The revival and refashioning of gender pay equity in New Zealand

Notions of equal pay in New Zealand stretch back to the 1890s when a significant minority of women worked, albeit often for low pay and in desperate conditions, and suffragists regarded the issue of equal pay on the grounds of sex as the ‘most important next to franchise itself’ (Coalition for Equal Value and Equal Pay (CEVEP), 2018a). However, while a broad commitment to equal pay has imbued the history of work and employment, its definitions, scope, motivation, interpretation, tests required and breadth of application have varied over time, often shaped by shifting industrial and wider contexts.

In 1893, New Zealand became the first country to enact legislation that gave women the right to vote. While this nation was at the vanguard of the suffrage movement and a founding member of the International Labour Organization (ILO) in 1919, it was much slower to ratify both Convention 100 on Equal Remuneration (ILO 100) (1951) and Convention 111 on Discrimination, Employment and Occupation (ILO 111) (1958), becoming a signatory to both in 1983, and to the United Nations’ (UN) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1985. However, once the ILO conventions had been signed, the Third National Government (1975–1984) was quick to point to its equal pay legislation, and equal minimum wage and benefit rates for women, as indicative of meeting its international obligations, including the notion of ‘equal remuneration for work of equal value’ as articulated in Article 1 of Convention 100. In 2018, 125 years after women were given the right to vote, with a mandate to tackle persistent gender pay gaps and on the back of a landmark legal test case that asked the Employment Court to rule on the (re)interpretation of equal pay for work of equal value under the Equal Pay Act (EPA) 1972, New Zealand’s Labour-led coalition government announced plans to introduce legislation to deal more effectively with gender pay inequality.

This article scrutinises the extent to which ‘pay equity’ – a term that in the New Zealand context signifies equal remuneration for work of equal value (as expressed in ILO 100) – has been integrated into regulatory measures and institutional wage-setting processes. It examines notions of work value that have informed wage-setting norms and practices, alongside the gendered implications of such processes. A qualitative thematic analysis of salient scholarship and commentary on the complex and dynamic influences on the reproduction of gender pay inequality provides the context for this study, which is informed by typologies of equity approaches. The article concludes with a discussion of the ways in which regulatory approaches imbued with particular equality approaches impact women’s experience of work in New Zealand, with ramifications for the character of future regulatory environments.

Evolving and contextual approaches to pay equity

In analysing New Zealand’s approaches to gender pay equality, particularly its recognition and application of the pay equity principle of equal remuneration for work of equal value, we bring together a number of different categorisations of gender equality policy measures. The first is the distinction between the ‘inclusion’, ‘reversal’ and ‘displacement’ approaches to gender in political theory presented by Squires (1999). In her typology, ‘inclusion’ refers to the goal of including women in fora from which they have been excluded, ‘reversal’ represents an approach that seeks to challenge and recast existing fora in ways that specifically recognise female gendered identities, and ‘displacement’ seeks to move beyond the binary logic implicit in these strategies of inclusion and reversal.

In adopting these categories, we draw upon the application to equal pay strategies by Smith et al. (2017) who depict ‘inclusion’ as a gender-neutral approach to equal remuneration, with weaker versions closer to the notion of equal pay for equal work in limiting comparisons to the same or similar work and potentially limited to individual rather than collective claims. By contrast, ‘reversal’ specifically recognises female identity, albeit also using a spectrum of weak to strong versions, in this case ranging from features such as binary comparisons of masculinised and feminised work based only on ordinary wages, to the use of gender-neutral evaluations that do not rely on a male comparator (Smith et al., 2017). ‘Displacement’ is described as an approach that does not rely on empirically establishing the contribution of gender to pay disparities, but rather recognises multiple influences on the valuation of work (Smith et al., 2017). In addition to variation within categories, the authors acknowledge that the categories themselves are not mutually exclusive, ‘such that the typology bears some characteristics of a continuum’ (p. 234), and different elements of a country’s regulation of equal pay may reflect more than one approach.

These complexities are recognised in this analysis, which is also informed by overlapping conceptualisations of approaches to gender equality. As Smith et al. (2017) and Squires (1999) note, the three approaches described above broadly correlate with ‘equal access’/liberal feminism, ‘positive action’/radical feminism and post-structuralist/postmodern feminism. Longstanding recognition of the complexities in differentiating between liberal and radical approaches to equality policy and practice in the workplace warn that classification can be problematic. For example, Jewson and Mason (1986) underlined the extent to which radical (or equal outcome-oriented) policy can ‘masquerade’ as liberal or equal opportunities policy, and vice-versa, either as the unintended consequence of power struggles or, more deliberately, to manipulate situations and perceptions. For her part, Cockburn (1989) has contested the capacity of initiatives informed by either liberal or radical ideas to explain the politics of equality and to effect women’s full equality. Rather, she conceived of equality approach aims according to the ‘ambition’ of change sought. While a short-term agenda aligns with a liberal approach, a longer term agenda looks to transformational initiatives that challenge organisational arrangements, including their constitution, purpose, culture, norms, relations and social processes – this involves a change in power relations which Cockburn (1989) locates within institutions through organisational democratisation. The concept of transformation in this instance thus builds on the radical model (e.g. with consciousness-raising of the equal outcome (reversal) approach, providing a basis for releasing the struggle for power and influence).

