Employment (Pay Equity and Equal Pay) Bill

I move, That the Employment (Pay Equity and Equal Pay) Bill be now read a first time. I nominate the Transport and Industrial Relations Committee to consider the bill. This is a historic bill. When passed, it will ensure that female-dominated occupations that have historically been subjected to gender pay discrimination are in future paid fairly. It will make a vital contribution to closing the gender pay gap.

I raise a point of order, Mr Speaker. This is an important debate, and I would appreciate the opportunity to explain the bill and its intent without the barrage that started from the moment I stood up.

💬 Mr DEPUTY SPEAKER: I hear the member, and I take his comments. I do not yet think it has yet registered as a barrage, but I am prepared to monitor it closely.

Moreover it will have a substantial impact—[Interruption]

💬 Mr DEPUTY SPEAKER: Don’t push it! Order! [Interruption] Order! Just have a bit of a listen to the speech. Treat it with the respect that it should be.

—for women in the labour market. Addressing and correcting the pay imbalance created by systemic undervaluation will benefit individual women, their families, and future generations in New Zealand. This bill had its genesis in the commencement of proceedings in the Employment Court in 2012 by the Service and Food Workers Union, now E tū, on behalf of Kristine Bartlett, in proceedings now known as the TerraNova case. In 2014 the Court of Appeal upheld the Employment Court’s decision that the Equal Pay Act 1972 applied not only to cases of equal pay—the same pay for the same work—but also of pay equity: the same pay for work of equal value.

In the wake of that decision, the Government took two important steps. Firstly, it entered into negotiations with the union and Ms Bartlett, which culminated in a more than $2 billion settlement—55,000 care and support workers received pay increases of up to 71 percent over 5 years, following the passage of the Care and Support Workers (Pay Equity) Settlement Bill. Secondly, the Government established the Joint Working Group on Pay Equity Principles. That group, led by Dame Patsy Reddy, made recommendations on a set of principles to guide pay equity claims, a process by which the claims were considered, and a dispute resolution process to help parties to keep moving forward in the claims process without having to rely on the courts in the first instance, as they would have under the Equal Pay Act, which can be expensive and prohibitive.

The working group was groundbreaking in its process and involved hard-working commitment from all parties, and I am grateful for their dedication. In November 2016 the Government accepted all of their recommendations and this bill gives effect to them. The bill replaces a grievance-centred process of the present legislation with one more aligned with the bargaining-based approach of the Employment Relations Act. The working group made considerable progress in taking the ideas of pay equity forward. However, in order to maintain consensus, it was necessary that the recommendations were focused on high-level principles. In developing this legislation we have had to drill into a further level of detail while retaining consistency with the principles of the working group.

There was one area where the joint working group was unable to reach a consensus. Again, we have made decisions here to support the workability of the pay equity principles. The result is a well-grounded bill that will allow parties to effectively work together to address systemic, gender-based undervaluation of work performed by women. The bill provides employees with a right to make a pay equity claim directly to employers. From there, employees and employers must work together to determine whether the claim has merit, meaning that the work is predominantly performed by women, and that there is a reasonable cause that the work could be subject to both historic and current undervaluation.

In assessing whether the jobs are subject to ongoing undervaluation, parties will look at the market features for that job to understand why wages may remain depressed. The bill sets out factors that could result in this sort of undervaluation, which include circumstances where an occupation may lack competition, have a dominant source of funding, and/or lack effective bargaining. This process is entirely consistent with the joint working group’s recommendations.

I would also point out to those who say the merit-establishment process is too onerous or that establishment of merit should not preclude bargaining and look to the TerraNova case to support that view, that the Employment Court did not even get to the point of establishing merit. That step was still to be taken when the Crown stepped in and, in all likelihood, would involve similar questions to those set out in this bill. If the parties agree that a claim has merit, they move into pay equity bargaining where the work is assessed against appropriate comparators, to reach a settlement to address the pay equity in that role. At each stage of the process, the parties will be able to access facilitation, mediation, and Employment Court determinations as necessary.

In determining which comparator is the most appropriate for a certain claim, the bill establishes a hierarchy of comparators to support the appropriate selection. This starts with comparators within the employer’s business, moving to similar businesses, then the same industry or sector, and, finally, comparators outside the industry or sector. This hierarchy of comparators was the point upon which the joint working group could not agree. The Government believes it is a necessary component of efficiently reaching an appropriate comparator, and consistent with the Employment Court’s expectations.

I refer members to the following comments of the Employment Court judgment: “is the Authority or Court entitled to have regard to what is paid to males in other industries?”. It answered thus: “They may be if those inquiries of other employees of the same employer or of other employers in the same or similar enterprise or industry or sector would be an appropriate comparator group.” My interpretation of that statement is that regard to what is paid to males in other industries should be made only after inquiry of the same or similar industries does not identify a valid comparison.

The Court of Appeal found that the Employment Court’s answer to that question was not wrong in law. However, I should stress that the parties are not bound under this bill to that methodology. If they can agree an alternative method for determining the equity gap, then they are free to do so. There are other approaches for carrying out this assessment, and parties, by agreement are free to draw on the approach that is most appropriate to their particular claim.

I can also advise the House that as far as I can establish, the ability to use a comparator after checking within an organisation or industry is more progressive than any other country with whom we compare. The European Union, the United Kingdom, California, Australia, and most provinces of Canada restrict comparisons to within a workplace or industry. New Zealand will be far more enabling in this regard.

Another area of contention is that of back-pay. Back-pay for up to 6 years remains payable under the equal pay provisions of the bill. For equity claims the commencement of back-pay is the date a valid claim is made. The reason for no further arrears prior to that point is that unlike equal pay underpayment, where the employer has consciously paid a woman less than a man doing the same role, that condition does not exist in a pay equity claim. An employer and employee have—

💬 Jan Logie: They have a legal requirement to do it now. You’ve let them away with it for 40 years.

