Neil Sands
The government engaged in “organised subterfuge” when it rushed though sweeping pay equity reforms last year, ignoring the principles of good law-making, acting in bad faith and eroding trust in the parliamentary process, a report into the changes has found.
The report was released by “The People’s Select Committee”, a group of 10 female ex-parliamentarians that former National MP Dame Marilyn Waring established to scrutinise the changes.
The committee, which received almost 1,400 submissions, condemned a lack of consultation over the reforms, which retrospectively snuffed out 33 existing pay equity claims and delivered the government $12.8 billion in savings.
It pointed out that no coalition partner campaigned on the changes and there was no public consultation before they were unveiled and passed under urgency in May.
Instead, it said officials who knew the changes were imminent continued to negotiate in bad faith with parties involved in the 33 pay claims in order to keep the policy under wraps, so it could be presented as a fait accompli.
As a result, changes which had been formulated behind closed doors passed into law without proper parliamentary scrutiny or the opportunity for affected parties to suggest amendments and improvements.
“Orchestrated subterfuge” was one of the headings used [in submissions] to describe the approach the government had adopted,” the report says. “It was secretive, organised and designed to spin a mischievous story about the pay equity instrument which has international credibility.”
‘Offends the rule of law’
The 177-page report also criticised the substance of the changes, warning that they risk entrenching the undervaluation of work traditionally carried out by women.
It attacks the retrospective nature of the legislation and the creation of a new pay equity regime that makes it significantly more difficult for claims to succeed.
“As we see in the clause-by-clause analysis, 33 pay equity claims commenced under the pre-existing legislation were discontinued,” the report says.
“Significant barriers have been put in place for future claims and review provisions of settled claims have been rendered ineffective. The approach offends the rule of law and the principles of good law-making.”
The report also defended the use of comparators – where one role is compared to another as a means to determine if a pay equity issue exists.
Workplace Relations Minister Brooke van Velden has repeatedly cited the comparators when justifying the changes, questioning how librarians can be compared to transport engineers, or social workers with air traffic controllers.
The committee found that comparators were “a sophisticated, highly rigorous process of co-research between worker and employer negotiators” but MPs, bureaucrats and ministers all misunderstood, or misrepresented, how they worked.
“The only evidence of attempts to game the system the committee could see were in the behaviours of government agencies,” the report said.
The committee called for last year’s changes to be repealed and the creation of a government-funded pay equity unit to help assess claims.
It also recommended that pay equity should be recognised as a constitutional principle, protected from political interference.
In addition, it said that any legislation which affects fundamental rights, such as the pay equity reforms, should not be passed under urgency unless there was a genuine emergency, such as a natural disaster, and future employment law changes should require a minimum 90-day consultation period.
Van Velden said all members of the public, including ex-MPs, were free to hold their opinions about last year’s changes, adding: “As I said at the time, equal pay is here to stay and a pay equity system remains.
“The new law is already being used to process claims. It makes the regime simpler and more robust, focused squarely on sex-based discrimination, and sets out a transparent process through which employers and employees can negotiate questions of equal value.”
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