In practice, however, organisations and the institutions that regulate them have seldom ventured into the terrain opened up by transformative equality strategies (Cockburn, 1989; Conley and Page, 2017; Parker, 2003; Smith et al., 2017). As much feminist scholarship signals, recent environments have been characterised by pressures on regulation that facilitate market reforms. These are evident in the waning appetite for centralised regulation, and widespread reform and support for measures enabling more fragmented forms of wage-setting, with markets expected to help realise gender pay equity (cf. Frances and Nolan’s (2008) conclusion that pay equity could more easily be instituted in a centralised wage-fixing context in Australasia). At the organisational level, too, even ambitious efforts to encourage pay equity, while best taken in a period of turbulent change when structures are fluid (Parker, 2003), are more modest than those which underpin Cockburn’s (1989) political vision of transformation in terms of overhauling masculinist practice. This study draws on these categorisations and complexities in a broad examination of New Zealand’s regulatory history and policy trajectory in relation to equal pay measures, with specific attention paid to those oriented towards ‘pay equity’ (as defined earlier). It begins with the Government Service Equal Pay Act 1960 and culminates with the Equal Pay Amendment Bill (EPA Bill) (in its second reading before parliament at the time of writing). We provide a qualitative analysis of pertinent regulatory measures, national policies and legal cases in New Zealand, couched in a contextual analysis of dimensions of New Zealand’s employment relations (ER) system (also Parker and Donnelly, 2019). Through its examination of key milestones in New Zealand’s equal pay regulation, this analysis presents a more fine-grained analysis of approaches than that provided by Smith et al. (2017). It also offers a longitudinal perspective, while focusing on recent and imminent equal pay and pay equity developments in New Zealand’s regulatory framework.

Laying the foundations for equal pay in New Zealand

ILO 100, in establishing the principle of equal remuneration for work of equal value between men and women, required signatories to ensure its application to all workers through relevant wage-setting methods, advocating (in Article 3) action to ‘promote objective appraisal of jobs on the basis of the work to be performed’. Initially rejected by the New Zealand government on the grounds that wage-setting was a matter for the Arbitration Court, historical accounts note that the passing of this Convention provided the impetus and opportunity, as well as an economic rationale, for key activists to campaign for equal pay across the public sector, using the state as the ‘standard setter’ (Kelly, 2018).

The public sector led the way with equal pay regulation. In 1956, the New Zealand Public Service Association (PSA), New Zealand’s largest public sector union, took a test case of women’s right to appeal for equal pay on behalf of one of its members, Jean Parker. The initial ruling on the case, resulting in a reduction in Parker’s salary and position, was a turning point in the country’s equal pay campaign, mobilising unions and political parties (e.g. Martin et al., 2018). While Parker was eventually reinstated to her previous position and salary, the campaign for equal pay by the PSA ¹ led to the creation of the Council for Equal Pay and Opportunity in 1957 and, ultimately, the enactment of the Government Service Equal Pay Act 1960, abolishing discriminatory pay rates ² in the public sector (Corner, 1988).

In the final days of the Second Labour Government (1957–1960), there was a strong push by the equal pay campaign to pass legislation before the general election (Kelly, 2018). A phased approach ensued, with the Government Service Equal Pay Act enacted under the Second National Government (1960–1972) on 1 April 1961 and the first payment made on 27 August 1962. Before entering office, National had given the impression that they would oppose equal pay. However, when the Bill returned to parliament for its second reading, National announced its support, having ‘caucus members supportive of equal pay … [and] some fear[ing] that women voters might [otherwise] be put off voting for National’ (Kelly, 2018). The requirement for equal pay was eventually extended to the private sector with the passing of the EPA 1972.

Legislative reforms and the changing ER context

From 1960, perceptions regarding the role of women in New Zealand society were changing, with a focus on social law reform as the mechanism to secure equal pay rights for men and women. The EPA was introduced to provide women with equal remuneration for work of equal value by prohibiting any ‘element of discrimination’ in wage negotiations. To address both direct and indirect discrimination in wage rates, the EPA provides that men and women undertaking the same, or substantially similar, work – in terms of skill, responsibility, service (experience), effort and conditions of work – must be paid the same. It also provides additional criteria for work performed exclusively or predominantly by females, where the scope of assessment can include what men would be paid to do the same work on the above-mentioned criteria. While the EPA is thus consistent with Smith et al.’s (2017: 242) characterisation of New Zealand’s equal remuneration law as ‘inclusive’, requiring ‘binary comparison to employees with similar qualifications and circumstances’, it also moves partially towards a ‘reversal’ approach through its recognition of the need for different kinds of comparisons for female-dominated work.

Both the Government Service Equal Pay Act 1960 and the EPA were enacted when the ER system was based on relativities between occupations and between public and private sectors. Indeed, for nearly a century, New Zealand and Australia were the only industrialised market-oriented countries that used an arbitration-based award system to resolve wage-fixing matters in preference to collective bargaining (Harbridge and Crawford, 1997). This centralised system bound employers and workers in a particular industry and set down minimum conditions and rates of pay.

