The Landmark Equal Remuneration Test Case Continues
On Monday 16 May 2011, the Full Bench of Fair Work Australia handed down part of its decision in the landmark Equal Remuneration Test Case (Equal Remuneration Case; Australian Municipal, Administrative, Clerical and Services Union and others [2011] FWAFB 2700 (16 May 2011)).
The test case concerns an application for an equal remuneration order under the Fair Work Act 2009 (Cth) for employees of non-government employers in the social, community and disability services industry throughout Australia. The effect of the application is to raise the wages of affected employees above the wage rates in the modern Social, Community, Home Care and Disability Services Industry Award 2010.
The Full Bench has determined that an equal remuneration order should be made because there is not equal remuneration for men and women workers in the social and community services industry, for work of equal or comparable value in comparison with workers in the same industry but in state or local government employment. The Full Bench has also determined that gender is important in creating the gap in remuneration however they have called for further submissions from interested parties on the extent to which gender has inhibited wage growth in the industry.
The further submissions will be of significant importance because they will be used to assist Fair Work Australia in determining what wage order it should make.
The matters that the Full Bench has called for more submissions on are:
- The nature of the alterations, if any that should be made to the classifications and associated wage rates in the modern award.
- The extent to which wage rates in the SACS industry are lower than they would otherwise be because of gender considerations, including how the amount of the gender related undervaluation of the work of the classifications in the industry should be calculated and concrete estimates of that gender related undervaluation.
- The amount or amounts, either dollar or percentage, to be included in any equal remuneration order and estimates of the cost.
- The phasing-in of any equal remuneration order and the effect of such phasing on the transitional provisions in the modern award.
- The form of any equal remuneration order, including whether it should specify the particular wage rates that are to apply to the classifications in the modern award, or a monetary or percentage addition to the wage rates for the classifications in the modern award and whether it should provide for salary packaging and absorption of any over award payments.
- Whether the quantum in any equal remuneration order could or should be included in the modern award having regard, amongst other things, to the operation of the better off overall test.
The unions' submissions on the above matters are required to be filed by 10 June 2011 and the Commonwealth Government is required to file its further written submission by 30 June 2011. Any other interested parties are to file their further written submissions by 21 July 2011 and the matter is listed for further hearing in Melbourne from 8 August 2011.
Importantly, in a separate decision on 12 April 2011, the Full Bench varied the transitional arrangements in the Social, Community, Home Care and Disability Services Industry Award 2010 so that the rates of pay, penalties and loadings are now effective on the first full pay period on or after 1 February 2012, instead of the original 1 July 2011. This is an extension of the already longer period to transition in this Award. The reasons for the decision to vary this effective date are not published, however it is likely related to the Test Case continuing to run beyond 1 July 2011.
If you would like to make submissions on the matters above or would like more information about the Test Case or the change in transitional arrangements, please contact National Workplace Lawyers on +61 2 9233 3989.
National Workplace Lawyers
Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.