Janet Elsie Lowe v Director-General of Health, Ministry of Health

JurisdictionNew Zealand
CourtEmployment Court
JudgeB A Corkill,Judge
Judgment Date02 March 2015
Date02 March 2015
Docket NumberWRC 11/14

[2015] NZEmpC 24



Judge M E Perkins

Judge B A Corkill

Judge A D Ford

WRC 11/14

In The Matter Of a challenge to a determination of the Employment Relations Authority

Janet Elsie Lowe
Director-General Of Health, Ministry Of Health
First Defendant


Chief Executive, Capital & Coast District Health Board
Second Defendant

P Cranney, counsel for the plaintiff

J Holden and M Conway, counsel for the first defendant

H Kynaston and J Howes, counsel for the second defendant

S Meikle, counsel for Carers New Zealand Trust, Intervener

Challenge to a determination of the Employment Relations Authority (“the Authority”) which decided the plaintiff was not a “homeworker” as defined in s2 Employment Relations Act 2000 (“ERA”) (interpretation — a person engaged, employed, or contracted by any other person … to do work for that other person in a dwellinghouse) when she provided relief care for individuals normally supported by unpaid primary carers — the plaintiff performed this work from 1994 on an intermittent basis — she received payments for the work from either the first defendant Ministry on its own behalf, or alternatively by the first defendant on behalf of the second defendant Health Board — plaintiff claimed that the defendants were deemed to be her employer, and that they failed to comply with the Minimum Wage Act 1983 and the Holidays Act 2003 so that she was owed wages — whether the plaintiff was a “homeworker” under the ERA.

The issue was whether L was a “homeworker” as defined by s2 ERA.

Held: The evidence provided for some oversight and control of the Carer Support service by the Ministry and C&CDHB. Those parties were entitled to and did ensure, for example, that claims were not fraudulent and that services were rendered for the time allocated for the assessed needs of the client in a particular manner.

Section 6(1)(a) ERA (meaning of employee) defined an employee as including a homeworker. Section contained an extended definition of a homeworker. The intention of the extended definition was to deem as an employee anyone who was engaged in the course of some other person's trade or business to do non-tradesman's work in a dwelling, not necessarily their own. An engagement, employment or contract would fall within the definition if expressly or implied, provided that the place where the work was to be performed was to be a dwellinghouse (Cashman)

Section 23(1) NZPHDA (functions of DHBs) provided that each DHB had to ensure the provision of services for its resident population and to actively investigate, facilitate, sponsor and develop cooperative and collaborative arrangements with persons in the health and disability sector. A DHB had to promote the inclusion and participation in society and independence of people with disabilities. The provision of support for certain persons over age 65 fell within the parameters of those provisions.

Section 25 NZPHD Act did not assist in this case. The section described a service agreement as an agreement under which one or more DHBs agreed to provide money to a person in return for the person providing services or arranging for the provision of service. Section 25 agreements were one means by which a DHB could provide support to persons in need of help in respect of their disabilities, but that was not the only path by which such support might be delivered. A DHB could undertake any act which a natural person would, such as paying money to a third party. This was the legal basis by which Carer Support payments could be made by a DHB. There was no evidence of a formal service agreement being entered into with the DHB.

Cashman held that s2 ERA was to be construed broadly and favoured an interpretation that did not limit the section to traditional outworkers. The term was to be given its ordinary and natural meaning in light of that policy. Dictionary definitions of “engage,” included “to secure the services of”. The scope of the term was broad; and could be different from employing or entering into a contract with a worker. Dictionary definitions of “employ,” included “to engage or make use of the services of (a person) in return for money”. The first meaning of the definition applied to a person who was employed under a contract of service as defined in s6(1)(a) ERA. There would be no need to use the word “employ” in the definition of “homeworker” if it was to have the same meaning. A wider meaning had to have been intended. The words “engage” and “employ” required a conclusion that the intended meanings were wider than their legal technical senses.