Pipe down, Jan. You will blow something. An employer and employee have previously bargained an appropriate rate, often with the support of the union, and the employer has kept faith with that agreement. The rate is paid to both men and women performing that role, notwithstanding that it is female dominated. Under these conditions, and especially given that funding may have been provided by a dominant funder or purchaser on the basis of an agreed rate of pay, the Government does not consider further back-pay appropriate.

I would note that notwithstanding the strident criticisms already levelled at the Government, which, no doubt, are about to come my way during the first reading of this bill, the TerraNova settlement, which put $2 billion into the pockets of 55,000 care and support workers, was, I understand, achieved by reference to comparisons within that industry and without the payment of back-pay. It was a forward-looking settlement, and this bill is also forward-looking. Statements by unions and others that the TerraNova settlement could not have been achieved had this bill been in law just do not bear up to any scrutiny of the facts.

Another comment we are bound to hear tonight is that the Government, in the face of the Court of Appeal decision, was forced against its will to settle the TerraNova case out of court. This is patent nonsense. In the first place, the Government was not even a party to those proceedings. It made interventions but it was not party. Second, the Court of Appeal simply ruled that the Equal Pay Act provided equal pay should be paid for work that had equal value. That was the start line. It took 3½ years just to establish whether or not section 9 of the Equal Pay Act prevailed.

The point is, had the parties been left to their own devices, they would have been locked in court for years and years. The Government chose to intervene, because it accepted that this hard-working group of mostly female employees deserved better. It acted decisively, and the notion that further claims would be better dealt with under the Equal Pay Act than this bill is just ludicrous. Nevertheless, I have no doubt that we will continue that conversation with the unions, business, and other interested parties as we have over the last couple of years. I commend the bill, and I look forward to that conversation.

In amongst all of that from the Minister for Workplace Relations and Safety, I have one simple question for the Minister—one simple question. Does he believe in equal pay? Does the Minister believe in equal pay? It is 2017, and does the Minister who just took his seat believe in equal pay? Because if he does, how is it possible that he could present to this House a bill that takes us not only a step backwards but an entire generation backwards in terms of our ability to actually move forward in terms of giving women access to pay equity?

Fundamentally, the achievement that the Minister has spoken of, the achievement by Kristine Bartlett, will not happen again under his law. It will never happen again. It will be a first and it will be a last, and that is an absolute disgrace.

If I speak personally on this issue, or if anyone senses some deep personal connection to this issue, I am sure they will hear that from many women in this House. I grew up surrounded by women who have been in low-paid work. I have seen the indignity of that low-paid work, particularly when it has been compared with the work of others. There is no dignity for women who are working predominantly in areas of valuable work but, because they are areas that have been dominated by women, they are, by virtue of that, earning low wages. That is absolutely unacceptable in 2017.

I want to speak to the things that gave rise to this bill—how we got here in the first place. I cannot do that without acknowledging someone whom we all, on this side of the House, would call a modern-day hero—Kristine Bartlett. She, alongside her union, E tū, took a case against her employer, TerraNova Homes and Care Ltd, went to the Court of Appeal, took a case under the Equal Pay Act 1972, and got a result that would not just affect her life but the lives of tens of thousands of women—tens of thousands of women. It was a landmark case. We had an opportunity at that point to improve the access of other women, to be able to ensure pay equity in our lifetime. Instead—instead—we have this bill.

But what could have been? What could have been? And should we actually have even seen the writing on the wall? I was actually reading an article written by Wellington employment lawyer Steph Dyhrberg. Not only does she outline the simple premise of pay equity, she flagged a couple of warning bells that after the historic landmark pay rise, the Prime Minister was reported as warning that the carers’ case was “unique”. Well, actually, it is not unique; thousands of women are in the exact same set of circumstances. He called it unique straight away, when, actually, it should have been a benchmark for what we were doing for others. It was unique and “the hurdle would be pretty high”—the hurdle would be pretty high.

💬 Grant Robertson: Only if you set it high.

My colleague is exactly right. The Minister obviously established, alongside his Government colleagues, that, actually, maybe the hurdle was not high enough. So that is where this bill came from.

Let us look at what actually could have been. There was some goodwill around the table, Minister—there was some goodwill around the table. The Government, unions, and Business New Zealand all came together to create the joint working group. They negotiated on the basis that there were assurances that the 1972 Act would remain and they would be making amendments to that. That is not what has happened. We have not enshrined principles; instead we have done away with them, and we have done away with any hope that we will make any further progress in this area in the future. Why? Because the very essence of what the Kristine Bartlett case was based on has been gutted.

The point I want to start with is comparators. The easiest way to explain the comparators is that if you are looking at a workforce, a sector, that is dominated by women, then in order to establish what equal work of equal value is in another sector, you use comparators. That is what happened in the Kristine Bartlett case. There was a very pragmatic approach, and there was a wide range of comparators that were used. There was not a lot of ongoing dispute where time was wasted simply settling on one; a range of skill sets were used to formulate what would be an appropriate outcome in that case.

So what has the Minister for Workplace Relations and Safety instead come up with? Instead, in this case, this bill introduces a hierarchy of comparators that attempts to keep male comparators as close as possible to the female claimants’ workplace. That fundamentally does not work and misses the point of having to resolve cases where the workforce is predominantly female. So in the case of TerraNova, TerraNova tried to use male gardeners as a comparator, and that would be the exact kind of outcome you would see if you follow the Minister’s logic. Yet the complexity of the job that Kristine Bartlett and others were doing should have been compared across a wide range of other sectors.

💬 Hon Michael Woodhouse: Oh, read the bill, Jacinda.

Minister, I absolutely understand. I absolutely understand this bill, and if the Minister is claiming that I do not understand, why did he not implement what the joint working group suggested? Why did he not introduce what the joint working group suggested: not only comparators within the same employer but comparators from within a similar employer; if none are appropriate, then comparators from within the same industry or sector; or, if none are, then appropriate comparators from a different industry or sector? He has removed the flexibility that led to the successful outcome of the Kristine Bartlett case.

💬 Hon Michael Woodhouse: Oh, rubbish.

Absolutely, it is true. It is true, and every single person involved knows that. But that is not the only issue—that is not the only issue. I ask the Minister as well: has the barrier to taking a case increased? Has the barrier to taking a case increased?

