Massive ramifications in equal pay case says lawyer

Lawyer successfully argued that aged-care workers both male and female are paid a lower rate because their jobs have traditionally been performed by women.

EY employment lawyer Christie Hall told TV One’s Q+A programme that the Kristine Bartlett aged-care workers’ case would have massive ramifications for NZ.

“The real questions’ going to come from – how far will this go? Will it broaden out into teachers? Will it broaden out into nurses? Will it broaden out to early childhood-care workers? There’s a whole range of other occupations that are potentially going to be affected by this,” she says.

Ms Hall also warned that it would not be a good look if the government simply legislated over the top of these cases.  “They’d really be going against the international tide if they did legislate over it,” she said.

RAW DATA: Q+A's Corin Dann interviews EY Law's Christine Hall

Watch the full interview here.

CORIN Welcome back. For 20 years, Lower Hutt aged-care worker Kristine Bartlett has earned just over the minimum wage. But with the help of the Service and Food Workers Union, she took a landmark case that has suddenly invigorated the equal-pay battle for women. Her lawyer successfully argued that aged-care workers both male and female are paid a lower rate because their jobs have traditionally been performed by women. The case is now due to go back to the Employment Court so that Kristine’s lawyers can argue for that pay rise. But the union has told us that the government wants to negotiate an out-of-court settlement, and they’re talking to the union about broadening a possible deal to include those who look after disabled people or provide in-home care. So how many other women could win from Kristine Bartlett’s victory? Christie Hall is an employment lawyer from EY, and she joins us now. Good morning to you.
 
CHRISTIE Good morning, Corin.
 
CORIN For those who aren’t that familiar with this case, how significant is it? 
 
CHRISTIE I think the ramifications of this really are massive, because at the moment, we’re looking at Kristine Bartlett, who’s an aged-care worker, but the real questions’ going to come from – how far will this go? Will it broaden out into teachers? Will it broaden out into nurses? Will it broaden out to early childhood-care workers? There’s a whole range of other occupations that are potentially going to be affected by this.
 
CORIN It’s interesting you name those occupations. So by that, you’re suggesting that there is serious pay inequity in all of those. 
 
CHRISTIE Arguably, yes. And the same sort of principles apply. The courts would be looking at the same things. So they’d be saying, ‘For the amount of effort, for the conditions, for the skills and responsibilities that those people put into those jobs, are there other equivalent male occupations that are actually paid at a higher rate? And if so, is that down to historical or structural gender discrimination?’
 
CORIN Just talk us through the crux of this case as you mentioned here. This wasn’t a case that Kristine was being paid different than her male co-workers. It was just that the job itself was considered to be women’s work.
 
CHRISTIE That’s exactly right. So I think at Terranova we had around 110 employees – four of those were male, 106 were female. There was absolutely no case that those workers were paid any differently. The men were paid the same as the women. The broader issue is whether the aged-care workers, as an occupation, were having their work and the value of that work devalued because of historical notions.
 
CORIN So is this sort of a systemic, cultural, historical issue here? We’re talking about something that’s been embedded that you’ve got to try and change with this court case.
 
CHRISTIE Absolutely. That’s the argument. And I think the really interesting thing is this legislation’s been around since 1972. It’s 43 years old. But this 43 years later is the first time that we’ve ever had it used in this way. And the ramifications of that are massive.
 
CORIN I mean, Terranova’s obviously fought this case. Where is it at at the moment? And do you get the sense that all employers will feel the same way or try and stop this? 
 
CHRISTIE I don’t think all employers will. This is very much a test case so other employers will be looking at how this one pans out in terms of what their reactions going to be. It’s really in the middle of quite a long journey. Basically, what we’ve seen at the moment is the case has gone up to the Supreme Court. It was refused leave at that level. But that was only on this preliminary point. So this idea of can you compare somebody in one industry as against somebody in another industry. The Court of Appeal has said, “Yes, you can do that.” And so now the case has gone back down to the Employment Court. There’s two hearings that’s going to go on there if the case doesn’t settle. So the first one’s set down for November, and that’s going to look at – can we put some general principles around this to say “How are we going to compare apples with pears?”
 
CORIN And is there any sense of what a comparable work would be for that sector? 
 
