Equal work equal pay orders

In what I think may be the first decision of the Fair Work Commission under the recent amendments to the fair work system which permits the Commission to make equal pay for equal work determinations it has ruled that it does not have the power to do so where an application is made to it after employment has concluded, and possibly by implication too that unless the matter gets to the Commission for hearing there is a current employment relationship on foot.

“Introduction

[1] Elena Sabbatini has applied for an equal remuneration order pursuant to s 302 of the

Fair Work Act 2009 (Cth) (FW Act). Her application relates to her period of full-time

employment as a chef with Peter Rowland Group Pty Ltd (PRG). PRG is a business which

engages in private event management, major event catering, venue management, and the

provision of food services in hotels, restaurants, bars, cafés, large-scale retail environments and

e-commerce delivery. In the conduct of its business, it engages culinary workers. Ms Sabbatini

contends that she performed work of equal value to that of three male chefs in her workplace

but was paid a significantly lower salary than them.

[2] Ms Sabbatini’s application was lodged in the Commission on 15 March 2023. Her

employment with PRG ended before this, on 6 March 2023 – a matter of significance for the

determination of her application, as will later be explained. Because her employment has

terminated, the relief which she seeks is in the nature of various items of back-payment rather

than prospective rectification of her remuneration. As set out in a document filed on 26 April

2023, Ms Sabbatini seeks the following items of payment:

  1. Remuneration for the difference in wage ($12,500) whilst working Full-time. How I work

this out is by the following method:

(Male Full Time Chef Wages: $80,000.00 – My Full Time Chef Wage $65,000.00 =A

difference of $15,000.00 for the same role. Divide that by 12 months to give a Monthly

Cost = $1,250 per month x 10 months of which I worked as a Full Time Chef = $12,500)

  1. Backpay of missed holiday allowance between my contract being received (May 2022)

and their contracts being received (From December 2022).

5.85 (Hours of annual leave I accrued fortnightly) x 2 = 11.7 (Monthly hours of annual

leave I would have accrued) x 5.5 (Months in between their contract and my contract

being received) = 64.35 hours x $33.78 (My hourly Rate) = $2,173.74.

[2023] FWCFB 127

DECISION

[2023] FWCFB 127

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  1. $3,000 for the extreme stress and anxiety that I endured during that time whilst being the

only one out of the 4 Chef[s] De Parties given two contracts both with six months

probationary period on them, therefore I was constantly in self-doubt of my appreciation

and value to the company.

  1. A fair remuneration of unpaid overtime worked hours based on actual timesheets from

the start of my Full-Time contract (May 2022).

[3] The Commission has been constituted as an Expert Panel for pay equity in accordance

with ss 617(7) and 620(1B) of the FW Act in order to hear and determine Ms Sabbatini’s

application.

Statutory framework

[4] Part 2-7 of the FW Act constitutes a scheme of provisions concerning ‘Equal

remuneration’. Section 300 provides a ‘guide’ to Pt 2-7 as follows:

300 Guide to this Part

This Part allows the FWC to make orders to ensure that there will be equal remuneration for

men and women workers for work of equal or comparable value.

[5] Section 302 is the central provision of Pt 2-7 and provides:

302 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;

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(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.

[6] Section 303(1) provides that an equal remuneration order made pursuant to s 302 may

provide for such increases in rates of remuneration to ensure that ‘for employees to whom the

order will apply, there will be equal remuneration for work of equal or comparable value’.

[2023] FWCFB 127

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Section 303(2) provides that an equal remuneration order must not provide for a reduction in

an employee’s rate of remuneration. Section 304 provides that an equal remuneration order may

implement equal remuneration for work of equal or comparable value in stages if the

Commission considers that it is not feasible to implement this ‘when the order comes into

operation’. Section 305 provides that an employer must not contravene a term of an equal

remuneration order and is a civil remedy provision. Section 306 provides that a term of a

modern award, enterprise agreement or Commission order has no effect in relation to an

employee to the extent that it is less beneficial than a term of an applicable equal remuneration

order.

