Pay equality for women is set to be tested in what legal experts describe as a landmark case that could pave the way for many more claims.
The Service and Food Workers Union has launched the legal challenge, which it believes is long overdue and could be bigger than the $150 million settlement agreed by the Government last year for sleepover shifts by careworkers looking after intellectually disabled people.
Wellington union member Kristine Bartlett, who works at rest home provider Terranova Homes & Care, agreed to front the claim and took the company to the Employment Relations Authority, alleging a breach of the 40-year-old Equal Pay Act and the Employment Relations Act.
Ms Bartlett says her hourly wage of $14.46 is less than what would be paid to male employees with the same, or substantially similar, skills.
Terranova employs six male caregivers out of 117 across the country. It argues that none of the female employees is paid less than the men under the assessment criteria.
Authority member Paul Stapp referred the matter to the Employment Court, as important questions of law were likely to arise, and it was of "important public interest". A date has yet to be set.
Union secretary John Ryall said the case had wider implications, as under the Equal Pay Act female employees who work in an occupation performed exclusively or predominantly by women should be paid the same as a man with the same skills would be.
The case had the potential to be even bigger than the sleepover case, in which the Government agreed to a settlement for 3700 disability support workers following a test case taken by Levin worker Phil Dickson in 2007.
Rest home caregivers were overwhelmingly female and it was not enough to simply look at the few token men employed in the industry, Mr Ryall said.
"What we're arguing is we don't look at the man that happens to work as a caregiver because they're really an honorary female. It's very much focused on people. This is about the lower-paid ghettos where women workers have been concentrated in."
Legal experts said it was difficult to gauge how strong the case was, but it had the potential to create a huge precedent.
Employment lawyer Andrew Scott-Howman said it would be a "fascinating" case, where the onus would be on the applicant to provide evidence of a pay disparity.
"The act was drafted in 1972 in an environment when women were burning their bras and, compared to today, a culture of very blatant sexism."
Another employment lawyer, Susan Hornsby-Geluk, said there had been very few cases that had tested the Equal Pay Act.
It would be difficult for the union to present evidence from the wider caregiver workforce but, if it could prove that male workers at Terranova were paid at the top end of the scale, it would be very interesting.
"It could open the floodgates to a range of similar cases."
Terranova executive director Terry Bell said the company "categorically believed" it did not discriminate by gender.
The caregiving industry was underfunded, and it was unfortunate that Terranova had been singled out for a test case.
The company was waiting to receive details of the union's argument, but if the Employment Court ruled against Terranova it could have a huge impact, he said.
"If it was successful, and the Government chooses not to fund the shortfall, I would say it would destroy the industry."
Pay Equity Challenge Coalition spokeswoman Angela McLean said she hoped the case affected other female-dominated positions such as clerical work and school support.
"Underpayment which is based in inequity cannot be justified by saying there is not the money to pay people fairly," she said. "The pay equity genie is out of the bag."
- © Fairfax NZ News