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Employment Relations (Flexible Working Hours) Amendment Bill (Consistent) (Section 19(1)) [2005] NZBORARp 9 (5 April 2005)
Last Updated: 15 September 2020
Employment Relations (Flexible Working Hours) Amendment Bill
5 April 2005
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
Employment Relations (Flexible Working Hours) Amendment Bill
- We
have considered the Employment Relations (Flexible Working Hours) Amendment Bill
(the "Bill"), a Member’s Bill in the name
of Rod Donald MP, for
consistency with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights
Act"). The Bill was introduced
to the House of Representatives on Thursday, 17
March 2005 and is currently awaiting its First Reading. It is our understanding
that
the next Members’ Day is scheduled for Wednesday, 6 April 2005.
- We
have concluded that the Bill appears to be consistent with the Bill of Rights
Act. In reaching this conclusion, we considered two
potential issues of
inconsistency with section 19(1) (right to be free from discrimination) of the
Bill of Rights Act, which can
both be justified in terms of section 5 of that
Act.
PURPOSE
- The
Bill seeks to amend the Employment Relations Act 2000 to provide employees with
young and dependent children who have worked with
the same employer for at least
six months ("qualifying employees") the right to request part-time and flexible
hours. The Bill sets
out a framework in which qualifying employees can negotiate
reduced working hours. Under this framework, an employer must acknowledge
that a
qualifying employee has the right to request flexible working arrangements and
deal with such requests as soon as possible.
However, the employer may refuse
the request when it cannot reasonably be accommodated because of:
- the inability to
re-organise work among existing staff or recruit additional staff
- the detrimental
impact on quality or performance,
- the
insufficiency of work during the periods the employee proposes to work; or
- structural
changes.
- The
Bill therefore can be considered a remedial measure to increase the employment
rate for parents of young and dependent children
by offering them expanded
flexible working opportunities and assist parents to balance work and family
commitments.
ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS
ACT
Section 19: right to be free from discrimination
- We
have considered whether the Bill could give rise to issues of discrimination
under section 19 of the Bill of Rights Act. Section
19(1) provides the
right to freedom from discrimination on the grounds of discrimination set out in
the Human Rights Act 1993 (the "Human Rights
Act"). These grounds include,
inter alia, age and family status.
- In
our view, taking account of the various domestic and overseas judicial
pronouncements as to the meaning of discrimination, the
key questions in
assessing whether discrimination under section 19 exists are:
- Does
the legislation draw a distinction based on one of the prohibited grounds of
discrimination? and if so,
- Does
the distinction involve disadvantage to one or more classes of
individuals?
- If
these questions are answered in the affirmative, we consider that the
legislation gives rise to a prima facie issue of "discrimination"
under section
19(1) of the Bill of Rights Act. Where this is the case, the legislation falls
to be justified under section 5 of that
Act.
Possible
Discrimination on Grounds of Family Status
- The
Bill, as outlined above, provides employees who have full-time care of a child
or children under 5 years; or full-time care of
a disabled child or children up
to and including 18 years with the right to change their working hours. It could
be argued that because
this right is not available to an employee who does not
have children, the Bill gives rise to a distinction on the grounds of family
status, which is defined in section 21 of the Human Rights Act as including
having responsibility for part-time care or full-time
care of children or other
dependants, and conversely not having responsibility for the care of children or
other dependants. Since
the right to change working hours is not available to an
employee who has full-time care of another third person, such as a dependent
spouse or parent, the Bill also gives rise to an intra-ground distinction based
on the status of a third person who is receiving
full-time care from the
employee.
- However,
we do not consider that this distinction involves disadvantage to one or more
classes of individuals. Firstly, we note that
the Bill focuses on the
difficulties faced by parents of young and dependent children staying in the
workforce. As noted in the Explanatory
Note:
- many parents
drop out of the labour market because they cannot find ways of combining paid
work and the demands of looking after young
children as well as those with a
disability;
- women –
who are often the main caregivers of young and dependent children – are
frequently burdened with the extra stress
from having to do both paid work and
domestic labour.