[7] Section 302 was substantially amended by the Fair Work Amendment (Secure Jobs,

Better Pay) Act 2022 (Cth) (Amending Act) effective from 7 December 2022. The substantive

amendments are as follows:

(1) Subsection (3) now allows the Commission to make an equal remuneration order

on its own initiative as well as upon application.

(2) Subsections (3A), (3B) and (3C) have been added. Subsection (3A) identifies

three matters which the Commission may take into account in deciding whether

there is equal remuneration for work of equal or comparable value. Subsection

(3B) provides that if the Commission takes into account the first of these matters

in paragraph (3A)(a) (‘comparisons within and between occupations and

industries to establish whether the work has been undervalued on the basis of

gender’), the comparison is (a) not limited to similar work and (b) does not need

to be a comparison with an historically male-dominated occupation. Subsection

(3C) provides that, if the Commission takes into account a matter referred to in

paragraph (3A)(a) or (b) (‘whether historically the work has been undervalued on

the basis of gender’), the Commission is not required to find discrimination on the

basis of gender to establish that the work has been undervalued.

(3) Subsection (4A) has been added. It provides that nothing in the section limits the

considerations the Commission may take into account in deciding whether there

is equal remuneration for work of equal or comparable value.

(4) Subsection (5) has been altered to change it from a conditional discretionary

provision to a mandatory provision. It previously provided that the Commission

may make an equal remuneration order only if satisfied that, for the employees to

whom the order will apply, there is not equal remuneration for work of equal

or comparable value. It now provides that, if there is an application made under s

302(3)(b), the Commission 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.

The facts

[8] Pursuant to the Commission’s directions, Ms Sabbatini filed a witness statement made

by herself and four other witness statements made by the following persons employed or

formerly employed by PRG:

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  • Shannon McKay, National Executive Chef of Production;
  • Steven Patniyot (Chef de Partie);
  • Antonino Galla (casual chef); and
  • Douglas McPheat (casual chef).

[9] PRG did not seek to cross-examine Ms Sabbatini or any of the above persons, nor did it

object to the admission of the witness statements into evidence. PRG did not itself file any

witness statements pursuant to the directions. In the circumstances described, we see no reason

not to accept the evidence given by Ms Sabbatini and her witnesses in their statements. Their

evidence is not inherently implausible and does not contradict any facts otherwise known.

[10] The parties also made various contentions of fact in the application and PRG’s response

thereto and in their respective written and oral submissions. To the extent those contentions are

agreed or not disputed and do not contradict the evidence, we rely upon them in making our

findings of fact. Both parties also filed a number of documents in the form of payslips, pay

records and timesheets. There was no contest about the veracity of these documents and

accordingly we see no reason not to rely on their contents to the extent they are relevant.

[11] Based on this evidentiary material, we make the following findings of fact.

[12] Ms Sabbatini commenced employment with PRG as a casual Chef de Partie on 26 April

2021 at its production kitchen in the Docklands area in Melbourne. In the context of a larger

kitchen, a Chef de Partie is a chef in charge of a particular section or area of production in the

kitchen. Ms Sabbatini came to this position with extensive international experience as a chef.

Ms Sabbatini worked alongside four other male casual Chefs de Partie in the kitchen. They

ultimately worked under the direction of Mr McKay, the National Executive Chef of Production

at the Docklands kitchen. Ms Sabbatini was paid the casual hourly rate for a Level 6 employee

under the Hospitality Industry (General) Award 2020 (Award). This was $31.50 per hour until

1 November 2021, when the Level 6 Award rate was increased in accordance with the 2020-21

Annual Wage Review decision to $32.89.

[13] In about December 2021, a decision was made, apparently at Mr McKay’s instigation,

to offer full-time employment contracts to Ms Sabbatini and the other four casual Chefs de

Partie in the Docklands kitchen. Mr McKay’s evidence is that he requested that all of the chefs

commence at the same time and on the same salary, which he understood to be budgeted for

$65,000 per year. This is confirmed by an email sent by Mr McKay to the then-human resources

manager on 17 December 2021.

[14] The four other male Chefs de Partie1

had been offered, had accepted and had

commenced in full-time roles by the following dates:

Chef 1: 31 January 2022

Chef 2: 6 December 2022

Chef 3: 31 January 2022

Steven Patniyot: 4 January 2022.

