CTU President: All the way for equal pay

Written By: - Date published: 10:01 am, August 12th, 2017 - 29 comments
Categories: national, same old national, Unions, workers' rights - Tags: , , ,

A week of action on equal pay starts today – there are events all around the country. We’d love to see you there

Watching the Minister for Workplace Relations, Michael Woodhouse, introduce the Employment (Pay Equity and Equal Pay) Bill, it struck me that the fightback against equal pay has now started in earnest.

The Government finds itself in a sticky situation. The ground-breaking legal victory that E tū won in the Court of Appeal on behalf of Kristine Bartlett was an affront to their pro market conservative instincts. They want to use their power to change the law, to stop it happening again, but they worry that some of their voters are… well, women.

Women who appreciate the right to legal recourse, appreciate the occasional need for apparent judicial activism and appreciate the Kristine Bartlett decision in particular. So the Government have cooked up something pretty special.

Because it’s not been going their way recently.  Once the Government ran out of legal options or couldn’t support any more legal appeals (a story in itself), they were on the back foot from the start when they sought to negotiate a settlement.

From a union point of view, if we couldn’t get a decent outcome at the negotiating table, we would simply head back to court and let them decide. The more the court was asked to rule, the harder it would be and the worse it would look for the Government to change the law retrospectively.

We quickly succeeded in broadening the settlement to include disability and home support workers. The Ministry of Health baulked at extending it to mental health support workers,  but the deal still swelled to $2 billion, spread over 5 years, to cover 55,000 low paid, woman (mainly) workers.

There was also a Joint Working Group (JWG) established, that was a tri–partite process, chaired by Dame Patsy Reddy, and including union (CTU), Business NZ, and Government (MBIE and SSC) representatives, to set principles for all future equal pay cases.

While not perfect, all parties in the JWG signed off on principles in May 2016 (PDF) – they reflected the Court of Appeal judgement and were consistent with the 1972 Equal Pay Act. There were some robust conversations in the JWG but we agreed we wanted an easy, accessible process that would enable further successful claims.

We also discussed at length whether the 1972 Act should remain. There were a variety of views but we settled on advising the Government that the 1972 Act should be amended to accommodate the JWG principles.

At the 11th hour, government representatives in the JWG proposed that the principles should include a limit for choosing job comparators, restricting the choice of comparators to jobs in the same enterprise in the first instance. We couldn’t reach an agreement on that and, while the JWG’s covering letter to Paula Bennett refers to this disagreement, the Principles themselves do not include any suggestion or reference to a hierarchy of comparators.

And now, having not got what they wanted, National are back for a third bite of the cherry. It appears they will not rest until they paid full and final lip service to equal pay.

Despite what National say, Minister Woodhouse’s bill breaks the JWG’s principles in at least five critical ways.

First, the JWG only ever suggested amending the 1972 Act, not completely repealing it as they now intend.  During the negotiations we were extremely concerned that, given the chance, the Government and their allies would love nothing more than to pick apart the Equal Pay Act and ultimately undermine its purpose.

Secondly, the Government has re-introduced a hierarchy of comparators (previously knocked back at the 11th hour). Instead of the current 1972 Act, which promotes the idea of finding relevant and appropriate comparators, this bill forces women to compare their jobs with others nearby – firstly in the same enterprise, secondly sector, thirdly industry and finally the wider economy. It’s a scheme they couldn’t get over the line in the JWG, and it will  severely curtail the ability of women to take a claim – because enterprises (and sectors or industries for that matter) who employ historically low paid female labour tend to pay all of their staff poorly and won’t provide fair comparators.

This problem explicitly played out in the Terranova Bartlett case, where the employer tried to compare the Kristine Bartlett’s role to that of a male gardener Terranova employed. The employment court, under the 1972 Act ruled this comparison out.

Thirdly, in contrast to the Principles, the new Bill creates a further barrier for anyone making a claim. Instead of a simple two stage process, the Bill sets up a list of tougher criteria that must rather than may be met, including the introductions of completely new hurdles pertaining to the operation of the free market.

Fourthly, the JWG did not in any way propose any reduction in a claimants rights to backpay. It was never discussed and it would never have been agreed. Yet the Bill does just that and only allows pay equity claims for unlawful and discriminatory pay to be backdated to the time the claim is raised. This is at odds to other laws which enable back pay for up to 6 years when the law has been broken.

And finally, the transitional provisions in the Bill mean that any existing claims lodged in the Courts and any new claims lodged between now and the Bill becoming law will be scrapped and have to be restarted under the new weaker law. In other words, they have effectively suspended existing legal claims.

