Industrial strife among the 65,000-strong care and support workforce is looking likely as their landmark pay equity settlement hits the rocks, writes Rebecca Macfie

A historic pay deal that took years of worker activism, multiple court decisions, and two years of negotiations is on the brink of unravelling, leaving the affected workers angry, disappointed and talking of strike action.

The Care and Support Workers (Pay Equity) Settlement Act was passed in 2017 by the National-led Government. It delivered $2 billion in wage rises to care workers in residential aged care facilities, as well as those who care for frail, elderly, disabled and injured people in their own homes.

The pay increases ranged from 15 to 50 percent, and were brought in over five years, at which point the legislation containing the settlement would expire. It was a significant correction to the long-standing underpayment of the predominantly female workforce, and followed decisions of the Employment Court and Court of Appeal taken in the name of residential aged care worker Kristine Bartlett.

Rather than have the courts dictate Bartlett’s wages and those of 55,000 other care and support workers – and thus the cost to the Government as the funder – then-Finance Minister Bill English intervened with a direct approach to Bartlett’s union, the Service and Food Workers Union (now part of E tū Union).

The Bartlett case was one of three that the SFWU – in partnership the PSA and NZ Nurses Organisation – took to court on behalf of care and support workers on poverty wages between 2009 and 2012. The other cases were over care workers’ entitlement to be paid for time spent sleeping over in residential facilities for people with intellectual disabilities, and for time spent travelling between clients’ homes; both were resolved through direct negotiations between the unions and the Government.

As then-SFWU national secretary John Ryall recalls it, English phoned him following the Court of Appeal’s ruling in Bartlett’s favour, saying he wanted to talk about the volley of court decisions. “He said, ‘The problem for us is that you keep on winning all these cases’,” says Ryall.

Seeking a negotiated settlement, English appointed Wellington public sector consultant Doug Martin as Crown negotiator. Martin was given a $2 billion envelope within which to broker a deal between the unions and the Government.

Negotiations went on for two years, punctuated with threats by the unions to go back to court to have the matter adjudicated – and to litigate a further 6000 care and support worker equal pay cases that had been filed with the Employment Relations Authority in the meantime.

Agreement was finally reached in early 2017, and the resulting legislation passed unanimously in June that year. Bartlett was lauded internationally as a wage justice hero, was named New Zealander of the Year in 2018, and received a CNZM for services to equal pay and advocacy. The Care and Support (Pay Equity) Settlement Act was written up in the annals of the International Labour Organisation.

The legislation was later amended to include community mental health and addiction, expanding the coverage to 65,000 workers. As well as the pay rises, the package included a new qualifications regime that was intended to lift the skill and career progression of the care and support workforce.

Bartlett has since retired, but this week she was bracing herself to return to the streets to rally alongside her old workmates as they witness the collapse of that hard-won settlement.

“It’s so heartbreaking,” she told Newsroom. “I’m very sad. I think there will be a lot of very angry people.”

The expiry date for the 2017 settlement legislation is July 1. Despite the unions’ efforts to initiate discussions with the Government last year over a replacement or extension to the 2017 Act, nothing has been achieved. According to a March 29 email seen by Newsroom, a Ministry of Health official told employers in the sector – all of whom rely on government funding to pay their workers – that it had “not proven possible” to get an agreed paper to Cabinet. Less than two weeks out from the Budget moratorium, there was no mandate to progress the discussions.

The parties have scrambled since then to find a way through the crisis, without success.

Last week the Ministry of Health proposed an 18-month extension of the 2017 legislation, with a 3 percent pay rise. That’s less than half the rate of inflation, and nowhere near the unions’ calculation of what is required to maintain pay equity between care workers’ wages and relevant comparator groups.

Care and support worker wages currently range from $21.50 to $27. According to a union negotiating paper, to maintain equity with DHB healthcare assistants – whose pay has gone up by 25% since 2017 and will go up more under the NZNO pay equity settlement – care and support worker rates need to increase by between 25 percent and 33 percent, to a range of $28.74 to $33.41.

The unions also proposed a three-year extension of the 2017 legislation, which would allow time for a formal claim under the 2020 Pay Equity Amendment Act to work its way to a conclusion.

The parties held a further fruitless meeting on Monday and Ryall – who is acting as advocate for E tū – says matters are now at a stalemate.

Employer representative Paul Diver refused to comment to Newsroom, saying the parties had been sworn to confidentiality by the facilitator.

That dictate is not stopping Ryall from speaking out: “Three percent is not enough,” he says – particularly as Ministry of Health officials have proposed that figure as an overall funding increase, from which employers would need to cover other workforce-related costs. He says the pay rise received by workers would be closer to 2.8%.

One further negotiating meeting is scheduled, but Ryall is not optimistic of a resolution. He fears the expiry of the legislation will roll around at the end of June and there will be nothing to replace it.

The unions are planning public rallies over coming weeks, and putting pressure directly onto MPs. The probability of strike action will increase as collective employment agreements with employers in the sector expire. Some have already lapsed, and most others will click over by July, opening the window to lawful strike action over pay claims.

PSA assistant national secretary Melissa Woolley notes that the breakdown in talks with the Government comes two-and-a-half years into the pandemic, during which care and support workers have played a pivotal front line role in the health system, while having to fight for basics like PPE and masks. Recent research by Eleanor Holyroyd of AUT shows community health care workers have gone “the extra mile” during Covid, at considerable cost to themselves including exhaustion, anxiety and stigma, and have suffered from inadequate support.

Pam King, a home care worker in Invercargill who has been in the sector for 27 years, says she and fellow workers are “totally pissed off”, and strike action is now possible. “It’s a real kick in the guts. It’s all down the drain now” she says of the 2017 settlement.

Working throughout the pandemic has been fraught, she says, including entering houses where residents have not disclosed they have Covid, and the constant fear of either inadvertently taking the virus into the home of a vulnerable person, or bringing it back to her own family.

Marianne Bishop, who works in a residential aged care facility in Wellington, says she is completely disheartened by the Government’s offer. The sector is already facing critical staff shortages and workers are bleeding off into other jobs (including in the DHBs) where they are paid more and have less stress.

“I think we are in a really bad place for the residents who need our care, and for the people who are going to need it in the future. It’s only going to get more serious if we don’t fix this.”

Bartlett, meanwhile, despairs over what was achieved in 2017 and what now appears to be lost. “These workers are so overworked, so short-staffed. It’s shocking. They seem to have been left in the lurch…If the [2017 settlement] falls down, it will have been just a waste of time, all those hard years.”

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