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.