Ferns have grounds for pay claim
OPINION: In recent weeks, news stories have highlighted issues with diversity and discrimination in sport.
Rugby dominates the New Zealand sporting scene and is often the trigger for such discussions. The Chiefs’ incident with a stripper, the escapades of Aaron Smith in an airport toilet and Jerome Kaino cheating on his wife have all made headlines.
To its credit, New Zealand Rugby established a Respect and Responsibility Review panel, and its report was released in September.
The panel’s recommendations included New Zealand Rugby becoming more supportive of diversity, committing to gender equity, and improving attitudes toward women and gay persons within the sport.
In the past few days, New Zealand Rugby chief executive Steve Tew commented on the lack of openly gay men playing rugby.
Of the 1160 players who have been All Blacks not one has come out publicly as gay. Tew believes there have been gay players who have kept their sexual identities secret.
Tew has conceded that rugby, among other sports, has an issue with homophobia. He now wants to create an environment where players and workers are free to express their sexuality and diversity without fear of discrimination.
Leading international rugby referee Nigel Owens broke new ground by coming out as gay in 2007. Maybe he is leading the way.
Rugby was also in the headlines when the Black Ferns won the Women’s Rugby World Cup.
But despite being elite athletes, most of the players are not on professional contracts and have since returned to their day jobs. Some are teachers, firefighters, police officers, and mothers.
In contrast, at the end of 2016, New Zealand Rugby and the Players’ Association announced a new collective agreement would increase the All Blacks’ payment pool from $121 million to $191m over the next three years.
At present, captain Kieran Read’s salary is over $1m before endorsements and sponsorship packages are added.
The Respect and Responsibility Review panel has said that investing in women’s rugby is a great opportunity.
Women’s rugby is now an international success, particularly with sevens being added to the Olympics.
New Zealand Rugby needs to consider the cost of not including female talent if the sport wants to remain competitive. Higher participation by girls and women will have a positive impact on the game’s sustainability. The panel recommended that a sustainable commercial model be developed for women’s rugby.
In spite of this, Tew has said paying the 15-a-side women’s team is difficult and unsustainable. Would the Black Ferns have a claim in pay equity for equal pay for work of equal value like the aged-care workers did in the famous TerraNova case?
An employee with a pay equity claim should raise it with their employer. The parties must then attempt to resolve the claim in good faith, undertaking a thorough, unbiased assessment of the skills, responsibilities, conditions and effort required by the role.
Comparison can be made with roles not often performed by women from within the business, similar businesses, or the same industry or sector when available, so long as the comparator has not also been systemically undervalued.
From what we can see from the outside, the women players are very likely to have a pay equity claim.
However, those not on professional contracts are most likely volunteers and would not be able to bring a claim. In any event, a comparison between the Black Ferns’ and All Blacks’ performance and remuneration would not bode well for New Zealand Rugby.
The National Party has put the Pay Equity and Equal Pay Bill before Parliament with the aim of making it easier to resolve pay equity claims.
Labour and the Greens both oppose the bill, saying it will make it harder for women to be paid fairly. Labour and the Greens have both promised to redraft pay equity legislation to better deal with the issue. So whichever party ends up in government once negotiations conclude, change is likely for pay equity.
The achievement of the women’s team raises issues of discrimination and fair treatment.
Why does the All Blacks captain get $1m a year while the Black Ferns captain gets nothing?
❚ Peter Cullen is a partner at Cullen – the Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz.