Equal to a man, or less?
Measured by brains, intellect, wit and intelligence.
By merit in argument,
By merit in wisdom,
By merit in capacity and drive, in energy and spirit, in expertise and commonsense,
In common endowment, specialised qualification.
By wisdom in brainpower,
By intellect in contribution,
By wit in management and style,
By intelligence in creativity.
Is a woman’s worth equal to that of a man?
Or is she worth more than man ever dreamed of, or gave credence to,
tribunal made measure of,
commission gave value to,
judges judged wisely of,
world in dominant perspective granted measure to?
Is not a woman’s worth worthy of merit?
Last century, women believed we had achieved equal pay. Equal pay cases in 1969 and the 1970s told us we had. Abolition of rules requiring women to resign upon marriage or transfer to temporary posts was an impetus to getting women on equal career paths. Affirmative action designed to get women into 'non-traditional’ jobs gave women access to higher levels of pay once quarantined 'for men only'.
Yet this century, at the start of a new millennium, is equal pay a reality?
Do women have equal access to 'men's jobs' and, once there, equal access to promotion, bonuses, packages, overaward payments?
Do women in 'women's jobs' have equal status and recognition as men in men's jobs - or even men in women's jobs?
In this, the new millennium, where do women stand in the equal pay stakes, in representation and reality throughout all levels of the job hierarchy? Where has the effort and the energy gone, the grand achievements we all saw as leading us firmly and forthrightly on the pathway to fair and equal remuneration, fair and equal reward, fair and equal acknowledgment of our talents, abilities, energy and commitment to the world of paidwork and fulfilled career lives?
In ‘Women’s Accommodative Strategies in the Labour Market’, published in 1996, Clare Burton - whose life and work this lecture commemorates, and to whose death it is a testament - spoke of the ‘mobilisation of masculine bias’, a phenomenon underpinning discrimination against women in paid employment (and its corollary and inevitable companion, women’s unpaidwork). Discrimination, she said, ‘operates from the point at which recruitment and hiring begins, right through to the point where women exit the organisation’:
Bias can be traced from the point at which women and men are ‘allocated’ to different jobs, resulting in a ‘custodial’ socialisation for women while men perform the more challenging tasks …, through to the effects, over time, of this separation of ‘men’s’ work and ‘women’s’ work.
The effects are found in job definition, job images … and in the value attributed to the work being done … [ They also have a] shaping effect … on the form and character of classification and occupational structures, of ‘internal labour markets’ …
[ T]he ‘politics of skill’ [ are] played out, such that women’s work is defined as unskilled …, or [ women’s] performance is perceived as a function of effort rather than ability …, with many variations on these themes [ are] reported and analysed in the literature …
One outcome of (and, indeed, a medium for) all this … is that the value attached to ‘women’s’ work is lower than that attached to ‘men’s’ work. That value casts a shadow on women themselves; starting salaries are lower, and jobs they perform in, in their turn, are seen as less complex than identical or equivalent men’s jobs. But attempts to achieve pay equity appear thwarted by the social values embedded in the market place …., which are hard to dislodge within the organisational and industrial arenas … [ G]ender is a basic structuring principle within work organisations …[ 1]
This basic structuring principle infuses and infects the workplace, so that both women and men, along with industrial tribunals peopled, now, by men and (fewer) women, are influenced by it, mostly without knowing this is so. Even we who may acknowledge it do not recognise how deeply within ourselves and the structures within which we work the principle is based, and how broadly it dictates not only external measures of our worth, and our work’s worth, but our internal assessments of the value of our own work, and the value we place upon ourselves.
Time and again, over and over, women have fought to bring about a revolution in the way in which payrates are set, and women’s work is set by them. Over and over, time and again, we have appeared to have won at least a small measure. Then come the backward steps, or subversion by dominant notions of work value and women’s worth. Too often, when we make real gains, there is an implication that the winning of the principle is enough, without the practice that goes along with it, as if words are sufficient for women, not the making of the words meaningful.
This is the principle of ‘no change’, when women are required to be satisfied with ‘what is’ rather than ‘what might be’, or satisfied with ‘wins’ that measure lower on the scale, because the first prize remains elusively positioned, and taken out of women’s grasp.
In the 1970s, we told ourselves women had to be ten times better than a man to gain the prize - that sought after job, the elusive appointment, recognition of her work as worthy, a ‘male-equivalent’ salary , a position on the higher rungs of the ladder, however lowly the ladder might be, whether positioned way below the glass ceiling or deep beneath the arches of the concrete canopy.
Today, as Clare Burton says, it is ‘the odd woman who will rise to positions of influence and power, the peculiar exception to the rule’.[ 2] This comes about not because she is ‘ten times better than a man’, but because the culture of organisations necessarily moves to accommodate in as limited a way as possible pressures from outside groups, so that the existing patterns and practices suffer least incursion. Mostly, they are able to swallow up this ‘peculiar exception to the rule’ so that the exception becomes a part of the structure, often adhering even more solidly to ‘the rules’ than those who are a ‘legitimate’ part of the structure, for they are a part of the dominant group. Sometimes, resisting incorporation into the structure and denial of their own unique capacities, the ‘peculiar exception to the rule’ is spat out in consequence of refusing to conform to structural requirements, or leaves because conformity becomes too difficult, the dissonance between the woman and the part she must play to survive within tells her mere ‘survival’ is not enough - or that she must abjure the structure, give up the position, and leave to survive.
And amidst all the talk of ‘some’ women ‘making it’ into the upper echelons, what we now know, or what we have learned through the observation of structural change in the face of legitimate claims, is that the woman might be ten times ten times better than a man - but will gain not the equivalent position, appointment, salary or promotion as that man, but one somewhere still beneath. It may no longer be the bottom rung (though there are lots of women there, clustered in the lowest paid, part-time and casual jobs, with few chances for promotion and less for male-equivalent wages, beneath the concrete canopy without a window insight, far less a sky through a glass ceiling, however darkly). This job will be positioned strategically, only as high as necessary, to give an illusion of ‘fairness’ or evenhandedness, but not to rock the boat.
