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Employment (Pay Equity and Equal Pay) Bill (Consistent) (Sections 5, 14, 19) [2018] NZBORARp 22 (13 March 2018)
Last Updated: 3 January 2019
13 March 2018
Hon David Parker, Attorney-General
LEGAL ADVICE
LPA 01 01 23
Consistency with the New Zealand Bill of Rights Act 1990: Employment (Pay Equity
and Equal Pay) Bill
Purpose
- We
have considered whether the Employment (Pay Equity and Equal Pay) Bill
(‘the Bill’), a member’s Bill in the name
of Denise Lee MP, is
consistent with the rights and freedoms affirmed in the New Zealand Bill of
Rights Act 1990 (‘the Bill
of Rights Act’).
- We
note that the Bill is essentially indistinguishable from a previous Government
Bill, the Employment (Pay Equity and Equal Pay)
Bill 2017, which lapsed on 22
August 2017. This Bill differs from the previous Government Bill in that there
are some minor and inconsequential
changes to terminology in the explanatory
note, and updates to dates contained in the transitional provisions in Schedule
1 of the
Bill.
- We
have therefore reached the same conclusion contained in our previous advice that
the Bill appears to be consistent with the rights
and freedoms affirmed in the
Bill of Rights Act. In reaching that conclusion, we have considered the
consistency of the Bill with
s 14 (freedom of expression) and s 19 (freedom from
discrimination). Our analysis conforms with our previous advice, and is set out
below.
The Bill
- The
Bill repeals and replaces the Equal Pay Act 1972 and the Government Service
Equal Pay Act 1960. It also makes amendments to the
Employment Relations Act
2000.
- The
purposes of the Bill are to:
- promote
enduring settlement of claims regarding gender discrimination on pay equity
grounds;
- provide
for the elimination and prevention of existing and future gender discrimination
in remuneration and other terms and conditions
of
employment;
- set
out the different processes by which employees may make claims relating to
gender discrimination; and
- re-enact,
in an up-to-date form, the relevant provisions of the Equal Pay
Act.
- To
that end, the Bill sets up processes for employees to make the following
claims:
- equal
pay claims, which are claims alleging that the rate of remuneration paid
discriminates on the basis of sex between employees
who perform the same or
substantially similar work;
- unlawful
discrimination (non-remuneration) claims, which are claims alleging that the
terms and conditions of employment (other than
remuneration) discriminate on the
basis of sex between employees who perform the same or substantially similar
work; and
- pay
equity claims, which are claims that for work that is exclusively or
predominantly performed by female employees, the rate of
remuneration paid for
the work contains an element of sex-based
discrimination.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms the right to freedom of expression,
including the freedom to seek, receive, and impart
information and opinions of
any kind in any form. The right to freedom of expression has also been
interpreted as including the right
not to be compelled to say certain things or
to provide certain information.1
- Parties
to a pay equity claim who are having difficulties in resolving that claim may
seek the assistance of the Employment Relations
Authority in resolving those
difficulties, through a process called facilitation. Clause 33(2) of the Bill
provides that a party
to facilitation may make a public statement about
facilitation only if it is made in good faith, and limited to the process of
facilitation
or the progress being made. The clause therefore appears to limit s
14 of the Bill of Rights Act.
- Where
a provision is found to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is justifiable in terms of s 5 of that Act.
- We
consider that the limitation arising from cl 33(2) is justified under s 5 of the
Bill of Rights Act. The objectives of promoting
enduring settlement of pay
equity claims and eliminating sex discrimination in employment are sufficiently
important. We consider
a requirement that parties to facilitation maintain
confidentiality in that process is rationally connected to those
objectives.
- As
cl 33(2) still allows for public statements to be made about facilitation
processes and progress, we consider it impairs the right
to freedom of
expression no more than is reasonably necessary. Given the importance of
confidentiality to the use of facilitation
to resolve employment claims, the
limits are in due proportion to the importance of the objective. In particular,
we are advised
that settlement is more likely to be achieved if parties to
facilitation can make representations in a confidential and without prejudice
manner.
- A
number of clauses in the Bill also compel the provision of certain
information:
- cl 16
provides that an employer who receives a pay equity claim must notify other
employees, doing the same work, that a pay equity
claim has been made;
- cl 17
requires employers to give notice to an employee of whether they view the
employee’s pay equity claim as having merit;
1 RJR MacDonald v
Attorney-General of Canada (1995) 127 DLR (4th) 1.
- cl
19 requires employers, where pay equity claims have been consolidated, to
provide all claimants with one another’s names
and addresses (except where
a claimant has requested confidentiality);
- cl 22
requires parties to a pay equity claim to provide each other information that is
reasonably required to support or substantiate
the claim or a response to the
claim; and
- cl 41
requires employers to keep records about pay equity claims, with failure to do
so attracting a penalty of up to $20,000.
- We
consider any limitations arising from these provisions to be justified under s 5
of the Bill of Rights Act. The provisions form
part of a mechanism that aims to
promote enduring settlement of pay equity claims and the elimination of sex
discrimination in employment.
We consider these objectives to be sufficiently
important. Requiring employers to keep records and to provide information about
claims
and other claimants to employees is rationally connected to those
objectives. The requirement that parties provide relevant information
to each
other is also rationally connected to those objectives.