The New Zealand ER system was thus long characterised by the strong role of the state and legislative processes though the cornerstone Industrial, Conciliation and Arbitration Act 1894 (IC&A) despite the criticism it received over the years. Industrial disputes reached an all-time high in the 1960s and 1970s, with high inflation leading to prices rising faster than workers’ wages (Derby, 2016). Although the IC&A was superseded in 1973, the essential structure it established continued until the Fourth National Government (1990–1999) introduced the Employment Contracts Act 1991 (ECA). While a new legislative initiative designed in part to extend the capacity to redress gender pay inequality (the Employment Equity Act 1990 (EEA)) was introduced in 1990, one of the first acts of the new government was to repeal it, arguing that ‘legislation was unnecessary to bring about employment equity for women in the labour market’ (Andersen, 1991: 128). The ECA’s introduction, on the back of the EEA’s removal, led to a shift in union focus from equal pay to their own survival. Until then, moreover, high levels of unionisation had helped to define the ER context in which equal pay statutes were enacted. ³ In this context, although the gender pay gap narrowed over the 1970s to the early 1980s by about 10% of full-time equivalent pay, the limitations of equal pay legislation were increasingly apparent (CEVEP, 2004a).

Challenges to legislation and policy reforms

The first test of the EPA came in February 1986 with NZ Clerical Administrative etc IAOW v. Farmers Trading Co Ltd, known as the Clerical Workers Union (CWA) case. Following the ratification of ILO 100 and CEDAW, CWA took a case to the Arbitration Court, arguing that the clerical rate had fallen in relation to rates for comparable male-dominated occupations, and seeking that employers negotiate a pay equity claim. However, the Court dismissed the case on the basis that the EPA’s implementation period had passed. In reviewing the case, Hyman (2017) contended that ‘many believe that it was not well argued, the judgment was faulty, and only lack of resources prevented a successful appeal’ (p.80). Others noted that the decision effectively paved the way for fresh political campaigns (Hill, 2013; Ministry of Women’s Affairs (MWA), 2002). Despite this, the Court’s action on this case ‘acted as a springboard’ for equal pay, with employees at several motor companies taking industrial action (CEVEP, 2004a) and the evolution of a national pay equity campaign. The Fourth Labour Government (1984–1990) responded with a phased equal pay review, the third phase of which involved the establishment of a Working Group on Equal Pay and Equal Employment Opportunity (EEO) in 1988.

The Working Group’s report provided the draft statutory framework for the EEA which straddled pay equity, EEO, and the institutional arrangements of setting up an Employment Equity Office to promote and enforce the principle and practice of pay equity and EEO in the public and private sectors. To redress the discrimination experienced by women, under the EEA, requests for pay equity assessments in respect of any female occupation could be made by a union, or unions, covering workers in that occupation: an employer’s organisation(s) whose members employed workers in female occupations, 20 or more female workers in a female-dominated occupation if they were union members who could make a request, or 20 or more female members in a female occupation without union coverage. Applicants, as collectives, needed to suggest two male occupations as comparators (to include, where practicable, one with its members employed in the same (type of) workplace as the female occupation members, and the other with members who had broadly similar levels of skills, effort and responsibility as required in the female occupation). Where this was impracticable, the Commissioner would ensure male occupations that met stated requirements were selected, and ultimately decide whether or not to proceed with the proposed assessment. Furthermore, where a pay equity assessment was made in respect of a female occupation, a pay equity claim could be made, in negotiations under the Labour Relations Act 1987 for an award or agreement, for some or all workers in that occupation.

Applying Smith et al.’s (2017) typology, which extends Chicha’s (2006) framework by including a complaints-based approach, the EEA reflects a weak reversal approach, akin to that currently permitted under Australian federal law where a tribunal can make orders for equal remuneration for work of equal or comparable value, with the complainant required to use a comparator of the ‘opposite gender’ to establish the need for that order (Stewart et al., 2016). In effect, the scope of equal pay claims, as defined by the EEA, linked pay equity to award and agreement terms and was limited to pay rates provided under the award. And while its collectivist basis for claims differed from earlier equality laws, the EEA resembled the Australian complaint-based approach linked to the system of labour law.

Shift of pay equity from state to workplace policy

The EEA’s short life took place during the final throes of an arbitration system that had sustained balance in the ER parties’ conduct and centralisation negotiations. However, its repeal just 3 months after its enactment, with personal grievance against discrimination provisions eventually included in the ECA, ⁴ effectively relegated the EPA to being part of the minimum code. The outreach of unions was curbed by the ECA, and pay equity campaigns, among other matters, were severely weakened as attention shifted towards numerous workplace smaller claims as a result of this legislation (CEVEP, 2004b).