💬 Hon Michael Woodhouse: No.

OK, well, let us look at the requirements. The requirements for women to prove merit in order to initiate a pay equity claim—they need to prove that their part of the workforce is 66 percent female dominated, prove it is historically undervalued, and then prove it is the subject of ongoing undervaluation, including through detailed labour market evaluation. The bar that has been set in this bill makes it absolutely untenable for women, especially, who work outside of unionised workplaces to be able to establish a case. We are asking them to establish a set of macroeconomic criteria in order to demonstrate that they have merit in their case.

Yes, there are some sectors that will have a union that can do this work, but what about the rest? What about the rest? That is where we say that there is a much higher barrier to access equal pay claims. But not only that; not only is the barrier high for new cases, it actually now exists for all cases. This bill not only says that going forward will this apply; it actually says that for any case, even under way now—I am sorry, but the Equal Pay Act no longer exists. You now have to operate under this legislation, which is utterly unfair in the way that it is applying retrospectively to any other sector that is currently under negotiation. That is patently unfair. Where else does this House do that? It is very, very rare that we would pull the rug out from underneath a sector in this way. It is utterly unfair.

But I want to come back to that simple issue again of the fact that we stood with pride in this House, the Government stood with pride in this House, and declared that the Kristine Bartlett case was a success that we should all feel good about—that we should feel good on behalf of our mothers, our sisters, our aunties, our daughters, and granddaughters; that we should feel proud at what had been achieved. And then, within the bat of an eyelid, we fundamentally changed the ability of anyone else to achieve that moment in the future.

I think, again, the article by Ms Dyhrberg—I want to refer to that again, because she, in my mind, sums it up perfectly. Her closing statement is: “Contrary to the stated purpose of the draft bill, it does not re-enact and modernise the Equal Pay Act and it does not implement a workable regime based on the Bartlett case and the joint working group report. Passing this bill would be a major backwards step for pay equity. It could bring New Zealand under renewed criticism from the ILO for failure to comply with the ILO 100. The bill and, as importantly, the policy underlying it require significant change if women in New Zealand are to achieve pay equity in our lifetimes.”

I give you this commitment now: Labour will not rest until we have pay equity in this country. We will not rest. It starts with voting against this bill today and then it restarts on 23 September when we have a chance to make this right.

Thank you, Mr Assistant Speaker, for the opportunity. I am taking this call to support the Employment (Pay Equity and Equal Pay) Bill in its first reading. It is amazing to see that the Opposition opposes this bill, and, on the other hand, they say they are committed to pay equity.

I want to acknowledge our Minister the Hon Michael Woodhouse for introducing this bill. This bill is to support a pay equity regime by providing a practical and fair process for employees to follow if they feel that they are not being paid fairly, as per their job. I also want to note that this is an issue that is not confined just to New Zealand. It is a worldwide issue. The whole world is working towards gender parity. But here in New Zealand this National Government is committed, and this bill will close the gap. We started working on this issue several years ago. We established a joint working group that was made up of representatives from employers, unions, and the Government. They came up with principles to address the issue of equal pay for work of equal value.

The Equal Pay Act is not equipped to deal with equity claims, so it is important that we address the issue of equity claims. With this bill, employees will be able to raise the issue of equity claims, which is important, and it is important that we have a process in place as to how that can be followed through in a fair manner for both employees and employers.

This bill is consistent with the recommendations that were made by the joint working group. This bill amends the Employment Relations Act 2000, and repeals and replaces the Equal Pay Act 1972 and the Government Service Equal Pay Act 1960.

In this discussion of gender parity and pay equity I want to say that we should never forget that New Zealand is the first self-governing country to give women the right to vote. We also must acknowledge that since our suffragists earned for New Zealand women the right to vote, we have come a long way. It is important for us to acknowledge that we have come a long way. We cannot dismiss that.

If we look at the number of women gaining tertiary qualifications, if we look at the number of women getting into the workforce, and also at the number of women getting into male-dominated jobs—and also we are making great strides in helping women get into senior positions and leadership positions.

But we know that the challenge is not over. We know there is more that needs to be done, and that is the important thing that this National Government recognises—that the challenge is not over, and we need to do more. That is why we have this bill before the House.

We have a gender pay gap of 12 percent. Yes, it is down from 16.3 percent in 1998. Yes, it has fluctuated. In the OECD countries we rank quite low for gender pay gap. But the point is that any kind of gender pay gap is not acceptable. This National Government recognises that, and that is why we have this bill before the House. We know there are several factors that contribute to the gender pay gap. It is not just one factor. I am sure the Opposition members know those factors. But, along with those factors, the unconscious bias and discrimination towards an individual because of their gender is the issue that bothers everyone.

Yes, the Government is doing its role, through this legislation, but I would say that our business communities, our business leaders, our non-governmental organisations, our career advisers, and our communities—everybody needs to come together, to understand the importance of respecting and valuing difference, to have inclusive workplaces, and to work towards rooting out workplace bias.

This is a great bill. I support this bill and commend it to the House. Thank you.

As a member of Parliament who has only, so far, experienced Opposition—but I am expecting a change in the near future—the opportunities to experience real joy in this House have been few and far between. I can think of moments like when we passed the marriage equality legislation. I can think of the moment when we managed to amend the Government’s bill on zero-hour contracts, so that we could get it so it actually eliminated zero-hour contracts. And I think of the night when we passed the Care and Support Workers (Pay Equity) Settlement Bill—a Government bill, no less. It was a Government bill that we all celebrated. It was a night when we experienced real joy and celebration in this House because we knew we were doing the right thing. We were righting a wrong that had existed for far too long.

Well, tonight we are debating legislation that will ensure that that moment of joy never happens again, and that is wrong. It speaks to the hypocrisy of that Government, which celebrated and insisted that it was the Government’s win, when it then turns around and says it is going to pull the rug out from underneath every other woman and every other group of women who attempt to achieve a settlement like it. That is shameful.

💬 Carmel Sepuloni: It is shameful.

