New Zealand can expect changes to pay equity legislation in mid-2018.
Following the election, the newly-elected coalition Government withdrew National's pay equity Bill and reconvened the Joint Working Group on Pay Equity Principles. The Working Group recently reported backto Ministers with new recommendations that it considers will make it easier and simpler for Kiwi women to lodge pay equity claims and work towards improving fairness in the workplace.
The Working Group's recommendations include the clarification and simplification of the process for initiating a pay equity claim, retaining the principle of comparators (but possibly eliminating the strict hierarchy of comparators suggested in National's Bill), utilising existing employment resolution mechanisms (including the concept of good faith) to advance pay equity claims, and amending the Equal Pay Act 1972 to implement the principles.
Under National's Bill, female employees that wanted to make a pay equity claim needed to first establish that their claim had 'merit'. A claim had merit if the work was predominantly performed by women and reasonable grounds existed to believe that the work had been undervalued and continues to be undervalued today. Employees were required to set out in writing all of the factors and evidence relied on in establishing that their claim had merit. An employer was only required to engage with an employee's claim if it accepted at the outset that the claim had merit. If an employer decided that the claim did not have merit, the employee could not take the substantive claim to the court. Rather, the employee could only challenge the employer's position that the claim did not have merit.
The Working Group considered that the concept of 'merit' in National's Bill set too high a threshold for employees. It therefore recommended that, in order for an employee to ask an employer to address a pay equity claim, the work simply needed to be predominately performed by women. In addition, the Working Group recommended that it should merely be 'arguable' that the work is currently or has been historically undervalued, and that consideration should be given to whether gender-based systemic undervaluation has affected the remuneration for the work.
This would mean that employees wanting to bring a pay equity claim need to show only that the work is predominantly performed by women. They would not need to prove that the work has been undervalued and continues to be undervalued, or that this undervaluation has affected the remuneration. Obviously, these factors will be relevant to negotiations, and information in support of these factors will assist an employee justify a pay equity claim.