Indeed, the Fourth National Government continued Labour’s neo-liberal economic reform and, pushed by the Treasury and the Business Roundtable, focused on labour law reform. Moreover, there had been tripartite talks involving the central employer and union organisations over the failings of the IC&A system and future wage-fixing during a government-imposed wage and price freeze from 1982 to 1984 (Harbridge and Crawford, 1997), following which the State-Owned Enterprise Act 1986 released state organisations from centralised control of employment policies. The State Sector Act 1988 ushered in a new public management style of operation, with each government agency operating an EEO programme that recognises the employment requirements of women and other designated groups. ⁵ Annual adjustments to state pay rates and criteria designed to retain ‘fair relativities’ between state sector pay rates and pay rates for comparable jobs in the private sector thus disappeared. Departmental pay agreements gradually replaced occupational pay agreements – ‘(e)nterprise bargaining flourished in a way that it was not flourishing in the private sector’ (Harbridge and Crawford, 1997: 237).

In the private sector, the ECA reinforced the revised model for labour market and relations policy, abolishing the IC&A and other dispute-settling processes and associated institutions. Deregulation with this Act removed union registration and compulsory union membership, although it extended the right to a written employment contract and personal grievance rights to all employees and established wider legislative minima. The state’s direct role in ER receded, a highly decentralised system of bargaining mainly at the enterprise level prevailed, and unions no longer had automatic and exclusive rights in the workplace. Significant deunionisation and decollectivisation ensued. Union membership fell from 514,325 in 1991 to 338,967 by 1996, representing a fall in union density from 35.4% to 19.9% over this short period (Harbridge and Crawford, 1997). The decade from 1986 also saw a marked decline in industrial stoppages, while annualised wage dispersion and non-wage flexibility grew.

While the ECA introduced greater labour market flexibility, vulnerable, unskilled, casual or part-time workers faced an erosion of employment security and a worsening of employment conditions. Research on its impact suggested that women workers were worse off under a decentralised, flexible, contract-based ER system, given their relative position in the labour market (e.g. Frances and Nolan, 2008; Sayers, 1993). As Hyman (2017) notes, ‘lower levels of unionisation and collective bargaining, together with a rise in casualisation resulting from the [ECA] and related policies … dealt a blow to the position of lower-paid women’ (p. 46). Furthermore, Hammond and Harbridge (1993) found that men received higher pay rises than women (though the increases were minimal because of the wage freeze), performance-based increases exacerbated gender differentials and women were more likely to be covered by contracts without overtime or penalty rates.

The move to enterprise bargaining and growing managerial authority in the early 1990s also meant that equal pay agreements or rulings applied only to the women concerned and any other women in the same job with the same employer (or, in a few cases, organisations covered by a multi-employer collective agreement (MECA) (Hammond and Harbridge, 1993). Research by Hammond and Harbridge (1993: 26) estimated that in the ‘shrinking collective bargaining system’ that prevailed in the 1990s, 165,000 women workers previously covered by collective employment agreements (CEAs) moved to individual contracts. This led many to question the effectiveness of equal pay legislation, particularly as a means of addressing the gender pay gap (CEVEP, 2013). And while this gap had been slowly closing from the early 1970s, it flatlined with the ECA’s introduction and increased slightly in the late 1990s. Government and academic experts recently opined that the dismantling of the centralised wage-fixing system and market deregulation had ‘removed the possibility of across-the-board changes [for women]’ (Parker and Arrowsmith, 2014: 403).

Revival and refashioning of pay equity approaches?

Pay equity largely disappeared from the political agenda for the rest of the 1990s, with women’s weaker labour position perhaps exacerbated in the context of higher unemployment, particularly during the early 1990s. The 1999–2002 Labour-led (Coalition) Government did not reinstate the EEA, ‘promising instead to make pay equity a project for its second term in office’ (Briar, 2004: 215–216). In 2000–2002, the Department of Labour published several reports on pay and employment differences between men and women in the public service and wider labour market. Statistical analysis found that only 10% of the gender pay gap was attributable to educational differences, and 15–50% to gender differences in years of workforce experience, with a related additional small effect for having two or more dependent children (Dixon, 2000). The largest factor (20–40%) related to horizontal occupational segregation, with women concentrated in low-paying occupations and industries. The remaining 10–50% of the gap was ‘unexplained’, although the researcher expected that, if pay data were available, more of it would be attributable to occupational differences (Dixon, 2000). These findings led some commentators (e.g. CEVEP) to believe that the gender pay gap could be narrowed by policy that addressed direct and structural (i.e. occupational) discrimination in women’s pay.

Indeed, in July 2002, the government produced Next Steps Towards Pay Equity: A Discussion Document, seeking feedback on the regulatory and policy tools available to ‘ensure that women and men are paid fairly for the work that they do and the various skills that they contribute to the New Zealand economy’ (MWA, 2002: 5). A National Conference on Pay and Employment Equity for Women 2 years later attracted overseas experts who recommended a legislative approach (Briar, 2004).

Mid-way through the Fifth Labour Government’s (1999–2008) term, a Taskforce for Pay and Employment Equity in the public service, health and education was established which led to a 5-year action plan for a tripartite steering group and a Pay and Employment Equity Unit to support government departmental pay reviews. There was some talk that this policy work would later extend to the private sector. However, as Briar (2004) contended, with most women in the private sector working in small- to medium-sized enterprises, the delivery of EEO and pay equity was difficult without strong and flexible legislation.

