by Paula Määttä

D. Supervision and enforcement of the equal pay principle

In cases of wage discrimination an employee has three different avenues by which to pursue a remedy. Firstly, the employee has the right to pursue a complaint in respect of a breach of the Equal Pay Act, in which case the complaint may be taken by the complainant personally, or by a Labour Inspector on her behalf. Secondly, the employee may submit a personal grievance in respect of discrimination under the Employment Contracts Act, either alone or in conjunction with a personal claim under the Equal Pay Act. Thirdly, the employee could lodge a discrimination complaint under the Human Rights Act, in which case any complaint under the Equal Pay Act or the Employment Contracts Act would be barred by § 2A(2) of the Equal Pay Act and § 39 of the Employment Contracts Act.

1. Procedures under the Equal Pay Act and the Employment Contracts Act

Under § 13 of the Equal Pay Act, the employee could undertake recovery of remuneration based on equal pay by pursuing the claim in the Employment Tribunal as if it were a claim for the recovery of wages under § 48 of the Employment Contracts Act 1991. Such an action must be commenced within 6 years of the date that such remuneration became payable.

Alternatively, legal proceedings can be taken on the employees behalf by a Labour Inspector. Provision for a Labour Inspectorate of the Department of Labour is made under § 143 of the Employment Contracts Act. Labour Inspectors are responsible for advice on, and the enforcement of several labour laws, including the Equal Pay Act. For the purposes of the Equal Pay Act, Labour Inspectors have a number of investigatory powers, and under § 144(3) they are empowered to commence proceedings for non-observance of or non-compliance with the Equal Pay Act by applying to the Employment Tribunal for a compliance order under § 55 of the Employment Contracts Act. Under its compliance order jurisdiction, the Employment Tribunal can, in addition to any other power it may exercise, order the employer "to do any specified thing, or to cease any specified activity, for the purpose of preventing further non observance of or non compliance with" the Equal Pay Act. During the period 30 June 1989 to 30 June 1993 the Labour Inspectorate received only one complaint relating to equal pay.

Under § 15 of the Equal Pay Act, it is an offence for an employer to dismiss an employee, or to alter her position, within the period of 12 months immediately preceding the complaint under the Act as a reprisal for laying the complaint under the Act.

Alternatively, or in addition to a personal claim under the Equal Pay Act, the employee could pursue a personal grievance under § 27(1)(c) of the Employment Contracts Act on the grounds of discrimination. The definition of discrimination in s 28 includes circumstances where the employer, by reason of the employees sex:

"Refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances."

All employment contracts must contain an effective procedure to settle personal grievances. A personal grievance must first be submitted to the employer within 90 days of its occurrence. If the parties are not able to settle the matter themselves, the employee can take the grievance to the Employment Tribunal, which, if the parties agree, may mediate the matter. If mediation is not chosen,or fails, the Tribunal will adjudicate the grievance. An appeal lies to the Employment Court, and thence to the Court of Appeal on matters of law only.

The Employment Tribunal also has other powers under the Equal Pay Act. Under § 12 may, of its own motion or on the application of a Labour Inspector, examine the provisions of any instrument or proposed instrument. The Tribunal may either approve those provisions, or refer it back to the parties for renegotiation or reconsideration, or amend it. The Tribunal may determine the classification of any work, any rate of remuneration that would represent equal pay, the minimum percentage for the adjustment of any rate of remuneration of female employees, any interim increase in remuneration required to be granted to implement equal pay, and any other question relating to the implementation of equal pay and interpretation of the Equal Pay Act.

Section 18 of the Equal Pay Act makes provision for a number of offenses against the operation or enforcement of the Act. In the case of an offence committed by an individual, there is liability to a fine of up to 400 dollars. Offenses by a body corporate can attract a fine of up to 1 000 dollars.

2. Procedures under the Human Rights Act

The Human Rights Commission (HRC) was established by the Human Rights Commission Act 1977 as an independent body which consists of the following Human Rights Commissioners: a Chief Commissioner, a Race Relations Conciliator, a Privacy Commissioner, a Proceedings Commissioner and not more than 3 other Human Rights Commissioners.

The Commissions main functions are:

(1) to investigate complaints of discrimination and to mediate or prosecute complaints which have substance,

(2) to educate the public about human rights issues and to promote non-discrimination,

(3) to comment on wider human rights issues and to ensure that New Zealans laws and policy do not breach its international human rights obligations.

Section 22(1)(a) of the Human Rights Act 1993 makes it unlawful for employers, on the grounds of sex (inter alia):

"To offer or afford the applicant or the employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description."

The Human Rights Act 1993 also prohibits indirect discrimination (§ 65). Indirect discrimination means an action of employer that is not apparently in contravention of this Act and it has an effect of treating an employee or a group of employees differently on one of the prohibited grounds of discrimination than an other person or a group of persons. In addition, the Human Rights Act prohibits victimisation for making a complaint under the Act.

When an employee makes a complaint under the Human Rights Act, the Complaints Division of the HRC may accept the complaint for investigation or conciliation. Once the Complaints Division accepts the complaint in this way, the complainant is not permitted to also pursue the matter under the Equal Pay Act or the Employment Contracts Act. The Complaints Division may act in a conciliatory role in relation to the complaint and will use its best endeavours to achieve a settlement of the matter. To this end, it has the power to call a conciliation conference of the parties, including the pose to issue summonses requiring attendance at the conference. Where a settlement between the parties cannot be achieved and the complaint is thought to have substance, the matter is turned over to the Proceedings Commissioner, who decides whether or not to prosecute the case before the Complaints Review Tribunal. The Proceedings Commissioner may bring proceedings on behalf of an individual or on behalf of a class of persons (class action), and may seek any of the remedies made available under the Act for the individual or class of persons on whose behalf the case is brought. Remedies under the Act include declarations; damages, presently limited to a maximum of NZ 200 000 dollars; restraining orders; remedial orders; and such other relief as the Tribunal thinks fit. If the Proceedings Commissioner decides not to prosecute the complainant can bring the action to the Complaints Review Tribunal herself. In the latter case, the complainant will have to prepare the case herself, or else get an advocate or lawyer to represent her, and she will be liable to make a contribution to the employers legal costs if she loses the case. There is a right of appeal from decisions of the Complaints Review Tribunal to the High Court, and from there, with the Courts leave, and on questions of law only, to the Court ofAppeal. The High Court also has the jurisdiction to grant remedies beyond the jurisdiction of the Complaints Review Tribunal.