Kristine Bartlett and Service & Food Workers Union vs. Terranova Homes & Care Ltd

Great news 22.8.2013 - Success in the Employment Court
Bad news 19.9.2013 - Terranova appeals
Great news 28.10.14 - Appeal against Bartett decision dismissed
Bad news 25.11.14 - Aged Care Association appeals to the Supreme Court
Good news 22.12.14 - Supreme Court rejects Aged Care Association's appeal
...and now negotiations and government working groups....
Good news 24.11.16 - government accepts Joint Working Group's recommendations for Principles for Implementing Equal Pay
Finally! 18.4.17 - A settlement offer for carers!

Kristine Bartlett

Kristine Bartlett, a Lower Hutt caregiver, is fronting the campaign for fair pay for low-paid women and for women’s work to be paid fairly when compared to the jobs men do.

Kristine says she and her workmates love the work they do caring for our elderly, but struggle to support their families on the low pay they get.

Despite her years of experience, Kristine earned just $14.46 an hour.

As a recent Human Rights Commission inquiry reported (Caring Counts), aged care workers receive little more than the minimum wage, yet are responsible for the lives and wellbeing of elderly patients. There is a significant gap between wage rates for aged care workers in public hospitals and those working for private resthomes largely funded by government subsidies. These low wage rates are determined by the per patient rates in resthomes' contract with government.

In 2013 Kristine and her Service & Food Workers Union lodged a claim for equal value for equal work under the Equal Pay Act 1972 which went to the Employment Court. They argue that $14.46 an hour is a discriminatory rate of pay for work done almost exclusively by women in a female dominated resthome sector in a female dominate healthcare. It is likely that Kristine Bartlett's skills, responsibilities, experience and conditions of work are being undervalued, compared with similar skills, responsibility etc. in typically male occupations.

This is an important text case for three reasons:

The Bartlett & SFWU vs Terranova Homes & Care case is proceeding in two stages. The first was a hearing of the Employment Court on 24-26 June 2013 in Auckland. This considered questions of law:

Kristine's lawyers argued that to prevent and remove pay discrimination against women the Act was intended to allow equal value comparisons for jobs done exclusively or predominantly by women - as evidenced by the 1971 Commission of Inquiry report and Ministerial speeches reported by Hansard. The Human Rights Commission as an intervening party supporting the plaintiffs provided evidence on New Zealand obligations under UN Conventions on equal pay and equal pay for work of equal value. The plaintiffs' case was supported with further evidence from the NZ Council of Trade Unions and the Pay Equity Challenge Coalition.

The defendant Terranova argued that the Act was satisfied as four men employed as carers were paid the same rates of pay as 106 women carers. They also argued that any comparison with male occupations should be with males employed by Terranova or at least within the aged care sector, as wider comparisons would be too difficult. This was supported by Business New Zealand, an intervening party supporting the defendants. The NZ Aged Care Association gave evidence about the sector and government funding arrangements.

CEVEP, as an intervening party supporting the plaintiffs, provided information about gender neutral job evaluation tools, as well as the context of segregated women's work, occupational awards, historical evidence from inquiries and reviews related to the 1972 Act, and policy changes since then that nevertheless continued the Equal Pay Act and the principles required by the international Conventions.

A great decision by the Court

On 22 August 2013, the preliminary questions in law were answered in a judgment of the full Employment Court ([2013] NZEmpC157 ARC63/12). It ruled that, for work done exclusively or predominately by women, wider comparisons than just to male employees in the same exclusively or predominantly female workplace, sector or industry might need to be made if that male pay was also likely to be affected by gender discrimination. The Court disagreed that comparisons with employees in other enterprises or industries are 'unworkable'; expertise is available. Terranova paying four male caregivers the same rates as Kristine Bartlett was not a complete defence against an equal pay claim, the judges said.

They also ruled that the Court had power under s.9 to make general statements of principle to guide negotiations under the Act.

This judgment allows the case to proceed to its second stage. This will be about the particulars of Kristine's job - her skills, responsibilities, years of service and work conditions - and what she should fairly be paid. It will require negotiations between the parties on suitable male comparators and job evaluation tools.

Appeal

On 19 September Terranova lodged an appeal against the judgment. On the same day - the 120th anniversary of New Zealand women winning the vote - National's Minister of Labour Simon Bridges said the matter was before the court but the government was considering 'whether to intervene in the proceedings'. In December National's Attorney General Christopher Finlayson requested 'intervener' status and, at the appeal hearing held on 3-4 February in Wellington, argued in support of Terranova's narrow interpretation of the Act.

Terranova asked the Appeal Court:

'Did the Employment Court err in law in finding that, in determining 'the rate of remuneration that would be paid to male employees...performing the work' for the purposes of 3(1)(b) of the Equal Pay Act, reference may be made to: - Rates that are paid to men employed by other employers or by employers in other sectors; - Any systematic undervaluation of the work derived from current or historical or structural gender discrimination?'