At the end of 2008, a National Government (2008–2017) came to power and disestablished the Unit, considering that the EEO requirements of state sector chief executive officers (CEOs) were sufficient. The then Minister of Labour, Kate Wilkinson, commented that closing the gender pay gap could not be achieved by having ‘a singular focus on the state sector. This issue is the responsibility of all employers and good employers will work to tackle it’ (Otago Daily Times, 2009).

In 2009, the Pay Equity Challenge Campaign (PECC) led by the Council of Trade Unions (CTU) pushed the government to outline its pay equity plans. In 2010, CEDAW highlighted pay equity and pay inequality as areas of concerns for the government (Hill, 2013). With narrowing of the gender pay gap stalling by 2012–2013, representatives from the PECC pointed to women’s rising participation in part-time casual work as a contributory factor. In line with this, the State Services Commission (SSC) (2014: 32) acknowledged that ‘a higher proportion of women work in the lower paid occupation groups than men and this contributes to the gender pay gap’ and, ‘anecdotally’, that the impact of caring responsibilities on career progression and pay was another key factor.

Looking at ER changes more broadly, the Fifth Labour Government brought the Employment Relations Act (ERA) into force on 2 October 2000, replacing the contentious, atomising ECA. The ERA stipulates ‘good faith’ bargaining between employers, employees and unions for individual and collective agreements, and made possible a few multi-employer wage agreements, seeking to build productive employment relationships through mutual trust and fair dealing. While there is no ‘good employer’ requirement of private sector CEOs as in the state sector, under the ERA, there is a route to address equal pay via a personal grievance.

Like the ECA, the ERA provides personal grievance procedures for individuals alleging discrimination in pay or employment opportunity on the basis of sex. Despite this, few workers have taken grievances concerning equal pay under the Act or complained to the Human Rights Commission (HRC), which can resolve the problem through mediation or refer the case to the Employment Court (CEVEP, 2013). From 1993 to 2000, 52 individual complaints were made to the HRC about sex discrimination in employment – 16 relating to pay, all but one by women. CEVEP (2013) reports that, from 2001 to 2013, only another 14 women made pay equity complaints. For 2017–2018, there were 244 unlawful discrimination enquiries and complaints on the basis of sex (HRC, 2018a).

A landmark case and legislative reforms

In 2012, with the support of her union, the then Service and Food Workers Union (SFWU), since renamed E tū, Kristine Bartlett took an EPA claim against her employer, TerraNova Homes & Care Ltd, arguing historical under-valuation on the grounds that aged care work is largely performed by women. This led to an important test case (Service and Food Workers Union v TerraNova Homes & Care Ltd [2013]; TerraNova Homes & Care Ltd v Service and Food Workers Union (SFWU) Nga Ringa Tota Inc [2014]), hereafter known as the TerraNova case, in which the Employment Court and the Court of Appeal ruled that the EPA supported pay equity claims and that, if a male comparator whose pay is unaffected by gender bias cannot be found in the same workplace or sector, it may be necessary to look more broadly to avoid male pay rates that might also be affected by gender bias in the same workplace or sector, to jobs in which a similar value may be found by gender-neutral job evaluation. This settlement effectively constitutes, as others have noted, a ‘(re)purposing of the EPA’ (Griffith et al., 2019).

The court judgments, which referenced ILO 100 and 111 and CEDAW, (re)confirmed the EPA as intending to support pay equity claims. In response, the government established a Working Group of unions and employers to settle the Bartlett claim, resulting in a care and support workers’ NZ$2bn settlement for 55,000 workers in the predominantly female fields of aged care, disability residential care and home and community support services (CTU, 2018a). The government passed legislation to ensure that this settlement applied to all relevant employers (see the Care & Support Worker (Pay Equity) Settlement Act 2017, subsequently amended by the Support Workers (Pay Equity) Settlements Amendment Bill to cover an estimated 5000 mental health and addiction support workers).

Following the Employment Court and the Court of Appeal’s landmark decision in the TerraNova case in October 2015, there was renewed effort for legislative reform around pay equity. The Fifth National Government (2008–2017) established a Joint Working Group on Pay Equity Principles (JWG) to make recommendations to government for Principles to be used in dealing with pay equity claims for female-dominated workforces where the work may have been systematically undervalued, including the use of bargaining arrangements in the ERA. Indeed, ‘pay equity claims treated as grievances addressed solely by the courts … [were] not seen as conducive to good faith reconciliation of this type of employment issue’ (SSC, 2016: 2). The TerraNova judgments emboldened parties in other female-dominated professions to file pay equity claims, resulting in settlements for social workers, early childhood educators, kindergarten support workers and hospital midwives (CEVEP, 2019a; Dew, 2017). The TerraNova test case, and subsequent assessments by the JWG which looked at pay and job requirements, could be seen to reflect various, not necessarily mutually exclusive, equity approaches. They suggest, for example, both a ‘stronger’ inclusion approach in emphasising the adoption of a full gender pay equity (rather than just equal pay for equal work) comparison, as well as a ‘weaker’ reversal approach as evidenced by a commitment to equal remuneration for work of equal value but limited to utilising binary comparisons of masculinised and feminised classifications. In doing the latter, they simultaneously widened the scope of the comparisons available to parties as part of their claim.

