Women workers under fire
By Lisa Macdonald
The federal sex discrimination commissioner, Sue Walpole, last month announced new "codes of practice" for employers on sex bias in the workplace. Walpole will carry out nationwide, random audits of employment practices by companies with the aim of "tackling systemic discrimination". She hopes that the new codes of practice for areas such as equal pay will become the "recognised minimum standard".
The commissioner, however, has no legal power to force companies to comply with the audit, let alone change their practices. The futility of the exercise is indicated by the Chamber of Commerce and Industry's immediate objection to the scheme, arguing that its members are doing enough to support equal opportunity. Considered further in light of the federal Coalition's Workplace Relations and Other Amendments Bill, a "voluntary" audit scheme as a means of addressing sex inequality in the work force is pure tokenism.
Over the last few decades, women's participation in the Australian work force has increased dramatically. It is almost exclusively because of women's waged work that average household incomes have been maintained in relation to the cost of living.
While women are still concentrated in the lowest paid and least secure, least unionised and least satisfying jobs, over those years women won the right to equal pay and have participated in and led successful trade union struggles for a wide range of other workers' rights. The government's new industrial relations bill (the subject of a Senate Economics Reference Committee public inquiry) places every one of those gains under attack.
The end of equal pay
In 1972, the trade union and women's movements won equal pay for women in minimum award wage rates. By 1990, the total earnings of women in full-time, non-managerial positions had reached an all-time high of 84.7% of men's. Following the introduction of enterprise bargaining by the federal Labor government in 1991, however, they began to fall again. Today they are down to 83.3%.
Currently, the Australian Industrial Relations Commission (AIRC) can make orders ensuring equal remuneration for women — that is, equal basic pay and equal overtime payments, bonuses, allowances, fringe benefits, superannuation entitlements.
This power, derived from Australia's obligation to observe International Labour Organisation conventions, offers the potential to address the fact that women earn, on average, only 54% of the over-award payments of men. Hairdressers (89% of whom are women) and motor mechanics (99.7% men) provide a good example. Hairdressers and motor mechanics' apprenticeship structure is similar, and the award rate for both is $433.20 per week. According to the NSW Working Women's Centre (WWC), however, average weekly total earnings are $446.70 and $572.30 respectively.
Unfortunately, the powers of the AIRC to rule on equal over-award wages for women have never been tested. On June 11, the Metal Trades Industry Association blocked a long-overdue ACTU test case — involving HPM Industries in Sydney, which paid 385 female process workers $10-25 a week less than seven male general hands employed on a lower classification — by convincing the AIRC to accept a legal technicality.
In theory, the AIRC's powers also make it possible to address the bigger problem of women's concentration in a few industries whose award payments are lower than in industries in which men are concentrated, although this too remains untested.
The Coalition's new bill repeals these powers and removes all the processes developed to detect and remedy the undervaluing of women's work. The AIRC will no longer have to take into account human rights conventions signed by Australia, including the Equal Remuneration Convention and the Convention Against the Discrimination of Women.
Cases of discrimination will now have to be taken to the Human Rights and Equal Opportunity Commission as individual cases.
The sex discrimination unit at HREOC, however, is already staggering under a 20% increase in the number of complaints last year. Combined with the 3% cut to its budget last year, the result is a backlog of cases with waiting periods of up to two years.
There are also questions about HREOC's success rate. About 50,000 people have made complaints or responded to them since the Sex Discrimination Act came into being. But according to Rosemary Hunter, joint author of The Outcomes of Conciliation in Sex Discrimination Cases, which reviewed HREOC's cases between 1989 and 1993, "people who complain about sex discrimination were twice as unlikely to come out of conciliation with what they originally wanted than those they'd laid the complaint against".
The effect of these changes on non-English speaking background (NESB) women in particular will be severe. NESB women are already seriously under-represented in both race and sex discrimination complaints received by HREOC. The Association of NESB Women of Australia says that when this is compared with anecdotal evidence of the experience of discrimination, it shows the system is not working well.
