by Paula Määttä

IX. New Zealand

B. Scope of the concepts on equal pay

1. The definition of "pay"

"Remuneration" is defined in the Equal Pay Act as the salary or wages actually and legally payable to an employee. It includes time and piece wages and overtime and bonus and other special payments, as well as allowances, fees, commission, and every other emolument, whether paid in one sum or several sums, and whether in money or not.

"Equal pay" is defined as "a rate of remuneration for work i which rate there is no element of differentiation between male employees and female employees based on the sex of the employees".

2. The definition of "equal work"

The legislation requires equal pay for work or a class of work which is the same as or substantially similar to the work being compared. The legislation does not apply to different kinds of jobs. The equal pay provisions generally apply to employees with the same or substantially similar qualifications,experience, or skills employed in the same or substantially similar circumstances, which determine the value and equality of the work.

To determine whether there exists an element of differentiation in remuneration for work based on the employees sex for the purposes of the Equal Pay Act, particular criteria are to be applied depending on the extent to which the work is performed by female employees. Accordingly, § 3(1) of the Equal Pay Act distinguishes between two categories of work performed by females. The first category of female work is work which is not exclusively or predominantly performed by female employees. In this category, the criteria which determine whether there exists an element of sex differentiation in the rates of remuneration are:

(1) The extent to which the work or class of work calls for the same, or substantially similar degrees of skill, effort, and responsibility; and

(2) The extent to which the conditions under which the work is to be performed are the same or substantially similar.

Determining the existence of an element of differentiation is therefore relatively straightforward in respect to the first category of female work. The second category of female work is work which is exclusively or predominantly performed by female employees, and with this category the task of determining the existence of any differentiation in remuneration is rendered more difficult. In this category, the criterion which determines whether there is an element of sex differentiation is the rate of remuneration that would be paid to male employees with the same, or substantially similar, skills, responsibility, and service performing the work under the same, or substantially similar, conditions and with the same, or substantially similar, degrees of effort.

One commentator has observed that this particular provision dealing with the second category of female work might have extended the scope of the legislation well beyond equal pay and into the area of pay equity and comparable worth, were it not for a 1986 Arbitration Court case that for all practical purposes closed off this possibility (Hyman 1988, 237.)

3. Scope of the equal pay provisions

As the Government Service Equal Pay Act 1960 dealt with equal pay in respect to government employees, the Equal Pay Act concerns rates of remuneration in the private sector. The Employment Contracts Act 1991 and the Human Rights Act 1993 also covers both the public and the private sector.

The provisions relating to equal pay apply to all employees whether they work by way of manual labour, clerical work, or any other work or effort whatsoever. The equal pay provisions apply to staff working in the same workplace, whether they are on individual or collective contracts (cedaw 1993, 40). These provisions concern all types of work, including part-time, casual, temporary and seasonal work. In addition, homeworkers who perform work for someone else in a private dwelling house are covered by the legislation.

The Equal Pay Act is concerned with equality in actual rates, as well as with minimum rates prescribed by collective employment contracts, although the different working patterns as between men and women have affected the weighted averages contemplated by the Act. The Act covers both individual and collective employment contracts.

The Equal Pay Act 1972 does not include employees whose rate of remuneration is fixed under the State Sector 1988; the Commissioner of Police or any person whose remuneration is fixed under Part IV of the Police Act 1958 as amended in 1989; and person whose remuneration is fixed under § 52 off the Hospitals Act 1957 as amended in 1976; and any person whose remuneration is fixed under § 22 or s 60A of the Education Act 1964 as amended in 1976.

The Human Rights Act 1993 does not apply to the employment on a ships and aircraft, not being New Zealand ship and aircraft. The Act does not apply to work involving national security, to work performed wholly or mainly outside New Zealand. The Human Rights Act sets out a number of exceptions to otherwise discriminatory practices, but § 35 qualifies those provisions in the following way:

"No employer shall be entitled, by virtue of any of the exceptions, to accord to any person in respect of any position different treatment based on a prohibited ground of discrimination even though some of the duties of that position would fall within any of those exceptions if, with some adjustment of the activities of the employer, some other employee could carry out those particular duties."