In 2017, the Fifth National Government introduced the Employment (Pay Equity and Equal Pay) Bill, arguing that it would ‘make it easier for women to file equal pay claims’. The Bill attracted widespread criticism, with many believing it would make the pursuit of equal pay claims more difficult (e.g. PSA, 2017). The Sixth Labour (Coalition) Government, which came into office in October 2017, withdrew the Bill, arguing that it would undermine the original JWG principles and create unnecessary (‘cynical’) hurdles for claimants. The Reconvened Joint Working Group on Pay Equity Principles (RJWG), again involving national tripartite partners (though not women’s organisations), reaffirmed the principles of the JWG. Draft legislation followed – the EPA Bill. Its key issues for consideration were the criteria for filing a claim, the processes to be followed and selecting appropriate male comparators (Lees-Galloway, 2018a).

An opportunity to ‘reframe’ the 1972 EPA

The EPA Bill was introduced on the 125th anniversary of women’s suffrage in New Zealand (19 September 2018) and had its first reading on 16 October 2018. If enacted in its current form, this law will provide employees, either individually or collectively, with a new process to raise a pay equity claim with their employer(s). If an employer considers the claim to be arguable, based on a list of factors, then the parties will proceed to pay equity assessment and bargaining. The legislation includes right of access to mediation services and retains the existing right to a determination by the Employment Relations Authority (an independent body established under the ERA) if the parties cannot agree, with right of appeal to the Employment Court. ⁶

The government argues that the new process reflects the policy intent that, by making court action a last resort, the threshold for raising a claim should be low; the process should be simple and accessible; and a collaborative process is more familiar to unions and businesses. ‘Appropriate’ male comparators include those with the same/substantially similar work (with appropriateness defined under 2AAC of the Bill as needing to reflect court judgments); different work that involves the same/substantially similar skills and experience, responsibilities, working conditions or degrees of effort; or any other comparator that the parties or the Employment Relations Authority considers useful and relevant. The recommended approach is based on the parties to a claim working together to resolve these issues, using the existing good faith bargaining provisions of the ERA, and where necessary, the dispute resolution processes of the Mediation Services or Determination by the Authority and Court (NZ Government, 2018a). ⁷ Consideration may also be given to historical or structural reasons for the work being undervalued, including a lack of effective bargaining (RJWG, 2018).

Significantly, the Bill’s explanatory note states that ‘collective bargaining and pay equity are distinct, and entry into a collective agreement by an employer and a union does not settle or extinguish an unsettled pay equity claim between an employer and employee’ (NZ Government, 2018b). To the concern of some parties, the Bill reduces the Employment Relations Authority or Employment Court’s current power to award back pay for a maximum of 6 years, in a way intended to incentivise employers to address pay equity issues within the first 11 years following legislation being passed, with incentives being progressively stronger after the first 5 years. This EPA Bill will amend the EPA, make corresponding minor changes to the ERA and repeal the Government Service Equal Pay Act 1960 (NZ Government, 2018a).

The Bill would appear to reflect equity approaches of different ambition. For example, applying Squires’ (1999) typology and Smith et al.’s (2017) interpretation, it arguably signals a weak displacement approach to equality regulation in its attempt to deal with pay equity with regard to gender via either a male comparator (at 2AAC (Bi&ii)) or – seemingly a move beyond a strict gender binary – ‘work performed by any other comparators that the parties or the Authority or Court considers useful and relevant, including comparators who perform work that has previously been the subject of a pay equity claim settlement’ (Part 4, s13M(1)c). Similarly, the 2013 TerraNova judgment by the Employment Court interpreted the EPA comparator categories broadly with respect to the comparator. Framed this way, the EPA and the EPA Bill seek to move beyond the binary logic inherent in inclusion and reversal strategies, and one of the Bill’s categories for comparison appears to move beyond male/female comparators. Arguably, it thus reflects an element of the more transformative imperative advocated by Cockburn (1989) but falls short of an ‘overhauling’ of the masculinist essence of organisations. However, another less ambitious equity approach can be identified elsewhere in the proposed statute. Suggestive of a weak reversal approach, for instance, the complaints-triggered law (cf. Chicha, 2006) can also lead to back wage payments and extension of pay equity in wider CEAs.

