What Kind of Equality Can We Expect from the Fair Work Act?

Abstract

Is it merely a coincidence that the ranks of poorly paid and precarious workers in Australia are replete with women and ethnic minorities? Can we identify a regulatory defect to explain why after more than a quarter century of anti-discrimination laws such economic inequality is still experienced by these ‘protected’ groups? Or do these laws just need time to weed out prejudice and allow merit to operate in our labour markets?

These questions hint at the complexity of the notion of inequality and the use of law to address it. A law may seek to address one form of inequality, such as socioeconomic disadvantage, yet ignore or deny other aspects, such as racial prejudice.

Drawing on the equality scholarship of Nancy Fraser and Sandra Fredman, the first question I explore in this paper is whether the historical separation of anti-discrimination laws from the regulation of wages and conditions of work through labour laws has undermined progress in achieving substantive gender equality in Australia. I look at the goals and operation of these two regulatory regimes in terms of equality and tease out constraints imposed on each by the separation. Finally, I ask whether the Fair Work Act 2009 (Cth) represents a significant blurring of this separation and what transformative potential this could herald.

Keywords: equality, law, discrimination, Fair Work Act, Australia

JEL Classification: K10, K30, K31