EQUAL PAY: THEORY AND PRACTICE IN TWO COUNTRIES
It is the contention of this chapter that the presence or absence of equal pay legislation, no matter how cleverly worded, will (and can only) have marginal effects upon the achievement of equal pay for individual women or for pay equity across any national labour force. This is because of the limited nature of liberal legal strategies based largely on individual remedies, because of the nature of wage bargaining structures and because of apparently intractable segregation issues in any national labour market. In this paper, those national labour markets are Australia and the Republic of Ireland. I have argued elsewhere1 that these individual remedies were introduced in Australia at a time of labour market deregulation and increasingly decentralised bargaining, in an attempt to deflect the criticism of vocal women’s groups. In the Republic of Ireland, these remedies were the result of external forces (namely, Ireland’s entry into the European common market) and domestic calls for equality for women.2 In both cases, the role of the State has been problematic and demanding of some theorisation for our purposes. This must be linked to an attempt to theorise law from a feminist perspective. Such is the power of law that very rarely do we question its ability to achieve our law reform aims.3 The political problem for feminists involved in the legal project, then, becomes one of whether we continue our political support for remedies of dubious value, which implies that the State has dealt with the ‘problem’, or stand outside the process, waiting for a more complete solution. Nicola Lacey has argued recently that we remain ‘inside’:
In endeavouring to engage in a little ‘material political advance’, I turn, below, to a brief examination of possible ways of conceptualising the State and the law from a feminist perspective and then I examine more closely the legislation and decided cases which should suggest improved remedies or other strategies. First, however, a little needs to be said of law and comparative method.