Cross-Examination: #healthneedsnursing and Why Pay Equity for Nursing is a Gender Issue

By Amy Dresser

Nurses protests have flooded New Zealand media over the past month. Considering that recent headlines have been full of pay equity claims by health professionals in female-dominated areas, protests come as no surprise. Care workers were granted a landmark $2 billion pay equity settlement in April last year, following proceedings in the Employment Court and Court of Appeal,[1] and midwives have also been fighting for fair pay and working conditions under District Health Boards (DHBs).[2] Therefore it is time to question whether our equal pay laws are up to the task of actually achieving pay equity, and whether they can help the nurses in their current struggle.

What are nurses protesting?

New Zealand Nurses Organisation Tōpūtanga Tapuhi Kaitiaki o Aotearoa (NZNO) entered negotiations in July 2017 with the District Health Boards through a Multi-Employer Collective Agreement (MECA), to take action on unsafe staffing and unfair pay.[3] The NZNO launched the #healthneedsnursing social media campaign in response to dissatisfaction with the progress of the negotiations, and their website outlines their main concerns. These include:[4]

  • increased workloads,
  • inadequate and unsafe staffing,
  • undervaluation of work,
  • burnout,
  • lack of job satisfaction.

Allegations abound on social media about nurses suffering from burnout and dangerous working conditions, which can be seen in the campaigns #hearourvoices and #healthneedsnursing.[5] Registered nurse Freya Head explains that “[a] decade of severe underfunding of our public hospitals has taken its toll on everyone, and nurses bear the brunt of this in their everyday lives.”[6] This campaign is only growing, and the first protests – organised in shifts, so as not to compromise patient care – occurred across the country on Tuesday 10 April. Protestor and nurse Caitlin Francey explains that the protests are “a signal to government that we feel undervalued, and feel so strongly about this that we are willing to strike if there are no improvements in pay and our working conditions.”[7]

On 27 March 27,000 nurses, midwives and healthcare assistants voted through NZNO to reject a 2% pay increase over two years, in the MECA negotiations.[8] NZNO continues to negotiate in good faith with the DHBs, but they are considering a strike.[9] Striking is not something to be considered lightly, regarding the great responsibility nurses hold. The fact that they are considering it demonstrates the extent of frustration nurses feel at their current circumstances and their commitment to change.

Nurses, midwives and healthcare assistants do not do their jobs for the money – if they did, these protests would have occurred a long time ago. They are literally saving lives, and yet graduate nurses will barely be paid above minimum wage after the next increase.[10] The New Zealand College of Midwives (NZCOM) reports that midwives earn $2200 per case, which encompasses 10 months of consultation and care, and being on call 24 hours a day.[11]

But how have we gotten to the point where publicly funded professionals have to protest for fair pay? Every single person is reliant on nurses, midwives and healthcare assistants to continue doing their jobs. New Zealand’s health system is publicly funded and nurses are employed by DHBs.[12] There is a great level of government supervision, yet DHBs have not been held legally or publicly accountable before now. This is unacceptable.

Source: www.healthneedsnursing.nz

 

What are our current pay equity laws?

New Zealand’s pay discrimination laws are set out in the Equal Pay Act 1972. Section 2 defines equal pay as “a rate of remuneration for work in which rate there is no element of differentiation between male employees and female employees based on the sex of the employees”.[13] This definition is specific to where there is unequal pay between men and women performing the same role. This is not the issue in nursing – only 8% of nurses are men and there are no allegations of male nurses being paid more than female nurses.[14]

Therefore, real issue is pay equity. The Court of Appeal defines pay equity simply as “equal pay for work of equal value”.[15] To expand, pay equity acknowledges that some jobs pay less by virtue of who performs the work, rather than the skills required to do the work or the value the work provides. In the landmark 2014 case Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc, the Court of Appeal held that the Equal Pay Act 1972 was intended to provide for pay equity and not just equal pay.[16]

Terranova was a case brought by caregivers working in a rest home, who claimed that both male and female caregivers were paid a lower rate of pay than they would if the work was predominantly performed by men.[17] To clarify: 92% of workers in the aged care sector were women (coincidentally, the same percentage as in nursing).[18] The substantive claims have not been heard, as both courts only assessed preliminary issues, but there is an absence of case law in this area.[19] The Court of Appeal affirmed the Employment Court’s findings, that to apply s 3(1)(b) of the Equal Pay Act care givers’ work could be compared to work performed predominantly by males in other sectors.

