Terranova Homes and Care Ltd v Service and Foodworkers Union Nga Ringa Tota Incorporated

JurisdictionNew Zealand
CourtSupreme Court
JudgeMcGrath,William Young,Glazebrook
Judgment Date22 December 2014
Neutral Citation[2014] NZSC 196
Date22 December 2014
Docket NumberSC 127/2014

[2014] NZSC 196

IN THE SUPREME COURT OF NEW ZEALAND

Court:

McGrath, William Young and Glazebrook JJ

SC 127/2014

BETWEEN
Terranova Homes And Care Limited
Applicant
and
Service And Foodworkers Union Nga Ringa Tota Incorporated
First Respondent
Kristine Bartlett
Second Respondent
Counsel:

M T Scholtens QC and P A McBridge for the Applicant

P Cranney for the Respondents

Application for leave to appeal the judgment of the Court of Appeal (CA) on preliminary questions concerning the application of the Equal Pay Act 1972 (EPA) on claims that male and female rest home caregivers were paid at a lower rate than would be the case if care giving of the elderly was not predominantly performed by women — CA held that s3(1)(b) EPA required that equal pay for women for work predominantly or exclusively performed by women, was 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 or structural gender discrimination — whether the proposed appeal was in the nature of an appeal on interlocutory matters — whether it was in the interests of justice to hear the appeal before the proceeding was concluded.

The issues were: whether the proposed appeal was in the nature of an appeal on interlocutory matters; whether it was in the interests of justice to hear the appeal before the proceeding was concluded; and, whether it was in the interests of justice to hear the appeal “in the abstract” divorced from consideration of the principles under s9 EPA (Court may state principles for implementation of equal pay) and the factual context.

Held: While not strictly an appeal from an interlocutory application, as defined in the SCA, the proposed appeal nevertheless was an appeal on preliminary questions. There was a residual discretion for the SC to refuse an application for leave to appeal under s13(1) SCA (must not give leave to appeal to it unless … satisfied that it is necessary in the interests of justice), even if one of the criteria in s13(2) SCA (matter of general or public importance or a matter of general commercial significance) was met.

The CA indicated that the next stage of the proceedings should be the setting of principles under s9 EPA. Until that was done and considered by the CA in any appeal, the application for leave was premature and should be dismissed. However, this was without prejudice to the applicant's ability to challenge any of the findings of the CA on the preliminary questions it dealt with in any subsequent appeal before the SC.

Application dismissed.

JUDGMENT OF THE COURT
  • A The application for leave to appeal is dismissed..

  • B There is no order for costs..

REASONS

Introduction
1

This is an application for leave to appeal against a judgment of the Court of Appeal 1 which upheld an Employment Court decision on preliminary questions in relation to two proceedings in that Court concerning the Equal Pay Act 1972. 2

2

The first proceeding is a claim by Ms Bartlett, a rest home caregiver. She claims both male and female caregivers are paid at a lower rate than would be the case if care giving of the elderly was not predominantly performed by women. The second is a claim by the union, on behalf of 15 caregivers employed by Terranova, asking for a statement, pursuant to s 9 of the Equal Pay Act, of the general principles to be observed for the implementation of equal pay.

3

The Employment Court agreed to consider a number of preliminary questions on the grounds that the hearing of the proceedings was likely to be lengthy and complex and answers to those questions might reduce the evidential ambit of the case. 3

4

On appeal, the Court of Appeal held that the answers given by the Employment Court to the first and sixth questions (the only ones at issue on appeal)4 were correct. These questions and answers were:

[Question 1]

In determining whether there is an element of differentiation in the rate of remuneration paid to a female employee for her work, based on her sex, do the criteria identified in s 3(1)(b) of the Equal Pay Act require the Court to:

  • (h) Identify the rate of remuneration that would be paid if the work were not work exclusively or predominantly performed by females, by comparing the actual rate paid with a notional rate that would be paid were it not for that fact; or

  • (i) Identify the rate that her employer would pay a male employee if it employed one to perform the work?

Answer: Section 3(1)(b) requires that equal pay for women for work predominantly or exclusively performed by women, is 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 or structural gender discrimination.

… [Question 6]

In considering the s 3(1)(b) issue of “…the rate of remuneration that would be paid to male employees with the same, or substantially similar, skills, responsibility, and service, performing the work under the same, or substantially similar, conditions and with the same or substantially similar, degrees of effort”, is the Authority or Court entitled to have regard to what is paid to males in other industries?

Answer: They may be if those enquiries of other employees of the same employer or of other employers in the same or similar enterprise or industry or sector would be an inappropriate comparator group.

5

Section 3(1)(b) of the Equal Pay Act provides:

3 Criteria to be applied

  • (1) Subject to the provisions of this section, in determining whether there exists an element of differentiation, based on the sex of the employees, in the rates of remuneration of male employees and female employees for any work or class of work payable under any instrument, and for the purpose of making the determinations specified in subsection (1) of section 4, the following criteria shall apply: …

    • (b) for work which is exclusively or predominantly performed by female...

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