Midwife 'discrimination' gives birth to class action

The midwives action alleges discrimination on the basis of sex

Lawyer Mai Chen filed a class action on behalf of midwives in the Wellington High Court today.

The statement of claim in the application for judicial review on behalf of the NZ College of Midwives cites the Attorney General on behalf of the Ministry of Health as the defendant.

At issue is the Primary Maternity Services Notice 2007 made under section 88 of the Public Health and Disability Act 2000.

This determines the terms and conditions of midwives’ payment.

The 2007 notice increased the duties of midwives but since that time there has been no remuneration adjustment, or any compensation to cover inflation and increased duties and costs incurred by midwives, the statement of claim says.

These include compulsory education, which midwives must pay for themselves.

The claim says it is also financially unsustainable for midwives providing lead maternity care to take annual or sick leave under the 2007 notices as they are required to pay a maternity partner to cover their patients.

Sexual discrimination as a breach of s19 of the New Zealand Bill of Rights is alleged in relation to the 2007 notice.

“Approximately 99.9% of midwives providing lead maternity care are female. Approximately 95% of mechanical engineers are male. At least 69% of registered/certified electricians are male.

“Mechanical engineers and/or registered electricians earn on average approximately 60% more than midwives providing lead maternity care based on annual gross income after expenses.

“There is no justification for the disparity in earnings other than on the basis of sex.

“The direct and/or indirect discriminatory treatment causes a material disadvantage for midwives who provide lead maternity care,” the claim alleges.

“Therefore, the ministry’s failure to increase prices under the 2007 notice is due to unlawful direct and/or indirect discrimination on the basis of sex.”

The relief sought from the court action is a declaration that the 2007 notice is in breach of s19 of the Bill of Rights and is therefore unlawful.

The midwives' action also seeks costs.

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