A landmark decision by the Employment Court over equal pay for workers in the aged-care industry was upheld by the Court of Appeal yesterday.
The Court of Appeal decision supports the case of caregiver Kristine Bartlett, supported by the Service and Food Workers Union, that in female-predominant industries the claimant may have to go outside the “infected” industry to decide what the female workers should be paid.
Lower Hutt aged-care worker Bartlett took the case up against her employer, TerraNova, stating that she would be paid more than her $14.46 hourly wage if caregivers were mostly male rather than female. In August last year the employment court ruled in her favour but TerraNova challenged the ruling in the Court of Appeal.
Speaking about the court’s decision Bartlett said: “I am nearing the end of my working life but am pleased that the Court of Appeal has confirmed what I always thought – caregiving is not recognised or paid fairly because most caregivers are women.
“I took this case, with the support of my union, not just for myself but for the tens of thousands of caregivers who get paid close to the minimum wage for doing one of the most important jobs in our society.” Bartlett said.
According to The New Zealand Herald, Terranova argued that if the court were to uphold the Employment Court decision it would lead to unworkable scenarios for employers.
The company said individual employers would "shoulder the burden of rectifying society-wide structural discrimination."
It would be beyond employers' expertise and resources to establish the wages of other workers, especially those on individual agreements rather than collective agreements, Terranova said.
The company also argued the wording of the Act supported the interpretation that it was the rates of pay the employer paid to its employees that was relevant in determining whether equal pay was achieved.
Justice Christine French said the case had been difficult because the Equal Pay Act was poorly worded however they came to the same conclusion as the Employment Court.
The judgement stated: “While the Court disagreed with parts of the Employment Court’s reasoning, it concluded that the Employment Court’s answers to the preliminary questions are correct. Based on the wording of s 3(1)(b), the purpose of the Equal Pay Act and its definition of equal pay, the Court considered it clear that the Act is not limited to requiring equal pay for the same or similar work. The Court accordingly accepted that in determining what would be paid to the hypothetical man featured in s 3(1)(b), it may be relevant to consider evidence of wages paid by other employers and in other sectors. Further, any evidence of systemic undervaluation of the work in question must be taken into account.”
It was recommended the case return to the Employment Court to begin working towards the resolution of Bartlett's claim.
Martin Taylor, CEO of the NZ Aged Care Association (NZACA) (NZACA have been directing the litigation from the defendant’s perspective) said they were “disappointed” to have lost the appeal and argued the “real issue” was the lack of government funding for aged care.
“It may seem that defending this case is inconsistent with supporting higher wages for caregivers, but that is simply not the case. Terranova Homes and the NZACA were forced to defend the case because no aged-care provider can pay higher wages unless the Government increases funding to the elderly for their care. Wages being increased without more Government funding would cause a crisis in the sector,” Taylor said.
“The real issue here is that Government funding for aged care is simply not enough for providers to pay higher wages.”
Taylor said they are considering an appeal to the Supreme Court.
To read the full judgement click here.
Landmark gender equality case should not be ignored