Speculation is rife that the Government is preparing to legislate over the issues at the heart of the ongoing TerraNova v Bartlett pay equity case, feeding fears that the case will not result in fair pay for aged care workers as many are hoping.

Alastair Duncan, strategic industry leader for the Service & Food Workers’ Union (SFWU) says two separate Government sources have informed him of discussions held by various Ministries and Ministers around the possibility of statutory intervention in terms of amending the Equal Pay Act.

Duncan describes the rumours as “very concerning” and says the SFWU is taking pre-emptive steps to develop contingency measures, should the Government proceed with any such intervention.

The Government refused to comment while the case is before the Employment Court.

Martin Taylor, chief executive of New Zealand Aged Care Association (NZACA) believes statutory intervention is the most likely outcome.

“But it won’t stop our issue as they won’t do it retrospectively,” he says.

Aged care providers remain worried about the prospect of having to pay higher wages without a corresponding increase in government funding.

“For the aged care sector it is a big concern,” says Taylor. “The majority of the sector is standalone SMEs or not-for-profit providers, and they will not be able to survive if caregiver wages increase by 15 per cent without a supporting increase in government funding.”

In a post published on the Human Rights Commission (HRC) website earlier this year, Human Rights Commissioner Dr Jackie Blue states they have written to the Deputy Prime Minister indicating the Commission’s “unique position to help government to identify pragmatic and sustainable potential solutions” to the issues highlighted in the case, and states: “We hope they take our offer up!”

Blue confirms the HRC – one of the intervening parties on the case ─ is working with the State Services Commission and the Public Services Association to progress pay and employment equity for public servants, and also with Workforce New Zealand and Careerforce on valuing the kaiāwhina workforce.

Blue says the HRC’s continued role in the legal process will depend on how and whether it is appropriate to intervene.

Certain aspects of the governance and structure of the HRC are set to change due to proposed amendments to the Human Rights Act. Alastair Duncan expressed concerns over changes to the role of the Equal Employment Opportunities (EEO) at a critical time considering the TerraNova v Bartlett case is ongoing.

Despite these concerns, Duncan says the Government has been taking an increasingly proactive and collaborative approach on issues affecting the sectors. He says the contrast between how the State approached the sleepover case – where it jumped in at the Supreme Court stage – with how it collaborated with the home support sector on the issue of in-between travel time, is a good example.

Following the Supreme Court’s decision at the end of last year to refuse to hear an appeal by the Aged Care Association on behalf of TerraNova, the SFWU believes it is clear the Association has exhausted all apparent options.

“We are hoping that the clear and rather unexpected decision of the [Supreme] Court will give the Aged Care Association pause to reflect. They are defending what we think is indefensible.”

Meanwhile both parties are waiting on direction from the Employment Court to set principles to decide on how to establish pay equity claims across employment sectors.

“This will be ground-breaking law setting,” says Taylor. “It has not been done anywhere in the world. It also has the potential to impact on every workplace in New Zealand, and will lay the framework for pay equity claims for all workplaces.”

Duncan confirms that the SFWU’s legal team is developing and extending the case to take into account workers from other sectors, including disability and home support.

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