So it is that, striking a home run, she finds a barrier beyond first-base.
How did we get here, and how do we move on?
Founding the Struggle - A Century and More
The 1970s campaigns for political party and politicians’ recognition of women’s rights as an important plank had their precursor in the activism of women of the 19th and early 20th century. In the 1906 New South Wales election campaign, members of the Women’s Progressive Association promoted as a pre-eminent measure of every candidate’s suitability for election his commitment to the rights of women. They lobbied for a ‘yes’ or ‘no’ vote for all candidates on support or rejection of the eight planks of the Association’s platform, four directly relating to women’s industrial rights:
· the right of women to enter the legal profession;
· amendment of the Shops and Factories’ Act so as to ensure its reach into the furthest country districts to prevent sweating;
· to ensure effective legislation against sweating and attendant evils;
· equal pay for women with men for work of equal merit.
The outcome of this election was of particular concern to women, for a number of bills in which they had a direct interest were before parliament when it was prorogued. The Women’s Progressive Association focused on the social measures contained in the legislation, and particularly on the Truancy Bill. Girls had a right to an education, declared the Association. Too often, parents kept girl children at home to do housework and other household chores, including the care of ill parents or grandparents. Boys rarely met the same fate. The Truancy Bill would put an end to this difference in treatment. More importantly, the Truancy Bill should ensure that girls, like boys, were legally acknowledged as having a right to be educated. Girls’ education would no longer take second place or be seen as irrelevant. The Truancy Bill supported girls’ access to education, for it required not only that both girls and boys should be enrolled in school, but that they should attend regularly. Once educated, the Association demanded, girls and boys, women and men should benefit equally from their qualifications in being rewarded with equal pay.
In 1906, as in the nineteenth century, education, training and access to trades and professions, and equal pay were high on the agenda of individual women, and of women’s organisations. Prospective members of parliament – those who would be returned, and those to be newly elected, were asked to state their position publicly on each of the bills affecting women which had not been passed in before the proroguing of parliament.
For the Association, legislation supporting and promoting the status of women was a key issue. To attract the attention of government, candidates, and the press, on 16 June 1906 a petition was circulated widely amongst candidates and the public, calling support of social justice legislation:
You are earnestly requested to endeavour to have the following Measures of Social and Domestic Reform passed into law during the ensuring Session: -
1.- To ensure legislation against sweating by enacting that no child on beginning work in a workroom, hops or factory shall receive less than 5/- per week; and no worker over 20 years of age less than 25/- per week.
2.- That the Factories’ and Shops’ Act be mended to include all country districts; and the Early Closing to include all who are engaged in or about, or in connection with shops, storerooms, distributing depots, refreshment rooms, hotels and restaurants.
3.- Equal pay for women with men for work of equal merit.
4.- The right of women to enter the legal profession.
5.- The Girls’ Protection Act.
6.- The Family Maintenance Bill.
7.- The Passing of a City and Suburban Building Act to ensure that all dwellings shall be built with modern sanitary appliances in regard to drainage, sewerage, light, ventilation, and bath room.
President Annie Golding, secretary Miss Beck, treasurer Mrs T. Chapman and honorary general secretary Mrs K. Dwyer featured for decades in debates and activism surrounding women’s rights. They were joined by confederates on the other side of the Nullabor, when the Women’s Service Guilds pursued a similar campaign in the 1910 federal election. Candidates were sent a list of questions, one of which asked:
Like the National Council of Women from 1896 onwards, the Women’s Service Guilds recognised that women’s ‘economic equality with men in wrapped up in the principle of Equal Pay’. In 1910, with the election won by Labor with a clear-cut majority in both houses, women asked if the right to fair industrial conditions and a fair day’s pay for a fair day’s work would be extended by Andrew Fisher’s government to women, or whether Alfred Deakin’s Liberal Protectionists and Joseph Cook’s Free Traders would be the better bet. They lobbied all, writing letters, holding rallies, accosting members and ministers, premiers and prime ministers.
In 1912, the Clerks’ Union requested that the Women’s Service Guilds chair a mass public meeting calling for equal pay. The Guilds agreed, flyers went out, and the venue overflowed. A resolution in support of equal pay for men and women clerks was carried unanimously and remembered in the lead up to the 1969 equal pay decision:
Almost ten years before the Women’s Progressive Association took their aim at New South Wales politicians, and fifteen before the Women’s Service Guilds pursued the issue with federal candidates, the socialist journal Tocsin debated equal pay in its correspondence columns. On 28 October 1897, ‘Suffragist’ replied to a writer arguing against equal pay. Unequal pay was not only socially and industrially unjust, but held grave consequences for tradesmen and labourers, as did any policy based on unequal wages. Men’s jobs would be at risk, with women daily becoming more skilled and competent:
The men in the higher professions are wise enough to grasp this principle, and there would be an immediate outcry were women doctors to charge lower fees than the men.
Not only socialist women believed in the principle of equal pay for equal work. By 1893 equal pay ‘as a matter of justice for both sexes’ was firmly fixed as a tenet for the Women’s Christian Temperance Union (WCTU). Three years later, the newly established National Council of Women adopted the principle, with the first congress, held on 28 and 29 October 1903, including papers by Miss M.G. Cuthbertson (later a factory inspector and expert witness in the 1919 Federated Clothing Trades case) and Mrs E.F. Allan (a member of the Aotearoa/New Zealand NCW) on ‘Factory Legislation’ and ‘Equal Pay for Equal Work’.
