Pursuant to section 302 of the Fair Work Act 2009 (Cth), the Fair Work Commission (FWC) may make an equal remuneration order. Such order ensures that there will be equal pay for work of equal or comparable value. This order is applicable to those who are paid less due to their gender.
Who can apply for an equal remuneration order?
An employee, an employer, or the Sex Discrimination Commissioner can make an application. The FWC will take into account previous orders and determinations made in annual wage reviews in order to determine whether to hear the application.
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What is the purpose of an equal remuneration order?
According to the FWC’s Gender Pay Equity Guide, the purpose of the order is to ensure that there is:
- Equal pay for men and women performing the same jobs
- Equal pay for men and women performing different work of equal value
- No consideration of gender when increasing wages
- No consideration of gender when offering work-based training, promotions and flexible working arrangements
What will the FWC consider when deciding whether to make an equal remuneration order?
According to section 4 of the Fair Work Act 2009 (Cth), the FWC will take into account the following:
- Decisions made by the FWC in annual wage reviews
- The reasons for those orders and determinations
It is important to note that the FWC makes its decision by engaging in an “expert panel”. Section 620 of the Fair Work Act 2009 (Cth) defines an “expert panel” as 7 FWC members. At a minimum, an expert panel consists of the FWC President and at least 3 members in specialist fields relating to workplace relations, economics, social policy, or business. The order can only be made if there is absolute certainty that there is pay discrimination on the basis of gender.
What happens after an order is made?
The order will prevail over any modern award, enterprise agreement, previous FWC orders or any previous statutory instrument. If an employer contravenes an equal remuneration order, they may be subject to a penalty pursuant to the Fair Work Act 2009 (Cth). An employment lawyer can help you make an application to the FWC. If you think that you are being paid less than a colleague due to gender, an equal remuneration order can ensure you’re being paid fairly. This type of order also sends a broader message to employers everywhere that unequal pay is not only unfair, it is illegal.
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