- The
Bill addresses these difficulties by providing qualifying employees the right to
request part-time and flexible hours. The Bill
does not affect the ability of
employees who do not have young or dependent children to negotiate the terms and
conditions of their
employment. The Employment Relations Act 2000 guarantees the
right of employees to seek whatever terms and conditions of employment
they
desire, including part-time and flexible hours. Employers are required to
consider such requests in good faith. In any case,
we note that the right
guaranteed to qualifying employees is not an absolute right to change working
hours, but more of a qualified
right. That is, rather than simply considering
the request in good faith, the employer has to grant the request unless one of
the
stated exceptions apply, which as set out in paragraph 3 are broadly
defined.
- Secondly,
there is a widely held view that parents have a social responsibility to care
for and raise their children. There is also
a legal obligation for parents to
care for and nurture their child or children during their formative years. A
similar legal obligation
is not placed upon a person who has no children or
whose spouse or parent needs full-time care. While there are a variety of early
childcare facilities available many parents will choose to care for their
children during their early years before they start formal
education. This is
often because early childcare facilities are in short supply, have limited
spaces available for very young children
and because fees are incurred for
accessing most early childcare services.
- This
is unlike aged care services where either the elderly parent will pay for the
care they receive or the state will cover the care
costs. There are also many
voluntary organisations that specifically provide services for the elderly.
Furthermore a dependent spouse
or parent will usually not require as much care
and nurturing as a child under the age of 5 and a disabled child up to and
including
18 years of age.
- For
these reasons we do not consider that the distinction that is made between
employees based on the full-time care they provide
to a third party can be
regarded as discriminatory, either in intent or effect.
Age
as a criterion for determining eligibility
- The
Bill uses the age of an employee’s young and dependent children as a
criterion for determining whether the employee is entitled
to request part-time
and flexible hours. The use of age for determining eligibility gives rise to
potential issues of discrimination
on the grounds of age. However, age is
defined under the Human Rights Act as referring to "any age commencing with the
age of 16
years" (section 21(1)(1)(i)). Consequently, the issue of age
discrimination only arises in respect of the ability of employees to
request
part-time and flexible hours to care for their disabled children (who are
defined as those up to and including 18 years of
age).
- The
effect of this aspect of the Bill is that parents of children aged over 18 years
are not guaranteed the right to change their
working hours. While the Bill draws
a distinction based on age, we do not consider that this gives rise to any
disadvantage for many
of same reasons set out above. This entitlement
concentrates on the difficulties faced by working parents of dependent children.
Although persons caring for their disabled adult offspring face certain
problems, the degree of difficulty associated with them staying
in the workforce
is not the same. There are many voluntary organisations that can assist these
persons by providing services for
their disabled offspring, most of whom will be
eligible to receive either an invalids benefit or sickness benefit from the
State.
Conclusion
- We
have concluded that the Bill does not appear to be inconsistent with the rights
and freedoms contained in the Bill of Rights Act.
- In
accordance with your instructions we attach a copy of this opinion for referral
to the Minister of Justice. Copies are also attached
for referral to the
Minister of Labour and Rod Donald MP, if you
agree.
Stuart Beresford Senior Legal Advisor Public Law Group
|
Jeff Orr Chief Legal Counsel
|
CC Minister of Justice Minister of Labour Rod Donald MP
|
|
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the
Employment Relations (Flexible Working Hours) Amendment Bill. It should not be
used or acted upon for any other
purpose. The advice does no more than assess
whether the Bill complies with the minimum guarantees contained in the New
Zealand Bill
of Rights Act. The release of this advice should not be taken to
indicate that the Attorney-General agrees with all aspects of it,
nor does its
release constitute a general waiver of legal professional privilege in respect
of this or any other matter. Whilst care
has been taken to ensure that this
document is an accurate reproduction of the advice provided to the
Attorney-General, neither the
Ministry of Justice nor the Crown Law Office
accepts any liability for any errors or omissions.
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