Women,work and industrial relations in Australia in 2015

Abstract

Industrial relations analysis is traditionally based on a consideration of how institutional actors engage with and shape regulatory frameworks and how these frameworks impact on the determination of wages and conditions at work. Undoubtedly, the institutional and regulatory architecture remain significant factors in gender equality outcomes, and in 2015 multiple government reviews and inquiries into that architecture contributed to a sense of policy flux despite few substantive changes. This article will provide an overview of those policy developments most pertinent to women and work in 2015. Specifically changes to the Paid Parental Leave scheme, the expansion of Domestic Violence Leave and the implications of the lifetime income gap for women are considered. However, in addition to the overview of the policy landscape, this review emphasises that the actions of individuals also impact gender equality outcomes. An illustrative example is provided in a modest attempt to highlight the agency of individual actors and how this, in interaction with other institutional forces, shapes the broader regulatory environment.

Keywords

Economic security gender equity industrial relations paid parental leave women and work

Introduction

The agency of institutional actors has long been recognised within institutional theory (Scott, 2008a) and industrial relations scholarship (Kochan et al., 1994). Indeed, as will be evidenced in this review, the three main industrial relations actors – labour, management and the state – remain a key influence on workplace regulation, with the state being of particular importance in facilitating institutional change (Howell and Kolins Givan, 2011). However, this emphasis on regulation through representative organisations, tribunals, government bodies and collective bargaining has historically obscured the significance of gender (Danieli, 2006) and the complexity and intersectionality (Davis, 2008) of worker identity. Moreover, while the field of industrial relations continues to focus on institutional form and reform, the importance of ‘institutional work’ in which ‘individuals actively engage in processes of institutional creation, maintenance, disruption, and change’ (Lawrence et al., 2011: 53) is overlooked. This means that both the day-to-day (often hidden) institutional work and the more ‘public’ institutional entrepreneurship undertaken by individual women is rarely recognised. Therefore, the consideration of developments in Australian industrial relations (and their impact on women) needs to acknowledge that ‘social structures are reproduced and modified by the on-going actions of … both individuals and collective actors’ (Scott, 2008a: 431). While during 2015 many civil society groups and individual advocates, academics and public figures contributed to governmental inquires and workplace campaigns around issues pertaining to the economic and social conditions of Australian women, it is beyond the scope of this article to provide a comprehensive account of all of these activities. Consequently, the case of the outgoing Sex Discrimination Commissioner, Elizabeth Broderick, will be used as a relevant (though limited) proxy for the import of individual action and the complex interaction between collective and individual agency. In particular, her case is helpful in illustrating the potential for the impact of ‘institutional work’ by individuals to be amplified by virtue of profile, position or profession (Scott, 2008b) and by the weight of formal institutional support. This is evident in the case of Broderick, who was in the role of Sex Discrimination Commissioner since 2007 and in 2014 was named as the overall winner of the 100 Women of Influence Awards (Stewart, 2014) in recognition of her individual contribution to the pursuit of gender equality. The institutional weight of the Human Rights and Equal Opportunity Commission for whom she worked and the efforts of the previous Sex Discrimination Commissioner provided the basis for her contributions.

Reflecting on her term during a National Press club address in early September 2015 (for more detail on her contributions, see Australian Broadcasting Commission, 2015), Broderick described the main priorities she had pursued during her time in the role. These included developing a gender equality blueprint to inform the development of policy, law and agencies, the implementation of a national Paid Parental Leave (PPL) scheme to assist with the balancing of paid work and care, focusing on the economic security of women (particularly in addressing the gender gap in superannuation) as well as women in leadership, and the prevention of violence and sexual harassment.

During her tenure, one of the most significant achievements in terms of gender equality at work was the adoption of a PPL scheme in 2011 that had been originally championed by her predecessor. Until that time, Australia had lagged behind the rest of the developed world – although as will be discussed later, this policy area became extremely contentious following the election of the Abbott government. Broderick also listed other notable achievements during her period as Commissioner as the right to request flexible work provisions of the National Employment Standards (NES), the implementation of ‘disruptive’ initiatives such as the male champions of change¹ and the reshaping of the Equal Opportunity for Women in the Workplace agency into the Workplace Gender Equality Agency (WGEA). Significantly and perhaps unexpectedly, during the later stages of her tenure, domestic violence as a workplace issue increased in terms of policy import. This reflected a growth in public awareness of domestic or family violence (Fox, 2015).

