Women suffragists called for equal pay
The history of equal pay can be traced back to the 1890s when New Zealand women campaigned for and won the right to vote. In 1893 a third of all adult women worked for wages, often at very low rates and in poor conditions, as an inquiry into 'sweated' labour revealed. Women's organisations called for equal pay for women and men. Suffragists viewed this issue as the 'most important next to franchise itself'.
The National Council of Women, newly formed, adopted the concept of equal pay for equal work in 1897. In 1913 the Public Service Association was established and resolved that:
The first minimum wage, in 1919, was set only for men. The Depression of the 1920s and early 1930s stalled progress on the campaign to change this. In 1927 the Labour Party adopted an equal pay policy but, under the Labour government's 1937 Industrial Conciliation and Arbitration legislation, award rates were set 'to enable a male breadwinner to support a wife and three children in a reasonable standard of comfort'. And the first minimum wage for women was set at 47% of the male rate.
During World War II, women filled 'male' jobs, sometimes at male rates of pay - to hold the jobs open for the men's return. Women PSA members revived the campaign for equal pay for equal work, but female rates continued. In 1949 the minimum wage for women was set at 70% of men's, although the United Nations Charter (1945), Declaration of Human Rights (1949) and International Labour Organisation Convention 100 (1951) all recognised the principle of equal pay for work of equal value.
It wasn't until 1978, once the Equal Pay Act 1972 was fully implemented, that women received the same minimum wage as men - $1.62 an hour at that time. Equal payments for women on unemployment and sickness benefits followed in 1979.
In 1956 Jean Parker, an Inland Revenue employee, took a case on equal pay and employment conditions for women in the public service that went all the way to the Supreme Court. Maximum pay rates for men were far higher and many senior women were paid less than junior males. Her appeal to the Supreme Court was successful, so the Public Service Commission instructed the IRD to reduce her responsibilities and her grade. The huge outcry from women led to Parker's reinstatment in her previous position and salary.
In 1957, both National and Labour put equal pay on their platform for the election. Women's organisations, trade unions and employer organisation formed the Council for Equal Pay and Opportunities. A Working Party report led the Labour Government to establish an Equal Pay Implementation Committee in 1958 and the Government Service Equal Pay Act was finally passed in 1960. For the history of this campaign, see Corner (1988) No Easy Victory.
It was 12 years before campaigning by CEPO, women's organisations and some unions representing women workers - in particular, the Clerical Workers Union - led to a Royal Commission, whose recommendations on equal pay for women working for private sector employers became the Equal Pay Act 1972.
National Advisory Council on the Employment of Women
In 1967, the National Advisory Council on the Employment of Women (NACEW) was set up under the Labour Department Act 1954. One of its first actions was an Inquiry into the Implementation of Equal Pay. Its 1971 report recommended an Equal Pay Act for the private sector, to prohibit discrimination in pay rates on the basis of sex. It also commented on the limited range of occupations employing women, noting that this narrow distribution of women workers was closely related to societal attitudes about the value of women's labour.
NACEW, whose members represent women's organisations, unions and employers' groups, is still active on women's employment issues.
The Equal Pay Act 1972 extended the principle of equal pay to the private sector, implemented over five years of annual wage negotiations. Progress was monitored by government through a series of reports including Progress of Equal Pay in New Zealand (1975), and Equal Pay Implementation in New Zealand (1979) which mentioned the important role of the Human Rights Commission (established in 1977) in providing education and support for equal pay activities.
By the 1980s New Zealand had a smaller gender pay gap than in most comparable countries, underpinned by occupational bargaining, with compulsory arbitration and union membership. Occupational pay scales negotiated between unions and employers reflected 'relativities' between occupations, and between the public and private sectors. Occupational comparisons across the labour market were the norm of the industrial relations system, which the Equal Pay Acts did not need to reinvent. What the Equal Pay Acts added to the system was gender equality.
With these changes to occupational awards, minimum wage and benefit rates, the government believed that New Zealand was now in compliance with ILO 100 on Equal Remuneration, which Parliament ratified in 1983. ILO 100 covers equal pay for work of equal value as well as equal pay for the same job.