The struggle for equal pay was centered in both theory and practice. Women working in factories and shops, and as telegraphists and postal clerks, were in the forefront of demands. In the 1880s, seamstresses in Melbourne went on strike for improved industrial conditions and rates of pay. The factories in Flinders Street, Melbourne and the workrooms in the Horderns Building in Elizabeth and Goulburn Streets in Sydney were held up by factory inspectors, reporting on the industry in 1886, as ‘well ventilated and well kept’.[ 5] Yet this was not the norm. Machinists, cutters, pressers and others worked in damp and dank conditions in cellars and basements, ramshackle shops, and airless rooms filled with dust and the steady drumming of treadles working the sewingmachines well into the 1880s. In 1882 the Age ran a series of articles highlighting the low pay and long hours worked by women in the industry. On 10 December 1882 some 500 to 600 women workers marched to Trades Hall, holding a meeting where they called for better conditions and equal pay. On 15 December, 300 or so formed themselves into the Victorian Tailoresses’ Union, calling for uniform rates of pay for tailoresses. Negotiations faltered, and on 15 February 1883 some 1200 women went on strike, staying out until April, when some had their claims met, whilst others were forced to ‘give in’ to the lower rates proposed by other employers.
Like the Clothing Trades Union and the Telegraphist and Postal Clerks Union, which in Victoria launched official demands for equal pay in 1900 and 1902, teacher unions were intent on pursuing the claim. In August 1912 the cooperation of the National Council of Women of Victoria was sought by the Victorian Lady Teachers’ Association in their struggle to gain parity in male and female salaries. At that time, the doctrine that ‘God created men and women differently’ prevailed in Queensland state schools. It was replicated in schools around Australia, with the admonition that, rather than being in competition with men, women should occupy a separate and different sphere of influence. This restricted women’s employment opportunities in teaching as elsewhere. But women in all states fought to gain recognition in the teaching field. They saw that their legitimacy in the profession was closely associated with their right to equal pay (or lack of it). Female teachers claimed equal pay with male teachers on the basis that they had identical qualifications and did the same or similar work, rendering any distinction was spurious.
Yet the women’s confident claims to equality were not matched by the determinations of those who had power to grant or withhold the bounty. In the 1913 Royal Commission into Women Teachers Pay, Commissioner Morrison ignored that women were working as teachers alongside men as well as specialising in infants’ teaching, a field equally as taxing and equally dependent upon intellect and communication skills as teaching older age groups or managing schools, whilst women teachers also frequently found themselves consigned to the most difficult work, the classes at the ‘bottom’ of the hierarchy. Male teachers were more often in charge of the classes with the ‘top’ students; women had the ‘difficult’ ones. In accordance with stereotypical assumptions and mere assertion, Commissioner Morrison found:
Equality of women with men, either from a physical or an intellectual viewpoint, cannot be accepted as an unimpeachable doctrine. The great things of the world have, with rare exceptions, been achieved by men, and while it is freely admitted that woman has done a great deal in her own sphere of womanhood, she is, by reason of her natural frailty of body, unfitted to bear .. the physical strain inseparable from the vocation of a teacher … in a crisis men endure strain better than women.[ 6]
Accordingly, equal pay could not be extended to women in the teaching profession.
Yet in the Commonwealth Arbitration Court, at first glance it appeared that a different approach was being taken. Confronted with women working the orchards of Mildura and Renmark as fruitpickers alongside men, Justice Higgins acknowledged that a fruitpicker is a fruitpicker is a fruitpicker. Or, in other words, men might more likely be fruitpickers, and women more often be fruitpackers, but fruitpicking is not a sex-linked skill warranting different wage rates for women and men.
In the Fruitpickers Case, workers were on strike to secure fair rates of pay for an eight-hour day, with additional rates for overtime. The Rural Workers’ Union and the United Labourers’ Union of South Australia supported the workers against Mildura and Renmark growers claims against eight shillings for women and men (the unions’ stand), and for rates of seven shillings a day for men, five and sixpence for women; for boys of seventeen to nineteen years, six shillings a day, with girls meriting four shillings and sixpence a day only.
Justice Higgins travelled out to Mildura and Renmark to see the picking fields and packing sheds and view the work at first hand. ‘Equal pay for equal work’ had ‘an attractive sound’ and ‘seemed to carry justice on this face,’ he said, ‘for, obviously, where a woman produces as good results as a man in the same kind of work, she ought not to get less remuneration.’ Yet this meant, too, for Justice Higgins, that unequal work should receive unequal pay. His ‘equal pay’ principle restricted it to men and women doing work ‘of the same character’, with a minimum wage paid to anyone doing the work, woman or man, and below which an employer could not lawfully go. Employers could pay above the minimum rate to ‘exceptionally good workers whose services he desires to secure’. As well, the employer would be ‘free to dispense with the services of any worker who does not come up to his standard’:
Nothing is clearer than that the ‘minimum rate’ … means the minimum rate for a class of workers, those who do work of a certain character. If blacksmiths are the class of workers, the minimum rate must be such as recognises that blacksmiths are usually men. If fruitpickers are the class of workers, the minimum rate must be such as recognises that, up to the present at least, most of the pickers are men (although women have been usually paid less), and that men and women are fairly in competition as to that class of work.[ 7]
By setting the minimum wage for fruitpicking at the ‘male’ rate, Justice Higgins said, employers would be prevented from driving men out of the industry, or forcing the wages of fruitpickers down:
There has been observed for a long time a tendency to substitute women for men in industries, even in occupations which are more suited for men; and in such occupations it is often the result of women being paid lower wages than men ... I come to the conclusion that in the case of the pickers, men and women, being on a substantial level, should be paid on the same level of wages; and the employer will then be at liberty freely to select whichever sex and whichever person he prefers for the work. All this tends to greater efficiency in work, and to true and healthy competition – not competition as in a Dutch auction by taking lower remuneration, but competition by making oneself more useful to the employer.[ 8]
This illustrates the conundrum present in all equal pay and equal power struggles, this century, last century and the one before that. A victory for women in the fruitpicking industry? On some readings, yes, even anticipating the next step (60 years later) – equal pay for women doing work of equal value, as an advance on ‘equal pay for equal work’. Yet it can also be interpreted as a means of securing jobs in fruitpicking for men alone – once employers had to pay women ‘men’s wages’, they would employ men and dispense with women. Furthermore, this possibility was not the only problem. At the same time as establishing women’s ‘right’ to equal pay for work of the same character as that performed by men, Justice Higgins cemented into the federal arbitration system a substantial inequality in rates of pay for women and men.
