The father and full-time caregiver of a severely disabled woman has won his case in the Employment Court arguing that the Ministry of Health, and not his own daughter, is his employer.
The father, Peter Humphreys, was challenging the ‘Funded Family Care Model’, which sees people needing care considered the employers of those providing the care, even if they don’t have the capacity to carry out legal obligations as the employer.
Key to the case were issues like the minimum wage for time worked, the health and safety obligations of the employer, and who directs the work.
The Employment Court declared that Mr Humphreys is in fact employed by the ministry as a homeworker, and that his daughter could not have ever been his employer.
This means that the ministry has a range of obligations and liabilities, including to “remunerate Mr Humphreys appropriately for his work and in respect of health and safety,” the judgment reads.
Assistant National Secretary Rachel Mackintosh says the judgment is a great outcome.
“E tū congratulates the Humphreys family on their victory and stands with all people with disabilities and their caregivers as they fight for a fair deal.
“Families in the same situation as the Humphreys have faced ongoing discrimination on pay and conditions from the parts of government which fund vital care work. Often, a family member acting as full-time caregiver actually saves our health system a lot of money, because it lessens the need for other and more expensive service providers.
“For too long, the Ministry of Health has skirted their obligations as the employer, using a model that describes the person needing care as the nominal employer, even when they do not fund or direct the work in any way.
“This judgment challenges that way of thinking, and it’s a very good step.”
Rachel says that the relationship between funders, clients, and workers creates problems across many areas of employment in Aotearoa.
“The case has similarities with Prasad v LSG Sky Chefs, where E tū members successfully argued that their labour hire arrangement did not permit LSG Sky Chefs to dodge their responsibilities as the real employer.
“We see similar issues across sectors that use the contracting model, such as cleaning and security.
“The ‘funder’ is often a large organisation such as a corporate or even a government department, but they have a hands-off approach to the affected workers because of these ‘triangular’ employment arrangements.
“E tū continues to campaign for meaningful solutions to unfair contracting, by supporting legal actions, organising vulnerable workforces, and campaigning for minimum standards to be upheld through mechanisms like Fair Pay Agreements and social procurement.”