The Equal Pay Act Appeal

February 4th, 2014 at 11:00 am by David Farrar

Stuff reports:

for women has again reached the courts, with thousands of workers and employers keenly watching the result.

The question about whether women should be paid the same as similarly skilled men in different industries was heard by the Court of Appeal yesterday.

The result of the case, which pits the Service and Food Workers Union against the aged-care sector, could have a drastic impact on other female-dominated industries throughout the country.

In 2012, the union launched a legal challenge fronted by Lower Hutt member Kristine Bartlett, who works at rest home provider TerraNova Homes & Care.

Ms Bartlett says her $14.46 hourly wage is less than would be paid to men with the same, or substantially similar, skills, arguing it was a breach of the Equal Pay Act.

In August, the Employment Court ruled in her favour, stating women in female-dominated industries could now compare themselves to men in other industries requiring similar skills.

Employers, who argued only the same work in the same industry could be compared, were outraged and TerraNova appealed.

I think it was a very bad decision which was more about law making that interpreting the law.

The Equal Pay Act was designed to stop cases where an employer might try and set different pay rates for men and women – such as saying female shop assistants are paid $14 an hour and male shop assistants are paid $15 an hour.

Parliament did not intend it to be say that (for example) nurses (mainly female) must be paid the same as police officers (mainly male). It is about saying female nurses should not be paid less than male nurses. The court’s decision was a massive expansion of the law, and one that should be made by Parliament explicitly – if that is deemed desirable.

Personally I deem it highly undesirable. Pay rates should primarily be determined by demand and supply – not by legislation.

The appeal concludes today, with the court to hear from other parties, including Crown Law, after Attorney-General Chris Finlayson asked for the Government to be represented because the decision could have “important public policy implications”.

The court’s decision is likely to be reserved.

I hope the Employment Court decision is reversed.

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43 Responses to “The Equal Pay Act Appeal”

  1. tas (590 comments) says:

    That makes no sense. How would you even define “other industries requiring similar skills?”

    I guess the left think everyone everywhere should be paid the same and expanding the Equal Pay Act like this is a step in that direction.

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  2. Zapper (925 comments) says:

    You hope it will be reserved or reversed?

    This is an insane decision and will not lead to so-called equality. We have equality, for the same jobs. Wanting the same pay for different jobs is not equality.

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  3. Manolo (13,327 comments) says:

    The resident feminist will be elated.

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  4. Bill Ted (79 comments) says:

    I think it’s fair to say the Employment Court decision had no basis in law, it was effectively a judge wanting to run a personal agenda. Anyone who thinks judges don’t abuse their position in this way is absurdly naive. It will be reversed. The biggest problem with behaviour like this is that it is enormously costly to appeal against a decision that should never have been made. They won’t be able to recoup costs from the judge in question, though they should.

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  5. slightlyrighty (2,496 comments) says:

    My question to Ms Bartlett would be, can you provide specific examples that would indicate a breach of the act?

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  6. burt (7,793 comments) says:

    Socialists … Next bill to be introduced is the bill that makes sure beneficiaries get the same pay as CEO’s.

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  7. Lance (2,439 comments) says:

    Bob Hawke said bus drivers and airline pilots do the same job. So a logical extension along those lines.

    Just to make it plain… this is sarcasm (there is usually some numb skull doesn’t get it).

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  8. Chris2 (754 comments) says:

    I imagine there must be some male rest home carers. If they are paid the same as the women, then where is the argument?

    Different story, of course, if the men are paid more than the women.

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  9. AG (1,759 comments) says:

    The court’s decision was a massive expansion of the law, and one that should be made by Parliament explicitly – if that is deemed desirable.

    I agree. I’m pretty sure the C. of A. will overturn.

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  10. anticorruptionnz (158 comments) says:

    I had this discussion with a girl promoting pay equity at the council elections she picked on the nurses and police scenario

    I wars a female police officer. I got paid the same as my male counterparts.

    Her argument for nurses was flawed as all police officers are on salary regardless of whether they work day shift or rosters , this is accepted within the police as fair as you know what wage you will be getting rather than fluctuating with various shifts.

    Nurses on the other hand get paid according to the shifts they work and the number of days they work , it is a totally different calculation and it’s like comparing apples with pears .

    I am with you David it is about male nurses and female nurses with the same experience working the same shifts getting the same pay. and for male and female police officers of equal experience and rank to get the same pay.