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[15] However, Ms Sabbatini was not offered a full-time role until May 2022 and

consequently did not commence in that role until 23 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.

Ms Sabbatini’s annual salary was the minimum amount permitted to be payable pursuant to an

annualised wage arrangement under the Award. The salary amount was increased to $66,739.40

from 1 November 2022 in line with the increase to the Level 6 rate in the Award arising from

the 2021-22 Annual Wage review decision. That remained her salary until the end of her

employment with PRG.

[16] Chef 1, Chef 2 and Chef 3 were, like Ms Sabbatini, graded at Level 6 under the Award

and were, from the commencement of their full-time employment, paid pursuant to an

annualised wage arrangement under the Award. However, they were paid an above-Award

annual salary of $80,000. Mr Patniyot was also classified at Level 6 under the Award and paid

pursuant to an annualised wage arrangement upon the commencement of his full-time

employment, but his salary was the same as Ms Sabbatini’s, namely $65,000. He left his

employment with PRG on 30 July 2022.

[17] After Ms Sabbatini’s full-time employment commenced, another female chef (Chef 4)

was employed on a full-time basis in the Docklands kitchen. Her job title was ‘Chef de Partie –

Pastry’. Chef 4 was classified at Level 6 under the Award and paid the same salary as Ms

Sabbatini pursuant to an annualised wage arrangement.

[18] PRG provided a record of the average weekly hours worked by Ms Sabbatini and the

other chefs. It is not clear over what period the averages were calculated, though it appears it

may be for the duration of Ms Sabbatini’s full-time employment – that is, from 23 May 2022.

The record provided showed the following:

Chef 1: 27.03487179

Chef 2: 35.61589744

Chef 3: 36.61076923

Chef 4: 40.73785714

Ms Sabbatini: 38.26885714

Mr Patniyot: 38.682

[19] Ms Sabbatini’s evidence was that her hours of work were in fact higher than is

represented in PRG’s record. She also contends that she performed large numbers of unpaid

hours of work and did so to a greater extent than the other Chefs de Partie. Ms Sabbatini

provided timesheets produced by PRG for the period of her full-time employment which show

that she frequently worked in excess of eight hours per day and averaged 39.18897 hours per

week.2

[20] The evidence concerning the duties performed by Ms Sabbatini, Chefs 1-3 and Mr

Patniyot was very generalised in nature but was nonetheless unequivocal: Ms Sabbatini

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. Ms Sabbatini said in her witness statement:

Regarding my work duties and responsibilities, there [were] absolutely no differences between

all the Chef de Parties [sic] and myself, both on Deputy (Payroll system), rosters, training

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schedules for food safety sign off and workplace expectations. We were all expected to do the

same duties, there is nothing that they were asked to do that was in any way different or more

important to the running of the business than what I was also being asked to do.

[21] Mr McKay said:

In my time in the role with Peter Rowland, Elena performed the duties of the role at a higher

level than all of the other Chef De Parties, not to mention a higher level than other senior chefs

employed at the time. She was always first in and last out, she was the only person who could

competently run every section in the kitchen, I relied on her to draw up prep lists in my absence,

all other staff in the kitchen, senior chefs and chef de parties actually asked her for jobs to do

and how to do them such was her work ethic and skills. She would run a section by herself with

no issues and when I put another Chef De Partie in the same section and moved her out, I also

needed to put another 3-5 chefs with them to get the same workload done on time. Such was the

difference in her work performance and work ethic I recommended she be promoted to a Sous

Chef role, as that was the level she was working at, which some of the other Chef De Parties

also agreed with.

At no time, were any of the other full time chefs called on to do anything extra that Elena

couldn’t or wouldn’t do. She was the only one who could do the Petite range and pack them (to

which none of the other Chef De Parties tried), she could lift, chop, pack, clean everything in

the same manner that the other chefs were expected to. She was the only one who would stay

back and help the under manned pastry section often when the other chefs left to go home.

