Re Equal Remuneration Principle [2000] NSWIRComm 113

HEARING DATES: 08/11/1999; 02/14/2000; 02/15/2000; 02/16/2000; 02/21/2000; 02/22/2000; 02/23/2000; 02/25/2000; 03/22/2000; 03/29/2000 DATE OF JUDGMENT: 06/30/2000

Mr A A Hatcher of counsel for the Labor Council of New South Wales Mr J V Murphy of counsel for the Minister for Industrial Relations Mr T McDonald for The Employers' Federation of New South Wales and Others LEGAL REPRESENTATIVES: Mr A T Britt of counsel for The Australian Industry Group New South Wales and Others Mr G D Poulton for Australian Business Industrial Ms S Winters of counsel for the President of the Anti-Discrimination Board Ms S Hammond and Ms S Jamieson for the National Pay Equity Coalition, Women's Electoral Lobby and the Business and Professional Women's Association

JUDGMENT: Introduction 1 On 23 April 1999 the Labor Council of New South Wales filed an application under s51 of the Industrial Relations Act 1996 ('the Act') for the making of a State decision. The application claimed relevantly: '3. that the Industrial Relations Commission of NSW establish new equal remuneration principle/s having regard to the recommendations contained in the Pay Equity Report handed down by Justice Glynn on the 14 December 1998 and released by the Minister on the 24 December 1998, and the submissions of the Labor Council of NSW. Such principle/s to be incorporated into any new wage fixing principles that may be handed down as a consequence of claims 1, 2;' 2 The position of the applicant and that of other parties altered significantly during the course of the hearing, with the result that the application was later amended without objection, so as to be brought under both ss50 and 51 of the Act, although the parties remained at odds as to whether any principles made in the proceedings should be made under either or both of the sections. Those sections provide: '50 Adoption of National decisions

(1) As soon as practicable after the making of a National decision, a Full Bench of the Commission must give consideration to the decision and, unless satisfied that it is not consistent with the objects of this Act or that there are other good reasons for not doing so, must adopt the principles or provisions of the National decision for the purposes of awards and other matters under this Act.

(2) A Full Bench of the Commission is to give consideration to the National decision either on application or on its own initiative.

(3) The principles or provisions of a National decision may be adopted: (a) wholly or partly and with or without modification, and (b) generally for all awards or other matters under this Act or only for particular awards or other matters under this Act.

(4) The principles or provisions of a National decision so adopted may be varied by a Full Bench of the Commission, whether or not another National decision is made.

(1) A Full Bench of the Commission may, if satisfied that it is consistent with the objects of this Act and that there are good reasons for doing so, make a State decision setting principles or provisions for the purposes of awards and other matters under this Act.

(2) A Full Bench of the Commission may make a State decision only on the application of a State peak council or on its own initiative.

(3) A State decision may apply generally to all awards or other matters under this Act or only to particular awards or other matters under this Act.

(4) The principles or provisions of a State decision may be varied by a Full Bench of the Commission.'

Appearances at the hearing 3 The appearances announced at the hearing appear at Annexure A. Pre-hearing conferences 4 The matter came before the President, Wright J, for directions on a number of occasions. Conciliation conferences of the parties were, at their request, chaired by a member of the bench and Schmidt J was nominated for that purpose. The matter was listed for hearing in August 1999, but was vacated at the request of the parties when they were not ready to proceed. A further hearing programmed for November 1999 was also vacated at their request and the matter finally came on for hearing in February and March 2000. 5 The parties' positions developed during the adjournments, with relatively few areas of disagreement remaining between the Labor Council, the Minister, the President of the Anti-Discrimination Board and the Women's Organisations when the hearing commenced. The various employer groups took different positions, which were at significant odds with the common ground which lay between the other parties. 6 Notwithstanding this position, as a result of the discussions which continued during the course of the hearing, all of the parties further altered their positions, with the result that it was submitted by all parties that the Commission should rescind the existing Equal Pay principle established in In re State Equal Pay Case, 1973 [1973] AR (NSW) 425 and should amend the Wage Fixing Principles established in the State Wage Case 1999 (1999) 88 IR 363, the then current principles, by adopting a new Equal Remuneration principle. 7 Substantial agreement was also reached between the industrial parties and the intervener, the President of the Anti-Discrimination Board, as to the terms of the proposed new principle, with only a few areas of disagreement remaining which, on their joint approach, required the Commission's determination. Those areas where some slight differences of opinion persisted were highlighted in the principle which all those parties advanced. The Women's Organisations, also interveners in the proceedings, were however opposed to this joint approach and urged the Commission to adopt quite different principles. These competing principles are set out respectively in Annexures B and C to this decision. Various positions of the parties 8 These proceedings were not concerned with the actual rates of pay fixed by any award for any classification, occupation or group of employees. No increase in wages was sought and no party sought to argue for any across the board increase in any rates of pay. Rather, the proceedings were concerned with how particular types of claims might be advanced under the Act and whether the Commission should establish a new principle to apply to such claims. 9 The Labor Council initially sought to have the Commission rescind the existing Equal Pay principle and establish a new principle to apply to applications to which ss21 and 23 of the Act apply, as well as to award reviews conducted under s19 of the Act. The parties filed written outlines of their contentions prior to the hearing. When the hearing commenced the position of the Labor Council was supported by the Minister, the President of the Anti-Discrimination Board and the Women's Organisations. At that stage, there were various differences between the principles advanced by these parties, described for the Minister as 'important matters of detail'. 10 The Labor Council's principle was initially directed only at remuneration and not other conditions of employment fixed by an award, notwithstanding that some of the statutory provisions to which the principle was directed concerned both matters. The principle was designed to deal with the gender pay gap, which the Labor Council asserted existed as between rates of pay applying to certain men and women workers and, more particularly, the undervaluation of work performed by women. The principle was framed so as to allow these problems to be addressed on a case by case basis through an analysis of the particular facts applying in each case.

11 The position then taken by the various employers was one of general opposition to the establishment of any new principle, with their view being that the existing Wage Fixing Principles, particularly the Special Case principle, was the appropriate vehicle for the conduct of any case which required consideration of pay equity type claims under the relevant aspects of ss21, 23 or 19. On the approach of those parties at that stage, the statutory provisions were plain on their face and required no principles to guide either the parties or the Commission in the preparation, conduct or determination of such matters. One of the employer groups, however, advanced proposed principles in the alternative to this primary position. 12 The position of all of the parties later altered, with a general acceptance that the Commission should adopt principles to guide the formulation and hearing of applications where issues of equal remuneration and other conditions of employment arose. The various parties however advanced different constructions of the Act which affected the final views which they took on the proposed new principle. 13 By the end of the hearing an alternative approach was also being advanced by the Labor Council. This was that even if the Commission did not accept any of the parties' submissions as to the proper construction of ss19, 21 and 23 and the principles which the parties' advanced, given the Commission's wide award-making power under s10 of the Act, the Commission had power to hear and determine any award claims as to alleged undervaluation of work performed by women. It was submitted that the Commission should establish a principle which would apply to the hearing of such applications, rather than leaving such claims to be dealt with by the Special Case principle. This alternative approach had some support among the other parties.

Existing Equal Pay and Special Case principles 14 As we have noted, all of the parties finally submitted that the Commission should rescind the current Equal Pay principle, which had been established in the State Equal Pay Case 1973 . The purpose of this principle was described by the Industrial Commission in Court Session in In re Water Resources Commission (Equal Pay) Award [1979] AR (NSW) 321 at 328 as follows: 'The basic principle which the 1973 decision introduced was the principle of equal remuneration for men and women workers for work of equal value, meaning thereby remuneration established without discrimination based on sex - see Equal Pay Case 1973 AR at p439. The decision laid down a procedure as to how the principle was first to be applied by raising the level of women's wages for a particular class of work to the level of men's wages for that class of work and it contemplated that, once that had been done, the level of wages thereafter would be reviewed from time to time without discrimination based on sex. It is on that basis that every claim for an award fixing wages for male and female employees is to be determined.' 15 It was the view of many of the parties that this principle had not been properly applied to all of the Commission's awards, with the result that some awards undervalued women's work. All of the parties accepted that any such claims of undervaluation, whether advanced for this or other reasons, could presently be pursued under the Commission's Special Case principle. It provides: 'Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President.

This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle.' ((1999) 88 IR 363 at 403) 16 The view that any undervaluation claim in respect of women workers is currently available to be considered under this principle is plainly correct. This accords with the observations made by the Australian Industrial Relations Commission as long ago as the National Wage Case April 1991 [1991] 36 IR 120 at 173 in these terms: 'The current principles (including the provision for special cases) already provide ample scope for the review of any specific instances where the work typically performed by females is alleged to be undervalued. We confirm the 1972 Equal Pay principles of the Australian Conciliation and Arbitration Commission (1972) 147 CAR 172, continue to apply and would be a relevant consideration in any such case'. Evidence 17 Evidence was called from various witnesses and documents tendered in the proceedings. An initial matter of considerable difficulty between the parties was the use to which the Report to the Minister by Glynn J of 14 December 1998 in the Pay Equity Inquiry could be put in the proceedings. This was, ultimately, not a matter of any contention at the hearing. 18 The Labor Council called evidence from Naomi Steer, Executive Officer of the Labor Council of NSW; Richard Denniss, Lecturer in Department of Economics, University of Newcastle; and Meg Smith, Director and co-owner of Labour Market Alternatives Pty Ltd. 19 The Minister called evidence from Professor Robert Gregory, Professor of Economics at the Research Centre of Social Sciences at the Australian National University, Canberra; Richard Cox, Director of Economic Research and Forecasting, NSW Treasury; Professor Ronald McCallum, Blake Dawson Waldron Professor in Industrial Law, Faculty of Law, University of Sydney; Professor Rosemary Hunter, Professor of Law at Griffith University; and Laura Bennett, Deputy Mayor, Ku-Ring-Gai Municipal Council. Ms Bennett is a former senior lecturer in law and a published author. 20 The Employers' Federation called evidence from Professor Mark Wooden, Deputy Director, National Institute of Labour Studies, Flinders University of South Australia; Linden Swan, Executive Director of the Professional Hairdressers Association of NSW; and Chris Richardson, Partner and Director of the consultancy Access Economics. 21 Australian Business Industrial called evidence from Philip Lewis, Director of the Centre for Labour Market Research, a consortium of Curtin University of Technology, Edith Cowan University, Murdoch University and the University of Western Australia. Submissions 22 We will not set out in detail the competing submissions of the parties, especially as their positions altered so significantly during the course of the hearing. Various aspects of the written submissions filed at the outset of the proceedings, as well as the principles proposed, were altered or no longer pressed later in the hearing. We will, however, refer to the remaining differences between the parties when dealing with the matters which require our determination. Pay Equity Inquiry 23 Justice Glynn's Report to the Minister in the Pay Equity Inquiry , referred to in the Labor Council's application, concerned a number of questions which had been referred to the Commission by the Minister under s146(1)(d) of the Act. They were: '1. Whether work in female dominated occupations and industries is undervalued in the terms of remuneration paid relative to work in comparable male dominated occupations and industries. The Commission shall have regard to such female and male dominated industries and occupations as it considers sufficient to permit it to make recommendations but shall not be required to examine all such industries and occupations. In determining those industries and occupations the Commission should have regard to the need to impose reasonable restraints on time to complete the Inquiry.

2. The adequacy of tests and mechanisms for ascertaining work value and the extent to which, if at all, they are inequitable on the basis of gender.

3. In developing recommendations as to remedial measures if necessary, considerations shall be given, but not limited to: (a) current work value tests; (b) the minimum rates adjustment process and other industrial mechanisms including productivity; (c) job evaluation techniques; (d) matters of discrimination and the Anti-Discrimination Act 1977 (NSW) as provided in the Industrial Relations Act 1996 (NSW); (e) relevant international labour and other conventions, including but not limited to ILO Convention 100 and 111 and the United Nations Convention on Elimination of all forms of Discrimination Against Women.

4. The mechanisms and processes by which pay equity matters can be brought before the Commission.

5. In the conduct of the Inquiry, and in any recommendations contained in its report, the Commission must take into account the public interest and for that purpose must have regard to: (a) the objects of the Industrial Relations Act 1996 (NSW); (b) the likely effect of its decision on the New South Wales economy, in particular, the need to protect the employment base of the State and any adverse impacts on employment opportunities for women; and (c) inter-State comparative rates.' 24 The Minister's reference had flowed from the work of the 'Pay Equity Taskforce', established by the Minister in 1996 to consider the undervaluation of women's skills and methods for addressing pay equity in New South Wales. The Taskforce produced a discussion paper entitled 'A Woman's Worth: pay equity and the undervaluation of women's skills in NSW' and undertook an investigation into a number of case studies, some of which were later examined in the Pay Equity Inquiry . 25 The Pay Equity Inquiry considered seven occupations and industries, reaching various conclusions in relation to them. They were:- '(a) Private sector long day care child centres

(b) Seafood processors at levels 4 and 5 of the Fish Canning etc (State) Award

(c) Public Sector Librarians illustrated by the State Library

(d) Clerical workers at level 3 of the Clerical and Administrative Employees (State) Award

(g) Clothing Industry Outworkers' 26 The Labor Council initiated the present proceedings in order to give effect to her Honour's recommendation that the existing Equal Pay principle be rescinded and a new Equal Remuneration principle be established. (See pp168-180 of Vol II in the Pay Equity Inquiry ). Her Honour also made a number of other recommendations, which included that there be a variety of amendments to the Act, in order to accommodate various conclusions reached in the Inquiry. 27 Glynn J's recommendations as to the amendments of the Act have not been acted upon, although the Commission was informed regularly during the course of these proceedings that active consideration was being given to such amendments, with the Minister consulting various industrial parties as to what was proposed. Although the Commission was concerned at hearing this application at the same time as that consideration was advancing, the parties' mutual desire to have this application heard in accordance with the existing statutory regime was accepted by the Commission. History of the Commission's approach to equal pay 28 The parties addressed the history of the approach of the Commission and its predecessors to matters of equal pay. It is helpful to shortly summarise some of that material as it forms an important backdrop to the conclusions which we have reached. 29 The Labor Council commenced its analysis of these matters by reference to the 1929 decision In re Hairdressers, &c., Females (State) Award [1929] AR (NSW) 39. There, a Full Bench of the former Industrial Commission considered an application for the reduction in wages for certain work when performed by journeywomen in an award where 'equal pay for equal work' had been established in 1927. After making reference to the system of wage fixing then prescribed by the Industrial Arbitration Act 1912, which provided for margins to be added to separate living wages for adult male and female employees, the Full Bench found (at p43): 'It is clear that the effect of giving the male rate to female journeywomen in this branch of the hairdressing industry has been to restrict the opportunities of employment for the adult journeywomen and to bring about the greatly increased employment of girls, as apprentices and improvers on the lower rates of pay. Such a state of affairs shows that the awarding of this high rate has operated to the prejudice of the journeywomen. It is obvious that their services are being dispensed with in favour of the cheaper girl workers who apparently are regarded as sufficiently competent to carry out the work in a large number of establishments. Without laying down any general principles as to when equal pay should be awarded for equal work it is clear that, in this branch of the hairdressing industry, the application of that doctrine is reacting to the prejudice of the adult female workers in the industry, and we do not think that sufficient grounds have been established to justify the claim being granted in this case.'

30 The result was that the rates for journeywomen were reduced by the Full Bench, because (at p44): 'The Commission is satisfied that so far as journeywomen are concerned the high rate previously awarded has been to a great extent illusory, and for them the award has become largely a paper award, as it is obvious that as soon as employees become entitled to the journeywomen's rate they are dismissed. Notwithstanding this the industry in the past has shown a steady expansion, and we think that the awarding of this rate will aid the future expansion of the industry and provide steady employment for the adult workers.' 31 The 1951 International Labour Organisation Equal Remuneration Convention 100 ('ILO Convention 100'), provides in Articles 2 and 3: 'Article 2 1. Each Member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.

(b) legally established or recognised machinery for wage determination;

(c) collective agreements between employers and workers; or

(d) a combination of these various means. Article 3 1. Where such action will assist in giving effect to the provisions of this Convention measures shall be taken to promote objective appraisal of jobs on the basis of the work to be performed. 2. The methods to be followed in this appraisal may be decided upon by the authorities responsible for the determination of rates of remuneration, or, where such rates are determined by collective agreements, by the parties thereto. 3. Differential rates between workers which correspond, without regard to sex, to differences, as determined by such objective appraisal, in the work to be performed shall not be considered as being contrary to the principle of equal remuneration for men and women workers for work of equal value.' 32 In New South Wales, equal pay legislation was first enacted in 1958 in the Industrial Arbitration (Female Rates) Amendment Act 1958 which inserted into the Industrial Arbitration Act 1940 ('the 1940 Act') a new s88D which provided relevantly: '(1) The Commission or a committee shall upon application made therfor insert (by way of variation or otherwise) in any award or industrial agreement which fixes rates of wages for male and female employees performing work of the same or a like nature and of equal value provisions for equal pay as between the sexes based upon the principles set out in this section. …. (9) …' 33 This provision was considered by a Full Bench of the Industrial Commission in In re Clerks (State) Award and Other Awards [1959] AR (NSW) 470 as a test case. The then Commission observed (at p474), after referring to the 1929 Hairdressers case: 'Very little attempt seems to have been made over the years to invoke the jurisdiction of the Commission and of conciliation committees to determine claims that the same wage shall be paid to persons of either sex performing the same work or producing the same return of profit or value to their employer. It appears to have been not unusual in some industries for male rates to be awarded to females engaged on work normally regarded as male work, but no reported case has come to our notice where the basis of the jurisdiction so to award was considered.'

