What Kind of Equality Can We Expect from the Fair Work Act?
Smith, Belinda, Melbourne University Law Review
[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 regime 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.]
CONTENTS I Introduction II Separate Regulatory Regimes A Labour Law, Socioeconomic Inequality and Redistribution B Anti-Discrimination Laws, Status-Based Inequality and Recognition III Equality Struggles--Maintaining Separation; Denying Connection A Labour Law--Provides Redistribution but Not on Status Grounds B Anti-Discrimination Laws 1 Institutional Support 2 Courts IV The Fair Work Act--A Blurring of the Distinction? A Right to Request Flexible Work Arrangements B General Protections V Conclusion
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? Will anti-discrimination laws eventually enable the groups that have historically been excluded from good jobs to take up a proportional share?
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. One question this raises is whether these different aspects of equality are truly separable and thereby able to be addressed separately or whether they are so intertwined that separation of one initiative from another can undermine the whole endeavour.
Sandra Fredman has noted that countries have traditionally addressed socioeconomic inequalities in society separately to status-based inequalities, such as gender and race. (1) Underpinning this characterisation of two forms of inequality is Nancy Fraser's analytical framework of dual conceptions of injustice:
The first is socioeconomic injustice, which is rooted in the political-economic structure of society. Examples include exploitation (having the fruits of one's labor appropriated for the benefit of others); economic marginalization (being confined to undesirable or poorly paid work or being denied access to income-generating labor altogether), and deprivation (being denied an adequate material standard of living). (2)
The second of Fraser's conceptions of injustice is 'cultural or symbolic' injustice:
Here injustice is rooted in social patterns of representation, interpretation, and communication. Examples include cultural domination (being subjected to patterns of interpretation and communication that are associated with another culture and are alien and/or hostile to one's own); nonrecognition (being rendered invisible by means of the authoritative representational, communicative, and interpretative practices of one's culture); and disrespect (being routinely maligned or disparaged in stereotypic public cultural representations and/or in everyday life interactions). (3)
Fraser labels the group of remedies for economic injustice as 'redistribution' involving 'political-economic restructuring of some sort. …