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Janet Lowe's relief care minimum wage appeal reaches Supreme Court

Friday 10th February 2017

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The Supreme Court today heard a former relief caregiver's appeal to be paid minimum wage as opposed to a flat fee, arguing there was a contract between relief carers and district health boards which meant they should be treated as workers and protected by employment law.

About 30,000 mostly female relief workers have been paid $75 for a 24-hour shift to give full-time carers a break over the years, with Janet Lowe working as a relief carer for 25 years. The Employment Court held that Lowe was a homeworker under the Employment Relations Act, meaning she was an employee and entitled to the minimum wage, holiday pay and other protections under the law. The Court of Appeal overturned that decision last June.

Supreme Court chief justice Sian Elias told Lowe's lawyer Peter Cranney he had to convince the bench that relief carers were doing work for district health boards. Cranney said relief carers are engaged and paid by DHBs across the country, and the "best analysis" is that there is a direct relationship between the relief worker and the DHB, with the primary carer organising that relationship.

Cranney cited a 1997 finding by the Court of Appeal, Cashman v Central Regional Health Authority, which he said was indistinguishable from the case at hand. That decision held that the definition of a homeworker included home care workers who had signed contracts as independent contractors.

Lowe's lawyer said he disagreed with the appeal court's finding in the current case that there was no contract between the relief workers and the DHB, saying the contract was set up by the invoices sent from the carers to the DHBs. Engagement is a broader concept under the law than employment, Cranney said, which is why Lowe's legal team chose that strategy.

The bench quizzed Joanna Holden, the lawyer for the Ministry of Health and the Capital & Coast District Health Board, over a brochure given to carers directing relief carers to invoice the DHB for care work, or primary carers to invoice for reimbursement if they had already paid the relief worker themselves. Holden said payments from the DHB were made to the primary carer, not to relief carers, but Justice Susan Glazebrook said it was "absolutely clear that it's not."

"There's no way, as a responsible funder, that you'd want the money going to the primary caregiver and then not handed on to the support worker. It's a matter of election for the primary carer as to whether they pay the relief carer and then get a reimbursement," Justice Glazebrook said. "If the relief carer went to court and said the DHB promised to pay me within 10 days and they haven't, and I want them to do so, surely the court would say pay up."

Holden said she didn't accept that the DHB had promised to pay relief care workers if they weren't paid directly by the primary carers, and said the DHB would be making payments on behalf of the primary carer if they paid the relief workers.

The ministry's lawyer said there was no contract between the relief workers and the DHB as there was no offer and acceptance at the outset of the arrangement, but Justice Glazebrook said the brochure constituted an offer. 

The one-day hearing is continuing.

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