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Support Workers (Pay Equity) Settlements Amendment Bill (Consistent) (Sections 14, 27(3)) [2019] NZBORARp 13 (2 April 2019)
Last Updated: 21 May 2019
2 April 2019
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Support Workers (Pay
Equity) Settlements Amendment Bill
Purpose
- We
have considered whether the Support Workers (Pay Equity) Settlements Amendment
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
in relation to the latest version of the Bill
(PCO 21182/12.2). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
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 amends the Care and Support Workers (Pay Equity) Settlement Act 2017
(“the principal Act”) to include vocational
and disability support
workers and mental health and addiction support workers. The Bill gives effect
to elements of two settlement
agreements between the Crown, the relevant
employers and unions. The agreements are intended to address historical
inequities and
achieve pay equity across the support services sector.
- The
Bill provides vocational and disability support workers and mental health and
addiction support workers with the same rights as
care and support workers under
the principal Act. In particular, they will receive access to training and
agreed pay rates back-
dated to 1 July 2017. Employers will receive additional
funding to offset the additional costs imposed by the Bill.
- The
Bill extinguishes any current pay equity claims and bars future claims by these
workers until June 2022. The Bill also changes
the name of the principal Act
(resulting in consequential amendments to the Employment Relations Act 2000) and
makes other amendments
in order to bring vocational and disability support
workers and mental health and addiction support workers under the scheme of the
principal Act.
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 amends section 19 of the principal Act to compel employers of vocational and
disability support workers and mental health
and addiction support workers to
provide certain information to the funder upon request. 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 2000.
- 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.
- The
same limit was discussed in the Bill of Rights Act advice for the principal Act
which concluded that any limits to the freedom
of expression imposed by the Bill
are justified under s 5 of the Bill of Rights
Act.2
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 by, the
Crown, and to have those
proceedings heard, according to law, in the same way as civil proceedings
between individuals.
- Clause
10 of the Bill extinguishes existing claims and bars future claims by vocational
and disability support workers and mental
health and addiction support workers
under the Equal Pay Act 1972, until 30 June 2022.
- The
principal Act also extinguished claims and barred future claims by care and
support workers under the Equal Pay Act. The Bill
of Rights Act advice for the
principal Act concluded that s 27(3) did not appear to be engaged because the
Bill did not extinguish
claims against the Crown per se.
- To
the extent that claims referred to in the principal Act could be considered to
be claims against the Crown (because the Crown funds
the employers), the advice
noted 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. Section 27(3)
cannot restrict the power of the legislature to determine what substantive
rights the Crown is to have.3 The advice concluded that
even if s 27(3) were engaged, the limit was reasonable and demonstrably
justified under s 5 of the Bill
of Rights Act.4
- As
clause 10 is similar to s 8 of the principal Act, we find that the same
arguments in the previous Bill of Rights Act advice apply
in this case. Like the
principal Act, the Bill gives effect to two negotiated settlements, the purpose
of which are to provide statutory
certainty of employer obligations and employee
rights. The Bill extinguishes current
1 RJR MacDonald v Attorney-General of
Canada (1995) 127 DLR (4th) 1.
2 Ministry of Justice Legal Advice –
Consistency with the New Zealand Bill of Rights Act 1990: Care and Support
Worker (Pay Equity) Settlement Bill (17 May 2017).
3 Westco Lagan Ltd v Attorney-General [2001]
1 NZLR (HC) at 55.
4 Ministry of Justice, above n 2
proceedings and bars future pay equity claims by providing for a
forward-looking agreed structure of pay rates for employees over
a 5-year period
and additional funding for employers to offset additional costs.
- 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. Section 27(3) does not appear to be engaged,
however if it is, it is a reasonable and justifiable
limit in terms of s 5 of
the Bill of Rights Act.
- 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
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