Unions launch legal action over pay equity changes

Newsroom

a day ago

When Associate Attorney-General Paul Goldsmith wrote his advice on whether the Government's pre-Budget changes to the pay equity regime breached human rights, he – likely unwittingly – provided those affected with a roadmap.
'The changes made by the Bill can be expected to have the effect of tightening access to the pay equity process and pay equity settlements,' he wrote in the document, known jargonistically as a BORA vet.
These changes may result in someone facing discrimination based on their gender, he said.
'I have considered whether the combined effect of these changes may discriminate on the basis of sex by making it more difficult for a person to access a non-discriminatory rate of pay or to take steps to maintain pay equity.'
But if that's the case, they could file a legal claim.
'On balance, I have concluded that these provisions do not engage s 19 because a person in this situation could still take court proceedings in order to obtain an effective remedy through other means – for example, seeking a remedy in the High Court for a breach of s19 of the Bill of Rights Act.'
Cue the court case.
On August 29, a collection of five unions will file their legal case with the High Court, claiming the coalition Government's controversial changes to pay equity legislation breach three fundamental rights: freedom from gender-based pay discrimination, the right to natural justice, and the right to fair legal process.
This comes hot on the heels of Māori health providers and the greyhound racing industry calling on the court to declare the coalition Government's changes have broken the law.
The claim will see New Zealand Nurses Organisation (NZNO), Public Service Association (PSA), Post-Primary Teachers Association (PPTA), NZEI Te Riu Roa primary teachers' union, and the Tertiary Education Union (TEU) seek declarations from the court that the Government's changes to pay equity law are inconsistent with the New Zealand Bill of Rights Act.
They will be represented by Rodney Harrison KC and Peter Cranney – the lawyer who argued Kristine Bartlett's precedent-setting pay equity case.
These unions represent 24 of the 33 claims that were wiped when the coalition introduced legislation without consultation, and passed under urgency, the Equal Pay Amendment Bill ahead of the May Budget. The 33 claims are estimated to have covered more than 150,000 workers.
The Government says this change has saved them from paying $13 billion of taxpayers' money in future wages and salaries to those working in female-dominated workforces, whose work has been historically under-valued due to gender-based discrimination.
The Government also tightened the framework, by lifting the threshold for the percentage of women workers in a sector from 60 percent to 70 percent and changed the way equitable pay is determined through the comparator system.
So far, no claims have been filed and all-but the nurses say they see no way towards bringing a successful claim under the new regime.
'This is about more than pay'
In a press release, TEU national secretary Sandra Grey said: 'If Brooke van Velden and Christopher Luxon thought avoiding a select committee process would allow them to dodge accountability for stealing $12.8 billion from low paid women workers, we've got news for them.'
Other union heads called it a 'kick in the guts'.
And now the Government is faced with striking secondary teachers and nurses.
On Budget Day, when talking about her decision to overhaul the pay equity regime, in the context of delivering a 'responsible budget', Finance Minister Nicola Willis said: 'In addition to pay equity settlements, the Government will fund future pay rises for women-dominated public-sector workforces through the normal collective bargaining process.'
Last month, Health NZ offered nurses a 2 percent pay increase this year, followed by 1 percent next year. They then moved to strike. High school teachers were offered 1 percent. They have voted to begin rolling strikes next month. And primary teachers are due to meet this week over collective negotiations.
The Government has come out swinging at striking public sector employees – by holdings press conferences scolding the nurses' and teachers' unions. Meanwhile, Public Service Minister Judith Collins has also made comments suggesting the coalition could be considering limiting the options open to those wanting to take industrial action; if true the Government could be looking to dampen one more mechanism used by female-dominated workforces to secure pay increases.
Pay equity changes and the recent strike action are no doubt linked. The new regime effectively locks out the 25,000 secondary teachers who would have been covered by the teachers' pay equity claim, as the workforce doesn't reach the new 70 percent women workers threshold.
'Our claim was built on years of rigorous, evidence-based work, carried out in good faith under a process agreed with previous governments. To have that work discarded by political decree is a betrayal—not just of teachers, but of every woman in Aotearoa New Zealand whose work has been historically undervalued,' PPTA president Chris Abercrombie said.
'This is about more than pay. It's about whether our country honours its commitments to fairness, equity, and the rule of law. We will not stand by while those principles are trampled. Our members deserve better. Our students deserve better. And our democracy deserves better.'
Govt 'undermined the judiciary'
PSA national secretary Fleur Fitzsimmons told Newsroom this litigation was about getting a fair hearing.
'We know that the High Court will give us a fair hearing, and we will be advocating similar arguments in the High Court that we would have advocated had the government run a proper select committee process.'
This legal action stood alongside the country's first ever people's select committee, which was hearing from communities affected by the pay equity changes. The committee, which kicked off last week, received more than 1500 submissions.
The unions' claim would asks the court to rule the changes breached section 19 of the human rights law that says everyone has the right to freedom from discrimination – in this case, gender-based discrimination.
But Fitzsimmons said the Government had also breached women workers' right to a fair legal process and the executive had 'undermined the judiciary'.
