Hpm wins discrimination case

Cases

Hpm wins discrimination case

HPM Industries, the subject of the first arbitrated case under the ‘Equal remuneration for work of equal value’ provisions of the Workplace Relations Act, has successfully defended claims that it breached the above provisions in the way it paid its female process workers and female packers as against male general hands and male storepersons.

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HPM Industries, the subject of the first arbitrated case under the ‘Equal remuneration for work of equal value’ provisions of the Workplace Relations Act, has successfully defended claims that it breached the above provisions in the way it paid its female process workers and female packers as against male general hands and male storepersons.

The claim, one of three, was lodged by the AMWU on 6 December 1995. The employees, the subject of the claim, were employed pursuant to the Metal Industry Award 1984 - Part 1 [M0039].

Following conciliation, which proved unsuccessful, the matter was arbitrated before Commissioner Simmonds of the Federal Industrial Relations Commission during late 1997.

The AMWU/ACTU claimed, among other things:

  • that all current female process workers classified at the C13 level shall receive at least the same rate of pay as the highest paid male general hand classified at either C14 or C13;
  • that all current female process workers and female packers classified at C12 shall receive at least the same rate of pay as the highest paid male general hand and/or storeperson classified at C12; and
  • that all future female process workers and female packers have access to the same three level increment salary structure that applies to male general hands and storepersons.

The intervening women’s lobby groups not only supported the AMWU/ACTU claim but sought an order that the Commission mandate an equal opportunity program for the company (specifically with regard to work and job design and recruitment) and review it periodically.

HPM submitted that the AMWU/ACTU, in relying on the ‘skills count’ derived through the competency standards process provided in the Metal Industry Award, failed to meet the requirements of the Act.

HPM submitted that what was required in order to meet the relevant provisions of the Act was ‘methods in operation for determining rates of remuneration’ and the appropriate principles to be applied were the equal pay decisions of the Federal Commission. Those decisions, it was submitted, required the AMWU/ACTU to show, by appropriate ‘work value comparison’ between work of the same or like nature, that the work performed by the female employees is of ‘equal value’ to the work performed by the male comparators.

On the question of establishing whether the relevant rates of remuneration have been established without discrimination based on sex, Commissioner Simmonds stated (AFMEPKIU v HPM Industries; Print P9210, [1998] 253 IRCommA):

"It follows that the definition of equal remuneration for work of equal value that as a first step to making an order the Commission must be satisfied that rates of remuneration have been established without discrimination based on sex. Both the applicant and the respondent to these proceedings, and some of the interveners address this question and accepted that a necessary precursor to establishing this was to establish that the work is of equal value. This must be so, as direct discrimination only arises where there is different treatment in the same circumstances. To establish that the same circumstances exist there needs to be an assessment as to the equivalence of the work. The applicant and the respondent adopted this approach. If the work is not of equal value then in the absence of indirect discrimination there is no basis for a finding that there is not equal remuneration for work of equal value, as defined on the basis that remuneration is also not equal."

As to whether the work in question was of ‘equal value’, Commissioner Simmonds rejected the AMWU/ACTU claim that there was an agreement between the parties to rely on the competency standards in the Metal Industry Award to establish ‘equal value’ of work.

Commissioner Simmonds also rejected the possible argument that there was a presumption of equal value arising from the award classification process. The Commission accepted submissions that the classification structure in the Metal Industry Award was not an appropriate starting point in all cases for determining whether there is equal remuneration for work of equal value.

Commissioner Simmonds referred to earlier equal pay cases in finding that no comparison has been made between process workers and other classifications. Commissioner Simmonds concluded:

"It follows from the above conclusions that I am not satisfied, on what is before me, that the different remuneration paid to Process workers and Packers by comparison to that paid to General hands and Storepersons arises in circumstances that are sufficiently similar as to amount to discrimination based on sex."

Commissioner Simmonds summarised his conclusions thus:

  • "That the Commission as presently constituted must follow the definition of discrimination established in the Third Safety Net Adjustment and Section 150A Review decision of the Full Bench (Print M5600, [1995] 2120 IRCommA);
  • to establish that equal remuneration for work of equal value is justified it is necessary to establish that the rates of remuneration have been established without discrimination based on sex. In the case of direct discrimination it is necessary to establish that the same circumstances exist, and thus the equivalence of the work needs to be established;
  • In the absence of agreement about establishing the equivalence of the work, the competency standards process as provided in Clause 6E of the Award is not appropriate. Where there is no agreement the appropriate method is to apply the criteria of work value;
  • There was no agreement in this matter to the use of competency standards as a method of determining the equivalence of the work;
  • There is insufficient evidence to satisfy the Commission that HPM has indirectly discriminated, in a relevant way, so as to justify the making of an order under Part 2 of Division VIA of the Act;
  • There is no basis for an order of the kind proposed by the Women’s organisations to mandate a program of equal opportunity and supervise its implementation."
 
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