Changes to the Equal Pay Act were announced by the New Zealand Government earlier this month
Amendments to New Zealand’s Equal Pay Act, aimed at making the process of raising and resolving pay equity claims more robust, workable, and sustainable, may create short-term issues for long-term gain, an employment lawyer told HRD.
“Due to the way the legislation was passed, claims that have already been filed will need to be re-submitted, making sure they adhere to new criteria. That could cause some frustrations, but in the long-term, you’re looking at a simpler system to support equal pay claims that have merit and can be supported by evidence,” Jo Douglas, Principal Lawyer at Douglas Lawyers, told HRD.
Under the amendments, the government will require clear evidence to ensure that there are reasonable grounds to believe that work is historically and currently undervalued based on factors relating to sex-discrimination.
“Claims have been able to progress without strong evidence of undervaluation and there have been very broad claims where it is difficult to tell whether differences in pay are due to sex-based discrimination or other factors,” Workplace Relations and Safety Minister, Brooke Van Velden, said.
Van Velden stated the Government is committed to addressing issues, with the new system providing greater confidence that genuine pay equity issues will be identified correctly and addressed.
This sentiment is backed by Douglas, who noted the previous entry threshold for making a claim was low, making it difficult to discern if genuine discrimination across rates of pay for those claims was present.
“Only claims that have merit will be able to proceed and they've increased the threshold for deciding if it's a job that's predominantly performed by females. The threshold’s been increased from 60% of the workforce to 70% and, and there will be a greater emphasis on the evidence that this really is discrimination based on gender and not something else.”
“I see it as the government looking to provide greater clarity on what gender discrimination actually looks like through evidence,” Douglas said.
Douglas outlined that the recent amendments will mean those making a claim will need to be “clear about the basis for their claim based on gender discrimination and this needs to be supported with evidence”, but emphasised there are other reasons pay disparity could exist.
“You’ve got things around market changes – people could just be underpaid because of a limited amount of funding, rather than because an employee is male of female. I think, in this regard, it’s potentially a political issue rather than a legal one but putting more criteria in place assess the merit of the claim helps identify genuine sex based discrimination.”
“The Act, from my perspective, is in place to serve a very specific issue – explicitly whether someone is being paid less than someone else for doing the same or a similar job because of their gender. Originally, the Act was introduced to phase out direct discrimination in rates of pay across men and women – which has not been the case for nearly 50 years.
"Today, there are equal opportunities for all, and wider discrimination laws through the Human Rights Act. There are also other ways better rates of pay for both men and women could be achieved in certain important sectors which provide a critical contribution to our community such as teachers and nurses,” Douglas added.
She outlined training, education, and increased opportunities across the board can also be key contributors to an increase in pay for women more generally. Where unions are involved, they can also push for better terms and rates of pay through collective bargaining processes.
With amendments having been made under urgency by the Government – and with it being opposed by all parties, according to Radio New Zealand – Douglas explained that there could be a need for additional amendment later down the track.
“With it being passed in the way it was, there is a lot of uncertainty because of it acting retrospectively – with claims already put forward having no effect. It’s unusual, in that sense. This is likely to cause confusion and disappointment for those groups that no longer meet thresholds or requirements.”
“Claims are going to drop, there’s no doubt going to be teething problems – whether the new framework is helpful to support genuine claims and to reduce the gender pay gap, only time will tell,” Douglas analysed.
