Edna Ryan, Arbitration and Equal Pay: A Legacy at Risk

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Laura Bennett

In August last year, the Sydney Branch organised a well attended one day conference at the Women’s College, Sydney University, to commemorate the life and work of labour movement and feminist activist and intellectual, Edna Ryan, who passed away in January 1997. Below, we reproduce the text of the address delivered at the conference by labour lawyer and labour historian, Laura Bennett. Laura is the author of a number of highly acclaimed works, including Making Labour Law in Australia. Industrial Relations, Politics and Law, The Law Book Company, 1994.

In this tribute to Edna Ryan I wish to consider not just her contribution to the practice and theory of equal pay and arbitration but, more importantly, how that contribution may be preserved. In order to do that it is necessary to understand just how distinctive her work was.

What differentiates Edna Ryan from most of her academic and political contemporaries was her stress on examining distinctly Australian institutions, most particularly from a historical perspective. Instead of writing of Australian institutions and the tradition of social justice as gendered in some sort of inevitable way, she explored the ways in which gender had been constructed in social institutions such as arbitration. She then turned the tradition of social justice back on itself in order to redefine the role of women in that tradition.

This alone is sufficient to distinguish her from a substantial number of feminists (particularly middle class feminists). Ignorant of the complcx history of Australian institutions, they simply dismissed them. Liko contemporary economic rationalists they’took the view that’ AmericlIlI is best’ and, as a result, put their efforts into rights-based strategies, Y III comparative work, such as that of Whitehouse, indicates that Ryan wnR correct. The most effective way to improve women’s position in lhl’! paid workforce was to rework institutions based on collective relation such as arbitration, and to require bodies such as unions to face the gender biased nature of their practices.

The approach taken by Ryan (both scholarly and political) is perhaps even more important today then when she originally wrote. The reason for this relates to the contemporary political and industrial context.

Women and the Social Justice Tradition
Ryan wrote within a particular social tradition; she took arguments which had been used to maintain and legitimise pay differences between men and women, such as the family wage, and showed them to be false within the (masculine) terms of that tradition. What is essential to note about this process is that she used the values of social justice to attack its practice. Her arguments were essentially about fairness, and social responsibility. That is, it is unfair to pay women less when they work as well (or better) than a man and women as well as men have a responsibility for dependents.

Her political project also explains the emphasis in her books on unions as instruments of oppression. The books analyse union practices at great length, yet employers get relatively little attention. The reason for this is obvious to those well versed in labour history or industrial relations particularly where they are sympathetic to collective action. The key to improving women’s position lies in changing the practices of employers, unions, industrial tribunals and governments. But you need to start sotfiewhere. Political pressure and social justice arguments are most effectively mobilised against unions, tribunals and governments, particularlY,Labor ones. Employers are more difficult to reach and generally this can only be done in a secondary way. in other words to change employer practices you need pressure from governments, tribunals and/or unions. Employers do not respond, for example, to ideological arguments particularly when those ideologies are ones they do not share (eg gender equality, social justice). And attempts to tap into their ideologies to benefit women are naive.1

Those who work within, or are sympathetic to, the ides of social justice understand the overwhelming role that employers have played in constructing work as low paid, ‘unskilled’, and marginal, but this is often not at all evident to feminists working outside this tradition. Many approach the issue of women and work with the anti-labour prejudices of their class and find little, if anything, to offset those prejudices in their own disciplinary training (economics, law, HRM). They have no difficulty identifying unions and industrial tribunals as the real reason for women’s low pay and marginal status. The flexibility arguments used by employers and conservative governments to attack the gains made by working women often co-opt and distort the work of feminists such as Ryan.

This point should not be misunderstood. Such co-options are at best ignorant and a function of class-prejudi~e and at worst dishonest and opportunistic. But those of us who understand and support the objectives of her work have a duty to defend it by putting it in its context. And a major part of doing that is to reassert the social justice values which informed her work and which are explicitly rejected by those supporting the flexibility push.

