A radical extension of employment law

August 24th, 2013 at 10:00 am by David Farrar

Stuff reports:

Tens of thousands of women have been given a new weapon in the fight for equal pay after a landmark court decision.

Both sides of the debate have called the Employment Court’s ruling on Thursday a “significant” shift, which is likely to give unions more power to fight employers over gender discrimination.

Even when it isn’t gender discrimination!

The Employment Court has ruled women in female-dominated industries can now compare themselves to men in other industries requiring similar skills when pushing for pay equality.

Employers had argued women workers should only be compared with men in the same industry doing the same work and warned a broader view would be “unworkable”.

However, the court rejected the employers’ interpretation, claiming they could “simply perpetuate discrimination in rates of pay to women”.

This is a fairly radical extension of the law. The law was passed so that if an employer had men and women all doing exactly the same job, and they were paying the men more than the women, it would be illegal.

The court has now interpreted this as saying now they no longer have to be doing the same job, or even be in the same industry. It can compare the job of say a teacher to a police officer and decide for all of New Zealand that teachers must all be paid the same as police officers!

Currently industries traditionally considered “women’s work” could continue to pay women poorly simply because a small group of male co-workers shared their low wages, the court said.

This is the key point. There was no evidence at all that male workers doing the same job were being paid more. In fact they were not.

One can debate about whether or not courts should have the power to declare workers in one industry must be paid the same as workers in another industry. I don’t think they should. But what is galling is there has been no debate in Parliament and no law change.

TerraNova executive director Terry Bell said the company was still considering whether to appeal the court’s decision.

I hope they do. Such a radical and far reaching decision should be made explicitly by Parliament.

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27 Responses to “A radical extension of employment law”

  1. nickb (3,687 comments) says:

    What am I missing here?

    I freely admit to have not read the case, but in none of the articles I have read regarding this decision were there any comparison or analysis as to what men might earn in this line of work.

    As far as I can see these women simply asserted they should be paid more because if men were doing their jobs, or were the predominant gender working in the industry, the hypothetical men would be paid more then the women are now. The Court seems to have swallowed this hook, line and sinker (what a surprise given the current state of our judiciary).

    Is there any evidence for this hypothesis? As far as I can tell it is a load of bullshit, no doubt facilitated by sleazy union reps and soft-brained judges.

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  2. kowtow (8,470 comments) says:

    Surely we should be celebrating equality?That’s what the “struggle” is all about,being on the right side of history and all that.

    If marriage can be redefined by law then anything can be.Let’s have it, open slather and the complete surrender of common sense.

    Oh what gay times we live in!

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  3. MT_Tinman (3,186 comments) says:

    Not for the first time recently it appears the courts are making law (by radical interpretation).

    Parliament needs to stop this immediately.

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  4. dog_eat_dog (780 comments) says:

    From zero to some berk bringing up gay marriage in two posts. I love you Kiwiblog but weekends bring out the worst in you.

    I’d be interested to see if this analysis is supported by any commentary as the decision is digested. I can see some logic in “Our wages are shit because women were paid SFA historically and paying mean equally badly doesn’t cover it” but to compare wages to completely different industries is pretty reaching.

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  5. flipper (4,060 comments) says:

    The Employment Court is not the Judiciary, is it?
    A “court” it may be, but part of the traditional Judiciary, it is not.

    As for the decision, if it has been reported accurately, it is pure crap and the Crown has an obligation to take the matter to the High Court.

    As DPF has said, the extension of “equal pay for equal work” to equality of pay for all employment is a matter for the Parliament, alone. Equating teachers with Police is one thing. But why stop there? Think of Prostitutes, central and local bureaucrats, medical and dental practitioners, surgeons (probably the highest paid group of all) and butchers….and so on.

    It really does embrace the ” equality of outcome” objective being espoused by the rainbow/Commissar red melon mob.

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  6. ObligatoryMarxist (37 comments) says:

    One of the primary arguments made by the union was that in comparable positions (i.e. people doing the same job but in facilities other than aged care ones) which had a majority of male workers, the pay was much higher. What it came down to was the fact that the employers could give no good reason why this industry has such abysmal wages while, say Nurse Aides in general hospitals (with a far larger percentage of male workers) got paid better wages. There is a perception that aged care is ‘less important’ or ‘less skilled’ or ‘easier’ than other positions, and the court questioned where that perception came from – and concluded it came from gender stereotypes.

