From Equality to Equity: The Pursuit of Pay Equity under the Equal Pay Act 1972

33 Pages Posted: 16 May 2016 Last revised: 18 May 2016

See all articles by Grace Miles

Grace Miles

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: 2015

Abstract

In 2014, the Court of Appeal considered if pay equity was also protected under the Act. In this paper I analyse and critique that decision. It seeks to answer two fundamental questions about the case and wider issues surrounding pay equity. First, it asks whether a mandate does exist under the Act requiring the provision of pay equity. Is the Act restricted to a narrow pay equality interpretation, or is it wide enough to encapsulate pay equity? The conclusion will be reached that little light is shed on the position of pay equity from an interpretation of the statute. Both the inclusion and exclusion of pay equity remain open interpretations. A realist explanation will argue a policy decision, in the absence of an interpretative answer, is driving factor of the Court of Appeal’s findings.

The second question looks to the natural continuation of the current case and asks what should be the avenue through which pay equity is pursued. This is a normative inquiry. Litigation will be considered under both a traditional and strategic approach. The alternate solutions of a legislative and an unregulated market will also be investigates. It will be argued that judicial inclusion of pay equity under the Equal Pay Act is undesirable. Instead, dedicated legislation would prove the most effective means of achieving pay equity.

Keywords: Terranova v Service and Food Workers Union, Pay Equity, Pay Equality, Statutory Interpretation

JEL Classification: K10, K31

Suggested Citation

Miles, Grace, From Equality to Equity: The Pursuit of Pay Equity under the Equal Pay Act 1972 (2015). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 16/2016, Available at SSRN: https://ssrn.com/abstract=2779924 or http://dx.doi.org/10.2139/ssrn.2779924

Grace Miles (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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