It is difficult, if not impossible to see how the recently passed Equal Pay Amendment Act could be all about empowering women as allegedly claimed by the minister in charge.
The explanation note to the Bill claims its purpose "is to achieve a better regulatory framework for parties to a pay equity claim to assess whether there is sex-based undervaluation".
One may ask: better for who?
The changed-for-the-better framework includes such things as a robust process for raising claims, clarity on the appropriateness of comparators to assess sex-based under-remuneration, sustainability for employers to meet their obligations and the right incentives to encourage parties to resolve pay equity claims.
Possibly all fair enough at face value, although the tilt at sustainability for employers is a bit of a giveaway.
The same explanatory note goes on to include such things as increasing the threshold for raising a pay equity claim, greater evidentiary burden on claimants, increased opportunity for employers to opt out and an obligatory assessment of market factors. Clearly a strong shift in sentiment towards the employer.
This factor is emphasised by an expressed intention of the legislation to ensure a robust process to ensure appropriate scoping of claims and comparators so that employers can meet their obligations "in a manner that is sustainable".
Coupled with the fact that the legislation strikes out numerous pay equity claims in the pipeline and, according to the soon-to-be deputy prime minister, has created savings on a scale to "save" the upcoming Budget. It is not difficult to argue that the story line of support for the legislation is a far cry from reality and dresses the Act as something it is not.
As Sir Ian Taylor so eloquently points out (ODT 12.5.25), if women are empowered by the legislation, it is certainly not those in the lower-paid but essential services he describes.
That the government is empowered to pass the legislation under urgency is not at issue. What is at issue is the increasing use of urgency by successive governments to push through legislation in furtherance of their agendas, walking over, not around, due process.
It is of concern that the current government, approaching the halfway mark of its three years in office, has now utilised urgency 23 times. This approaches the last government’s record 28 times during its term in office.
One could argue that resorting to urgency on this scale is both unwarranted and a direct assault on necessary due process under our rules-based system of government.
This is a constitutional matter, among a number which we face in the country at this time, and requires serious, thoughtful and non-partisan consideration. Something that should be driven by the public at large to encompass our growing maturity and diversity.
The Westminster system of democracy so often lauded by segments of the body politic embodies not one but two deliberating bodies, as does our next-door neighbour’s.
Restoration of this element would fetter such ready resort to the adoption of urgency by successive governments simply to undo the legislative programme of its predecessors.
• Noel O’Malley is a Balclutha lawyer and is a past president of the Otago District Law Society.
