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Pursuing the right for equality a Kiwi value

THE DOMINION POST - Friday, 6 September 2013

New Zealand women have a history of actively pursuing their rights. In 1893 New Zealand was the first self-governing country to give women the vote. One hundred and 20 years later a Lower Hutt rest-home worker is continuing the tradition, this time for equal pay.

Kristine Bartlett has become the beacon of hope for low-paid women in the aged-care sector who are seeking to breathe life into the provisions of the Equal Pay Act 1972.

Bartlett is a caregiver at Riverleigh Rest Home. Her employer, TerraNova Homes and Care, operates five such facilities throughout the country.

She is very much a Wellingtonian, living in the Hutt Valley, and is a member of the Service and Food Workers Union. With 20 years' experience in the aged-care industry, she is passionate about her work and has stayed in her job because of the satisfaction she gets from assisting elderly people in their day-to-day living. Her most recent pay increase put her up to $14.46 an hour, a nominal 10 cent an hour pay rise.

The Service and Food Workers Union has taken Bartlett's case to the Employment Court. The union's core argument is that the $14.46 an hour Bartlett is paid is less than would be paid to male employees with the same or substantially similar skills as an aged-care worker.

The aged-care sector is made up of predominantly female workers, with one estimate being that they make up 92 per cent. It has traditionally been regarded as "women's work".

A Human Rights Commission report submitted at the hearing said this sort of female dominated care work is underpaid and an "injustice grounded in historical undervaluation of the role".

The Employment Court delivered a very thorough and well-reasoned decision. It made two key findings. The first was that the pay rate of Bartlett and her colleagues should correctly be compared to the pay rate of men with the same skills in other industries. The second was that the court was allowed to intervene and set a fair pay rate when pay equality of remuneration is lacking.

Where you have mainly women working in a workplace such as Kristine Bartlett's and you have also a handful of men on the same pay rate, then does that mean that equal pay is being paid?

The court held that the correct comparison was with men in other industries whose skills were the same or substantially similar. Effectively, the court said that the tiny number of men in the aged-care industry were also poorly paid and were also being penalised for doing "women's work".

The finding of the court is extremely significant. It means that any industry in which the majority of workers are female 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. Early childhood teachers, primary school teachers and nurses are obvious examples of female-dominated industries.

The second part of the decision stated that the court can guide negotiations and state the principles of equal pay. Indeed the court went further, and said that it can simply decide the correct pay rate. We have not seen the Employment Court or its precursors have the power to impose a pay rate in a collective employment agreement for many years. Of course under the industrial conciliation and arbitration system which was in force in New Zealand years ago, that is what the court did all the time.

Wellington has had two or three significant earthquakes over the past couple of months. The Employment Court, with its decision in this landmark test case, has equally shaken up the employment law landscape. It has clarified where the goalposts are. Traditionally they were to make sure that men and women in the same job got the same pay. The court has made it clear that the test is now equal pay for equal value.

This creative litigation by the Service and Food Workers Union is likely to see female workers receiving the most significant across the board pay rise that they have received in their working lives.

No doubt this industry is significantly government-funded and it seems likely that the government and the taxpayer will be asked to make up the shortfall.

Whatever the outcome, Kristine Bartlett has achieved recognition for becoming the latest flag-bearer for equal pay and women's rights in New Zealand. Her next challenge will be to find the men with similar skills to her. A second court hearing will look at the comparison and, if necessary, correct the wage rate of Bartlett and her colleagues.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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