The gender pay gap is an enduring barrier to gender equality. In short, men are paid more than women for the same work.
According to the Workplace Gender Equality Agency (WEGA), the average full-time female employee in Australia is paid 17.7% less a week than a male. This gap has been between 14-19% for the past 20 years and is even higher in the legal profession, at 35.6%. The gap is an astounding 141% for female barristers – the widest of any Australian occupation. At current rates, it would take another 170 years to close the global pay gap between men and women.
Sex discrimination continues to be the single largest factor contributing to the pay gap followed by industrial and occupational segregation. The pay gap is made up of more than just differences attributable to parental absences. It is a consequence of structural inequities such as gender segregation, a lack of pay transparency and unconscious bias. Pay inequity negatively impacts superannuation contributions.
Last year, Victorian Women Lawyers (VWL) made submissions to the Senate Inquiry to address pay equity. VWL identified that increasing pay transparency enables women to better negotiate their salary and reduce concealed discrimination. Generally, female lawyers underrate their ability in pay discussions. The gender pay gap is significantly lower in the public sector which may be due to greater wage disclosure and employee pay bands.
VWL endorsed the Fair Work Amendment (Gender Pay Gap) Bill 2015 to amend the Fair Work Act 2009 (Cth). The Bill sought to prevent employees covered by the Fair Work Act from being barred from discussing their pay openly with colleagues. Specifically, it provided that:
‘…a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term (a) prohibits an employee from disclosing the amount of, or information about, the employee’s pay or earnings; or (b) permits, or has the effect of permitting, an employer to take adverse action against an employee if the employee discloses the amount of, or information about, the employee’s pay or earnings.’
The Senate Inquiry into the Bill lapsed in 2016 and, disappointingly, there has been no formal move to revisit this issue.
Women leaders reduce the pay gap
The gender pay gap increases as women progress in their careers, and remains the highest for managers. Each year, women attain higher rates of education and labour force participation. Most law graduates, lawyers and senior associates are female- yet fewer make it to senior leadership positions than their male counterparts. The gender pay gap falls up to 3% when companies increase the proportion of women in leadership positions. Reformative dialogue is needed to drive out behaviours that contribute to the pay gap.
Female dissatisfaction reaching the upper echelons can contribute to the exodus of highly-educated women from the legal profession, which is a loss of both investment and talent. Women lawyers should be capable of remaining in a profession that sustains them and can that adapt to their needs.
The number of senior female barristers appearing in superior or appellate courts is disconcertingly low. Female senior counsel are heard in the Federal Court on average for 2.7 hours a year, compared with 119.7 hours for men.
Some progress is being made in law firms – in 2016, the number of female partners increased to nearly one in four, but there is still a long way to go.
Occupational and industrial segregation continues to be a significant contributing factor to the gender pay gap. Industries with a larger share of males receive higher salaries than those that are female dominated. Historically, women’s work has been undervalued. In addition, once women dominate a field, it can result in a devaluation of the roles in that field as society perceives that the prestige or difficulty of the role is tied to the level of pay.
Although occupational segregation has diminished since 2007, there has been an increase in industry segmentation, where the more profitable parts of an industry become male-dominated. That is, women are ‘systematically excluded from certain occupations, or encouraged to work only in certain industries or discouraged from pursuing particular college majors…these factors can statistically “explain” the gender pay gap but still represent social biases against women…[that are] unfair and worthy of criticism’. In the legal industry, men overwhelmingly make up the higher-income generating groups. Areas that are considered to be more profitable, such as finance, commercial litigation and infrastructure remain male-dominated.
Barriers to women’s employment and advancement in more male-dominated areas includes the tendency of some male managers to promote people like themselves, sexism and sexual harassment, less investment in female professional development (due to a perception that women will leave), some males resenting reporting to female managers and insufficient senior mentors for women.
Unconscious bias can surreptitiously influence decisions or behaviour, often without any evidentiary justification. Both sexes hold preconceptions that result in a woman being paid less than an equivalent man. WEGA director Libby Lyons asserts that the greatest reason for pay inequality is due to unconscious bias and discrimination. This ranges from males being unintentionally favoured when both genders are reviewing resumes, interviewing, hiring, negotiating salaries and awarding promotions.
WEGA encourages companies to adopt stringent processes and conduct gender pay gap audits. Last year, the Law Council of Australia set a national target for female barristers to be briefed in 30% of all matters and paid 30% of all brief fees by 2020. A range of firms have also adopted voluntary policies to ensure parity of briefing and initiatives such as blind resumes at the graduate recruitment level to neutralise bias.
Women’s careers are often punctuated by career breaks or part-time work arrangements. Women account for almost three quarters of the part-time work force. A common attitude to women taking time off work (including to care for children) is that it is considered a ‘kiss of death’ to a career.
Those that work flexibly are perceived as less dedicated to their job. This particularly disadvantages women because they bear the brunt of child-rearing responsibilities in Australia. Businesses must re-evaluate work practices for all staff to increase workplace mobility. Introducing flexible work practices can lower the wage gap between the sexes and could stimulate economic activity by up to 9%. To make workplaces more equitable, we must promote the retention of employees who take time off work and ensure that they return to their role in a sustainable manner. A positive sign of reform is that the proportion of part-time working females that fall within higher income brackets has increased since 2009.