It is shameful. Government members should be ashamed of themselves for bringing this legislation to the House.

The member who gave the previous contribution, Parmjeet Parmar, made a brief acknowledgment of the gender pay gap. The gender pay gap exists in New Zealand and it is persistent in New Zealand. It really does not matter how we compare with other countries. Our task in New Zealand is to eliminate that gender pay gap. That gender pay gap is driven by two things: one is pay inequity, and the other is pay inequality. Those two things are different. I think it is important that the House recognises that those two things are different, and that that is acknowledged in this legislation.

So unequal pay is when a man and a woman are doing the same job, in the same business, and they are paid different rates of pay for doing that same job. Pay inequity exists when professions that are female dominated and male dominated are scoped to the same level of skill, the same level of education is required, the same level of risk is involved, and the nature of the jobs is the same but they are paid at different rates because one is male dominated and the other is female dominated. While both exist, and both need to be eliminated, the gender pay gap in New Zealand is predominantly driven by pay inequity: the difference between professions that are male dominated and female dominated, and the different rates at which they are paid.

That is why those of us who are in the Opposition are so distraught over the fact that the Government has set this hierarchy that requires that people who are attempting to make a pay equity claim have to look within their own profession, within their own industry, before they can start to make that comparison across industries. Because, largely, when you look within an industry, when you look within a profession, you will not find that inequity and you will not find the appropriate comparisons to make because of the nature of the inequity, which is that female-dominated professions tend to be paid less than male-dominated professions.

Before I came into this House I was lucky enough to be an employee of the New Zealand Nurses Organisation (NZNO). Unfortunately, I was not an employee of the Nurses Organisation when it had the big pay jolt for nurses; it happened just before I started working for it. But I learnt a lot about that pay jolt when I was working for the NZNO, and what was at the core of that was the nurses’ ability—that was not even a pay equity claim; that was just bargaining—to demonstrate that because their profession was a female-dominated profession, they were paid less than a profession that scoped to the same skill rate, the same risk rate, and the same tasks and challenges that were faced in a male-dominated profession. In that case, it was the police and other professions were included, as well. But that was absolutely core to their ability to make that claim and to be able to win that claim, and, again, to achieve something that everybody celebrated.

I am sure National celebrated it back then, when they were in Opposition, as well—that, finally, nurses were being paid appropriately. That could not have happened had they not been able to make the case that a pay inequity existed between the nurses’ profession and an equivalent male-dominated profession.

That is why Opposition members of Parliament oppose this bill—because it is specifically designed to stop a settlement like the care and support workers’ settlement happening again. It actually flies in the face of what the International Labour Organisation (ILO) tells us we should be doing to achieve pay equity. The ILO specifically says that comparisons should be able to be made across industries. I know that members opposite will say that this bill allows for it, but why have the hierarchy in place in the first place? There is no place for it. It does not actually make any sense, unless the purpose of the legislation is to diminish the opportunity to make a pay equity clam.

The sad thing about it is that the joint working group actually seemed to be making really good progress and seemed to have reached agreement around these principles. It was only at the eleventh hour that the Government withdrew its support, and I want to hear from just one member opposite why that happened. Why was it that the Government that seemed quite happy with reaching consensus around all the principles—why was it that this one in particular, this question of the proximity of the comparators, suddenly changed at the last minute? It is unfair, it is unreasonable, and it simply does not make any sense.

What we should be debating tonight is not the repeal and replacement of the Equal Pay Act but, in fact, amendments to the Equal Pay Act to make equal pay and pay equity claims easier in the future. But the fact that the Government has gone so far to remove the piece of legislation under which the care and support workers’ settlement was achieved and replace it with something that actually diminishes working women’s ability to take a claim, I think speaks volumes about what the Government is trying to achieve with this legislation.

I want to support the commitment made by Jacinda Ardern in her contribution to this debate this evening. If a Labour-led Government is elected at the upcoming election, which will be before this legislation has any opportunity to be considered by the select committee, that will be the end of the line for this bill. We will introduce amendments to the Equal Pay Act that actually achieve what the Government claims to be achieving: making it possible for more working women to be able to make equal pay and pay equity claims; to be able to achieve that—I was going to say nirvana; it should not be nirvana, it should just be the way it is. It should just be the way it is in the 21st century.

It is to achieve normalcy. Let us achieve normalcy, where it does not matter if a profession is male dominated or female dominated—that pay equity can be achieved, and it does not matter whether you are a man or a woman doing a job, equal pay can be achieved. That is our commitment. We are not going to muck around with this. We are not going to have silly hierarchies, silly rules that set the bar too high, to make it nearly impossible to establish a claim.

We want to make it as easy as possible, because, quite simply, on this side of the House we do believe in pay equity, we do believe in equal pay, and we believe in working alongside those who have driven this issue for years and years and years to put in place the mechanisms that will achieve it. And if the parties opposite—the National Party, in particular—truly believe in equal pay and pay equity, then they will join us in doing that.

We do have an election coming up on 23 September and I do hear what the member opposite, Iain Lees-Galloway, says, but he must also consider the prospect that he may still be—as others may be—an Opposition member; therefore this bill will go through the select committee process. That member knows, because he is a member of the Transport and Industrial Relations Committee, that that committee has handled some very complex bills in the past. One of them, of course, was the Health and Safety Reform Bill, which we adopted after—we did a very good job on that committee.

There were provisions put into that bill that did not need the grandstanding of that member’s claims when he says that he brought magnificent change about. That was not the case, and he knows that. The Employment Standards Legislation Bill was another bill before that committee that had a lot of complexity. This bill has complexity in it, and if there are members of that committee who exist in Parliament today, they will go forward and will be looking at this bill, and then the people of New Zealand can be assured it will go through a robust process, which this Parliament ought to be proud of, out of all parliaments in the world, because it is a fair and robust process. The public come in, they say their piece, they are listened to, and they are considered in terms of what they say.