So the Minister can say in Parliament that his Bill is based on the JWG – but that is false. What is true is the current Minister and his National Government cannot seem to bring themselves to accept equal pay.  They have had an extraordinary opportunity to make good on the historical Court of Appeal judgement, and finish the job by amending the 1972 Act properly and consistently with the JWG principles and the Court of Appeal Judgement.

This week the National Governments Employment (Equal Pay and Pay Equity) Bill passed its first reading by the hair of its teeth – a single vote.

But when tested they’ve been exposed yet again. Making our country a more equal place has never been in National’s DNA. And so they have responded to an historic Court of Appeal judgement, with a historic judgement of their own, one that missed a great opportunity and confirmed National’s brand as conservative and reactionary. History will not judge them and their supports well.

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29 comments on “CTU President: All the way for equal pay ”

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  1. Adrian Thornton 1
    12 August 2017 at 10:47 am

    Thanks for that informative piece Richard, I have been following this whole sad affair pretty closely, and of course been unsurprised at Nationals underhand tactics, and the lack of media coverage, let alone them digging down on this.

    I would also like to point out that while we all know that National are naturally ideologically opposed to workers rights and conditions, however we should remember that Labour is also guilty of defending the rights of a free market over worker rights.

    Here in the Hawkes Bay Labour actively promote the RSE scheme which is being used cynically by the booming orchard industry to suppress any natural wage growth.
    Apple pickers haven’t had a increase in bin rates for something like 15 years, meaning that most pickers will average out earning LESS than minimum wage…the pack houses are full of workers, all on minimum wages.

    Seems like a real workers party does not exist in NZ today…maybe the Greens might morph into one?, Labour certainly show no signs of being that party.

    https://www.immigration.govt.nz/employ-migrants/hire-a-candidate/options-for-repeat-high-volume-hiring-new/recognised-seasonal-employer

    http://www.nzherald.co.nz/hawkes-bay-today/opinion/news/article.cfm?c_id=1503459&objectid=11720136

    • lprent 1.1
      12 August 2017 at 12:40 pm

      You’re comparing a government that didn’t make it worse and seemed to at least make it better with one that is attempting to make it a lot worse.

      Yeah – I can see how a lack of perspective could make that comparison… 😈

      If you look at who voted against this bill in its first reading, I think you have a selection of parties opposed to making it worse to select from,

      • Adrian Thornton 1.1.1
        12 August 2017 at 1:31 pm

        Labour did not make it better for orchard workers, they made it worse, they introduced the RSE scheme.
        It’s not a lack of perspective, it is a view from the perspective of a citizen who is seeing his some of his friends, family and large parts of his community being turned into some sort of low wage labour camp solely to facilitate increased profits for the orchard industry, with the active support of The Labour Party.

        my point is, yes we know National is fucked, but to a lesser degree so is Labour, and I for one am sick of supporting the lesser of two evils.

        Was hoping that the Greens where going to go into the election, expanding it’s narrative to include giving voice to the working poor, renters etc… fighting hard against the man with it’s two leaders side by side….now that sounded like a fight worth getting into the trenches for, maybe the Greens will still take up that gauntlet?

        • Draco T Bastard 1.1.1.1
          12 August 2017 at 1:46 pm

          now that sounded like a fight worth getting into the trenches for, maybe the Greens will still take up that gauntlet?

          They have.

          Or, if we’re really going to get in to the chivalrous duelling mode, then we can say that it was the Greens that threw down the gauntlet. It was National, the MSM and even Labour who then attacked without picking it up and thus defending the status quo.

  2. Upnorth 2
    12 August 2017 at 10:57 am

    I agree labour had nearly a decade to sort this mess out. Good on national to at least be trying

    • Draco T Bastard 2.1
      12 August 2017 at 11:46 am

      National are purposefully making it worse.

    • lprent 2.2
      12 August 2017 at 11:50 am

      It wasn’t like National had any choice about trying to fix this “mess”. They fought against it in the courts for most of this decade in one form or another, eventually losing.

      Now they are trying to do an end run around the principle that the courts recognised with an appalling bit of legislation that doesn’t affirm that principle of equal pay for equal work. It appears to be designed to use the statutory powers of parliament to override the courts by selecting strange comparisons for the ‘equal work’. The effect is to put working woman in their place – badly paid and at the bottom of the heap and under misogynist pricks.

      Your pitiful spinning hardly conceals that. Eh – dickhead?