34 The Commission went on to note (at p476) that s88D had 'brought about substantial changes in the duties of the Commission and of committees when fixing rates of pay for female employees in certain circumstances.' After making a number of general observations about the proper interpretation of the new provision, the Commission turned to consider the terms of ILO Convention 100, then not ratified by Australia; concluding (at pp480-481) that the Convention concepts and the principles inherent in s88D provided assistance 'in the task of ascertaining the scope of the enactment which we have to construe. But it is the marked contrasts which are revealed by the comparison which have the most significance.' 35 The Commission rejected (at pp484-485) a construction of s88D which would have effected a marked departure from the Commission's traditional approach to work value assessments. Their Honours concluded (at p485): 'We therefore reject Mr. Sheldon's submission that the phrase "of equal value" means of equal value to the employer. In our view the phrase has the meaning for which Mr. Wootten contended, and value means the value which the Commission or a conciliation committee puts on work and by reference to which it fixes rates of wages. We will return to this matter later. There are other considerations arising in relation to it. We have dealt with it in priority to other questions arising from the arguments in order to settle first the important issue as to whether the section has effected an alteration in the nature of the wage fixing jurisdiction of the Commission and of conciliation committees. In our view no such alteration has been effected. 36 In 1969, the Commonwealth Conciliation and Arbitration Commission heard the 1969 Equal Pay Case (1969) 127 CAR 1142. The claim advanced was designed to eliminate the differences in rates of pay for men and women flowing from formerly applicable male and female basic wages. The Full Bench considered international material, including ILO Convention 100, and concluded (at p1156): 'While we accept the concept of 'equal pay for equal work' implying as it does the elimination of discrimination based on sex alone, we realise that the concept is difficult of precise definition and even more difficult to apply with precision. We do not propose to deal in detail with all the possible different meanings of the phrase, nor do we propose to consider how it could be applied, in communities other than ours. Though we realise that the various United Nations and I.L.O. declarations and conventions must carry significant weight in a general way, we must consider how, if they are to be applied they can be fitted into our community. We have certain values which have in part been created by our own institutions including a complex wage system. This Commission cannot escape its own history, including the history of the Court, even if it wanted to. If the arbitration system had in the past not concerned itself with a needs or family wage but had fixed a rate for a job, irrespective of the sex, marital or parental status of the worker, the probabilities are that the rate for the job would lie somewhere between the current male rate and the current female rate. This is speculation on our part but it does highlight the difficulties of finding a satisfactory solution to the issues now before us. We consider it preferable to start from a decision on principle in this case and let that principle be worked through the system.' 37 After making reference to developments in State jurisdictions, including New South Wales, the Full Bench adopted new principles as to equal pay (at pp1158-1159). 38 In 1972, the Commonwealth Conciliation and Arbitration Commission heard the National Wage and Equal Pay Cases 1972 (1972) 147 CAR 172. It noted (at p177) that the parties had assessed that approximately 18 per cent of females in the work force have received equal pay as a result of its decision in the 1969 Equal Pay Case and noted that the claim then advanced by the unions as to equal pay was 'fundamentally based' on ILO Convention 100. The Commonwealth Commission determined a new principle which pertained to the relationship between rates of wages for females and rates of wages for males in the following terms (at pp179-180): '1. The principle of 'equal pay for work of equal value' will be applied to all awards of the Commission. By 'equal pay for work of equal value' we mean the fixation of award wage rates by consideration of the work performed irrespective of the sex of the worker. The principle will apply to both adults and juniors. Because the male minimum wage takes account of family considerations it will not apply to females. 2. Adoption of the new principle requires that female rates 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. 3. The new principle may be applied by agreement or arbitration. The eventual outcome should be a single rate for an occupational group or classification which rate is payable to the employee performing the work whether the employee be male or female. Existing geographical differences between rates will not be affected by this decision. 4. Implementation of the new principle by arbitration will call for the exercise of the broad judgment which has characterised work value inquiries. Different criteria will continue to apply from case to case and may vary from one class of work to another. However, work value inquiries which are concerned with comparisons of work and fixation of award rates irrespective of the sex of employees may encounter unfamiliar issues. In so far as those issues have been raised we will comment on them. Other issues which may arise will be resolved in the context of the particular work value inquiry with which the arbitration is concerned. 5. We now deal with issues which have arisen from the material and argument placed before us and which call for comment or decision. (a) The automatic application of any formula which seeks to by-pass 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 within the award and/or 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 worth 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 with 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.'

39 This new principle was adopted, in substance but not in detail, by the Industrial Commission of New South Wales in Court Session in the 1973 State Equal Pay Case , the view being taken that the Commission's general award making powers were not restricted by s88D of the 1940 Act and the new principle was consistent with those general powers. The Commission noted ([1973] AR at p438) its understanding that the new principle adopted the principle in ILO Convention 100 as to 'equal remuneration for men and women workers for work of equal value' although 'in a setting of conciliation and arbitration'. It concluded (at p439): 'We believe that the time is opportune to introduce in the New South Wales system the principle of equal remuneration for men and women workers for work of equal value, meaning thereby rates of remuneration established without discrimination based on sex. This, as we understand it, is the substance of the new Commonwealth Commission principle and the fact that the Commission has made its decision is an important factor which influences us. Another factor is that, at the Commonwealth hearing, the Australian Government supported the implementation of the principle, while in the case before us the Government of New South Wales opted not to make any submissions although the Public Service Board appeared and raised no objection. Finally the employers generally see the implementation of the new principle as a matter of social and industrial justice, although, as we have explained, they have pressed strongly for the new Commonwealth principle to be adopted without modification. The method by which the new principle would be implemented in this State should be determined, we think, after paying regard to the provisions of the Industrial Arbitration Act and, in particular, to the fact that under that Act the concepts of the basic wage and of marginal or secondary wages, which are the creatures of the statute, are still alive in our system despite their demise in the Commonwealth jurisdiction where the total wage concept was introduced in 1967. It is necessary, took to pay regard to the principles that have been adopted, if not always consistently applied, by the industrial tribunals in this State as to the proper method of fixing marginal or secondary rates both for men and women.' 40 The 1940 Act was later replaced by the Industrial Relations Act 1991 ('the 1991 Act') which, in s100, provided:

100. Equal pay provisions to be inserted on application (1) On application, the Commission is required to insert in an award provisions for equal pay for employees of either sex.

(2) The Commission is required to insert the provisions only if the award relates to wage rates for male and female employees performing work of the same or a like nature and of equal value.

(3) The provisions may be inserted in an award by way of variation or otherwise.

(4) This section applies to an award whether made before or after the commencement of this section. 41 This provision, so it was submitted for the Labor Council, reflected the approach adopted in New South Wales in the 1973 State Equal Pay Case . By way of contrast, the provisions of the present 1996 Act, to which the Labor Council's proposed principles were directed, were said to involve a significant departure from the 1991 Act by adopting the language of ILO Convention 100. 42 Sections 19, 21 and 23 of the 1996 Act are later set out.

Consideration of the need for a new principle and general concepts 43 Every person has a basic human right to be treated equally and fairly in the sense that the person should not be dealt with on the basis of irrelevant considerations such as the person's sex, race, or age, and with a right not to be discriminated against by reference to such considerations: see, for example, Kinley (ed) Human Rights in Australian Law , Federation Press, Sydney, 1988, and particularly the papers by Kinley, MacDermott, Bailey and Devereux, and Eastman and Ronalds. This right is reflected in various statutory provisions in New South Wales. The fixing of a rate of pay for, or the payment of a wage or salary to, a woman where that rate of pay, salary or wage has been fixed differently because of the woman's sex is presumptively an infringement of her human rights and inconsistent with the provisions of the 1996 Act. 44 The right of women to equal treatment irrespective of their gender generally and specifically in relation to the question of equal pay is also recognised, essentially for the purpose of the protection of the right, by a variety of international covenants: for example, the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR), the Equal Remuneration Convention 1951 (ILO Convention No. 100) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). Those instruments are usefully discussed in MacDermott "Labour Law and Human Rights" in Kinley (ed.) Human Rights in Australian Law at pages 194 - 196 and 203. 45 The statutory provisions which are particularly relevant for our consideration in the present proceedings (ss3(f), 19(3)(e), 21(1)(b), 23 and 169 of the Act) are provisions which exemplify human rights and human rights concepts and which protect or enforce such rights. Both the High Court and the Human Rights and Equal Opportunities Commission have emphasised the special responsibility of courts and tribunals, in construing such legislation, to take account of and give effect to the statutory purpose whether found in a statutory object or otherwise: see, for example, Street v Queensland Bar Association (1989) 168 CLR 461 at 487; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359; and X v McHugh (Auditor-General for the State of Tasmania) (1994) 56 IR 248 at 256 - 257. Reference may be made to the consideration of a number of those statutory provisions in the State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 at 434 and Principles for Review of Awards 1998 (1998) 85 IR 38 at 50 - 51. 46 As the historical material demonstrates, past awards in the State jurisdiction contained both remuneration and other conditions of employment which were directly or indirectly discriminatory against female employees on account of their sex. There were also cases of awards which discriminated against male employees, more usually in the conditions of employment fixed by those awards for male employees. 47 As a result of a number of developments, including the 1973 State Equal Pay Case, steps subsequently taken by award parties to remove discriminatory award provisions by agreement and, more recently, as the result of reviews of awards conducted by the Commission under s19, directly discriminatory award provisions are increasingly difficult to find. Indirectly discriminatory provisions are, of course, more difficult to detect on the face of an award. Nevertheless, it cannot be doubted that efforts to remove such award provisions have been and continue to be made. Those steps accord with the requirements of s169 of the Act, which obliges the Commission to have regard to the principles contained in the Anti-Discrimination Act 1977 in carrying out its functions. 48 In the Act, the legislature has emphasised also the importance of awards providing for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. This appears from the objects of the Act, as well as from the provision made therefor in ss19, 21 and 23. 49 The written submissions filed by the parties and the way in which this case was opened amply demonstrated the differences of opinion which existed between the parties as to the work which the relevant provisions of the Act have to do; and, just as importantly, how the Commission should go about doing it. That difference of opinion arose not only from the parties' different approaches to the construction of the Act but also from two other matters. The first was the different views held by the respective parties as to the continuation of discrimination against women workers in some industries, occupations and workplaces and whether such discrimination continues to be reflected in the awards of this Commission. The second was the different views held by the parties as to the size of, and reasons for, the continued existence of a gap in earnings as between men and women workers and how the awards of this Commission perpetuate this gap. It was this second matter to which attention was directed at the hearing. 50 As these proceedings developed, and more particularly as the parties made their final submissions, it became clear that the issue before the Commission was no longer whether it should insert in the Commission's Wage Fixing Principles an Equal Remuneration principle but rather what should be the terms of the principle. That qualitative shift in the nature of the proceedings arose essentially from the agreement between the parties and the interveners that an Equal Remuneration principle should be included in the State Wage Case principles. We have reached the view that it is appropriate in this case to adopt the consent of the parties in that respect. This is an approach which Full Benches of this Commission and its predecessor have adopted on a number of occasions: see, for example, State Personal/Carer's Leave Case 1998 (1998) 84 IR 416. In this case, we have been satisfied that in accordance with ss50 and 51 of the Act the existing Wage Fixing Principles should be amended by the adoption of a new Equal Remuneration and Other Conditions principle and that the existing Equal Pay principle should be rescinded. 51 The evidence, however, highlighted the differences of opinion held by various economists, particularly in the explanations they advanced for the continued existence in Australia of a gap in earnings as between men and women workers. The evidence demonstrated that such a gap exists in many countries, with Australia having a smaller earnings gap than in many others. Whilst there are many ways in which the gap has been sought to be explained, it was common ground between the expert witnesses in this case that although the gap was not of itself evidence of any inequity there was part of it which could not be explained due to currently available data and economic hypotheses. 52 Whilst views about the unexplained gap in the earnings of men and women differed widely, there was some common ground between those who gave evidence. This included that the size of the gap has reduced over the years; that after 1973 it was affected by the results of the 1973 State Equal Pay Case decision; that the rate of reduction in the size of the gap has slowed down in more recent times; and that the size of the gap is larger in industries and occupations where the proportion of females employed is higher. It was the evidence of Professor Gregory, for example, that the result of the 1973 State Equal Pay Case had been to remove instances of very large and significant discrimination so that what remained related to localised pay gaps as between men and women workers in particular industries or occupations. 53 All of these witnesses agreed that an explanation for some part of the gap, albeit their views differed as to how much, might well be the sex of the workers in question. Mr Dennis, for instance, even though he could not be certain given problems with the accuracy of available data, expressed the view in evidence that part of the unexplained gap was due to employers discriminating in how they paid female employees. 54 A matter referred to by various of the expert witnesses was the reliability of data on which economic theories were based and the present inability to measure various aspects which comprised the gap. Professor Wooden discussed the problems of measuring the influence of employees' differing skills and Mr Cox dealt with the problems of measuring productivity. 55 The Labor Council, in its final submission, stated it was content to rely upon the views expressed by Professor Wooden (called by the Employers' Federation) to the following effect: '(i) The "femaleness" of an industry or occupations operates to reduce the average earnings of workers in that industry or occupation. That is, the higher the proportion of female workers there is, the lower the pay is likely to be. (ii) The average wage gap between male and female non-managerial workers, after the carrying out of a "regression analysis" designed to eliminate that part of the gap which can be explained by non-gender related factors, is about 2% in favour of male workers. (iii) The average wage gap between almost totally male dominated occupations and almost totally female dominated occupations is at least about 6% (Professor Wooden's evidence was that he had revised upwards his estimate as to this).' 56 Underpinning the application brought in this case was the notion that one explanation for some part of the gender gap in earnings in Australia is that some work on which predominantly women are employed has been undervalued for a variety of historical and other reasons and that such undervaluation is reflected in awards of this Commission. Those reasons included factors such as systemic discrimination against women; award parties failing to properly implement the 1973 State Equal Pay Case ; their failure to properly pursue work value and other claims in awards applying to female dominated occupations, including in relation to training matters; and undervaluation of female skills and gender biased assumptions operating to have a negative influence on a proper valuation of female work in accordance with the Commission 's existing Work Value principle (views strongly advanced in the evidence of Ms Bennett, for instance). 57 These proceedings were concerned, therefore, with an application brought by the Labor Council, supported by all other parties, to have this Commission establish principles for application in individual or particular proceedings in which it is sought to demonstrate that award rates of pay or other conditions of employment contain an element of undervaluation having regard to the gender of the workers in question. By the conclusion of the hearing there was no real contest between them that the Commission might hear and determine such claims under s10 of the Act. Nor was there any disagreement between the parties that there is at present no obstacle to such claims being advanced under the Special Case principle, although there was concern that that was not the most appropriate means by which such cases should be considered. 58 It is important to emphasise this point. This case was not really concerned with any difficulty perceived in parties demonstrating that an award does not provide 'equal remuneration and other conditions for men and women doing work of equal or comparable value' in respect of the work to which the award applies. Rather, as explained in the Labor Council's written submissions, it was concerned to establish a principle under which claims sought to be advanced in relation to undervaluation of work performed by women can be addressed uniformly on a case-by-case basis through an analysis of the particular facts applying in each case. 59 It was envisaged that such claims could involve consideration of a variety of matters, including, in some but not all cases, comparisons with the rates of pay and conditions applying to other workers in male dominated classifications or occupations to whom the award in question does not apply. Such rates and conditions might be fixed by other awards or industrial instruments to which the Act or the Workplace Relations Act 1996 (Cth) apply (described as 'comparator awards') or even by common law contracts of employment on an overaward basis. 60 As we have already noted, whilst there was considerable debate between the parties as to whether such comparisons would be appropriate or indeed permissible, it was at least common ground that such claims are available to be now considered in accordance with the s10 and the Special Case principle. The employer parties were of the initial view that there was no need to alter the principles to make particular provision for such claims but, as the hearing advanced, they too came to the view that it would be desirable for such a principle to be established. 61 This occurred in part from a conclusion which the parties had reached about the existing Equal Pay principle. There was little disagreement that when that principle was established in the 1973 State Equal Pay Case it was given effect in cases advanced before the Commission by the award parties and that problems with its implementation had been dealt with by the Commission in later cases: see, for example, Universities (Equal Pay) Case [1980] AR (NSW) 616 and Motor Transport Female Salaried Officers Award [1975] AR (NSW) 837. 62 The general view, however, was that the principle had been largely overlooked by those award parties in more recent years, with the Labor Council submitting that "the industrial parties have virtually forgotten about the existence of the principle". In those circumstances it was thought desirable to update the principle in the context of the present 1996 Act and to bring it together with the Commission's other Wage Fixing Principles so that it could not be overlooked in the future. That was considered to be the preferred course rather than leaving undervaluation claims to be processed under the Special Case principle. Professor McCallum described this as a need to 'rebadge' the principle and to bring it up to date. 63 That this common view developed is undoubtedly an important matter. The Commission has often observed that agreement reached by industrial parties is a significant matter which the Commission will take into account in considering cases advanced before it. Such agreement cannot, however, be determinative of any application, especially in a case such as this where much depends upon the proper construction of the Act and on the terms of the principle which the parties propose to give effect to the statute as properly construed. We will return to those aspects later. 64 We have concluded that it is appropriate to adopt a principle, albeit not one in the terms proposed by the various parties, which deals with the issue of equal remuneration. We have done so for a number of reasons. The first is the considerations we have earlier referred to. That is, the significance both in policy terms and the requirements of the Act, such as ss3(f) and 169 thereof reflecting as they do important human rights, and that wage fixing principles in relation to the question of equal pay reflect the priority, importance and the failure hitherto of some awards to address appropriately the issue of equal pay for equal or comparable work. We consider that, provided necessary safeguards are built into the principle, an Equal Remuneration and Other Conditions principle should be inserted into the Commission's Wage Fixing Principles. We do not consider that the principles urged upon us appropriately reflect the evidence or provide a proper method for the Commission to address these matters. 65 Although the parties adopted different positions at one point as to the use to which the Pay Equity Inquiry might be put, there was finally a large degree of commonality in their respective approaches to that Report. The common ground was that the Full Bench was entitled to have regard to the Report and the findings contained therein; it was not, however, bound by the Report or those findings. Further, it was accepted that in a number of respects the Commission should carefully weigh the material put to her Honour before it acted upon any particular part of the Report or recommendations arising therefrom. In general terms, we accept that common position. The fact and nature of the Pay Equity Inquiry provides a wealth of information, material and considered recommendations which do indeed provide an appropriate starting point for our consideration of the material before us. It reflects a comprehensive and diverse body of evidence, representing a range of informed opinion and collected data which facilitated the Full Bench's ability to deal with the important questions before it. 66 The next important consideration is the limited nature of the questions that are to be decided in these proceedings, to which we referred earlier. Although those questions are limited in scope, they are nevertheless of great significance to the future of the proper determination of rates of pay, especially for women employees, as well as for the integrity of the Commission's Wage Fixing Principles. 67 The issues before the Commission were limited to, firstly, whether an Equal Remuneration principle should be inserted into the Commission's Wage Fixing Principles and, secondly, if so, the terms of that principle. In deciding each of these questions it is important to stress the nature of the inquiry now before the Commission. To the extent that that inquiry involves the determination of issues of fact, that is to be approached in the traditional and usual manner of fact finding before courts and tribunals. That is, the determination of such issues is on the basis of the traditional test of finding 'on the balance of probabilities': see Malec v J C Hutton Pty Limited (1990) 169 CLR 438 at 642 - 643. It is not necessary to make findings on the basis of notions of absolute certainty. Such an approach to fact finding, which seemed to be pressed upon us at various stages of the proceedings, if not by the advocates then at least suggested by some of the witnesses, represents a significant misunderstanding of the nature of the role of courts and tribunals in the common law system of adjudication. 68 Another important consideration is the nature of the debate contained within the evidence before us. As we have already noted, the Commission has had a range of evidence from many eminent witnesses in the fields of economics (particularly labour economics) and also labour and industrial law. Although there has been a degree of disagreement, in some respects quite sharp disagreement, particularly in the economic evidence, nevertheless a degree of common ground emerged in the evidence which led to the parties' eventual joint submission that it is appropriate for the Commission to establish a principle which addresses in a direct fashion the problems discerned. For example, Professor Wooden agreed that in situations where it was demonstrated a person had a wage fixed at a lower level than appropriate because of discrimination on account of sex a "market failure" was thereby demonstrated. He, like other witnesses, accepted that such a market failure should be addressed by an appropriate case-by-case approach. 69 We conclude that the evidence demonstrated, in a macro economic sense, that there is some disparity between the wages earned by women and those earned by men. Although it is difficult to identify in a precise way the areas in which such disparity occurs, it is more likely than not it does so in relation to the fixing of wages for women employed in female dominated industries or callings. 70 We take the view, however, that the principle made as the result of these proceedings, which will permit such disparities in wages to be addressed, should be such as to be integrated within the Wage Fixing Principles as a whole in order that they can operate in a consistent manner one with the other. This requires that claims be rigorously tested to ensure that there is no, or no more than unavoidably negligible, double counting in the wage fixing process and that any increase in the wages of affected employees occurs in such a way as not to unduly impact upon employment in affected areas. This is of concern because, on the evidence, any unemployment flowing from claims advanced under the new principle would seem likely to occur in areas in which the majority of employees are women. 71 The principle is also designed to ensure there are no artificial barriers created to a proper assessment of wages on a gender neutral basis. We consider this will be achieved if the only criterion for a revaluation of the work and its work value is that it be demonstrated the rate of payment hitherto fixed does not represent a proper valuation of the work and that any failure is related to factors associated with the sex of those performing the work. By way of illustration only, this may be demonstrated in cases where a majority of the employees in the relevant field, industry or calling are women workers, a notion approached in the case as areas of employment where female employees represent at least 60 per cent of the workforce. It is unnecessary to form a concluded view as a general proposition about this, given the evidence which demonstrated that pay disparity between men and women workers increased as the number of female employees increased in a particular workforce. On the evidence, it seems improbable that any case could be established at any lower percentage. 72 We emphasise that we do not envisage the principle will permit or encourage the taking of preliminary points or issues in any proceedings under the principle. Such an approach would be inconsistent with the approach discussed in Nagle (T/as WD and JL Nagle & Sons) v Tilberg [1993] 51 IR 8 and is to be discouraged. We take the view that there is very limited scope for the taking of preliminary points or the raising of preliminary arguments in relation to such cases. The proposed principle is intended to be expressed in wide terms to ensure that if there is demonstrated a case of gender affected wage fixation and a consequent wage disparity then the identified disparity may be remedied under the principle. 73 It must, however, be recognised that the corollary of this approach is that if a case mounted under the principle does not cogently demonstrate the factual ingredients required by the principle then the case will fail. Although the applicant in the proceedings may have been shielded to a large extent from preliminary issues and interlocutory decisions, there is nevertheless a risk that unless the applicant shows a clear and demonstrated case of gender related wage disparity a detailed and perhaps lengthy case will fail. 74 The other important safeguards that the principle should incorporate are clear. Like the Work Value principle, there must be a case-by-case approach. This does not need to be separately stated in the principle because it follows from the nature of the principle itself. However, it is appropriate in the light of our concerns that there be no adverse effect as to employment, particularly as to the employment of women, flowing from the introduction of the new principle and that adequate safeguards be built into it to deal with such matters. The principle will therefore allow respondents to such proceedings to raise such matters. Again, they should not be raised as preliminary or interlocutory issues but rather as to the way in which wage increases, if any, should be awarded or phased in. Any need for phasing should, of course, be addressed by evidence in the proceedings. We stress that these safeguards are not being inserted in the principle for any reason other than their express purpose. They are not to be taken, or assumed to be related to, any intention to act as a disincentive to the bringing of appropriate claims since that would be contrary to the human rights considerations we have earlier identified as an important consideration in our conclusion. Legislative framework 75 We turn then to the legislative basis for the principle which we propose to establish. As we have noted, the parties were initially at significant odds with each other as to the proper construction of the Act, particularly as to the meaning and purpose of ss19, 21 and 23. Whilst those differences were reduced in the parties' continuing discussions, issues which remained to be determined by the Commission affect both the question of the need for, and content of, any principle which might be established. 76 The parties directed the bulk of their attention to the construction of ss21 and 23. Relatively little attention was paid to the work of s 19, although the various principles the parties proposed were designed to apply also to that provision. It is trite, but necessary in these circumstances, to observe that the questions of statutory construction arising in this case cannot be determined by a consideration of the directly relevant provisions in isolation from the Act as a whole. So approached, it soon becomes apparent that the three sections in question have quite different work to do. 77 Sections 21 and 23 appear in Div 2 - Particular conditions of employment in awards of Pt 1 - Awards of Ch 2 - Employment of the Act. They provide: '21 Conditions to be provided in awards on application

