In January I wrote about the need for gender pay equity in the workplace and the case Kristine Bartlett
and the Service and Food Workers Union had won for caring work at the Employment Court.
Ten months on, the Court of Appeal has dismissed the employer’s appeal.
You would think this means equal pay at last for under-paid women in the care industry, but unfortunately this isn’t the case. A real legal and political battle still lies ahead, particularly because the Government pretends it’s not involved.
Considerable attention has been given to this noteworthy decision welcomed warmly by women’s groups and trade unions who have fought for gender equality in the labour market for 60 years and more.
The decision means in essence that the 1972 Equal Pay Act was always and continues to be an Act covering equal pay for work of equal value (often now called pay equity). It is NOT a defence against equal pay claims to find a few men in a female dominated occupation who are paid as little as the (undervalued!) women.
Equal pay for work of equal value requires that work assessed as needing similar overall levels of skill, responsibility, effort and working conditions should be paid equally.
Worldwide there is ample evidence that female dominated work has historically been undervalued by decision makers, the market, and in bargaining situations.
Gender neutral job evaluation systems have been devised to remedy this undervaluation and negate over-simple market determination arguments.
Act not tested since 1986
The Act had not been tested since the Clerical Workers’ Union case in 1986, which failed.
It is somewhat arcane in its wording and geared mostly to the 1972/77 implementation period.
The shortcomings of the CWU judgment and the wording of the Act are trenchantly referred to in the Court of Appeal discussion. But neither point stops the ongoing ability of the Act to deal with equal value based cases where predominantly female jobs are concerned.
The Court’s conclusion on this included: “We have reached the preliminary conclusion that the Act is not limited to providing for equal pay for the same or similar work… 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.”
Changes in employment law towards contracts, rather than broader awards and agreements, made progress on pay equity even harder in the 1990s.
Labour made only minor changes
Labour-led governments from 1999 made only minor changes to these structures, but did progress pay equity in the public sector, health and education, through the (then) Department of Labour’s Pay and Employment Equity Unit (PEEU).
Abolished by the 2008 National-led government, its research and evaluation tools remain helpful in the current case and future developments.
Difficulties involved in selecting comparators and evaluating the work was raised as a major problem by the employer and the Aged Care Association (NZACA). The Court of Appeal referred to the PEEU work and rightly commented that some of the claims about workability had been overstated – there is considerable expertise available.
There is also now a far better understanding of the issues involved than in the 1970s/80s including the concepts of direct, indirect, and systemic discrimination.
Different impacts on women and men are sufficient to indicate that there may be an issue, without necessarily any intent to discriminate. Such concepts are incorporated in later legislation and case law, such as the Bill of Rights Act, the Human Rights Act, and the anti discrimination provisions and good employer provisions in industrial relations legislation.
The Court of Appeal placed less weight on the Bill of Rights and our international obligations than the Employment Court.
Nevertheless these elements strengthen the case for clearer and stronger interpretation of the Equal Pay Act. And recent comments by international institutions on New Zealand government reports on progress have criticised our lack of action.
For example in July 2012 New Zealand was called on to effectively enforce the principle of equal pay for work of equal value, through establishing specific measures and indicators, identifying time frames to redress pay inequality in different sectors and reviewing the accountabilities of public service chief executives for pay policies.
Kristine Bartlett’s case
The case taken by SWFU and Kristine Bartlett, a very experienced caregiver,was against her employer, Terranova Homes and Care Ltd. It argued that her (and others’) hourly wage, at that point $14.46, was based on undervaluation of this female dominated work, as convincingly demonstrated in the Human Rights Commission’s 2012 Report, Caring Counts.
The employers’ organisation (NZACA) has regularly accepted that their care workers deserve a pay increase, and in particular to earn as much as similar work in the public sector, where DHB carers’ pay is around $2 to $3 per hour more.
However, NZACA claims there is no fat in the system, even where reported profits are high, and any increase must be matched by more government funding.
Its CEO, Martin Taylor, reacted to the Court’s decision with the comment: “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.”
Meantime Health Minister Jonathan Coleman refused any responsibility, saying that “the sector already gets a billion dollars a year. It would be great to pay workers more, but at the end of the day providers get to make those decisions about where they allocate their money.”
Employers and government each pass responsibility onto the other, while the carers suffer with pay below their value and little above minimum wages, despite the considerable skills needed.
The schedule of the employer’s requirements of caregivers submitted with the case was highly impressive, as is the commitment to their elderly residents displayed by the vast majority of carers, which has made them slow to take any strong action to improve their own position.
On the cost/affordability concerns about a pay increase, Employment Chief Judge Colgan pointed out that similar arguments were made against the abolition of slavery!
Moreover, simply leveling up the private sector pay levels to caring work in the public sector is important, but insufficient. It deals only with the very direct inequity of lack of equal pay for almost identical work, but does not tackle the issue of the overall undervaluation of caring work, which requires evaluation of the value of the work against comparators in non female-dominated jobs.
Future course unclear
How the case will proceed from here is by no means clear.
The Court of Appeal has given a steer for the Employment Court to establish under section 9 of the Equal Pay Act principles for implementation of the Act’s provisions, something that has never occurred in its 42 year history.
The next step is likely to see the parties making submissions to the Court on such principles, including procedures for choosing comparable non female-dominated jobs.
Meanwhile, more and similar claims have been filed by the SFWU and the Public Service Association, while the New Zealand Nurses Organisation has also filed claims for over 800 members.
This issue will not and should not go away until equity is achieved.