[22] Mr Patniyot said:

I can confirm that the duties that ALL Chef de Parties were doing, were ALL at the same level

and we ALL had the same amount of responsibilities for our role. Elena Sabbatini was included

in my description of Chef de Parties above. Elena performed the same duties and responsibilities

and more often than not was the only Chef de Partie who would regularly stay back and do

overtime to assist the Executive Chef with making the business run smooth and efficiently.

[23] Mr McPheat, who worked at the Docklands kitchen as a casual Chef de Partie, said:

In my time working there I was under the impression that all staff employed as chef de parties

were required to undertake equally the same working responsibilities and workload, under the

same working conditions and time constraints and employment contracts and that included

Elena Sabbatini.

I worked with Elena many times and I could notice from our first shift together, that her work

ethic, commitment and personality made her stand out from the crowd. By watching the other

chef de parties often seek her out for advice, I assumed that she was the Sous chef as she was

stepping up every time the Executive chef was not present.

I also noticed that Elena would often be the only chef to consistently stay back and help the

Executive chef until the work was completed.

[24] Mr Galla, who worked as a casual chef in the Docklands kitchen from 4 August 2022

until 29 March 2023, said:

… in that time working there, Elena Sabbatini’s duties and responsibilities were the same if not

more than all the other chef [de] parties.

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I noticed that everyone (Chef [de] Parties and agency casuals Chefs) were always asking her

what to do next and the best way to do it.

In the absence of the Executive Chef (Shannon Mckay), Elena Sabbatini would take any

responsibilities and be the decision maker for any issue or question that other chefs and delivery

drivers might have, knowing that she had the right answers and take the charge for any decisions.

Elena Sabbatini was also the only Chef [de] Partie who would stay back past her rostered hours

on a regular basis to help write prep-lists or help anyone in need (including dishwashing).

From my experience working in that kitchen, there was nothing that any other Che[f de] Parties

would do that Elena was not already doing herself

[25] As earlier stated, PRG did not file any response to the above evidence. Its submissions

do not contend that the evidence should not be accepted; indeed the contention in response is

merely that Ms Sabbatini was ‘well regarded as a Chef de Partie’ and ‘[PRG] has not and does

not question Ms Sabbatini’s qualifications nor her ability within the role of Chef de Partie’.

PRG does not contend that Chefs 1, 2 or 3 were paid a higher salary because their duties or

performance involved a higher level of skill, training or responsibility. Rather, it is simply

asserted that they were recognised for their length of service and contribution for their time

working with PRG, with two of them having 20-year periods of service. This is presumably

principally service as casual employees. PRG also asserted that the higher salaries were paid as

a ‘retention strategy’.

[26] In September 2022, Ms Sabbatini was, at Mr McKay’s suggestion, interviewed for the

position of Sous Chef to replace the previous Sous Chef who had departed. A Sous Chef is the

second in command of a kitchen, ranking immediately below the head or executive chef, and

supervises other chefs and oversees the day-to-day operations of the kitchen. The position had

not been advertised to market at the time. It was determined that Ms Sabbatini was not ready to

step into this role. She was advised that a development plan would be put in place for her with

Mr McKay to assist in coaching and mentoring her, but this did not eventuate.

[27] Ms Sabbatini’s evidence is that her initial full-time employment contract in May 2022

included a provision for a six-month probationary period. However, she says that, unlike the

other Chefs de Partie, she was issued with a further employment contract in December 2022

which provided for a further six-month probationary period. PRG accepts this occurred but says

it was an error.

[28] In about February 2023, Ms Sabbatini became aware of the differential in salary between

herself and Chefs 1, 2 and 3. The evidence does not explain how she found out about this. This

(and perhaps an issue concerning delay in PRG sponsoring her for a visa) caused her to resign

with one week’s notice. Ms Sabbatini did not work out her period of notice because she was

‘experiencing stress and anxiety over the disgraceful way in which [she] had been treated by

the Company’. Her last day of work was 21 February 2023.

