Shall I compare thee to a fitter and turner? : the role of comparators in pay equity regulation

In the second major test of the equal remuneration provisions of the Fair Work Act 2009 (Cth), the Fair Work Commission has rejected the reasoning previously relied upon by Fair Work Australia to deliver significant wage increases to the social and community services sector. In a preliminary ruling in a case involving the early childhood education and care sector, the commission has determined that applications lodged under Part 2-7 of the Act may no longer rely on gender-based undervaluation as a means of demonstrating that the objective of equal remuneration for men and women workers is not met. Applications must reference a comparator which must be of the opposite gender. For an order to be made in favour of a group of female employees, an applicant must now identify a group of male employees, doing work of equal or comparable value, who are receiving higher remuneration. This latest decision continues a longstanding and peripatetic contest, evident in Australian and international jurisdictions, about whether comparative and opposed assessments are required in the pursuit of pay equity. Rather than requiring equality for women to be claimed against a masculinised benchmark, we argue that undervaluation needs to form the cornerstone of any meaningful approach to addressing equal remuneration.