(1) The Commission must, on application, make an award setting any of the following conditions of employment: (a) ordinary hours of employment, (b) equal remuneration and other conditions for men and women doing work of equal or comparable value, (c) employment protection provisions, (d) provisions relevant to technological change, (e) sick leave, (f) part-time work, (g) casual work.

(2) Those conditions are to be set: (a) in accordance with any relevant requirement of this Division and any other provision of this Act, and (b) with due regard to any established principles of the Commission or other matters considered relevant.

(3) Those conditions may be set in a new award or by the variation of an existing award.

(4) This section applies even though there is an existing award dealing with the matter.

23 Equal remuneration and other conditions Whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.'

78 Section 28 of the Act governs the operation of both s21 and s23. It provides: '28 Other provisions not affected Nothing in this Division affects: (a) the requirements of this Part for the making or varying of awards, or (b) the powers of the Commission and the Industrial Registrar under sections 18 and 125 (provisions relating to Commission granting exemptions from awards and Industrial Registrar issuing special wage permits).'

79 Division 1 - Awards generally of Pt 1 - Awards of Ch 2 - Employment of the Act deals in general terms with the making and variation of awards. Section 10 provides that: '10 Commission may make awards

The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.' 80 Section 11 prescribes when awards may be made - namely, on application or on the Commission's own initiative or in the course of an arbitration of an industrial dispute under Ch 3 of the Act. Those who may apply for an award are specified in s11, and s12 specifies those persons bound by any award made. The commencement of an award made is dealt with in s15, the term of an award in s16, mandatory dispute resolution procedures in s14 and various formal matters in s13. Section 17 deals with the circumstances in which an award may be varied, s18 with exemptions from awards and s19 establishes the obligation to review awards once in every 3 years. Section 20 deals with award consolidation. 81 It follows from this statutory scheme that when acting in accordance with the requirements of either s21 or s23 the Commission is still bound to observe the requirements of Div 1, including s10, to establish 'fair and reasonable conditions of employment for employees' and s17 as to the variation or rescission of an award. 82 Section 19 of the Act also appears in Div 1 of Pt 1 of Ch 2. It provides: 19 Review of awards

(1) The Commission is required to review each award before September 2001 and subsequently at least once in every 3 years.

(2) The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards.

(3) The Commission must take account of the following matters in the review of awards: (a) any decision of the Commission under Part 3 or any other test case decision of the Commission, (b) rates of remuneration and other minimum conditions of employment, (c) part-time work, casual work and job-sharing arrangements, (d) dispute resolution procedures, (e) any issue of discrimination under the awards, including pay equity, (f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards, (g) any other matter relating to the objects of the Act that the Commission determines.

(4) The Commission must also take account of the effect of the awards on productivity and efficiency in the industry concerned.

(5) During a review of awards, relevant industrial organisations and any other parties to the awards may make submissions on any of the matters being reviewed.

(6) The Commission is to make such changes to awards as it considers necessary as a result of a review. 83 It follows, in our view, that s23 is concerned generally with the making of awards, applying 'whenever the Commission makes an award'; s21 with applications of a particular kind when advanced expressly by a party; and s19 with the 3-yearly review of awards by the Commission, after they have been made, either by consent or arbitration. Meaning of the words 'remuneration' and 'pay equity' 84 Before dealing with the particular construction of ss19, 21 and 23, it is convenient to deal with the parties' disagreement as to the meaning of the word 'remuneration' in this part of the Act. 85 'Pay equity' is defined in the Dictionary of the Act as meaning 'equal remuneration for men and women doing work of equal or comparable value'. Any wage fixing principle which the Commission makes to govern proceedings brought under the Act in relation to pay equity matters, for instance in s19 reviews of awards, must of necessity be approached in the context of that definition and the work which it is proposed the principle will do in connection with that subject matter. Similarly, the meaning of the phrase 'equal remuneration', as used in the definition of pay equity and in ss21 and 23, will necessarily direct the Commission's determination of any principle designed to guide the initiation and hearing of applications in which the requirements of ss19(3)(e), 21(1)(b) and 23 must be satisfied. 86 The word 'remuneration' and the phrase 'equal remuneration' are, as it happens, not defined in the Act. The meaning of the word remuneration has, however, been considered by a number of Full Benches of the Commission. In Shead v Summit Western Pty Ltd t/as Blacktown Mitsubishi (1998) 81 IR 347, it was observed that it is not used with a consistent meaning throughout the statute and its meaning is coloured from the context in which it is used. Thus, in construing the word, regard must be had to the consequences of the competing interpretations advanced on the Act viewed as a whole. 87 In the Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38, the approach in Shead was followed, the Full Bench there observing (at pp46-47): 'The meaning of the words 'rates of remuneration' in s19(3)(b) were debated because the parties initially proposed that a wide definition of the word 'remuneration' be inserted into the principles. We note that consideration as to the meaning of that word, particularly as used in Pt 6 of Ch 2 of the 1996 Act in relation to unfair dismissals, was given recently by a Full Bench of the Commission in Shead v Summit Western Pty Ltd (1998) 81 IR 347 . We adopt the analysis of that Full Bench (see particularly at pages 357 to 361) and express the view that in this part of the 1996 Act, properly understood, the word 'remuneration' must be read in the context of the phrase in which it appears - 'rates of remuneration'. That phrase is to be understood, we think, in the sense that the word 'rates' is used as a limitation. In such a context the word 'remuneration' has a narrow meaning, being one confined to the cash or monetary provisions of the award in question.

In the result, we accept that in a s19 review matters such as whether the award rates have been adjusted to give effect to earlier State Wage Case decisions should be considered, including whether the 'Award Review Classification Rate' has been achieved in the award. We accept also that the remuneration provided for casual and part-time workers, for instance, may be reviewed where appropriate - for example, in the case of arguably discriminatory provisions.

In so approaching the construction of 'remuneration', we reject the definition, not finally pressed, by the parties. The proposal was seemingly dependent upon a definition of the term in an International Labor Organisation convention. That approach is not available as a matter of statutory construction. We observe, in any event, that little seems to flow from this distinction in a practical sense given the balance of s19(3)(b) which refers to 'other minimum conditions of employment'. All that the parties sought to capture in their broad definition of 'remuneration', and perhaps more, is encompassed by those further words relating to conditions of employment.'

88 In these proceedings it was argued by the Minister that the meaning of the word remuneration "varies from one section of the Act to another." Reliance was placed upon the Pay Equity Inquiry in which it was submitted her Honour had concluded 'the definition of "pay equity" in the Act suggests a wider application of the term "remuneration" than award wages or cash payments only, and that the ILO Convention 100 definition should be applied in the context of any principle to deal with equal remuneration, and is applicable to s23 of the Act.' This submission was supported by the Labor Council, but opposed by the Employers' Federation which submitted that it had already been rejected in the Principles for Review of Awards decision quoted above.

89 It followed, so it was submitted for the Minister, that '"remuneration" thus includes everything paid to employees, whatever its form, including superannuation and cash and non-cash benefits, including those provided through salary sacrifice arrangements, payments made pursuant to enterprise arrangements and over award payments.' Reliance was placed upon ILO Convention 100 which 'makes no distinction between various industrial arrangements or forms of employment contract in relation to equal remuneration requirements.' 90 Similar submissions were advanced for the Labor Council and the Women's Organisations. The submission for the employers was that the word had the narrow meaning discussed in the Principles for Review of Awards quoted above, namely, the cash or monetary component of employee benefits fixed by an award and not the wider definition included in ILO Convention 100. It did not include overaward payments. 91 We observe that the determination of the meaning of the word remuneration in ss19, 21 and 23, particularly where used in the term 'equal remuneration' is not, as was implicit in various of the submissions made, a matter in the discretion of the Commission in these proceedings. Rather, what is required is that the meaning of the words of the statute be ascertained and applied in accordance with the ordinary principles of statutory construction. 92 In that context, the first thing which must be noted is that Parliament did not use in the Act the precise words of ILO Convention 100, either generally or by adoption of the definition of 'remuneration'. It follows that the Commission would not usually construe that latter word as if Parliament had done so. This was the approach of the Full Bench in Shead quoted above, consistent with the requirements of s34 of the Interpretation Act 1987. As was observed by the Full Bench in Re Principles for Approval of Enterprise Agreements (1996) 94 IR 98 at 115, in establishing principles the Commission has no power to read down or depart from a proper construction of the Act no matter how desirable such an approach might be thought to be in a particular case. 93 Statutory construction requires that the ordinary meaning of the words of a statute be given effect having regard both to context and the underlying purpose or object of the statute. The term 'equal remuneration' is not ambiguous or obscure and the ordinary meaning of the words does not give rise to any absurd or unreasonable result. 94 It can thus be seen that the term 'equal remuneration' is not used in the Act in the same way that the word remuneration and equal remuneration are defined in the Convention. The ILO Convention 100 provides: 'For the purpose of this Convention:- (a) the term remuneration includes the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment;' (b) the term equal remuneration for men and women workers for work of equal value refers to rates of remuneration established without discrimination based on sex.'

95 What necessarily follows is the conclusion that the word 'remuneration', where it appears in the Act in terms such as 'equal remuneration and other conditions of employment,' may be understood as being used, pertinently in this case, as not including overaward payments. 96 In the case of s21, it must be noted, that even though s21(1)(b) deals with 'equal remuneration and other conditions', the general introductory words indicate the section is concerned with the obligation on the Commission to 'make an award setting' any of a list of 'conditions of employment'; equal remuneration being one of those particularly identified. 'Conditions of employment' is a defined term in the Act. The Dictionary provides that it 'includes any provisions about an industrial matter'. 'Industrial matter' is itself defined in s6(1) as: '…matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.' … Examples of industrial matters in sub-s5(2) thereof are as follows:

(a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace. 97 The Act plainly, on our view of it, contemplates that 'remuneration' is but one class of the conditions of employment caught by the definition of industrial matters. A claim under s21 for an award setting 'equal remuneration for men and women doing work of equal or comparable value' is concerned with award, not overaward, remuneration. This is clear from the plain words of the provision read as a whole, and in context. Likewise with s23, which is concerned with 'equal remuneration and other conditions of employment' provided in an award. 98 This means that in the case of both ss21 and 23, where the phrase 'equal remuneration and other conditions of employment' is used, relatively little turns on this limited construction of the term in a practical sense because much of what was sought to be embraced in the wider definition of 'remuneration' advanced for the Minister is, in any event, within the statutory definition of 'conditions of employment'. What is sought falls within the scope of the composite phrase 'equal remuneration and other conditions [of employment]' in both sections. As we have already observed, however, overaward payments are not included, a matter to which we will return below. 99 This refined construction of equal remuneration has greater impact in the case of the definition of 'pay equity', the term used in s19(3)(e). Thus in award reviews conducted under s19, 'pay equity' issues are confined to the cash or monetary provisions of the award in question and not other conditions of employment. That is not to ignore related issues of discrimination generally which may arise in respect of other conditions of employment apart from remuneration matters as being required to be reviewed in accordance with s19(3)(e). 100 There is nothing surprising, we are satisfied, in a more limited approach being adopted by the legislature to the requirements of the award review process established by s19. This flows from the structure of the Act which includes the more general requirements of s23, applicable generally at the award-making stage, and the more particular provisions of s21, giving award parties the right to raise specific concerns about questions of equal remuneration and other conditions of employment by express application even if there be an existing award dealing with the matter (s21(4)). In the context of that regime, a construction which required precisely the same obligations to be repeated in the 3-yearly s19 award review process would be unlikely. The work of s23 of the Act 101 We turn to the work to be performed under the Act by ss19, 21 and 23, and more particularly whether they have been designed to deal with the claims of undervaluation of work performed by women as being the heart of the application advanced by the Labor Council. Section 23 may conveniently be considered first. 102 The Commission is empowered, through s10, to make awards which set 'fair and reasonable' conditions of employment. Section 23 requires they be 'equal' for men and women 'doing work of equal or comparable value' . This accords with the objects of the Act which include in s3(f): 'to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value'.

103 What then does s23 require of the Commission? Some consideration was given to this by Walton J, Vice-President in Re Riverina Water County Council Enterprise Award 1998 (1999) 87 IR 24. His Honour observed (at p26): 'The word "must" appearing in s23 is mandatory in nature and imposes a requirement upon the Commission in all circumstances where it exercises its jurisdiction to make an award (see State Personal/Carer's Leave Case 1998 . See also Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 at 490 per Williams J in dissent). The well settled meaning of the word "ensure" as "guaranteeing, securing or making certain" in the context of ss15 and 16 of the Occupational Health and Safety Act 1983 (NSW): Workcover Authority of NSW (Inspector Plouright) v Shaft and Tunnel Pty Ltd (unreported, NSW Industrial Relations Commission, Peterson J, 16 May 1997), p 3; (and see Carrington Slipways Pty Ltd v Inspector Callaghan (1985) 11 IR 467 at 469-470 and Workcover (Inspector Reid) v CSR Ltd t/a CSR Wood Panels (unreported, NSW Industrial Relations Commission, No CT 1176, 10 August 1995), pp 19-21) is, in my view, applicable to the use of that word in s23 of the Act. 104 In our view, the section requires that in determining what remuneration and other conditions of employment are to be fixed by an award consideration is to be given by the Commission to the remuneration and other conditions of employment proposed in the award for men and women performing other work of 'equal or comparable value' so as to ensure that such remuneration and other conditions are indeed equal. In other words, the Commission must ensure that the remuneration and other conditions of employment which the award prescribes are the same for men and women under the award who are performing the same work or different work but which has equal or comparable value. 105 There is nothing startling about this concept in the context of the framework of conciliation and arbitration established by the Act. It conforms, for instance, with the approach adopted to valuation of work outlined in the 1959 Clerks Award test case earlier referred to. It requires that rates and conditions fixed by an award reflect the proper value of the work, irrespective of the sex of the person performing the work. That construction also conforms with ILO Convention 100, which was described by Professor Hunter as requiring that rates of remuneration be established 'for men and women workers that are free of sex discrimination.' In that context, we agree with the view expressed by Professor McCallum that the section is not concerned with claims of undervaluation of work performed by women. 106 This analysis brings us to another aspect of the cases initially advanced both for the Labor Council and the Minister. They advanced principles which had the common feature of obliging the Commission, when exercising its functions either under s21 or s23 (or indeed s19, to which we will turn later), to conduct an inquiry into the question of whether pay equity had been achieved in the award by reference not only to the work to which the award applied but to the work of comparative occupations covered by other awards, industrial instruments or those regulated by common law contracts of employment. We reject that analysis for two reasons. 107 The first is that none of those sections on their face are concerned with anything other than the provisions of the particular award in question. The second is that they do not empower the Commission to conduct inquiries. 108 The Labor Council announced during the hearing that it had abandoned this second aspect of its case, accepting what had been put by a Full Bench of the Commission in the Principles for Review of Awards decision (at p56): 'The Commission is neither a party to awards made under the 1996 Act nor is it a party to proceedings conducted before it. The review process established by s19 will not necessarily involve the type of adversarial process envisaged in some other aspects of the 1996 Act, indeed the Commission expects that in the vast majority of cases the review process will not be contentious at all and the end result will be agreed between the parties and accepted by the Commission. In the event of contested issues, however, the usual adversarial model will apply.