We have a history in this country of leading the way in terms of recognition of the valuable contribution of women in our society, and there is more to do. There is more to do; we acknowledge that. As a previous speaker Dr Parmjeet Parmar said, we have gone from 16.3 percent in terms of the pay equity gap, down to 12 percent, and we need to go further. Obviously, that is why this bill is before this House, where we can champion the valuable contribution of women and value that contribution through pay equity. I can assure you that I and other members of this Parliament want to seek that end, and that is true.

We all know women in our lives who make magnificent contributions in our workforces, in all sorts of places of employment, and it is very, very important that we continue to drive this battle forward and see that acknowledged. Women’s participation in the New Zealand labour market continues to grow: 65.3 percent compared with 1995 when it was 55 percent. So there is recognition of the value of contribution—there certainly is. We see that women now have the highest participation rate ever on State sector boards, at 43.4 percent. So we are making progress. There is more to be made. There is more to be made and we will continue to press forward with this work in this country, to continue to be a world leader in this aspect.

There are lots of details, there are lots of mechanics that obviously have come under discussion and debate tonight, and that is a good thing—that is a good thing. This bill distinguishes between equal pay, unlawful discrimination, and pay equity claims, and provides for a process for making and resolving each type of claim. We will test that as we go through the committee. I am very pleased to support my Minister and colleague the Hon Michael Woodhouse and commend this bill to the House. Thank you.

It is with great frustration I rise to speak on this misnamed pay equity bill. You know, while sexism continues in this country, it is not often that you meet a person who will admit to their own misogyny. I think probably that that is progress, but when this Government tells us that this is a pay equity bill, when it is actually putting hurdles in the way of women being able to achieve pay equity, I think we have got a problem—that actually we need to get to the root causes of pay inequality in this country and this bill does not do it.

This is a fight that was started with the suffragettes. This was third on their list of things to do—to achieve equal pay for work of equal value. It was right after getting the vote and getting women into Parliament. It was that high on their list because it matters. It matters that women’s average hourly earnings are 13.9 percent lower than men’s. For Māori women that is 22.9 percent lower, and for Pasifika women it is 28.4 percent lower. They are not just figures. You add up those hourly earnings, and what that means on a weekly level, and what that means on a yearly level, and what that means when you get to retirement. It adds up to about $600,000 less than what men earn over their lifetime. That means women struggle to put food on the table and keep the roof over their heads, and when they are most likely to still be the sole caregiver for children, it means their children are less likely to have those secure things in their lives.

It means more than actually just what the money can buy. It is what the money represents. It is about our place in this society. It is about the value that is given to work that has traditionally been women’s work—work that matters, work that provides for other people, the caring that makes our society hold together and ensures that everyone has a place in it, the work that is mostly still around minimum wage or not much more because of discrimination and historical underpayment. This, the fight that Kristine Bartlett took with her union, E tū, supported by the New Zealand Nurses Organisation and the Public Service Association, through the courts against the employer TerraNova, which was supported by the Government—might I add—through that court process, was to prove that our Equal Pay Act, which was written in 1972, could be used to actually work out what was fair pay for women-dominated employment or jobs.

The court said it was. The court said that economic arguments and considerations did not come into play in this discussion. Economic arguments were used to justify slavery and they had no place in this discussion. The courts also ruled quite specifically, I understand, that they “allowed” historical social and structural evidence as part of the substantive claim—“allowed” those things. They did not “require” those things. The joint working group principles that were agreed were that historical data “may” be used alongside other things—“may”—and now we get legislation that requires “must”.

The market was no part of that discussion. That has been added by the Government of its own initiative. What I understand that that means, having heard from a person working in the Ministry of Business, Innovation and Employment, is that the Government does not believe that women can be undervalued or underpaid in the private sector, because apparently the market decides the fair rate of pay, so therefore the market is never influenced by sexism or history or any of those things; the market is always right. So they have built this in here to put another barrier in the way of women getting fair pay for their work.

💬 Hon Michael Woodhouse: Now you’re just making stuff up, Jan.

I am not making this stuff up, Minister. The court also rejected—and let me outline this, because we have heard from the Minister about the comparators—that actually there is no big deal what they are putting in here, it is not a problem at all. This is despite the fact that Jacinda Ardern has already read out comments from Steph Dyhrberg from LawTalk—and I understand that she was the lawyer in the Kristine Bartlett case representing the Coalition for Equal Value Equal Pay, so she is quite informed around the detail of this bill and what happened in that case. What I understand is that in Kristine Bartlett’s case, her employer, TerraNova, tried to argue that they could assess whether her pay was fair by starting with males in the same workplace. The court rejected that argument and ruled that pay equity requires male comparators from jobs and sectors that are clearly unaffected by gender bias—that is male-dominated jobs and sectors.

So what the Government has set up in this legislation—and what I need to say—is that those points around proving merit around history and the market place are going to require the employee to put all of that evidence together and convince their employer. They will have to convince them by looking at comparators, first, in their own workplace. The employer is the one who has got the power around that, and if there is a dispute it is going to end up as a dispute, and if they cannot get agreement there: the court sends it back, and then they are saying, “OK, let’s look for a similar employer.” Again, the same process might happen and it might end up going back to a tribunal, and then, next, they have to look for a comparator, if they cannot get it there, within the same industry.

Again, there is potential for dispute and going around and around, and then, finally, if they cannot find one through any of those three places, then they find one in a different sector or industry like the court said they should look at in the first place. This is just potentially creating a legal tangle and so many hurdles that it is just unrealistic to expect a woman to go through this process. I think that is the intent of this legislation.

I do think that there is also a point when you are looking at comparators there is an understanding that female-dominated is when 66 percent of the workforce are women, compared with—you would expect it to be the same and that male-dominated would also be 66 percent. But no, in this legislation male-dominated is defined at 50 percent—“dominated” at half and half? Hum. Actually, the pay equity experts I speak to say this is looking more like an equal pay case because industry, if it is half and half, is likely to be affected by gender discrimination as well. So they are just skewing the whole game.

Then the Government is removing the right to back-pay. We have heard from the Minister that it said that the caregivers gave up on their right to back-pay—that is true—but the working group did not. It did not give up the right of any other group of women to access back-pay. This Government is looking at taking that right away—that commercially established right that anyone else in this country has.

