What you really need to know about equal pay claims

management meetingDec 2020

All ECE services employing qualified and certificated teachers are affected by the Equal Pay Amendment Act 2020 (the Act) that has now come into force.

As a service provider/employer you cannot choose to ignore pay claims brought under the Act.  The Act describes the actions that you must take when you receive a claim. 

As a good employer what you can do is to ensure that your employees are properly informed about the choices before them.

Amongst other things, the Act requires you to decide if you think that the claim is ‘arguable’ or not.  The Act’s test for arguability is quite simple. 

If you answer Yes to the following two questions, then the claim is ‘arguable’:

  • Are 60% or more of the certificated teaching staff you employ female?
  • Is their work currently undervalued?

The ECE workforce is clearly predominantly female. 

Agreeing that the claim is ‘arguable’ does not mean that you agree with it.  Agreeing that the claim is arguable does not commit you to any changes in staff pay.

NZEI’s claim

  • NZEI’s claim includes ‘kindergarten’ teachers who are covered by the KTCA, which was re-negotiated without any reference to a pay disparity based on gender, so presumably NZEI has new information which it would need to share with you for you to decide if those already covered by the KTCA are undervalued.
  • NZEI’s claim might see all teachers, including primary and secondary, getting a pay increase (eventually) if successful. But in the meantime, it is likely to end up delaying or preventing funding for pay parity for teachers in non-kindergarten ECE services.

Individual claim put forward on behalf of teachers by Mr Haynes

  • The individual claim covers teachers paid below KTCA rates.
  • The Minister of Education has stated that non- ‘kindergarten’ ECE teachers are currently underpaid. His public statements support the ‘arguability’ of the individual claim.
  • The claim will not be settled if it jeopardises the financial operations of your service. Therefore, many employers who know the advantages of having staff who are paid adequately for their professional qualifications and experience, are supporting their teachers to submit a form for an individual claim (go to the form here:  https://forms.gle/MMngDTBPFzUyL9oU6)
  • It means that the Government (via the Ministry of Education) will be obligated to ensure funding is at a level that services can meet the wage settlement.

The Early Childhood Council business lobbyist position

  • The ECC has not been successful in calling for the claims to be withdrawn. Most service providers know better.  The ECC should not now be discouraging or warning its members off from supporting teachers who are putting forward individual claims. This would be very poor behaviour. 
  • It is understood that the ECC is now advising its members that it intends to engage some expensive lawyers to act for their centres. That may not be a wise use of their funds, but that is their choice. 
  • More problematic is ECC's stated intention to extend the time limit for deciding if a pay claim is 'arguable'.  This would seem to fly in the face of the Act, which requires employers to take a "light touch approach" (s13Q(2)) and to decide "as soon as reasonably practicable" (s13Q(1)) when making the decision about 'arguability'.  Also, an extension needs "reasonable grounds" (s13R(1)). 
  • It is unclear what reasonable grounds could be found for a service provider to delay deciding if their teachers are predominantly female or not, or what grounds there might be to think that the Minister of Education is wrong when he says that non-‘kindergarten’ teachers are underpaid.
  • The ECC seeking to delay the process at this stage only works to the detriment of your teachers, and therefore your service and its reputation, as it delays whatever outcome is arrived at with the government.

Note the following

  • Once a claimant has appointed a representative the Equal Pay Amendment Act (s13C) says that the employer must deal with that representative, and not with the employee, on all matters related to the claim.
  • All employers are bound by the Employment Relations Act. They are bound to act in good faith and to be a good employer.
  • It is illegal for employers to discriminate against claimants in any way.  The Equal Pay Amendment Act states that claimants must not be treated adversely (s15) and it forbids "oppressive means, undue influence, or duress" in negotiating a settlement (s13ZI).
  • Good employers see the value of having well paid staff as this will contribute to the quality of service that they provide.
  • Employers should support this move to secure for them the government funding needed to pay their qualified teaching staff properly
  • Whilst the Equal Pay Amendment Act 2020 contains provisions for "Claims involving multiple employers" these relate to union-raised claims.  By its very nature an individual claim is raised with that individual's employer and there is no "multiple employer" process.

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