Parliament also ratified ILO 111 on equal employment opportunity (EEO), and in 1985 the Convention on the Elimination of All Discrimination Against Women (CEDAW), which also includes equal pay for work of equal value (S.11).
Depressed female rates continue
The 1960 and 1972 Equal Pay Acts made separate pay scales for women and men illegal. Women doing the same work as men were to be paid what were previously male rates. The Acts laid out the principles and criteria for equal pay, including for jobs 'exclusively or predominantly' done by women. Under occupational bargaining, pay adjustments on gender equity grounds applied to all employers employing women in that occupation. This wide applicability meant the effect of change in 1972-1978 can be seen in the 1974-2012 graph of the gender pay gap in average hourly earnings.
As the Equal Pay Acts were intended to dovetail with the wage bargaining legislation, they were weak on operational aspects such as how a 'male' rate or equal skill, responsibility, service etc. would be determined for work done 'exclusively or predominantly' by women. The equal value aspect of the Act was underplayed by some union leaders as well as employers (Orr 1986). Recommendations in the 1975 and 1979 review reports were not implemented.
In the mid 1970s clerical workers gained pay parity with carpenters, but by the mid 1980s this had slipped to become, in the view of the Clerical Workers' Unions, a ‘depressed female rate’. They took the matter to arbitration, but their claim was rejected. The Court said it had no jurisdiction to decide equal pay rates under the Equal Pay Act if the negotiating parties could not, except at the first stage of implementation (NZCWU vs Farmers Trading, 1985-6).
In CEVEP's long-held view, this interpretation was not correct. It is contrary to the stated purpose of the Act, to the legislative intention of government at the time, and to New Zealand's obligations under international Conventions. (In 2013 the Employment Court agreed - see Bartlett & SFWU vs Terranova.)
Dissatisfaction with the 1986 court decision led to the formation of CEVEP and lobbying for more effective legislation on pay equity, that could also address EEO in compliance with ILO 111. See more on CEVEP.
From 1984 under a Labour government, policies to increase equal employment opportunity were developed as a way of addressing occupational segregation.
The 1988 State Sector Act required Chief Executives to be ‘good employers’ (S.56) and government departments to implement and report on equal employment opportunities programmes. This reflected an earlier code of practice addressing women’s issues, which had been the result of years of effort by women public servants. The Act recognises the employment requirements of women and employees with disabilities, and the ‘aims and aspirations, and the cultural differences, of ethnic and minority groups’, as well as specific recognition of the aims and aspirations and employment requirements of Mäori. Definitions were wide enough to include monitoring of pay and promotion systems.
The Employment Equity Act extended state sector EEO programmes and 'good employer' requirements to large private sector employers (›100 employees). An Employment Equity Commissioner was appointed, one of whose functions was to conduct pay equity assessments. These could be instigated by a union or group of 20 women lodging a claim for a female-dominated (70 percent) occupation to be compared with ‘comparators’ in two male dominated occupations. A method for gender neutral job assessments was developed. Any recommendations for pay adjustments would be included in the next wage bargaining round.
Ten claims were lodged with the Employment Equity Commission - see the list of claims and male comparators here. But within three months of enactment the Employment Equity Act was repealed by an incoming National government as its first act in office.
Its next actions were to repeal the 100 year old employment relations system based on occupational bargaining, and to cut benefit rates. These were National's policies for a low wage economy.
The Employment Contract Act 1991 allowed individual or collective contracts with a single employer. For the next decade, unions fought for the right to bargain collectively. Union memberships were decimated, particularly among women in small workplaces. In 2000 the Labour/Alliance government's Employment Relations Act encouraged multi-employer bargaining and emphasised 'good faith' bargaining but made few fundamental changes to the 1991 regime. The Equal Pay and Government Services Equal Pay Acts remained in force, but now applied to individuals or workplaces, not occupations.
The outcry at the repeal of the Employment Equity Act came from women of all political colours. National added S.2A on Unlawful Discrimination to address ILO 111 and established an Employment Opportunity Trust to work with private sector employers on a voluntary basis.
When the Labour/Alliance Coalition came to power in 1999, both parties' policy platforms included employment equity. In 2002 the Ministry of Women's Affairs released a Discussion Document New Steps Towards Pay Equity and in 2004 a Taskforce on Pay & Employment Equity in the Public Service, Health and Education undertook research and made recommendations to government.