    • greywarshark 2.3
      12 August 2017 at 12:09 pm

      Yes National and you Upnorth are VERY trying.

    • weka 2.4
      12 August 2017 at 12:41 pm

      “I agree labour had nearly a decade to sort this mess out. Good on national to at least be trying”

      That would have to be one of the stupidest comments I’ve seen here lately. National have done everything they can to resist sorting it out.

      Further where do you think that National is going to get the money from to pay for govt funded workers? Seen a good plan on this? Want to start making connections between the immediate rise in pay rates and the cap on the Health budgets? What do you think is going to happen next?

      National are not only ideologically fucked in the head, but they’re basically incompetent to run a country now. Removing homehelp from the elderly or feeding cheapshit meals to hospital patients is not going to save them from the god almighty mess they’ve created here.

  3. Draco T Bastard 3
    12 August 2017 at 11:45 am

    Sounds like when National said that they were going to make zero hour contracts illegal and then went and tried to entrench them.

    • lprent 3.1
      12 August 2017 at 12:00 pm

      Same principle. The tactic is pretty similar. Convene a panel to look for a way forward. Then write some legislation that ignores most of the panel’s recommendations and claim that it was done by a wide selection of people rather than some dick in cabinet,

      Exactly the same procedure as the total screwup that was the Auckland supercity legislation where the royal commission’s rational decisions were almost totally ignored.

  4. Incognito 4
    12 August 2017 at 12:00 pm

    Good post albeit a little technical for me.

    Who voted in favour at the first reading: National, Te Ururoa Flavell & Marama Fox, Peter Dunne, and David Seymour?

    • lprent 4.1
      12 August 2017 at 12:35 pm

      Can’t see the Hansard?

      However E tū says just National, Peter Dunne and David Seymour voted for it. Everyone else including the Maori party voted against.

      http://www.etu.nz/article.php?group_id=1322

      E tū says the government will face strong opposition to its Employment (Pay Equity and Equal Pay) Bill which had its first reading in parliament today.

      The bill passed with the support of National MPs, Peter Dunne, and David Seymour, but Labour, the Greens, New Zealand First and the Maori Party all voted against it.

      E tū Assistant National Secretary, John Ryall says the voting shows opposition to the bill across a broad spectrum of political parties and the citizens they represent.

      He says E tū expects a strong response, as women fight back for equal pay.

      “The care and support workers equal pay settlement gave tens of thousands of low-paid women workers hope that after 45 years of the Equal Pay Act they would finally have their work valued and paid properly,” said John.

      “This bill, if passed in its current form, will make it very difficult for these women to ever get justice.”

      John says the bill would also nullify the Equal Pay case for mental health support workers, which E tū and the PSA have lodged with the Employment Relations Authority.

      “The bill means they would have to start again through a long and complex process to prove they have a pay equity case, and secondly to find appropriate comparators to make their case,” says John.

      Mental health support worker, Sandra Rawenata says: “It will make it tougher for us. It means a lot more work, a lot more campaigning and another five-year run by the looks of it and that’s not fair.”

      John says the bill is incompatible with the principles and processes agreed by the Joint Working Group on Pay Equity, as well as the Court of Appeal ruling in Bartlett v Terranova, which resulted in the Equal Pay Settlement.

      He says E tū wants to retain the Equal Pay Act 1972, though it would need updating and would need to include the Joint Working Group principles.

      “Instead, we’ve got a bill that looks designed to ensure no other women get a fair pay day in the way care and support workers have. This is a poor law from a government which has made it clear it doesn’t care about equal pay for women.”

      • Rosemary McDonald 4.1.1
        12 August 2017 at 2:03 pm

        “Everyone else including the Maori party voted against.”

        Hah!

        Back in 2013 the Maori Party voted with the government to tell disabled people and their chosen family carers to fuck off.

        But then…they had a $1.2 billion sweetner.

        Sigh. 🙁

        The cupboards are bare, so cynical Mother Hubbard needs to go shop. Pity…this is just getting interesting.

  5. greywarshark 5
    12 August 2017 at 12:26 pm

    Seems predictable. A chicken entrails diviner could have foreseen all this decades ago. Time for a change of government. All this predictability makes a majority of us sad and that’s bad. There will be Nats who do agree that the care workers should be paid more, but they don’t have the freedom or the strength of mind to change horses from conformist to ‘gasp’ rebel.

  6. Rosemary McDonald 6
    12 August 2017 at 12:42 pm

    Firstly Richard, you have big shoes to fill. Helen set a very high bar.

    Fearless, loud and repeated advocacy requires deep commitment and/or personal experience of the issue at hand.