It is essential for us to stress, for example, that Ryan’s work was not about equality in the sense that some middle-class feminists understand it. It was not about rewards and burdens being shared around in a gender neutral way. It was about men and women being treated fairly, being paid a decent wage, and having decent working conditions and job prospects. Her books document the struggles and difficulties which, over many years, produced a slow and painful improvement in women’s wages and conditions. To read them is to be reminded of how hard-won those gains were and how much greater is the betrayal as they are lost. Edna Ryan was part of a push which produced unprecedented gains for working women and closed some of the gap between male and female workforce. As we are aware that gap is now widening.

The Loss of Social Justice: Increasing Inequality
There is evidence that the gender gap is increasing. However,concentrating on the difference between men and women understates the problem. Increasing inequality in the labour market is producing worse outcomes for substantial numbers of men and women workers. Jobs are being divided into low pay and high pay with middle range, jobs disappearing. The adoption of a social justice perspective, such as that of Edna Ryan, is a better indicator of the contemporary problems faced by women than one dedicated merely to examining gender differences.

Nevertheless, industries employing a high proportion of low paid employees in Australia continue to be dominated by women workers. Such industries include clothing and footwear, personal services, retail trade, and private households employing staff.2 Buchanan and Watson estimate, on the basis of ABS data, that in 1993, 75,349 employees (who worked 16 hours a week or more) earned under $9 an hour, whilst a further 701,633 earned between $9.01 and $10.50 per hour. This represented 24.5% of the male workforce working a minimum of 16 hours per week and 33% of the female workforce so working.3

Buchanan and Watson also found that not only were women workers disproportionately located within occupations which pay very low wages but that, within those occupations, they were more likely to be very low paid than men. In the occupational category of labourers and related workers, for instance, 26% of all workers working at least 16 hours a week were earning less than $9 an hour, of these 16.6% were male while 35.9% were female. In the category ‘sales’ the overall figure was 19.9% with that for men being 15.2% and for women 26.6%. Again, for cleaners the overall figure was 29.3%, for men 19.8% and for women 36%4

Inequality in the labour market is linked to the replacement of full-time stable jobs with precarious employment, particularly casual labour. In August 1995 casuals represented 20.1 % of the employed labour force, up from 10.8% in August 1982.5 Sectors such as the retail sector have moved from being predominantly full-time to predominantly part time/casual over the past twenty years.

It is clear that the trends outlined predate the legislative attack on arbitration whether at state or federal level. Casualisation of work and depression of wages first occurred within the framework of arbitration. The first round of award restructuring through 1987 and 1988 saw a concerted and successful effort by employers to increase the incidence of casual work.6The policy, supported by governments, peak employer and union bodies, of demanding productivity improvements (ie. increased flexibility for slowing the decrease in real wages) has had significant gender effects in terms of the trends outlined above.

Arbitration per se is not a solution to the problems faced by women workers. Ryan’s book and her political practice both send the same message and that is that women’s position improves only when the key parties to industrial relations (governments, unions and employers) are placed under unremitting pressure to produce outcomes for women. When it is subjected to such pressure arbitration is clearly capable of producing good outcomes for women.

But it must be stressed that the role that arbitration plays with respect to any particular group is contingent on a range of things (not just feminist action). Arbitration is not an inherently good thing and different forms are not equally susceptible to action from women. Arbitration without unions or with enterprise unions committed to short term enterprise gains would probably be a worse thing for women than arbitration with gender biased but collectively oriented ~nions.

If the impact of arbitration on women is heavily contingent, the same cannot be said for the various policies and practices associated with economic rationalism. Deregulation can only accelerate the trends outlined above.

So What Has Gone Wrong? Why, just when we were doing well, did the rules change? Well, at one Ilwel, the answer is very simple. The rules changed because workers were doing (relatively) well. Employers launched a counter-offensive deliberately designed to change the rules because the wages and conditions won by both men and women had increased their labour costs and decreased what they believed to be their rightful share of profit.

And this is not a phenomenon peculiar to the 1990s. The value of labour history is that it demonstrates the continuity between past and present practices. The rules and laws covering work have always been contested and subject to struggle. Some of these struggles involved contesting the form of arbitration and some involved the replacement of arbitration (partial or wholesale). The bans clauses, for instance, were born out of the High Court and employers’ subversion of the nonpenal legislation of the Scullin government. Struggles over laws and rules were struggles about how power was to be allocated and where burdens were to be placed and benefits to be enjoyed.