    If you don’t like your pay as a nurse then become a cop and vice versa.

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  11. wikiriwhis business (3,883 comments) says:

    ‘can you provide specific examples that would indicate a breach of the act?’

    That would have to come from employer data and employers ae too canny and in high places where the precedents obviously are made, too protected.

    Is it only female politicians who have broken the glass ceiling?

    Paula Bennett has shown no one else can do the same as her and has changed legislation to make sure.

    If National do lose the election she will be one of the factors.

    Basically put, women are betrayed by their own.

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  12. Harriet (4,497 comments) says:

    Aged carers?

    Well they wouldn’t bring up child carers……………….liberal white wimmin’s slave class!

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  13. anticorruptionnz (158 comments) says:

    ” In 2012, the union launched a legal challenge fronted by Lower Hutt member Kristine Bartlett, who works at rest home provider TerraNova Homes & Care.”

    I just looked up Terra Nova care and see that the shares are illegally owned by an unincorporated trust

    cant just ring the companies office and bring it to their attention you have to make a formal a complaint

    so guess these people who pay low wages to aged care workers have to hide behind secret trusts so that they can pocket the huge income off slave labour.

    Its the industry that needs looking at not pay equity

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  14. Fletch (6,004 comments) says:

    test

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  15. Fletch (6,004 comments) says:

    I keep trying to post, and it keeps getting marked as spam, so i will just post a link to the story.
    The “pay equality” thing seems to be the issue de jour being pushed by liberals here and in the U.S

    When even the left-leaning Daily Beast jumps in and says it’s not an issue, you know you’re on the wrong path.

    http://www.thedailybeast.com/articles/2014/02/01/no-women-don-t-make-less-money-than-men.html

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  16. weizguy (120 comments) says:

    Can someone explain to me why, for example, Nurses are paid less overall that Police officers? Is it simply a result of supply and demand, or are there more fundamental equity issues? As far as I can tell, Nurses are more qualified and perform a more technically difficult role.

    Equity, of course, is not the same thing as equality.

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  17. annie (537 comments) says:

    Nurses vs police officers:

    Both work shifts
    About same lvl of overall qualifcation needed
    Nurses have a certain amt of medical knowledge, cops a certain amt of legal knowledge

    BUT

    Cops work without backup
    Cops have to use more initiative, can’t look up protocols and ring the doctor every time something isn’t routine
    Both can press a panic button, but for cops the cavalry doesn’t arrive within 3 minutes
    Cops probably don’t take a one-hour morning tea once a week for staff birthdays/anniversaries/engagements/retirements/leaving/baby showers/new haircut.

    And, of course, there’s nothing to stop nurses becoming cops.

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  18. smttc (689 comments) says:

    What anticorruptionnz said at 12.23pm.

    It’s a bad decision. But what really pisses me off with the aged care sector is that it defends every claim by its workers for a pay increase with the response that it cannot afford pay increases without an increase in government funding. The industry is the biggest corporate bludge in the country.

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  19. jackinabox (555 comments) says:

    Nurses should be paid more than cops, they are a better class of people and, unlike the average malevolent cop, the average nurse’s compassion towards anyone and everyone tends to reduce ones thoughts of revenge against the porky bastards.

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  20. Paulus (2,493 comments) says:

    anticorruptionnz

    Nurses are much more feminised Unionists than the Police, hence the nurses differential – as you say a police person can be trained, and is already disciplined to do a nurses job, but can a nurse fit into a Police role, and would they really want to.
    Am not so sure.

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  21. slightlyrighty (2,496 comments) says:

    I’d like to ask Bob Hawke if he’d be happy with a bus driver flying his plane.

    I’d like to give an example where gender directly affected income. Imagine 3 people employed to do exactly the same job. 2 were women, one was a man. This is a retail sales role. The hourly rate was the same, the commission structure the same, yet at the end of every fortnight, the 2 women were making far more commission than the man.

    The reason was simple. The job was selling large kitchen appliances and whiteware. The women could not do the heavy lifting, so whenever something big needed to be moved, the bloke had to do it. While the bloke was doing the grunt work, the women were selling and making money.

    At least this bloke, (me) had the smarts and negotiation skills to bring this to the attention af management, and my hourly rate was adjusted to cater for the fact that although myself and these 2 women (who both acknowledged the unfairness of the situation) were doing the same job on paper, the physical nature of part of the job was beyond them, and that they were benefiting at my expense.

