Equal pay advocate Bartlett ‘let down’ by Govt

17 AUG 2017

Just four months ago, the Government described its $2 billion deal with Kristine Bartlett and her fellow aged care workers as an historic first step towards achieving pay equity. But Bartlett now says she feels betrayed by the Government. Andre Chumko reports.

Back on April 18 there was so much hope that the settlement would be the first of many for women across a range of sectors, including education, mental health and hospitality. After five years of legal action and consultation with both employers and unions, the Government promised its new Pay Equity Bill would be the vehicle for more of these claims to deliver fairer and higher pay for women. Economists have even started building it into their wage inflation forecasts.

Instead, Bartlett, unions and the Opposition are now accusing the Government of reneging on that promise with the bill just read in Parliament. They say the Government has effectively pulled up the drawbridge behind Bartlett to block similar deals by forcing pay equity claimants to firstly compare their wages with men in their own businesses and sectors.

“We all feel very, very let down. Totally let down,” Bartlett told Newsroom.

“They’ve 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 go for it,” she said.

“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 now go and put claims in. And of course that’s all stopped at the moment. So it’s back to the drawing board again.”

The disillusion began to set in within two days. On April 20 the Government released its draft bill, which unions and the Opposition said erected a road block to settlements similar to Bartlett’s by forcing pay equity claimants to compare themselves first with colleagues in their own businesses and sectors, rather than with similarly skilled workers in other sectors. They argued the Government had ignored the good work done over two years by employers and unions in a Joint Working Group led by Dame Patsy Reddy, who is now the Governor General.

The bill’s presentation to Parliament last week for its first reading confirmed for many that the promise of April 18 had been dashed.

“I listened to the first reading and I was just absolutely gobsmacked to think that they could stand up there and say what they had to say about it. They didn’t care a damn. Not one of them. They totally changed their minds and they totally reneged on what was the exciting part about this case, and just stopped it basically for everyone else,” Bartlett said.

There was particular bitterness and fear about the way mental health workers were treated. They were part way through a claim and suspended it in the expectation of benefiting when the aged care deal was settled. Instead, their employers — many of whom are the same as for aged care workers — are implacably opposed to increasing their pay to match those in aged care, despite the workers being at similar skill levels.

Many providers of mental health care services fear an exodus of workers from mental health jobs to aged care jobs that pay around 20 percent more from July 1. They argue this exodus will make the Government’s recent announcement of extra funding for primary health care projects and hospitals redundant.

The sense of betrayal was evident in the impassioned debate in the first reading last week.

Labour leader Jacinda Ardern called the proposed bill an “absolute disgrace” during its first reading on August 8. It was narrowly accepted by a vote of 60-59, with all of National, ACT and United Future voting in favour of the bill as it currently stands, and all of Labour, the Greens, New Zealand First and the Māori Party voting against it.

“How is it possible that he could present to this House a bill that takes us not only a step backwards but an entire generation backwards in terms of our ability to actually move forward in terms of giving women access to pay equity,” Ardern said across the debating chamber to Workplace Relations and Safety Minister Michael Woodhouse, who is in charge of the proposed bill and introduced it to Parliament.

Woodhouse’s introduction was a rowdy affair and he was forced to stop repeatedly when justifying the move to make claimants compare their salaries with men in their own businesses first.

He dismissed the complaints of Green MP Jan Logie, who said his bill was entrenching 40 years of inequity.

“Pipe down, Jan. You will blow something,” he said.

It’s all about the comparators

It’s worth diving into the detail of how pay equity is determined to understand why the Pay Equity Bill in its current form disappointed workers and the Opposition.

Pay equity differs from pay equality in that it has a focus on paying different types of workers of equal skills and experience the same amount of money, as opposed to paying male and female workers in the same positions the same amount. When making a pay equity claim, a valuation is done to figure out the relative weight of a job in comparison to others. The employee’s role is compared to other jobs, known as comparators, in order to assess the equity claim.

Under the proposed bill, any pay equity claim has to first compare the wages of the woman making the claim with male workers in the same business or sector, before comparing with similarly skilled men in other sectors. This hierarchy of comparators is included in section 3a of Section 24 of the bill.

Labour, Green and New Zealand First MPs argued this part of the bill went against the Court of Appeal’s judgment in the Bartlett case against TerraNova Homes and Care.

Ardern said TerraNova unsuccessfully attempted to use male gardeners at TerraNova as a comparator to Bartlett’s job as a rest home worker.

“That would be the exact kind of outcome you would see if you follow the Minister’s logic. Yet the complexity of the job that Kristine Bartlett and others were doing should have been compared across a wide range of other sectors,” she said.

