Equal pay's punchline outweighs bawdy jokes

You'd have to have been raised on Mars not to know that "women's work" is worth less in the marketplace because it is women's work. Illustration / Guy Body

Claims by midwives and education staff a headache for Govt.

If National's gender-issue problems were limited to an ageing MP in superhero fancy dress offending women with bawdy jokes, it could count itself lucky.

But it can't.

This week the Government was delivered a big problem on gender issues with the announcements that midwives and education support staff respectively are taking pay equity claims.

Maurice Williamson will be easily dealt with: if he hasn't been elected Mayor of Auckland by the next election or retired, he will face a party-backed challenge in Pakuranga.

Over a career, politics has been richer for his presence.

But he is too much his own man to be an asset in a conservative political party striving to be modern.

Other gender problems are more of a challenge for National.

The two pay equity claims this week have made life harder for the Government and, arguably, aged care workers.

Until now the pay equity issue has been contained in the Kristine Bartlett test case, a rest home worker who, through the Service Workers Union, has won the right to argue under the Equal Pay Act 1972 that her work is undervalued because it is done mainly by women and therefore she has been subjected to discrimination on the basis of her gender.

Of course it's true. You'd have to have been raised on Mars not to know that "women's work" is worth less in the marketplace because it is women's work.

But proving it in legally robust terms is another challenge.

In the Bartlett case, the Court of Appeal has not said Bartlett has been the subject of pay discrimination but it has reinterpreted the Equal Pay Act 1972 to say she can argue that case in the Employment Court using comparisons with male-dominated work with similar levels of responsibility and skills.

But first it says the Employment Court needs to draw up a set of principles showing what basis of comparison is acceptable between an aged care worker and a completely different occupation.

This is where the Government's dilemma comes in.

For a start, most Governments see it as their role and not the courts to write the rules.

Is the Government, on an issue with ramifications stretching to hundreds of millions of dollars, likely to say "we'll sit back and see where the courts take us".

The Government could leave the Employment Court to write the principles, and leave the Service Workers Union, education support staff and others to carry on their cases through the courts over the years.

This is the second least likely option.

It could negotiate a settlement with the Service Workers Union but it will be more wary now that any agreement reached could lay the foundation for the other claims, and more expensive ones.

(The test case is about low-paid workers but it need not be in the future; a well-paid women's occupational group could argue it should be extremely well paid when compared to a male-dominated comparator).

The Government could face problems if it negotiated a settlement with the union on the Bartlett case then have the Employment Court deliver a set of principles that are well outside the principles of its settlement with the Service Workers Union.

The Government could legislate its own principles and framework by which cases are to be decided - something the Government is likely to be contemplating.

Or it could legislate away the Court of Appeal decision altogether and block pay equity cases.

The latter is the least likely option.

While the Government will not believe for a second that Jack Marshall's National Cabinet in 1972 had the foggiest notion about equal pay for work of equal value when it put up the Equal Pay Act, it is too pragmatic to take extreme measures against it in 2015.

Michael Woodhouse as Workplace Relations Minister, Paula Bennett as State Services Minister and Bill English as Finance Minister are among those paying very close attention to the issue.

Pay equity is not an issue on which Labour will be making sweeping promises without having done the maths, given it could be just two years away from the Treasury benches.

But there is probably no danger of bold promises. Labour's record in its two previous terms of Government has been to take action on pay equity so late in the piece or so slowly that it has been easily undone by incoming National Governments.

At last year's election, it promised to "provide the mechanism to determine work of equal value".

But as the midwives' case shows, there is more than one road to take on the pay equity journey, and theirs is a route that cannot be undone.

As contractors essentially to District Health Boards, it would be difficult to take a claim under the Equal Pay Act. Their case is via the Bill of Rights Act 1990 and led by Bill of Rights expert Mai Chen.

While acts themselves do not have to be consistent under the Bill of Rights Act, it is uncontested case law that actions authorised by acts do have to be consistent.

And if they are, they can be ruled invalid.

The midwives are seeking a High Court judicial review of the notices of terms and conditions of their fee issued to them under S88 of the NZ Public Health and Disability Act 2000.

The midwives say the notices are inconsistent with the Bill of Rights Act which protects them from discrimination on the grounds of gender. They will be comparing their skills to mechanical engineers and/or registered certified electricians.

The aged-care workers case is being run by Wellington Peter Cranney, a former organiser and a hero of the union movement.

He is also taking the case of the education support workers for the NZEI. They are paid by the Ministry of Education to work in early childhood centres with high-needs children - and have already been subject to an investigative comparison with Corrections officers by the now-disestablished Pay and Employment Equity Unit.

NZEI also has possible claims down the pipeline for teacher aides, and for early childhood education teachers.

The Government cannot cry poor as it has been able to do for six years. The economy is well past the global financial crisis and Bill English has allowed $1 billion for new operating spending in 2016 and $2.5 billion in 2017.

Whatever the legal merits of the mounting number of pay equity cases, there is huge public sympathy for low paid aged-care workers.

The public pressure this week over New Zealand's meagre refugee intake shows an increasing intolerance to injustice. Doing nothing is not an option.

It is an issue whose time has come.