The High Court class action was taken on behalf of 1500 midwives who deliver more than 55,000 babies a year. Photo / 123rf
Midwives have scored a victory in a 10-year legal battle with the Government over their pay and conditions.
However, their marathon legal fight may not yet be over - the Ministry of Health said immediately after a High Court decision was released today that it would appeal.
The target="_self" rel="" title="https://www.nzherald.co.nz/topic/high-court/">High Court found in favour of the New Zealand College of Midwives in a class action it took against the Crown.
The action was taken on behalf of nearly 1500 lead maternity carer (LMC) midwives, working in the community, delivering more than 55,000 babies a year.
The High Court found that the Crown had breached a contractual promise to ensure midwives received “fair and reasonable” remuneration.
It also said the Crown did not act in good faith in its dealings with the college.
“The history leading up to this proceeding in fact indicates a rather cavalier approach by the Crown – entering into agreements to avoid legal liability and then choosing not to, or failing to, meet its obligations under those agreements," Justice Cheryl Gwyn said in her decision released today.
Justice Gwyn also found that from as far back as 2007, and continuing up to the present, the method of paying self-employed midwives, who are almost exclusively women, unlawfully discriminated against them on the grounds of sex.
This was a breach of their rights under Section 19 of the Bill of Rights Act 1990, she said.
The claim was heard in the High Court over a six-week period in August and September 2024.
The class action alleged the Crown breached its obligations to ensure the self-employed midwives received “fair and reasonable” pay and working conditions.
The structure under which LMC midwives are paid is set out under legislation which allows the Government to unilaterally set terms and conditions for how they work.
The midwives complained this meant they had no right to negotiate their pay and working conditions, including the amount of work they were expected to do.
Midwives were also expected to fund their business costs from the money paid to them but, unlike other self-employed workers, could not set their fees to cover their overheads or take into account annual and sick leave.
The College of Midwives first took legal action against the Ministry of Health in 2015, alleging gender-based discrimination under the Bill of Rights Act.
Before the case could be heard, the ministry offered mediation, which the midwives accepted.
After a series of mediation meetings in 2016 and 2017, the College of Midwives agreed to withdraw its judicial review proceedings.
However, it returned to the courts after alleging that the Ministry of Health breached two settlements of agreement on a new funding model, formulated in 2017 and 2018.
College of Midwives chief executive Alison Eddy said the High Court decision was “welcome confirmation” that the community-based midwives “have not been valued and have been discriminated against by successive Governments”.
“This is a win for midwives but ultimately for the women, babies, whānau and communities at the heart of LMCs’ work,” she said.
The Ministry of Health said that it would appeal the High Court decision.
“The Government considers that the High Court has erred in a number of its findings, including of non-compliance with the New Zealand Bill of Rights Act 1990, and in relation to the status of the 2018 settlement agreement [with the midwives],“ it said.
“The Ministry of Health is unable to comment further while court processes are still under way.”
Eddy said the College of Midwives were “fully expecting” the ministry to launch an appeal, which she said had already been filed in the courts.
“It would have been nice if they’d given us just one day to enjoy the win,” she told Open Justice.
She said her organisation would be “very open to discussion” with the ministry instead of further legal action.
“We want to be able to achieve fair and reasonable pay and sustainable working conditions for midwives. There’s always been at the heart of this case,” Eddy said.
“We think that this finding, this judgment, gives us a very strong case for that to be an expectation that the ministry and the Government ... should be deeply invested in as well, because it’s found a breach in human rights; it’s found a breach in contract responsibility.”
A report to the ministry in 2019 by the accountancy and consulting firm PwC concluded that a fair and reasonable service price for a full-time LMC midwife was in the range of $163,500 to $170,500 a year.
This, however, excluded business costs that the self-employed midwife would have to pay - such as premises, vehicle costs, overheads, and arranging cover for her leave and absence.
PwC did not define a full-time caseload precisely but proceeded on the basis of 40 to 50 mothers per year.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay.