The Victorian Supreme Court of Appeal recently dealt with a case involving a worker allegedly discriminated against in the workplace based on sex and age. The worker, seeking a lift in her remuneration from Austin Health, claimed she was blocked from doing so despite other male subordinates having a higher salary than her. She said she the hospital “denied or limited her access to benefits connected with her employment, namely, the opportunity to negotiate her remuneration,” among other discriminatory allegations.

Was there workplace discrimination?
Around January 2009, the worker was employed at the hospital as an orthotist/prosthetist when a year later, she was promoted to orthotic/prosthetics department manager.
“She was given a higher classification under the relevant enterprise agreement and paid in accordance with the rates specified therein,” the Court said.

Throughout her employment, the worker was paid at, but not above, the rate defined in the relevant industrial agreement.
As the department manager, she managed 14 employees, 10 of whom were male. The Court noted that of the 10 male employees, six were paid above-agreement remuneration, and all were classified at a level higher than their role actually attracted.

One of the employees managed by the worker who was paid above the rates specified in the enterprise agreement was recruited in 2009. The employer said the employee was paid higher than the manager because he was originally employed in a special revenue-raising role, which had long since been discontinued. Given the circumstance, the worker asked her employer to negotiate her remuneration on no less than six occasions between 2011 and 2014. However, in each of her attempts to negotiate, she was “blocked” by the employer.

Around June 2018, the worker wrote to the hospital summarizing her past requests to negotiate the above-agreement remuneration noting that one of the workers she managed was being paid $41,000 per annum more than her.

In response, the employer stated in a letter that two men who worked under the worker were paid above-agreement remuneration because they had “transitioned to a more appropriate” enterprise agreement. However, in the letter, the employer was silent about the worker’s request to negotiate her remuneration. Hence, the worker commenced proceeding.
Initially, the Victorian Civil and Administrative Tribunal (VCAT) dismissed the worker’s complaint. However, she successfully appealed to the Victorian Supreme Court, with the latter having decided that the employer had engaged in “systemic discrimination by a large organization.” Consequently, the employer sought and was granted leave to appeal to the Court of Appeal.

Court’s decision
Ultimately, the Court of Appeal upheld the Supreme Court’s decision wherein the “unintentional discrimination or unconscious bias” implied that the employer was involved in unlawful discrimination. The Court further said that in determining whether a person directly discriminates, it is irrelevant whether or not that person is aware of the discrimination or considers the treatment unfavourable. Meanwhile, in terms of the Tribunal’s previous decision on the case, the Court of Appeal noted that the Tribunal did not have regard for the complex picture of the unfavourable treatment advanced by the worker, which included:

• Her repeated requests to negotiate her salary which were all denied or avoided by the managers
• Other men being paid above-agreement salaries
• Operation of structural inequality and unconscious bias in the workplace, shown in the evidence that the hospital had an overrepresentation of employees on above-agreement salaries, and all of those workers were men.

The Court of Appeals junked all of the employer’s nine appeal grounds as it found that it was engaged in systemic discrimination on the basis of sex.

Australia, often regarded as a progressive nation, has made substantial strides towards gender equality. Despite this, gender bias and pay disparity persist, highlighting the urgent need for systemic change. As we approach a critical point in addressing these issues, it is imperative to analyze the root causes, the consequences of inaction, and the potential solutions to achieve true gender equality.
Gender bias is deeply ingrained in Australian society, manifesting in both subtle and overt ways. Women often encounter discrimination in the workplace, with stereotypes affecting their career progression and earning potential. Traditional gender roles and societal expectations often lead to women being disproportionately burdened with unpaid care work, limiting their ability to participate fully in the labor force.
The gender pay gap in Australia remains a glaring concern. Despite women’s educational advancements and increased labor force participation, the pay gap continues to persist. According to the Workplace Gender Equality Agency, women earned approximately 13.4% less than men in 2021. This disparity is even more pronounced for women from marginalized backgrounds, further perpetuating social inequalities.

Root Causes of Gender Bias and Pay Disparity:

• Occupational Segregation: Women tend to be overrepresented in lower-paid and undervalued industries and professions, while men dominate higher-paying sectors. This occupational segregation reinforces pay disparities.
• Lack of Flexible Work Arrangements: The absence of flexible work options prevents many women from fully engaging in their careers, leading to reduced income opportunities and stalling their progression.
• Unconscious Bias: Subtle prejudices and unconscious biases contribute to hiring and promotion decisions that favor men, perpetuating gender disparities in leadership and higher-paying roles.
• Unequal Distribution of Care Responsibilities: The unequal distribution of caregiving responsibilities often limits women’s ability to pursue full-time employment or dedicate themselves fully to their careers.
• The Critical Point of Injustice: The ongoing gender bias and pay disparity have reached a critical point in Australia. Despite increased awareness, progress toward gender equality has been slow. Failure to address these issues now will only exacerbate the systemic inequalities women face, compromising their financial independence and overall well-being.
• The Consequences of Inaction: The Economic Impact means the persistence of gender bias and pay disparity hampers economic growth and productivity as the nation fails to leverage the full potential of its workforce.
• Poverty and Homelessness: The pay gap often results in higher rates of poverty and homelessness among women, particularly those who are single parents or from marginalized communities.
• Social Unrest: Inequity in pay and opportunities can lead to social unrest and resentment, creating an atmosphere of dissatisfaction and unrest within the society.

Solutions for Progress:

• Pay Transparency: Implementing pay transparency measures would help shed light on gender pay disparities, encouraging organizations to rectify inequalities.
• Workplace Flexibility: Encouraging and supporting flexible work arrangements can help women balance career and family responsibilities more effectively.
• Education and Training: Raising awareness about gender biases and conducting unconscious bias training in workplaces can promote fair hiring and promotion practices.
• Equal Representation: Advocating for gender-balanced leadership and decision-making positions can pave the way for more inclusive workplaces.

Ultimately, Gender bias and pay parity in Australia are at a critical point of injustice, demanding immediate action and systemic changes. As a nation, Australia must acknowledge and address the root causes of these disparities to create a fair and inclusive society. By promoting equality, we can unlock the untapped potential of women, leading to a more prosperous and equitable future for all.