Section 302 — Fair Work Act 2009: FWC may make an order requiring equal remuneration

Power to make an equal remuneration order (1) The FWC may make any order (an equal remuneration order) it considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value. Note: The FWC must be constituted by an Expert Panel for the purposes of making an equal remuneration order (see subsections 617(7) and (10)). Meaning of equal remuneration for work of equal or comparable value (2) Equal remuneration for work of equal or comparable value means equal remuneration for men and women workers for work of equal or comparable value. When the FWC may make an equal remuneration order (3) The FWC may make the equal remuneration order: (a) on its own initiative; or (b) on application by any of the following: (i) an employee to whom the order will apply; (ii) an employee organisation that is entitled to represent the industrial interests of an employee to whom the order will apply; (iii) the Sex Discrimination Commissioner. Gender equity considerations (3A) For the purposes of this Act, in deciding whether there is equal remuneration for work of equal or comparable value, the FWC may take into account: (a) comparisons within and between occupations and industries to establish whether the work has been undervalued on the basis of gender; or (b) whether historically the work has been undervalued on the basis of gender; or (c) any fair work instrument or State industrial instrument. (3B) If the FWC takes into account a comparison for the purposes of paragraph (3A)(a), the comparison: (a) is not limited to similar work; and (b) does not need to be a comparison with an historically male-dominated occupation or industry. (3C) If the FWC takes into account a matter referred to in paragraph (3A)(a) or (b), the FWC is not required to find discrimination on the basis of gender to establish the work has been undervalued as referred to in that paragraph. FWC must take into account orders and determinations made in annual wage reviews (4) For the purposes of this Act, in deciding whether there is equal remuneration for work of equal or comparable value, the FWC must take into account: (a) orders and determinations made by the FWC in annual wage reviews; and (b) the reasons for those orders and determinations. Note: The FWC must be constituted by an Expert Panel in annual wage reviews (see section 617). (4A) Nothing in this section limits the considerations the FWC may take into account in deciding whether there is equal remuneration for work of equal or comparable value. Requirement to make an equal remuneration order (5) If an application for an equal remuneration order is made as mentioned in paragraph (3)(b), the FWC must make the equal remuneration order if it is satisfied that, for the employees to whom the order will apply, there is not equal remuneration for work of equal or comparable value.