Recent announcements by the government signal a pivotal moment in the conversation surrounding equal pay rights.
Pushed through with urgency, the amendments to the Equal Pay Act have set stricter criteria for future claims to succeed, with the threshold increasing from 60% to 70% in a sector for it to be regarded as predominantly performed by women.
There is a stronger emphasis required on the evidence of undervaluation of those roles based on gender, and for appropriate comparators to be identified.
On the surface, I don’t see a problem with the idea that a legal claim must be based on evidence. This is how all other claims progress beyond mediation.
Do we have a case that the government is funding a bunch of roles in a way that is undervaluing the work performed (whether by men or women)? Most likely. You might think that is unfair and even short sighted, especially when we need to attract good people to key roles in society such as teachers and nurses.
But it is not discriminatory.
The unusual part of this amendment is that these laws have a retrospective effect. This means that any claims currently filed will have to be resubmitted and assessed against the new criteria.
Usually legislation changes would be considered before a select committee where different views of different interest groups can be aired and it can be fine-tuned before being passed.
In this case this hasn't happened, and frankly, it’s ticked a lot of people off.
Closing the gender pay gap
In 1972, the Equal Pay Act required employees to be paid the same amount for the same work, regardless of whether they were men or women. It phased out different rates of pay for men and women, across the same roles (equal pay) and also different roles of equal value (pay equity).
Back in those days, there could be a difference of up to 30% in actual rates for men and women undertaking the same roles set out in published instruments (Awards).
Following a landmark employment case in 2014, that endorsed an Employment Court finding that found that healthcare assistants were historically underpaid compared to men (Terranova v Service and Food Workers Union) there has been a revival of the examination of whether women’s roles are underpaid compared to men performing work of equal value.
We then saw the introduction of the Equal Pay Amendment Act in 2020 – and the concept of 'pay equity' became fully revived as part of the laws intended to reduce discrimination in pay and provided a framework for progressing such claims.
Comparing band aids with fire hoses
The concept of a “comparator” which is a key concept in the pay equity framework suggests that you might be able to compare a nurse with a fireman, for example, if you thought that there were equal amounts of effort, expertise and other relevant factors in the two roles. But this begs the question - is that the right selection of “comparator”? Are the roles sufficiently similar? How do you even determine this?
The whole area is fraught.
To be clear, pay equity addresses the underpayment and undervaluation in female-dominated professions. Currently, the emphasis is on whether there has been historical undervaluation of pay based on gender. But proving this is a real issue.
In my view there are better ways to achieve the goal of reducing the gender pay gap, given the evidential difficulties and complexity of such claims.
Flexible work place arrangements. We’re not there yet.
Stepping back from all of this, if the overall objective is to have fair pay, and to reduce the gender pay gap, we might be missing a bigger picture.
What about equal rights and the expectation of flexibility for men and women in the workplace?
What are the true barriers to women achieving higher rates of pay?
I would say that the real blockage is that there are still very traditional structures that apply to many roles predominantly performed by men in certain industries, and also within the family division of labour.
If businesses do not offer men the same level of flexibility in the workplace this will only continue to put pressure on women to manage unpaid family responsibilities. This impacts their ability to progress in their careers, their work choices and pay progression.
The debate around work-life flexibility has long been framed as a "women’s issue," tethered to the challenges they face in balancing careers with personal responsibilities.
But this perspective is as outdated as it is limiting. By placing the burden squarely on women, society overlooks the broader implications for men, families, and workplaces.
True progress demands a shift in mindset. Flexibility should be seen as enabling all employees, male or female, to manage their lives without sacrificing professional growth.
Since 2008, conditions around flexible working arrangements were added to the Employment Relations Act, to make it express that employees have the right to request flexible working arrangements and outlined the process for making such requests, as well as the grounds on which employers could refuse them.
Originally, the flexible working sections of the ERA were included to cater towards people who had care of another person (such as children or elderly parents). It has since been extended to all employees but these provisions are somewhat underutilised.
This was seen at the time as being a measure to primarily support women in the workforce, recognising that by and large women still carried traditional roles in the family as the primary carer of children and at times, elderly parents. A literature review conducted for National Advisory Council on the Employment of Women in [2010, Ministry for Women] supports the view that flexible working requests tend to be made by women and often with a view to women being able to work part time hours.
If this is still the case today, which I believe it is, women are electing to pursue roles that allow for flexibility, part time hours, and which reflect the need for those women to carry on another substantial caring role outside the paid work environment for their families.
Part-time hours, reduced workforce participation, and choice of lower paid roles that offer flexibility, are highly likely to have a flow on effect to women’s overall pay, career choices and progression. These workforce choices will be influenced by what other options there are for caring responsibilities to be done by other family members.
Is it a real choice for the female if the male carer in the family has no perceived or real flexibility afforded to him by his boss?
If we would like to see greater workforce participation of women in roles attracting higher levels of pay, and empowering them to walk away from low paid jobs for better paid ones (which will create market pressure for increases in pay), there has to be greater recognition that men also have a right to ask for flexible working and that they will not to be disadvantaged by doing so.
Still a long way to go for more traditionally gendered roles
Anecdotally in my practice as an employment lawyer, and indeed as a working mother observing my own community, I do not see the same levels of flexibility for men. I see participants in traditional “mens” roles such as in construction, engineering, manufacturing, expected to work long hours with early starts, with high pressure, travel and overtime often required.
It is not easy for that person to sort out the kids’ costumes for Friday’s parade if they are on a business trip in Sydney. Who is there to pack the marmite sandwiches in the kids’ lunchbox if he has to be on site for a 6am start?
There seems to be an unspoken expectation that men will not be the primary carer of children and elderly in a family environment, and would probably be given a less positive reception at work if there is a need to attend to an unexpected family issue, for example, collect a sick kid from school or take them to an appointment.
We have come a long way since the 1970’s when men were paid 30% more than women for the exact same job but in many ways we still fall back to our default roles.
So while we are all looking at these changes to the pay equity legislation with frustration, there are broader challenges to consider.
That is, how do we make changes in societies view of different roles, which are traditionally performed by males or females, to make sure that we are encouraging people of both genders to feel free to ask for a) flexibility and b) to be paid what they are worth. This does not have to be at the cost of productivity.
There are bodies of research that support the benefits of flexible work arrangements. From a business point of view, drops in productivity can often be a concern.
Our focus should be on empowering both men and women to achieve the best that they can in their roles and to encourage employers to focus on productivity, flexibility and the things that actually matter. To have loyal and long serving employees that are happy and productive because they know that their family responsibilities are also met. These people are likely to also be the ones to get things done.
This reality seldom receives attention in discussions around pay equity. In focusing solely on pay, we risk overlooking the nuanced complexities of the workforce landscape.
The goal should not be a zero-sum game, but rather a collective movement towards a workplace that recognises and rewards individuals based on their contributions, irrespective of gender.
