Our day in court

Equal remuneration for early childhood teachers

In late 2013, the IEUA made application to the Fair Work Commission for an Equal Remuneration Order (ERO) for early childhood teachers (including early childhood teachers appointed as directors) who perform work in a long day care centre or preschool covered by the Educational Services (Teachers) Awards 2010, NSW/ACT IEU Industrial Officer Michael Wright writes.

United Voice and AEU made an application in similar terms that also sought equal remuneration for non teaching staff.

What is an ERO?

Part 2-7 of the Fair Work Act, 2009 enables the Fair Work Commission to make an ERO for a group of employees, where they perform work of an equal or comparable value to that performed by another group of workers of the opposite gender, but they do not receive the same remuneration for such work.

In such a case, an ERO can stipulate that the applicant group will receive the same remuneration as the comparator group of the opposite sex. Such an order requires an employer to pay more than the relevant enterprise agreement or modern award so as to meet the required level of equal remuneration with the comparator group.

EROs can be made within a workplace, across workplaces or, as in our application, across an industry.

The Fair Work Commission, in a recent decision, discussed how equal remuneration orders may practically apply within a workplace:

Assume that a group of process workers in an enterprise apply for an equal remuneration order. The applicants contend that they do not enjoy equal remuneration to that of the storepersons employed in the same enterprise who, it is argued, perform work of equal or comparable value. The storepersons are all male employees. The relevant comparison is between the female process workers and the male storepersons. If on the basis of that comparison the Commission is satisfied that there is not equal remuneration for work of equal or comparable value it may make an order in favour of the female process workers.

While this sounds relatively straightforward, there are significant legal hurdles to jump to establish differentials in work value and/or remuneration, particularly across industries.

Have any other workers been covered by an ERO?

There has only been one other ERO application made under the Fair Work Act, 2009, which lead to significant increases in pay for low paid Social and Community Services (SACS) workers. That application enjoyed federal government and widespread industry support, including significant funding commitments. In that case, there was a commitment by most parties to push for a solution that made the industry more sustainable and attractive for SACS workers. Unfortunately, in our application, we are faced with an unsupportive (even hostile) federal government and an industry much less supportive of its workforce.

Where is the ERO application up to for early childhood teachers?

Since the applications were lodged, there has been extensive consideration by the unions, employers and the Fair Work Commission as to the principles that should be applied in determining whether an equal remuneration order should be made and in what form it should take.

In late November, 2015 the Full Bench of the Fair Work Commission released a lengthy decision which outlined the legal and conceptual framework for the making of EROs.

What is the next step for the IEUA?

The IEUA and other unions have been asked by the Full Bench to consider its November 2015 decision.

The IEUA and other Unions are currently commissioning and/or undertaking research with a view to providing the Fair Work Commission with sufficient evidence to persuade them of the need for an equal remuneration order for early childhood teachers and other early childhood employees. It is anticipated that the next phase of the case will be timetabled for the second half of 2016.

Given the legal and research complexities of the case, it is unlikely to be determined quickly.