FWC equal remuneration claim for men and women but dismiss application by former employee

FWC equal remuneration claim for men and women but dismiss application by former employee

FWC equal remuneration claim for men and women but dismiss application by former employee

Despite ruling that a female chef did not receive equal remuneration for work she performed of equal or comparable value, an FWC Full Bench has dismissed her application because she is no longer employed by the restaurant group she worked for.

Under Part 2-7 of the Fair Work Act 2009 (FW Act), the FWC has the capacity “to make orders to ensure that there will be equal remuneration for men and women workers for work of equal or comparable value”.

The chef, ‘Ms S’, commenced employment with the Peter Rowland Group (PRG) as a casual Chef de Partie on 26 April 2021 at its production kitchen in Melbourne’s Dockland area. She was paid the casual rate for a Level 6 employee under the Hospitality Industry (General) Award 2020 (the Award).

In December 2021, a decision was made to offer Ms S and the four other male casual Chef de Parties full-time employment contracts; however, she was not offered a full-time role until May 2022.

Her salary was set at $65,000  and was structured as an annualised wage arrangement for a Level 6 employee under the Award. This amount was the minimum permissible under the Award.

Three of the other four chefs were also graded at the same level as her but paid an above-Award annual salary of $80,000. The fourth chef, who left his employment with PRG on 30 July 2022, was paid the same salary as Ms S. PRG later employed another female chef on the same salary as Ms S.

Ms S became aware of the difference in salary between herself and the three male chefs in February 2022, and she resigned from her role. Her last day of work was 21 February 2023.

A Full Bench accepted that Ms S “performed the same duties and had the same level of responsibilities as the other chefs, worked in the same environment, and performed her work to the same if not a higher standard than the other chefs”.

PRG’s primary defence was that the higher salaries were paid to the three chefs for their length of service and contribution working for the business, with two of them having 20-year periods of service. It was also partly seen as a retention strategy.

As noted by the Full Bench,

“PRG did not identify any work value-related reason for the higher salaries paid to Chefs 1,2 and 3. It appears that a decision was made to reward them for the length of their prior ‘service’ as casual employees with PRG, without there being any suggestion that this had caused them to have any higher level of skill or responsibility than Ms (S).

The Full Bench dismissed their defence of length that the higher salaries were linked to length of service and retention, noting,

“… that premise is misconceived. It is not necessary for rates of pay to have been established for a gender-discriminatory reason in order to obtain an equal remuneration order under s 302”.

However, the Full Bench determined the application must fail due to her status as a former employee.

As the Full Bench noted, the FW Act

“… permits an application to be made by an individual ’employee to whom the order will apply’. Ms (S) was not an employee of PRG at the time she made her application, which immediately calls into question her capacity to make the application”.

Consequently, if a remuneration order is to be made, “… it must apply to the applicant as an employee”.

In a similar vein, the Full Bench noted, “… the requisite inequality in remuneration for work of equal or comparable value must be a current state of affairs.”.

Accordingly, the application was dismissed.

ES v Peter Rowland Group Pty Ltd (C2023/1370) 17 July 2023

For queries about equal remuneration, the Fair Work Act, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 376.0823

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