Better pay for rest home workers.....closer to reality now?

Tuesday September 10th, 2013

Rest home caregivers will be carefully watching the next steps in the legal arguments over their pay after an Employment Court ruling last month.

At issue is whether the traditionally low pay of caregivers at rest homes breaches the Equal Pay Act 1972.

So far the full bench of the court has ruled the pay rate of the woman at the centre of the case, Kristine Bartlett, may be compared with other occupations which are not dominated by women to see if the company is breaching the Act.

Ms Bartlett, a Service and Food Workers Union member, is one of 110 caregivers (106 of them women) employed by Terranova Homes and Care Ltd. All are paid between the minimum wage of $13.75 and $15 an hour.

News reports have stated Ms Bartlett makes $14.44 an hour, after 20 years in the job.

The claim by the union is that the female caregivers are being paid a lower rate of pay than would be the case if caregiving of the aged were not so female dominated.

The substantive claims have not been heard at this stage, but the court ruled on a number of preliminary questions of principle and law for later application.

It ruled that Terranova did not have a complete defence to the claim if it alleged and proved it paid its four male caregivers the same rates as the 106 women and that it would pay additional or replacement males those rates.

If an employment agreement meant both females and males doing the same work were paid the same amount for the same work, this did not provide for equal pay under the Equal Pay Act if the rate of remuneration were affected by gender discrimination.

The court said it would be illogical to use a small percentage of men as a comparator group if they were paid less because they were undertaking ‘’women’s work’’.

At this stage it is not known what comparator occupations might be put before the court and argued over by the parties. The union has suggested they could include public hospital healthcare assistants paid $19.46 an hour after five years, psychiatric assistants in mental health facilities ($22) and prison guards (about $25).

Terranova argued that Parliament did not intend at the time it enacted the Equal Pay Act for the part relating to application of criteria, to determine whether there was differentiation based on gender, to have a broad meaning to it. It submitted it was predominantly aimed at preventing discrimination in industrial awards.

“Even if this is correct, an approach that asks solely what the original lawmakers intended can blind one to the function the Act ought to be performing today. Legislative fossilisation is undesirable, and that is particularly so in the context of employment relations which are dynamic, the subject of changing social attitudes and values, and ongoing development over time,’’ the court stated.

Since the passage of the Equal Pay Act there had been significant developments in human rights and society’s attitudes to discrimination. New Zealand had committed itself to a number of international obligations and the Bill of Rights Act had been enacted.

‘’Statutes are always speaking, and the Equal Pay Act is no exception, despite the fact that it has remained largely mute for the past 41 years. That is perhaps because no-one has initiated a conversation with it over that period.’’

The Court also said the expressed concerns relating to cost overlooked one important point ‘’ namely the unquantifiable cost ( including societal cost) of adopting an approach which may have the effect of perpetuating discrimination against a significant and vulnerable group in the community simply because they are women, doing what has been described as undervalued women’s work.

“History is redolent with examples of strongly voiced concerns about the implementation of anti-discrimination initiatives on the basis that they will spell financial and social ruin, but which prove to be misplaced or have been acceptable as the short term price of the longer term social good. The abolition of slavery is an old example, and the prohibition on discrimination in employment based on sex is both a recent and particularly apposite example.’’

Stirring stuff. I await the developments with interest.

This case is one of several the Service and Food Workers Union has in the pipeline.

*There is yet to be a ruling in the case which went before the Court of Appeal last month involving the issue of whether the employer (Terranova) could take out its 26c Kiwisaver employer contribution out of the pay of two caregivers on the minimum wage, then $13.50.

As I have reported before, late last year the Employment Court found the employer’s contributions had to be paid in addition to the women’s gross salary or wages.

*A decision is expected soon too on the sleepover case involving workers in school boarding houses.
In this case, before the Employment Court, the union, representing workers from Iona College (Hawkes Bay) and Woodford House (Havelock North), relied on principles established in the 2011 Court of Appeal ruling in the long-running case of disability support worker Phillip Dickson and Idea Services Ltd.

The court upheld earlier findings by the Employment Court that such support workers were working on sleepovers and should be paid at least the adult minimum wage for every hour of their shifts.

The boarding schools' case is the first one in which applicants have sought to apply the principles of the Idea Services case outside the residential disability sector.

At the outset the schools stated their main defence was workers were not conducting ''work'' as that word was used in the Minimum Wage Act.

- Elspeth McLean

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