[29] It appears that Mr McKay did not learn about the differential in salary until about the

same time as Ms Sabbatini. His understanding, at the time of engagement of each Chef de Partie

on a full-time basis, was that there was a salary limitation of $65,000 for all such chefs. His

evidence was:

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It was to my surprise and disgust, when I found out the differences in the salaries between Elena

and the other Chef De Parties, considering that I had initially asked for everyone to be on the

same wage when they were all being set up as Full Time Chefs for their first time after working

casually for periods of time (Not exclusively with the Peter Rowland Group but also with other

venues).

Myself and Executive chef Matthew Haigh, could not understand why there was such a

difference considering the time and energy she put into working for the company during her

time.

[30] Upon Ms Sabbatini resigning, PRG advertised her position at a salary of $70-80,000.

The person selected was employed on a salary of $70,000.

Consideration

[31] On the facts, we are satisfied that, during Ms Sabbatini’s full-time employment with

PRG as a Chef de Partie, there was not equal remuneration for work of equal or comparable

value at the Docklands kitchen. As is made clear by the definition in s 302(2), ‘equal

remuneration for work of equal or comparable value’ is concerned with gender inequality in

remuneration.3 That such gender inequality in remuneration existed is clear. Ms Sabbatini was

one of five Chefs de Partie at the Docklands kitchen who were converted from casual to fulltime employment in a process that commenced in December 2021 at Mr McKay’s

recommendation. Ms Sabbatini was the only female chef of the five. Mr McKay, who was in

charge of the kitchen in which the five chefs worked, instigated this process and, as far as he

was concerned, all five were to become full-time chefs at the same time and on the same salary.

However, three of the four male chefs (Chefs 1-3) were, unbeknownst to Mr McKay at the time,

engaged on significantly higher salaries than Ms Sabbatini and Mr Patniyot. In addition, for

reasons unexplained, Ms Sabbatini was not engaged on a full-time basis until a number of

months after the four male chefs, and thus remained on her casual hourly rate for the period of

the delay.

[32] It is equally clear that Ms Sabbatini performed work of at least equal value to that of the

three Chefs de Partie who were paid higher salaries. The comparison of work involved in this

case is straightforward since the work being compared is the same. No recourse to the matters

specified in s 302(3A) of the FW Act is necessary. This is the type of case referred to in the

2015 Equal Remuneration Decision in the following terms:

It is likely that the task of determining whether s 302(5) is satisfied will be easier with

comparators that are small in terms of the number of employees in each, are capable of precise

definition, and in which employees perform the same or similar work under the same or similar

conditions…4

[33] In this case, Ms Sabbatini and the three higher-paid chefs all held the position of Chef

de Partie, all worked in the same working environment (the Docklands production kitchen) and

were all classified at Level 6 under the Award. The unchallenged evidence of Mr McKay, Mr

Patniyot, Mr McPheat and Mr Galla was that Ms Sabbatini and the three higher-paid chefs

performed the same duties involving the same level of responsibility and skill. 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

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employees with PRG, without there being any suggestion that this had caused them to have any

higher level of skill or responsibility than Ms Sabbatini.

[34] PRG’s case in response to Ms Sabbatini’s application appears to be premised on the

proposition that, because the payment of the higher salaries to the three male chefs was not for

a gender-related reason but was a reward for service or a retention strategy, the application must

fail. However, 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.

5

[35] The critical question to be determined in this matter is whether the above conclusion

gives rise to an obligation to make an equal remuneration order under s 302(5). In order for this

to be the case, two requirements must be satisfied. First, the words ‘[if] an application for an

equal remuneration order is made as mentioned in paragraph (3)(b)’ infer a requirement for an

application that has validly been made under s 302(2). Second, the Commission must be

satisfied that, ‘for the employees to whom the order will apply, there is not equal remuneration

for work of equal or comparable value’ (emphasis added).

[36] As to the first requirement, s 302(3)(b)(i) is the relevant provision. It permits an

application to be made by an individual ‘employee to whom the order will apply’. Ms Sabbatini

was not an employee of PRG at the time that she made her application, which immediately calls

into question her capacity to make the application. We do not think that s 302(3)(b)(i) can be

construed as referring to a person who, in a previous capacity as an employee, has been the

subject of alleged unequal remuneration for work of equal or comparable value. The

requirement for an individual applicant to be an employee ‘to whom the order will apply’ means

that, if an equal remuneration order is made, it must apply to the applicant as an employee. That

requirement cannot be satisfied in Ms Sabbatini’s case by reason of her having ceased to be an

employee of PRG prior to her making her application.

