CONDITIONS OF EMPLOYMENT – wages – equal remuneration order – s.302 Fair Work Act 2009 – Full Bench – application by United Voice and the Australian Education Union (the Unions) for an equal remuneration order pursuant to s.302(3)(b) of the Fair Work Act 2009 (FW Act) in relation to the children’s services and early childhood education industry – separate application then made by the Independent Education Union of Australia (the IEU) – application heard concurrently and referred to as Equal Remuneration Case – the Unions sought equal remuneration order for ‘… employees who perform work in a long day care centre or preschool(s)’ covered by the Children’s Services Award 2010 (Children’s Services Award); the Educational Services (Teachers) Award 2010; or the Educational Services (Schools) General Staff Award 2010 – the IEU sought an equal remuneration order 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′, other than those employed by a state or territory government – current Full Bench decision concerned the Unions’ application – previous decision issued by Full Bench [[2015] FWCFB 8200] (Preliminary Decision) addressed preliminary issues, including the jurisdictional prerequisites to be met prior to the making of an equal remuneration order – in relation to the question of whether a male comparator group was required in order to establish a case for an equal remuneration order under s.302, Preliminary Decision found that Commission must be satisfied that an employee or group of employees of a particular gender to whom an equal remuneration order would apply do not enjoy remuneration equal to that of another employee or group of employees of the opposite gender who perform work of equal or comparable value – comparative exercise in which the remuneration and the value of the work of a female employee or group of female employees is required to be compared to that of a male employee or group of male employees – Preliminary Decision held that the finding that Part 2-7 requires a comparator group of the opposite gender did not exclude the capacity to advance a gender-based undervaluation case under s.156(3) or s.157(2) of FW Act – Union’s third amended application filed in September 2016 included that proper comparator for the Diploma level and Certificate III classifications under the Children Services Award are the C5 and C10 classifications respectively in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), with consequential adjustment for other classifications – addition of a comparator intended to permit the application to continue to be maintained under s.302 of the FW Act – in accompanying correspondence the Unions sought a hearing to determine a preliminary question as to whether the comparator proposed in the amended application satisfied requirement of a comparator in the Preliminary Decision – proposed preliminary question be whether the C5 and C10 classifications under the Manufacturing Award are a suitable comparator in this application for the purposes of s.302 of the FW Act – current Full Bench decision concerned whether the Commission should conduct preliminary hearing proposed by the Unions – the Unions submitted proposed comparators were established as appropriate in a previous AIRC Full Bench decision AIRC [PR954938] (2014 AIRC Decision) – in current proceedings Full Bench found comparative exercise to be carried out between the group of employees to be covered by the proposed order and an identified comparator group has three elements – firstly, the two groups must perform work of equal or comparable value – secondly, must be of the opposite gender – thirdly, must be unequally remunerated – once this jurisdictional prerequisite demonstrated, the Commission has discretion as to whether to make an equal remuneration order – Full Bench found posed preliminary question would not dispose of the entirety of the jurisdictional prerequisite for the making of an equal remuneration order, but only the first of the three elements identified – noted the Unions had made it clear that their case is that the 2004 AIRC Decision, and the alignment of rates in the comparator classifications since that decision, are sufficient to demonstrate equality or comparability in work value between those who would be covered by the equal remuneration order it seeks and its proposed comparator group – found it would be open for any employer respondent to the proceedings to adduce evidence to demonstrate that in fact no equality or comparability in work value and that either the 2004 AIRC Decision was wrong and should not be followed, or that changes to work since that time have meant that the 2014 AIRC Decision can no longer be relied upon – noted such evidence could well be extensive and necessity to hear such evidence would be sufficient to remove any procedural value in conducting such preliminary hearing – Full Bench considered that a preliminary hearing could only be justifiable in procedural terms if it were confined to question of whether the 2004 AIRC Decision, and subsequent alignment in rates, capable alone of conclusively demonstrating equality or comparability of work value (and, as a corollary, that no evidence that might conceivably be adduced by any party could demonstrate otherwise) – Full Bench proposed preliminary question be whether the Commission can be satisfied conclusively that the work performed by employees under C5 and C10 classifications in the Manufacturing Award is of equal or comparable value to the work of employees under the Diploma Level and Certificate III classifications in the Children’s Services Award respectively solely on the basis of the 2014 AIRC Decision and the subsequent alignment in award rates for the respective classifications – Full Bench rejected proposition of separate hearing to determine the Union’s proposed preliminary question – prepared to conduct such a hearing on the basis of Full Bench’s proposed question (subject to any parties’ agreed changes) – necessary for Unions to accept that the necessary consequence of a negative answer to the proposed question would be the dismissal of their application – if response affirmative, directions hearing to be listed regarding preliminary hearing – if answer negative, Full Bench to await further advice from the Unions as to how they wish to proceed with application – Full Bench to await advice from the IEU as to how it wishes to proceed with its application. Application by United Voice, Australian Education Union and Independent Education Union of Australia for an Equal Remuneration Order
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