By Rebecca Spiliopoulos, Associate and Julian Arndt, Director, Australian Business Lawyers & Advisors

The Gender Undervaluation – priority awards review proceeding stems from a series of legislative reforms and decisions centred around addressing gender pay inequities and undervaluation of work in Australia. The following key events have shaped these proceedings:

1.    Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

The Secure Jobs, Better Pay Act (SJBP Act) introduced reforms aimed at promoting “gender equality” and addressing “gender undervaluation” within four key areas of the Fair Work Act 2009 (Cth) (FW Act).

These include:

  • New text in the FW Act’s objects to “promote… gender equality”;
  • Amendments to the modern awards objective to address “the need to achieve gender equality in the workplace by … eliminating gender - based undervaluation of work and providing workplace conditions that facilitate women's full economic participation”;
  • Changes to the minimum wages objective to reflect “the need to achieve gender equality, including by ensuring equal remuneration for work of equal or comparable value, eliminating gender - based undervaluation of work and addressing gender pay gaps”; and 
  • A new provision in section 157 of the FW Act, which requires the Fair Work Commission’s (the Commission) consideration of work value reasons to be “free of assumptions based on gender” and to “include consideration of whether historically the work has been undervalued because of assumptions based on gender”.

2.    Aged Care proceedings

The Aged Care proceedings, particularly the Stage 1 and Stage 3 decisions, contributed to the growing recognition of gender undervaluation as an issue in Australian modern awards.

3.    Annual Wage Review 2023-24 decision

On 3 June 2024, the Commission’s expert panel handed down the 2023-2024 Annual Wage Review decision. Alongside approving a 3.75% increase in all modern award rates and the national minimum wage, the Commission also “determined to establish a program for the timely resolution of gender undervaluation issues arising in respect of certain modern awards. A gender equity research project which was undertaken following the decision in last year’s Review has now been completed, and this has permitted us to identify priority areas for attention. [t]hese proceedings will commence shortly after the issue of this decision and we intend that they will be completed by the time of next year’s Review, which will then move on to the consideration of other gender undervaluation issues”.

On 7 June 2024, the Commission initiated proceedings to "examine and address" gender undervaluation in respect of certain sectors which the Commission’s research has termed as “large, highly feminised occupations in feminised industries” (being occupations containing more than 10,000 people, where more than 80% of people working in that occupation are women and the industry in which that occupation is located is over 60% female).

The modern awards identified as a priority are:

  • Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020
  • Children’s Services Award 2010
  • Health Professionals and Support Services Award 2020
  • Pharmacy Industry Award 2020
  • Social, Community, Home Care and Disability Services Industry Award 2010

What does this mean? 

The Commission is now accepting and considering submissions regarding whether, based on the findings of its gender pay equity research, the work covered by the five priority awards has been historically undervalued due to gender-based assumptions. The Commission aims to complete this review before next year’s Annual Wage Review decision.

Key issues for consideration include:

  • whether the work of relevant employees involves the exercise of ‘invisible’ skills or caring work
  • whether work value increases would justify higher award minimum wages; and
  • the benchmarking of wage rates against particular qualifications.

What has occurred so far? 

The expert panel announced that a hearing would be held on 18 June 2024 to hear any submissions concerning a provisional list of issues. ABLA appeared on behalf of Australian Industrial Business.

Following the initial hearing, the expert panel established a timetable. Last month (July 2024), preliminary conferences were held to identify agreed matters. The next steps include a deadline for submissions on 27 September 2024, followed by a deadline for reply submissions on 15 November 2024. Hearings will then take place over three weeks, starting on 2 December 2024.

Our involvement 

Australian Business Lawyers & Advisors has been working closely with relevant members of Business NSW and Australian Business Industrial to gather key industry evidence, enabling the drafting of comprehensive submissions in awards of interest. The firm is in the process of drafting and finalising the submissions and will ensure they are completed by the 27 September 2024 deadline. 

Given the Commission’s previous findings in the Aged Care case, alongside the new ‘gender-specific’ content of the Fair Work Act discussed above, members should anticipate an increase to at least some of the minimum rates in the priority awards. The key question will be: which rates (and by how much)?