- The
provisions relate to information that is factual in nature, and there are
safeguards in cases where claimants request confidentiality.
We therefore
consider the provisions impair the right to freedom of expression no more than
is reasonably necessary in order to achieve
the objectives, and the limits are
in due proportion to the importance of those objectives.
- For
these reasons, we conclude that any limits to the freedom of expression imposed
by the Bill are justified under s 5 of the Bill
of Rights
Act.
Section 19 – Freedom from discrimination
- Section
19 of the Bill of Rights Act affirms that everyone has the right to freedom from
discrimination on the grounds set out in
the Human Rights Act 1993, including
sex.2
- The
key questions in assessing whether there is a limit on the right to freedom from
discrimination are:3
- does
the legislation draw a distinction on one or more of the prohibited grounds of
discrimination under s 21 of the Human Rights
Act?
- if
so, does the distinction involve material disadvantage to one or more classes of
individuals?
- In
determining if a distinction arises, consideration is given to whether the
legislation proposes that two comparable groups of people
be treated differently
on one or more of the prohibited grounds of discrimination.4
The distinction analysis takes a purposive and
2 Human Rights Act 1993, s 21(1)(a).
3 See, for example, Atkinson v Minister of Health
and others [2010] NZHRRT 1; McAlister v Air New Zealand [2009] NZSC
78; and Child Poverty Action Group v Attorney-General [2008] NZHRRT
31.
4 Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR
523 (CA) at [573] per Tipping J (dissenting), relied on in Atkinson v
Minister of Health and others [2010] NZHRRT 1 at [199]; McAlister v Air
New Zealand [2009] NZSC 78 at [34] per Elias CJ, Blanchard and Wilson JJ and
at [51] per Tipping J; and Child Poverty Action Group v Attorney-General
[2008] NZHRRT 31 at [137].
untechnical approach to avoid artificially ruling out
discrimination.5 Once a distinction on prohibited
grounds is identified, the question of whether disadvantage arises is a factual
determination.6
Limitation on back pay in pay equity claims
- Monetary
claims (for example equal pay claims under both the Equal Pay Act and the Bill,
and minimum wage claims) generally have a
six-year limitation on back pay.
Clause 40 provides that, where the Employment Relations Authority determines a
pay equity claim,
the back pay awarded may be paid only in respect of the period
beginning with the date the claim was lodged, instead of six years
prior. This
limitation does not apply to pay equity settlements negotiated between employers
and employees. It also does not apply
to other types of claims under the Bill,
such as equal pay claims.
- Pay
equity claims by definition relate to work exclusively or predominantly
performed by women, so the limitation on back pay in such
claims
disproportionately affects women. The Equal Pay Act, which is repealed by this
Bill, allows for back pay to six years. We
note that all existing and
undetermined pay equity claims brought under the Equal Pay Act will be
discontinued under the Bill in
accordance with the transitional provisions at
Schedule 1, and recommenced under the provisions of the Bill. Accordingly, this
change
will also impact on those existing unresolved pay equity claims.
- We
therefore consider the material effect of cl 40 disproportionately affects
women, and therefore that the Bill limits the right
to be free from
discrimination on the prohibited grounds of sex affirmed in s 19(1) of the Bill
of Rights Act.
- In
our consideration, we have noted that a pay equity claim is substantially
different from an equal pay claim. Equal pay claims involve
direct
discrimination from an individual employer. Through actual intent or unconscious
bias, the employer has caused discrimination
against the employee. Pay equity
relates to a systemic social issue. It takes account of historical
discrimination against an occupation,
and therefore is not caused by the
individual employer. The employer in a pay equity dispute has paid the market
wage in good faith,
and is therefore less blameworthy.
- We
consider the limitation is justified under s 5 of the Bill of Rights Act
because:
- the
Bill aims to implement a pay equity bargaining framework, to address historical
and systemic discrimination against predominately
female professions;
- back
pay has been limited to the date of lodging the claim to ensure the process is
balanced and fairly reflects the nature of the
grievance against the individual
employer; and
- it
does not prevent the parties to a pay equity claim from reaching a negotiated
settlement that includes back pay to a date before
the date of the pay equity
claim.
- We
therefore conclude that the limitation on the right to be free from
discrimination is reasonably justified.
5 Atkinson v Minister of Health and
others [2010] NZHRRT 1 at [211]- [212]; McAlister v Air New Zealand
[2009] NZSC 78 at [51] per Tipping J; and Child Poverty Action Group v
Attorney-General [2008] NZHRRT 31 at [137].
6 See for example Child Poverty Action Group v
Attorney-General [2008] NZHRRT 31 at [179]; and McAlister v Air New
Zealand [2009] NZSC 78 at [40] per Elias CJ, Blanchard and Wilson JJ.
Language distinguishing between the sexes
- We
have also considered whether the distinctions based on sex throughout the Bill
constitute a limit on the right to be free from
discrimination. For example, cl
8 of the Bill provides that pay equity claims relate to work that is exclusively
or predominantly
performed by female employees.
- However,
we consider the Bill is covered under s 19(2) of the Bill of Rights Act, which
provides that measures taken in good faith
for the purpose of assisting or
advancing disadvantaged persons do not constitute discrimination. The Bill
provides a scheme to address
systemic workplace discrimination on the basis of
sex. It is therefore necessary to make some distinctions based on
sex.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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