I heard the Minister say earlier: “Well, pay equity is different because you might not know that you’re discriminating against them.” We have had equal pay legislation since 1972. There has been a legal requirement for employers to provide equal pay and to pay women fairly. If they have not worked out that they are not doing it yet and if they have not been listening to the women in their workplace, then, actually, they should be held responsible for that, and they should be liable to pay back-pay.

Another aspect of this bill that is pernicious is that it is retrospective. There are about eight claims that have already been laid, as I understand—six to eight claims—for groups of women who are not being valued and who are not being paid fairly, and this bill will change the entire game for them mid-game. They have started the conversations and they are going to have to start them all over again.

This bill, and just the Government’s gall to come into this House and pretend that this has anything to do with furthering women’s rights, is an absolute shame. The Green Party is pleased to oppose it.

Kia ora, Mr Assistant Speaker. I rise on behalf of New Zealand First to oppose this bill. We will oppose this bill because it does not do what women fought for it to do. It does not do what the working party asked for it to do and agreed that it would do—and Business New Zealand was part of that working group. It sets about to do away with the Equal Pay Act of 1972, rather than just amend it. It throws the baby out with the bathwater. As both Jan Logie and Jacinda Ardern have articulated very accurately, it sets in the way larger barriers for women to jump over.

I want to read just a little bit from the bill itself. Clause 17 provides that “An employer who receives a pay equity claim must, … decide whether, in the employer’s view, [it] has merit.” I want you to just picture this for a moment. A woman goes to an employer and says: “I think you’re paying me less than my male counterparts for a job I do just as well in exactly the same way for exactly the same number of hours with exactly the same skills.” The employer, under this piece of legislation—under clause 17—can have a think about it and say: “Well, I don’t think it has merit, so I don’t think I’m going to accept that.”

Clause 17 goes on to say that the decision must be made by the employer as to whether it has merit, and the claimant must be notified—which is nice—of the decision “as soon as is reasonably practicable,” and “not later than 90 days” after the employer receives the claim. Let us just remember that 90 days is 3 months.

Now I want you to picture this. Now we have got a woman who goes to her employer and, putting it in writing, says: “I actually think that you are paying me at a lesser rate.” The employer says “OK. Well, leave it on my desk and I’ll get back to you.”, and 3 months later, they might. But the bill goes on, however. The employer “may, … extend the time limit for making [the] decision … if the employer has genuine reasons, based on reasonable grounds,” for doing so. What would be a reasonable ground? A holiday in Fiji—“I wasn’t there, so I couldn’t make the decision within 90 days as to whether I paid you less than I pay all your male counterparts.”? I want the men sitting on the Government benches to tell me whether they would accept that and to explain to me that they would accept that inside any employment agreement that they got. But the Government believes that it is OK to put it inside this legislation.

We know that this is not a Government that values women and values their work. How do we know that? We know that because this is the Government that used its financial veto to stop an extension to paid parental leave, which, considering only 1 percent of the male parents of this country take paid parental leave, was obviously a vote against women.

This is a Government that forced Kristine Bartlett—let us get clear. It is frustrating to the nth degree to have this Government do two things when talking about this particular bill and also the $2 billion that Kristine Bartlett and the E tū union forced this country to recognise and pay. One is that those members now pat themselves on the back as though they gave women the vote. For them to continue to remark how advanced we are because a hundred and something years ago women fought hard enough to actually get the vote is a—I do not think they realise how frustrating that is for women, to listen to these men stand up and take credit for it as if they did it last week because they were overly generous.

It is the same with the Kristine Bartlett case. There is no way that this Government would have addressed this issue if that case had not been taken to court. I am sorry, but the reality is that the Government saw that if it allowed that case to go forward, it was going to be far more expensive than what Kristine Bartlett and those women settled for, in the generosity of spirit of those women.

I want to give another example, though. I want to give another example of a situation that this bill is going to exacerbate. A lot of those in the early childhood education sector will recognise this comment, right? There are often comments around the feminisation of education—that there are not enough men in early childhood education and primary schools. We hear that all the time. So we ask why that is. Why is that the case? Why are there not enough men going into the profession of early childcare, early childhood education, or primary school teaching? The answer comes back: “Well you don’t pay enough.” The answer comes back that those sectors do not pay enough for men to bother with actually training and being part of that profession. What is really interesting about that is that, therefore, the State, which predominantly pays the salaries of the kindergarten teachers and primary school teachers and sets a ratio, has accepted that it is a female-dominated sector because men will not do the job for that money, but apparently it is OK for women to the job for that money.

💬 Alastair Scott: Men will do the job for the money.

Men do not. There is no point shouting out, Mr Scott. The men do not do it.

💬 Alastair Scott: Men do participate in that profession.

All right. Mr Scott, who was sat over there with his white male colleagues when Jan Logie was pointing out time and time again pieces about this bill, is going to get up and argue with me and read from his notes. He is going to do what every male member of that caucus has done so far: get up and tell the women in this room that we do not understand how the bill works. He is going to get up and mansplain to us that the women in this room do not understand how legislation is written. We do not understand court rulings! We do not understand how working parties go! That is what Mr Scott is going to do. He is going to get up and try to explain why the women are wrong. Mr Scott appears not to realise—[Interruption]

The ASSISTANT SPEAKER (Lindsay Tisch): Order! I am sorry to interrupt the member. I actually want to hear what is being said, so I just ask that the interjections be rare and reasonable.

Kia ora, thank you. Mr Scott does not appear to realise, with an election 7 weeks out, that 52 percent of the voting public are women, so I welcome Mr Scott getting up and explaining to 52 percent of the voting public why they are worth less and why this Government wants to put barriers in their way to make sure that it is much, much harder for them to actually match their skills to males doing similar work. That is all women are asking for: tweak the Equal Pay Act of 1972; make this about a skills base, not about a sector. Take away the four barriers that have been put up in front of women inside this legislation. Remove ridiculous clauses like clause 17, where a woman has to go to an employer and, basically, somehow convince them that they have merit.