Not only did the Fruitpickers case eliminate unequal pay rates for women in fruitpicking. Simultaneously it confirmed unequal pay rates for women in fruitpacking. The minimum rate for men and women pickers ‘in competition’ with one another was fixed by Justice Higgins at one shilling per hour; but the minimum for women workers in fruitpacking, ‘in which men are hardly ever employed’, he fixed at ninepence per hour. This he did on the basis that women ‘had lesser costs of living than men’. Although the women were, he held, particularly suited to packing work, their superior skills and competence did not gain them more remuneration - rather, less:
[ The work of the] lighter operations of packing at a factory … is essentially adapted for women with their superior deftness and suppleness of fingers. The best test is, I suppose, that if the employers had to pay the same wages to women as to men, they would always, or nearly always, employ the women; and in such work as this, even if the wages for men and for women were the same, women would be employed in preference … I must, therefore, endeavour to find a fair minimum wage for these women, assuming that they have to find their own food, shelter, and clothing.[ 9]
Why should the women not be paid in recognition of their ‘suitability’ to the work? If women predominated in packing, as a consequence of their ‘superior deftness and suppleness of fingers’, why should the rate not be set at that which (mainly) men gained in picking, where they predominated – presumably because they were perceived as ‘better’ at it? Because neither job was classed as ‘skilled’, skills were not essential to the calculation of worth in setting remuneration levels. Rather than setting an equal ‘unskilled’ minimum rate, however, Justice Higgins found his only guide as the ‘cost of living’: to be different for a woman than that for a man. Why? Because whatever the facts of women’s family responsibilities, men were class as breadwinners and thus to be paid more. Women as ‘dependents’ - whether in paidwork or not - were necessarily to be paid less. This differential between women’s and men’s income in the minimum wage lasted until 1974 when women’s organisations fought it through the Commonwealth Conciliation and Arbitration Commission and succeeded in having the male minimum wage extended to women - whereupon it was promptly abandoned as a wage measure.
Thus was one of the ‘second prize’ principles established in wage-fixing:
· women win a benefit or standard known to men, whereupon it loses value, becomes valueless, with the win negated into nothingness.
Ironically, there was no evidence before the Arbitration Court in the Fruitpickers case about the cost of living of women. Justice Higgins made a number of assumptions based in supposition, not on facts:
· he asserted that ‘the greater number of bread winners still are men’;
· he noted that there was ‘little or no evidence’ before him as to women packers’ expenses;
· he averred that the ‘usual cost for board and lodging when it can be procured is stated to be 17s. or 18s., but this figure seems to be primarily applicable to males’ – upon what basis, he did not say;
· he noted there is ‘considerable difference between males and females – say, from the age of fifteen onwards – on the expense of dress’ – yet did not apply this as a reason for increasing the minimum rate for women, or making it equal to that of men.
The argument for holding ‘women’s wages’ down in those parts of the industry dominated by women (the packing sheds) was that raising ‘women’s wages’ to ‘male rates’ would be too costly to the employer.
Last Century’s Decades of Denial: When Equal Pay Isn’t
The WAC decided to have a tram ride and pay seventy-five per cent of the fare to draw attention to wage injustice. Equal pay was refused but we were expected to pay the full price of all goods and services. I undertook to see Charlie O’Dea the secretary of the Public Transport Workers’ Union. Charlie was a Marxist Leninist and another ‘revolutionary’ of all ‘revolutionaries’ … We wanted him to chat up the conductors or conductresses so they wouldn’t mistake our intentions. We had no differences with these workers and did not wish to embarrass or alienate them.
… Charlie … was flabbergasted … He went on and on. I told him we had discussed the matter in complete seriousness and would go ahead with it, and I asked if he would chat up the staff up to avoid embarrassment. He began to mutter and stammer ‘Oh this is a very serious matter,’ and turned on his heel … I gazed at his retreating back. This was the man who went to jail as a hero.
In 1969, following in the footsteps of sisters in struggle for centuries, Zelda D’Aprano and her colleagues took a proactive approach to equal pay. Three years later:
In a muted way the new Federal Labor Government of Gough Whitlam, elected in December 1972 … expressed, and all too briefly reinforced, the radicalisation of Australian society and the impact of New Left ideology … Within weeks this government recognised China, ended conscription, abolished race as a criterion of immigration policy, began reform of the health service, supported equal pay for women, banned racially selected sporting teams, abolished federal British honours, increased arts subsidies, put contraceptives on the medical benefits list, moved to stop the slaughter of kangaroos and crocodiles, and searched for new national anthem.[ 11]
Then, by the end of the 1970s:
… as the Australian Hotels Association pointed out to the New South Wales parliamentary inquiry on liquor trading, ‘more and more younger women who drink are preferring to do so in hotels’ because of ‘the influences of equal pay for women and a more liberal attitude by male drinkers to women in bars. Indeed the modern multi-services hotel has increasing appeal for young married to accompany their husbands to hotels, providing opportunity for relaxation together and strengthening their family bonds.[ 12]
‘In a country living on its wits, with half the wits in female heads the underutilization of the potential earning power of women is a frivolous extravagance,’ wrote a Reader in Personnel Management at the London School of Economics in the London Times of 27 April 1970. Meanwhile, in Australia, as white Australia celebrated the bicentenary of Captain Cook’s arrival in Australia, Indigenous Australians mourned it. At the ACTU Albert Monk retired from the presidency, to be replaced by R.J. Hawke. Moratorium rallies were held all over Australia, pledging an end to the war in Viet Nam. In May, led by federal Member of Parliament Jim Cairns, more than 70,000 marched in the streets of Melbourne. In September, 200 marchers were arrested in Sydney, and 100 in Adelaide. In October, Melbourne’s West Gate Bridge collapsed, killing thirty-five bridge workers. Unionists imposed Black bans on the redevelopment of inner-city Carlton, whilst Germaine Greer’s The Female Eunuch was published alongside Shirley Hazzard’s The Bay of Noon. In Sydney that July, at the age of eighty-one, Jessie Street died.