S 3(1)(b) provides for pay equity, in which work “exclusively or predominantly performed by female employees” should be compared to the pay received by men with the same or substantially similar skills, responsibility, conditions and effort.[20] Allowing comparators only within the rest home sector would be ineffective since there is a high proportion of women in all areas, and further in other sectors, work may be exclusively performed by women.[21] Additionally, the Court makes a big statement in acknowledging that the historic and systemic undervaluation of work traditionally and/or predominantly performed by women is relevant, and is another reason why it is necessary to make comparisons to male dominated sectors.[22]

Theoretically, this position is a not a bad starting point for pay equity – but it is merely a starting point. The Court of Appeal has explicitly acknowledged that female-dominated industries may be underpaid due to being considered “women’s work”.[23] However, it is unclear which groups might be available as comparators. Additionally, the Equal Pay Act 1972 is widely considered as ambiguously worded and poorly drafted.[24] There is, however, potential in s 9: “court may state principles for implementation of equal pay.” While this section has been ignored for the past 46 years, now would be a great time to start using it in the wake of the care workers’ claim and the current protests.

 

Could nurses succeed in a pay equity claim?

Comparing the nurses’ grievances with the care workers’ claims, strong parallels can be seen. These roles have been historically undervalued as a result of care work being seen as an extension of the women’s traditional role as a mother in the private sphere. While women have been increasingly extending into traditionally male industries, such as business or engineering, since the mid-twentieth century, those who work in female-dominated sectors are not receiving the same recognition.

The NZNO is currently in negotiations with DHBs on behalf of nurses, but with the MECA having reached an impasse, it could be time to consider other options.[25] NZCOM brought a pay equity case for midwives in 2015, but withdrew it and entered an agreement with the Ministry of Health, in which NZCOM could design a new funding model.[26] However, the government is yet to act on NZCOM’s recommendations and there is no certainty whether they will even be accepted.[27]

The practical effectiveness of our pay equity laws is unclear. On one hand, Terranova showed promise for future pay equity claims by establishing that the Equal Pay Act 1972 does provide for pay equity, and not just equal pay.[28] However, this case metaphorically left the door open – it never went back to the Employment Court to establish principles of pay equity and identify appropriate comparators[29]. The government awarded a $2 billion settlement, in which care workers will receive a 15-50% pay rise over the next five years.[30]

Bill English warned that the “hurdle would be pretty high” for future groups with pay equity claims, and his government introduced the Employment (Pay Equity and Equal Pay) Bill 2017 to prevent future pay equity claims on the same grounds.[31] This bill was withdrawn by the new Labour government, and there have not been any further developments on pay equity reform.

Therefore, the state of our pay equity laws is uncertain, but they certainly hold a lot of potential. The biggest hurdle was accepting that employees in female-dominated industries are paid less than employees in male-dominated industries, as a result of the systemic and historical undervaluation of women’s work. Acknowledging this, there is no reason why nurses, midwives and healthcare assistants would be unsuccessful in law. The care workers’ claims are indistinguishable from the nurses’ claims.

Source: www.healthneedsnursing.nz/

The only obstacle to the NZNO testing our pay equity laws is actually bringing the case. The Terranova case ended in settlement. The NZCOM withdrew their claim in favour of settlement.[32] There is no doubt that settlements bring great outcomes, but it is disappointing that our law cannot be tested. Our pay equity laws are capable of providing change, but it will be difficult to make further progress without bringing cases which can make further law.

What is needed is a positive obligation on the employers – or even just on the government, as a starting point – to pay employees in female-dominated areas with recognition of their skills and systemic undervaluation. It is shocking that publicly funded DHBs, and the Ministry of Health by extension, have been able to get away with not paying health professionals fairly. If the nurses, midwives and health professionals are to be successful, this could open the door to teachers and employees in other female-dominated areas to bring claims which acknowledge the historical undervaluation of their work and lack of fair pay.