Despite the views of CEVEP and of international experts invited to New Zealand by NACEW in 2004, this time Labour was reluctant to use legislation, and appeared reluctant to take on the private sector. Instead, it established a Pay & Employment Equity Office within the Department of Labour to develop human resources methods and materials, and advise government agencies and unions undertaking pay reviews and gender neutral job assessments. Wage adjustments resulting from this work would be included in the next bargaining round.
Under the Pay and Employment Equity Office's Plan of Action, all government departments, the public health sector and the public education sector were to undertake pay and employment equity reviews (audits) and develop response plans. In March 2009, two pay investigations were underway for the female-dominated occupation groups of social workers and special education support workers. The new National government discontinued these due to 'current economic and fiscal pressures'. It then disestablished the Pay & Employment Equity Office.
Women are worth more
In the Health and Education sectors, the nurses' and teachers' unions - representing female dominated occupations with industrial strength - didn't wait for the slow policy roll-out to reach them. Primary and kindergarten teachers, now with degrees, claimed pay parity with male-dominated secondary teaching jobs. Nurses had been saying they were worth as much as any policeman since the 1980s. The Nurses Organisation made wage claims based on equal value arguments and overseas salary comparisons, and backed it with pickets, rallies and media advocacy. They won a 19% increase, leveraging that around the state funded district health boards, and took similar claims into their private sector negotiations.
nurses demonstrate to support their pay equity wage claim,
Equal pay in the same job?
Since 1991 researchers have monitored collective employment contracts or agreements, but not the thousands of individual contracts that apply to most New Zealander employees. Many of these contain confidentiality clauses. Submissions on the 2002 discussion document on pay equity provided anecdotal evidence that, despite the equal pay and human rights laws, women were not always getting the same pay as men in the same job. Yet few personal grievances were being made for pay discrimination. For some this was evidence that the law was working; for others it was clear evidence that it was not. It is no easy thing accusing your boss of discrimination. Nor is it easy to know what colleagues are paid.
A woman can lodge a pay discrimination complaint under the Human Rights Act 1993, rather than by initially raising the matter with her employer under personal grievance procedures of the Employment Relations Act (but not both). Between 1993 and 2000, of 52 complaints to the Human Rights Commission about sex discrimination in employment, 16 were about pay and all but one were from women (Ministry of Women's Affairs 2002). From 2001 to June 2013, there were 14 complaints from women that they were being paid less than male colleagues in similar or more junior roles (HRC pers. comm. 22.8.13).
In 2004 the government introduced a Labour Relations Reform Bill which would have replaced the Equal Pay Act with an amendment to the Employment Relations Act 2000. Because of the 1986 court ruling, Department of Labour officials believed the 1972 Act could not support equal value claims, but this new Bill made no attempt to fill that gap. It proposed only a new process for individual women to complain about not receiving the same pay as men doing the same job. It would require her to confront her employer before she could seek the help of a Department of Labour inspector. There was no role for her union, although union representation was a feature of the Employment Relations Act.
In the view of CEVEP, this was poorly written legislation that would make it more difficult, not less, for women to get equal pay. It would also make New Zealand non-compliant with the ILO 100 and CEDAW Conventions. We opposed it strongly, appearing before a select committee and speaking directly with Cabinet members. We preferred to keep the Equal Pay Acts we have. The Bill was dropped.
Periodically New Zealand governments report to the ILO and CEDAW committees about laws and policies related to employment equity. Unions and women's organisations send alternate reports about non-compliance. The Committees reply with calls for more effective measures by government, which get little attention from the New Zealand media. These reports can be found on the website of the National Council of Women and the Ministry of Business, Innovation and Employment (undeer International Services). Th.
The Kristine Bartlett pay equity claim
In 2013 caregiver Kristine Bartlett and the Service & Food Workers Union (now E Tu) took a pay equity claim against her employer Terranova Homes and Care. This led to a case before the Employment Court on questions of law - in essence, whether claims for equal pay for work of equal value could be taken under the Equal Pay Act 1972. The Employment Court, then the Appeals Court ruled that indeed they could, and the Supreme Court delined further appeal. See the full story here.