Although recognising the inadequacies of the 1969 Equal Pay Case, women and women’s organisations did not take a collective approach to the problem. From 1969 to 1985, the Australian Federation of Business and Professional Women (AFBPW) appeared to accept that the fight for equal pay was over. It no longer sought leave to appear in industrial commissions or tribunals, concentrating instead on funding scholarships for young women and encouraging professional development.[ 13] Some organisations – such as the United Associations of Women, Australian Service Guilds and Australian Federation of Women Voters - wound up or moved into a less activist mode, with organisations such as the Women’s Electoral Lobby adopting some of
their techniques or capturing the imagination of women who in past decades might have been drawn to membership of these longer existing organisations. The Housewives Association continued its lobbying against rising prices of household goods and groceries, joining together with the Union of Australian Women in its Campaign Against Rising Prices (CARP) which led to the establishment of the Prices Justification Tribunal in the early 1970s. Some women retained their longtime membership of the ‘older’ women’s groups, at the same time taking up membership in the Women’s Electoral Lobby, Women’s Liberation or other groups that sprang up at this time.[ 14]
The Union of Australian Women (UAW) was ‘campaigning on many fronts’ at the start of the 1970s: against the Viet Nam war, conscription, high prices and the use of penal powers against trade unions and trade unionists, and for better living standards, equal pay, improved maternity leave provisions and allowances, and pre-school education. There was action for them internationally, too, in solidarity with women in South Africa, Viet Nam and Greece.[ 15] Like the National Council of Women, they intervened in the 1970 Equal Pay and Minimum Wage Cases, but the split in the Communist Party of Australia (CPA) affected the organisation, for many women had dual membership. Some UAW leaders left to join the newly established Women’s Liberation Movement.
Up to the 1970s, the struggle for equal pay was characterised by the efforts of women to work across class and Party lines, and to ensure they built on support and potential support within unions. Women made continuing and renewed efforts to have unions adopt principles and standards devised by women within and outside unions. The prime example was the Working Women’s Charter, as well as the setting up of the Women’s Trade Union Commission (WTUC).[ 16] Other women rejected unions completely. Generally, this was not (as was the case for some in the past) for reasons of ‘snobbery’ – dissociating themselves from the appellation ‘worker’ and so refusing to join the union, in the misguided belief that this would elevate them into a realm outside the working-class or separate them from the less economically well-off, somehow catapulting them into the ranks of the economically advantaged. Rather, it was because they saw the unions as dominated by men, a male hierarchy and male oligarchy impervious to women’s voices, unable to recognise or acknowledge the legitimacy of women’s industrial claims, or even to see there were claims there, at all.
The National Wage Case began in the Commonwealth Conciliation and Arbitration Commission in July 1972, and ran through part of the second half of the year. Concluding arguments heard, the Commission adjourned to consider and write its decision, with women left in little doubt that no advances would be gained for them when the decision was finally known. Despite a general recognition that the 1969 Equal Pay Case principle of ‘equal pay for equal work’ was a narrow concept providing little hope of equal pay for most women in paid employment, the federal government joined with the employers in arguing against any widening of the scope of the existing position.
Then, on 2 December the Australian Labor Party slogan ‘It’s Time’ saw the ALP win government after twenty-three years on the Opposition benches. One of the first steps taken by Gough Whitlam as Prime Minister was to re-open the National Wage Case, reconstitute the government’s case as one asking the Commission to adopt the concept in federal awards of ‘equal pay for work of equal value’, and appoint Mary Gaudron as Counsel to appear for the federal government in what now became known as the 1972 Equal Pay Case.
The basic wage was not the only matter in issue. The male minimum wage had never extended to women. One of the major planks in the unions’ argument was that ‘as a simple matter of equity’ this should be reversed. Women ‘should receive the same minimum wage as males’. The Commission rejected that claim by once again calling upon the ‘family wage’:
The fact that the unions consider the amount of the minimum wage to be too low does not to be too low does not affect the concept behind the wage. Because of the essential characteristic of the male minimum wage [ taking into account family considerations] we decline to apply it to females and we dismiss that part of the unions’ claims.[ 17]
With equal pay, the Commission defined its task as having to decide ‘whether in the present social and industrial climate it is fair and reasonable that the 1969 principle should remain unaltered’. This, it said, involved the Commission in ‘making assessment of what, if anything, has happened in the area of equal pay since 1969 which would make it just and proper … to alter those principles’. When the ACTU made its submissions, the Liberal government was still prevaricating on the ratification of international treaties supporting industrial rights. The Commission acknowledged the existence of International Labour Organisation Convention 100 as the basis of domestic advances in pay equity. But it was not until the Labor government ratified ILO Convention 100 on Equal Pay, ILO Convention on Discrimination in Employment and Occupation, and the United Nations Convention on Civil and Political Rights, that their full impact could be felt.
