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Individual Pay Equity Claims Update from David Haynes - Jan 2021 5 months 3 weeks ago #974

  • David Haynes
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On 6th November 2020 the Equal Pay Amendment Act 2020 (the Act) came into force. Prior to this date I had prepared an individual pay claim for certificated teachers working in ECE who were not covered by the Kindergarten Teachers, Head Teachers and Senior Teachers’ Collective Agreement (KTCA). Those covered by the KTCA already have pay parity with other teachers and the KTCA was renegotiated and agreed without any pay equity issues being documented in it. Therefore, the individual pay claim that I represent is not open to anyone covered by the KTCA – they must rely on the NZEI to represent their interests.
Prior to 6th November, ChildForum created an on-line form that allowed individual teachers to appoint me to represent them in a pay claim (you can find it here). There was immediate interest so, by 6th November, many teachers had already appointed me to represent them.

What did the Act Change?
Amongst other things, the Act:
• made it easier for pay equity claims to be made,
• allowed for individuals to make claims,
• set a deliberately low bar for the ‘arguability’ of claims, and
• allowed parties to a claim to agree to use any “useful and relevant” comparators when determining the extent of undervaluation of the work being performed.

What Happened to Pay Parity?
For all certificated teachers working in ECE it remains my objective to achieve pay parity for you with school teachers. The Act is about pay equity – pay discrimination based on gender. This is clearly the case in ECE, as NZEI has been saying for years. Unfortunately until now nothing has been achieved. With the recent law change pay parity – basing pay for certificated teachers working in ECE on the same pay scale that is applied to other certificated teachers – should now be able to be achieved using the new pay equity mechanism. This is what the individual claim is trying to do. Indeed it should be possible to achieve, for non-‘kindergarten’ ECE teachers, pay terms and conditions better than those in the KTCA.

What Happened on 6th November?
On the evening of 5th November I emailed a copy of the claim to:
• The Minister of Education,
• The Secretary for Education,
• Individual employers whose teachers had asked me to represent them.
On 6th November NZEI sent a blanket pay claim to every ECE service employing an NZEI member. This meant that many employers received two different and unrelated pay claims at the same time. There was understandable concern and confusion. One direct result of the NZEI’s claim is that I am not allowed to represent NZEI members. They must be represented by NZEI. I apologise to all those NZEI members who had appointed me, but I cannot act for you. I am confident that NZEI will represent your best interests to the best of their ability.
In the days and weeks following the 6th November I collated claimants’ details and progressively sent these to employers. This was a task that grew like topsy as more teachers asked me to represent them. For a claim to be complete the employers had to receive the claimants’ details.

What is NZEI’s Claim About?
NZEI’s claim is a union claim covering multiple employers, not an individual claim. It has a very different scope to the individual claim. NZEI’s claim:
• covers “Teachers and those doing the same or similar work” so, as they do not use the term “registered teacher”, unqualified kaiako are presumably included;
• includes employees of kindergarten associations, so it covers people who already have pay parity through the KTCA even though that was renegotiated recently without any pay equity issues being raised; and
• includes consultation with school teachers as “potentially affected employees”, that is people who are doing the same or substantially similar work to those covered by the claim. This means that NZEI potentially regards school teachers as suffering from gender-based discrimination. It will be interesting to see how NZEI’s claim proceeds but, given its very wide scope and its inclusion of groups who already have pay parity and are covered by NZEI negotiated collective agreements, it is likely to be difficult to agree appropriate comparators. It is therefore unlikely to proceed quickly. In any event, it is completely unrelated to the individual claims that I represent.