    What you describe here is neither new or novel in the New Zealand arena of human rights and employment cases.

    The original claim, the ensuing court cases and the celebratory headlines heralding victory and then the growing shock when one finally realizes that the Government has managed to snatch victory from the jaws of their defeat.

    I won’t ( and I have time commitments that also prevent it) contribute the many column inches I’d need to educate you on the previous case where there has been this atrocious and vindictive reaction from Government to having lost in the Courts.

    Instead I’ll donate a few links for you to read, or ignore.

    Geddis describes it best here….https://www.pundit.co.nz/content/i-think-national-just-broke-our-constitution

    and again….https://www.pundit.co.nz/content/theres-none-so-deaf-as-they-that-will-not-hear

    and again, here….https://www.pundit.co.nz/content/a-little-something-for-the-weekend-now-with-pictures

    and over on Public Address…..https://publicaddress.net/onpoint/what-andrew-geddis-said-but-shorter-and-with/

    and from a personal point of view, here…https://publicaddress.net/access/paying-family-carers-what-was-all-the-fuss/

    and here…..https://publicaddress.net/access/family-carers-case-five-years-on/

    and here….https://publicaddress.net/access/the-family-carers-case-here-we-go-again/

    and also here….https://publicaddress.net/access/funded-family-care-from-a-recipients-perspective/

    It is very possible that you will take the line that I am not a disability support worker in the real sense….and I might have time later on to debate that with you.

    The Miserly of health would agree…..http://www2.nzherald.co.nz/northland-age/news/article.cfm?c_id=1503402&objectid=11845201

    The parent carer in the above article attended the meeting in Kaitaia to discuss the Pay Equity decision and was unfortunately made to feel by the organisers there was no place for her and her issues in that environment.

    We family carers have no union.

    We have no organisation/NGO/advocacy group supporting us.

    The Human Rights Commission and the Office of Human Rights Proceeding have been staunch…but have sometimes been broadsided by the sheer….shittiness, for want of a better word…of the Misery of Health and Crown Law.

    The disability advocacy groups have largely ignored us and Carers NZ failed to come on board until the 2013 legislative atrocity. Even then it was short lived noise making…. dependency on continued government funding has ensured that those groups who should back us, won’t.

    Don’t even think about giving me a lecture on neo liberalism….the NZ Government cut its neo liberal teeth on NZ disabled. Privatising out all levels of support…even assessments…and throwing the disabled into the jaws of the ravening beasts of profit driven providers.

    Who failed…many many times.

    They neglected and abused, and in more cases than you’d probably believe, killed the vulnerable persons they were paid shitloads to support.

    • Acting up 6.1
      12 August 2017 at 1:19 pm

      Crikey, Rosemary McDonald – condescending much? Richard Wagstaff, before becoming CTU president, was a leader of another union that has fought hard for equal pay – the PSA.

      I don’t think there is much more education on this matter, and on how the Nat govt responds to challenges, that Richard needs. He has very strong commitment to this issue; as does the entire CTU.

      • Rosemary McDonald 6.1.1
        12 August 2017 at 1:42 pm

        I was not intending to be condescending.

        I am merely pointing out that none of what Richard writes is not new to those of us who are considered to be the lowest of the low or no pay workers.

        Family carers of non ACC disabled Kiwis with high, very high and complex care needs who have chosen to live in their own homes with loving , trusted and (most importantly) skilled family as their carers.

        I could, if I wanted to inflame this, spend hours searching for the instances where the PSA have actually put the rights of their members before the rights and safety of disabled people.

        Or try to find one, just one public statement from any union supporting the Family Carers case.

        Richard has to focus on the paid up members of his union. Fair enough.

        But be historically correct and acknowledge that before the Government shafted them…they shafted us.

        The government was always going to want the narrative out there that the elderly and those who are paid to care from them deserve, yes deserve to be valued and properly remunerated.

        But disabled people, or those suffering from mental illness living in the community (where let’s face it its cheaper)….????

        Not quite so much public sympathy there.

        We really need to be able to see past the tribal boundaries and acknowledge how close our issues are, and who the real enemy is.

      • Chris 6.1.2
        12 August 2017 at 1:43 pm

        Rosemary’s right. It was also a Labour government that was around when both the carers and the sleepover cases first arose. In the latter case Labour stepped back and let IHC turn it into an employment matter. Then after how ever many years when IHC went down Labour MPs celebrated by saying “we won”. Absolutely sickening.

