Employment rights may often be human rights. They are always human rights in a literal sense. There is a human involved, often with a family or dependents that may be reliant on them. Or the human is reliant on that worker for their support, providing them with a home, with food, with the best education and the best health care that they can.
This governments latest move to strip away employments rights from some of New Zealand’s most vulnerable humans may be the cruellest cut to date. The Minister for Disability Issues, Louise Upston, announced last week a bill that would reverse the recent Supreme Court decision to recognise some family carers as employees.
Christine Fleming and Peter Humphries fought their way through New Zealand’s employment jurisdictions to the Supreme Court, which late last year confirmed that they were employees of the Crown. Ms Fleming and Mr Humphrys have courageously taken on the task of the full-time care for their respective adult disabled children. Ms Fleming’s son Justin was born in 1981. He is physically disabled as a result of a chromosomal condition. The principal consequence of his condition is physical frailty. This has affected his ability to take care of himself. Justin also has a moderate intellectual disability. Mr Humphrys’ daughter Sian was born in 1988. She was diagnosed with a congenital condition as a young child. Sian does not have verbal language and, while not physically frail, needs constant care. Amongst other matters, she needs someone to accompany her outside and has no road safety awareness.
It had been government policy that funding for disability support services could not be used to pay for care provided to disabled people by family members with whom they lived. In 2012 the Court of Appeal in Ministry of Health v Atkinson found that this policy was discriminatory.
Ms Fleming and Mr Humphries each brought proceedings in the Employment Court claiming that, in their full-time care for their children, they were “homeworkers” of the Ministry. Section 6 of the Employment Relations Act makes it clear that the definition of “employee” includes a “homeworker”. A “homeworker” is in turn defined as “a person who is engaged or employed by any other person to do work for that other person” in a home.
The Employment Court found that Ms Fleming and Mr Humphrys were both homeworkers. That Court also concluded that the correct calculation of wages for Ms Fleming should reflect her hours of work, applying the test for what constitutes work as set out by the Court of Appeal in Idea Services Ltd v Dickson. That case concluded that Mr Dickson was “working” for the purposes of the Minimum Wage Act when employed on a “sleepover” in a community home.
The Supreme Court unanimously agreed and declared that Ms Fleming and Mr Humphreys were employees late last year. The Supreme Court noted that the definition of a “homeworker” was introduced to provide protection for vulnerable workers working from home and was consistent with the international Convention on the Rights of Persons with Disabilities.
In introducing the Disabilities Support Services Bill, Minister Upston makes it clear that Disability Support Services (DSS) that the Crown is not to be the employer of family carers. The explanatory note for the Bill says that the proposed legislation would reduce the Crown's exposure to fiscal and litigation risks by:
- extinguishing existing claims already filed (other than those of Ms Fleming and Mr Humphries)
- barring claims regarding the employment status of paid family carers, disabled people, and people acting on behalf of disabled people
- baring claims of discrimination related to paid family carers
- Noting that while section 27 of the New Zealand Bill of Rights Act affirms a person’s right to justice, the litigation bar is necessary to restore policy-setting responsibility to the Crown, and ensure that decisions about publicly funded care and support by family members are made within the framework set by Parliament.
Without revisiting this government’s list of stripping away employment rights, last year this government in the process of saving “billions of dollars” cancelled 33 claims from female-dominated workforces which had been seeking to prove they were underpaid in comparison to similar male-dominated industries under what had been an acceptance in the recent past from both major parties that pay equity issues are real and worth addressing. The Government also significantly raised the threshold for future claims.
What Ms Fleming and Mr Humphries have effectively been fighting for is to ensure that they are paid at the rate of the minimum wage for the work they provide their children personally, rather than the cost to the Crown of putting those children into the care of the Crown (which no doubt would be at a much higher cost - providing carers, providing accommodation, providing minimum access to education and health care etc) and in the process limiting those disabled children with access to the loving care of their parents and whanau.
While Minister Upston has said that she has “commissioned further work in this space and will be consulting on a package for carers", the bill is intended to strip away employment rights, human rights and access to justice in the name of cost cutting. As Nelson Mandela said "A nation should not be judged by how it treats its highest citizens, but its lowest ones."Read more...