[37] The second requirement operates consistently with our preferred construction of the first

requirement. The critical feature of this requirement is the use of the present tense ‘is’ in

s 302(5) to connote that the requisite inequality in remuneration for work of equal or

comparable value must be a current state of affairs. The language used is not apt to describe an

inequality in remuneration for work of equal or comparable value which existed at some time

in the past but no longer exists because the person who is the subject of the unequal

remuneration is no longer an employee. The position is confirmed by the requirement that the

Commission’s satisfaction must be in relation to ‘the employees to whom the order will apply’.

[38] The statutory context supports the construction of s 302(3)(b)(i) and (5) which we

prefer. Section 300, which provides a ‘guide’ to Pt 2-7, provides that the Part allows the

Commission ‘to make orders to ensure that there will be equal remuneration for men and

women workers for work of equal or comparable value’ (emphasis added). The use of the future

tense in this provision indicates that the purpose of equal remuneration orders is to operate

prospectively to ensure equal remuneration for work of equal or comparable value going

forward. It is difficult to read s 302 as indicative of an intention that equal remuneration orders

could operate to remedy past instances of unequal remuneration. This use of the future tense is

repeated in s 302(1) and operates, in our view, as a limitation on the type of order which might

be made under the section. Section 302(3A), like s 302(5), uses the present tense ‘is’ to describe

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the assessment required to be made concerning the existence of equal remuneration for work of

equal or comparable value, and is not apt to refer to an assessment of a past situation which no

longer exists.

[39] The ancillary provisions in ss 303-306 also operate consistently with our preferred

construction. Section 303(1) refers to increases in rates of remuneration to, again, ensure that

there ‘will be’ equal remuneration for work of equal or comparable value ‘for employees to

whom the order will apply’, and s 303(2) prohibits reductions in ‘an employee’s’ rate of

remuneration. These provisions speak to an in futuro achievement of equal remuneration

through wage rises for persons who remain employees of the relevant employer. Section 304

concerns the implementation of equal remuneration in stages and again infers futurity. Section

306, which provides that a term of an award or enterprise agreement has no effect to the extent

that it is less beneficial ‘to an employee’ than a term of an equal remuneration order that applies

‘to the employee’, cannot reasonably be understood as applying to a past situation in a way that

would retrospectively render inoperative a provision of an award or agreement.

[40] The application of Part 2-7 to past situations which no longer exist, as proposed by Ms

Sabbatini’s application, would imply the capacity to make an equal remuneration order

requiring an employer to pay a sum of money to a former employee. The orders sought by Ms

Sabbatini are of that nature. However, no provision of Pt 2-7 refers, expressly or implicitly, to

a power to make a monetary order of that nature. Further, there are no provisions of the type

which one might expect if such a power existed: for example, there is no provision limiting the

past period in relation to which an application might be made, there is no cap on the amount of

money which might be awarded, there is no provision for payment in instalments or by a

particular time, and no provision for an order for the payment of interest. This indicates that the

making of monetary orders under s 302 relating to past events or situations was simply not

contemplated by the legislature.

[41] For the above reasons, we conclude, first, that Ms Sabbatini’s application was not one

that could validly be made under s 302(3)(b)(ii) of the FW Act. This impediment could be

surmounted if we considered that, in the interests of justice and in order to give effect to the

FW Act’s gender equality objective, the Commission should make an equal remuneration order

on our own initiative pursuant to s 302(3)(a). However, this would be to no avail in Ms

Sabbatini’s case because we conclude, second, that because Ms Sabbatini’s employment with

PRG terminated before she made her application, we cannot find that there is not equal

remuneration for work of equal or comparable value in relation to her, nor that an order can be

made which will apply to her as an employee.

[42] Accordingly, we order that the application is dismissed.”

 

Sabbatini vs Peter Rowland Group Pty Ltd [2023] FWCFB 127 delivered 17 July 2023 per Hatcher J, O’Neill DP and Dr Risse