Reaction to the EPA Bill in context

The EPA Bill, before parliament at the time of writing, emphasises decentralised, autonomous and party-specific individual and collective bargaining in terms of process. While some of its elements have received backing from certain union and employer groups (e.g. CTU, 2018a: 2; PSA, 2018; Radio NZ, 2018), perhaps reflecting in part its formation via a tripartite process, there is also widespread opposition to and disappointment with the Bill. For example, employer advocate BusinessNZ backed the recommendations of both the JWG and RJWG but felt that the government unilaterally went further by allowing the Authority and courts to award back pay (Pullar-Strecker, 2018), albeit in a limited form. ⁸

By contrast, various commentators have expressed concern that the EPA Bill does not go further, especially in the area of pay transparency. In submissions to parliament, human and women’s rights activists have vocalised their trepidation over the conflation of pay equity, which is a human rights issue, and wage negotiation in a manner that disadvantages claimants. Furthermore, some (e.g. CEVEP, 2019b) argue that Cl.13L1c of the Bill provides the definition of equal pay rather than pay equity and should therefore be removed, calling attention to the Bill’s title. In its submission, the PSA (2018) advocates that employees have a say in or be able to object on reasonable grounds to the consolidation of claims by employers, and for their claims to be joined by other claimants. The PSA also does not support what it sees as the law’s ‘restrictive approach’ to back pay or related transitional arrangements, or the use of facilitation for any matter other than bargaining the pay equity rate. Similar to the HRC (2018b), the PSA is dissatisfied with the Bill for not requiring pay transparency or enabling unions to make claims for members based on classes of work. Extending these criticisms, CEVEP (2018b) note that the ‘snakes and ladders’ processes in this Bill reflect the previous Bill, rather than the expected minor changes to update the EPA, and will make it harder, not easier, for women to claim pay equity. It further contends that it could allow employers to lengthen the settlement process, and to assert that the initial claim was not arguable.

As indicated, the TerraNova judgment gave rise to a flurry of cases on pay equity. The CTU (2018b) observes that almost all settlements so far have been won by union women (the one exception is Duvenhage v Prosthetic Processes); unions also expect to be at the centre of future cases under the new law. And momentum has continued to grow. For example, a tripartite Gender Pay Gap Elimination Action Plan in the Public Service was announced, focusing on closing all pay gaps, especially in starting salaries, flexible work by default in all agencies and women holding at least 50% of leadership roles (Ministry for Women (MfW), 2018a). Earlier in 2018, the government also launched five new Gender Pay Principles to help address gender-based inequalities across the state sector (MfW, 2018b).

If passed, the EPA Bill will become operational amid key changes to the wider ER system. On 5 December 2018, the Employment Relations Amendment Bill became law, its aim being to ‘[restore] protections for employees, especially vulnerable employees, and [strengthen] the role of collective bargaining in the workplace’ (Lees-Galloway, 2018b). Businesses now have to enter into bargaining for MECAs unless they have reasonable grounds not to, and union representatives can enter workplaces without consent when employees are covered under, or bargaining towards, a collective agreement. Changes in effect from 6 May 2019 included the restoration of set rest and meal breaks; limiting 90-day trial periods to businesses with fewer than 20 employees; restoring protections to vulnerable workers; restoring the duty to conclude bargaining; a requirement that these collective agreements include wages; and restoring the rule whereby, for the first 30 days, new employees must be employed under terms consistent with the collective agreement (Employment NZ, 2018). Many employers see the changes as a roll-back to the legal situation in 2015 (Cooke, 2018), when the previous government introduced employment law amendments which were regarded by some as ‘cloaked in the neo-liberal rhetoric of increasing flexibility and choice’ (Blumenfeld, 2014). Given the re-regulatory thrust of the current government, it is unsurprising that the National Party, in opposition, plans to repeal this law when next in power. As Cooke (2018) assesses, a continued pendulum swing of policy on employment law thus looks likely.

Discussion and conclusions

Historically and comparatively, New Zealand’s current gender pay gap is small. However, despite apparent progress, this gap has refused to fully close, signalling ongoing disparities between women’s and men’s experiences of paid work. As this analysis highlighted, regulatory changes over time do not always impact on pay equity in a unidirectional or progressive fashion. While national laws have remained significant over time for addressing and evading pay equity issues, institutional mechanisms emphasising the application of pay equity in workplaces have varied in character, extent and impact, amid dynamic conditions. This indicates the need for closer context-sensitive examination and conceptualisation of equality aims, and their perpetual pursuit.

Our findings broadly concur with earlier classification of New Zealand’s regulation and policy approach to pay equity as inclusive. However, they also reveal elements of more ambitious approaches in past (e.g. as in the EEA of 1990), present and potential regulation. This coincides with an acknowledgement that equity categories are not necessarily mutually exclusive and that different elements of a country’s approach to pay equity can reflect different and intertwined approaches (Jewson and Mason, 1986; Smith et al., 2017; Squires, 1999). While such categorisations are analytically useful for examining the design of specific measures, they reveal little about how regulatory provisions actually play out in practice. The interactive effects of such approaches are thus also unknown (Parker, 2003). For some, this might suggest that a conscious reframing of the Bill with regard to equity approaches and assessment of their impact is needed, not least to help lengthen its overall ambition. Thus, whether a complex or a singular equity approach is superior, and for whom, are moot points requiring further exploration.