In a s19 review of an award it will always be the parties to the award who are best placed to assess the requirements of the industry and those of the employers and employees affected by the particular award or awards concerned in the review. That indeed is expressly envisaged in s19(5). There is no special role provided by s19 for the Commission itself to call evidence in review proceedings or to embark upon a wide ranging investigation into the operation of a particular award or industry.

We observe also that there is nothing in s19 which detracts from the ordinary approach to litigation before the Commission under the 1996 Act wherein it is a matter for the Commission to determine whether, on the material brought before it by the parties in a particular case, the requirements of the 1996 Act have been satisfied.

If not satisfied, the Commission has a discretion to require more of the parties or to reject a particular approach urged by the parties - even if it is an agreed approach. Such circumstances arise not infrequently in proceedings brought under other parts of the 1996 Act, for instance when the Commission is asked to make a consent award or to approve an enterprise agreement. In so far as it was suggested there is any different role for the Commission in a s19 review, that submission is rejected.' 109 That position was later accepted by the Minister and brought both the Minister and then the Labor Council into line with the position of the employer groups as to this issue. That approach was not, however, completely abandoned by the Women's Organisations which had real concerns about the way in which rates of pay were fixed by awards, particularly in cases where they reflected agreements reached by award parties; a number of the witnesses shared that view. 110 We are in agreement with the approach of the industrial parties as to this matter. As we have already observed, s23 on its face is concerned with the terms of the particular award before the Commission. It does not require, nor permit, a wide ranging investigation to be conducted by the Commission as to whether the rates and conditions sought in an application brought for the making of an award involve the undervaluation of a particular class of work covered by the proposed award by reference to the way in which other persons to whom the award does not apply are remunerated. 111 Had such a requirement been intended by s23 the legislature would have plainly said so. Such an approach would involve a significant departure, not only from the ordinary and well known award-making processes observed by the Commission and its predecessors for very many years, but also a significant departure from long-established wage fixing principles. It is hence quite unlikely that a new requirement of such significance would have been introduced by the unremarkable words used in s23. 112 That such an approach was not intended can also be gleaned from a comparison with other provisions of the Act. Section 19(5), as observed by the Full Bench in the Principles for Review of Awards decision (at pp47-48) is a new provision which: '…involves both new and different processes and obligations. They are philosophically different to the familiar processes available to award parties in the 1996 Act and in the predecessor legislation to which we earlier referred. It requires the Commission to make changes to the award which properly flow from the review process. That obligation could not be achieved by the giving of a possibly unenforceable direction to award parties that they make an application consistent with the view the Commission had formed in the review.'

Nothing of such a kind is contained in s23. 113 By way of contrast, s146(1) of the Act, which specifies the Commission's functions, makes plain that inquiries may be conducted when the Minister makes a reference to the Commission. Such a reference was dealt with by Glynn J in the Pay Equity Inquiry. No other such provision is made in the Act, even in s162(2)(j) which permits the Commission to inquire into an industrial matter on its own initiative. As was observed in the Principles for Review of Awards decision (at p35), neither s21 nor s23 make provision for the Commission itself to call evidence or to conduct a wide-ranging investigation into questions of equal remuneration. There is nothing in those sections which detracts from, as was there said: '… the ordinary approach to litigation before the Commission under the 1996 Act wherein it is a matter for the Commission to determine whether, on the material brought before it by the parties in a particular case, the requirements of the 1996 Act have been satisfied.

If not satisfied, the Commission has a discretion to require more of the parties or to reject a particular approach urged by the parties - even if it is an agreed approach. Such circumstances arise not infrequently in proceedings brought under other parts of the 1996 Act, for instance when the Commission is asked to make a consent award or to approve an enterprise agreement. 114 We will deal further with the specific construction of ss19 and 21 but emphasise, at this point, that whilst the parties concentrated both their submissions and the principle proposed therein upon concerns which they all ultimately shared as to undervaluation of female dominated occupations, the legislature did not so approach the drafting of s23. In construing the section it cannot be ignored that it is concerned with equal remuneration and other conditions of employment 'for men and women doing work of equal or comparable value'. 115 This is a point to which we will return. Nevertheless, it is pertinent to observe that in approaching the meaning of s23 and the principles which the parties proposed on a basis which did not pay sufficient regard to the latter part of this phrase, namely 'for men and women doing work of equal or comparable value', we have been left with a real concern that to adopt the approach urged by the industrial parties and by the Women's Organisations may give rise to the possibility of leapfrogging in award wages so as to potentially undermine much of the balance of the existing Wage Fixing Principles. The parties expressly submitted that the creation of such a possibility was not their intent. Nevertheless, the Commission must guard against even unintended consequences of well meaning innovations. 116 The requirements of s169(1) of the Act are also pertinent here. It provides: 'The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977 .' 117 We are concerned that the approach urged by the parties in the principle which they propose is, potentially at least, contrary to this requirement. It was submitted, for example, that the new principle 'will operate in general in relation to occupations and industries that have a high concentration of female workers and/or which have historically been characterised as female'. The principle proposed made a similar provision. In so far as the parties' submissions and the principle which they urge seek to put a gloss on the requirements of s23, to the effect that the section is directed towards 'occupations and industries that have a high concentration of female workers and/or which have historically been characterised as female', they must be rejected. 118 Consistent with the principles inherent in the Anti-Discrimination Act as to unlawful discrimination on the grounds of sex, s23 requires the Commission to ensure that awards which it makes provides 'equal remuneration and other conditions of employment for men and women doing work of equal or comparable value'. This requirement is not restricted to 'occupations and industries that have a high concentration of female workers and/or which have historically been characterised as female.' The work of s21 of the Act 119 Like the broad investigative approach initially urged by the Labor Council and the Minister to the construction of s23, a similar construction was at first advanced for s21. That approach to the construction of the Act was later abandoned. The Women's Organisations did not completely resile from that approach. 120 It is necessary, therefore, to consider the difference in the work which s21 and s23 have to perform. Section 10 of the Act provides a general discretion in the Commission - it 'may make an award' on application or on its own initiative. Section 21, by way of contrast, imposes an obligation on the Commission to make an award as to particular matters on application - 'The Commission must, on application, make an award setting' a number of specified 'conditions of employment', which include in s21(1)(b) 'equal remuneration and other conditions for men and women doing work of equal or comparable value'. 121 Section 21(3) expressly provides that such conditions may be set in a new award or by variation of an existing award and s21(4) provides for this even if 'there is an existing award dealing with the matter'. Such applications must be dealt with in a way so that any such resulting conditions are set in accordance with any relevant requirement of the Division or other provision of the Act and 'with due regard to any established principles of the Commission or other matters considered relevant' (s21(2)). 122 Section 21 operates on specific application by a party who seeks 'equal remuneration and other conditions for men and women doing work of equal or comparable value'. As was observed by the Full Bench in the Principles for Review of Awards decision (at p45), the Commission cannot require a party to bring such an application. Section 23, by way of contrast, does not require any specific application, rather it imposes a general obligation upon the Commission 'whenever' making an award to 'ensure' that it provides 'equal remuneration and other conditions of employment for men and women doing work of equal or comparable value' whether or not the parties to the award seek that outcome. 123 A number of other differences between ss21 and 23 may also be observed. Section 23 does not apply to applications for the variation of awards and it does not expressly require the Commission's 'established principles' or other 'relevant matters' to be considered. These are not insignificant distinctions from the requirements of s21. 124 It follows that if an award has been made in accordance with s23, the Commission having sought to ensure that the award it made provided for 'equal remuneration and other conditions of employment for men and women doing work of equal or comparable value' and an award party nevertheless seeks to advance a case that this aim has not been achieved, s21 would require the Commission to entertain the application. Like s23, however, s21 is not concerned with wide-ranging inquiries into possible undervaluation of work of female employees to be measured by what workers in other industries, workplaces or occupations might be paid, but is relevantly concerned with an application which seeks to establish that the award in question does not fix 'equal remuneration and other conditions for men and women doing work of equal or comparable value'. The work of s10 of the Act 125 As we have already noted, s10 gives the Commission power to make awards which fix 'fair and reasonable' conditions of employment. 126 The Labor Council, the Minister and the Women's Organisations expressed concern that a number of awards of the Commission, which reflect agreements reached between the award parties rather than by determination of the Commission, perpetuate undervaluation of women's work. The Commission's principles have for many years now encouraged agreements. Currently, this is consistent with the requirements of the Act which, like its predecessors, encourages agreements. The objects of the Act in s3(g) and (h) deal expressly with such matters, as does s14, which requires awards to contain mandatory dispute resolution procedures and ss29-47 which deal with enterprise agreements. Those statutory requirements cannot be ignored. As a Full Bench of the Commission observed in Re Principles for Approval of Enterprise Agreements (1996) 94 IR 98 at 117: '…emphasises the continued devolution of industrial relations matters directly into the hands of those most immediately concerned, employers, employees and the industrial organisations which represent them. The Commission's role in this aspect of the legislation is protective and facilitative, rather than interventionist.' 127 It follows that rates of pay fixed by current awards reflect not only work value assessments conducted by the Commission of the particular work to which the award applies but other agreed factors as well. Some awards undoubtedly reflect agreements about matters of the kind which the Labor Council and the Minister accepted would be an inappropriate or irrelevant basis for comparison of the value of the work of disparate groups of workers. Such matters included agreed productivity improvements, attraction rates and retention rates. This approach is understandable given that such factors do not reflect the intrinsic value of particular work, even as assessed by the parties rather than by the Commission, in accordance with the Work Value principle. Presently, some awards of this Commission, for good reason unconnected with the value of the work to which the awards apply or the gender of the workers performing the work, provide for different rates of pay and other conditions for 'work of equal or comparable value'. Equally, however, we accept that some current awards may improperly undervalue the work performed by women. 128 These observations are relevant to a consideration of the concern to which this case was really directed, namely, alleged undervaluation of work performed by women. As we have already noted, the case advanced was in large measure one which flowed from a view that despite the existence of the Equal Pay principle and the Wage Fixing Principles generally since the 1970s, and in part from the legislative emphasis upon the desirability of industrial parties reaching agreements about matters, the result has been that the rates of pay and other conditions fixed by some awards which apply to female dominated workforces undervalue that work. The possibility of other gender based discrimination was also advanced. 129 There was no real contest at the end of the day that such undervaluation should be addressed and corrected. Professor Lewis, for instance, gave evidence that in his view such undervaluation should be remedied and that there should be government intervention to remove discrimination against female employees. He warned against the difficulties of detection and proper analysis of such undervaluation, particularly when it was sought to be demonstrated by comparisons drawn between disparate occupations. He accepted, however, that remedying properly identified cases of undervaluation was likely, in the long term, to have positive rather than negative economic effects. 130 Having heard the evidence and submissions advanced by the parties, we are satisfied that if such a case was demonstrated on the evidence brought it would properly follow that the award in question did not fix 'fair and reasonable conditions of employment' for the work to which it applied and that, in accordance with s10 of the Act, the Commission should act to rectify the problem so demonstrated. We have therefore concluded that the new principle which we establish will permit gender undervaluation applications to be advanced and considered separate from the Special Case principle. 131 We have approached the formulation of a new principle having in mind the evidence led as to economic matters. We now turn to that material before dealing with the appropriate content of the new principle itself. Economic considerations 132 It is apparent from the cases advanced that the concerns which have given rise to this application have had regard to statistical information as to the existence of a gender gap in pay as between men and women. We have accepted that this gap has been demonstrated on the evidence. Whether any undervaluation exists in any particular case is a different matter. In that context, it must be observed that statistical material of the kind relied upon in this case has to be approached with great caution. 133 As the witnesses explained, it cannot be overlooked that such statistics depend on census information and information collected by the Australian Bureau of Statistics as to average actual earnings. The principles sought in these proceedings are concerned with how minimum rates of pay and other conditions of employment provided by awards are to be fixed. Statistics will be no substitute for evidence in a particular case. 134 Whilst some employees undoubtedly are paid only minimum award rates of pay, others receive overaward payments or rates fixed by enterprise agreements approved under s37 of the Act which give rise to payments higher than the relevant award minima. The case advanced by the Labor Council and the Minister envisaged that comparisons may be drawn as between the award rates of pay with actual rates which other employees performing different work receive, with a resulting adjustment in the minimum award rates for those employees engaged in the female dominated industry in respect of which the claim is being advanced. 135 The Treasury concern, about which Mr Cox gave evidence, that such adjustments would lead to comparative wage justice claims can readily be appreciated. Were the result of a comparison of actual rates of pay to lead to higher minimum award rates in a female dominated industry, the result would be higher award rates than those applying to the employees with whom the comparison was made. 'Catch up' wage claims and leapfrogging in such circumstances would seem to be likely. This would be even more likely if some of those in the male dominated industry were not in receipt of pay rates, on an overaward basis, of at least the new award minima fixed in the comparator award. 136 It is difficult to see how such 'catch up' claims could be resisted, if made. Once the minimum award rates in the female dominated industry were higher than the minimum award rates in the male dominated industry, to which a valid comparison had been established having regard to the value of the work in question, s21 of the Act would, on the construction advanced by the Labor Council and the Minister, provide a statutory basis for a claim for increases in the minimum rates of the male dominated industry award. Principles which the Commission established in these proceedings could not preclude claims properly available to be made under s21 (if the construction of that section advanced by the Labor Council and the Minister were accepted) merely because their basis was a flow-on from other proceedings successfully brought under the Act. The Commission's principles can, after all, only guard against flow-on claims which have no proper foundation. We have, of course, rejected such a construction of s21. 137 The consequences, economic and otherwise, of such flow on claims should not, however, be underestimated. All of the expert witnesses spoke of the need for a cautious case-by-case approach to be adopted to an examination of gender based undervaluation claims. The evidence led warned against possible losses in employment and participation rates for women workers resulting from wage increases which do not in reality address gender biased rates of pay. Similar problems would flow for male workers if a catch-up round of claims occurred in male dominated industries if comparison based claims were able to be made. Mr Swan gave graphic evidence of such possibilities, especially in an industry such as hairdressing, where problems of compliance with current award provisions apparently exist. Claims that there may be negative employment effects cannot, however, provide a proper basis for refusal of pay equity adjustments where it has been established that men and women are not being equally remunerated for work of equal or comparable value. 138 It must also be observed that comparisons drawn between different work, on the footing that even though the work is different its value is the same, is not a novel concept in the current system of conciliation and arbitration established by the 1996 Act and its predecessors. The entire minimum rates adjustment exercise in the late 1980's, which established the same rate of pay in most awards for the trades classification at the level fixed in the Metal Industry Award for category C10 involved precisely such comparisons. Similarly, the structural efficiency exercises conducted in many awards, which resulted in the reduction of numerous award classifications into one broad-banded skilled based classification, involved similar comparisons. 139 This, however, is quite a different matter to a reliance upon comparison as between award and actual rates of pay as between disparate groups of workers. The evidence of Professor Lewis is to the point. Overaward payments reflect many matters, including demand and supply conditions in the labour market from time-to-time, the size of employer firms, the geographical location of workplaces and the views employers hold as to the productivity and skills of individual employees. 140 Any reliance upon such payments will inevitably require detailed analysis of matters of this kind. It should not be assumed by any party that the Commission will make assumptions as to the value of the work of any two groups of employees who are being sought to be compared, especially if the claim advanced depends upon a comparison of award rates with actual rates of pay. 141 All of these observations highlight the difficulties which the concept of equal remuneration proposed in the principle agreed by the parties gives rise to and underlines why many of the expert witnesses took the view that the task which fell upon the Commission in establishing such a principle was a difficult one which had to be approached with caution. Those matters have influenced the approach we have taken to the drafting of the new principle. 142 Such difficulties do not, however, deny a conclusion that if a case is properly made out on the evidence that the rates in a particular award are undervalued because of the gender of the workers to whom the award applies then the Commission should act to correct the inequity revealed. Indeed, all of the expert witnesses seemed unanimous that if genuine cases of such inequity were corrected by the Commission the effects on the labour market would be positive. The new principle 143 We have considered the principle advanced by the parties. Notwithstanding their agreement, we have concluded that it cannot be adopted. It is based on a construction of the Act which we have rejected for the reasons already outlined. It also suffers from a lack of clarity in drafting which reflects its genesis. The new principle we have determined is in the following terms: Equal Remuneration and Other Conditions

(a) Claims may be made in accordance with the requirements of this principle for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required or the conditions under which the work is performed have been undervalued on a gender basis.

(b) The assessment of the work, skill and responsibility required under this principle is to be approached on a gender neutral basis and in the absence of assumptions based on gender.

(c) Where the undervaluation is sought to be demonstrated by reference to any comparator awards or classifications, the assessment is not to have regard to factors incorporated in the rates of such other awards which do not reflect the value of work, such as labour market attraction or retention rates or productivity factors.

(d) The application of any formula, which is inconsistent with a proper consideration of the value of the work performed, is inappropriate to the implementation of this principle.

(e) The assessment of wage rates and other conditions of employment under this principle is to have regard to the history of the award concerned.

(f) Any change in wage relativities which may result from any adjustments under this principle, not only within the award in question but also against external classifications to which the award structure is related, must occur in such a way as to ensure there is no likelihood of wage leapfrogging arising out of changes in relative positions.

(g) In applying this principle, the Commission will ensure that any alteration to wage relativities is based upon the work, skill and responsibility required, including the conditions under which the work is performed.

(h) Where the requirements of this principle have been satisfied, an assessment shall be made as to how the undervaluation should be addressed in money terms or by other changes in conditions of employment, such as reclassification of the work, establishment of new career paths or changes in incremental scales. Such assessments will reflect the wages and conditions of employment previously fixed for the work and the nature and extent of the undervaluation established.

(i) Any changes made to the award as the result of this assessment may be phased in and any increase in wages may be absorbed in individual employees' overaward payments.

(j) Care should be taken to ensure that work, skill and responsibility which have been taken into account in any previous work value adjustments or structural efficiency exercises are not again considered under this principle, except to the extent of any undervaluation established.

(k) Where undervaluation is established only in respect of some persons covered by a particular classification, the undervaluation may be addressed by the creation of a new classification and not by increasing the rates for the classification as a whole.

(l) The expression 'the conditions under which the work is performed' has the same meaning as in Principle 6, Work Value Change.

(m) The Commission will guard against contrived classification and over classification of jobs. It will also consider: (i) the state of the economy of New South Wales and the likely effect of its decision on the economy;

(ii) the likely effect of its decision on the industry and/or the employers affected by the decision; and

(iii) the likely effect of its decision on employment.