    Simply put, the employers couldn’t put forward any argument to explain why they paid so abysmally and so the gender argument stood.

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  7. Psycho Milt (2,412 comments) says:

    So the government’s steadfast refusal to do anything for pay equity has resulted in the courts stepping in and taking over. Well, good. At least someone’s willing to get off their arse and do something useful for a change.

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  8. wat dabney (3,756 comments) says:

    Simply put, the employers couldn’t put forward any argument to explain why they paid so abysmally

    Employers have no way of knowing why they have to pay more to attract certain types of workers compared to others. It could be due to the education system; it could be due to greater opportunities in Australia in certain sectors. It could be a complex mix of hundreds of such things.

    Employers don’t set wage levels, any more than employees do.

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  9. Nookin (3,341 comments) says:

    The Employment Court is, indeed, part of the “judiciary”. Judges simply happen to be specialist judges. There is no appeal from the Employment Court to the High Court. There is an appeal from the Employment Court to the Court Of Appeal. This indicates the status afforded to the Employment Court. That status is reinforced when one looks at the salary scales. An Employment Court Judge is on a pay scale roughly midway between a District Court Judge and a High Court Judge.
    Flipper may be confused with the Employment Relations Authority which would not, in the ordinary course of events, be regarded as part of the “traditional judiciary”.

    The Crown is not a party to these proceedings and does not get to choose whether there is an appeal.

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  10. bhudson (4,740 comments) says:

    Judicial activism and worthy of correction by way of amendment to the Act. If it isn’t something the govt leap upon, this could be a good idea for a Private Member’s Bill.

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  11. Graeme Edgeler (3,289 comments) says:

    As for the decision, if it has been reported accurately, it is pure crap and the Crown has an obligation to take the matter to the High Court.

    I think I noticed some technical errors in some of the reporting, but it appeared to have the fundamentals right.

    I would note, however, that:

    1. The Crown cannot appeal (they’re not involved in the case, which is between a private employer and an employee and her union).
    2. Appeals from the Employment Court are to the Court of Appeal.

    I would also argue that the employer should not appeal. This is a preliminary decision. There will be a further hearing of the employment court to decide whether there is in fact discrimination. There may not be. I would think it in there interests to wait until the end and see how one of these cases plays out. They’ll still be able to appeal the whole lot.

    Having high level argument about what is possible can sometimes get you into trouble. That happened with the Foreshore and Seabed legislation: a preliminary finding of the Maori Land Court was made that it was possible to establish ownership of the foreshore and seabed. It would probably have been very difficult, however. It may have been impossible. But the decision was appealed up the Court and when everyone heard it was possible, without knowing whether it was in fact likely, all hell broke loose. The Crown would have been advised, in that case, to allow Ngati Apa to try to prove their ownership. They have have failed on the facts, and nothing would have happened.

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  12. flipper (4,060 comments) says:

    Graeme E…
    Thanks for that. Very helpful.
    The point you make about the seabed convinces me, on reflection, it should be allowed to play out.

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  13. Fletch (6,387 comments) says:

    If a man and a woman were just as suited for the same job, why aren’t businesses taking advantage of the cheaper pay rate and hiring all women?

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  14. sassycassy (45 comments) says:

    “The court has now interpreted this as saying now they no longer have to be doing the same job, or even be in the same industry. It can compare the job of say a teacher to a police officer and decide for all of New Zealand that teachers must all be paid the same as police officers!”

    A few considerations in comparing these 2 industries DPF

    Police: Training 18 weeks extensive training at the Police college

    Pre-requites: Over 18 years old, fit, healthy, and “bright enough to pass a range of assessments” and these are very basic numeracy and literacy assessments

    Paid a salary while training

    Early education Teacher :
    The benchmark qualification for a qualified early childhood teacher is a Bachelor of Teaching or Diploma of Teaching

    3 years of full-time study or Students or study part time (by negotiation and if working at an ECE) for a maximum of 6 years to gain a Bachelor of Education.