Woodhouse argued in the debate that he interpreted the Employment Court’s ruling as specifying that the first comparison should be made within the employer’s business and that the Court of Appeal had not overturned that ruling.

Pay Equity Coalition spokesperson Angela McLeod said the group, which sent two separate submissions to the Ministry of Business, Innovation and Employment on the draft bill, also had issues with Section 24. She said the “hierarchy” of comparators in the bill imposed onerous limits on the progress of claims, which were in conflict with the Equal Pay Act 1972 that the draft bill sought to replace.

“When somebody wants to take a case, what the Government wants to do is change it so the comparators are only in the business. So if you’re an accountant or a plumber, the Government is only expecting to do it within that industry. That’s why there is a problem,” McLeod said.

Opponents were also unhappy with Section 14, which demands that women making the claim prove that they have been historically undervalued.

Ardern said this clause established a set of “macroeconomic criteria” which was problematic because individuals or small groups who did not have access to a union which could do the legal work for them would have to prove the above criteria by themselves. Pay Equity Coalition supported Labour’s view, and said in their submission to MBIE that as the burden to prove merit was on the employee, it would inhibit claims being made altogether. National has rejected these claims.

Labour had one final problem with the proposed bill – that it would completely replace the Equal Pay Act 1972. It also seeks to replace the Government Service Equal Pay Act 1960 and amend the Employment Relations Act 2000.

“The Equal Pay Act no longer exists. You now have to operate under this legislation, which is utterly unfair in the way that it is applying retrospectively to any other sector that is currently under negotiation. That is patently unfair,” Ardern said.

Opponents were also concerned about the lack of a pay transparency component which would enable employees to know whether they are receiving equal pay in the first instance, and the lack of the ability to claim backpay.

Commissioner also concerned

The Human Rights Commission’s Equal Employment Opportunities Commissioner Jackie Blue, who was previously a National MP, also said she was concerned that the Government had left it largely unchanged from its draft despite receiving 92 submissions on the draft bill.

“It is absolutely vital that the select committee submissions process is thorough, thoughtful and constructive to ensure the final legislation provides a fair outcome for workers who have had an unfair deal for far too long,” she said in a media release last week.

“The Government, through its engagement with the Joint Working Group on pay equity principles, have taken positive steps in recent times. It is important that they continue to build on that foundation and getting this legislation right will be an important part of that,” she said.

Blue said the Commission would make its own submission to the select committee in the coming months to ensure its concerns would be addressed.

So what happens now? 

The bill has been referred to a select committee which will not meet to consider submissions until much later in the year. But there is some urgency building, particularly around mental health care workers who are leaving in droves for better pay in aged care.

E Tū assistant national secretary John Ryall told Newsroom via email that the Ministry was “dogmatically opposed” to mental health workers being included in the settlement, and despite being warned of the consequences, it said there would not be a settlement without their exclusion.

“The Minister of Health is stalling for time because if the Pay Equity Bill that was introduced to Parliament last week is passed in its current form the mental health support workers will have their equal pay claim extinguished, and will have to start again under different more difficult rules,” he said.

“Quite frankly I think that the Government was willing to pay the $2 billion price for the union withdrawal of the Bartlett case and union agreement to extinguishing equal pay claims in this sector for five years, with the intention of pulling up the drawbridge and ensuring that no other women, even if they are employed by the same organisations (as are the mental health support workers) do not achieve the same levels of pay,” he said.

John Ryall, E Tū lead negotiator at the signing of the care and support workers’ pay equity settlement agreement on May 2. Photo: Lynn Grieveson.

The election result will matter

Having failed to achieve what they wanted through the Joint Working Group and the Government’s bill, unions and workers have now turned to changing the equation in Parliament by getting more Opposition MPs elected on September 23.

Bartlett said she had now accepted that widespread pay equity would never happen under the National Government. She had been phoning voters in recent days to drive that point home.

“I’m out there with a lot of other members of my union and there’s a lot of very upset angry people – women,” she said.

“Labour, New Zealand First, Greens — they’re all for it. So get one of those in and it’ll be fine. That’s all you’ve got to hope for now. The 23rd of September.”

The breakdown in once cooperative relations in the lead-up to the settlement illustrates just how unusual the Government’s celebration was in April, and how far apart the sides are now.

“It is an historic moment for the Government to address this undervaluing with Ms Bartlett and the unions,” Coleman said at the time.

Just two weeks later (see picture above) Coleman was all smiles when formally signing the settlement with Bartlett.

“I would again like to thank the unions and sector associations for their constructive and positive approach throughout the negotiations over the past 20 months,” he said.

But that’s where it ended.