Court ruling a big win for female workers
Readers are likely to be familiar with the name of Kristine Bartlett, whose recent victory in the Court of Appeal has been in the news.
Bartlett is employed as a caregiver at a rest home owned and operated by TerraNova Homes & Care in Lower Hutt. She has worked there for about 14 years and receives a wage of $14.46 per hour.
Aged-care is an industry staffed primarily by women.
TerraNova Homes, for example, employs only six men as caregivers out of a total of 117 across its five rest homes. The caregivers are all paid the same rate. On the surface equal pay applies. Not so, according to Bartlett.
Bartlett, who was supported by the Service and Food Workers Union, took a claim against her employer for breaches of the Equal Pay Act. Bartlett and the union argued all the way to the Court of Appeal that TerraNova was underpaying staff because of the high percentage of female employees.
Bartlett claimed that although the male caregivers at TerraNova were paid on the same scale, the pay received by the caregivers at TerraNova was depressed as that type of work was mostly performed by women. If the pay received by the TerraNova workforce was to be truly equal, then it would need to be the same as that received by workers in similar industries that were either male-dominated or balanced in terms of gender.
The Employment Court and now the Court of Appeal have agreed that this may be possible - but there needs to be evidence. As a result, the meaning of equal pay has been broadened significantly. Previously, most believed equal pay meant that a woman must be paid the same rate as a man working in the same workplace doing the same work. Now it means that female workers in one industry should receive the same pay as men in another industry not dominated by women and who are doing similar work.
Bartlett's case is now being sent back to the Employment Court, which will need to establish a framework through which pay rates in differing industries may be compared. Easy to say, but hard to do. It will be very interesting to see how the Employment Court grapples with this difficult task.
The other significant thing about this litigation is that it has reintroduced a measure of the old centralised wage fixing system for low-paid workers.
Following the introduction of the Industrial Conciliation and Arbitration Act way back in 1894, the Arbitration Court was able to make wage orders which applied across the entire workforce. Older readers will no doubt remember the old award system which resulted in a national negotiation of wages and conditions for all workers in an industry, regardless of whether they were union members.
The system was tinkered with over the years until, ultimately, it was abolished with the introduction of National's Employment Contracts Act in 1991.
This legislation was based on the principle that the individual should negotiate their own terms of employment, and, as a consequence, collectivism was all but destroyed, save in a few highly unionised sectors.
Through the introduction of the Employment Relations Act in 2000 and subsequent amendments, some power has been restored to the unions. However, collective bargaining remains a pale echo of what it had been.
Bartlett's case is therefore somewhat of a step back to the days when union power and centralised wage fixing were supreme.
Of course, the impact will be limited to lower-paid female workers, so not all employers will be affected. However, some employers will struggle to absorb a court-imposed pay rise or the cost of becoming involved in complex litigation. These employers will be left asking where their freedom to bargain for wage rates with their employees has gone.
One's better nature cannot help but have some sympathy for Bartlett's plight of being paid $14.46 gross an hour after many years in the industry.
The Court of Appeal has delivered a big victory for female workers in New Zealand. However, there is a rocky path still to be trodden before workers like Bartlett find their pay packets are fatter. There is also the potential that the Government may intervene to introduce a measure of certainty. Readers should therefore watch with great interest what happens next.
Peter Cullen is a partner at Cullen - the Employment Law Firm. He can be contacted at firstname.lastname@example.org.
- The Dominion Post