        • Rosemary McDonald 6.1.2.1
          12 August 2017 at 1:54 pm

          “sleepover cases…”

          I was going to include that case Chris…but felt it was not my place.

          Anecdotally…weren’t a whole lot of night care workers denied back pay because they were not members of the union and were not informed of the deadline to apply?

          My first hand knowledge of this issue is sketchy…but at the time I commented somewhere that a shit ton of legal wrangling and backroom finagling could have been avoided if the MIserly of Health had taken a look at what ACC was funding for sleepover care (about quadruple what IHC and others were paying)
          and matched it.

          Now, both MOH and ACC have to pay an hourly, taxed rate.

          I doesn’t have to be so hard to sort this shit out fairly and sustainably.

          In our case…it boiled down to entitlement to funding for care to meet support needs and the right to live where you choose.

          Big issues there.

          • Chris 6.1.2.1.1
            13 August 2017 at 6:53 pm

            IHC fought it as an employment case when they should’ve gone back to government saying the contracts were shonky because both parties weren’t aware of the true costs of providing the care. If both parties to the contract weren’t aware of the facts then surely those contracts can’t stand. Instead IHC tried to bully its way out of it in its usual corporate attack way of doing business. It’s not surprising IHC is now colluding with its filthy right wing mates by buying up every bit of state housing it can. IHC has become the most evil and hypocritical NGO in the history of this country.

  7. Eco maori 7
    12 August 2017 at 4:41 pm

    Those Muppets in Power haven’t figured it out that it’s better for the country and economy to pay more money to the lower classes informs of benefits and equal pay for women and a living wage $20 hour.
    They gave tax cuts to the rich expecting the tax cuts to stimulate the economy the wealthy invest all there money . The lower classes spend most of there money and that boosts tax revenue not rocket science is it

    • tc 7.1
      12 August 2017 at 8:22 pm

      No they gave tax cuts so the rich would have more money to Hoover up investment property, take a bigger overseas holiday and buy more imported luxury goods.

      None of that stimulates the economy. They ain’t stupid, ‘trickle down’ is a debunked theory they told their MSM puppets to sell it as.

      Blinglish got hung out to dry by Beatson on this point, they knew the GST lift would adversely impact the lower classes. As such zero analysis on it was done so there’s no research just conveniently suitable rhetoric.

  8. Karen 8
    12 August 2017 at 6:12 pm

    I was at the Auckland rally today along with about 300 others – a few men but nearly all women.

    Michelle A’Court was the MC then speeches from Jan Logie (Greens), Cinnamon Whitlock (Māori Party), Jo Goodhew (Nats) ,Tracey Martin (NZF). finishing with Jacinda Ardern.
    This is the TVNZ report:
    https://www.tvnz.co.nz/one-news/new-zealand/labour-not-rest-until-we-have-pay-equity-jacinda-ardern-gives-passionate-speech-equal-auckland-rally-v1

    Jan Logie and Jacinda gave by far the best speeches, though Tracey was okay. Jo Goodhew was listened to respectfully until she said she was there on behalf of Paula Bennett – cue loud booing. Tracy intervened and said Jo had been brave to turn up to what was obviously going to be a hostile crowd and everyone (mostly) listened in silence until she said that the legislation had passed the first reading but couldn’t be passed into law before the election. This was greeted by calls to change the government.
    Cinnamon made some good points about Māori and Pasifika pay rates being low for men and women but it felt like she was reading out an essay on the subject rather than delivering a speech. More worrying was that she indicated the Māori Party were only opposing a couple of aspects of the legislation but didn’t say what they were or what the party would do to increase equity.

  9. WILD KATIPO 9
    12 August 2017 at 9:02 pm

    Read a few articles about this briefly , and smiled when I read the one about Jacinda Adern in Auckland today.

    Now I am not a treehugger, I am not a feminist , – but I sure as bloody hell support any move that gives women equal pay / equitable pay . Especially so when doing the same work as a man. And as Adern said – work of the same value. I have just never understood the logic of that mentality that says its OK to rip someone off because they are male or female. Bloody pisses me right off tbh.

    And while we are at it , – that support extends to raising the minimum wage to the point where it actually becomes the Living Wage. Tied in with the old cost of living index and adjusted biannually for inflation .

    The way I see it, there’s been a free lunch for big business for the last 33 years , paying substandard wages, having their tax steadily decreased by increments , laws loosened to enable hijacking our natural resources etc etc… and its time these scumbags paid their dues.

    The carefully laid plans of the New Zealand Initiative are going to come back in time to bite them up the arse.

    The louder the scumbags squeal , the broader my smile.

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