A recent Employment Court ruling is a landmark case for low-paid female caregiving workers around the country, writes Mary-Jane Thomas in Work to Rule.
Rest-home worker Kristine Bartlett had been paid under $15 an hour for the 20 years she had worked in the care industry.
Her claim stated that the female caregivers employed by the rest-home she worked at were paid a lower rate of pay than would be the case if caregiving of the aged was not so substantially female-dominated (in 2009, 92 per cent of the 33,000 workers in the industry were female).
As a preliminary argument the full Court of the Employment Court (three judges sitting) were asked to determine the scope of the requirement for equal pay for female employees of work exclusively or predominantly performed by them and how compliance with this requirement is to be assessed.
As a starting point, under the Equal Pay Act 1997, employers cannot discriminate against employees by refusing to offer or afford them the same terms of employment as another on the basis of gender.
Under section 3(1) (b), in deter- mining whether if there is a difference between the pay rates for males and females for a class of work predominantly done by females, the court had to consider the pay rates of male employees with the same, or substantially similar, skills, responsibility, and service performing the work under the same, or similar, conditions and with the same, or similar, degrees of effort.
The employer argued that a narrow approach should be taken and that the comparison should be made within the workplace itself, having regard to the pay rates of others in the workplace, having regard to the skill, and responsibilities of those roles.
Using this approach, the employer argued their employment of four male caregivers who received the same low pay rate as the other female employees meant they were not discriminating against female employees who received the same pay.
I suppose they were saying, "it's OK because we pay everyone the same low rate whether they are males or females".
The court rejected this. The employer could not rely on the employment of a few male employees to support the argument that there was no discrimination.
The Employment Court favoured a wider approach, argued by the Service and Food Workers Union, that "equal pay" under the act should be interpreted to mean that large groups of women workers must be paid a rate equal to that of a group of male workers in an industry with comparable skills.
The ruling highlights a massive victory for females working in areas that have historically been poorly paid and may spark the beginning of a systemic change for low-paid female workers in the aged-care industry.
The courts may need to prepare for a flood of legal action, with the Service and Food Workers Union now signalling they may invite other caregivers to join a class action, and that they will consider how this ruling might help other service workers such as public sector administrators and clerical staff.
The decision on whether Kristine Bartlett was herself discriminated against by her employer is yet to be heard, and the ruling of the Employment Court may still be appealed.
What will be interesting is when the court hears evidence of what hourly rate males are paid in industries that require the same substantially similar skills, responsibility and service.
Anyone who has visited a rest-home knows that caregivers are entrusted to look after our mothers and fathers at a time when the elderly are often physically unable to look after themselves and are particularly emotionally vulnerable.
People have often said that, as we do with our children, we should value and properly reward this care - perhaps the industry may finally be forced to do this.
» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to email@example.com.
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