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  22. slightlyrighty (2,496 comments) says:

    I have utmost respect for nurses and police, but nurses are not known for dying in the line of duty,

    http://en.wikipedia.org/wiki/List_of_New_Zealand_police_officers_killed_in_the_line_of_duty

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  23. Longknives (4,411 comments) says:

    Slightlyrightly you are tempting fate with that last post- Jackinabox will be along shortly with yet another Anti-Police rant…
    It’s like saying ‘Candyman’ three times whilst looking in the mirror!

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  24. toad (3,669 comments) says:

    The Equal Pay Act was designed to stop cases where an employer might try and set different pay rates for men and women – such as saying female shop assistants are paid $14 an hour and male shop assistants are paid $15 an hour.

    That is not how I interpret it. Read section 3 of the Act:

    3 Criteria to be applied

    (1) Subject to the provisions of this section, in determining whether there exists an element of differentiation, based on the sex of the employees, in the rates of remuneration of male employees and female employees for any work or class of work payable under any instrument, and for the purpose of making the determinations specified in subsection (1) of section 4, the following criteria shall apply:

    (a) for work which is not exclusively or predominantly performed by female employees—

    (i) the extent to which the work or class of work calls for the same, or substantially similar, degrees of skill, effort, and responsibility; and

    (ii) the extent to which the conditions under which the work is to be performed are the same or substantially similar:

    (b) for work which is exclusively or predominantly performed by female employees, the rate of remuneration that would be paid to male employees with the same, or substantially similar, skills, responsibility, and service performing the work under the same, or substantially similar, conditions and with the same, or substantially similar, degrees of effort.

    (2) In determining whether there exists an element of differentiation, based on the sex of the employees, in the rates of remuneration for male employees and female employees for any work or class of work, no account shall be taken of any provision in any Act or Order in Council which limits the work female employees may perform.

    (3) Subject to any such provision in any Act or Order in Council and to sections 4 to 8, no instrument coming into force after 31 March 1973 shall contain classifications of work that differentiate, on the basis of the sex of the employees, in the work which male employees or female employees may perform.

    Here’s the Employment Court judgment for those who want to read the Court’s reasoning. Incidentally, it was the full bench of 3 Judges, not one Judge sitting alone.

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  25. Longknives (4,411 comments) says:

    Sorry I see he is already involved in this discussion with his own rather unique perspective!
    Don’t go changing Jack! (You crazy little weirdo…..)

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  26. jackinabox (555 comments) says:

    “Nurses are much more feminised Unionists than the Police, hence the nurses differential – as you say a police person can be trained, and is already disciplined to do a nurses job, but can a nurse fit into a Police role, and would they really want to.
    Am not so sure.”

    Unlike your average cop a nurse wasn’t required to leave his or her moral compass at the training college door. A nurse could never do a cop’ job because a cops job requires a level of deceit that is totally alien to the compassionate mind.

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  27. nickb (3,658 comments) says:

    Longknives – jack is probably just bitter for taking a taser to the chest or baton to the nuts after smoking Kronic.

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  28. jackinabox (555 comments) says:

    Never been Tasered, batoned or smoked Kronic nick so bite your bum.

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  29. tas (590 comments) says:

    Re. Nurses vs. Police:

    If a Nurse can’t handle a situation, they get a doctor to do it for them
    If a Police officer can’t handle a situation, they end up in hospital.

    Plus police need more skills than nurses.

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  30. jackinabox (555 comments) says:

    “If a Nurse can’t handle a situation, they get a doctor to do it for them
    If a Police officer can’t handle a situation, they end up in hospital.”

    Where a nurse fixes them up and the cop hopefully learns that compassion and empathy are more productive than Tasers and batons.

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  31. wrightingright (136 comments) says:

    it is absolute craaazy that the law was so bad it would be so woefully misinterpreted in the first place!!

    though really, do we even need such a law at all, what is the big deal in having an employer deciding to pay females more than males or the other way round?

    I don’t expect a male stripper at a club to earn the same amount as a female stripper! And the employer should be free to recognise that fact too.

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  32. Lipo (229 comments) says:

    Question – Why is it the courts decision to increase the pay of the Nurse relative to the comparative profession (Food workers?) so they would both be equal?