As indicated, approaches to pay equity in New Zealand primarily reflect elements of inclusion approaches and sometimes reversal initiatives. For example, the short-lived EEA comprised features of a strong reversal equity approach. For its part, the EPA has been variously interpreted over time. Early cases under this Act (e.g. the CWA case) encouraged the emphasis of an inclusive approach by focusing on equal pay, thereby stymying its original purpose with regard to pay equity. Indeed, it was not until the recent TerraNova case that the EPA’s longer equity ambition to address equal remuneration for work of equal value was realised. Looking forward, the EPA Bill intends to lower the threshold for pay equity claims and bring cases into a regular collective bargaining framework. While it has encountered both support and opposition (particularly by those who see pay equity as a human as opposed to a bargaining right), its non-specification of gender in relation to one of its comparator groups may signify one feature of the statute that goes beyond the binary approach of inclusion and reversal policies.

More specifically, the reinterpretation of the EPA via the TerraNova case highlights the dynamism of regulatory assessment and context. Some commentators have argued that centralised arrangements work better for women in terms of achieving pay equity, given their concentration in particular, low(er) paying occupations. This is supported by findings that improvements in women’s pay equity in the 1970s were partly the result of the protection afforded to women by the centralised system, yoked to the EPA removing lower female rates of pay and the historical strength of organised labour. This is in contrast to the impact, since the advent of the neo-liberal era in New Zealand from the early 1990s, of enterprise bargaining and individual contracts on women’s position (e.g. Frances and Nolan, 2008), indicating that, during periods where the state has a stronger (supporting) role, employer autonomy is moderated by dialogue and engagement between the ER parties; union organisation is strengthened; and collective bargaining is more centralised, gender pay relativities tend to improve though the specific impacts of (labour) institutions on women are neither simple nor unambiguous (cf. Martin and Bamber, 2004; Parker, 2003).

We might thus see a pattern developing in terms of the political context in which pay equity developments ebb and flow. Generally speaking, Labour and others have supported policy on pay equity to appeal to women, while National has supported EEO and liberal-oriented equal pay policy, rejecting pay equity on cost grounds and usually a rhetoric around women’s ‘choice’ of predominantly low-paid jobs. Under the present government, New Zealand has entered an era of regulation and policy that seeks to support pay equity and recalibrate the balance of power between workers and employers within an ER system that emphasises flexibility, collectivism, some re-centralisation of bargaining and state support. The Deputy Prime Minister, Winston Peters (2018), suggests that we are at the ‘bookend of the neo-liberal era’, shifting into ‘a humanistic strain of capitalism’ with the potential to benefit all New Zealanders. While it is difficult to foretell the specific impacts on pay equity of dedicated new law and policies, the vacuum left by declining collectivism may also need to be addressed to some extent via social dialogue and labour law.

Despite the complexities involved, international experts (including the ILO) have argued that legislation requiring employers to deliver pay and employment equity to women is essential if New Zealand is to overcome systemic economic discrimination against women (Briar, 2004) and to meet its international obligations under ILO 100 and 111, and CEDAW. However, this analysis surfaced some consensus among pay equity proponents for formal equality regulation and policies being flanked by initiatives at workplace and other levels (e.g. local initiatives that help to empower working women to initiate the complaints-based machinery available for pay equity cases, unconscious bias training, sustained multi-party campaigning) so as to encourage movement towards a more transformational agenda (Cockburn, 1989).

We note, too, that this study highlights the ongoing nature of gender equity analyses. The diversity of New Zealand’s population and labour market, for instance, stresses the limitation of a conversation restricted to women and men when a full gender spectrum and intersectional approaches, and further discussion of the measures and concepts used to assess pay inequality, will further help to identify and address inequities between different working groups if they are paid differently for doing work of similar value. Ongoing inequities also reinforce the need to integrate other economic reforms of direct government action (e.g. tying increases in the minimum wage to economic conditions; raising the minimum wage to a ‘living wage’ (Briar, 2004; Parker and Arrowsmith, 2014)) with regulatory support for pay equity. Consideration of such also requires full observance of international standards as part of future context- and gender-aware strategy.

This assessment also highlights the significance of campaigning groups and coalitions (e.g. CEVEP) and policy developments including the activities of non-governmental, quasi-autonomous governmental organisations, networks, as well as their dynamic levels of resources in profiling and progressing pay equity. Subsequent comparative work could deepen analysis of supra-national influences (e.g. the global financial crisis, Covid-19) as well as nation state complexities in relation to gender pay and wider equity (e.g. Frances and Nolan (2008) observe that New Zealand operates under an essentially unitarist ER regime while, in the federated nation of Australia, state institutions and economies continue to play an important role). Future research might also more deeply examine specific features of key legislation, legal cases and various policies designed to tackle pay inequity.

Indeed, scant attention has been paid to providing an understanding of pay equity initiatives with systematic regard to key environmental features. This study sought to couch pay equity measures in New Zealand’s ER and socio-economic context over time. Subsequent work might encourage even more robust framing of equity initiatives by utilising the dimensions of relevant political economy models, including those which emphasise ER contextual features (e.g. Martin and Bamber, 2004; Vaughan-Whitehead and Vazquez-Alvarez, 2018). Sense-making of pay equity developments through systematic reference to such frameworks may bring to light their relationship to the dynamic interaction of particular political and socio-economic processes, the power relations of their exponents and the focus of challenges to such.