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

Melbourne University Law Review, Vol. 35, No. 2, pp. 545-577, 2011

Sydney Law School Research Paper No. 11/40

27 Pages Posted: 2 Aug 2011 Last revised: 26 Mar 2012

Belinda Smith

The University of Sydney Law School

Date Written: August 1, 2011

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

Suggested Citation

Smith, Belinda, What Kind of Equality Can We Expect from the Fair Work Act? (August 1, 2011). Melbourne University Law Review, Vol. 35, No. 2, pp. 545-577, 2011; Sydney Law School Research Paper No. 11/40. Available at SSRN: https://ssrn.com/abstract=1899368

Belinda M. Smith (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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