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Minimum Wage and Remuneration Amendment Bill (Consistent) (Sections 6, 19) [2006] NZBORARp 31 (16 August 2006)
Last Updated: 11 January 2019
Minimum Wage and Remuneration Amendment Bill
16 August 2006 Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: MINIMUM WAGE AND
REMUNERATION AMENDMENT BILL
- We
have considered the Minimum Wage and Remuneration Amendment Bill (‘the
Bill’), a Member’s Bill in the name of
Darien Fenton MP, for
consistency with the New Zealand Bill of Rights Act 1990. The Bill was
introduced to the House of Representatives
on 27 July 2006 and is currently
awaiting its first reading. The next Members’ Day is scheduled for 23
August 2006.
- We
have concluded that the Bill appears to be consistent with the New Zealand Bill
of Rights Act 1990 (the "Bill of Rights Act").
- The
purpose of the Bill is to amend the Minimum Wage Act 1983 in order to extend its
provisions to apply to payments under a contract
for services that are
remunerated at below the minimum wage. Currently certain types of work, such as
pamphlet deliveries, are not
subject to any minimum wage requirements because
remuneration is paid under a contract for services. The Bill provides for such
contractors
to be paid not less than a minimum rate, equivalent to the minimum
wage.
- The
Bill proposes to amend the Minimum Wage Act 1983 to:
- change its name
into Minimum Wage and Remuneration Act1983;
- include the
following definition: ‘remuneration includes any payment made under a
contract for services’;
- introduce a
regulatory power for the Governor-General to prescribe the minimum rates of
remuneration payable to persons working under
a contract for services.
Regulations made under this new power may define minimum rates of remuneration
by reference to the age of
the person performing the services or by piecework.
Minimum rates of remuneration may be prescribed as a monetary amount or as a
percentage of any other minimum rate of remuneration prescribed under this new
power;
- entitle every
person in respect of whom a minimum rate of remuneration has been prescribed
under the Act to receive payment for services
at not less than that minimum
rate, despite anything to the contrary in any enactment, agreement, or contract
for services;
- extend the
penalty provision in section 10 of the Minimum Wage Act 1983 from every person
who makes default in the full payment of
any wages to every person that fails to
fully pay the remuneration payable by that person;
- extend the
application of the Employment Relations Act 2000, with the necessary
modifications, to the recovery of minimum remuneration
as if the minimum
remuneration were minimum wages;
- Clause
7 of the Bill proposes to insert a section 4A(1) that provides for a power of
the Governor-General to prescribe minimum rates
of remuneration payable to any
person working under a contract for services. According to the proposed section
4A(2), regulations
made under this new regulatory power may define minimum rates
of remuneration, inter alia, by reference to the age of the person
performing the services. We are of the view that this provision does not
authorise the Governor-General
to make orders that discriminate on the ground of
age in a way that is prohibited by the Bill of Rights Act or the Human Rights
Act
1993.
- Section
6 of the Bill of Rights Act requires that wherever an enactment can be given a
meaning that is consistent with the rights
and freedoms contained in the Bill of
Rights Act, that meaning must be preferred to any other meaning. Therefore,
section 4A(2) of
the Bill would be interpreted as only authorising the making of
orders that are consistent with 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 Darien Fenton MP, if you agree.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
|
Margaret Dugdale
Policy Manager
Bill of Rights/Human Rights Team
|
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 Minimum Wage and Remuneration
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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