While Broderick became a recognisable advocate, the policy traction gained on these issues was also the result of a broad configuration of institutional and individual activity. For example, following the election of the Rudd Labor government in 2007 and the subsequent Productivity Commission (PC, 2009) report into PPL, there was heightened political and community interest in the adoption of a national PPL scheme (Baird and Murray, 2014). Broderick's efforts were complemented and enlarged by union, employer and community groups engaging in more active lobbying and campaigning around for its implementation.

Many of the issues raised by Broderick as priorities at the beginning of her term remain pertinent to the consideration of women and work in 2015. The nuances regarding the economic security of women generally and in retirement in particular, balancing paid and unpaid work, the structure of PPL and addressing violence against women continue to be issues of importance in the area of women and work. Indeed these issues, brought into the spotlight by prominent individuals, were also reflected in the agenda of key public policy institutions (nationally and in individual states) as 2015 brought a review of the workplace relations system undertaken by the PC, the Victorian Government commission inquiry into labour hire and insecure work, and a Royal Commission into Family Violence (RCFV) and the commencement of a review into industrial relations legislation in Queensland. In addition, the Modern Award Review that began in 2014 continued, with submissions relating to the family friendly work arrangements clause and the domestic violence clause scheduled into 2016 and 2017 (Fair Work Commission (FWC), 2015).

While these reviews were not solely concerned with workplace regulation as it directly relates to women, their findings and recommendations will impact the broader industrial relations system and thus the working lives of Australian women. The PC's inquiry into the workplace relations framework is of particular consequence given the broad scope of its terms. The recommendations that followed the inquiry foreshadow changes to that framework that will, if implemented, impact on women at work. Most notably these included changes in penalty rates in female dominated industries and the introduction of a new form of workplace agreement – ‘an enterprise contract’, seeking to ‘occupy the ground between enterprise agreements and awards … allowing an employer to vary the award for a class, or a particular group of employees using a template contract’ (PC, 2015a: 750). The concept of an enterprise contract caused concern that unscrupulous employers would use it as a means of undercutting awards (PC, 2015a), but also in light of previous scholarship regarding the impact on women of other recent agreement-making experiments (Kaine, 2012).

In addition to the PC Inquiry, 2015 also saw a number of reviews and inquiries of direct consequence to women – both in and outside of the labour market – most significantly a Senate inquiry into the economic security of women in retirement and a Senate committee convened to consider the Fairer PPL Bill and domestic violence in Australia. The discussion to follow examines developments in these issues over the course of 2015, but is first contextualised with a brief overview of trends in labour force participation for women and its impact on their long-term economic security.

Labour force participation and the lifetime income gap

As in previous years (Charlesworth and Macdonald 2014, 2015), the pattern of employment participation for women and a review of gender equality indicators reveal the ongoing disparity of labour market experiences and outcomes between men and women. In November 2015, women's employment to population ratio was 56.3%, more than 10 percentage points below that for men (Australian Bureau of Statistics (ABS), 2015a) Women and men in the Australian labour market experienced similar unemployment rates (5.8% and 5.7%), but women more frequently experienced underemployment with the underemployment rate for women up more than one percentage point to 10.9% compared with 6.6% for men (ABS, 2015a). There was little change in the gendered pattern of part-time work, with 46.4% of women workers' years being part time compared with 17.8% of men (ABS, 2015a), similar to the 2013 and 2014 proportions. This predominance of women in part-time and casual (ABS, 2013) work not only results in women having less access to leave and other entitlements, but also exacerbates the gender pay gap (GPG) and lifetime income gap.

According to the WGEA, the GPG in 2015 was 17.9% (WGEA, 2015), an increase from 17.1% in 2014 (WGEA, 2014). This gives an indicative sense of the differential in wages received by men and women. However, the GPG is averaged across States and industries obscuring much larger differentials. Comparatively, women in Western Australia fare the worst, experiencing a 26% pay differential. In terms of industry, accommodation and food services had the smallest gap with 7% and, as in 2014, the financial and insurance industry had a 30.5% gap (WGEA, 2015). Furthermore, the aggregate GPG expresses the difference in terms of average weekly full-time equivalent earnings, which is problematic given the likelihood of women being employed in less than full-time arrangements. Differences in the average weekly total cash earnings are closer to 35%, with the most recent ABS statistics revealing that men's average weekly total cash earnings was $1429.80 compared to women at $940.20 (ABS, 2015b).