With negotiations at an impasse, it is up to the NZNO to choose what to do next. They have the attention of the country, and therefore the power to hold the DHBs accountable. No matter what the outcome is, or through which avenue they achieve it, it will affect future pay equity claims in the future – provided there are any future pay equity claims.

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The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

[1] Jonathan Coleman “$2 billion pay equity settlement for 55,000 health care workers” (press release, 19 April 2017).

[2] Sally Murphy “Auckland midwives slam staff shortages, poor culture” (19 February 2018) Radio New Zealand <www.radionz.co.nz>

[3] New Zealand Nurses Organisation “Next round of negotiations begin” (press release, 31 January 2018).

[4] See generally New Zealand Nurses Organisation “Health Needs Nursing” <www.healthneedsnursing.nz>.

[5] See, for example Health Needs Nursing “Health Needs Nursing NZ” Facebook <www.facebook.com/healthneedsnursing>.

[6] Freya Head “Opinion: nurses are stretched to capacity – we deserve more than a 2 percent pay rise” (27 March 2018) <www.newshub.co.nz>.

[7] Emily Ford and Hannah Martin “’Undervalued’ nurses rally for better pay at Auckland’s Middlemore Hospital” (10 April 2018) <www.stuff.co.nz>.

[8] New Zealand Nurses Organisation “NZNO MECA meetings coming to close” (press release, 22 March 2018); and New Zealand Nurses Organisation “NZNO voice is no” (press release, 26 March 2018).

[9] New Zealand Nurses Organisation “NZNO voice is no”, above n 8.

[10] New Zealand Nurses Organisation “First rally Tuesday 10 April (press release, 9 April 2018).

[11] Cecile Meier “Midwives settle pay equity fight and get $8 million pay rise” (29 May 2017) Stuff <www.stuff.co.nz> per New Zealand College of Midwives.

[12] Ministry of Health “Funding” <www.health.govt.nz>.

[13] Equal Pay Act 1972, s 2.

[14] Nursing Council of New Zealand The New Zealand Nursing Workforce: A profile of Nurse Practicioners, Registered Nurses and Enrolled Nurses 2014-2015 (2015) at 16.

[15] Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc [2014] NZCA 516, [2015] 2 NZLR 437 [Terranova] at [112]. But see at [168], in which the Court of Appeal notes that it is the task of the Employment Court to establish principles of pay equity.

[16] At [103].

[17] At [2].

[18] Juthika Badkar and Richard Manning “Paid Caregivers in New Zealand: Current Supply and Future Demand” (2009) 35 NZ Popul Rev 113 at 116–117, as cited in Terranova, above n 15, at [44]; and The New Zealand Nursing Workforce, above n 14.

[19] Service and Food Workers Union Nga Ringa Tota Inc v Terranova Homes and Care Ltd NZEmpC 157, (2013) 11 NZELR 78 at [6] [Employment Court judgment]; and Terranova, above n 15, at [62]-[63].

[20] Equal Pay Act 1972, s 3(1)(b).

[21] Terranova, above n 15, at [101]-[102].

[22] At [108]-[109].

[23] At [109].

[24] At [83].

[25] New Zealand Nurses Organisation “First rally Tuesday 10 April”, above n 10.

[26] New Zealand College of Midwives “Midwifery in Crisis” (press release, 16 February 2018); and Meier, above n 11.

[27] New Zealand College of Midwives, above n 26.

[28] Terranova, above n 15, at [103].

[29] At [239].

[30] Coleman, above n 1.

[31] Isaac Davidson and Claire Trevett “Government announces historic pay equity deal for care workers” The New Zealand Herald (online ed, Auckland, 18 April 2017).

[32] New Zealand College of Midwives, above n 26.

Featured Image: facebook.com/healthneedsnursing/photos/a.1587217598041662.1073741828.1584725141624241/1598869123543176/?type=3&theater