Lower female wages also limit a woman’s ability to accrue super. Correspondingly, women’s superannuation contributions suffer if they take periods off work. This places further pressure on women due to the compounding effect of interest during a lifetime of wealth accumulation. As the current superannuation system is linked to paid work, it overwhelmingly disadvantages those who work part-time, do unpaid work or take career breaks. On average, Australian women retire with about half as much superannuation as men. Half of all women aged 45 to 59 have $8,000 or less in their super funds, compared to the male average of $31,000. WEGA data shows retired women are twice as likely as men to retire in poverty.
Sex Discrimination Commissioner Kate Jenkins underscored that the gender pay gap impacts savings and that this should be a key area of focus for the government.
Where to from here
More women than ever are in positions of authority – we should be proud that both the Chief Justice of the High Court of Australia and of the Supreme Court of Victoria are women. Female leaders can act as strong advocates and improve an audience’s capacity to listen. Senior female (and male) role models can assist in changing the minds of those in the legal profession and encourage more young females that a legal career is worth pursuing. Working towards internal goals to achieve pay parity will additionally help combat entrenched attitudes to women’s salaries.
Although some progress is being made, increased transparency, better education and profession-wide adoption of equal briefing practices are necessary to reduce pay disparity. It is the shared responsibility of business leaders and the workforce more broadly to ensure that social, cultural and generational change is enacted to combat this discriminatory divide.
It is 2017 and women lawyers should earn what they deserve – the same as their male counterparts.
Elena Tsalanidis is an Associate at the Supreme Court of Victoria and an executive board member of Victorian Women Lawyers.
 Gender Industry Insights, WEGA, 2017, 15; Gender Pay Gap Statistics, WEGA, March 2016, 2.
 World Economic Forum 2016, Global Gender Gap Index 2016; WEGA 2016, Gender Pay Gap Statistics, August 2016.
 WGEA data based on the 2013/14 reporting period referred to by Misa Han, ‘Legal industry ranks poorly on pay equity’, Australian Financial Review (online), 28 November 2014, <http://www.afr.com/news/policy/industrial-relations/legal-industry-ranks-poorly-on-pay-equity-20141127-11volg>.
 She’s Price(d)less: The Economics of the Gender Pay Gap, 28 October 2016, KPMG Australia (‘KPMG Report’), 1.
 KPMG Report, 12 [4.4].
 Gender Pay Gap Statistics, WEGA, March 2016, 6.
 Employee Earnings and Hours, Australian Bureau of Statistics, 6306.0, May 2016.
 Gender Equity Insights 2017: Inside Australia’s Gender Pay Gap, WEGA, 15 (‘WEGA Report’).
 KPMG Report, 28.
 WEGA Report, 56.
 Riaza Rigby, ‘Five ways to keep women in the law’, Law Institute of Victoria (Online), 1 September 2016 < https://www.liv.asn.au/Staying-Informed/Young-Lawyers-Journal/Young-Lawyer-s-Journal/September/Five-ways-to-keep-women-in-the-law>.
 A 2009 report by the Law Council of Australia; see Michaela Whitbourne, ‘NSW Bar push for national targets for briefing women barristers’, Sydney Morning Herald (online), 2 September 2015 < http://www.smh.com.au/nsw/nsw-bar-push-for-national-targets-for-briefing-women-barristers-20150902-gjd3q8.html>.
 WEGA Report, 41.
 WEGA Report, 59.
 KPMG Report, 13.
 Dr Andrew Chamberlain, Demystifying the Gender Pay Gap, Evidence from Glassdoor Salary Data, March 2016.
 KPMG Report, 33.
 CEDA, ‘Unconscious bias stalling gender progress’, (Media release) <http://www.ceda.com.au/2016/11/unconscious-bias-stalling-gender-progress>.
 Robert Wood, ‘Unconscious bias and its impact on the gender salary gap,’ The Conversation (online), 13 November 2014, <http://theconversation.com/unconscious-bias-and-its-impact-on-the-gender-salary-gap-32324>.
 KPMG Report, Gender Pay Gap: By the Numbers.
 ‘Taking a career break’, College of Law (online), 20 February 2015, <https://www.collaw.edu.au/new s/2016/11/18/taking-a-career-break>.
 KPMG Report, 2.
 KPMG Report, 25.
 Kate Jenkins, ‘International Women’s Day – 8 March 2016’, Victorian Equal Opportunity and Human Rights Commission (online), <https://www.humanrightscommission.vic.gov.au/home/news-and-events/commission-news/item/1372-international-womens-day-2016-equality-is-not-the-same-%E2%80%93-it-is-fairness>.
 Tracy Bowden, ‘The Superannuation gender pay gap: women struggling to put enough aside for retirement’, ABC (online), 21 April 2016, <http://www.abc.net.au/news/2016-04-21/super-gender-gap-leaves-australian-women-struggling/7346764>.
 KPMG Report, 1.