(n) Claims under this principle will be processed before a Full Bench of the Commission, unless otherwise allocated by the President. (o) Equal remuneration shall not be achieved by reducing any current wage rates or other conditions of employment. 144 As we have noted, the parties were agreed that the Work Value principle was an inappropriate vehicle for undervaluation claims to be advanced before the Commission given the requirement there provided for change to be demonstrated and the time limits imposed. It was accepted that in some cases those requirements might work an injustice because, for instance, no work value assessments had been conducted prior to the relevant dates. Similarly, the Special Case principle was not regarded as the appropriate vehicle for such cases to be advanced, even though it was acknowledged that claims which sought to go beyond the timeframe provided in the Work Value principle, or which sought to draw comparisons with other workers, industrial instruments or overaward payments, might presently be pursued under this principle. We accept this common view. 145 The parties also were agreed that some of the safeguards built into the Work Value principle should appropriately be part of any principle which we adopt for equal remuneration. This latter approach was reflected in the principle which they advanced. We take a similar view. Claims of gender undervaluation are concerned with the proper valuation of the work in question. An assessment of the value of any work to which an award applies is not conducted in a vacuum but in a particular context, dealt with in the work value principle itself in para 6(c), namely in the context of other work to which the award applies and to the work of any related classifications in other awards. The principle which we formulate also contains such safeguards and is approached on the basis submitted by the Employers' Federation. It does not direct particular outcomes but facilitates the hearing of cases advanced. Because it is concerned with the proper valuation of work it has been drafted with the Work Value principle as its model. 146 The parties were agreed that particular reference should be made in the principle to three matters, which must be given attention in proceedings generally having regard to the requirements of the Act, such as s146(2). We have included this provisions in the principle, reflecting as it does one of the bases upon which the parties agreed that an Equal Remuneration principle should be established. 147 As we have already observed, some of the evidence led in the case concerned comparisons which might be sought to be drawn between award rates of pay and total rates of pay, including overaward payments received by quite disparate classifications and covered by a variety of industrial instruments. The difficulty inherent in such comparisons should not be underestimated. They were recognised by the parties and by some of the witnesses. Ms Smith, for instance, gave evidence about a study which she conducted during the Pay Equity Inquiry into the respective earnings of hairdressers and motor mechanics, both covered by awards which provide for rates at the C10 metal industry award fitter rate. She concluded in that study that the earnings gap there identified "will be difficult to close because of market pressures that are difficult to influence" and would require "regulatory intervention outside the scope of this study." As to award matters, the issues which might be addressed were identified in her report as: · the absence of a post-trade career path within hairdressing, despite the availability of accredited, structured post-trade training courses; and · the under-valuation in the award of the trade-qualified occupation of beauty therapist. 148 Care will also need to be taken that the requirements of s47 of the Act are not overlooked. It requires: 'When making awards or exercising its other arbitral functions under this Act, the Commission is not to regard conditions of employment set by enterprise agreements as standard conditions of employment for other employees.' 149 This provision is reflective of a long-standing principle applied by the Commission that it will not impose terms of agreements on others unless good reason therefor be established. 150 The Equal Remuneration and Other Conditions principle which we establish is not premised upon an assumption that any current award contains any element of gender undervaluation. Nor is it premised on the assumption that the rates in any particular award do not contain elements of gender undervaluation. We accept that the evidence as to the continued existence of a gender gap in earnings leaves open the possibility that such undervaluation exists. We are also satisfied it is appropriate to establish a principle which will permit such claims to be considered when an appropriate application is brought under s10 of the Act separate from the avenue already provided for such matters to be considered under the Special Case principle. It follows, however, as we observed earlier, that an obligation to make out a case in the ordinary way on the evidence will fall upon any applicant who brings such a claim. If that obligation is not met then the application will fail. 151 The Equal Remuneration and Other Conditions principle has been drafted to permit, in a particular case, a party who seeks to make out a case brought by reference to overaward payments to bring evidence about such matters. This is consistent with the approach adopted in past cases where reliance was placed upon overaward payments: see, for example, Metal Trades Work Value Case (1967) 121 CAR 587 at 801-802; Re Transport Industry (State) Award (1996) 95 IR 126. It is possible to envisage circumstances where award rates of pay do not properly reflect the value of the work as the result of, for example, inactivity by the award parties and that this has been recognised by employers who, as a result, are making overaward payments for that reason rather than for reasons such as attraction or retention rates. Such a case would, of course, have to be demonstrated on the evidence, in the usual way, before the Commission would adjust award rates to address the undervaluation so established. 152 If it were not so demonstrated, the application would not be successful. Such a consequence would follow if it could not be demonstrated that the comparison sought to be made was a relevant one or, if relevant, that the overaward payments sought to be relied on were not made in connection with an assessment of work value but for other reasons. Whilst overaward payments may have been regarded as relevant in past cases before the Commission, undervaluation claims are concerned with the proper value of work and not matters such as attraction or retention rates. In this respect, we agree with the observations of the Full Bench in the Local Courts Anomaly Case [1989] AR (NSW) 638 at 645, as follows: 'Attraction rates as such are inconsistent with State Wage Principles as they reflect the problems of management and not the true value of the work required. Furthermore, they can set up within a wages structure pressures towards defensive increases designed to retain staff under challenge from rates elsewhere. Indeed, in part, this exercise under review is in reply to competitive rate challenges available in the private sector and elsewhere in the public sector which are drawing off staff from local courts. There can arise a circular self perpetuating process of wage enhancement against which we should be on guard.' 153 We observe also that in framing the principle we have rejected the submission of the Employers' Federation that the principle should be confined to claims of discrimination. Claims of undervaluation may be based on identification of discriminatory matters. We are satisfied, however, that if it can be demonstrated that particular work is undervalued an appropriate adjustment to the applicable award rate should follow, without the necessity of establishing also that the undervaluation flowed from a particular act of discrimination. 154 Further, the principle we propose permits appropriate comparisons to be drawn but does not require them. The principle does, however, require appropriate attention to be given to award relativities - both internal and external. As already noted, we are concerned to ensure that undervaluation does not give rise to leapfrogging. This is especially important in cases where reliance is sought to be placed on overaward payments, particularly in the case of disparate occupations. Undervaluation claims should not have the result of increasing minimum award rates for one classification by reference to the overaward payments of another classification so as to inevitably lead to a claim for increases in the award rates of the comparative classification. The risk inherent in such an approach is that further flow on claims may be brought in respect of other classifications which already have established relationships to the comparative classification, thereby triggering a general wages outbreak. The principle is designed to guard against this possibility which, we accept, the parties do not intend. Operation of s23 of the Act 155 Finally, and having in mind the cases advanced by the parties as to the proper construction of the Act which we have dealt with, we announce that a Practice Direction will, in due course, issue to require parties seeking a consent award to file with the application an affidavit stating the basis upon which it is contended that the proposed award provides for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. This material will form the evidentiary basis upon which the Commission will in future base its consideration of the requirements of s23 of the Act. Amendment of the Commission's Wage Fixing Principles 156 The Wage Fixing Principles formulated in the State Wage Case 2000 [2000] NSWIRComm 83 will be amended to insert a new principle entitled "Equal Remuneration and Other Conditions", together with a number of consequential variations. Future Review 157 We do not propose to require any review of the principle we have established by a particular date. The operation of the principle will arise for consideration upon appropriate application. Orders 158 Pursuant to ss50(4) and 51 of the Industrial Relations Act 1996, the Full Bench of the Industrial Relations Commission of New South Wales orders for the purposes of awards and other matters under that Act: 1. The variation of the Wage Fixing Principles established in the State Wage Case 2000 by the: (a) insertion of a new paragraph (h) in Principle 2, When an award may be varied or another award made without the Claim requiring consideration as a Special Case, in the following terms: '(h) to adjust wages pursuant to an application claiming that work has been undervalued on a gender basis in accordance with Principle 15.' (b) adoption of a new Principle 15, Equal Remuneration and Other Conditions, in the following terms:

(a) Claims may be made in accordance with the requirements of this principle for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required or the conditions under which the work is performed have been undervalued on a gender basis.

(b) The assessment of the work, skill and responsibility required under this principle is to be approached on a gender neutral basis and in the absence of assumptions based on gender.

(c) Where the undervaluation is sought to be demonstrated by reference to any comparator awards or classifications, the assessment is not to have regard to factors incorporated in the rates of such other awards which do not reflect the value of work, such as labour market attraction or retention rates or productivity factors.

(d) The application of any formula, which is inconsistent with a proper consideration of the value of the work performed, is inappropriate to the implementation of this principle.

(e) The assessment of wage rates and other conditions of employment under this principle is to have regard to the history of the award concerned.

(f) Any change in wage relativities which may result from any adjustments under this principle, not only within the award in question but also against external classifications to which the award structure is related, must occur in such a way as to ensure there is no likelihood of wage leapfrogging arising out of changes in relative positions.

(g) In applying this principle, the Commission will ensure that any alteration to wage relativities is based upon the work, skill and responsibility required, including the conditions under which the work is performed.

(h) Where the requirements of this principle have been satisfied, an assessment shall be made as to how the undervaluation should be addressed in money terms or by other changes in conditions of employment, such as reclassification of the work, establishment of new career paths or changes in incremental scales. Such assessments will reflect the wages and conditions of employment previously fixed for the work and the nature and extent of the undervaluation established.

(i) Any changes made to the award as the result of this assessment may be phased in and any increase in wages may be absorbed in individual employees' overaward payments.

(j) Care should be taken to ensure that work, skill and responsibility which have been taken into account in any previous work value adjustments or structural efficiency exercises are not again considered under this principle, except to the extent of any undervaluation established.

(k) Where undervaluation is established only in respect of some persons covered by a particular classification, the undervaluation may be addressed by the creation of a new classification and not by increasing the rates for the classification as a whole.

(l) The expression 'the conditions under which the work is performed' has the same meaning as in Principle 6, Work Value Change.

(m) The Commission will guard against contrived classification and over classification of jobs. It will also consider: (i) the state of the economy of New South Wales and the likely effect of its decision on the economy;

(ii) the likely effect of its decision on the industry and/or the employers affected by the decision; and

(iii) the likely effect of its decision on employment.

(n) Claims under this principle will be processed before a Full Bench of the Commission, unless otherwise allocated by the President. (o) Equal remuneration shall not be achieved by reducing any current wage rates or other conditions of employment.' (c) renumbering of Principle 15, Duration, as Principle 16.

2. The rescission of the principles established in In re State Equal Pay Case1973 [1973] AR (NSW) 425. 159 These orders operate on and from today's date and continue until further order of the Commission.

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Appearances at the Hearing 160 Mr A A Hatcher of counsel for the Labor Council of New South Wales Mr J V Murphy of counsel with Ms P F Lowson of counsel for the Minister for Industrial Relations

Mr T McDonald for The Employers' Federation of New South Wales representing:

ACROD Limited NSW Division Aged Services Association of NSW (Industrial) Amalgamated Milk Vendors Association Inc Association for Disability Employment Placement and Training Limited Association of Childrens Welfare Agencies Association of Consulting Surveyors NSW Inc Association of Major Community Organisations Australian Association of Broadcast Monitors Australian Council of Independent Business Colleges Limited Australian Environmental Pest Managers Association Limited (NSW Branch) Australian Mushroom Growers Association Limited Australian Optometrical Association (NSW Division) Australian Physiotherapy Association Banana Growers Federation Co-Operative Limited Boating Industry Association of New South Wales Limited Cemeteries & Crematoria Association of NSW Clay Brick & Paver Association of New South Wales Country Children's Services Association of New South Wales Inc Country Press Association of New South Wales Inc Crushed Stone and Sand Association of NSW Dive Industry & Travel Association of Australia Dry Cleaning Institute of Australia NSW Evening and Community Colleges Association Family Day Care Sponsors (Non-Local Government) Association Inc Floor Coverings Association of NSW Inc Hardware Association of New South Wales Limited Horological Guild of Australia (NSW) Housing Industry (Industrial Relations) Association Landscape Contractors Association of NSW Limited Master Painters Australia NSW Association Inc Master Plumbers & Mechanical Contractors Association of New South Wales National Electrical Contractors Association, New South Wales Chapter Natroad Limited (formerly Long Distance Road Transport Association) Newcastle Chamber of Fruit & Vegetable Industries Co-operative Limited NSW Cane Growers' Association NSW Credit Union Employers' Association NSW Dairy Farmers' (Industrial) Organisation NSW Meals On Wheels Association Incorporated Nursery Industry Association of NSW Limited Optical Distributors & Manufacturers Association Oyster Farmers Association of NSW Limited Printing and Allied Trades Employers Association of New South Wales The Professional Hairdressers' Association Quality Child Care Association of NSW Inc The Registered Clubs Association of New South Wales Restaurant and Catering Industry Association of New South Wales Retirement Village Association of NSW & ACT Inc Rural Marketing & Supply Association Inc Stock & Station Agents Association of NSW Inc Textile Rental & Laundry Association of New South Wales The Association of Consulting Architects NSW Branch The Association of Wall & Ceiling Contractors of New South Wales The Australian Commercial Dental Laboratories Association (NSW) The Australian Dental Association (NSW Branch) Limited The Funeral Directors' Association of New South Wales Limited The Institute of Chartered Accountants in Australia The Master Builders' Association of New South Wales Australian Medical Association (NSW) Limited The New South Wales Chamber of Fruit and Vegetable Industries Incorporated The New South Wales Pharmacy Guild The NSW Retail Tobacco Traders' Association The Professional Photographers Association of Australia The Real Estate Employers' Federation of NSW The Refrigeration & Airconditioning Contractors Association of Australia Incorporated The Showmen's Guild of Australasia Timber Trade Industrial Association The Retail Traders' Association of New South Wales

Mr A T Britt of counsel for The Australian Industry Group New South Wales Branch, The Catholic Commission for Employment Relations, the Local Government Association and the Shires Association of New South Wales, the Motor Traders' Association of New South Wales, the New South Wales Road Transport Association and the State Chamber of Commerce and Industry (Industrial Relations) Association.

Ms S Winters of counsel for the President of the Anti-Discrimination Board

Ms S Hammond and Ms S Jamieson for the National Pay Equity Coalition, Women's Electoral Lobby and the Business and Professional Women's Association (NSW) - referred to collectively as 'the Women's Organisations'.

Draft Principles proposed by the Industrial Parties 161 Normal - agreed Bold - pressed by LC and supported by MIR Italics small caps - pressed by Employees

Note: at paragraph 15.2(g) three alternatives are provided. Parties positions are as indicated.

Pursuant to the provisions of Part 3 Chapter 2 of the Industrial Relations Act 1996, the Full Bench of the Industrial Relations Commission of New South Wales orders:

1. The principles and provisions contained in In Re State Equal Pay Case, 1973 [1973] AR 425 shall be rescinded.

2. The Commission's Wage Fixing Principle set out in Annexure B of the State Wage Case 1999 shall be varied as follows:

Insert in the wage fixing principles a new principle 2(h):

(h) to provide for equal remuneration and other conditions in accordance with principle 15

a) In exercising its jurisdiction under these principles the Commission shall, in accordance with section 23 of the Act, apply the principle of "equal remuneration and other conditions of employment for men and women doing work of equal or comparable value".

b) The Commission must be satisfied, prior to the making of any award, that the proposed award provides for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value, and for that purpose, the Commission shall take into account the matters dealt with in Equal Remuneration and Other Conditions Applications.

15.2 Equal Remuneration and Other Conditions Applications

a) In accordance with s.21(1)(b) of the Act, an award shall, on application, be made or varied to provide for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.

b) Applications made under s.21(1)(b) of the Act will be processed before a Full Bench of the Commission, unless otherwise allocated by the President.

c) This principle generally applies where the award or a classification in the award is or has been female dominated, although access to the principle will ultimately be determined by the Commission on a case-by-case basis.

d) The consideration of the value of work performed under an award the subject of an application under this principle requires the exercise of the broad judgment that has characterised work value inquiries. In particular, the assessment of the value of the work and the establishment of rates of remuneration, is to be based on the nature of the work , skill, responsibility , and the conditions under which the work is performed, and the labour market, productivity and economic and other factors as the Commission considers relevant. A change in the value of the work need not be demonstrated in an application under this principle.

e) The automatic application of any formula, which seeks to bypass a consideration of the value of the work performed, is inappropriate to the implementation of this principle.

f) The Commission's consideration of the value of work performed under the award and/or classification may be assisted by a consideration of a comparator award(s) or comparator classification(s) and the remuneration and the conditions of employment of that comparator in that comparator award(s) or classification (s).

g) (LC supported by MIR) Where the Commission is satisfied that, having regard to the sex of the employees, the remuneration or other conditions of employment in the award and/or the classifications are undervalued , or that there is not equal remuneration and other conditions for men and women doing work of equal or comparable value, it may provide remedies for equal remuneration and other conditions including, but not limited to: OR (ABI/CEO Group) Where the Commission is satisfied that having regard to the sex of the worker there is not equal remuneration and other conditions for men and women doing work of equal or comparable value, it may provide remedies for equal remuneration and other conditions including, but not limited to: OR (EF) Where the Commission is satisfied that the remuneration or other conditions of employment in the award have been established with discrimination based on sex, it may remedy the discrimination. Remedies include, but are not limited to:

(All parties agree with the following list of remedies) (i) reclassification of work (ii) establishment of new career paths; (iii) changes in incremental scales; (iv) changes to rates of remuneration; and (v) changes to other conditions of employment. Equal remuneration and other conditions shall not be achieved by reducing current remuneration or conditions of any of the comparator classifications within the award.

h) In making or varying an award setting equal remuneration and other conditions of employment, the Commission is required to consider: i. The state of the economy of New South Wales and the likely effect of its decision on that economy; and

ii. The likely effect of its decision on the industry and/or the employers affected by the decision; and

iii. The likely effect of its decision on employment. i) The Commission may phase in changes to the award under this principle and any increase in remuneration may be absorbed in any above award payment.

j) In considering any application under this principle the Commission must be satisfied by the parties that there is no likelihood of wage or condition leapfrogging arising out of changes to the award and that any change to the wage relativities which might result, not only within the relevant award but also against external classifications to which the structure is related, are justified.

162 Draft Principles proposed by the Women's Organisations

1. The Equal Remuneration and other conditions of employment Principle applies to all aspects of the Commission's jurisdiction as provided in the Industrial Relations Act including in consent matters. 2. Access to the Equal Remuneration and other conditions of employment Principle will be available on a case by case basis. Consideration of whether rates have been affected by the sex of the workers, and of whether remuneration for men and women workers is equal where work is of equal or comparable value, will not be restricted to industries or occupations that are or have been characterised by majority female employment.

3. The Equal Remuneration and other conditions of employment Principle does not require that it be demonstrated that differences in remuneration of men and women workers for work of equal value are caused by sex discrimination, however defined.

4. It shall no longer be the presumption that rates of remuneration have been properly assessed, having regard to either the Equal Pay Principles or proper work value assessments. What is required is appropriate assessment of value of the work, unaffected by the sex of the workers, and equal remuneration for men and women workers for work of equal or comparable value. That assessment and setting of remuneration in relation to it must be based on real and cogent evidence about the value of work.

Consideration of whether valuing of work has been affected by the sex of the workers is broad and relevant matters include: (a) whether there is some "female characterisation" or labelling of work; (b) whether there is some under-rating or undervaluation of the skills of women employees per se; (c) whether occupational segregation or segmentation has adversely affected remuneration; and (d) whether there are features of the industry or occupation that may have influenced the valuation of the work such as the degree of occupational segregation, the disproportionate representation of women in part time or casual work, low rates of unionisation, low representation in workplaces covered by formal or informal work agreements and the incidence of consent awards/agreements.

It is not required that changes in the value of work from any particular point in time be shown. 5. The assessment of the value of work is required to be transparent, objective, and unaffected by the sex of the workers.

