Le­gal chal­lenge brought change


It could be ar­gued that only a cen­tre-right gov­ern­ment could have pulled off the pol­i­tics of last week’s ma­jor pay rise to work­ers in the aged­care sec­tor. Al­most cer­tainly, a Labour-led gov­ern­ment would have been ac­cused of col­lud­ing with its union mates, and of reck­lessly putting the econ­omy at risk through a com­mit­ment to fem­i­nism and iden­tity pol­i­tics.

As things stood, it was still odd to hear Prime Min­is­ter Bill English preach­ing the so­cial virtues of rais­ing wages for the lowly paid. Fur­ther­more, English claimed that this pay hike would en­able em­ploy­ers to reap the ben­e­fits of re­duced staff turnover via the up­skilling of their work­force, and the cre­ation of a vi­able ca­reer path for them. Could this re­ally be the same po­lit­i­cal party that was will­ing to throw the work­force to the mer­cies of the free mar­ket back in the early 1990s, with the Em­ploy­ment Con­tracts Act?

In sim­i­lar vein, Na­tional’s first act on winning the 2008 elec­tion had been to scrap the Labour Depart­ment’s pay eq­uity unit. Also, hadn’t an in­com­ing Na­tional gov­ern­ment in 1990 cho­sen to bin the Em­ploy­ment Eq­uity Act, the key mech­a­nism for mak­ing in­ter-sec­toral pay com­par­isons pos­si­ble? Un­til last week, suc­ces­sive Na­tional gov­ern­ments had looked more like the en­emy of women seeking re­dress for gen­der-based pay dis­crim­i­na­tion, and not their saviour.

Over 90 per cent of work­ers in the aged care, dis­abil­ity care and home sup­port sec­tor are fe­male. Given the skills and re­spon­si­bil­ity that the work en­tails, these work­ers would have been paid more if they were men. There­fore – as the courts have found – the wage con­di­tions in the sec­tor con­tra­vene the Equal Pay Act of 1972. To put that an­other way, it could well be ar­gued that work­ers in this sec­tor are owed about 45 years of back pay. How­ever, no back pay will be in the off­ing when the new rates of pay kick in from July 1. By con­trast, MPs rou­tinely get paid back pay when their in­come is ratch­eted up­wards each year.

What turned this par­tic­u­lar ship around? Es­sen­tially, it came down to the le­gal chal­lenge launched by Chris­tine Bartlett, an ex­pe­ri­enced aged-care worker who was still be­ing paid min­i­mum wage rates af­ter 20 years work­ing at the same resthome. Will work­ers in other fe­male-in­ten­sive oc­cu­pa­tions (eg re­tail, or hospi­tal­ity work­ers) now be able to suc­cess­fully mount sim­i­lar claims? Only with dif­fi­culty. The same gov­ern­ment/ unions/em­ploy­ers troika that agreed to last week’s set­tle­ment have also pro­duced a set of prin­ci­ples (shortly to be en­shrined in leg­is­la­tion) that will cre­ate a high hur­dle for any fu­ture claims.

Ob­vi­ously, the aged care set­tle­ment has been ex­cel­lent news for the work­ers set to ben­e­fit from a pay rise of be­tween 15-49 per cent. This happy out­come raises two wider is­sues. Ul­ti­mately, why has the tax­payer needed to do all of the heavy lift­ing on the wages and con­di­tions in this highly prof­itable sec­tor? More­over, what reg­u­la­tory ac­tion - if any - will the gov­ern­ment be tak­ing to de­ter the pri­vate sec­tor providers from ex­tract­ing any flow-on wage costs to them, out of the un­lucky rest home res­i­dents whose means (and sav­ings) will leave them above the sub­sidy thresh­old?

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