13ZYParties may apply for determination by Authority

1. A party to a pay equity claim may apply to the Authority for determination of any matter that relates to the pay equity claim, including, but not limited to, the following:

2. a determination as to whether the pay equity claim meets all requirements set out in section 13E other than the requirements to which paragraphs (b) and (c)(i) apply:
3. a determination, for the purposes of section 13E(6), as to whether a pay equity claim may be raised within 10 years after the date of a pay equity claim settlement if the claim would relate to any or all of the employees covered by the pay equity settlement and the work to which the settlement relates:
4. a determination as to whether, for a claim raised by 1 or more unions on behalf of 2 or more of an employer’s employees, all of the employees covered by the claim perform work that is the same or substantially similar—
   1. for the purpose of a dispute concerning an employer’s decision under section 13PB; or
   2. for the purpose of a dispute concerning an employer’s decision under section 13ZEB:
5. a determination as to whether an employee’s work is the same as, or substantially similar to, work that is the subject of a pay equity claim raised by a union with the employee’s employer, for the purposes of determining whether or not the employee is, or is to be, covered by the claim:
6. a determination as to whether the pay equity claim has merit (see section 13F):
7. a determination as to whether the work to which the claim relates is undervalued:
8. a determination as to whether 1 or more comparators selected under section 13ZE are appropriate comparators:
9. a determination as to whether any appropriate comparators are available for selection for use in assessing a pay equity claim (see section 13ZEA):
10. a determination that fixes remuneration that does not differentiate between male and female employees in the manner set out in section 2AAC(b):
11. a determination as to whether remuneration agreed by the parties should be increased to the agreed level in phases and, if so, as to the number of phased instalments, their amounts or proportions, and their timing (over a maximum period of 3 years from the date of the pay equity claim settlement).

12. On receiving an application under subsection (1), the Authority—

13. must first consider whether an attempt has been made to resolve the difficulties by the use of—
    1. mediation or further mediation under section 13ZO; or
    2. facilitation under sections 13ZQ to 13ZX; and
14. may direct the parties to try to resolve the difficulties by mediation or further mediation; and
15. may, if 1 or both of the grounds in section 13ZR(2) exist, direct that facilitation be used before the Authority investigates the matter, unless the Authority considers that use of facilitation—
    1. will not contribute constructively to resolving the difficulties; or
    2. will not, in all the circumstances, be in the public interest; or
    3. will undermine the urgent nature of the process; or
    4. will be otherwise impractical or inappropriate in the circumstances.

16. Subsection (2)(c) does not apply to an application for a determination under subsection (1)(a), (b), (c)(i), or (e).

17. If an application is made for a determination under subsection (1)(b), the Authority or the court—

18. must have regard to the existing pay equity claim settlement; and
19. may determine that the claim may be raised only if satisfied that there are exceptional circumstances.

20. If an application is made for a determination under subsection (1)(f), the Authority or the court may take the following into account:

21. the reasons for historical undervaluation set out in section 13F(2):
22. in relation to continued systemic undervaluation, all relevant matters including the reasons set out in section 13F(3):
23. the requirements set out in section 13ZD for assessing a pay equity claim.

24. If an application is made for a determination under subsection (1)(i), the Authority must also specify that remuneration is to be increased in 3 annual phases of equal amounts or proportions starting at the date of the pay equity claim settlement.

25. If an application is made for a determination under subsection (1)(j), the Authority or the court must take into account—

26. the conduct of the parties; and
27. the ability of the employer to pay; and
28. the size of the increase in remuneration; and
29. any other matter the Authority or the court considers relevant.

30. Despite subsection (1), the Authority may not make a determination—

31. in relation to an employer’s decision under section 13L to opt out of a multi-employer pay equity claim (see section 13L(10)); or
32. in relation to the failure of parties to agree whether to select a previously settled pay equity claim under section 13ZE(4) as an appropriate comparator for their assessments under section 13ZD; or
33. that provides for—
    1. recovery of an amount of remuneration that relates to work performed before the date of the determination; or
    2. the review, or a process for the review, of a pay equity claim settlement.