Assessment of the value of work can include: (a) traditional work value components such as skill, responsibility, qualifications and conditions of work (including the work environment and the context in which work is carried out);

6. Where the value of work of men and women workers is assessed as equal or comparable across the various components of remuneration, equal remuneration and other conditions must apply for the men and women workers doing work of equal value.

7. Comparators are not required to establish the value of work. Where comparators are used, they may be drawn across occupations and industries, irrespective of the form of industrial regulation or employment contract. Several comparators may be used. Comparisons are not restricted to similarity of work.

Relevant factors in establishing comparisons include: (a) the history of the occupation or industry; (b) award histories and the pattern of award variation and development; (c) the availability of credentialling arrangements; (d) institutional arrangements that impact upon occupational markets, such as regulatory schemes; and (e) the comparable circumstances of other occupations and industries in relation to matters such as education, training, qualifications and competencies. 8. Comparisons within and between occupations and industries may be used for guidance in ascertaining appropriate rates of remuneration.

9. The Commission will ensure that equal remuneration for men and women workers for work of equal or comparable value is provided in first awards including those based on existing rates and conditions, and that valuing of work and setting remuneration is not affected by the sex of the workers involved.

10. The Commission will consider during award reviews whether there is equal remuneration for men and women workers for work of equal or comparable value and whether assessment of the value of work or setting of rates is affected by the sex of the workers, especially in low paid, female-dominated, industrially weak occupations and industries.

11. Where necessary in the exercise of its jurisdiction the Commission may require the parties to address issues bearing on equal remuneration and other conditions of employment and encourage the industrial parties to cooperate in enquiring into the factors and bases of evaluation and remuneration (consistent with s.162(2)(J) of the Act and the Commission's other powers under the Act).

12. Remedies may include: (a) reclassification of work; (b) the establishment of new career paths; (c) changes to incremental scales; (d) reassessment of the broadbanding of classifications or skills; (e) reassessments of definitions; (f) amendment of generic descriptions of work which do not properly describe the value of work; (g) changes to rates of remuneration including through orders to ensure equal remuneration and other conditions of employment, and equal remuneration adjustments; (h) changes to work practices to ensure equal employment opportunities in order to bring about equal remuneration and other conditions of employment. 13. The Equal Remuneration and other conditions of employment Principle operates irrespective of the operation of other wage fixing principles.

14. Where the Commission is considering the economic effect of decisions under this Principle, economic impacts will be considered on the same basis as in any of the Commission's decisions, consistent with the requirements of the Act. In particular, the Commission will require specific evidence regarding any effect claimed on employment or the economic situation of particular occupations or industries or of the New South Wales economy generally. Where the Commission determines that equal remuneration increases should be phased-in over a period of time or otherwise less than fully and directly applied the Commission will explicitly state its reasons for its decision.

163 Introduction: I have had the opportunity to read the decision of the majority in this matter. I find myself in disagreement with the majority's conclusions about issues that are foundational to the operation of any proposed principle concerned with the attainment of equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. I also find myself in disagreement with the conclusions of the majority concerning the text of the principle itself. 164 Before turning to the areas where I have reached different conclusions, I begin by expressly concurring with the majority's observations that the statutory provisions relevant to consideration in the proceedings (namely, ss.3(f), 19(3)(e), 21(1)(b), 23 and 169(1) of the Industrial Relations Act 1996 ("the Act")) are provisions which exemplify human rights and human rights concepts, and which protect or enforce such rights. As further observed in the decision of the majority, "every person has a basic human right to be treated equally and fairly in the sense that the person should not be dealt with on the basis of irrelevant considerations such as the person's sex…". The majority also noted that "the High Court and the Human Rights and Equal Opportunity Commission have emphasised the special responsibility of courts and tribunals, in construing such legislation, to take account of and give effect to the statutory purpose whether found in a statutory object or otherwise". 165 I concur also with the majority's conclusion that it is appropriate to rescind the existing equal pay principle and effect a new principle concerned with the attainment of equal remuneration and other conditions. In so concurring, I have had regard, in particular, to the evidence of the unexplained gender earnings gap and certain recommendations made by Glynn J (to which I will return later in the decision). 166 Background: The proceedings before the Commission for a principle concerning the attainment of equal remuneration and other conditions of employment for men and women doing work of equal or comparable value may, so far as these proceedings are concerned, relevantly be traced to two matters. First, the Act introduced in 1996 a range of dedicated statutory provisions concerning gender equity-related issues. Second, a major inquiry was undertaken by Glynn J of this Commission in proceedings referred to generally as the "Pay Equity Inquiry". Her Honour's findings and recommendations in that groundbreaking Inquiry were published in a two-volume report (plus appendices) to the Minister for Industrial Relations ( see Report to the Minister - Pay Equity Inquiry. Reference to the Minister for Industrial Relations pursuant to section 146(1)(d) of the Industrial Relations Act 1996. Unreported. Matter No. IRC 6320 of 1997, 14 December 1998 ("the Glynn Report ")). 167 In the "Findings and Conclusions", Glynn J relevantly concluded (Vol.II, pp.151-150): 26. However, the principal objective is to provide a jurisdictional foundation from which the Commission can address issues of equal remuneration and the undervaluation of the work of persons engaged in female dominated industries. Those remedies should be developed through industrial jurisprudence and not by legislative proscription against pay inequity or wage inequality. The development of industrial jurisprudence should, however, be guided by the establishment of appropriate principles.

The establishment of principles to guide the development of pay equity is entirely consistent with: (i) The approach of the legislature to industrial reform and to the development of protective mechanisms for workers. For example, the legislature has provided for the development of principles in relation to enterprise agreements (see s.33);

(ii) The development of wage fixing principles by the Commission; and

(iii) The development of equal pay principles by this Commission in 1959 and 1973 (and indeed in earlier approaches such as the Female Hairdressers Case ). … 53. In my view, the essential starting point for the consideration of these submissions is the existing equal pay principles. For reasons I have given earlier in these conclusions the equal pay principles should be the foundation for any new pay equity principle. However, the principles do require amendment in order to fully achieve equal remuneration and to fully and comprehensively address the undervaluation in industries and occupations, whether or not female dominated.

54. Two matters immediately follow from this approach: (i) The equal pay principle should be rescinded and replaced;

(ii) As a matter of consistency with the establishment of the equal pay principles, a new principle should be established by a State decision made pursuant to s.51 of the Act. The State Equal Pay Case 1973 proceeded by way of a test case concerning the principles to be applied in making awards fixing wages for women workers and the Federal Equal Pay Cases were established on a similar basis. Moreover such an approach will ensure that the principle is applicable to the full range of the Commission's functions and not merely in relation to award making. 168 Although the Glynn Report did not propose the text of any recommended principle, her Honour listed various "elements" which, she concluded, would "inevitably need to be considered" in any equal remuneration principle. Those elements are set out at pp.174-180 of Vol.II of the Glynn Report . The draft principles proposed originally by the Labor Council of New South Wales ("the Labor Council"), and the Minister for Industrial Relations and the President of the Anti-Discrimination Board ("the Crown parties") included many of the elements recommended by Glynn J. The principle proposed originally (and the principle ultimately pressed) by the National Pay Equity Coalition, the Women's Electoral Lobby, and the Professional Women's Association (NSW) ("the Women's Organisations") included, and expanded upon, many of the elements identified by Glynn J. The principle sought ultimately with the compromise and consent of all parties and interveners (except the Women's Organisations) contains few, if any, of the elements considered by Glynn J as being necessary in any equal remuneration principle. 169 It is plain from a reading of the Glynn Report that many of the issues determined by her Honour concerning the operation of various provisions of the Act were re-visited in these proceedings. In particular, the re-visited issues included the meaning and operation of the various gender equity-related provisions of the Act. These proceedings clearly did not constitute any review of, or appeal from, the matters considered in the Glynn Report . For my own part, however, I found much to persuade in the analyses made by Glynn J concerning the operation of the gender equity-related provisions in the Act. In some key areas, the construction of the Act's gender equity-related provisions advanced by the Labor Council, the Crown parties and the Women's Organisations in these proceedings was relevantly in accord with the conclusions in the Glynn Report . The same could not, however, necessarily be said of the submissions of the employer organisation parties concerning such matters - even though there was at least some measure of convergence in the principle proposed by the major parties. 170 The meaning of the word "remuneration": The word "remuneration" is not defined in the Act. The word is used in numerous sections in the Act, and its meaning has been considered in a range of cases, notably in Shead v Summit Western Pty Ltd t/as Blacktown Mitsubishi (1998) 81 IR 347 at 356-363 where a Full Bench of the Commission observed that the word is not used with a consistent meaning in the Act. 171 I consider that the word "remuneration", where used in the gender equity-related provisions of the Act should be given a broad, rather than a narrow, construction. First, it is clear that the word "remuneration" in its literal meaning or ordinary English usage is not confined to cash or monetary payments: see Shead at 358. Second, the word "remuneration", when used in relation to provisions in the Act concerned with rectifying gender-related remuneration inequalities, is not accompanied by words of limitation such as "rates of" (e.g. see the phrase in s.19(3)(b) of the Act, namely " rates of remuneration"). In Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 at 47ff, a Full Bench of the Commission found that the words "rates of" within the phrase "rates of remuneration" in s.19(3)(b) of the Act were words of limitation. The Commission there stated (at p.46) that "in such a context the word 'remuneration' has a narrow meaning, being one confined to the cash or monetary provisions of the award in question". As a matter of construction and, indeed, consistency with previous Full Bench authority, it would be an anomalous statutory construction if in s.19(3): (a) the phrase "rates of remuneration" in 19(3)(b) is confined to the cash or monetary provisions of the award in question; and (b) the meaning of remuneration for the purposes of the definition in the Act's Dictionary of "pay equity" (as used in s.19(3)(e)) is also confined to the cash or monetary provisions of the award in question - even though there are no words of limitation such as "rates of" remuneration in the definition of pay equity (or in the other gender equity-related provisions, such as s.21 or 23 of the Act). 172 For the reasons developed later in this decision, the word "remuneration", where used in the gender equity-related provisions of the Act, should, in my opinion, be construed as having a broad-ranging meaning - capable of comprehending meaning of the word given in the International Labour Organisation's Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value ("ILO Convention 100"). ILO Convention 100 provides the following definition of the word "remuneration" in Article 1(a): For the purposes of this Convention - (a) the term "remuneration" includes the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment; … 173 The provisions in the Act most relevantly concerned with gender equity-related issues include: s.3(f) (objects of the Act); s.6(2)(f) (examples of industrial matters); s.19(3)(e) (Commission to take account of any issue of discrimination in award reviews, including pay equity); s.21(1)(b) (applications for equal remuneration and other conditions); s.23 (Commission must ensure equal remuneration and other conditions); s.146(2)(b) (Commission must take into account the objects of the Act); and the definition of "pay equity" in the Dictionary to the Act. It is appropriate to reproduce those sections in this decision: 3 Objects The objects of this Act are as follows: … (f) to prevent an eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, 6 Definition of industrial matters (1) General definition… (2) Examples: Examples of industrial matters are as follows: … (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, … 19 Review of awards every 3 years (1) The Commission is required to review each award at least once in every 3 years.

(2) The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind awards.

(3) The Commission must take account of the following matters in the review of awards: … (b) rates of remuneration and other minimum conditions of employment, … (e) any issue of discrimination under the awards, including pay equity*, … [*Note: pay equity is defined in the Dictionary] 21 Conditions to be provided in awards on application (1) The Commission must, on application, make an award setting any of the following conditions of employment: … (b) equal remuneration and other conditions for men and women doing work of equal or comparable value, … (2) Those conditions are to be set:

(a) in accordance with any relevant requirement of this Division and any other provision of this Act, and

(b) with due regard to any established principles of the Commission or other matters considered relevant.

(3) Those conditions may be set in a new award or by the variation of an existing award.

(4) This section applies even though there is an existing award dealing with the matter. 23 Equal remuneration and other conditions Whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. 146 General functions of the Commission … (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to:

(a) the objects of this Act, and … 169 Anti-discrimination matters (1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977 . (2) … (3) … (4) An industrial instrument may be varied at any time by the Commission in order to remove any unlawful discrimination arising from the instrument. An application for such a variation: (a) may be made by a party to the instrument; and

(b) may be made by the President of the Anti-Discrimination Board with the leave of the Commission.

(5) This section does not apply to criminal proceedings before the Commission in Court Session. Dictionary pay equity means equal remuneration for men and women doing work of equal or comparable value. 174 Given the purpose to which the statutory provisions concerned with gender-based inequalities are directed, it would seem to me to be too narrow an interpretation if the meaning of "remuneration" for the gender equity-related provisions of the Act were construed as referring only to the cash or monetary provisions of the award in question. If the legislature had intended to restrict the meaning of remuneration for the purpose of gender equity-related matters under ss.21(1)(b) and 23 (and to s.19(3)(e) in the use of the phrase "pay equity", as defined in the Act's Dictionary) to a consideration of cash or monetary payments under the awards, then words such as "award rates of pay" or "award wages" could have been used in the relevant sections of the Act. The Act does not use such words, and remuneration therefore should be considered to have a broader meaning. The wording differences in the equal pay provisions in the statutory predecessor provisions may be compared and contrasted to illustrate the broader operation of the present legislation. Section 88D of the Industrial Arbitration Act 1940 ("the 1940 Act") and s.100 of the Industrial Relations Act 1996 ("the 1996 Act") each referred to the insertion of "equal pay" provisions in awards. To confine the meaning of "remuneration" in the gender equity-related provisions of the present legislation to the cash or monetary provisions of the award is to ignore the more broadly cast word now used in the Act, and the presumed legislative intention reflected in the changed terminology. 175 Although the precise words of ILO Convention 100 are not used in the gender-equity related provisions of the Act, it may be noted that the definition of "pay equity" in the Dictionary to the Act has a broader, rather than a narrower, field of consideration than the Convention. ILO Convention 100 variously uses the phase "equal remuneration for men and women workers for work of equal value". For example, the very title of ILO Convention 100 contains the words "equal remuneration for men and women workers for work of equal value". The definition of "pay equity" in the Dictionary to the Act is relevantly identical to this phraseology used in ILO Convention 100, except for the insertion of the additional words "or comparable". That is, pay equity is defined as "equal remuneration for men and women doing work of equal or comparable value" (emphasis added). The inclusion of the additional words "or comparable" clearly expands the scope of the provision. 176 It cannot be doubted that the legislature had ILO Conventions in mind when drafting the legislation. First, Australia has ratified ILO Convention 100. It entered into force on 23 May 1953 generally, and for Australia on 10 December 1975. The ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation entered into force generally on 15 June 1960, and for Australia on 15 June 1974. The Parliament may be presumed to have legislated in conformity with international obligations. 177 Second, as long ago as In re State Equal Pay Case, 1973 [1973] AR(NSW) 425, the Commission's predecessor appeared to wholly embrace the terms of ILO Convention 100, and the Parliament may be presumed to have legislated with knowledge of that decision (and of the effect of s.88D of the 1940 Act and s.100 of the 1991 Act ). 178 Third, the Act's definition of "pay equity" is relevantly identical to phraseology used within ILO Convention 100 (e.g. in the title and preamble), and expands upon it. 179 Fourth, the legislative intent with respect to ILO conventions was the subject of reference in the second reading speech for the Industrial Relations Bill 1995 ("the 1995 Bill") in the context of discrimination in employment matters, albeit if not in specific reference to the meaning of remuneration. (The 1995 Bill lapsed when the Parliament was prorogued. The second reading speech for the 1995 Bill was adopted and incorporated when the legislation was reintroduced, with some minor amendments, as the Industrial Relations Bill 1996.) In the second reading speech, the following was said: One of the examples of industrial matters is the reference to discrimination in employment. It is intended that the reference to discrimination in employment should be capable of comprehending not just nominated matters and the grounds within the New South Wales Anti-Discrimination Act 1977, but also the grounds of discrimination referred to in the Commonwealth Industrial Relations Act 1988 and relevant International Labour Organisation conventions and recommendations that Australia has ratified. [Legislative Council. 23 November 1995 - Hansard . My emphasis] 180 It may also be noted that the United Nations Convention on the Elimination of All Forms of Discrimination against Women has been largely ratified by Australia (and is a schedule to the Sex Discrimination Act 1984 (Cth)). As noted in the submissions by the Women's Organisation, the Convention is broader than the terms of ILO Convention 100 and "reflects the evolving understanding of the complexity of equal remuneration issues as related to all incidents of employment". 181 The Glynn Report includes a detailed consideration of the meaning of "remuneration" as it relates to provisions such as ss.3(f), 19(3)(e), 21(1)(b) and 23, and the definition of "pay equity". In adopting a broad, ILO Convention 100-based construction of the word remuneration where used in the gender equity-related provisions of the Act, Glynn J noted (Vol.I at p.30): It is vitally necessary to any application to the Commission seeking a remedy for an alleged pay inequity/undervaluation of work that all elements of remuneration for such work be open to examination and comparison. If any valid element is left outside of that examination, a pay inequity could continue to fester, even though some "remedy" had been applied. 182 Her Honour also drew together propositions from various decisions which emphasise the importance of aligning domestic law and international instruments, with which I would respectfully agree (at Vol.II pp.83-85): (i) it is consistent with the general duties of signatory states to bring domestic law into conformity with international law: Brownlie Principles of Public International Law (Oxford, Clarendon Press, 4th ed, 1990 p 36)

(ii) there is a presumption that the Parliament legislates in accordance with Australia's international legal obligations

(iii) legislation should be construed to avoid or prevent breaches of fundamental human rights: Re Bolton: ex parte Beane ((1987) 162 CLR 514 at 523) and Bropho v. State of Western Australia ((1990) 171 CLR 1 at 17-18)

(iv) where the language of the state legislation is susceptible to a construction which is consistent with the terms of an international instrument and the obligations which the instrument imposes on Australia then that construction should be favoured: Minister for Immigration and Ethnic Affairs v. Teoh ((1995) 183 CLR 273 at 287-8)

(v) the existence of human rights treaties to which Australia is a party is a legitimate and important influence on the development of the common law of Australia and, thus, in this respect may also assist in the development of guidelines and mechanisms under the Industrial Relations Act : Teoh at 288

(vi) human rights legislation should be construed beneficially to give effect to the objects and purposes of the legislation: IW v City of Perth ((1997) 146 ALR 696 at 710); Waters v. Public Transport Corporation ((1991) 173 CLR 349 at 359)

(vii) when construing or applying international instruments the tribunal may have regard to international cases: Qantas Airways Limited v Christie ((1998) 152 ALR 365). 183 In concluding that the word "remuneration" should have a wider construction than the cash or monetary provisions of an award, I have given consideration to a range of matters such as: the ordinary meaning of the word "remuneration"; the absence of words of limitation with respect to the use of the word "remuneration" in the Act's gender equity-related provisions; the close styling of the definition of "pay equity" in the Dictionary to the Act and in other relevant provisions such as s.21 and s.23 on phraseology used in ILO Convention 100; the Act's expansion upon phraseology used in ILO Convention 100; the references in the second reading speech to ILO Conventions and recommendations; the purpose to which the Act's gender equity-related provisions are directed, and the "mischief" they are intended to address and rectify. The gender equity-related provisions would have little or no work to do if an examination of remuneration is limited to the cash or monetary provisions in an award, and such an approach would have the same constraints that applied to s.88D of the 1940 Act and s.100 of the 1991 Act . 184 Following from the adoption of a broad, ILO Convention 100-based meaning of "remuneration" for the gender equity-related provisions, the additional references to "other conditions" in s.21(1)(b) or "other conditions of employment" in s.23 refer, in my opinion, to non-remunerative conditions - including matters such as award provisions prohibiting or restricting the employment of women working night shifts, and award provisions specifying different hours divisors for men and women. Broader conditions would also be comprehended, such as access to workplace training, career paths and so forth. 185 The references in the gender equity-related provisions to "other conditions" would, in my opinion, include award conditions and over-award conditions. This much is plain from the use of the word "conditions" without any words of limitation in the gender equity-related provisions. Section 19(3)(b) of the Act, by way of contrast, contains reference to "rates of remuneration and other minimum conditions of employment". The use of the word "minimum" in the phrase "minimum conditions of employment" in s.19(3)(b) leads to a conclusion that the conditions there referred to are minimum conditions of employment in an award. The word "minimum" in the phrase "minimum conditions of employment" is clearly a word of limitation. 186 The word "conditions" in provisions such as s.21(1)(b) and s.23, is not subject to any limitation such as the word "minimum" or any similar limitation. It follows that the word "conditions" in such provisions should be construed as comprehending something more than the minimum conditions set by an award. In my opinion, the word "conditions" in the gender equity-related provisions may properly be construed as including minimum award conditions and over-award conditions, given the lack of any word or words of limitation. 187 As was noted in Shead , the meaning of "remuneration" differs in the Act. Nonetheless, to confine the meaning of remuneration to the cash and monetary provisions of an award would result in a construction for the gender equity-related provisions that is significantly narrower than in other, frequently-used provisions of the Act. For example, in applications under s.84 of the Act concerning harsh, unreasonable or unjust dismissals, various aspects of remuneration may be considered to determine whether an applicant's annual remuneration exceeds the prescribed amount. In proceedings with respect to the gender equity-related provisions, by contrast, consideration of remuneration would be confined, on a narrow construction, to the award's cash and monetary provisions or award-specific conditions of employment. Neither the Act nor ILO Convention 100 contemplates a division of remuneration into some parts to which the equal remuneration requirements apply and other parts where it is acceptable for the sex of the worker to affect the value of the work and the remuneration and other conditions attaching to it. 188 A number of parties submitted that s.406(1) has effect such that the Commission could properly be concerned only with minimum awards conditions. Section 406 reads as follows: 406 Awards and other industrial instruments provide minimum entitlements (1) The conditions of employment set by an industrial instrument are minimum entitlements of employees.