In the definition of home-worker in the ERA, the requirement to consider “the substance” of the engagement, employment or contracting of the worker was referred to in sub-para (b) but not sub-para (a). However, given the various indications of an intention to cover a broad range of relationships, the use of the words “in substance” should apply to both limbs. It was necessary to consider the substance of the engagement, the employment, or the contract whatever the technical position may be.

It was inherent in the statutory framework that the Ministry and the C&CDHB were required to provide health and disability services; they had the ultimate responsibility of ensuring such services were delivered. The Ministry and DHB were in business when discharging their statutory responsibilities. To discharge their responsibilities, the Ministry or the DHB offered to pay Carer Support workers on certain terms and conditions. The work would be of a particular kind — as defined by the needs assessment of the client. The work was performed in a dwellinghouse.

L had provided Carer Support services with sufficient frequency as to permit the conclusion that she had undertaken such work on a regular basis. It was clear that the substance of the arrangement was one of engagement. L provided a service which the Ministry and DHB required to be undertaken so that their responsibilities could be met. Her services were secured to that end; she was for their purposes “engaged”.

The label of “subsidy”, as used by the Ministry in some but not all of its documents, was not determinative. Whilst the payment was a subsidy in the sense that it was a contribution made to supplement an unpaid carer's efforts, such a term did not recognise the reality of the arrangement where payment for a service was made on the basis of an invoice.

The fact that neither the Ministry nor the DHB had any role in selecting the relief carer, and might not even know who that person was did not alter the conclusion. The policy decision was that the client and/or primary caregiver should be in a position to make choices both as to who the relief carer should be, or indeed whether the payment should be expended on engaging, employing or contracting a relief carer. In any event, the Ministry and/or the DHB was able to ascertain the identity of the relief carer, and if need be audit and otherwise investigate the services being rendered.

L was a homeworker as defined in the ERA. She was thus deemed to be an employee under s6(1)(b)(i) ERA. The challenge was allowed.


The issue in this proceeding is whether Ms Lowe was a “homeworker” as defined in the Employment Relations Act 2000 (the ERA), when she provided relief care for individuals normally supported by unpaid primary carers. She performed this work from 1994 on an intermittent basis. She received payments for the work from either the Ministry of Health (the Ministry) on its own behalf, or alternatively by the Ministry on behalf of Capital & Coast District Health Board (C&CDHB).


Ms Lowe says that either or both of the defendants were deemed to be her employer, and that they failed to comply with the Minimum Wage Act 1983 and the Holidays Act 2003 so that she is owed wages.


The Ministry and the C&CDHB contend that Ms Lowe does not fall within the definition of homeworker under the ERA, and that they owe her no legal obligations.


The Employment Relations Authority (the Authority) determined that Ms Lowe was not a homeworker; 1 she challenges that conclusion. Because a significant issue arises, Chief Judge Colgan determined that the challenge should be considered by a full Court. Carers New Zealand Trust, an entity which is described as having wide connections in the carer sector and with carer entities, was granted intervener status.


The New Zealand Government funds various disabilities services, which are accessed through multiple agencies so that people with disabilities may live at home in their communities rather than in residential facilities. According to an inquiry conducted by the Social Services Select Committee in 2008, 2 people with disabilities mostly live in their own homes supported by family, friends and community groups.


The challenge focuses on the allocation of Carer Support, the intention of which is to provide relief to unpaid primary carers. The Court was informed that in the year ending 30 June 2013, 23,400 clients were allocated support of this kind. Payments were made to approximately 35,000 support carers; 23,000 of these were paid for by the Ministry and 12,000 were paid for by District Health Boards. Approximately 27,000 of the support carers received their payments direct from a shared payment agency within the Ministry which administers payments on behalf of

the Ministry and District Health Boards; for the remainder, the payment was made to the unpaid primary carer for forwarding on to the support carer. 3

A statement of facts agreed between the parties provides an introduction to the issues as they pertain to Ms Lowe. It stated:

The Carer Support regime

  • 1. Eligibility for Carer Support is assessed by a Needs Assessment Co-ordination ( NASC) organisation, which decides whether the...

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