Concentrating more upon changes in state legislation than on international developments, the Commission nonetheless did take into account equal pay developments in the passage of the 1970 United Kingdom Equal Pay Act and the 1972 Equal Pay Bill then advancing through the Aoteroa/New Zealand Parliament. ‘All of these changes,’ said the Commission:
… require us to reconsider the 1969 principles and to look at them in the light of present circumstances. We have given consideration to merely amending those principles but we consider it is better for us to state positively a new principle. In our view the concept of ‘equal pay for equal work’ is too narrow in today’s world and we think the time has come to enlarge the concept to ‘equal pay for work of equal value’. This means that award rates for all work should be considered without regard to the sex of the employee.[ 18]
General principles were then set out, to be implemented by individual Commissioners in cases coming before them.
In determining on those general principles, the Commission rejected two arguments put by the employers, first:
· that males would seek to restore their pre-existing wage relativities with females; and second,
· the economic costs of the decision.
The first argument was rejected on the basis that there was no evidence that this had occurred after the 1969 decision. In any event, the Commission said, such an argument would not be accepted by the Commission as valid if it were put by male workers in future cases. The granting of equal pay would not, said the Commission, be ‘a valid argument that males should have their pre-existing wage relativities restored’. As for the second argument, the Commission said that giving imprimatur to equal pay for work of equal value would result in substantial wage increases when implemented. The Commission said it was valid to consider ways of implementing the principle so as to temper the immediate impact, but:
The Commission said that ‘equal pay for work of equal value’ should be applied to all awards, and to both adults and juniors. By ‘equal pay for work of equal value’, the Commission meant:
… the fixation of award wage rates by the consideration of the work performed irrespective of the sex of the worker.
Further, the Commission held that adoption of the principle required female rates to be determined by work value comparisons without regard to the sex of the employees concerned:
Differentiations between male rates in awards of the Commission have traditionally been founded on work value investigations of various occupational groups or classifications. The gap between the level of male and female rates in awards generally is greater than the gap, if any, in the comparative value of work performed by the two sexes because rates for female classifications in the same award have generally been fixed without a comparative evaluation of the work performed by males and females.
In all cases, the eventual outcome should be ‘a single rate for an occupational group or classification’, the rate being payable to the employee performing the work, whether the employee is male or female. ‘Equal pay for work of equal value’ could, said the Commission, be applied through agreement between parties, or by arbitration. When implemented by arbitration, the Commission would have to exercise ‘the broad judgment which has characterized work value inquiries’. Different criteria would continue to apply from case to case and could vary from one class of work to another, as with work value enquiries generally. But, said the Commission, work value enquiries concerned with comparisons of work and fixation of award rates irrespective of employees sex may encounter ‘unfamiliar issues’. Issues arising in particular cases which had not been adverted to by the parties in the Equal Pay Case would, said the Commission, have to be dealt with as they arose. However the matters which had been drawn to the Commission’s attention required immediate consideration by the Full Bench. There were six:
(a) The automatic application of any formula which seeks to bypass a consideration of the work performed is, in our view, inappropriate to the implementation of the principle we have adopted. However, pre-existing award relativities may be a relevant factor in appropriate cases.
(b) Work value comparisons should, where possible, be made between female and male classifications within the award under consideration. But where such comparisons are unavailable or inconclusive, as may be the case where the work is performed exclusively by females, it may be necessary to take into account comparisons of work value between female classifications in different awards. In some cases comparisons with male classifications in other awards may be necessary.
(c) The value of the work refers to worth in terms of award wage or salary fixation, not worst to the employer.
(d) Although a similarity in name may indicate a similarity of work, it may be found on closer examination that the same name has been given to different work. In particular this situation may arise within generic classifications. A similar situation may arise with respect to junior employees. Whether in such circumstances it is appropriate to establish new classifications or categories will be a matter for the arbitrator.
(e) In consonance with normal work value practice it will be for the arbitrator to determine whether differences in the work performed are sufficiently significant to warrant a differentiation in rate and if so what differentiation is appropriate. It will also be for the arbitrator to determine whether restrictions on the performance of work by females under a particular award warrant any differentiation in rate based on the relative value of the work. We should however indicate that claims for differentiation based on labour turnover or absenteeism should be rejected.
(f) The new principle will have no application to the minimum wage for adult males which is determined on factors unrelated to the nature of the work performed.
The social and economic consequences of the decision would be ‘considerable’, requiring implementation over time, said the Commission. Accordingly, rates in all awards of the Commission and all determinations under the Public Service Arbitration Act should be fixed fully in accordance with the ‘equal pay for work of equal value’ principle by 30 June 1975 – that is, the Commission gave three years leeway for implementation of the decision in respect of public service salaries:
Under normal circumstances, implementation should take place by three equal instalments so that one-third of any increase is payable no later than 31st December, 1973, half of the remainder by 30th September, 1974, and the balance by 30th June, 1975. This programme is intended as a norm and we recognize that special circumstances may exist which require special treatment.
Finally, said the Commission, nothing in the decision was to be taken as rescinding the principles set down in the 1969 Equal Pay Case applicable to ‘equal pay for equal work’. The 1969 principles would continue to apply ‘in appropriate cases’. The ‘equal pay for work of equal value’ principle had been adopted by the Commission:
… because an injustice might be created in cases based on equal pay for equal work where females could become entitled immediately to male rates under those principles.
Somewhat ironically, the Commission was concerned that there should not be ‘an injustice’ between women entitled to equal pay through the ‘equal pay for equal work’ principle, and women who could not qualify through that means, but were doing work ‘of equal value’. The longstanding ‘injustice’ of ‘women’s work’ as a whole being regarded as ‘worth less’ than ‘men’s (traditional) work’ and the puzzle that women had to show that their work was ‘equal’ to that of men in some way – whether as ‘equal work’ or ‘work of equal value’ was not addressed.