    Why does the court not rule that the comparative profession (Food workers?) have their pay decreased to match that of the Nurse?

    Why always in these discussions the outcome for equal pay is about increasing the wage rather than decreasing wage ofthe other party. Same outcome as they would both still have pay parity

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  33. gump (1,474 comments) says:

    @slightlyrighty

    “I have utmost respect for nurses and police, but nurses are not known for dying in the line of duty,”

    —————————-

    A few Kiwi nurses have been killed as a result of their work. The case that springs to mind is Michelle Beets – she was murdered by one of her colleagues after she write him a bad reference.

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  34. Bill Ted (79 comments) says:

    Toad – you’re right, it was the full panel of judges. My mistake. Makes it even worse that we have three judges that can make such an obviously poor decision – but then I guarantee they knew exactly what they were doing. I take it from your post that you read that section as meaning ‘work’ is irrespective of the employer – i.e all work is potentially comparable, regardless of industry or employer. The problem with that, is it doesn’t say that, and the legislation was never written to mean that. If it was, we wouldn’t be just now seeing this case, 40 years later. In interpreting the law, judges must recognise the intent with which it was written, as guided by Parliament. They don’t get to alter the interpretation to suit their personal philosophy.

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  35. Longknives (4,411 comments) says:

    “the cop hopefully learns that compassion and empathy are more productive than Tasers and batons.”

    Compassion and empathy will achieve sweet fuck-all when faced with a P-fuelled nutjob with a machete.
    I suggest you visit planet earth sometime…

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  36. OTGO (510 comments) says:

    Nurses deserve more pay than cops because I’ve never been given a speeding ticket by a nurse.

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  37. emmess (1,368 comments) says:

    I have a question for the presiding judge.
    As you are now comparing skills required one job against another and given that anybody can judge, why do you think you should be paid any more than say your secretary, for example?

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  38. big bruv (13,217 comments) says:

    This is bullshit. We already have equal pay in this country. This is simply another attempt by the scum left to attack the government.

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  39. Grendel (950 comments) says:

    with the nurses vs cops thing, here is another thing to be aware of. When nurses contract comes up, they can go on strike and try and hold the employer to ransom for more pay.

    when the cops contract comes up, if they cannot get an agreement then what happens is that the govt puts forward their offer, and the police union puts theirs forward and the mediator picks 1. no middle ground, no haggling, no strikes.

    so, even though they have to be much more reasonable, the police are able to negotiate better pay. so much for militant unionism.

    of course, nurses are not badly paid, i no plenty on 70K plus.

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  40. Jim (396 comments) says:

    It isn’t really possible to compare pay across jobs “with the same, or substantially similar, skills, responsibility, and service performing the work under the same, or substantially similar, conditions and with the same, or substantially similar, degrees of effort.”

    There is a lot more to real life pay than those criteria. Consider domain-specific knowledge (not skills), profitability of industry sector, value of the role within the industry. Many candidates may qualify under those broad criteria. You need to pay to attract higher quality, candidates with desirable “plus points” may be more scarce by industry, and different industries will set the bar at different levels.

    The Equal Pay Act has a prejudiced view of causality; it is based on the sole assumption that any difference must be due to systemic negative gender discrimination. It is likely nowhere as straightforward as that.

    The Court’s decision didn’t actually include any determination on what other industry could be compared to aged care. They mentioned the absurd example of gardening as a male-dominated industry paid more than caregivers, but then went on to say they couldn’t say whether that was a useful example. WTF?

    Will we see the Silver Ferns demand income equity with the All Blacks?

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  41. wreck1080 (3,725 comments) says:

    why do cops get paid more than nurses? Nursing is an incredibly stressful and highly trained job. (3+ years of study).

    Cops study for 6 months and get more money.

    I know why , cops are male dominated and aggressive with pay requests and nurses not.

    However, the nursing council is guilty of being misogynistic too – by penalising their members who leave for a period to have children. Surprising, you’d think a women dominated organisation would understand the difficulties of raising children and maintaining a career.

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  42. wreck1080 (3,725 comments) says:

    @lipo — not sure how nurses compare with food workers — one is a govt profession, the other is commercial and not even really a profession.

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  43. CharlieBrown (889 comments) says:

    Not only should the decision be reversed, the people that made that decisions should be sacked with all wages during the case docked.

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