Editorial: Judicial law rewrite isn't pay answer

Earnings gap won’t be solved by court’s comparison test.

For 42 years, the Equal Pay Act 1972 has meant women have a right to be paid the same rate as men for doing the same job. Yesterday the Court of Appeal decided the act meant something more: that women have the right to be paid the same as men doing a different job if the work is comparable.

The court's ruling in favour of an aged-care worker yesterday is being hailed as a landmark by the union movement and by all who agree that industries employing mainly women are underpaid. But the power of judges to read new meanings into long-established law can be astonishing.

"Pay equity" was a subject of intense debate in the late 1980. The Labour Government responded with an Employment Equity Act 1990. It now seems it need not have bothered. Three months later, a newly-elected National Government repealed that act. It need not have bothered either. Pay equity, say Judges O'Regan, Stevens and French, was always implied in the 1972 act.

Their re-reading of the law is not only astonishing, it raises a question whether this is the most practical way to resolve important problems of public policy. In their decision yesterday the three judges have left unanswered the big practical questions that have always dogged pay equity - how do you compare the value of work in different industries, who is to make the comparisons and on what criteria?

The judges say they were careful not to identify appropriate "comparators" or give guidance on how undervaluation of women's work might be argued, because the appeal required them to decide difficult questions of law before there had been a full examination of the facts. The Employment Court has yet to fully hear the Service and Food Workers Union's test case against Terranova Homes and Care Ltd.

The Employment Court has ruled that a fair rate for work done predominantly by women can be determined by what men would be paid for work requiring similar skills, responsibility, service and effort and performed in similar conditions. Further, it has ruled that the comparison can be made with men in other industries if the work of men in the same industry or sector are not comparable. The Appeal Court has not endorsed or altered those rulings, limiting itself to upholding the Employment Court's extended interpretation of the 1972 Equal Pay Act.

The public interest in the case was represented by the Attorney General who argued against a re-interpretation of the act. The judges say: "We accept that courts should be wary of updating legislation in a way that could have extensive social, cultural and economic impacts not contemplated by Parliament. However, the existence of entire industries that may be underpaid because they are female dominated was undoubtedly something of concern to the 1972 Parliament."

Women were just beginning to enter the workforce in large numbers at that time. It was perhaps not foreseen that they would remain predominantly in a few industries employing large numbers, such as nursing, teaching, retailing and clerical work.

It may be that "discrimination" is the reason those jobs remain low paid. Or it may be that those occupations have had an over-supply of recruits since women joined the workforce.

The gender pay gap is open to many explanations, none proven. The solution is to get more women into higher-paid jobs, not to draw comparisons that would probably be invalid. Apples with oranges never works.