(2) The provisions of a contract of employment or other contract do not have effect to the extent that they provide a benefit that is less favourable to the employee than the benefit to which the employee is entitled under an industrial instrument.

(3) … 189 I do not accept that s.406(1) has such an effect. The section is simply a legislative statement of the long-standing position that awards and other such instruments set lawful minima for pay and conditions in relevant industries, occupations and enterprises. A provision having similar effect was also contained in the 1940 Act in s.92(2), which relevantly provided that an order for recovery of wages could be made "notwithstanding any smaller payment or any express or implied agreement to the contrary". The effect of s.406(1) certainly could not, in my opinion, be construed to mean that the Commission could not consider over-award remuneration and conditions in an appropriate gender equity-related case. Moreover, as detailed by way of example in the Minister's and the Labor Council's submissions, over-award matters have been considered by the Commission and its predecessors in a range of cases. Indeed, the Commission's State Wages Cases and wage fixing principles routinely address absorption and off-setting of increases in the case of over-awards. 190 If the word "remuneration" where it appears in the Act in terms such as "equal remuneration and other conditions of employment" is to be understood as being used in a limited way, confined to the provisions of the award in question and not including over-award matters, then the objects of the Act concerning the prevention and elimination of discrimination may, by extension, be diluted. For instance, s.3(e) states that one of the objects of the Act is "to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value". On an approach limiting the meaning of the word "remuneration", the legislative object in s.3(e), presumably, would be relevantly concerned with cash or monetary provisions in awards. 191 Having regard to the purpose of the relevant statutory provisions as disclosed in the words of the legislation and in the second reading speech, and their beneficial intent, there is, in my opinion, no warrant to restrict the meaning of remuneration and other conditions for the purposes of the gender equity-related cases. Consideration of remuneration in gender equity related-proceeding for the purposes of a gender equity-related case should not be confined to a consideration of only some parts of remuneration: this may result in artificial outcomes. For pay equity issues to be addressed and rectified, the meaning of remuneration should be capable of comprehending all components of remuneration - not just the award minima. As noted in the Glynn Report , acceptance of an extended definition of remuneration is not a novel approach in this jurisdiction (Vol.I, p.27). Concerns were expressed by some parties in the proceedings that to define broadly the meaning of remuneration would lead to the use of tenuous comparators, dubious statistical information and so forth. Plainly, however, if a party adduced, or purported to rely on, evidence or materials in gender equity-related proceedings which were considered irrelevant, lacking probative value, inconclusive or unpersuasive, then doubtless such matters would be dealt with accordingly by the Commission. Likewise, if the evidence established a gender-related inequity but the claim otherwise ran foul of provisions which may operate to prevent the flow-on of conditions in enterprise agreements (see s.47 of the Act), then doubtless also such issues would be dealt with appropriately by the Commission in accordance with the statutory provisions. 192 As noted previously, s.88D of the 1940 Act and s.100 of the 1991 Act may be seen as the legislative predecessors to the present s.21(1)(b) of the Act. The differences in the provisions were succinctly described in the submissions by the CEO Group (Australian Industry Group, Catholic Commission for Employment Relations, Local Government and Shires Associations, Motor Traders Association of NSW, NSW Road Transport Association, and State Chamber of Commerce (NSW)), as follows: Both s88D of the 1940 Act and s100 of the 1991 Act are the legislative antecedents of s21(1)(b). Although, it is of course conceded that s21(1)(b) is considerably broader in operation to both of the previous sections since " equal pay " has been changed to " equal remuneration and other conditions of employment ". Secondly, the application of s21(1)(b) is not confined to a consideration of " work of the same or a like nature " but is concerned with " work of equal or comparable value ". Thirdly, [s.21(1)(b)] unlike both s88D of the 1940 Act and s100 of the 1991 Act is not only restricted to awards which provide for separate rates of pay for male and female employees but applies to awards generally. 193 The submissions by the CEO Group, which on this point I accepted, continued as follows: A construction of s21(1)(b) which were to restrict the achievement of equal remuneration within an award cannot be correct since it ignores the significant changes in the wording of s21(1)(b) when compared to its statutory predecessors in s88D of the 1940 Act and s100 of the 1991 Act. This approach would involve treating the changes in drafting as not effecting any change in meaning at all. 194 The submissions of the Labor Council were to a similar effect. It was submitted, correctly in my view, that the change in the terms from "equal pay" in the predecessor Acts to "equal remuneration and other conditions" makes it clear that the Commission is not confined to an examination of money wages; the new provisions clearly contemplate the use of external comparators; and a comparison of work which is not "of the same or a like nature" may be considered. The limitations presented by s.88D of the 1940 Act and s.100 of the 1991 Act have been removed; and a construction of s.21(1)(b) and s.23 of the Act which would restrict their operation to the achievement of equal remuneration within an award cannot be correct, since it imposes on the provisions the same limitations which were a feature of the predecessor legislation. The Labor Council's submissions continued: This approach involves treating significant changes in language in the current provisions when compared to the previous provisions as not effecting any change in meaning at all. Nor is this approach supported by the language of the provisions of themselves, which contain nothing to suggest that the concept of equal remuneration and other conditions of employment for men and women doing work of equal or comparable value is to be read down by reference to the scope of particular awards. If the legislature had intended such a significant restriction to be placed upon the broad concept of equal remuneration between the sexes, one would expect to find explicit language to give effect to it - as was the case in s.88D of the 1940 Act and s.100 of the 1991 Act. It is more likely that the legislature in enacting s.21(1)(b) and s.23 intended to go beyond the restricted approach of s.88D of the 1940 Act and s.100 of the 1991 Act, and to (at least) encompass the wider approach of the new equal pay principle adopted in the State Equal Pay Case, 1973 … which permitted cross-award comparisons in circumstances where a comparison of rates within an award was either unavailable or inconclusive. 195 I accept the submissions of the Labor Council that the marked differences in the wording of s.21(1)(b) disclose changes intended to address and rectify the shortcomings of s.88D of the 1940 Act and s.100 of the 1991 Act in as much as they constrained cross-award comparisons. Although the predecessors to s.21(1)(b) of the Act had constraints, equal pay principles were not also constrained. That is, the adoption in In re State Equal Pay Case, 1973 [1973] AR(NSW) 425 of the then new Commonwealth principle of "equal pay for work of equal value" by the Industrial Commission of New South Wales in Court Session clearly contemplated cross-award comparisons. Clause 5(b) read: (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 within the award and/or comparisons of work value between female classifications in different awards. In some cases comparisons with male classifications in other awards may be necessary. 196 To construe the provisions of ss.21(1)(b) and 23 as being concerned only with within-award wages and conditions would, in my opinion, mean that their effect or meaning would revert to a narrow, "equal pay" approach - being an approach which obtained prior to the State Equal Pay Case, 1973 . 197 The operation of ss.19(3)(e), 21(1)(b) and 23: Ordinarily, the determination of industrial matters before the Commission is adversarial in nature and issues are determined on an ordinary, contested basis with the civil standard. There are, however, many exceptions to this general proposition. For instance, enterprise agreements are brought before the Commission for approval with the consent of the parties to the agreement. By s.35 of the Act, the Commission is to approve each enterprise agreement, but only if satisfied that the enterprise agreement meets certain requirements - irrespective of the consent of the parties in seeking approval. 198 Similarly, by virtue of s.19 of the Act, the Commission is required to conduct award reviews. In reviewing the award, the Commission must take account of a range of specified matters set out at s.19(3)(a)-(g) and the effect of the awards "on productivity and efficiency in the industry concerned" (s.19(4)). That the Commission's obligations with respect to award reviews may be different from those applicable in ordinary, contested proceedings is illustrated by the words of s.19. First, although Commission conducts the review, various interests are given a right to be heard. That is, relevant industrial organisations and any other parties to the awards may make submissions on any of the matters being reviewed (s.19(5)). In addition, the Minister, the President of the Anti-Discrimination Board and State peak councils may make submissions in pursuance of their general right of intervention in Commission proceedings under s.167. Second, by virtue of s.19(6), the Commission "is to make such changes to awards as it considers necessary as a result of a review". Thus, the undertaking of award reviews is not contingent upon an application being made and, although relevant interests may be heard as part of the review process being undertaken by the Commission, the Commission is bound to make such changes to awards as it considers necessary. 199 Situations occasionally arise where no relevant parties wish to make any submissions pursuant to the rights thereto granted by s.19(5) or, while participating nominally in the proceedings, have no real interest in the review (e.g. a union or employer's organisation has few, if any, members affected by the award). In such cases, the Commission is nonetheless still required to conduct the award review. Thus, s.19 award review proceeding cannot be understood as necessarily involving ordinary, contested proceedings - albeit that the determination of contested issues arising from the parties' submissions given during the review proceedings may be so characterised. In short, the Commission's obligations under s.19 arise irrespective of any applications or submissions which interested parties or interveners may, or may not, choose to make. 200 Having regard to the general thrust of s.19, s.19(3)(e) seems to be concerned primarily with the excision of award provisions which are, on their face, obviously discriminatory. However, within terms, s.19(3)(e) states that the Commission, as part of the award review, must take account of any issue of discrimination, including pay equity (that is, equal remuneration for men and women doing work of equal or comparable value). Inequality is a subset of discrimination, as are pay equity issues. Although s.19 may not be the most suitable section of the Act to deal with issues such as undervaluation (given the existence of s.21(1)(b)), I nonetheless accept the Minister's submissions that any equal remuneration principle "should be available in the context of section 19 reviews in order to maximise the opportunity for issues of undervaluation to be considered and addressed". 201 Section 23 states that "whenever the Commission makes an award, it must ensure the award provides equal remuneration and other conditions of employment for men an women doing work of equal or comparable value". In the course of the proceedings, issues were raised in some submissions which were to the effect that the Commission's obligations under s.23, unless very significantly read-down, would effectively require a mini-Pay Equity Inquiry every time the Commission made an award. Plainly, this would be an unworkable or absurd application of the provision if such endeavours had to be made each and every time an award was made. Equally, however, it would be unworkable or absurd to suggest that, in pursuance of its obligations in reviewing awards, the Commission would be required in each award to undertake a mini-Industry Inquiry to meet it obligations under s.19(5) "to take account of the effect of the awards on productivity and efficiency in the industry concerned". By way of further example, s.146(2)(b) provides that, in the exercise of any of its functions (other than in criminal matters) the Commission must have regard to "the state of the economy of New South Wales and the likely effect of its decisions on that economy". It would not be seriously suggested that prior to exercising any of its functions, the Commission must, in pursuance of that obligation in s.146(2)(b), conduct a wide-ranging inquiry into the state of the New South Wales economy, or that each exercise of functions by the Commission would inferentially require the type of economic material adduced ordinarily in State Wage Cases. 202 While the obligations specified in provisions such as s.146(2)(b) concerning State-wide economic considerations apply generally, particular consideration of the matters therein referred to will arise relevantly or specifically only in particular proceedings. To similar effect, s.23 applies generally in award-making, but specific application of the section will arise only in particular cases where relevant, gender equity-related issues arise or may potentially arise. However, if such issues do arise then the obligations upon the Commission are clear from the words of the Act: the Commission must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. 203 The obligations set by s.23 do not, in my opinion, arise only on application. Further, the obligation to ensure the provision of equal remuneration and other conditions of employment may not necessarily involve an ordinary, contested approach in any proceedings. The Glynn Report noted (Vol.I, pp.46-47): On the basis of the selected industries and occupations, it would seem that a profile which, prima facie, could indicate the possibility, or even the probability, of an undervaluation of work based on gender, would include the following elements: . female dominated;

. often no work value exercise conducted by the Commission;

. lack of, or inadequate recognition of qualifications (including misalignment of qualifications);

. deprivation of access to training or career paths;

. home based occupations. 204 It seems to me that the industry and occupational characteristics identified in this quote by Glynn J may represent a useful starting point for a consideration by the Commission of areas of possible gendered undervaluation of work with respect to the obligations imposed by s.23. 205 The Commission is a creature of statute; the exercise of its functions is informed generally by statutory objects, and directed specifically by particular legislative provisions. The Act imposes obligations on the Commission in relation to its award-making functions, among other matters. While provisions such as s.23 may be seen as aspirational, the Act also imposes specific obligations on the Commission in the gender-equity related provisions. In my opinion, the Act contemplates in these provisions both a pro-active and a reactive role for the Commission in relation to the prevention and elimination of gender-related inequalities. These obligations apply in relation to consent matters, as well as contested matters. There has traditionally been a strong disposition not to disturb consent arrangements reached by parties, but consent arrangements, of course, do not necessarily reflect the value of work. Moreover, consent arrangements may operate to perpetuate or increase gender-related inequalities in terms of remuneration and other conditions. Indeed, where there have been consent arrangements, there can be no proper basis for necessarily inferring that any true work value assessment has been conducted. Where work value assessments have been conducted, the evidence and submissions in this case persuasively contended, in my opinion, that there had been some systemic lack of proper recognition of at least some skills traditionally associated with work performed predominantly by women. 206 It is clear that in proceedings to which s.21(1)(b) relate the Commission acts only "on application" to make or vary an award setting equal remuneration and other conditions for men and women doing work of equal or comparable value. That the Commission must , on application, make or vary an award setting such conditions is plain from the words in the Act, and also was emphasised in the second reading speech for the legislation: Before leaving the topic of awards, I should mention the provisions concerning particular conditions that must be provided in awards on application. The use of the word "must" in relation to these matters is conscious and deliberate because the following areas are ones which the Government sees as representing necessary minima for all employees, namely, … equal remuneration and other conditions of employment for men and women doing work of equal or comparable value; …

… concerns have been raised in some quarters concerning the provision that the Commission must ensure equal remuneration and other conditions of employment and the broad nature of the legislative direction concerning the matters to be considered under the clause. The Government sees this clause as an important step in the direction of achieving pay equity; we intend making submissions in the pay equity test cases and other cases relating to equality of opportunity to assist the Commission to formulate a strong charter in this area. [Legislative Council. 23 November 1995. Hansard ] 207 If it is clear that the provisions of s.21(1)(b) arise on application, then, equally clearly, the provisions in s.23 are not so constrained. Positive obligations are imposed on the Commission in award-making "to ensure" that awards provide equal remuneration and other conditions, irrespective of any application being made by a party or intervener. Thus, proceedings with respect to gender equity-related issues under s.23 do not necessarily arise only on application and may involve a departure from the usual approach to the determination of matters before the Commission. Furthermore, the Commission is, of course, given wide-ranging powers to act on its own initiative. For example, by s.162(2)(j) the Commission may, on its own initiative, inquire into any industrial matter. Similarly, s.162(2)(i) empowers the Commission to exercise, on its own initiative, any function that may be exercised on application. Those provisions read as follows: 162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure.

(2) The Commission: … (i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and

(j) may, on its own initiative, inquire into any industrial matter. 208 The following provisions may also have relevance to the general issue of the conduct of the Commission's proceedings, including in gender equity-related matters: 163 Rules of evidence and legal formality (1) The Commission:

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. 209 Provisions complementary to s.162(i)-(j) and s.163 are found in the Rules. For example, rule 15 provides as follows: [IR Rule 15] Matters initiated by the Commission 15(1) Where the Commission decides, on its own initiative, to act to resolve any industrial dispute or to exercise any of its functions it may proceed summarily or direct that proceedings be commenced by a summons to show cause.