According to the WWC, many women approach the centre when, "after complaining to their employer about sexual harassment or racism at work, they have themselves been penalised — transferred to a lower paying job or even dismissed, with the explanation that they no longer 'fit in'". The removal of the AIRC's powers will undoubtedly result in many more women suffering the same fate.
The main thrust of the Coalition's legislation is to weaken, and eventually abolish, awards. It narrows what can be covered in an award to just 18 entitlements (many awards currently have 30-60).
One submission to the Senate inquiry written by a group of Asian women factory workers from the metalwork and clothing industries, who also incorporated concerns of Asian women outworkers and workers in the hospitality and cleaning industries, points out, "The reason awards are so complex is because of protections that have been gradually introduced to respond to the exploitation of workers like ourselves who are in a very weak position ... Many of the women in our network do not receive even the basic conditions under the current award system because they do not know the details of their entitlements or they are too scared to ask. If employers are given very minimal awards, there is no doubt that some would deny workers many of our existing rights."
Asian Women at Work (AWW) also points out that the proposed "simplification" of awards will remove clauses which give coverage to clothing trade outworkers, resulting in outwork becoming "legalised exploitation".
The replacement of paid rates awards by the minimum award will also mean that where awards currently specify a pay scale corresponding to experience or level of training or qualifications, the minimum awards will specify a single minimum rate. The majority of those affected by this are in the public sector — nurses, teachers and public servants — most of whom are women.
The current industrial relations legislation includes a "no disadvantage test" that says that enterprise agreements cannot disadvantage workers compared with how they would fare under the relevant award. Under the new legislation, this will be replaced by a list of minimum conditions which must be met in certified collective agreements.
In the clothing, hospitality, retail and community services industries, which employ the bulk of women workers, these minimum conditions will exclude current provisions for rest periods at work, paid trade union or other training leave, the posting of awards and union notices at workplaces, accident make-up pay, travel allowances, specifications about when and in what form wages will be paid, remote localities allowance, occupational health and safety regulations and accident pay, and workplace amenities, including separate dressing facilities for men and women.
Currently, employers and unions which negotiate an enterprise agreement have to show how they have informed and consulted with women, NESB workers and part-time workers during the bargaining process. This will be replaced by the requirement that a "valid majority" of workers to be covered have approved the agreement.
For the first time in the federal industrial relations system, this bill will set a framework for registering individual employer-employee agreements. These "Australian Workplace Agreements", which can apply to individual contracts or non-union enterprise agreements and are "negotiated" between a worker and the boss, are intended to undermine unionism and collective bargaining.
The Coalition's onslaught on trade union rights is made easier by the fact that trade unions have already been significantly weakened by the Labor Party. When the federal ALP took office in 1983, union membership was around 52%. After 13 years of the ALP-ACTU Accord, it has dropped to 35% overall and 25% in the private sector.
Women workers especially will pay the price; according to the National Pay Equity Coalition, while a male unionist receives 8.5% more than a male non-unionist, a female unionist receives 25% more than a female non-unionist.
Polls indicate that Australian women are more inclined than men to join unions if they are totally free to do so, but only round 31% of working women are union members, compared to 38% of men. This disparity is a consequence of women workers' concentration in part-time, casual and less secure jobs, in poorly unionised industries. Combined with a tendency for women to have less experience and confidence than men to "negotiate" with their bosses, this situation will leave women especially vulnerable.
NESB women, in particular, have significantly less bargaining power compared to some other groups. Given the high unemployment levels among NESB communities, "it is inevitable that Asian women like ourselves will end up with inferior agreements rather than lose our job or not be able to get one", says AWW.
"We Asian women are not weak or foolish, but [we] are greatly disadvantaged in a system we do not fully understand and when we must negotiate in our second language."