Nonetheless, the 1972 decision was an advance. In contrast with the 1969 decision, the 1972 ‘equal pay for work of equal value’ principle eliminated the requirement that the work performed by female employees should be ‘the same or of a like nature’ when compared with that of male workers in order for equal pay to come into effect. Under the 1972 principle, it was sufficient to find that there was ‘equal value’ between the work performed by women and that performed by men. Further, in undertaking work value assessments, comparisons were to be made where possible within an award under consideration. But where such comparisons were unavailable or inconclusive – as in cases of work being performed exclusively by women – work value comparisons could be undertaken between female classifications within the award and/or comparisons of work value between female classifications in different awards.
The principle was also affirmed by the Commission that the value of the work assessed had to be ‘worth in terms of the award wage’, not ‘worth of the work to the employer’.
Yet still women did not have equal pay. This was borne out in the 1980s and 1990s, when women’s organisations again took the line of intervention, appearing in National Wage Cases in 1983,[ 20] 1988,[ 21] 1990-1991[ 22] and 1991[ 23]. First, women argued that there was no ‘equal remuneration’ inherent in decisions that refused to pay account to the gross disparities in women’s and men’s wages through overaward payments, benefit and bonuses accruing to men, not women, and a failure to recognise family responsibilities, childcare and other dependent care as militating against women’s equal participation at all levels of the job hierarchy and standing against women’s promotion into higher paid jobs. Secondly, women argued that ‘equal remuneration’ would not come about until it was possible to compare women’s wage rates across awards and jobs, so that ‘traditional women’s jobs’ could be reassessed as equal to ‘traditional men’s jobs’, rather than the latter always being seen as more valuable, and therefore valued more not only in status, but in pay rates, benefits, bonuses and overaward payments. Thirdly, women contended that setting down an equal pay principle does not bring equal pay into being. Industrial Commissions and Tribunals should take responsibility for the failure of their own principles to be implemented. They needed to creatively take up the challenge, rather than relying on the unions to bring cases before them, when rarely did unions apply for workvalue reasessments in fields of women’s work.
Even then, by the early 1980s, Australia was in the forefront of western nations in the equal pay stakes, apart from the frontrunner Scandinavian countries. Women had reached 83 cents in every male $, although with part-time paidwork included, this plunged to 69 cents per the male $. With unpaidwork in the equation, women’s earnings would fall even more.
But the passing of centralised wage fixing and its replacement by enterprise bargaining and more recently individual contracts or Australian workplace agreements has brought about a greater disparity between the wages of women and men. Of course, statistics can always be made to mean what their supporters wish, and the Department of Employment, Work Relations and Small Business claims that women’s pay ‘is slowly catching up with [ that] of men’ although it still rates at ‘about 90%’:
The ratio of female to male hourly earnings for full-time adults reached a peak in February 1994 of 89.1% and since then has recorded a low of 86.2% in May 1996, a high of 90.4% in August 1999, and at November 1999 (the most recent [ ABS] data) stood at 88.9% … the trend line … demonstrates the continued rise of the gender earnings ratio.[ 24]
In New South Wales and Tasmania, the re-engagement with equal pay demands came through Industrial Commissions prepared once again to revisit the equal pay principle. Following an extensive Equal Pay Inquiry in New South Wales, and in the course of the Wage Rates Inquiry in Tasmania, the Commissions adopted principles affording women a new avenue for claiming equal pay in practice. The New South Wales Commission found that undervaluation of the work of female employees existed in a number of female dominated industries and occupations, although it was not possible to identify, in all cases, a link between the level of remuneration and the gender/sex of the worker. In Tasmania, without evidence of a male-female wage differential, the Commission nonetheless held that a principle should be provided so that unions could bring claims if they wished. The New South Wales principle is based in a number of elements:
· the assessment of workvalue be objective, transparent and non-discriminatory. The assessment should be to assess the true value of work alone, not whether there have been changes in work;
· it is not necessary to find gender causation or sex discrimination in order to make findings;
· comparisons of workvalue may be taken across and within industries and occupations, between different awards and with more than one comparison if required;
· the use of comparisons is useful only because it gives a guide to the reliability of rate of remuneration;
· the essential ingredient in this principle is equal or comparable value; therefore the proper basis for comparison is not restricted to the similarity of work;
· the principle will provide for the assessment of undervaluation in itself and will not require a comparison between male and female rate of pay;
· it will no longer be presumed that rates of remuneration have been properly assessed in female dominated industries and occupations, either with regard to the equal pay principles of workvalue. This includes assessments made under previous industrial processes, such as the Structural Efficiency Principle or the Minimum Rates Adjustment process.
But as women have recognised throughout the equal pay struggle, it is not only pay rates that determine women’s industrial conditions or position in the paidworkforce. Women need to reassessment our stand in the equal pay stakes. Are our careers, and our career chances, equal to those of our male counterparts? ‘Merit’ remains a stumbling block in determining payrates and position, value and velocity through the ranks. As well, the right to be heard through commissions and tribunals and to have claims recognised, when conduct is designed to drive women out of trades and professions, or to subdue their advancement, remains in issue.
Contesting the Arena - When ‘Winning’ Means You’re On First Base
Whereas in the past women were kept out of men's jobs, trades and professions by explicit or implicit rules ruling us out, today the barriers are more subtle but, perhaps ironically, also more brutal. Bullying, sexual harassment, sexist harassment militate against women getting to 'first base' - to the full complement of benefits, power, prestige and status accorded to the men who continue to occupy the jobs, at the highest levels. At the 'lowest' levels, women are expected to perform 'like a man' and, when they do, are subjected to vilification and pressure to conform to a different norm.
There are wins through discrimination boards and tribunals, and through the courts. Women struggle against the 'war of attrition' imposed upon those who stand out against the system, or stand up to people in power who have exploited their positions or failed to make those who do exploit them accountable for their conduct.