A sense of the historical contingency of rules and laws and of how the various parties to industrial relations have struggled over them is a good antidote to the ‘inevitabilism’ of economic rationalism. But it provides no blueprint for dealing with the present offensive.

So how have the rules changed? And what are the implications for women?

Most basically the industrial relations system has been reshaped so that principles of ‘efficiency’ and ‘productivity’ replace those of social justice and fairness. Two of the most crucial aspects of the change are the loss of third party intervention and the undermining of collective representation.

Loss of Third Party Intervention Across a Significant Range of Working Conditions and Pay.
When considering the role of third parties in industrial relations it is customary to concentrate on tribunals or (if very conservative), unions. Yet women’s groups have played a key role in intervening in arbitral hearings. Both forms of intervention have been radically reduced by legislative changes in the 1990s, particularly those brought in by the Coalition’sWorkplace Relations Act.

The Australian Industrial Relations Commission’s role has been limited in several crucial ways:

  • by forcing the parties to move to enterprise bargaining by, for example, excluding conditions (such as limits on employment of casual workers) from awards
  • by restricting the role of the Commission with respect to enterprise bargaining (no net disadvantage test); and
  • by requiring the Commission to. have regard to wage fixing principles which stress factors favourable to employers rather than unions or workers.

These changes have involved the loss of national wage fixing (except for the minimum wage) and the loss of principles such as comparative wage justice. Transmission of gains won by stronger unions to weaker ones (admittedly over a period of time) was a key aspect of arbitration and played an important role in moderating wage inequality over the workforce. Enterprise/productivity bargaining, on the other hand, is designed to quarantine wage gains so that weaker unions (many of which are dominated by women workers) will not benefit ITom wage campaigns of stronger unions.

The direct representation of the interests of women workers has also been cut back. Women’s groups have played a key role in improving the position of women workers by appearing before the tribunals. Edna Ryan’s role in the minimum wage case is a classic case in point. In Gentle Invaders Ryan and Conlon recount how in the 1974 Equal Pay Case the government and the ACTU supported the extension of the male minimum wage to women but the ACTU did not provide any evidence to support its claim. You couldn’t have a clearer case or sabotage. Ryan and Conlon recount how four women’s groups, including the Women’s Electoral Lobby, stepped in and produced evidence on the extent to which women functioned as primary breadwinners and on the need for low paid workers to have an adequate minimum wage.7 Although women’s groups were heard in the last minimum wage case they, and other groups, have now been excluded from a series of matters. National wage fixing has been replaced by p plethora of enterprise and sub-enterprise bargaining which has been deliberately designed to exclude groups except for the immediate parties. The Workplace Relations Act 1996 provides that third parties may not make submissions or be heard with respect to an Australian Workplace Agreement (AWA) and that Commission hearings must be in private.

These exclusions need to be read with the secrecy bias of the Act if their full impact is to be appreciated. In the past, awards were public documents. Edna Ryan’s bO!Jks were only possible because so much material was accessible. Criticisms mounted by her and women’s groups on gender bias in awards were possible because of the relatively easy access that could be had to them. This is no longer possible and means that any deterioration of women’s conditions under, for example, A W A’s will be extremely difficult to detect. Moreover the parties to an A W A must not be identified if a decision on an A W A is published. Thus, even if gender bias can be identified, women’s groups will find it very difficult to put pressure on the employer involved. Those of you who have read in the corporate crime literature will know that Braithwaite and others have argued that adverse publicity can be a very effective deterrent particularly where large corporations are concerned. Effectively, the secrecy provisions amount to saying that there is no public interest in the conditions of employees. They are simply a matter for the parties.

The Undermining of Collective Representation
A further key hange relates to unionism; in particular the undermining of worker’s ability to obtain union representation or independent union representation. A WAs, for example, require workers either to represenl themselves or to appoint a’ bargaining agent. This is done to promote ‘freedom of association’ .

Evidence from New Zealand, however, indicates that such arguments miss a vital point, namely the economics of representation. Where fill industry has a large number of small workplaces and/or a large nlll11hrr of casual employees the costs of individual representation are such Ihlll many individual workers will not be able to afford to hire their own non-union representative nor will unions have the resources particularly in poorly paid industries, to offer comprehensive services covering a multitude of small workplaces. Many industries dominated by women have the characteristics just identified. In the past, industry awards provided economies of scale which enabled relatively comprehensive coverage of such workers (whether unionised or not). Under A W A’s women may be forced to negotiate virtually all terms and conditions on a one to one basis.