    Don’t know how much- but they would have student loans of tens of thousands of dollars to repay

    Prerequisites NCEA 3 or a 1 year foundation study course preceding acceptance to tertiary study

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  15. Fletch (6,387 comments) says:

    Jason Materra highlights some of the reasons for the differences in pay (in the U.S, but ours can’t be that different) in one of his books –

    So, are women really paid less than men? Yes, it is true that men tend to earn more than women, but don’t assume it’s gender discrimination. Let’s walk through a scenario: If a business could really get the same quality of work from women for the same job at such a discounted rate, why wouldn’t employers hire all women? It would be bad business to keep all men on hand. The smart employers would drop their men and swoop up all the women for a discounted price. There’s no way other businesses could compete. So perhaps there are other differences that account for the pay gap between men and women.

    Cait Murphy, an editor at Fortune, blew the phony wage gap myth out of the water, noting that men and women get paid differently because they’re engaging in different lifestyle choices that affect pay scales. Murphy, who is a woman, cited peer- reviewed research done by another woman, June O’Neill, an economist who served as director of the Congressional Budget Office under Bill Clinton.As Murphy writes, “What [O'Neill] found was that women are much more likely over the course of their lives to cut back their hours or quit work altogether than men, for issues involving the family.”11

    Women’s lifestyle choices matter when it comes to full-time employment because “you go part-time or take years out of the labor force, that has an effect on earnings down the line, due to loss of seniority or missed promotions.”It has nothing to do with sexism. Murphy argues that “of women aged 25-44 with young children, more than a third were out of the labor force; of those women who did have jobs, 30% worked part-time.” Again, this has considerable effects when one is moving in and out of the labor force, as many wages take into account seniority of service. Moreover, getting promotions is often a function of years served and experience gained.”All told,” says Murphy, “women are more than twice as likely to work part-time as men and over the course of their lifetimes, work outside the home for 40% fewer years than men. That accounts for a significant chunk of the pay gap.”But that’s not all. There’s also something, um, a bit more understated, but very important in determining wage factors. Murphy continues:

    Despite the many advances the women’s movement has brought the U.S., what it hasn’t done, thank heavens, is make men and women the same. The simple fact is–and there is nothing nasty or conspiratorial about it–the sexes continue to choose different avenues of study and different types of jobs.Here’s an illustrative example. The college majors with the top starting salaries, according to the National Association of Colleges and Employers, are: chemical engineering (almost $60,000), computer engineering, electrical engineering, industrial engineering, mechanical engineering. Men make up about 80% of engineering majors. Women predominate among liberal arts majors–whose salaries start at a little morethan $30,000. Putting it all together . . . these differences–in choice of work, years in the workforce, and hours of work–could account for as much as 97.5% of the differences in pay between men and women.

    Other differences? Men are more likely to work more hours than women; men are more likely to take hazardous jobs than women are, which is why more men are truck drivers, firefighters, police officers, construction workers, flight engineers, and coal miners than are women. And guess what? Dangerous jobs equal higher pay than, say, secretarial jobs. Again, it’s all about choices.Here’s what the liberal machine will never tell its dronelike youth Zombies: The “pay gap” for women shrinks to ninety-eight cents for every dollar earned by men, after factoring in work experience, education, and occupation.12 And women in their twenties in big cities, including New York and Dallas, are making nearly 20 percent more than men in their twenties.13

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  16. Alan Wilkinson (1,878 comments) says:

    If prison warder is an equivalent occupation why don’t they apply for those jobs? Actually, most, if not all, of the jobs the unions want to use as comparisons are government bureaucracies.

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  17. unaha-closp (1,165 comments) says:

    We can cut all government employees salaries to the level of carers.

    Cost savings all over the show.

    Thanks SFWU. This is a brilliant result.

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  18. Anthony (796 comments) says:

    There are plenty of women lawyers and economists where I work and they get paid very well. I suspect if you surveyed non-management, professional jobs in the CBD that the women would come out ahead in numbers and pay.

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  19. LabourDoesntWork (290 comments) says:

    Employers had argued women workers should only be compared with men in the same industry doing the same work and warned a broader view would be “unworkable”. However, the court rejected the employers’ interpretation, claiming they could “simply perpetuate discrimination in rates of pay to women”.

