would need to reduce services currently provided to clients.
[5] Mr Hall is employed in Western Australia as the Chief Executive Officer of UnitingCare West, a non-profit organisation that provides a range of community services to persons in need in WA. He is also the Co-Chair and Secretary of CEWA. He states that all members of CEWA experience difficulties in recruiting and retaining suitable staff and find it very difficult to compete with the wages and conditions offered to employees by the government sector. He also states that CEWA member organisations support increased wages for employees but that the absence of a corresponding increase in funding would lead to the reduction or cessation of community services delivered by the non-government sector in WA.
[6] Ms Suhood is employed in New South Wales as a Manager at Bridges, a non-government organisation that provides support services to individuals and families in relation to drug and alcohol use. She states that Bridges experiences difficulty in recruiting and retaining suitable staff and that a number of staff have left Bridges in the past to work in the government sector with better pay and conditions. She states that Bridges cannot currently compete with the pay rates and conditions offered by the government sector as it receives inadequate funding and, further, that funders do not look favourably upon organisations that remunerate employees above the relevant award.
[7] Ms Acosta is employed in Western Australia as the Operations Manager for Community Services for Mission Australia (WA). Her statement is concerned with the potential impact of the sleepover entitlements sought in this case. She gives evidence that Mission Australia employees are rarely disturbed during a sleepover and that this low level of disturbance is inconsistent with the applicants’ claim that employees are regularly disturbed during sleepovers and required to work more than once during the night. She also states that it would be difficult to monitor and verify whether an employee had been disturbed on more than one occasion during the night in order to provide additional remuneration where this occurs. Her evidence is that if sleepover entitlements and conditions proposed by the applicants were included in an equal remuneration order, some services could only go ahead by removing the sleepover and replacing it with an active night shift. She also states that it is currently the preference of employees to undertake a day shift following a sleepover and that this is also inconsistent with the order sought.
[8] Ms Edwards is employed in Queensland as the Operations Manager for Central/North Queensland Region of Mission Australia. Her evidence is that the Out of Community Residential Care Service (OOCRS) operates with “house parent” roles which is a model of care that involves a couple (not necessarily in a relationship) acting in the role of parents for the young people in residence. House parents are required to undertake sleepovers on consecutive nights often followed by day shifts. Her evidence is that it would be difficult to monitor and verify whether an employee had been disturbed on more than one occasion during the night in order to provide additional remuneration where this occurs, as sought by the applicants in this case. Her evidence is that if the proposed changes were part of an equal remuneration order, the OOCRS would only be able to continue if the new sleepover provisions were matched by a commensurate increase in government funding.
[9] Ms Griffiths is employed in New South Wales as the Services Manager for Western Sydney Youth Connections for Mission Australia. She is responsible for two services that operate with sleepovers. Her evidence is that employees undertaking sleepovers at these services could expect to get a reasonable night’s sleep and would only be disturbed and required to do some work less than once per month. She states that if the proposed sleepover provisions are implemented without commensurate funding, neither service could continue to operate in its current form.
[10] Mr Hopper is employed in New South Wales as the Executive Leader of Community Services for Mission Australia. At the time of his statement he was acting as the Executive Leader of Employment Solutions in a temporary capacity. His statement details the pay and conditions of community service employees at Mission Australia and contains modelling of the potential impact of the proposed orders under three different funding scenarios. His statement also indicates that the relevant Mission Australia agreement requires that sleepovers be preceded by an afternoon shift or followed by a day shift and that there is no restriction on an employee completing a shift on both sides of the sleepover. His supplementary statement indicates that Mission Australia is no longer planning on establishing additional house parent roles and has abolished the small number of house parent positions that previously existed and replaced them with a combination of shiftwork and conventional sleepover arrangements.
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