Ministry of Health v Lowe
| Jurisdiction | New Zealand |
| Judge | French J |
| Judgment Date | 01 August 2016 |
| Neutral Citation | [2016] NZCA 369 |
| Docket Number | CA169/2015 |
| Court | Court of Appeal |
| Date | 01 August 2016 |
[2016] NZCA 369
Harrison, Wild and French JJ
CA169/2015
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against the finding of the Employment Court which held that the respondent was a homeworker within the meaning of s5 Employment Relations Act 2000 (ERA), and so deemed to be an employee to whom obligations were owed under the Act and under other employee protection legislation, such as the Minimum Wage Act 1983 and the Holidays Act 2003 — the respondent provided relief care when full time carers took a break from caring for a person with a disability — the Ministry of Health and the District Health Board (DHB) funded the Carer Support Scheme — payment of carer support was through a shared payment agency — payment was made directly to the respondent in some instances and in others, the full time carer was paid and then paid the respondent — no tax was deducted from the payments — the respondent did not have any contact with the Ministry or the DHB or the payment — whether the respondent was a ‘homeworker’, as defined by s5 ERA, and therefore an employee of the first and/or second appellants.
J C Holden and M J R Conway for Appellants
P Cranney and A McInally for Respondent
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A We answer the question of law submitted for determination by this Court:
“Was the respondent a ‘homeworker’, as that term is defined by s 5 of the Employment Relations Act 2000, and therefore an employee of the first and second appellants, when she undertook support care pursuant to the Carer Support Scheme?”
No.
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B The appeal is allowed and the decision of the Employment Court quashed.
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C Costs are to lie where they fall.
REASONS OF THE COURT
(Given by French J)
Under the Employment Relations Act 2000 (the Act), the term “employee” includes a “homeworker”, 1 as defined by s 5. Section 5 states:
homeworker-
(a) means a person who is engaged, employed, or contracted by any other person (in the course of that other person's trade or business) to do work for that other person in a dwellinghouse (not being work on that dwellinghouse or fixtures, fittings, or furniture in it); and
(b) includes a person who is in substance so engaged, employed, or contracted even though the form of the contract between the parties is technically that of vendor and purchaser.
The question for determination in this appeal is whether the respondent, Ms Lowe, comes within this definition when undertaking relief care pursuant to a government programme known as the Carer Support Scheme. A Full Court of the Employment Court held Ms Lowe was a homeworker within the meaning of s 5 and so deemed to be an employee to whom obligations were owed under the Act and under other employee protection legislation, such as the Minimum Wage Act 1983 and the Holidays Act 2003. 2
The Ministry of Health (the Ministry) and the Capital and Coast District Health Board (the DHB), both of which fund the Carer Support Scheme, now appeal the decision.
The purpose of the Carer Support Scheme is to provide respite to persons who provide unpaid full time care to a person with a disability. Typically, the full
Eligibility for carer support is assessed by a Needs Assessment Co-ordination Organisation. It decides whether the disabled person is eligible for carer support, whether carer support is an appropriate support option for the disabled person and the full time carer, and also decides the extent of the eligibility in terms of number of days per year. The Needs Assessment Co-Ordination Organisation then informs the disabled person and the full time carer about their carer support allocation and how the system works. It also informs the Ministry how many days per year it has allocated to the full time carer for support.
Once the Ministry receives the notification, it forwards a carer support claim form to the full time carer. Funding is only available for the cost of a relief carer who is over 16 years' old, who is not a legal guardian, parent, spouse or partner of the disabled person and who does not live at the same address as the disabled person. Subject to those limits, the full time carer is then free to select a relief carer of their choice. After the relief care has been provided, the full time carer and the relief carer complete and sign the claim form for payment. The claim form must record the date(s) on which the relief care was provided and must state whether payment is to be made to the full time carer or the relief carer.
The claim form does not require the relief carer and full time carer to specify what work has been done. All that is required is confirmation the relief carer assisted the full time carer to take a break for the amount of time claimed.
Payment of carer support is through Sector Operations, a shared payment agency that administers payment on behalf of the Ministry and all District Health Boards. Generally, if the disabled person is under 65 years of age, the payment is funded by the Ministry and if over 65 years by the relevant District Health Board.
Over a number of years, the respondent, Ms Lowe, has provided intermittent relief care for at least three different families under the auspices of the Carer Support Scheme. Payment was made directly to Ms Lowe in some instances. In others the full time carer was paid and then paid Ms Lowe. No tax was deducted from the payments.
Ms Lowe did not have any contact with the Ministry or the DHB or Sector Operations, other than occasions when she contacted the Ministry over delay in receiving payment. She did not receive any training from either of the appellants and they did not monitor her performance.
In 2013 Ms Lowe issued proceedings in the Employment Relations Authority seeking a determination that she was engaged as a homeworker by “either the Ministry of Health or Capital and Coast District Health Board, either on their own behalf or in combination with other persons”. The Employment Relations Authority did not accept that contention. It held Ms Lowe did not come within the definition of homeworker. 3
Ms Lowe then filed proceedings in the Employment Court challenging the Authority's determination and seeking arrears of wages under the Minimum Wage Act and the Holidays Act against the appellants. It was and is common ground that if Ms Lowe is a homeworker, she would be entitled to the rights accorded employees under the Act as well as other employment legislation such as the Minimum Wage Act and the Holidays Act.
The Chief Judge of the Employment Court directed that the challenge raised significant issues and should be considered by a Full Court. 4
The Full Court took a different view to the Employment Relations Authority. The Court concluded that “having regard to these factors”, the substance of the arrangement was one of “engagement” within the meaning of s 5 of the Act. 5 It is not entirely clear what factors the Court was relying upon. However, we have proceeded on the assumption that it is all the matters referred to in the two paragraphs immediately preceding the Court's finding of engagement. Those matters are:
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• To discharge their statutory responsibilities, the Ministry or the DHB offered to pay carer support workers on certain terms and conditions.
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• The work would be of a particular kind — as defined by the needs assessment.
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• The work was in fact performed in a dwellinghouse.
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• Once the Ministry was assured the work had been undertaken the worker was paid.
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• Ms Lowe made a living in material part from the provision of homecare.
It is a noteworthy feature of the decision that the Court reserved the issue of remedies and did not expressly identify who had engaged Ms Lowe, only that she was engaged. 6 The definition of homeworker does, however, contain criteria that must be satisfied relating to the person doing the engaging. The Court also did not address why, if there was an engagement, it could not be by the full time carer in their own right or possibly as agent for the appellants. An agency analysis was advanced at the hearing in the Employment Court by an intervener. 7
We have assumed the Employment Court must be taken as having implicitly found the engagement was by either or both of the two appellants without any question of agency.
Dissatisfied with the outcome of the Employment Court decision, the Ministry and the DHB sought and were granted leave to appeal to this Court under s 214 of the Act on the following question of law: 8
Was the respondent a ‘homeworker’, as that term is defined by s 5 of the Employment Relations Act 2000, and therefore an employee of the first and/or second appellants, when she undertook support care pursuant to the Carer Support Scheme?
For convenience we again set out the statutory definition of “homeworker” :
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(a) means a person who is engaged, employed, or contracted by any other person (in the course of that other person's trade or business) to do work for that other person in a dwellinghouse (not being work on that dwellinghouse or fixtures, fittings, or furniture in it); and
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(b) includes a person who is in substance so engaged, employed, or contracted...
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