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As we get ready for the thrills and (hopefully minor) spills of the upcoming festive season, it’s natural to look back and take stock of the preceding year. As we do so it’s heartening to think that, in at least one area, there is a growing mood for change to remedy a longstanding social injustice.
During the 2018 commemorations to mark the 125th anniversary of women winning the right to vote, some observers noted that the early suffragists’ call for ‘‘‘equal pay’’ had yet to be answered.
While legislation had long since prohibited express and lower female rates of pay in employment agreements, the concept of ‘‘pay equity’’ — equal pay for work of equal value — had been largely ignored by Parliament for over 40 years. Campaigners continued to highlight a persistent wage differential of 10%-12% between male and female rates of pay.
Yet following the crusading legal action of Kristine Bartlett in the aged care sector, a bi-partisan mood for change finally began to coalesce within Parliament.
The former National-led government set up a working group, including trade union and business representatives, tasked with developing principles that might underpin legislation to target historic and systemic undervaluation of pay in female-dominated industries.
Fast-forward to today and the Labour-led Government’s Equal Pay Amendment Bill utilises earlier National Party proposals by establishing a new pay equity bargaining process between claimants and their employer. The Bill does allow for the possibility of rates of remuneration being fixed by either the Employment Relations Authority or the Employment Court, but only in exceptional cases where a pay equity claim is established and the parties have exhausted all options for resolving the claim.
It appears that both the previous and current government effectively recognise that, following Kristine Bartlett’s swingeing victory before the Court of Appeal, establishing a pay equity bargaining process governed by good faith is preferable to pay equity claims being addressed through litigation.
As it stands, the current Bill represents an advance on National’s earlier proposals in regards to two key aspects. In establishing a simple and accessible process for progressing a pay equity claim, the Bill also removes any prospect of the floodgates opening on a tidal wave of claims by ensuring claimants first establish an arguable case. Only work that is predominantly performed by female employees and historically or currently undervalued can be subject to a claim.
Secondly, the Bill establishes a robust framework for identifying an appropriate male comparator so as to determine what an appropriate rate of remuneration might be for the undervalued work. The Bill reflects the earlier Court of Appeal ruling that, in order to define equal pay for work of equal value, it is essential to utilise a broad range of potential comparators. To do otherwise, by selecting comparators from the same or similar workplaces, would simply enable the perpetuation of low pay for female-dominated work.
The select committee charged with reviewing submissions on the Bill is due to report back to Parliament in the New Year. Inevitably, political parties will have their differences as to the final form the Bill should take. But overall the signs are Parliament is no longer prepared to tolerate ongoing discrimination in rates of remuneration based on gender. And surely, when we tally up the good things that 2018 has brought us, that’s something to celebrate?
- Jock Lawrie is a New Zealand Nurses Organisation employment lawyer.