The executive's decision to cancel claims that were about to be heard by the Employment Relations Authority was inconsistent with the country's constitutional foundations, which clearly stipulated a separation of the different arms of government.
A Treasury paper from December, released last month, laid out the Government's options for closing the funded sector contingency – the money set aside for covering pay equity settlements for those working in privately owned businesses, but in sectors that provided a public good and were largely funded by the Government, such as the aged care sector.
The paper revealed that of the $12.8b estimated total pay equity costs over the forecast period, the funded sector contingency accounted for $9.6b of that (75 percent of estimated pay equity costs).
Care and support workers (and one other redacted workforce) were described as the 'key claims with significant estimated costs' in the funded sector.
The care and support workers claim had already been deemed to have merit under the previous pay equity framework, and Treasury officials pointed out the Employment Relations Authority had indicated it would hear the claim during the first week of May.
Workplace Relations and Safety Minister Brooke van Velden announced the changes on May 6, without prior warning or consultation – as care and support workers were preparing briefs of evidence for the authority. The legislation passed through all stages under urgency, with no select committee process.
'We have separation of powers in New Zealand,' Fitzsimmons said. 'And what we saw from the Government, under the cover of darkness and through urgency, was the cancelling of claims that the judicial arm was about to hear through the Employment Relations Authority.'
Now many of these care and support workers were back on the minimum wage, she said.
While the Government released pay equity documents at the end of last month, many of them included heavy redactions – especially when it came to legal advice.
Fitzsimmons said this court process would uncover elements of those documents that had been withheld.
'We will see the full horror of the betrayal of New Zealand women by this government, and we will be taken seriously, and women will be given a voice.'
What a win in court could mean
While the High Court could rule that the Government's pay equity changes had breached human rights law, that doesn't mean the Government has to change the law. And the court has no power to tell the Government what it can and can't do when it comes to legislating.
But Fitzsimmons tells Newsroom a win would still be a big deal.
It would also add an immense amount of scrutiny to the law and the legislative process.
If the court was to declare the pay equity changes are inconsistent with the Bill of Rights Act then Attorney-General Judith Collins would have to notify Parliament within six sitting days. From there, the matter would be referred to a select committee for scrutiny, where they would have four months to report back to Parliament.
The Government would then have a further six months to present its response to the declaration and the committee's report, and from there a parliamentary debate would be held within the next six sitting days.
'The consequences for the Government and for Parliament are significant.'
Legal challenges piling up
The unions' legal challenge comes as the Government faces off in court against other aggrieved communities.
The pay equity case will come after a High Court hearing of an unprecedented claim from a group of Māori health providers over the disestablishment of Te Aka Whai Ora.
The providers, led by Lady Tureiti Moxon, are also calling on the court to declare the shutting of the Māori Health Authority breaches the Bill of Rights Act. And, in the first case of its kind, the group is also asking the court to declare the move inconsistent with te Tiriti o Waitangi.
Last week, Greyhound Racing NZ had its case for interim relief heard, ahead of a more substantive judicial review of Cabinet's decision to ban greyhound racing in New Zealand.
The decision, which was announced without consultation with the industry, didn't follow the proper process, making it unlawful, former Attorney-General Chris Finlayson KC told the High Court last Thursday.
But those acting on behalf of the Crown – and ultimately Racing Minister Winston Peters – said the Government was within its rights to make a decision to ban greyhound racing on political ground, then legislate to do so.
Crown lawyer Katherine Anderson KC raised the example where the Government had made a political decision to legislate, without consulting the affected communities, saying it was the executive's right to do so.
This coalition has also faced a series of challenges at the Waitangi Tribunal, and it's unlikely these legal cases will be the last to come.
Earlier this year, Newsroom revealed the Government would be reinstating a full prisoner voting ban.
And last month the coalition announced it was overhauling voter registration, meaning voters would not be able to enrol or update their details in the 12 days ahead of election day. This move is expected to impact more than 100,000 people and disproportionately affect young people, Māori and Pasifika.
Jailhouse lawyer Arthur Taylor, alongside the Human Rights Commission, successfully sought a declaration of inconsistency with the Bill of Rights Act last time a Government removed prisoners' right to vote.
This led to a process that ultimately resulted in the previous Labour-led Government giving the vote to everyone who was serving a sentence of less than three years.
It would be unsurprising to see someone take essentially the same case back to court when this new prisoner voting ban comes into effect, given the court's already ruled it breaches human rights law once before.
Meanwhile, Attorney-General Judith Collins told her colleagues, including the minister responsible and her associate attorney-general Paul Goldsmith, that the proposed changes to voter enrolment breach the Bill of Rights Act, saying Māori, Pasifika and Asian communities will pay the 'heaviest price' by being disenfranchised.
Once the law has passed, someone could call on the court to declare inconsistencies with section 19 of the Bill of Rights Act.
A win in any of these cases doesn't necessitate a law change, but they will put the spotlight on the coalition's process and the weight it puts on human rights.
The union's case will be filed at the High Court on August 29, alongside a protest rally held by women whose claims were cancelled.