Women can now be represented by women in tribunals, industrial commissions, courts and other forums. Women, always there in reality although too often going unrecognised by powers outside and, sadly, sometimes inside, are more and more prominent in trade unions - both on the ground and in the upper reaches of the hierarchy. Yet still women have not gained full credence and full acknowledgment in a system that where workvalue is measured by male dominated industrial commissions, and those who sit on the commissions continue to have difficulty in evaluating the work of workers who cannot emulate 'the norm' - for the norm remains determined along sex/gender lines and is not female, but male.
The primary problem is well illustrated in lawyers’ discussions about who ‘qualifies’ as judicial material, for it is the notions that are carried in the heads of lawyers that ultimately dictate outcomes through decision-making process of tribunals, commissions and courts that determine women’s worth, and whether women have paths to follow in making claims of worth.
As Clare Burton’s work made clear, ‘skills’, ‘merit’ and ‘credentials’ are words with a significant subjective content. ‘Excellence’ and ‘best practice’ are equally susceptible to weighting in accordance with standards favouring the dominant group. So too ‘capacity’:
Great care needs to be taken in trying to achieve a ‘representative’ judiciary. Judges should be chosen for their capacity alone, and not in any ‘representative’ sense. However, drawing judges from a wider panel of lawyers - and particularly women lawyers - could contribute to the development of a judiciary more broadly reflecting the composition of the community - but again, capacity must be the fundamental criterion.[ 26]
This extract from the Law Council of Australia’s Submission to the Senate Standing Committee on Legal and Constitutional Affairs (in its enquiry into bias in the judiciary), goes on to express a view which classically illustrates the problem of determining merit and skill in accordance with what ‘is’: the view that sees only the ethos of the dominant group, and that doesn’t even (apparently) have the capacity to grasp that values ‘commonly held’ or accepted as ‘right’ by the group in power may be antithetical to the great good, or to notions of what excellence, skill, merit, capacity may be if not confined to a narrow perspective:
… the current reaction [ to statements from members of the judiciary] may generate demands for the appointment of a more ‘representative’ judiciary. Depending on what is meant by ‘representative’, there could be two dangers in this. While a ‘representative’ judiciary may appear to be a worthy objective, a judiciary that is at the same time ‘representative’ of particular sections of the community - if that is what is being proposed - and ‘independent’ would seem to be a contradiction in terms. Judges should be chosen for their capacity to ‘represent’ all sections of the community, and if the suggestion is that the judiciary should be representative of the community in a board sense, then there can be no objection. A judge chosen to ‘represent’ a particular section of the community is almost b definition biased.
The second danger is that efforts to find judges who are ‘representative’ in a narrow sense could lead to a watering-down of the criteria of merit, integrity, skill, capacity and experience which are the basic measures of suitability for judicial office.[ 27]
This approach fails to address the reality that the judiciary as presently constituted does not have a capacity to ‘represent’ all sections of the community. It is not stereotyping to say that most members of the Austrian judiciary are white, male and middle-class. that is stating a fact. Yet there appears to be a barrier to those in the judicial world actually reognising their own characteristics and those of their fellow judges. It is not ‘stereotyping’ to say that most judges are male. It is not ‘stereotyping’ to say that most judges are I the older age group. It is not unfair to make a public observation that judges come from a very restricted group of people in respect of their major characteristics. Indeed, it would be irresponsible in any democratic society adhering to the ‘rule of law’ to ignore this reality.
These so-called stereotypes - which are in reality facts - are applicable to all institutions of power, accepted authority and accepted status in Australia, and to those who run them. The vast majority of major institutions, whether in the public or private sectors, are headed by white, male, middle-class members of the population, mostly in the older age group. Many are much older than middle-aged, and a not insignificant number are well past middle-age. So the problem of these people being unable to see themselves as they are is not isolated to legal circles, nor to the judiciary. All major institutions suffer from alike problem.
As the feminist American lawyer Judith Resnick has said:
… the temptation to avert one’s eyes from seeing the ways in which gender, race, ethnicity, class and sexual orientation frame judgments is powerful … What does one do in the face of pervasive gendered and racialized interpretations of fact, of credibility, and of legal doctrine? How does one run a court system?[ 28]
Of Glass-Ceilings and Concrete Canopies - Making it to Home-Base
They call it ‘the glass ceiling,’
the barrier in business that women
cannot rise above. If it is glass,
sand heated to silk, it cannot last
long as ceiling. Our fingers know
the weight of bone china as we set it
lightly between silver. Our fingers
know to pinch shards of shattered
tumbler off the floor, from baby’s toes.
Our fingers know, in frustrated dark,
cool air on the other side of the pane.
We have watched our mothers’ hands
until our own hands learned
glass yields to patience.
The struggle for equal pay will end not with the smashing of the glass ceiling alone. For many women - the vast majority of women - glass ceilings are not the issue. Working on the factory floor, it’s the concrete canopy that dictates position, wages, power - and the power to speak out against discrimination, harassment and conduct uncalled for. We need to rejoin the struggle for equal pay and women’s rights not by ignoring those who population the ‘bottom’ levels of the hierarchy. After all, this is what those at the top have done to all of us for far too long.
We need to re-engage with the commitment women of the past had to advancing the rights of us all, not only a few. It is of no advantage to any woman to be the ‘peculiar’ or ‘odd’ one who makes it through, unless she works with every real effort to cease to be peculiar or odd not by changing herself, but by changing the structure of the hierarchy so that there are so many of us alongside her, that she can be deemed to be peculiar or odd no more.
JAS, September 2000
GETTING TO FIRST-BASE WHEN YOU’VE STRUCK A HOME RUN
MERIT, EQUALITY AND THE ‘NO CHANGE’ PRINCIPLE IN WORKPLACE CULTURE
By Dr Jocelynne Scutt, Anti-Discrimination Commissioner, Tasmania, was delivered for the Clare Burton Memorial Lecture on September 2000