    Where to begin with such fallacious, self-refuting lunacy….

    They’re admitting they can’t find discrimination when women and men working the same jobs are compared.

    So, the court admits there’s no problem here.

    “You don’t need to see his discrimination”

    “Move along, move along…”

    LOL. Dipshits.

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  20. LabourDoesntWork (290 comments) says:

    The Court is admitting what every feminist whiner knows, deep down inside: The feminist movement has failed.

    LOL

    Excuse me while I make myself a cup of dontgiveaf*ck.

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  21. steveoves (2 comments) says:

    So basically as airline pilots are predominantly male and cabin attendants are predominantly female they should both get paid the same amount as they are in the same work environment. Green party logic!

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  22. Alan Wilkinson (1,878 comments) says:

    Our courts have lost all semblance of sanity. See Stephen Franks article in NBR for demonstrable utter lunacy:

    http://www.nbr.co.nz/article/suppliers-beware-ck-144868

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  23. Graeme Edgeler (3,289 comments) says:

    Our courts have lost all semblance of sanity. See Stephen Franks article in NBR for demonstrable utter lunacy

    Thanks for the link, Alan, it was very interesting. However, I do not read Stephen as saying that the Courts are in any way insane. He seems to me to squarely lay blame on the legislation crafted by Parliament. He describes the decision in the following way: “The Court of Appeal’s approach is a legitimate and orthodox interpretation of the words introduced in 2007.”

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  24. Matt (227 comments) says:

    This is great news, as it gives the government a fantastic excuse to introduce new changes to employment law

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  25. SPC (5,619 comments) says:

    Lawyers for Ms Bartlett and Terranova now have to go back to the court to argue over the appropriate “comparator” occupations to determine whether the company is breaching the act.

    Union secretary John Ryall said likely comparator groups included public hospital healthcare assistants, who are paid an average of $19.46 an hour after five years, psychiatric assistants in mental health facilities on around $22 an hour, and prison guards on around $25 an hour.

    Even the lowest of those, public hospital healthcare assistants, earn 27 per cent more than the median rate of $15.30 an hour for rest home caregivers with four to seven years’ experience in a survey by the Aged Care Association last October. The association’s chief executive, Martin Taylor, said it would cost an extra $140 million a year to lift all rest home caregivers to public hospital rates. “That would have a major impact on the sector. You would instantly find a majority of the sector would be close to insolvent,” he said.

    The landmark judgment is a serious upset. When the court hearing started in June, Mr Taylor said, a win for Ms Bartlett on the key legal issue was “a long shot” because there was no precedent for comparisons between different occupations since the Equal Pay Act was passed in 1972.

    But former Labour minister Margaret Wilson, now a law professor at Waikato University, said the act was waiting for a union willing to put resources into testing it. “There hasn’t been a tradition in New Zealand of litigation of employment relations matters of a collective or societal sort,” she said. The court’s interpretation of the act was in line with human rights legislation passed since 1972, she said, and reduced public tolerance of discrimination.

    Mr Ryall said the union would seek a negotiated settlement involving Terranova, other aged care companies and the Government, which funds the sector, similar to a $117 million settlement of a case involving 3700 disability workers on overnight shifts in 2011.

    Who gets what
    Hourly rates with 5 years’ experience
    • $25.53: Prison guard level 3
    • $22.35: Psychiatric assistant step 5
    • $19.46: Public hospital healthcare assistant step 4
    • $15.30: Rest home caregiver median after 5-7 years
    • $14.98: Stop-Go man at Allied Workforce

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11113573

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  26. Kimble (4,438 comments) says:

    “Why arent you paying us the same as that firm over there?”

    “Why are you working at this firm instead of applying for jobs over there?”

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  27. Alan Wilkinson (1,878 comments) says:

    @Graeme Edgeler, I think it’s more than interesting, it is appalling. As if subcontractors and suppliers don’t suffer enough already.

    Franks: “But it would have been less worrying if the decision had shown some sign of recognition of the costs of the decision. Instead the Court appears to have felt it was doing God’s work.”

    There is enough blame to go around.

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