So close, yet so far: why the Pay Equity Bill won’t cut itSeptember 2017
JAYLAN BOYLE looks at the hasty introduction of the Employment (Pay Equity and Equal Pay) Bill and why unions believe the proposed legislation will make it harder, not easier, for women to make equal pay claims.
Just a few months ago, the signing into law of a two-billion dollar settlement deal with aged care workers felt like one of those rare moments when something might actually be getting done in politics, a nice break from the usual dogmatic bickering. It felt like sanity had finally prevailed, a mere 124 years after New Zealand women led the world in politically franchising half our population. It felt like one of the tenets that those brave Kiwis fought for – the right to equal remuneration – might be in danger of actually moving meaningfully forward, supported at last by political action as it is universally supported in principle. It seemed blindingly obvious that other sectors would take heart from such a precedent, and that more deals must surely follow.
Yet weeks after the Government inked the deal, a Bill was introduced into Parliament that many see as an attempt at pulling up the ladder ahead of other equity claims. The cross-party consensus that was seen as cause for optimism has seemingly gone up in smoke – Kristine Bartlett, the original complainant who joined forces with unions to push through the aged care deal, told newsroom.co.nz:
“[The Government] has reneged on what the initial agreement was when they set the principles and pay rates, and made it so much harder if ever there’s other guys going for it…
“That’s the disappointing part. I was so, so happy knowing that when this went through, when mine was put through, I was so excited, thinking ‘now all these other low-paid, women-dominated industries or workplaces can go and put claims in’. And of course, that’s all stopped at the moment. So it’s back to the drawing board again.”
Wolf or sheep?
The Employment (Pay Equity and Equal Pay) Bill was introduced to Parliament by Workplace Relations and Safety Minister Michael Woodhouse in late July, accompanied by a press release that was fairly light on detail. In the statement, Minister Woodhouse said:
“The Bill implements the recommendations made by the Joint Working Group and aims to address one of the material barriers to achieving pay equity… The Bill provides a practical and fair process for employees to follow if they feel they are not being paid what their job is worth.
“It will also make it easier for employees to file pay equity claims directly with their employers rather than having to go through the courts.
“To support an effective and efficient pay equity regime, the Bill includes regulation making powers that prescribe additional matters that can be taken into account when considering:
- whether a pay equity claim has merit
- matters that can be considered as part of a pay equity assessment
- identifying appropriate comparators.”
It’s the first and last sentences of the above excerpt that have attracted criticism from unions, academics, and political opposition. The Public Service Association (PSA), New Zealand’s biggest union by membership, released a statement in response with a fairly unambiguous leader: “National’s ‘pay equity’ Bill is a wolf in sheep’s clothing.”
In case there was any confusion as to the PSA’s stance on the Bill, national secretary Erin Polaczuk went on to say:
“It’s difficult to even call the new Bill by its given title – this piece of legislation has very little do with achieving equal pay and is much more about shutting it down before it gets going.
“The Bill… is being incorrectly presented to the New Zealand public as a pathway to equal pay. In fact, the Bill will make it significantly more difficult for workers in female-dominated occupations to pursue pay equity claims by placing new and unreasonably onerous requirements on claimants.
“The Bill as it stands has cherry-picked the positive notes from the Joint Working Group’s recommendations and spun them alongside law changes that actually limit women’s ability to achieve pay free from discrimination.”
The PSA’s principal objections to the perceived intent of the Bill are broadly representative of most criticism that’s been publicised, as follows:
- Onerous barriers to establishing the merit of equal pay claims before they can even proceed to be assessed.
- A new hierarchy of comparator roles that limits the ability of women to choose appropriate male comparators to help determine the true value of their work.
- The removal of the right to seek back-pay in all new pay equity claims, regardless of the extent and nature of the pay discrepancy.
- Transitional provisions that unfairly stilt current claims so that they would be judged retrospectively through the new proposed legislation.
