The Changing Nature of Work15 December 2021
A recent Employment Court judgment continues a developing trend of changes in what constitutes work and the time during which employees are entitled to be paid (2021-NZEmpC-217-Humphreys v Humphreys and Ministry of Health).
Mr Humphreys looks after his severely disabled daughter and has done so for many years. Mr Humphreys sought to clarify his employment status – whether he can be employed by his severely disabled daughter (as contended by the Ministry of Health) or whether the Ministry is his employer; and if so, what obligations flow from any such employment relationship.
Sian Humphreys is a 33-year-old woman who lives with her parents. She was diagnosed with Angelman syndrome when she was three years old. She has been assessed as having very high disability needs, and her lifelong disability needs mean she cannot be left unsupervised.
Sian’s father is the plaintiff, Mr Humphreys, and he is Sian’s primary carer. Her mother, Ms Jimenez, works full-time out of the house in paid employment, but otherwise provides care for Sian.
From August 2014 Sian was in receipt of funding under what was known as the Funded Family Care Model. This was designed and implemented by the Ministry. In order to access funding under this model, the Ministry required an application to be made, supported by a needs assessment completed by an agent of the Ministry of Health in accordance with guidelines issued by the Ministry. Sian’s needs assessment was completed by Disability Support Link.
Funded Family Care was disbanded late last year, and Sian moved to a different model, which was also designed and implemented by the Ministry, called Individualised Funding.
Hosts are contracted by the Ministry of Health to support people in using Individualised Funding. The disabled person or their agent is responsible for all aspects of employment, including Accident Compensation levies, employment contracts, leave and tax requirements and KiwiSaver; budget management and the quality of the services provided.
Payment is made by the Ministry of Health to the host who then on-pays to the family caregiver on the provision of time sheets.
In summary, the Ministry of Health said that it was and is simply the funder, and that the mechanism by which funding has been made available under Funded Family Care and Individualised Funding did not create “richer, deeper….employment relationships”. Rather, the mechanisms have been designed to keep the level of control exerted by the Ministry to a minimum and to create distance between it and the provision of care to the disabled person.
Chief Judge Christina Inglis determined that Mr Humphreys has been engaged by the Ministry of Health as a homeworker to provide care for Sian. That means that he is an employee of the Ministry for the purposes of the Employment Relations Act 2000 and is entitled to be appropriately remunerated for the work he has provided as an employee. It also follows that, as employer, the Ministry owes broader obligations to him, including as to health and safety as well as the impact or otherwise of various statutory provisions which were in place during the relevant period in terms of the calculation of any lost remuneration. However, the nature and scope of these matters did not fall for determination at this stage as the determination was solely focused on Mr Humphrey’s employment status.
What is “the work for which he is entitled to be paid”?
The Crown asks that if a declaration of employment status is made some clarity be given as to what work Mr Humphreys is entitled to be remunerated for and how that is to be assessed. The following general observations were made by Chief Judge Christina Inglis, even though any assessment of the work for which Mr Humphreys is to be remunerated was not formally before the Court and would need to be decided by way of fresh proceedings if they cannot otherwise be agreed.
Chief Judge Christina Inglis referenced Idea Services v Dickson, a well-established test for what constitutes work, which requires the Court, in assessing whether an employee is working at any particular time, to balance three factors:
- Constraints on the employee;
- Nature and extent of the employee’s responsibilities; and
- Benefit to the employer
Since Idea Services, a number of cases arising in a range of different factual contexts have dealt with issues as to what constitutes work which is to be remunerated.
- Doctors at home and on call – time spent on call was found to be work;
- Freezing workers getting into and out of their safety gear before and after joining the chain – time spent “donning and doffing” was found to be work;
- Retail workers attending pre-work ‘voluntary’ meetings – time spent was found to be work;
- Boarding school matron sleeping at boarding school and on-call to attend to students – held to be working while asleep; and
- A community service worker sleeping at a community home so he could be “on-hand” to deal with any issues that arose during the night – held to be working while asleep.
The Crown was concerned that Mr Humphreys might be assessed as working 24 hours a day/seven days a week based on an application of the Court of Appeal’s Idea Services test. Mr Cranney for the applicant, said he wasn’t advancing a submission that a family caregiver should be paid for working 24 hours a day. However, Chief Judge Inglis said that was beside the point, saying the Crown’s concern cannot, as a matter of logic or principle, require the application of a different approach. If Mr Humphreys is working 24 hours a day/seven days a week/356 days a year as an employee he is entitled to be appropriately remunerated for that. She said in any event, the Crown’s objection puts the cart before the horse - the correct assessment of the work Mr Humphreys has done and which he is to be remunerated for can only be made after a full factual analysis has been undertaken.
Chief Judge Inglis outlined that these judgements reflect two important things:
- First, a developing understanding of what constitutes work and the time during which employees are entitled to be remunerated. In this regard there has been a discernible move away from a perception that a worker is only working when they are doing something regarded by the employer as active and productive.
- Second, the case law reflects the fact that work and how work is done are rapidly evolving.
It is now well accepted that a worker’s time has a value and, where an employer wishes to have the benefit of that time, it comes at a cost.
This case may well have wide ramifications requiring Government intervention, just as in Idea Services. The costs of back-paying people like Mr Humphreys for many years will be significant and wide reaching.
You can access the full judgement here: 2021-NZEmpC-217-Humphreys-v-Humphreys-MOH-Judgment.pdf (justice.govt.nz)