The Re-establishment of Social Justice
What is necessary to preserve the tradition in which Ryan worked and wrote? When Ryan wrote, the issue of gender was raised within a particular social structure. That structure has now been rendered problematic. Many state and non-state institutions are now in the process of having their role redefined. The state’s role in providing social supports for children, the aged, those with disabilities is being wound back as families are urged to meet ‘their’ responsibilities. We know that such burdens fall solely, or, at least disproportionately, on women. In the field of industrial relations, legislative changes are expanding managerial power, eliminating or undermining conditions won over the last hundred years and threatening the existence of independent unionism.

There is now a great deal of valuable work on the effects of economic rationalist policies. But we need to do more than react. Women need to understand more about how male institutions work so that we are better prepared for their counter-strategies (which, as any reading of the history of gender and work shows, are constantly changing).

It is necessary to understand the ‘success’ of economic rationalism and to work out a social, economic and political alternative that will not leave us vulnerable to its reintroduction. In order to do this it is necessary to focus not simply on the re1ationship/s between men and women but on the relationships between male-dominated institutions and organisations.

Many of the questions raised are economic in nature and, as Pusey and others have shown, we can no longer leave economic issues to economists when their field is dominated by ahistorical and crude constructs such as neoclassical economics. It is necessary to go beyond critiques of the dismal science.

Questions to be asked include:

  • What factors led to the demise of Keynesian economics and what alternatives presently exist to economic rationalism?
  • What obstacles exist to the financial autonomy of nation states such as Australia? How, if at all, can they be dealt with (international financial markets, IMF, economic ideologies, economic power blocs)?
  • What are the economic effects of the retreat ITom arbitration and the adoption of economic rationalism on different sectors of the economy? Political questions linked to the above economic ones include:
  • How can political coalitions be established which favour social justice? How can (at least some of) the opposition be neutralised? Given the weakening of the union movement (density declines etc) this is particularly important. The push to arbitration in the late nineteenth and early twentieth century was given a major impetus by the shared interests of large manufacturers and unions in having a common floor under wages and conditions, to impede undercutting.
  • What shared interests exist, or can be constructed, today? What about neutralising small business?

Whilst Keynesian economfcs held sway internal demand was a cyclical and sectoral problem for small business but not a systematic one. Now that wage control through a~bitration has been replaced by a mix of monetary policy, small government and anti-unionism (all of which depress wages, employment and internal demand, particularly for nonluxury items) what are the consequences for small business who do not rely on exporting; or for the retail sector?

To defend, preserve and extend the gains made by women such as Edna Ryan, we need to understand not just women or the relationships between men and women; we need to understand the relationships between different groups of men, and of male dominated institutions, and how they impact on women.

NOTES

  1. Management-oriented women, eco-consultants and conservative women often tell employers, for example, that they cannot afford to ignore the talents of half the population and that gender equity is good business practice. Clearly they have been reading too many mission statements and press releases about how a business’ most important ‘resource’ is its workers. Actual business practice, however, often suggests a rather different view of the worth of workers (whether male or female). ‘Good business practice’ with respect to male employees involves downsizing, outsourcing, work intensification, deunionisation etc. whenever possible.
  2. Buchanan, J. & Watson, I. (1997), A Profile of Low Wage Employees, Working Paper no.47, Australian Centre for Industrial Relations Research and Training, 7, see Table 3.
  3. Buchanan and Watson (1997),5.
  4. Buchanan and Watson, (1997), 7, Table 3.
  5. Campbell, I. (1996), ‘Casual Employment, Labour Regulation and Australian Trade Unions’,Journal of Industrial Relations, 38(4),576.
  6. Bennett, L. (1994), Making Labour Law in Australia. Industrial Relations, Politics and Law, The Law Book Company, 201.
  7. Ryan, E. & Conlon, A. (1975), Gentle Invaders. Australian Women at Work 1788-1974, Nelson, 170-71.
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