By Kelly Godfrey

Section 302 of the Fair Work Act 2009 (Cth) (FW Act) enables the Fair Work Commission (FWC) to make an equal remuneration order it considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value.

In December 2022, some significant changes to the FW Act came into effect:

• empowering the FWC to make equal remuneration orders of its own initiative, in addition to on application by an employee or employer to whom the order will apply, or the Sex Discrimination Commissioner;
• requiring the FWC to make an equal remuneration order, if it finds, on application, that there is not equal remuneration for work of equal or comparable value;
• requiring the FWC to constitute an Expert Panel, with knowledge or experience in gender pay equity; and
• identifying the following matters that may be taken into account by the FWC in determining whether or not there is equal remuneration for work of equal or comparable value:
  • comparisons within and between occupations and industries to establish whether the work has been undervalued on the basis of gender (this is not limited to similar work and does not need a comparison with an historically male-dominated occupation or industry; and does not require the FWC to find discrimination on the basis of gender to establish the work has been undervalued);
  • whether historically the work has been undervalued on the basis of gender (this does not require the FWC to find discrimination on the basis of gender to establish the work has been undervalued); or
  • any Fair Work instrument or state industrial instrument.

In Sabbatini v Peter Rowland Group Pty Ltd (2023), Ms Sabbatini, a former chef of Peter Rowland Group Pty Ltd, lodged an application with the FWC for an equal remuneration order.

After hearing the matter, the Expert Panel determined that there was not equal remuneration for work of equal or comparable value because:

• Ms Sabbatini was paid $15,000 less than three male chefs;
• Ms Sabbatini was offered full-time employment 6 months after her male colleagues, which meant she had less earnings over that period;
• Ms Sabbatini and the male chefs held the same position, all worked in the same workplace and were all classified at Level 6 under the Hospitality Industry (General) Award 2020; and
• Ms Sabbatini and the male chefs were performing work of equal value and there was no work-related reason (such as higher skill or more responsibilities) to explain the pay discrepancy.

However, the Expert Panel could not make an equal remuneration order in this case, because Ms Sabbatini was a former employee. The FWC can only make equal remuneration orders for current employees.

Applications for equal remuneration orders are likely to increase. As such, employers need to be mindful of gendered pay inequality in the workplace. Equal remuneration orders can be successful despite no intention by an employer to discriminate.