Why are the people who care for our elderly paid less than those who tend our gardens? It’s a philosophical, historical and political question – but one that employers in female-dominated industries may have to start thinking about.

In a recent case the Employment Court confirmed women in female-dominated industries may bring Equal Pay Act claims that employees in other industries with similar education and skill levels were paid more.

A union, representing female caregivers, brought the case against an employer care home. The union argued female caregivers would be paid more if caregiving was not traditionally seen as “women’s work”.

The female caregivers’ average pay ranged from $13.75 to $15 an hour. The union argued this low rate was a direct result of the industry’s history. A long history of female employment had depressed wages as work performed by women was less valued.

The Court considered a Human Rights Commission report finding caregivers’ low wages resulted from social and historical discrimination.

The average hourly rate of gardeners, at $16.56, illustrated a gendered wage gap as gardeners tend to be male. The Court noted the irony of the higher rate, even though gardening required less skill and responsibility.

The Court considered the correct interpretation of the Equal Pay Act as a preliminary point and confirmed the Act’s broad purpose was to remove and prevent wage discrimination based on gender. This justified an interpretation requiring more than equal pay within a single workplace.

In the Court’s view, a narrow approach made it too easy for employers to pay “token males” a low rate to justify industry-wide wage discrimination.

Significantly, the Court found employers did not need to intend to pay women less. A gendered wage disparity in itself could breach the Equal Pay Act.

Because of the wide potential impact of the decision, the Court heard from a number of third parties including business groups.
Employer representatives raised concerns about the ruling’s workability, which would require employers to research rates in other industries. The Court dismissed these concerns, claiming employers and employees would determine appropriate comparators in good faith.

The Court also dismissed concerns about industry-wide pay rises, referring to these costs as “the short term price of longer term social good”.

This case has potentially huge economic implications for employees and employers in female-dominated industries such as nursing and teaching.

The decision has been appealed to the Court of Appeal.  We will report further once that decision is known.