CHRISTIE They haven’t come out to date and sort of named occupations or professions. If you look at the UK example, there are all sorts of comparisons that have been made. So for example, they’ve done things like comparing speech therapists with pharmacists; they compared council admin workers with gardeners; they’ve compared cooks with ship workers. So there’s quite a few options in terms of where you’d go with that.
 
CORIN But we are looking now at the possibility of a negotiated settlement, aren’t we? Talk us through that and how significant that is.
 
CHRISTIE Absolutely. There’s nothing official that’s come out at the moment. But there have been media reports that the government’s looking at a negotiated settlement. Query whether that’s going to be purely in respect of Terranova or whether it will go more widely. I think people are obviously going to be looking at that and the ramifications of that, because any government settlement, I would imagine, is not going to encompass the totality of these claims.
 
CORIN Can we put it into figures here? Aged-care worker are earning, what, just above the minimum wage – $15, $16 an hour? Something like that?
 
CHRISTIE That’s right. 
 
CORIN What might they be looking to get if they were successful here? 
 
CHRISTIE Well, it’s really going to depend again on who you compare them with and what those people are earning.
 
CORIN What do they want?
 
CHRISTIE So it may only be sort of an extra 30 cents, 60 cents, a dollar an hour, but when you extrapolate that out, in the case of Terranova, over 106 women, and then you backpay it for six years, and then you adjust their pay going forward, and then you extrapolate it again in terms of other industries, other employers, the ramifications become huge.
 
CORIN And I imagine those ramifications are huge for the government too, given they’re an employer through the Ministry of Health. They could be looking at hundreds of millions of dollars. 
 
CHRISTIE Exactly. And one of the problems that these cases have had today is that you run into that funding ceiling. So if a union, for example, is negotiating with an employer, the employer’s response is going to be, “Well, we only get funding to a certain level. We simply can’t increase the wages by what you would like.” And once you get behind that and say, “Well, the reason for the funding is based on historical sex discrimination,” you just open up that box, and again you go back to the government, who provide the majority of the funding for some of these occupations, and it’s going to end up being a government solution largely to this problem.
 
CORIN The government, though – it is a tight Health Budget.
 
CHRISTIE Absolutely. 
 
CORIN I mean, something else will have to give if they’re going to find that money. 
 
CHRISTIE Yeah, and I mean, it’s not just the Health Budget; it comes into other industry sectors as well. And if you look for example at the UK, Birmingham City Council have paid out apparently £1billion. So that’s two million people within that local authority jurisdiction, £1billion that have been paid out. They’ve sold significant assets in order to fund that.  They’ve had $530million from the government, but they’ve had to fund the rest themselves. 
 
CORIN Is this inherent sexism or is it just a lack of awareness, a lack of employers not realising these systemic problems? 
 
CHRISTIE To be honest, I think the employers are, to some extent, caught between a rock and a hard place. They’ve got their own funding and their own economic concerns. The issue here is that right back to the ‘40s and ‘50s, certain work was deemed to be less valuable than other work, and we’ve got to really look at the reasons behind that. If that’s because it was seen as a sort of a stopgap before you got married and left the workforce, or if it was because women’s work is seen to be an extension of their natural caring capabilities, then that’s where we really do have a deeper issue. And I think the employers, they’re really caught in the middle here of what’s a wider societal problem.
 
CORIN And an ageing population too, in an area of work that is going to be in high demand, I would imagine.
 
CHRISTIE Absolutely. I think if you want to look at an upside, for employers, one of the things that could come from this if the wages do rise because of these cases, is that you may get a broader recruitment pool. You may get people who will say, “I never thought of being a teacher before, never thought of being an aged-care worker, because I simply couldn’t stomach the pay rates.  But actually now I may give that profession another look.”
 
CORIN Do you get any sense that the government would ever legislate over the top of this? Do you think they could fight it? I mean, they have to negotiate this, don’t they?
 
CHRISTIE Legislating over the top of it really wouldn’t be a good look. I think also if you look at the broader international environment. You’ve got places like Australia, places like the UK, where listed companies are having to give their diversity, their pay equality statistics. You’ve got courts able to order pay audits – that type of thing. They’d really be going against the international tide if they did legislate over it.
 
CORIN They’re going to have to find the money.
 
CHRISTIE Absolutely. 
 
CORIN Christie Hall, thank you very much from EY Law.