Former care worker Janet Lowe loses minimum wage appeal

Chief Justice Dame Sian Elias Picture / NZPA.

The Supreme Court has sided with the Ministry of Health and Capital & Coast district health board in a split decision over whether a former relief caregiver should have been paid minimum wage instead of a flat fee.

Justices Mark O'Regan, Terrence Arnold and William Young today rejected Janet Lowe's appeal that relief caregivers are employees and as such entitled to the minimum wage, rather than a flat fee.

The case was being closely watched given about 30,000 largely female relief workers were paid $75 for a 24-hour shift to give full-time carers a break over the years.

Justices O'Regan and Arnold found that the engagement by the ministry and DHB was with the primary caregivers rather than the relief workers, and couldn't be extended "to the extent that it applies in circumstances where the person said to be the hirer is not even aware of an engagement having taken place until after the initial period of care has concluded".

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.

"We agree with the Court of Appeal that it is not possible to argue that there is no engagement until the second or later period of care occurs nor do we see it as possible to find that carers who provide service with some regularity such as Ms Lowe are engaged, whereas those who provide it on a more intermittent basis are not," Justices O'Regan and Arnold said.

"The key aspect of engagement, being the selection of the person who is to be engaged, is clearly undertaken by the primary carer and the work that is undertaken by the relief carer is undertaken for the primary carer without reference to the ministry or the DHB."

Justice Young agreed for slightly different reasons in that the primary carers engaged the respite carers and that the ministry provided a subsidy.

"On this basis, the 'trade or business' of the ministry does not encompass the provision of respite care and the 'work' carried out by respite carers is not 'for' the ministry," he said.

Chief Justice Sian Elias and Justice Susan Glazebrook formed a different view and would have allowed the appeal because "the ministry and the DHB clearly promise in the claim form to pay if the full-time carer does not," they said in their opinion.

Finally, that it may be inconvenient or expensive to give carers like Ms Lowe the rights to which she is entitled is not a reason to read down the definition of homeworker, they said.