The union also asked the court whether the court could be asked to issue Principles for implementation of equal pay - answer, yes. Instead, the government set up two Joint Working Groups of unions and employers, facilitated by the State Services Commission. One developed recommendations for implementing pay equity. CEVEP was concerned that 'social, historical and structural' factors that the Courts allowed (in addition to assessment of skills, responsibilities, service, effort and conditions of work) were now required to show the initial merit of a claim. We were even more concerned when Cabinet added a sub-principle: a requirement to work through a 'hierarchy of potential comparator' from within the same workplace or industry (rather than selecting clearly unbiased male dominated jobs and sectors).
A second Joint Working Group negotiated a settlement of the Bartlett claim for caregivers, which in July 2017 increased the pay of 55,000 people doing state-funded caring work. A Care and Support Workers (Pay Equity) Settlement Act was required to apply the negotiated settlement to all employers of the designated categories of careworkers, on which CEVEP made a submission about details.
Employment (Pay Equity & Equal Pay) Bill 2017
In May 2017 the Ministry for Business, Innovation and Employment consulted selected parties, including CEVEP, on a 'exposure draft' of new legislation. With little improvement and a few new fishhooks, this became a Bill in July 2017. The government stated that this would 'update' the Equal Pay Act 1972 and 'making easier for women to file equal pay claims.
In CEVEP's view (see submission here), it would do the opposite:
Labour, NZ First and the Greens voted against the Bill but it passed to select committee. However, after the Setember 2017 election, those parties were successful in forming a coalition government.
On 22 February 2018, however, National's 2017 pay equity bill popped out of the ballot box for private members' bills. As all the parties in government already voted against this bill and were planning their own legislation, this move by National was a waste of parliamentary time.
A change of government
The new Minister for Women's first task in office was to drop the Bill, saying it was 'deliberately designed to put barriers in the way of women who want to make a pay equity claim (Radio NZ 1.11.17). The government planned to work on improving the 1972 legislation. All the parties now in government had opposed the previous Bill.
Minister Genter asked the Joint Working Group of employers and unions to look again at Nos. 2 and 9 of the Principles for the Implementation of Equal Pay that they recommended to the previous government. Principle 2 allows a woman's employer to decide whether her claim has 'merit' based on her presentation of historical and labour market evidence. Principle 9 relates to selecting male comparators. On 4 March 2018, new recommendations were released, with very minor wording changes which softened the requirements of Principle 2. but no change of process. Disappointingly, there were no improvements on Principle 9.
In CEVEP's view, these two Principles are not consistent with women's rights under current legislation and with the Bartlett Judgments. They will make it harder for women to acjoeve pay equity. We recommend that Principle 2 be dropped entirely and that Principle 9 be revised to require female-dominated work to be compared with 2 or more male jobs in male dominated sectors.
In early December 2017, CEVEP met the Minister to present a Proposal for Policy and Legislative Action on Equal Pay and Pay Equity. This addressed the need for an expert advisory unit to support claimants, employers and the public (as advised by Joint Working Group Chair Dame Patsy Reddy in May). It also included a proposed Bill drafted by CEVEP that confirmed current rights and criteria, established clear procedures, and ensured specialist expertise within the Employment Relations Authority and Mediation Service.
On 19 September 2018, Women's Suffrage Day, the government introduced a Bill to update the 1972 legislation for equal pay and equal pay for work of equal value. However, this Bill is more an amendment of the previous government's rejected Bill than it is an updating of the 1972 Act in the light of the Court judgments and the Working Group Principles. See CEVEP's submission here. CEVEP is particularly concerned about time-consuming convoluted processes, a unsatisfactory section on selecting male comparators, and a requirement to lodge claims with your employer, rather than with the Employment Relations Authority as at present. Settlement documents should also be lodged with the ERA. If these documents remain in employers' filing cabinets, how will government evaluate the effectiveness of its policies and legislative changes? CEVEP continues to point out that equal pay and pay equity are not bargaining matters; they are human rights, on which government has responsibility under international Conventions. The Bill is still in progress. See the select committee's report here.
www.cevepnz.org.nz - 14 May 2019