Another factor contributing to the gap is the location of women in the labour market. Women predominate in ‘retail’ and ‘accommodation and food services’ jobs (Preston and Yu, 2015), which are the most award reliant industries and in which average weekly total cash earnings were $553.70 and $519.20 respectively (ABS, 2015b). These industries also have the greatest proportion of employees working on weekends (PC, 2015a). If the proposal regarding penalty rates outlined in the PC's inquiry into the Workplace Relations Framework (2015a) is adopted (or if such changes are implemented through the Modern Award Review), average weekly earnings in these sectors may be further reduced, with a subsequent impact on the aggregate GPG. Specifically, the recommendation that Sunday penalty rates should be set at Saturday rates for the hospitality, entertainment, retail, restaurants and cafe industries will impact these workers (Recommendation 15.1).

The GPG is the most cited of the income gaps between men and women, but there have been recent attempts to more broadly understand economic security by household type and by caring responsibilities (Austen et al., 2014; Meagher, 2014). Given Australia's ageing population, the retirement income gap in particular is gaining traction as a policy concern (PC, 2015b). According to the latest available data from the ABS, women have on average just over 57% of the superannuation savings of men (ABS, 2015c). Industry Superannuation Australia (henceforth ISA – the peak body representing industry-based superannuation funds) further estimates that 75% of women aged 65 to 69 do not currently have retirement incomes sufficient to sustain a ‘comfortable standard of living’ (ISA, 2015a: 6).

The gender equality indicators outlined here demonstrate that there are a number of contributors to the lack of economic security experienced by many women at various stages of their lives and that these are compounded in retirement. In recognition of this, in August 2015 the federal Senate announced an inquiry into the economic security of women in retirement to report in early 2016 (Parliament of Australia, 2015a).

In a submission to the inquiry, ISA note a number of well-known structural factors that contribute to the continuing gap between the superannuation accrued by men and women, such as the persistence of the GPG and timing of work breaks which they highlight interferes with the ‘magic ingredient of super – patient long-term compounding’ (ISA, 2015a: 34). Additionally, ISA outline more policy specific factors such as the structure of the tax and social security system that exacerbate the gender differences in retirement income. They cite changes to the age pension test, abolition of the Low Income Superannuation Contribution (LISC), the freeze of the Superannuation Guarantee levy at 9.5% for seven years and the structure of current tax concessions as policy settings that compound inequality within the superannuation system. The changes to the aged pension means test will make it harder to access the part pension and, according to research conducted for ISA, in combination with other reforms this will ‘impact most heavily on middle to low income workers earning average wages of $75,000 or below, and women most severely’ (ISA, 2015b). Likewise, as the LISC is currently paid to twice as many women as men (around two million in total equating to approximately half of all working women), its axing in 2017 is likely to result in a further disadvantage for women (ISA, 2015a: 4). While it is acknowledged that the LISC in isolation would not be able to overcome the large gender gap in retirement income (Charlesworth and Macdonald, 2015), the loss could amount to $500 per year (ISA, 2015a: 27).

As the Superannuation Guarantee levy is a compulsory contribution made by employers on behalf of all workers, an increase in it would not address the gender gap in superannuation outcomes. However, it would begin the required change to allow more women to achieve a ‘comfortable retirement’. In recognition of this, at its 2015 congress, the Australian Council of Trade Unions (ACTU, 2015a: 4) called for a 2% increase in employer contributions to superannuation for women.

At the time of writing, the impact of tax concessions on voluntary contributions to superannuation is skewed to men, given that 38% of the tax concessions flowed to the top 10% of income earners (Yaxley, 2015) with the bottom 70% receiving just 29 of the concessions (ISA, 2015a). This prompted the Labor party to adopt a policy that will impose tax on the superannuation contributions of high income earners (Yaxley, 2015). The adoption of this policy, combined with the recent release by the Turnbull government of its response to the Murray Inquiry into the Financial System (Commonwealth of Australia, 2015a), points to increasing political pressure for changes to the superannuation system.