On 28 October 2014 the Appeal Court dismissed Terranova's appeal against the Employment Court's judgement and ruled that pay equity claims for jobs employing predominantly or exclusively women can have regard to what men with comparable skills, responsibilities, etc. are paid in other industries. The Appeal Court recommended that the Employment Court issue principles and guidelines before proceeding further with Kristine Bartlett's claim.

This is a very important ruling for New Zealand women. It allows the case - and similar claims - to proceed to identifying appropriate male comparators and evaluating Kristine Bartlett's skills, responsibilities, etc. using a gender neutral job evaluation methodology, including the carers' job description, Terranova's care provision contract with the Ministry of Health, and the Human Rights Commission's Caring Counts report.

Another appeal against paying caregivers fairly

Kristine's claim for equal pay for work of equal value did not proceed, as on 25 November the Aged Care Association lodged an appeal with the Supreme Court .

On 22 December, however, the Supreme Court announced that it found no grounds for an appeal at this stage. Service & Food Workers National Secretary John Ryall said this decision means that Kristine Bartlett and fellow caregivers can now argue their case before the Employment Court and present evidence on the undervaluing of their work.

See an article by Simon Collins in the NZ Herald, 5 December 2014.

Negotiations and working groups

It appears the government has at last seen the writing on the wall. It called together a Working Group of the parties, including government, to see if a settlement can be reached for caregivers. It has been agreed that any settlement will also apply to publicly-funded mental health and disability carers in residential homes and in the community. This would get some money into the pockets of caregivers sooner rather than later, but will it be a full 'equal value' rate? And will settlement disadvantage women in other occupations if insufficient case law is established to support other equal value claims? As at 24 June 2016, a settlement has not yet been reached.

In addition, the government called a second Working Group on Principles for the implementation of equal pay. It is unclear so far how this Group's eventual recommendations will fit with the Employment Court's power to state principles under the Equal Pay Act (s.9). The Working Group comprises four State Services Commission officials, six unionists and employer representatives, facilitated by Dame Patsy Reddy. See the government's Terms of Reference.

CEVEP requested inclusion on this Working Party, as did the Auckland-based Pay Equity Coalition, but this was declined. We believe that the participation of women's organisations with expertise on this issue is vital if the Principles reached are to be acceptable to New Zealand women and thus a sustainable solution for the future. Instead, we were invited to make a written submission which commented on the Terms of Reference and proposed our own General Principles on Pay Equity.

On 29 May 2016 the Joint Working Group submitted its Recommendations to Cabinet. On 24 November 2016 the government finally responded by accepting the recommended Principles, with the addition of a sub-principle requiring a 'hierarchy of comparators' 'drawn from within the business, similar businesses, or the same industry or sector when available and appropriate'. In CEVEP's view this is an attempt to wind back a key pronouncement of the courts that to avoid any element of gender discrimination in wage rates, it may be necessary to go wider than the particular workplace or female dominated sector in which the claim is being made.

In CEVEP's view, just as any Principles issued by the Employment Court under s.9 would be simply be attached to the Act, the current Principles recommended by government can be issued as a Regulation under s.19 f the Act. See CEVEP's policy positions here.

However the government has announced its intention to update the Equal Pay Act 1972 and amend the Employment Relations 2002 to implement the recommendations. The Recommendations of the Joint Working Group include a procedure flow chart for negotiations on pay equity, which we will expect to be the basis for any legislative changes.

Government accepts Principles

On 24 November 2016 Cabinet finally accepted recommendations from its Joint Working Group on Principles for Implementing Equal Pay. See here. (The JWG was an alternative to the Court issuing Principles on a request by the union as part of the Bartlett vs Terranova case.)

However, the government added a supplementary principle: a requirement to work through a 'hierarchy of potential comparator' from within the same workplace or industry. The court case specifically allowed comparison with other sectors to ensure 'no element of discrimination'. Historically female dominated work has been compared with male dominated work to achieve this.

The government plans to amend the Equal Pay Act, rather than simply adding the Principles as a Regulation under s.19 of the Act. We anticipate that the Bill will based on the process for negotiations contained in the Joint Working Group's full recommendations.See CEVEP's policy positions as at August 2016and March 2017.

Finally! a settlement offer

The NZCTU says it's a historic day as unions jointly announce with the government a proposed equal pay settlement to 55,000 workers across the aged residential, disability and home support sectors

The proposed settlement will make a real difference in valuing the work of care and support workers and the people they support. It is a significant step in addressing gender inequality in New Zealand.

The offer lifts care and support workers' pay to between $19 and $23.50 from 1 July 2017, rising to between $21.50 and $27. in July 2021.

It comes after 20 months of negotiations and E Tū member Kristine Bartlett's landmark equal pay case. Kristine says, 'It will give us dignity and price and make our lives worthwhile, knowing we're being paid what we are actually worth. After years of struggling on low wages, hopefully we're going to have a bit left over to actually enjoy life'.

Tens of thousands of care workers voted to accept the proposed settlement.