Progress towards gender equity

14 Oct 2013
Author: Andrea Twaddle
 
September marked a significant month for women. 120 years were celebrated since New Zealand women became the first in the world to win the right to vote. And in a landmark test case the Employment Court found systematic bias against women, in a case where the Court also accused female dominated industries of perpetuating a systemic bias by undervaluing work that has traditionally been done by women.

The case was between Kristine Bartlett, a caregiver at a rest home facility operated by TerraNova Homes and Care. Kristine has over 20 years’ experience in the industry, but earns $14.46 an hour. (The current minimum wage is $13.75 per hour). The Service and Food Workers Union took her case to the Employment Court, on the basis that she is paid less than would be paid to male employees with the same or substantially similar skills as an aged care worker.

The Union’s argument was supported by a recent Human Rights Commission report that this type of female dominate care work is underpaid and an “injustice grounded in historical undervaluation of the role”. Women are estimated as making up over 90 percent of the workers in the aged care sector. The employer’s argument was that because its four male workers were paid similarly low rates to the 106 female employees, it did not discriminate against women.

The Court disagreed with the employer, holding that:

The rate of pay of Kristine and her colleagues should be compared to the pay rate of men with the same skills in other industries.
The Court is allowed to intervene and set a fair pay rate when pay equality of remuneration is lacking.
In an industry where one gender predominantly works, the small number of men in the aged-care industry are also being poorly paid and penalised for doing “women’s work”.

The Court’s decision is significant because it means that in an industry in which the majority of workers are female they will be able to use the Equal Pay Act to compare their wages with those in a male-dominated industry with similar skills and to use this as leverage for negotiating a pay rise.

Unsurprisingly, the decision has been appealed for the Court of Appeal to now deliberate on the issue. Once the preliminary issue is determined, there will need to be a comparison to men with similar skills, and, if necessary, correction to the wage rate of Kristine Bartlett and her colleagues.

TerraNova has indicated that the ruling could have “dire consequences” for the aged care industry. It also called for the Government to address funding within the sector. While the request for additional funding may be valid, in the meantime, the employer’s brand has been damaged unquestionably. It was a bad month for the employer. In another decision, TerraNova’s deduction of its statutory contribution from employee wages was held to be illegal as it resulted in payment below the minimum wage.

Kristine Bartlett’s case could have broader implications for other low paid, female dominated industries, such as early childhood and primary school teachers, retail and nursing. A successful Court of Appeal decision would confirm that the test for equality is now equal pay for equal value. This could result in the most significant difference to women’s pay since the introduction of the Equal Pay Act in 1972.

This article was first published in the Waikato Times, 14 October 2013.

 
 
 
Progress towards gender equity
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a regular commentator on employment law issues and is frequently sought as a presenter at client and industry seminars, as well as for the provision of advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz