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

• Jurisdiction: New Zealand
• Judge: B A Corkill,M E Perkins,A D Ford
• Judgment Date: 02 March 2015
• Court: Employment Court
• Docket Number: WRC 11/14
• Date: 02 March 2015

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

Between

Janet Elsie Lowe

Plaintiff

and

Director-General Of Health, Ministry Of Health

First Defendant

and

Chief Executive, Capital & Coast District Health Board

Second Defendant

[2015] NZEmpC 24

Court:

Judge M E Perkins

Judge B A Corkill

Judge A D Ford

WRC 11/14

IN THE EMPLOYMENT COURT WELLINGTON

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.

Appearances:

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

JUDGMENT OF THE FULL COURT

Introduction

1 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).

2 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.

3 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.

4 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.

Background

5 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.

6 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

7 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 client is eligible for Carer Support, whether Carer Support is an appropriate support option for the client and full-time carer, and the extent of the client's eligibility. The NASC informs the client and full time carer about their carer support allocation and how the system works. They also inform the Ministry how many days per year it has allocated to a full-time carer for support. Once the Ministry receives notification, it sends out the Carer Support form to the full-time carer for the full- time carer and support carer to complete and return when they claim for payment of Carer Support.

• 2. Payment of Carer Support is through Sector Operations, a shared payment agency that administers payments on behalf of the Ministry and all District Health Boards ( DHBs). Generally, if a client is under 65 [years] of age, the payment is funded by the Ministry and if the client is over 65 it is funded by the relevant DHB.

• 3. The Ministry publishes a leaflet titled “How to Claim Carer Support”. As set out in this leaflet, a full-time carer can arrange for anyone to be a support carer so long as they are over 16 years and are not a legal guardian, parent, spouse or partner of the client. A support carer also cannot live at the same address as a client.

  Relief care provided by Ms Lowe

• 4. Ms Lowe has on various occasions provided relief care for the following individuals who require care in their homes:

  • 4.1 Keith Taylor

  • 4.2 George Sanderson

  • 4.3 Jack De Bruin

• 5. Ms Lowe also may have provided relief care for a further individual, Bob Forsyth. However Sector Operations does not have any record of payments that may have been made in respect of relief care provided by Ms Lowe for Mr Forsyth.

• 6. The full-time carers submitted support forms to the Ministry seeking payment in respect of the relief care carried out by Ms Lowe. Both the full-time carers and Ms Lowe signed the forms.

• 7. The payment was made directly to Ms Lowe in respect of some of the relief care she provided. In respect of other relief care provided by Ms Lowe, the full-time carer was paid by the Ministry or the C&CDHB (administered by Sector Operations) and the full-time carer then paid Ms Lowe.

• 8. Where the Carer Support is funded by C&CDHB, the Carer Support Forms contain three different daily subsidy rates: the formal rate (applicable to GST registered carers), the informal rate (payable for family members) and the non-family rate. Where the Carer Support is funded by the Ministry the Carer Support forms contain two different daily subsidy rates: the formal rate (applicable to GST registered carers) and the informal rate. With regards to Ms Lowe, payment for relief care for George Sanderson and Jack De Bruin was funded by C&CDHB at the daily rate for a non-family member and for Keith Taylor payment for relief care was funded by the Ministry at the informal rate for a non-GST registered carer.

• 9. Ms Lowe was not contacted at any time by the Ministry, the C&CDHB or Sector Operations in relation to the carer relief provided. Ms Lowe did however contact the Ministry on occasion when she had not received prompt payment for carer relief services.

8 Relevant documents were also provided, and evidence was given on behalf of each party which allows some aspects of the relevant arrangements to be explained in greater detail.

Submissions

9 The essence of the submission made for Ms Lowe was, firstly, that arrangements entered into with a DHB amounted to a service agreement: money was paid under s 25 of the New Zealand Public Health and Disability Act 2000 (NZPHD Act) in return for the provision of services. It was also submitted that the substance of the arrangement was a “sale by labour by the caregiver”, thus qualifying under the statutory definition of homeworker according to the principles identified by the Court of Appeal in Cashman v Central Regional Health Authority. 4

10 Counsel for the Ministry and the C&CDHB emphasised that those entities had no role in selecting the support worker, and that there was no legal relationship

simply because a subsidy was provided. The Ministry was a funder; neither entity was an employer. There was no relevant services agreement under s 25 of the NZPHD Act. The arrangements were “vastly different” from those considered in Cashman. Nor did a payment of goods and services tax on an invoice submitted by a support carer mean there was a qualifying arrangement

11 The intervener submitted that Ms Lowe was a homeworker, pursuant to a contract between her and either the Ministry or C&CDHB through the agency of the full-time carer.

Ms Lowe's circumstances

12 Ms Lowe has a long history in home support work. She was employed by the Children, Young Persons and Their Families Service as a Home Support Worker, and cared for an individual having psychiatric disabilities. She also worked for Wellink, a division of Richmond Services Limited, teaching people living skills with regard to supported housing. She managed a team of Home Support Workers through the Kapiti Women's Centre for two years. Since 1994, she has from time to time undertaken Carer Support work paid for by the Ministry. All of the people she has cared for in this way were aged over age 65.

13 Evidence was provided to the Court regarding the four clients referred to in the agreed summary of facts. Records were able to be produced in respect of three of those, Mr Keith Taylor, Mr George Sanderson and Mr Jack De Bruin. Ms Lowe was paid by the Ministry in respect of some of the relief care she provided; for example, in the case of Mr Taylor. In other instances the Ministry paid her on behalf of C&CDHB, for example in...