Paid parental leave

In February 2015, the coalition government announced its intention to change the nature of the PPL scheme that had been operating since 2011 (for more detail and an overview of PPL policy since 2009, see Williamson, 2015). This change was not to implement the more generous six months of PPL previously promised by Prime Minister Abbott (Charlesworth and Macdonald, 2015), but to limit access to the 18 weeks government funded entitlements paid at the level of the minimum wage for primary carers earning under the $150,000 threshold (Parliament of Australia, 2015b).

This change (which was intended to come into effect on 1 July 2016) potentially halved the number of new mothers eligible to access the full entitlement. Controversially, the government justified the decision as a means to eliminate what it termed ‘double-dipping’, referring to the situation in which women had accessed the government scheme but had also accessed employer funded schemes. It was estimated that the change would save around $1bn over four years (Ireland and Wade, 2015).

The justification drew a heated response on two levels. First, concerns were raised regarding the likely impact of the policy on both women and babies. Critics further pointed out that a deliberate intent of the original scheme was to allow both the government entitlements and any employer-funded entitlements to be used together in order to provide more opportunities for women to reach the recommended 26 week bonding and breastfeeding time at home with their baby (Ireland and Wade, 2015). Interestingly, there was explicit reference to the importance of this time for mother and baby in the Coalition's previous policy on parental leave (Gribble, 2015; Liberal Party of Australia and The Nationals, 2010, 2013). Second, the use of the term ‘double-dipping’ and the insinuation by Federal Cabinet Ministers prior to the May budget that mothers who had accessed both schemes were committing fraud or attempting to ‘rort’ the system (Massola, 2015) were dubbed ‘the mother of all insults’ by a leading academic in the field, Professor Marian Baird (Ireland and Wade, 2015).

The non-government parties in the Senate expressed opposition to the proposed changes. Consequently, for the Fairer PPL Bill to pass the government required the support of the Senate cross benches. The government was unable to achieve this and instead on the 25 June, the Bill was referred to the Senate Community Affairs Legislation Committee (CALC). The government held the majority on the committee and consequently the report of the committee (completed in mid-September) recommended that the Bill be passed on the basis that ‘the committee is satisfied that this measure will most likely affect those families with high median household incomes, whilst at the same time shielding those on lower incomes from any change’ (CALC, 2015: 21). The two dissenting reports by the Australian Labor Party (ALP) and the Greens recommended that the Bill not be passed, with a rationale directly contradicting the majority report. Both minority reports highlighted the potential negative impact of the changes, with the ALP predicting lower income women would be ‘up to $11,800 worse off’ if the Bill became law (CALC, 2015: 31).

Business response to the original Bill was mixed. Employer groups such as the Australian Chamber of Commerce and Industry (ACCI) and the Australian Industry Group (AIG) did acknowledge federal budget constraints on providing PPL, but neither group expressed unreserved support for the proposed PPL changes. In its submission to the Senate committee, AIG expressed its concerns regarding the ‘potential adverse effects on workforce participation of reducing or removing Government parental leave payments to many parents’ (AIG, 2015: 3) and also noted its involvement in the development of the previous scheme and endorsement of many aspects of that scheme. ACCI expressed ‘strong support for the Government's commitment to fiscal repair, which is the driver of its proposed change’ (ACCI, 2015: 4) but questioned whether these would materialise as a result of the changes. In particular, ACCI argued that the proposed changes ‘may create particular complexity for employers that have designed their schemes to complement or interact with the PPL scheme in some way’ (ACCI, 2015: 11). They further hypothesised that employers in the private sector would reconsider how they provide parental benefits to facilitate employees receiving the government-funded PPL. They concluded, as a consequence, it is unlikely that the projected budget savings would be realised (ACCI, 2015: 12). In response to concerns, and in what has been seen as an attempt to get the Bill through the Senate (which had not occurred at the time of writing), the Turnbull Government announced in December that it was considering a compromise to the changes proposed earlier in the year by then Treasurer Joe Hockey (Cox, 2015). Both proposals would see access to the government scheme reduced if a new parent has access to employer-provided leave. However, in contrast to the Hockey proposal, the more recent proposal is ‘calculated on the basis of weeks of government paid parental leave (capped to 18 weeks of income), rather than the dollar amount of income received (capped to the equivalent of 18 weeks income at the national minimum wage)’ (Baird and Constantin, 2015: 4).

