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Home and Community Support (Payment for Travel Between Clients) Settlement Bill (Consistent) (Section 27(3)) [2015] NZBORARp 43 (9 September 2015)

Last Updated: 6 February 2019

Home and Community Support (Payment for Travel Between Clients) Settlement Bill

9 September 2015

Hon Christopher Finlayson QC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Home and Community Support (Payment for Travel Between Clients) Settlement Bill

Purpose

1. We have considered whether the Home and Community Support (Payment for Travel Between Clients) Settlement Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).
   
2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with s 27(3) (right to bring civil proceedings against the Crown). Our analysis is set out below.
   

The Bill

3. The Bill arises from proceedings in the Employment Relations Authority, which argued that time spent by employees travelling between clients receiving home based care and support is work for the purposes of the Minimum Wage Act 1983.
   
4. The purpose of the Bill is to implement a settlement between parties to those proceedings, the Crown, District Health Boards, providers of home and community-based care and support (‘HCS’) services and certain unions (on behalf of HCS employees). The specific objectives of the legislation are to ensure that:
   
   1. HCS employees will be compensated in accordance with the Bill, at the minimum wage for qualifying travel time from 1 March 2016;
   2. HCS employees will be compensated, at no less than 50 cents per kilometre for qualifying travel costs from 1 March 2016;
   100. any claims for payment for travel between clients under the Minimum Wage Act lodged but not determined before the commencement of the Bill and any potential claims for the same are extinguished; and
   4. any prior agreement between an HCS employee and HCS employer relating to travel by HCS employees would be unenforceable and the new agreement for payment for travel between clients’ time and cost would be as detailed in the Bill.
      
5. The Bill provides a mechanism to ensure that no HCS employee is financially disadvantaged by the prior agreements becoming unenforceable. Clause 10 requires an HCS employer to compensate an HCS employee if the employee’s entitlement for travel between

clients after the commencement of the Bill is less than the employee’s entitlement would

have been.

6. Clause 24 clarifies, for the avoidance of doubt, that the Bill does not affect the rights, duties, or obligations of any employer or employee to whom the Bill does not apply.
   

Consistency of the Bill with the Bill of Rights Act

Section 27(3) – Right to bring civil proceedings against the Crown

7. Section 27(3) provides that “[e]very person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between

individuals.”

8. Clause 6 of the Bill provides that claims or potential claims by or on behalf of an HCS employee for wages payable under the Minimum Wage Act for travel between clients prior to the commencement of the Bill cannot be pursued and must be treated as if they had been withdrawn or are incapable of being lodged.
   
9. The Crown has no direct employment responsibility for home care workers and is not a party to the existing proceedings before the Employment Relations Authority. Clause 6(3), however, explicitly prevents HCS employees from naming, joining, or seeking any remedy or relief from the Crown in any civil proceedings relating to liability for wages relating to travel between clients by the employee before the commencement of the Bill.
   
10. We consider that clause 6(3) limits the right to bring civil proceedings against the Crown but that limit is justified under section 5 of the Bill of Rights Act. This is because:
    
    1. the Bill serves an important objective – it seeks to implement an enduring, affordable and sustainable solution allowing HCS employees to be compensated for their travel time;
    2. there is a rational connection to the objective – eliminating the risk of future claims for wages payable under the Minimum Wage Act will help to ensure the integrity of the settlement;
    100. the right is minimally limited – clause 7 provides that nothing in clause 6 limits or prevents an HCS employee from making a claim in relation to a term of their employment agreement that required their employer to pay for travel between clients before the commencement of the Bill; and
    4. the limitation is in due proportion to the importance of the objective.
       

Conclusion

11. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Disclaimer

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 Home and Community Support (Payment for Travel Between Clients) Settlement 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.