Amicus Curiae: A Labour of Love – Is That Enough For Care Workers?

BY JANNA TAY

Last month, the government announced a $2 billion package in settlement of the largest pay equity deal in New Zealand history. Around 55,000 care workers in aged residential care and disability support services will receive pay rises of between 15 to 49 per cent over the next five years. And it is historic not only for the sum, but for the fact that no prior legal settlement in New Zealand has recognised that certain jobs pay workers less simply because they are women. As a crucial move towards gender equality and equal pay, it also indicates that a higher value will be placed on care work. This settlement is the outcome of a case that Kristine Bartlett, a caregiver for over twenty years, brought to the Employment Court in 2013. She argued that if the caregiver sector were to employ men, they would receive higher pay. Accordingly, it was held that her pay rate was a result of gender discrimination—a finding that the Court of Appeal upheld the following year.

In other words, the government is rectifying pay discrimination for caregivers. Sound familiar? That’s because this is not the first time the issue of caregivers and pay discrimination has come before the courts. Rather than gender inequality, however, it concerned parents caring for their adult disabled children and receiving no pay. The outcome in the Courts was much the same as for Kristine Bartlett: in Ministry of Health v Atkinson, the Court of Appeal decided in favour of the claimants and held there was discriminatory treatment towards family caregivers. However, there was no billion-dollar settlement—following this, the government passed legislation under urgency that effectively reversed Atkinson. The New Zealand Public Health and Disability Amendment Act 2013 made it such that no one shall be paid for providing support services to family members unless that payment is permitted by a policy or an express enactment. The National Government at the time argued that caring for disabled members falls within the duty to care for family members. Only when there are no family members willing or able to provide that care will the state step in. And yet this was the argument that the Court of Appeal in Atkinson rejected: parents do not expect to care for their kids for the whole of their lives, and should have the right to be paid like other care workers.

Understandably, the recent pay equity deal has raised the ire of parents caring for disabled children. As it stands, funding does exist for families with disabled persons, but is limited. A case in point: Rhys and Lara Hogg gave up their jobs to become full-time carers for their autistic son, and they receive just $46 a week from the government. While the Ministry of Health’s Funded Family Care allows disabled adults to employ and pay the family members they live with, their needs must be high or very high. This is a strict threshold, and not all disabled individuals will qualify. Further, the rate of pay is capped at minimum wage—Cliff Robinson, the father of two disabled adult children, points out that no other workers are condemned by legislation to the fate of never earning more than the minimum wage. An alternative source of funding that disabled adults are entitled to receive is Individualised Funding through the Ministry of Health. The higher the individual’s needs, the greater the amount allocated. However, this money can only be used to purchase the services of those not related to the disabled person, and does not go to the family themselves. It can be the case that Individualised Funding is more worthwhile monetarily than Funded Family Care. The implication is that it is better to place one’s child in state care even if parents are willing and able to care for their disabled children.

And even though state care—both part-time support and full-time residential—is available at no expense, the burden often remains with parents, even those who are not willing and able. Though Disability Issues Minister Nicky Wagner says the government is increasing the funding for the disability sector each year, and is already dedicating between $4.2 billion to $5 billion, the allocation to sub-sectors can be unequal. Dane Dougan, CEO of Autism New Zealand, says the autism sector is stretched, underfunded, and needs greater support. Parents in the system report a shortage of spaces, and those seeking residential care are placed on a waitlist according to need and severity of situation. One midway option is respite, where disabled persons stay a few nights a week with respite carers. But depending on the situation, this may be insufficient, leading to a gap in support. Parents can also eventually find themselves in the absurd position of having reached retirement age but still doing the unpaid work of caregiving.

Given that the disability sector—at least for autism—is increasingly stretched, there is a tension between wanting parents to care for their children at home while refusing to give them adequate funding and support. Will the care workers’ settlement lead to any change for parents? Not likely—Prime Minister Bill English was clear that the case was “unique”, and it will be difficult for other groups wanting to claim pay equity. Certainly, paying parents would be expensive, costing the government an estimated additional $20 million to $680 million per year. There are also worries about professionalising family relationships if income is introduced. Families become reliant on the income and may prevent the disabled person from being as independent as possible, such as through state-funded Supported Living Services. Further, there is always a risk that families may abuse the income and spend it inappropriately. This would be incredibly difficult to monitor.

A positive flow-on effect from the settlement, however, is that the increased pay rate may be a “game-changer” in raising the quality of workers and of the service provided. While many parents maintain that no one can give their children the same level of love, attention, and care as they can, a higher quality of care may help to bridge this. And perhaps this is the way to go if the government maintains its refusal to pay parents: to supplement services and fill the gaps as much as possible. The upshot of the pay equity settlement is to show just how unequal and uneven the sector is in other areas. Even if paying an income to parents is not a viable option at present, it is clear that families need greater attention and support.

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