Of course, education is one of those “women-dominated” professions that Kristine Bartlett is referring to, particularly at an ECE and primary level. NZEI Te Riu Roa president Lynda Stuart says that the Bill amounts to a betrayal of the principles that were agreed to within the Joint Working Group that sought to roadmap the way forward.
“Is [the Bill] an attempt to put a lid on the situation? I am thinking that that must be the case, because there was an agreement with government, business and union negotiators – they had a joint working group, they agreed on a set of principles that would guide pay equity negotiations. The Bill doesn’t reflect those principles, it doesn’t reflect a better process toward equal pay.”
Apples and oranges
But the really sticky bit of the Bill has proven to be the comparator clause, and it’s being framed in diametrically opposite terms by both sides.
Of course, if you’re making a case that you’ve been systematically discriminated against in the form of a skinnier paycheck, you’ll need to demonstrate that a comparable profession that’s less female-dominated gets paid more. Clause 24/3 is a set of parameters detailing permissible comparisons.
Essentially it’s a set of concentric circles. A claimant starts by looking for a man who is paid more and works for the same employer; if they can’t find one, they then have leave to look at “similar employers”. If none are found, they must then turn to clause 24/3/d:
“Comparators from a different industry or sector may be selected for the assessment only if no other appropriate comparators exist.”
It’s this hierarchy of admissibility that will create a never-ending spiral of bureaucratic process, say critics of the Bill, including Lynda Stuart.
“The new Bill makes it much harder for women to both establish merit in their case, and to come up with a fair comparator. We say women should be free to choose the best comparators, not to waste time looking at totally inappropriate jobs in the same sector first.
“The pay equity principles that were agreed to by the Government originally allowed for that to happen. Instead of making it harder for women, we need to acknowledge that the situation we’re in isn’t good. Women working comparable jobs are being paid so much less than their male counterparts, and we can’t allow that to happen in 2017. That’s disgraceful.”
Judy McGregor is a professor at AUT, a former Human Rights Commissioner and a former newspaper editor. She was equally unequivocal in a recent opinion piece for the NZ Herald:
“If the Government has its way with the proposed pay equity bill, women such as education support and mental health workers will have to endure a legislative steeplechase of higher and higher and wider and wider brush fences to achieve settlements.”
Yet Minister Woodhouse has said in response that the comparator thing is a non-issue.
“The purpose of the Bill is to avoid the adversarial court process that the parties in the TerraNova [aged care support workers] case would have had to embark on had the Government not intervened and negotiated a settlement.
“The TerraNova settlement was reached with reference to a comparator within the health sector and the Bill enables parties to look outside the sector if an appropriate comparator cannot be found.
“This will make New Zealand’s law more progressive than any other country we compare with.”
Lynda Stuart says the Minister’s comments are “completely misleading”. “The TerraNova settlement was arrived at without agreeing on a specific comparator. Negotiators on both sides looked at a range of roles in the health sector and elsewhere and were not obliged to come up with a comparator at all.”
It appears that the issue of pay equity isn’t one that the Government wants to call attention to leading up to the election.
It’s telling that there have been no further press releases from the office of Minister Woodhouse on the topic of the Pay Equity Bill – understandable from a strategic point of view really, given that until the letter of the law is tested in real life, critics can do no more than insist that it will prove to be a pitfall and not a fast-track. The Minister can simply repeat the ‘adversarial court process’ line till the cows come home.
Minister for Women Paula Bennett has also stayed conspicuously silent on the subject of the Pay Equity Bill in recent weeks, despite media outlets requesting comment.
The upshot of all this is pretty simple, to my mind: with its seemingly hasty introduction of the Pay Equity Bill, the Government has managed only to get itself on the wrong side of public perception. Of course, it’s all moot should we have a change of government – Labour has said the Bill is dead if they end up moving down the hall – but if not, the bickering will continue, and women will conceivably have to add a few more years to the 124 they’ve already waited.
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