(2) Such summons must be served by the Registrar upon any person as the Commission may direct. 210 Although the Commission's ability to act on its own initiative with respect to award-related matters otherwise exercisable on application is not frequently used (other than in relation to matters such as the consideration of national decisions), such action certainly is not without precedent - both before single members and in Full Bench proceedings. For example, the Commission's predecessor acted on its own its own initiative to list a range of awards where concern was held that the award parties had not themselves made applications to access pay increases that were otherwise available as a result of available State Wage Case variations. More recently, in Re Riverina Water County Council Award Enterprise Award 1998 (1999) 87 IR 24, Walton J, Vice-President, raised with the parties the requirements of s.23 in relation to an application for a consent award; the parties then adduced matters of relevance for the purposes of s.23 for his Honour to consider. After an examination of s.23 and related provisions which, persuasively in my view, analysed matters such as their purpose, operation and effect as part of a statutory scheme, Walton J concluded (at 26): The object [in s.3(f)] repeats the statutory imperative of s 23 to ensure equal remuneration for men and women doing work of equal or comparable value (although it does not refer to "other conditions of employment"). However, s 3(f) also contains the objective to "prevent and eliminate" discrimination in the workplace and, in particular, in this statutory context, the words "prevent" and "eliminate" create a wide ranging obligation in relation to discrimination in the workplace. The legislature directs attention to both preventative as well as remedial action, and by the use of the word "eliminate" encompasses in the objective both deliberate and thoughtless or reckless acts of discrimination: X v McHugh (Auditor-General (Tas) (1994) 56 IR 248 at 257. The clear and evident purpose of s 23 (particularly when operating in conjunction with s 19(3)(e) which imposes requirements in the case of award reviews) is to achieve equal remuneration for men and women doing work of equal or comparable value by preventing the inclusion in and expunging from the system of awards in this State provisions which fail to meet this requirement. 211 The provisions of ss.21(1)(b) and 23 may be used to consider the particular provisions within any particular award and remove or vary any offending provisions, or insert an otherwise appropriate provision. In some cases, this will involve excising obviously discriminatory provisions that have persisted in some awards, or otherwise equalising the arrangements that apply as between men and women employed under the particular award by, for example, the prevention or elimination of indirect discrimination in terms of unequal remuneration and other conditions. In proceedings under s.21(1)(b), the proceedings would be initiated on application. In relation to the provisions of s.23, a party or intervener may bring attention to the relevant provisions; however, the Commission would not be constrained to act only on application with respect to the obligation imposed by s.23. The submissions of the Women's Organisations were apposite in this regard, and I reproduce them: 65. We submit that the equal remuneration requirements under the Act impose substantial responsibilities on the Commission especially in the light of object 3(f) of the Act. The Commission is required to ensure that equal remuneration is provided where awards are made (s.23) or reviewed (s.19) or on application (s.21). The Commission is required to ensure that the rates it sets in awards do provide equal remuneration for men and women workers for the work undertaken and this consideration is not restricted to remuneration paid under awards or comparisons within awards. If it were, there would be no basis for addressing equal remuneration in female dominated industries.

66. We also submit that the Commission has a responsibility that may involve raising issues beyond those raised by industrial parties. In view of the high proportion of matters settled by consent in NSW, if the Commission does not raise issues with the parties, there is little prospect for improvement regarding equal remuneration.

67. We do recognise that the Commission's resources constrain its consideration of equal remuneration and other matters especially where parties are not drawing relevant information to the Commission's attention. On a practical basis we do accept that in the immediate future it is very likely that the most productive way for equal remuneration issues to be addressed will be through applications under s.21(1)(b). The equal remuneration issues are complex and some are unfamiliar, and will require in-depth examination. Developing approaches and cases should, over time, provide guidance for future consideration of equal remuneration to be addressed in the everyday work of the Commission, without a separate application, as many other matters are. However, if the Commission's consideration of equal remuneration is confined to applications, those who most need the Commission's consideration are least likely to receive it, because of their industrial disadvantage. 212 To similar effect, the Labor Council submitted: …the requirement imposed upon the Commission to ensure that an award provides for equal remuneration is not conditioned by a requirement that there be an application for equal remuneration before the Commission. …Therefore, the s.23 obligation applies irrespective of what may be the wishes of the parties to the award appearing before the Commission, and clearly applies equally to consent awards and to arbitrated awards.

That is not to say that the Commission as a matter of practice will be forced on its own initiative to undertake a broad-ranging inquiry into the matter of equal remuneration every time it makes a new award. In the manner discussed in Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 at p 56, parties who apply for the making of a new award would be expected to present the Commission with evidence and/or submissions sufficient to satisfy it that the award provides for equal remuneration as required by s.23. Where the Commission is not appropriately satisfied, it may require the parties to present additional material to demonstrate that equal remuneration has been provided. Ultimately, if the parties themselves fail to take sufficient steps to satisfy the Commission that a proposed new award complies with s.23, they run the risk that the Commission will decline to make the award sought. 213 I would add to the analysis in Labor Council's submissions that, in addition to declining to make the award sought, the Commission might, in the alternative, make the award sought by the parties - but with such changes as are necessary to ensure that the award provides equal remuneration and other conditions. In making any such changes to the award, the Commission would, of course, give the parties the opportunity to be heard in relation to any changes contemplated by the Commission and not otherwise proposed by the parties. Moreover, if any party was dissatisfied with the decision of the Commission concerning the final content of the award, if any, the usual appeal processes would be available. 214 In some instances, consideration of gender equity-related issues appropriately may be confined to the particular award in question. In other instances, it will be relevant and appropriate to use other industrial instruments as comparators as part of a consideration of whether men and women performing work of equal or comparable value are receiving equal remuneration (or whether, for example, there is gendered undervaluation in terms of remuneration or employment conditions which are otherwise discriminatory in operation or effect). Given that there is nothing on the face of the gender equity-related provisions in s.21(1)(b) and s.23 to restrict their operation to an examination of the particular award in question, I do not accept the submissions which advocated a construction which would be restricted to a within-award operation. The very notion of "comparable value", where used in ss.21(1)(b) and s23, presupposes that something having different, but nonetheless comparable, characteristics is to be considered. 215 In my opinion, ss.19(3)(e), 21(1)(b) and 23 comprise a formidable statutory triumvirate concerned with the rectification of gender-related inequities in both reactive and pro-active ways. The provisions have discrete, but overlapping, work to do; and they are complemented by provisions such as ss.3(f) and 169(1). Any principle flowing from these proceedings should accord with, not derogate from, the effect of those provisions. 216 The use of s.10 for gender equity applications: Section 10 is the source of the Commission's general award-making powers. It reads as follows: 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 217 I accept that s.10 of the Act may be used as a vehicle for applications concerned with the attainment of equal remuneration or other conditions. I accept also that it has been open to the parties to make such applications as "special cases" within the meaning of the prevailing wage fixation principles. If a party considers there has been some element of award-based undervaluation, it is open to that party (as has always been the case) to make an appropriate application as a special case within the meaning of the prevailing wage fixing principles. This is the way that undervaluation simpliciter may be addressed through ordinary industrial processes for award-making and award-varying. The issue at the core of pay equity and of the Act's gender equity-related provisions, however, is the gender nexus. In this regard, it will be recalled that the Commission must in an application made under s.21(1)(b) make or vary an award setting equal remuneration and other conditions for men and women doing work of equal or comparable value. With applications made under the general award-making and award-varying powers sourced from ss.10 and 17, in contrast, apparently there would be no mandatory obligation of the type specified in s.21(1)(b) on the Commission to give effect to an application to make or vary and award setting equal remuneration and other conditions. 218 Section 10 is not, when viewed in terms of a statutory scheme with dedicated provisions, the most obviously-intended or otherwise suitable section in that scheme for applications concerned with the attainment of equal remuneration and other conditions for men and women doing work of equal or comparable value. In this regard, the submissions of Australian Business Industrial are apposite: If the non-accounting or undervaluation are attributable to factors other than gender, then there would be no basis under s.21(1)(b) for the Commission to act. Rather, the Commission would be merely assessing work value for the purposes of making an award under s.10 or varying an award under s.17. The element of gender … is that element which distinguishes applications under s.21(1)(b) from those which ought to proceed under ss10 and 17. This is not to say, however, that ss.10 and 17 could not be relied upon in relation to a putatively undervalued award that is dominated by one sex or the other.

If such a party were to proceed under s.10 or s.17 those cases would be processed in the usual manner and would most likely proceed by way of a special case. However, the principle being advanced by the employers will, it is submitted, assist the parties to better understand s.21(1)(b) and to prepare their cases. 219 Before turning to consider the text of the principle, it is appropriate to indicate that I do not accept those submissions which contended that gender equity-related claims would require proof of discrimination. Moreover, the gender equity-related provisions would not require the prerequisite of a female-dominated award. The position in these respects was set out in the Glynn Report (Vol.II, pp.150; 156-157; 158): … Neither the Equal Remuneration Convention nor the equal pay principles require that the attainment of equal remuneration be governed either by the criteria or relief normally found under anti-discrimination legislation or by a precondition for access based on gender causation. The precondition for relief under anti-discrimination legislation should not govern or act as a precondition for remedies concerning undervaluation of work in female dominated industries and occupations. … …the current NSW legislative scheme …does not require the existence of, or proof of, gender causation for access to the jurisdiction or remedies. The only requirement is that the rates of remuneration are fixed irrespective of the sex of the worker so that there is equal remuneration for work of equal or comparable value. Nowhere in this principle is it necessary that there is established a causal connection between the rates of pay and some pre-existing circumstance connected with the gender of the worker. Nor is there any requirement that an industry/occupation be female dominated before access to the jurisdiction and remedies be achieved.

… comparison processes should not be erected as prerequisites to the establishment of claims for a proper evaluation of work …the undervaluation of women's work may stem from gendered assumptions in work value assessments, as well as different returns on the basis of sex for equivalent or comparable levels of skills, and awards and agreements which fail through inadequate classification structures to adequately nominate, differentiate and reward skill. Part of this effect derives from the very circumstances which often apply to the female dominated industries. The rates are set lower because of the existence of occupational segregation or segmentation. …a combination of factors which are frequently found in female dominated industries and which combine to generate lower returns for workers in those industries than in other industries. 220 The text of the principle: The considerable degree of consent contained in the principle eventually proposed by the major parties and interveners (the Labor Council, the Crown parties, and the employer organisation parties) stands in contrast with their initial positions and their positions at various stages of the proceedings. It is unnecessary for the purposes of this decision to detail those positions, suffice to note that, ultimately, the major parties proposed a draft order and principle (see Annexure B to the majority decision) and the Women's Organisations also proposed a principle (see Annexure C to the majority decision). In rejecting the principles respectively proposed by the major parties and the Women's Organisations, the majority has formulated a principle titled "Equal Remuneration and Other Conditions" which is quite different from the principles proposed by parties and interveners in the proceedings. 221 Some of the main reasons advanced in the submissions favouring a new principle were to provide a framework for the operation of the various statutory provisions and to give guidance to Commission members and industrial parties alike. It seems to me that the principle advanced by the Women's Organisations has much to commend it in this regard, as it provides "signposts" in relation to a range of matters which may appropriately arise for consideration. However, it may also be viewed as attempting to over-extend the existing statutory provisions - and to bridge the perceived shortcomings. For example, the principle advanced would purport to apply to all the Commission's functions, but the Act's gender equity provisions in ss.19, 21 and 23 are relevantly applicable to awards. That is, the full range of pay equity-type provisions could not properly be extended to enterprise agreements without legislative amendment. 222 The principle ultimately proposed with the consent of all parties and interveners other than the Women's Organisations suffers somewhat, I think, from being the product of multi-party compromise. For instance, to the extent that the principles earlier proposed by the Labor Council and the Crown parties contained text which may have provided some of the aforementioned "guidance" to the parties and the Commission, much of the helpful text has been omitted from the principle finally proposed. However, the principle proposed largely by consent has the notable merit of being entirely facilitative in nature. Importantly, too, it does not appear to derogate from, or otherwise constrain, the broad-ranging operation of the relevant, gender equity-related provisions in the Act. While the major parties' principle was largely a consent position, there were some small, but significant, areas of difference where competing provisions were advanced - which reflected matters such as the parties' differing constructions of the Act. Given that the text pressed by the Labor Council and the Crown parties aligns most closely with my own conclusions concerning the construction of the gender equity-related provisions in the Act, it follows that I would favour the text advanced by those parties over the text variously advanced by the employer organisation parties. 223 As I have differed from the majority concerning the construction and operation of the gender equity-related provisions in the Act, it follows that, as a corollary, I also differ in the approach that should be adopted in the principle. 224 Economic considerations: Aspects of the evidence and submissions raised concerns about the potential for a pay equity-led wages outbreak. Upon consideration of such matters, I consider it highly unlikely that there is any real or substantial possibility of a wages break-out brought about by pay equity-related increases, particularly given matters such as the need for a case-by-case approach. Any flow-on to unmeritorious or otherwise insubstantial claims could effectively be quarantined by clearly identifying the particular equal remuneration adjustments in the subject award. The Commission has general and specific obligations in relation to award-making which would apply, no more and no less, to gender equity-related award matters. For example, s.146(2) provides that the Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to the objects of the Act and the state of the economy of New South Wales and the likely effect of its decisions on that economy. 225 As to issues concerning an alleged inability to pay, s.18 provides that the Commission may, on application, grant an exemption from the whole or any part of an award if satisfied that it is not contrary to the public interest and that (a) it is in the best interests of the employees and employers concerned, or (b) the operation of the award (or part of the award) would result in significant unemployment or other serious consequences for the employees and employers concerned. The Commission may, on application or on its own initiative, review any exemption, and may confirm, vary or revoke the exemption (s.18(3)). Moreover, by s.171, the Commission in its award-making powers may make the decision subject to conditions (including exemptions) as the Commission specifies when making the decision. These provisions would, of course, apply or be available in relation to any gender equity-related adjustments. 226 While provisions such as ss.18(2), 146(2) and 171 will apply to the Commission's award-related functions in gender equity-related matters, just as they apply in other award matters, I think that considerations such as those outlined in the evidence of Richard Denniss, Lecturer in the Department of Economics at the University of Newcastle, may also have some bearing. Mr Denniss deposed as follows: In paragraph (52) Professor Lewis states:

"Although the elimination of discrimination is a desirable goal it is important that it is correctly identified and that the benefits of any remedial action exceed the costs".

Such an approach is an over extension of the role of economics. … The role of economics is to help determine the most effective mechanism to achieve pre-determined ends, it is not to determine the desirability of ends themselves. As stated at the beginning of this submission, all markets exist in a regulated framework. 227 Drawing upon the observations in Mr Denniss's evidence, the Women's Organisations submitted:

In the end, the decisions to be made are not determined by economics. In relation to equal remuneration, there already is legislation in place requiring equal remuneration. It is an important human rights consideration, and matters very much to working women. … We are dealing with how, not whether, equal remuneration is to be achieved. 228 It seems to me that the evidence of Mr Denniss and the submissions of the Women's Organisations are relevant to the question of adverse employment effects brought about by equalising the remuneration and other conditions of employment for men and women doing work of equal or comparable value. If the Commission were to decline to give effect to equal remuneration and other conditions based on the potential adverse employment effects, such outcomes may, for instance, perpetuate the type of reasoning that informed the Industrial Commission's decision-making in 1929 in In re Hairdressers, &c, Females (State) Award [1929] AR(NSW) 39. In declining to award equal pay to women in that case, the Commission's predecessor considered that the application of the doctrine of "equal pay for equal work" was reacting to the prejudice of adult female workers. The Industrial Commission stated (at p.43): It is clear that the effect of giving the male rate to female journeywomen in this branch of the hairdressing industry has been to restrict the opportunities of employment for the adult journeywomen and to bring about greatly increased employment of girls, as apprentices and improvers on the lower rates of pay. Such a state of affairs shows that the awarding of this high rate has acted to the prejudice of journeywomen. It is obvious that their services are being dispensed with in favour of the cheaper girl workers who apparently are regarded as sufficiently competent to carry out the work in a large number of establishments. Without laying down any general principles as to when equal pay should be awarded for equal work it is clear that, in this branch of the hairdressing industry, the application of that doctrine [of equal pay] is reacting to the prejudice of the adult female workers in the industry, and we do not think that sufficient grounds have been established to justify the claim being granted in this case. 229 The approach to economic considerations in the Glynn Report would appear to commend itself to me as an appropriate approach (Vol.II at p.180): In all cases the Commission should be mindful of the economic, and in particular the employment impact of any decision to review rates of pay or conditions. Naturally, an incremental or evolutionary approach to reform will facilitate a change in a way that minimises adverse economic or employment consequences. 230 To paraphrase other comments made by Glynn J, the Commission should ensure that its processes minimise and eliminate adverse employment effects on the employment of women and thereby strike a sensible balance between equity and economic considerations. 231 Conclusion: Less than a generation ago, awards provided different wages and other conditions for men and women doing work of equal value, e.g., different wages for male and female teachers; restrictions on the employment of women (and minors). Until very recent times, it was not uncommon for awards to contain directly discriminatory gender-based entitlements - and awards were traditionally excluded from review under the Anti-Discrimination Act 1977. Some examples of directly discriminatory award clauses have persisted even to the year 2000, as evidenced in the award clauses presently being examined in some s.19 award reviews. The evidence, particularly that of Professor Robert Gregory (Professor of Economics at the Research Centre of Social Sciences at the Australian National University, Canberra), showed that where industrial tribunals have had a positive role in setting equal remuneration and other conditions, the results, in terms of addressing the gender earnings gap and other directly and indirectly discriminatory occupational effects, have been markedly better for women than where the role of the Commission was absent or diminished. 232 In her informed paper, "Labour Law and Human Rights" ( Human Rights in Australian Law, ed. D Kinley, Federation Press 1998), Therese MacDermott commented (at 203): The issue of pay equity entered the federal industrial arena through the Equal Pay Cases of 1969 and 1972 [(1969) 127 CAR 1142; (1972) 147 CAR 172]. The subsequent ratification of the ILO's Equal Remuneration Convention in 1974 did not precipitate a change in the nature of the regulatory structure as reliance continued to be placed on the decisions of industrial tribunals to secure equal remuneration for work of equal value. Although acknowledging in principle the notion of equal pay for work of equal value, the major shortcoming of the industrial tribunal process has been its failure to establish effective mechanisms for implementing the principle so as to provide a systematic gender-neutral method of comparing female occupations with male occupations. 233 These proceedings, following on from a new legislative framework emphasising gender equity-related matters, and the Pay Equity Inquiry and Glynn Report , have presented a timely opportunity to establish the "effective mechanisms" described by McDermott - by framing a new principle to guide and facilitate the legislative aim of the attainment of equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. In my opinion, a principle closely styled on the recommendations or "elements" in the Glynn Report would have provided a most effective mechanism, indeed the most effective mechanism. However, of the proposals ultimately propounded by the parties, I would, for the reasons earlier given, (1) rescind the existing principle and provisions contained in In re State Equal Pay Case, 1973 [1973] AR(NSW) 425; and (2) introduce a new principle concerning "Equal Remuneration and other Conditions" with the clauses pressed by the Labor Council and Crown parties (see Annexure B to the majority decision). As indicated earlier in this decision, I have not joined the majority in the particular principle to be introduced. However, I trust that both the fact of these proceedings and the insertion of a new principle in the wage fixing principles may facilitate the legislative aim of the attainment of equal remuneration and other conditions for men and women doing work of equal or comparable value. ___________________________ TABLE OF CONTENTS Decision of the President, Hungerford and Schmidt JJ and Sams DP 1 Introduction Appearances at the hearing Pre-hearing conferences 4 Various positions of the parties 8 Existing Equal Pay and Special Case principles 14 Evidence 17 Submissions 22 Pay Equity Inquiry 23 History of the Commission's approach to equal pay 28 Consideration of the need for a new principle and general concepts 43 Legislative framework 75 Meaning of the words 'remuneration' and 'pay equity' 84 The work of s23 of the Act 101 The work of s21 of the Act 119 The work of s10 of the Act 125 Economic considerations 132 The new principle 143 Operation of s23 of the Act 155 Amendment of the Commission's Wage Fixing Principles 156 Future Review 157 Orders 158 Annexure A - Appearances at the Hearing 160 Annexure B - Draft Principles proposed by the Industrial Parties 161 Annexure C - Draft Principles proposed by the Women's Organisations 162 Decision of McKenna C 163

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