💬 Alastair Scott: Read clause 29. Read clause 28.

No, Mr Scott. You listen to the women of this country coming to see you. You explain—[Interruption]—again, more mansplaining. More mansplaining from Mr Scott—more mansplaining from Mr Scott. I just read out to Mr Scott what clause 17 in his own bill says, but Mr Scott apparently does not understand what clause 17, when it is read to him, actually means.

New Zealand First will not be supporting this bill. None of the Opposition parties will be supporting this bill. It will be interesting to see whether this bill gets through. Mr Seymour is here, so it will be interesting to see Mr Seymour’s contribution, and where the Māori Party is on this, and where Mr Dunne is on this, because there are a lot of New Zealand voters watching. There are a lot of New Zealand voters watching. Again, we are talking about women and their ability to get access to equal pay and fairness and justice, and to have their skills matched against male counterparts, and there are three male National Party MPs just laughing and interacting and joking together because it is of so little importance to them. They have made up their minds, New Zealand—New Zealand women, particularly. These males have made up their minds that they are right, that you do not know anything, and that the women of the House apparently are mistaken and are misled, and they will now rise to their feet and explain why once again women do not get it and they are the masters of the universe.

It is my pleasure—and I am very proud—to stand up in support of this bill tonight, the Employment (Pay Equity and Equal Pay) Bill, in its first reading. This bill is in the name of the Hon Michael Woodhouse. I have worked my whole life as a woman, and I have never in my whole life had any differential in the pay that I have received. I am very fortunate in that respect, but I do understand that there are some professions where that is not the case for some women, and this bill seeks to address that. Equal pay is the principle where men and women receive the same pay for the same job. Pay equity is the principle where men and women receive the same remuneration for doing jobs that are different but of equal value.

There are some measures that are already under way that encourage women into high-value professions. For instance, this Government is actually leading by example. We have now a record number of women ever on State sector boards. That is now over 43 percent. Police has introduced a target of 50 percent women recruits, and Treasury is also running a gender and ethnicity programme to ensure that there are equal numbers of women participating. New Zealand does seek to close that gender pay gap. We are consistently ranked the lowest gender pay gap in the OECD—it does not matter how you measure that. But we do not want to be sitting on our laurels. This bill is going to further address that gap. This Government is committed to working with New Zealanders, men and women, and I have faith in the wise minds of the select committee to work on this bill and deliver it back to this House for further discussion. I have pleasure in commending it to the House. [Interruption]

Order! The next call is a split call. Denise Roche—5 minutes.

I rise to take a short call for the Greens on the Employment (Pay Equity and Equal Pay) Bill’s first reading, and what a treacherous bill this is. I cannot think of a different word. It is treacherous. This bill is the result of, basically, a breach of the goodwill that was happening about the negotiations that were setting out the principles to deal with pay equity cases as a result of the Kristine Bartlett case.

So let me just recap a bit. We are here in the House debating the first reading of a bill that will actually undermine and prevent women from getting equal pay because that has already been settled with one particular group of women workers, which was the women represented in the persona of Kristine Bartlett as one of the carers. The Government says: “Right, we’ve done that one. That was $2 billion worth. There is no back-pay claim. Now we’re going to make it harder for anybody else. So we’re going to pull that ladder up, away from anyone else.” This begs the question—I get quite concerned about this. This Government has a history of overturning inconvenient law. It basically has a history of overturning by legislation legal cases that have been won, and this is another example of it.

One of the other ones that comes to mind straight away is for the family carers: that case that was won for that family member who finally got equal pay—well, actually, minimum pay—for the work that he had done over a very long time, over decades, in looking after his adult children, thereby saving the taxpayer an enormous amount of money. The court ruled that, yes, this person was entitled to minimum employment standards and minimum wage at the least. So what did the Government do? Straight after that, and under urgency, it introduced legislation that basically said: “Well, we’ll deal with that one, but we’re not dealing with any more.” This legislation is exactly the same. So you kind of start to wonder where that line is, the separation of the State and the Government from the law and who defends the law. I mean, what is the point?

The proof of how unwilling the Government was and is, and the proof that it was dragged to that negotiation table by the E tū union, by the Public Service Association, by the New Zealand Nurses Organisation, and with the businesses—it was dragged to negotiate that—is this legislation. This is the legislation that says: “We’ve got equal pay, we’ve had that since 1972, and as far as pay equity goes, you’re not going to get it. We’re not going to allow anybody else to get it.”

One of the most pernicious parts of this bill is that it says it actually prevents any of the other claims that are in the works at the moment from being seen by the courts. That kind of retrospective lawmaking really, really gives me the heebie-jeebies, because I do not think it is fair in any way whatsoever.

Other people have talked about how what this bill does is implement a whole series of hurdles that women workers are expected to go through in order to get a discussion about pay equity in their workplace, and it leaves it up to the woman worker. It does not leave it up to anybody else. The only people who are really going to benefit from this piece of legislation if it goes through—and it will not, on 23 September; it will be turfed—will be employment lawyers.

I call David Seymour—5 minutes.

I rise on behalf of the ACT Party in support of the Employment (Pay Equity and Equal Pay) Bill. Let me reflect on some of the contributions to this debate so far. People watching at home on the TV or listening on their crystal set may not be aware that Denise Roche, who has just resumed her seat, had been merrily celebrating the valedictory speech of Catherine Delahunty earlier in the evening. That explains the coherency of her speech, but what a disgraceful speech—

The ASSISTANT SPEAKER (Lindsay Tisch): Order! That is unacceptable. I ask the member to withdraw that comment.

I withdraw that comment. But what a disgraceful speech that was from Tracey Martin. I have been asked whether I am a feminist, and I say: “Yes. I am the kind of feminist who believes in pushing women up, not pulling men down.” And to hear Tracey Martin hurling across the House “male” and “white” as epithets, as if these people’s opinions are invalidated by their identity—well, I thought we were here to fight discrimination based on sex and gender, not to perpetrate it as people elected to lead this country.

