Jan Logie Green Party

Is pay equity just too hard for this Govt?

You are hard pressed these days to find someone that openly admits their misogyny, that men should still be paid more than women. Politicians proclaim that they want to see women paid more, but do their actions back it up? The Government will have the first reading of their pay equity bill on Tuesday, and although it says the right things, it will make it considerably harder for women to be paid fairly for their work.

The Joint Working Group on Pay Equity Principles, made up of the Government, businesses, and unions, were able to agree and make recommendations on a way forward in May 2016. The unions expected these principles to be used alongside the existing Equal Pay Act that had proven so effective. A year later, the Government made a settlement offer, as they were legally required, to Kristine Bartlett and 55,000 care and support workers for a long overdue pay rise.

Let’s be clear, the settlement was not on the National Party agenda. We have no evidence that Government would have settled without the union-led Court challenges and public pressure, despite having been alerted to the underpayment of these women years ago. In fact the Crown intervened on the side of the employers in the Court once they realised there might be financial consequences to the decisions.

The day after the settlement, while claiming all the credit, the National Government introduced a draft Bill that would make it harder for women to be successful in future pay equity claims.

So what is the Government now proposing and what is wrong with it? The Government is going to make women establish merit before they can make a pay equity claim. This means proving that their part of the workforce is historically undervalued using historical and market evidence. The onus will be solely on the employee to prove all of this before bringing a pay equity claim. I’ve been told the Crown has added market evidence because they do not believe women’s work can be underpaid in the private sector, because they believe the market establishes the value of a job, and the market is somehow uninfluenced by discrimination or history.  This is also inconsistent with previous Court rulings (and our existing rights) which allowed historical, social and structural evidence as part of a substantive claim, not as additional criteria for being able to make a claim. The Joint Working Group principles did discuss factors for establishing merit but they were guidance on what things could be considered, not a list of things that had to be. How the average person is going to have the resources, legal and economic skills, and time to prove all of this is beyond me.

The Government’s new Bill will also mean that first you have to compare with people employed by the same employer. Only if no appropriate comparison can be made will you then look for the next comparator.

The hierarchy would mean comparators would have to be selected as follows:

  1. Comparators within the same employer, or if none are appropriate then
  2. Comparators from within a similar employer, or if none are appropriate then
  3. Comparators from within the same industry/sector, or if none are appropriate then
  4. Comparators from a different industry or sector.

In Kristine Bartlett’s case her employer Terranova tried to argue that they could assess whether her pay was fair by starting with males in the same workplace. The Court rejected that argument and ruled that pay equity requires male comparators from jobs and sectors that are clearly unaffected by gender bias; that is male dominated jobs and sectors.  By introducing this “hierarchy of comparators”, it is much harder for a women to have to prove there is no appropriate comparator at each stage. More hurdles for women to have to overcome. This will potentially introduce a legal nightmare of decisions being challenged and returned at each step.

The Government has also come up with definitions of what is female dominated and male dominated – a workforce needs to have 66% of women to be considered female dominated but to be considered a male dominated industry they only require 50% men. I’m not sure how half equates to dominated. Of course employers are then going to look for comparable jobs in the more likely lower paid mixed gender workplaces rather than in the jobs that are more highly paid, because they are actually male dominated. This actually gets closer to being an equal pay for the same job argument rather than a pay equity one.

The ability to get backpay for when women have been underpaid for years will be extinguished under the Government’s new Bill. Yes the caregivers gave up their right to backpay in the Caregivers case. They wanted a settlement and the money involved would have delayed their settlement. We are now in a situation though where Government can plan to find the money. Backpay, of up to six years is a commercial standard. It really is pretty shocking that the Government thinks it can extinguish this right for women, just because well we’re women. Can you imagine them extinguishing the right of any other group?

The Government’s Working Group made great progress on the above, they are technical issues and hard to come to agreement on. Significant progress was made, only to be undone by a Government that is intent on maintaining the status quo. But I think that women are sick of being paid less. The average hourly earning of Māori and Pasifika women is 22.9 per cent and 28.4 per cent less than Pākehā men respectively. Women continue to be grossly underpaid for the valuable work that they do.

We can change this, we can see women paid fairly, we can address the problems. But we need to change the Government.