Meg Smith
University of Western
Sydney

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The most recent phases of pay equity reform have highlighted the importance and value of explicit guidance.
Outside of the more recent ‘test case’ proceedings in state jurisdictions gender pay equity has not been an area of labour law that has been characterised by imaginative decision-making.
There remains a requirement for particular
‘marker points’ of inequity/undervaluation to be captured by a specific direction to FWA members.

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 give explicit focus to the issue of undervaluation as a means of assessing whether the objective of equal remuneration has been met liberate the FWA’s capacity to assess whether rates of pay for feminised work are properly set because it would not revert routinely to a male standard if based on the concept of undervaluation be superior to a work value principle as a means to achieve the objective of equal remuneration provide useful guidance on the methodologies open to applicants.
In doing so, it could address the ambiguity created by the
Explanatory Memorandum.
[ideally inform also proceedings concerning modern awards objectives]

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The Queensland ERP makes it abundantly clear that gender discrimination is not required to establish undervaluation, and nor are comparisons within and between occupations and industries.
The Queensland ERP is also useful in specifying a nonexhaustive list of matters that may guide the tribunal in its consideration of whether past assessments of the work and remuneration have been affected by the gender of the workers.
There is specific guidance concerning assumptions about the merit or otherwise of prior work value assessments.
These marker points have been referenced by the QIRC in its application of the Principle and have facilitated the Commission’s use of equal remuneration components to remedy undervaluation.
There is no reason why a federal ERP could not and should not do the same.

 Debate should not be viewed in either/or terms
 Debate gets mired by contrasting views of regulation
 Provisions in the FW Act, facilitated by a
ERP, are still required particularly for award reliant workers