Photo: RNZ / REECE BAKER
A government lawyer has told the High Court in Wellington its evidence has proven the Crown never formally agreed to pay midwives more - but it had a "genuine commitment" to improving pay and conditions.
The College of Midwives was leading the class action on behalf of more than 1500 Lead Maternity Carers (self-employed midwives) in a bid for "fair and reasonable pay" and a change in contract model.
It claimed previous governments over the last decade agreed to reform but then never followed through.
But government lawyers say there was never a legally binding agreement.
In closing arguments of the six-week trial before Justice Cheryl Gwyn, government lawyer Pauline Courtney said the Crown for years had been consistent in its efforts to work towards a better system, and had honoured a settlement agreement.
There was a "shared aspiration" for change, she said - but that was not a concrete agreement to change pay or contracts.
"The 2018 settlement agreement does not entitle LMC midwives to the relief sought in the proceeding," she said.
The obligations only required good faith engagement towards a "desired outcome", she said.
"The Crown fulfilled the obligations. In our submission the plaintiff's interpretation of the agreement is not sound."
The Crown and the College had agreed for more than a decade that midwives' contract model and pay were "inadequate", Courtney said.
But a solution had not yet been struck, she said.
Damages sought by midwives not owed
Midwives sought damages based on the difference between midwives' earnings between 1 July 2020 and the date of Justice Gwyn's judgement, and the "fair and reasonable service price" - as detailed in an independent PwC report - which midwives say the Crown agreed to.
But that price had never been formally agreed, said Courtney.
It would have been a significant increase, and it was "extremely unlikely" Ministry officials could have committed to it without express approval of a minister, she said.
"To do so would assume budget appropriation that may have not been achieved."
Further, communication from the College to its members showed it was clear the College understood a boost in pay would require cabinet approval, she said.
Courtney also pointed out flaws in the job evaluation process used to land on the "price", which compared midwives with other occupations - but was not "fulsome".
"It was expressly described as an informal comparison," which did not translate to a financial conclusion, she said.
Only the Crown presented economic analysis of midwives' actual pay to the court, Courtney said.
"It shows LMC midwives in a much better position than the plaintiff's case would suggest."
Courtroom not the place for arguing over pay
Midwives' pay was better addressed through engagement with elected officials and "orthodox policy processes" rather than through legal action, said Courtney.
But Justice Gwyn questioned that assertion.
"Isn't that what the College and LMC midwives have attempted to do over a period of years, resulting in this litigation?
"Isn't it a bit rich to say ... you're better off coming and talking to us, rather than engaging in litigation?"
Courtney acknowledged the parties had been working towards a solution over a number of years, and argued the best way forward was for those negotiations to continue.
There had been changes in the health system - namely the Covid-19 pandemic - that had stalled progress, she said.
"The evidence of the officials shows how they have tried to bring about changes that improve and benefit LMC midwives."
Lawyers representing midwives will begin their closing arguments on Friday, wrapping up proceedings.
Justice Cheryl Gwyn is expected to reserve her decision.
