The Employment Court has issued a preliminary decision in a landmark equal pay claim brought by the Service and Food Workers Union on behalf of a group of female aged-care caregivers. The caregivers claim that their employer is in breach of the Equal Pay Act 1972 because they are being paid a lower rate than would be the case if caregiving of the aged was not so substantially dominated by female workers. The preliminary decision addressed legal questions about the Act.
There were essentially two key issues at the preliminary hearing. First, in circumstances where a workforce is substantially female dominated, what should the Court use as a comparator group to determine whether there is equal pay? Second, does section 9 of the Act require the parties to be in a live negotiation before a claim can be raised? With regard to the comparator group, the Court rejected the employer's claim that the appropriate comparator group was male caregivers employed in the same sector on the basis that comparing within this group would not eliminate the overall effects of systemic gender discrimination. The Court emphasised that the comparator group had to be one that was free from any gender bias affecting pay rates and had to be determined: "by reference to what men would be paid to do the same work abstracting from skills, responsibility, conditions and degrees of effort, as well as from any systemic undervaluation of the work derived from current or historical gender discrimination....". With regard to section 9, the Court determined that the parties did not have to be in a live negotiation in order to raise a claim. The employer has confirmed that it is appealing the decision to the Court of Appeal. Service and Food Workers Union Nga Ringa Tota Inc v Terranova Homes and Care Ltd  NZEmpC 157