Reasons Behind the Gender Pay Gap (Australia)

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Despite long established legislation and community standards, women are still far from equal to men in the workforce. Women working full-time earn 18% less than men. On average they also earn $1million less over the course of their lives compared to male counterparts. Labour laws have had a large influence in the size of the gender pay gap (GPG). The wage-fixing principles in the 1970s, has granted immediate collective remedies from industry-wide, award application. However awards are losing prominence with the rise of neoliberalism; and women with lower bargaining power become disadvantaged. This area of law has also had successful attempts of combating the undervaluation of female-dominated industries, although these standards have not been fully developed. On the other hand, anti-discrimination law has had a more limited impact on gender pay equity (GPE). It has mainly expelled the formal barriers that restricted women’s access to the public arena; however they are expected to conform to existing practices. Due to weak substantive provisions, and the judiciary’s unwillingness to alter existing systems, there has been less than desirable change to systemic discrimination. Today, the pay gap is largely attributed to the undervaluation of ‘feminised’ work, the influence of women’s primary caring role on career progression, and the managerial glass-ceiling effect. I THE SDA’S CONTRIBUTIONS TO GENDER PAY EQUITY

Anti-discrimination laws have had a limited impact on GPE, since the liberal legal system have not been designed to change social structures, but merely to/ allows women to participate in existing arenas. The Sex Discrimination Act 1984 (Cth) and its equivalent state laws have managed to dispel formal barriers to equality, but largely fails to accommodate women’s differences from men. The Acts attempts to achieve equality through the prohibition of two defined forms of discrimination – direct discrimination (DD) is confined to facilitating equality of opportunity, whilst indirect discrimination (IDD) allows some movement towards equality in substance by targeting a restricted range of systemic unfair treatment. However due to the conceptual complexity and evidentiary difficulties of an IDD claim, most cases have been framed as DD. This primary commitment to formal equality is inadequate. Women cannot always conform to male standards and they are punished once they deviate from established norms. In Purvis, it was held that there is no DD treatment if an act is based on a characteristic or manifestation of a ground, provided that these are borne by the person. Women can thus be treated like other deviants, and treatment is only unlawful if it is applied inconsistently. This system affords women protection so long as they can conform to existing practices. DD arguably only covers blanket exclusions and prejudicial assumptions; although this is not a small area, it does not ensure equality of outcome or resource. In addition, the legislations have poor capacity to tackle systemic discrimination as a result of weak substantive provisions and conservative judicial interpretation. The ability of IDD to challenge disadvantaging practices is seriously blunted by the fact that the court can find these procedures lawful if held reasonable. Countries such as the United States and United Kingdom, upon which Australian anti-discrimination laws are based, have stronger laws. In the US there is a requirement of ‘business necessity’ whilst the UK necessitates ‘a proportionate means of achieving a legitimate aim’. The less onerous Australian standard assigns very wide responsibility to the judiciary to determine whether a disadvantageous practice is lawful. This open texture has allowed the courts in many instances to transmit conservative interpretations which preserve the status quo. The judiciary’s tendency to adopt narrow analyses may reflect an ignorance of the impacts of...
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