Arguability
Having acknowledged receipt of a claim the Act specifies that employers must decide if the claim is ‘arguable’. For a claim to be ‘arguable’ the Act requires two conditions to be met:
• Is or was the work predominantly performed by female employees? Any employer who has men making up more than 40% of their certificated teachers can state that the claim is not arguable. ECE is overwhelmingly dominated by women, but employers can do the maths on this test for their workplaces in about ten seconds.
• Is it arguable that the work is undervalued? The Minister of Education has stated that this is the case, and he should know. Also, employers can compare the rates that they pay with those in the KTCA. This could take five minutes if it takes them four and a half minutes to find a copy of the KTCA. The Act also states that employers must take “a light-touch approach” when deciding arguability. Note that deciding that a claim is arguable does not mean that there is a pay equity issue or mean that there will be any settlement. You can see from the above that determining arguability is not onerous. The 45 working days allowed by the Act to come to a decision is not seen as an amount of time that would normally be taken. The Act requires an employer to decide if a pay claim is arguable “as soon as is reasonably practicable”.

Have Individual Claims Been Accepted as Arguable?
A number of employers have already accepted that the claim is arguable, and that number is growing. The major exception to this are employers who are members of the Early Childhood Council (ECC) and have asked ECC to represent them. For reasons best known to themselves ECC, who are an industry group representing employers’ interests, has decided to oppose and try to delay the individual claims. Also, a number of employers, mostly ECC members, have placed illegal pressure on their employees to withdraw from the claim. This illegal bullying should not be happening, not only because it is inconsistent with being a good employer but also because the Act states that employers must deal with an individual’s representative if they have appointed one. Treating claimant employees adversely is an offence under the Act. Employers should not be discussing the claim directly with individual teachers. This should safeguard individuals from bullying.

What Else is ECC Doing?
ECC has told its members that it is securing an 80 working day extension to the decision on ‘arguability’. ECC sent me an undated letter just before Christmas stating that it was granting itself an 80 day extension, but the law does not allow ECC to do that. An 80 day extension may apply to a claim involving multiple employers, such as NZEI’s, but the maximum extension allowed for claims raised with a single employer (and each individual claim is just with a single employer) is 20 working days. It seems that ECC has not studied the law closely. Not only has it got the potential length of an extension wrong, it has taken a heavy hand to the ‘light touch’ approach required under the Act. I have written to ECC pointing out its errors and have been promised a reply “early in the New Year” but, as at 27th January, I had heard nothing.

So What Happens Now?
The process from here is guided by the government’s “Framework for the Oversight and Support of Funded Sector Pay Equity Claims” (the Framework) which can be found here: Government Framework
Under this Framework the Ministry of Education (MoE) is the ‘funding agency’ responsible for oversight of the process. I met with MoE officials in December to discuss the best way to proceed on a path that will result in government funding the outcome of the claim. They appeared surprised that a number of employers had already agreed that the individuals’ claims were arguable. We are moving faster that MoE expected. MoE agreed that a meeting with the employees' representative (me) along with some of the employers who have already agreed that the claim is 'arguable' would help clarify what both I and the employers need to do next. I have just written to all the employers who have already agreed that the individual claims are arguable and have provided them with some additional information on the government's framework process for negotiating pay claims. I am waiting for their responses.

And What’s Happening at the Moment?
The volume of teachers asking me to represent them has meant that I have had to teach myself how to work the Access database system because keeping track of everything using Excel was becoming unwieldy. I am still catching up on writing to all employers, and this seems to be an endless task because more people continue to appoint me to represent them. That’s great. It’s not too late to join and the more claimants the more powerful our voice. Just follow the link on this page: Pay Parity Campaign Page

Thanks
I would like to thank ChildForum for all their help and support. We could not have got this far without their help. Thanks also to Dr Sarah Alexander.
I would like to thank all the employers who are responding constructively to this challenge and extra work, and especially to those who have encouraged their staff to make a claim and those who have agreed that the claim is ‘arguable’.
Most of all I would like to thank all those individual teachers who have stepped forward and asked me to represent them. My apologies to those of you who have been bullied at work because of this. The work that ECE teachers do with young children is so valuable and makes such a positive difference to their young lives. I think that you should all be paid at least as much as a backbench MP, but that battle can wait until after we get you the pay that you deserve as a professionally certificated teacher.

David Haynes
27th January 2021

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