In December 2022, a number of significant changes to the Fair Work Act 2009 (Cth) came into effect as a result of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022.
In December 2022, a number of significant changes to the Fair Work Act 2009 (Cth) (FW Act) came into effect as a result of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022.
The changes included updates to the Fair Work Commission’s (FWC’s) ability to make an equal remuneration order (ERO) if it considers that there is not equal remuneration for men and women workers for work of equal or comparable value. In summary:
- the FWC is now empowered to make EROs on its own initiative (as well as on application);
- there are now express provisions identifying the matters that may be taken into account in deciding whether or not there is equal remuneration; and
- the FWC is now required to make an ERO (as opposed to having the discretion to make one) if it finds, on application, that there is not equal remuneration for work of equal or comparable value.
In addition to this, there is a requirement for an Expert Panel to be constituted to deal with such applications. In July this year, an Expert Panel was constituted to deal with the first application for an ERO since the changes came into effect.
In the matter of Sabbatini v Peter Rowland Group Pty Ltd  FWCFB 127, a former chef made an application for an ERO on the basis that she performed work of equal value to that of three male chefs in her workplace, but was paid a significantly lower salary than them.
After considering the evidence, the Expert Panel was of the view that there was not equal remuneration for work of equal or comparable value. She had been paid a salary that was $15,000 less than her male counterparts even though she was performing work of equal value, and she had been offered full-time employment six months after the others, which meant that she had lost out on full-time earnings for that period.
However, the Expert Panel did not make an ERO on the basis that:
- The application was not validly made under the FW Act. This was because the FW Act permitted only “an employee to whom the order will apply” to make an application. As she was no longer employed by the employer, she was not an employee to whom the order would apply.
- Further to this, the Expert Panel considered that even if it considered making an ERO on its own initiative, it could not do so because, as she was no longer an employee, such an order would not apply to her.
Lessons for employers
This decision is note-worthy as we expect these types of applications will become more prevalent in the future, particularly given the prohibitions on pay secrecy that also came into effect in December 2022. Evidently, they can only be made by current employees and not former employees.
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