AWW cites an example: "Some newer workers in the factory where some of us work were asked to sign an agreement which talked about being employed on 'weekly hire'. We had no idea what this meant. We went to our English class and the teacher explained the normal meaning to be that you were only employed on a week by week basis. However, the teacher checked it out with the union who explained that this was the terminology used in the award for permanent workers ... And this is only two words. How can migrant women workers be expected to negotiate an entire agreement as an equal partner? Few factories have English classes where they can go and ask these questions ... Access to unions and comprehensive awards are essential to avoid exploitation of women like ourselves."
Further entrenching the power of the employers in this process, the agreements are secret and can be scrutinised by a third party (e.g. for pay discrimination) only if a worker dares to makes a complaint. Even if they do, their case is investigated by an "employment advocate" whose brief it is to assist both the worker and the employer.
Under the new legislation, trade unions will not be allowed to enter a workplace unless members have invited them in. AWW argues that if unions' right of access to workplaces is limited, many Asian women workers will lose access to even the most basic information about their rights and entitlements, which is usually available only in English-language documents riddled with legalese.
Even under the current system, says AWW, many women put up with low pay, deteriorating health and enormous personal stress simply because they don't know there is something they could do about it. "Our experience in the workplace is that employers make use of the fear and ignorance of migrant women workers to maximise pressure at work and minimise conditions ... the workplace atmosphere is marked by intimidation, harassment and pressure to reach targets." Levels of exploitation similar to that experienced by outworkers can be expected in other industries if unions do not have access to workplaces and workers are forced to negotiate their own, secret, agreements with bosses, they say.
Casual work in Australia grew from 17% of employment in 1986 to 24% in 1995 (30% in the private sector). Today, 75% of all part-time workers are women, and three-quarters of these are casual employees.
The Coalition's new bill specifically prevents awards from placing minimum and maximum limits on part-time hours. The Women's Electoral Lobby's submission to the inquiry points to the consequent danger that women might be "forced to work for such short periods that their earnings hardly make up for travel time and costs, child-care arrangements and clothing for work".
In fact, research by Sara Charlesworth cited in the July 23 Sydney Morning Herald shows that this is already happening: "under Labor's enterprise bargaining system, in female dominated industries ... there is a trend to move some staff from casual to permanent part-time work and to employ more people to work fewer individual hours. The employer often 'flexes up' those hours, effectively getting a casual work force on (cheaper) part-time rates."
This hits women workers particularly hard, not just because they are concentrated in casual and part-time work, but because their majority responsibility for the care of dependents in the family means that they, especially, need predictable and regular hours of work and income.
Another draconian measure to help bosses create a more "flexible" (i.e. exploitable) work force relates to the pursuit of justice for unfair dismissal. Under the legislation, a $50 filing fee will have to be paid by workers claiming unfair dismissal. In addition, the AIRC can order a worker to pay the employer's legal costs if it is judged that he or she has made the claim "without reasonable cause".
During the WWC's first 18 months of operation, more than 25% of the 2000-plus inquiries from individual women concerned unfair dismissal. This was the single most common inquiry, followed by inquiries about employment conditions, pay rates and sexual discrimination and harassment. The $50 fee, says the WWC, would mean that the majority of women who seek their assistance could not afford to lodge a claim.
NESB women workers — who have poorer language skills, understanding of their rights and entitlements; are concentrated in low paid, insecure employment; and will inevitably end up with workplace agreements that give them less protection — are particularly vulnerable targets for unfair dismissal and less likely to have the resources to lodge a claim.
A further concern is that only workers covered by a federal award or agreement will be able to use unfair dismissal laws under the new bill. (Currently, anyone lacking protection under their state laws could use federal tribunals.) The majority of women workers, however, are covered by state awards.
Minister for industrial relations Peter Reith has declared that the Coalition's bill will "liberate" women from the restrictions of "male-dominated" unions and give them their "first opportunity" to bargain directly with their employers. This is yet another Coalition lie. Without a strong, independent and comprehensive trade union movement, the overwhelming majority of women workers will be even worse off than they are today.