We find ourselves here debating a bill that has come about because of a court case that is completely opposite to the principles of the New Zealand economy that underlie our prosperity. I think it is absolutely true that care workers were underpaid, and I would say that I think our teaching profession is probably underpaid. But the interesting thing about that is that those are professions where the Government is the monopsony employer, where the Government sets, through its budgeting decisions, what those people get paid.

And for all the people on the other side of the House, from the Labour Party and New Zealand First and the Green Party, who have been saying that somehow it is the fault of this Government that these professions are paid less by the Government, well, just remember it was exactly the same when they were in power. So if this Government is sexist in its pay of female-dominated professions, well, what is it when they do it? It seems that the Government has been sexist no matter who has had the Treasury benches in this House.

But what is wrong—what is absolutely wrong—about the TerraNova Homes and Care case and what is wrong about this bill is that no longer, under this bill or under the TerraNova case, is the amount paid to the worker the result of a negotiation between a willing employer and a willing employee, negotiated by them or their union representatives.

Suddenly, we introduce the idea that a court—that does not have the full information, that does not know the conditions of the business, and that does not know the conditions of the work—is able to determine what the value of work should be. And this country has been there before. When we lived in the Polish shipyard prior to 1984, that is how it used to work—national awards. People used to sit in Wellington with bugger all clue about what was going on in the rest of the country, and they used to decide how much work was worth.

Well, I would say to you tonight that the people out there who actually generate the wealth—the people who actually get up early, the people who actually up skill themselves, and the people who are there to get up, make the kids’ lunches, get them to school, get to the workplace, and do productive things—those people know what the value of work is. Those people know what their aspirations are. The courts setting wages is a step backwards to the 1970s.

So why am I supporting this bill? I am supporting it because it is the best on offer right now. At least it limits the scope of this court-appointed wage setting to a narrower scope than it could have been under some other versions of the bill. But, as members are all keenly aware, after 23 September Parliament may be different, and a stronger ACT Party will be pushing whoever is in Government to return wages in New Zealand to the way they should be: negotiated between a willing employer and a willing employee, not set like national awards by courts—the way that they were so long ago when our country was a much more dismal place. Thank you.

I stand to take a brief call on this very good pay equity bill. I have been in a number of jobs—I have had many jobs—and not one time have I ever thought that I was getting underpaid or not paid as much as what my male counterparts were. I have worked in a shearing shed; I got the same amount as what everybody else got, doing the same work.

Anyway, I think that this is a very good bill. It is a start. Everybody in this House is in favour of pay equity; the approach is just different. Ours is a sensible, measured approach, whereas the Opposition just wants to get in there and just go ahead and do it to the employers. Well, you just cannot do that. We are taking this measured approach.

I do support this bill, and I look forward to it going to select committee, because that is where the debate will actually occur—in there—so that this legislation can come back to this House and be passed. I recommend the bill to the House. Thank you.

Just—[Interruption] Order! [Interruption] Order! Just a matter of clarification—is it going to be a split call, or just—

💬 Kris Faafoi: No.

The ASSISTANT SPEAKER (Lindsay Tisch): Poto Williams.

I am really disappointed by the calls that I have heard from the Government benches tonight. This bill, at the very essence, is about the status of women in this country. That is what it is, at the very essence—how we regard our wahine. We have been fighting this battle in this country for a long, long time. This bill is not about female-dominated industries; it is about industries where there is a lack of men. If those industries had men in them, they would be paid a lot better than they are currently.

Tonight I heard my friend Sue Moroney deliver her valedictory speech. Sue Moroney is an MP and a woman whom everyone would describe—and she was described tonight—as staunch. About the issue of pay equity, she is indeed staunch. She cannot be with us this evening to participate in this particular debate—

The ASSISTANT SPEAKER (Lindsay Tisch): Order! You cannot refer to the absence of a member.

Thank you, Mr Assistant Speaker. But Sue, I want to say to you: I have got your back, because that is what women do. We support each other when the issues are big and when they concern us. So Sue Maroney, I have got your back. Women stick together. We fight together. We do this together. However, of the National Government, I have to say that I think that the women who have spoken on this bill on behalf of the National Government have had to swallow some dead rats. I think at the core of it, particularly, the last two women speakers for the National Government—women who are involved in cross-party women’s organisations and who look to increase the representation and status of women—have had to swallow dead rats on behalf of the National Government tonight, because they, in discussions with Labour, Green, and New Zealand First members, would be talking about wanting to ensure that legislation raised issues of inequality and addressed them fairly.

What does this piece of legislation do? Well, there are four nasty provisions in this. The first one I want to deal with is the transitional provisions: the fact that claims that are currently in process are not going to be processed under the current legislation but are going to be processed under the new legislation, and the fact that the possibility of back-pay has been extinguished—the right to ask for back-pay has been extinguished.

The fact that we have to look at comparatives within an industry: the whole notion of comparatives is to say that we value the work equally where there are skills, where there is education, where there is risk, where there are the types of competencies that are similar to the types of competencies required for the work that women-dominated work does—that that is the comparator—whereas in this piece of legislation there are four ever-decreasing circles that you need to negotiate to actually come to a comparator.

Then the last issue, the key point—and the most difficult one for me—is the one of establishing merit. Women have been arguing the case of establishing merit since the time the world began, and we are in a situation yet again where we have to defend our ability to do a job. If it is not women who are defending the whole notion of merit, it is Māori or other ethnicities or other marginalised groups that have to fight every single day to say: “Yes, we are as good—probably better—than you. But we have to go through these hoops, which you put in place for us, to prove it.” We have to allow the employer to tell us whether a case that we bring has merit!

As a member of Parliament who supports the joyous notion that we could be seen as equal to any man in this Parliament or any man in any Parliament or any man anywhere, I find the notion that I give my power to decide my merit to someone else as complete hypocrisy. In a few weeks’ time this country will have a choice. Today they might be headline news—

I am sorry to interrupt the honourable member. The time has come for me to leave the Chair. Members, this debate is interrupted and is set down for resumption on the next sitting day. Members, the House stands adjourned until 2 p.m. tomorrow. Good evening.

Debate interrupted.

The House adjourned at 10 p.m.