Terranova Homes and Care Ltd v Service and Foodworkers Union Nga Ringa Tota Incorporated
| Jurisdiction | New Zealand |
| Judge | McGrath,William Young,Glazebrook |
| Judgment Date | 22 December 2014 |
| Neutral Citation | [2014] NZSC 196 |
| Docket Number | SC 127/2014 |
| Court | Supreme Court |
| Date | 22 December 2014 |
[2014] NZSC 196
McGrath, William Young and Glazebrook JJ
SC 127/2014
IN THE SUPREME COURT OF NEW ZEALAND
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.
M T Scholtens QC and P A McBridge for the Applicant
P Cranney for the Respondents
-
A The application for leave to appeal is dismissed..
-
B There is no order for costs..
REASONS
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
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.
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
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.
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 employees, 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.
In a memorandum filed on 26 November 2014, the respondents agreed that the matter is one of general public importance and commercial significance and indicated that they did not oppose the application for leave to appeal.
On 10 December 2014 this Court sent a minute to the parties asking for submissions on the following questions:
-
(a) Is the proposed appeal in the nature of an appeal on interlocutory matters?
-
(b) Is it necessary in the interests of justice for the Supreme Court to hear and determine the proposed appeal before the proceeding is concluded?
-
(c) Is it in the interests of justice for the Court to hear the appeal “in the...
To continue reading
Request your trial