A less obvious consequence of the planned PPL change is its effect on superannuation contributions, specifically, any move away from employer sponsored PPL schemes. The government PPL scheme excludes superannuation, and its restricted access to employer schemes that may pay super is likely to worsen the retirement income gap detailed earlier (Hesta, 2015), in stark contrast to the original PPL scheme proposed by the Abbott government which explicitly included superannuation for those on parental leave (Liberal Party of Australia and The Nationals, 2013).

Meanwhile, away from the formal politics of the PPL and arguably in recognition of the business imperative driving the need for more generous parental leave as a talent management strategy, individual initiatives by companies continued with some demonstrating impressive results. One such example is the ‘babycare package’ introduced by Caltex Australia (Silva, 2015). Key features of the package include a 3% quarterly bonus for mothers who return to work, until their child is two years old, $1500 worth of emergency childcare services, as well as advice on what type of childcare services will best suit the employee (Caltex, 2012). This initiative has seen the proportion of women returning to work at Caltex increase from 80% in 2012 to 100% in 2015 (Han, 2015). Even more generous schemes have emerged internationally in companies that have operations in Australia, such as Virgin. In the UK, Virgin Management announced one year's paid leave entitlement for new parents (Gillett, 2015). Similarly, in the US, Netflix began offering unlimited paid leave for parents in the first year after the birth or adoption of a child (McGee, 2015). While Netflix does not have employees in Australia, its leave policies reflect international trends in the competitive labour market among technology firms and suggest the trajectory for parental leave in Australia in areas with high competition for talent. While these are promising developments for women in senior positions and for those located in specific areas of the labour market, their ad hoc nature does not augur as well for women working in lower paid occupations and industries.

Domestic violence as a workplace issue

Domestic violence (increasingly referred to as ‘family violence’ (RCFV, 2015b)) affects approximately one in three women over the course of their lifetime (Morgan and Chadwick, 2009). The impact of violence extends beyond the individual victim. Access Economics estimated the total costs of domestic violence, including direct, indirect and opportunity costs, in 2002–2003 as $8.1bn (Access Economics, 2004). Forecasts estimate this will grow to $9.1bn in 2021–2022 (National Council to Reduce Violence Against Women and their Children, 2009). The economic and social costs of domestic violence have long been known, and repeated examples of family violence resulting in homicide (Thomas and Khan, 2015) elevated the issue to an area of priority public concern. This was evident in high-level policy announcements in the area by then Prime Minister Tony Abbott and his successor Malcolm Turnbull (Anderson, 2015). The escalation of domestic violence as a policy priority was also given a fillip by the awarding of the 2015 Australian of the Year title to Rosie Batty (a victim of and campaigner against domestic violence).

The workplace implications of family violence were brought into focus through a Victorian RCFV, union campaigning and decisions in the FWC. The terms of reference of the RCFV was broadly to ‘provide practical recommendations to stop family violence’ (RCFV, 2015a), and a number of the submissions to the inquiry from unions and community groups highlighted the important role that work and the workplace context can play in the prevention of family violence (ACTU, 2015b; Australian Education Union – Victorian Branch, 2015; Australian Women's Health Network, 2015), with these submissions relying heavily on research by the Australian Domestic Violence Clearinghouse at the University of New South Wales (NSW) (Baird et al., 2014). The ACTU submission highlighted that ‘two thirds of domestic violence victims are in the paid workforce’ and that up to a quarter of all employees will be the victim of domestic violence during their lifetime (ACTU, 2015b: 1–2). The submission specifically focused on ‘the critical role of employment in maintaining financial independence and escaping domestic violence’ and relatedly, the ‘importance of decent wages and savings in mitigating women's vulnerability to violence’. It further emphasised the protective purpose of workplace laws to ‘support employees experiencing domestic violence’ and the normative role of workplaces as forums for ‘social, cultural and behavioural change’ (ACTU, 2015b: 1). The recommendations in the submission were endorsed by Rosie Batty, who asserted that ‘[t]he ability to maintain your employment … helps secure somewhere to live, it helps you to have that ongoing working contact with your colleagues, it's a really important part of your journey’ (Igguldon, 2015).

