Pay Equity and 'arguability' of different types of claims – A short guide for centre owners and managers

drums noisePay Equity – What is the latest deadline about?

A short guide for centre owners and managers

Many centres will have recently received an email from the Ministry of Education (MoE) about extending the timeframe for agreeing arguability (and seeking a response by 13th May, which you may or may not given yet).  This relates only to NZEI’s union claim.  It does not relate to the individual claims being represented by David Haynes.  The law states that the individual claims and NZEI’s claim must follow different processes.  Legally they are unrelated.

For those who have received the recent email from MoE, all you are being asked to do is to agree to ask NZEI for an extension to the timeframe required in which to decide if NZEI's claim is arguable.  This extension is necessary to allow the hundreds of affected employers to agree how they will work together.  The law states that the employers must agree a multi-employer process agreement (MEPA) amongst themselves before they engage with the union.  This means that the MEPA must be agreed before the group of employers can agree arguability.  You should reply to MoE, either directly or through an organisation that represents you, and state if you agree to ask for an extension to the deadline for determining 'arguability'.  There is nothing to be lost in asking for this extension as the MEPA is needed before employers can address the ‘arguability’ of NZEI’s claim.

To explain a bit more about 'arguability'; the process set out in the Pay Equity Act requires employers to state whether or not they believe that a pay equity claim is 'arguable'.  It states that a claim is arguable if there is a female dominated workforce and if the work has been undervalued.  Both of these conditions are met in non-kindergarten ECE.  This means that, in centres with few male teachers and that pay below KTCA rates, the individual pay claims that David Haynes represents are clearly arguable.  Many employers have already agreed this. 

But for NZEI's union claim the position is not so clear.  NZEI's claim has a much wider scope.  It includes teachers who are already covered by the Kindergarten Teachers, Head Teachers and Senior Teachers' Collective Agreement (KTCA).  It also identifies primary school teachers as potentially affected because they are doing similar or the same work.  Both of these groups of certificated teachers had NZEI negotiate their current collective agreements without including any mention of pay equity issues.  However, before the employers covered by NZEI's claim can agree a position on arguability they must first agree the MEPA.  This means that you do not yet need to come to a position on the arguability of NZEI's claim - you just need to agree to ask for the timeframe to make that decision to be extended.

If an employer agrees that a claim is arguable it does not mean that the employer agrees that the claim is valid or will result in a pay adjustment.  All it means is that the employer agrees to engage in negotiating the pay claim.

Also, because the scope of NZEI’s claim is so much wider than the individual claims, any decision about the arguability of those individual claims does not set a precedent for, and indeed would have no bearing on, the arguability of NZEI’s claim.  The individual claims are from people who would be paid much more if only they worked in a ‘kindergarten’ and were covered by the KTCA.  Their comparative current underpayment is a matter of public record and is something that the Minister of Education has described as being unacceptable.

Many people are a bit puzzled at MoE’s role in the pay equity claim process.  The MoE is both the 'funding agency' for all of ECE and an employer affected by NZEI's claim.  This is because MoE is technically the employer that negotiated the KTCA.  This means that MoE wears two hats; funder and employer.  People are accustomed to dealing with the MoE as one agency, but in this instance it must compartmentalise its role as an employer and keep that separate from its role as a funder.

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