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Care and Support Worker (Pay Equity) Settlement Bill (Consistent) (Sections 14, 27(3)) [2017] NZBORARp 24 (17 May 2017)
Last Updated: 6 January 2019
17 May 2017
Hon Christopher Finlayson QC, Attorney-General
LEGAL ADVICE
LPA 01 01 21
Consistency with the New Zealand Bill of Rights Act 1990: Care and Support
Worker (Pay Equity) Settlement Bill
Purpose
- We
have considered whether the Care and Support Worker (Pay Equity) 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’).
- We
have not yet received a final version of the Bill. This advice has been prepared
with the latest version of the Bill (PCO 20367/3.0).
We will provide you with
further advice if the final version of the Bill includes changes that affect the
conclusions of this advice.
- 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 14 (freedom of expression)
and s 27(3) (right to bring civil
proceedings against the Crown). Our analysis
is set out below.
The Bill
- The
Bill implements a settlement agreement relating to pay equity issues for care
and support workers. The agreement was signed by,
and on behalf of, the Crown by
the Ministry of Health, the Accident Compensation Corporation
(‘ACC’), District Health
Boards (‘DHBs’) and various
unions representing care and support workers. It also applies the terms of that
agreement
to employers and care and support workers who were not party to the
agreement. The Bill:
- extinguishes
existing claims and bars future claims by care and support workers under the
Equal Pay Act 1972
- provides
minimum wage rates payable by employers to care and support workers,
and
- provides
for funding to be paid by the Ministry of Health, DHBs and ACC to employers
towards the cost of employers’ obligations
under the
Bill.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms the right to freedom of expression,
including the freedom to seek, receive, and impart
information and opinions of
any kind in any
form. The right has also been interpreted as
including the right not to be compelled to say certain things or to provide
certain information.1
- Clause
19 of the Bill compels the provision of certain information. Employers must keep
records for each employee of the qualifications
the employee holds and the
length of time they have been employed by the employer. The employer must
provide these to a funder upon
request, along with the employee’s wages
and time records kept by the employer under the Employment Relations Act 2000.
If
an employer fails to comply with these requirements they are liable to a
penalty imposed by the Employment Relations Authority under
the Employment
Relations Act.
- The
penalties associated with failure to disclose the information introduce an
element of compulsion that prima facie limits the right to freedom of
expression affirmed in s 14 of the Bill of Rights Act.
- Where
a provision is found to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is justifiable in terms of s 5 of that Act.
- We
consider that the limitation is justified under s 5 of the Bill of Rights Act
because:
- the
objective of giving effect to the pay equity settlement agreement for care and
support workers is sufficiently important
- requiring
employers to provide the specified information is rationally connected to that
objective
- the
information required is factual and impairs the right no more than is reasonably
necessary to achieve the objective, and
- the
limits are in due proportion to the importance of the objective.
- For
these reasons, we conclude that any limits to the freedom of expression imposed
by the Bill are justified under s 5 of the Bill
of Rights
Act.
Section 27(3) – Right to bring civil proceedings against the Crown
- Section
27(3) provides that every 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.
- Clause
7 of the Bill extinguishes existing claims and bars future claims by care and
support workers under the Equal Pay Act. The
question then arises as to whether
s 27(3) is engaged, as the Bill aims to give effect to a settlement reached with
the Crown, DHBs
and ACC that, effectively, deems existing proceedings to have
been withdrawn.
- Section
27(3) does not appear to be engaged because the Bill does not extinguish claims
against the Crown per se, as the claims referred to cover claims brought
against "employers" as defined in the Bill (being essentially those funded by
the Ministry
of
1 RJR MacDonald v Attorney-General of
Canada (1995) 127 DLR (4th) 1.
Health, DHBs or ACC). DHBs and ACC are Crown entities, which are not part of
the Crown under s 15 of the Crown Entities Act 2004.
- To
the extent that claims referred to in the Bill could be considered to be claims
against the Crown (because the Crown funds the
employers), then it is worth
noting that s 27(3) of the Bill of Rights Act is directed at procedural matters
in litigation, not the
substantive content of rights and duties. This was made
clear by McGechan J in Westco Lagan Ltd v
Attorney-General:2
“Section
27(3) is a clearly procedural provision... aimed at procedures which govern the
assertion or denial of rights in the course
of Court or equivalent proceedings;
and is not aimed at the creation of other rights in themselves... it cannot
restrict the power
of the legislature to determine what substantive rights the
Crown is to have.”
- In
Westco, the plaintiffs sought to restrain the Clerk of the House of
Representatives from presenting a Bill to the Governor-General for assent.
The
Bill would have cancelled the West Coast Forest Accord and annulled any
outstanding Crown obligations arising under that Accord,
without the payment of
compensation to anyone affected by the Accord’s cancellation. The decision
appears to be the most recent3 and on point, and
supports the view that s 27(3) is not engaged on this occasion.
- We
have not found it necessary to form a concluded view on this interpretational
issue as, even if s 27(3) is engaged, we consider
the limit is a reasonable and
demonstrably justified limit in terms of s 5 of the Bill of Rights Act. The Bill
gives effect to a
negotiated settlement, the express purposes of which
include:
- to
extinguish the proceedings (and any associated awards of compensation) and the
right of employees to make future pay equity claims,
by providing for a forward-
looking agreed structure of pay rates for employees over a period of 5 years,
and
- to
provide for statutory certainty of employer obligations and employee rights, the
lawful payment of funding, and related matters
through
legislation.4
- As
the Bill provides a framework for future claims to be made, the right is
impaired no more than reasonably necessary and any limitation
is in due
proportion to the objective. We therefore consider that the Bill appears to be
consistent with the right affirmed in
s 27(3) of the Bill of Rights
Act.
Conclusion
- 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
2 Westco Lagan Ltd v
Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC) at 55.
3 Although it has since been cited with approval by
Kos J in New Health New Zealand Inc v Attorney-General
[2015] NZHC 2138; [2015] NZAR 1513.
4Clauses 1(c) and (d) of the Care and Support (Pay
Equity) Settlement Agreement.
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