Despite approximately 1.6 million workers being covered by domestic violence leave entitlements and the likes of Telstra, McDonald's, Aldi, National Australia Bank (Browne, 2014) and the Victorian, Queensland and South Australia public service offering such leave, there has been resistance by some employers to the campaign to insert such entitlements into collective agreements and awards through the Modern Award Review process (see Charlesworth and Macdonald, 2015 for more detail). Most notably ACCI has argued that such provisions are not tenable for small businesses, with its Chief Executive Kate Carnell insisting that domestic violence is ‘a community problem not an employment issue’ (Toscano, 2014). A policy difference also arose between the ALP and the Liberal and National Party Coalition. In August 2015, the ALP committed to including five days of domestic violence leave in the NES,² a position that is yet to be matched by the Liberal and National Party Coalition despite the first recommendation of a Senate inquiry into domestic violence endorsing the implementation of leave that would allow victims of domestic violence to ‘maintain employment and financial security while attending necessary appointments such as court appearances and seeking legal advice’ (Commonwealth of Australia, 2015b: ix).

While arguments around leave entitlements dominated the debate about domestic violence as a workplace issue in 2015, a decision by Commissioner Julius Roe ([2015] FWC 4864) is also noteworthy. It highlighted the need for employers to take into account the domestic violence intervention orders issued by a magistrate. The domestic violence incident at the heart of this case occurred between two married employees, and while it occurred outside of the workplace and did not impact on work performance, the female employee was dismissed. Commissioner Roe found that the dismissal had been unjust and unreasonable with ‘the vulnerable position faced by [the applicant] as a relatively recent migrant who was facing a domestic violence situation made the termination particularly harsh’ (para 49). However, he did not deem it necessary to determine whether there had been an element of gender or sex discrimination as suggested by representatives of the dismissed woman, and in November his decision was upheld when the Full Bench of the FWC denied the right for the employer to appeal ([2015] FWCFB 7476).

Conclusion

This review began by suggesting that to understand how the gender equality environment is shaped then both institutional developments and the actions and advocacy of individuals needs to be considered. A key feature of 2015 was the examination of regulatory scaffolds across a range of areas including most obviously the PC's Inquiry into the Workplace Relations Framework. It is difficult to predict the aggregate effect and longer-term institutional change resulting from the inquiry. However, the potential change combined with other high-level inquiries into the financial and tax systems, superannuation, domestic violence, migrant/temporary workers, and the continuing Modern Award Review perpetuated policy and regulatory uncertainty in 2015. Additionally, changes to personnel in key roles that impact on gender equality policy development and implementation, such as the Prime Minister, Minister for Women and the Sex Discrimination Commissioner, while yet to have any substantive impact, contributed to the sense of unpredictability.

Notwithstanding the flux in the policy environment, there is evidence that during 2015, though not widespread, some individual employers sought to advance workplace-based entitlements for women in the areas of PPL and domestic violence – despite sometimes being at odds with peak employer bodies. While initiatives by individual employers to improve entitlements for women are positive developments, their scope is uneven. Consequently, future improvements in the gender equality indicators will still be heavily influenced by broad policy settings, the overall regulatory framework – and the individuals in key positions that shape them.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author acknowledges the funding provided by the Management Discipline Group, UTS, to support in the preparation of this article.

Notes

Biographical note

Sarah Kaine lectures in HRM and IR in the UTS Business School. Her research and publications focus broadly on employee representation and voice, the formal and informal regulation of employment relations and sustainability in supply chains. Sarah is the co-convener of the Sustainable Supply Network Initiative (SSNI) within the Centre for Management and Organisation Studies (at UTS) and is currently working on a project funded by the Centre for Workplace Leadership (Melbourne University) examining collaborative leadership in the extended workplace. Sarah was the secretary of the Association of Industrial Relations Academics, Australia and New Zealand (AIRAANZ) from 2011 to 2015 and remains on the executive and is also on the executive of the NSW IR Society. Sarah is a founding director of the McKell Institute and sits on the Cleaning Accountability Framework Steering Committee – an industry-wide initiative to improve the contract cleaning supply chain. Prior to becoming an academic, she worked as an industrial relations practitioner and a consultant to not-for-profit organisations.

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