Relief caregivers lose ‘fair pay’ fight

Relief caregivers who say their pay works out at $3 an hour have lost a fight for minimum wages.

In a decision that split Supreme Court judges, the majority found against Kapiti woman Janet Lowe, who had led the case with the backing of E tu union.

‘‘I don’t know what the matter is. It’s unfair, unjust. It affects thousands of people,’’ Lowe said. ’’Everyone has been getting pay parity and, for some reason, they think we should not.’’

The decision is believed to affect about 35,000 people who work as relief caregivers, most of them women, to help unpaid caregivers looking after their elderly and disabled family members.

The Ministry of Health and Capital & Coast District Health Board said they had not engaged the caregivers. They paid a ‘‘subsidy’’ to have family members not living with the cared-for person, or friends and neighbours to be informal relief caregivers, outside umbrella care organisations.

The Supreme Court was told that workers were selected by the primary caregiver and often had no contact with the ministry or district health board, until a claim for payment was made.

Pay for the work had been $3 a hour since the early 1990s, Lowe said previously. That meant about $75 if a relief caregiver worked a full 24 hours taking the place of the primary caregiver.

The judgment said that Lowe was paid just under $76 a day, which was more than eight hours but less than 24 hours. It was up to primary caregivers whether they topped up the payment, and there was no evidence about how often that happened.

The court noted the minimum wage for an adult worker was $15.75, or $126 for an eight-hour day.

Lowe won her case in the Employment Court, but that decision was overturned in the Court of Appeal. The appeal result was that Lowe and those like her were not deemed to be employees of either the Ministry of Health or district health boards.

Without being engaged as employees, the caregivers remained without basic employment rights, the Court of Appeal had found.

A majority of the Supreme Court upheld that decision, but the Chief Justice, Dame Sian Elias and Dame Susan Glazebrook would have decided that Lowe was employed, engaged or contracted by the ministry or the DHB, or that the primary carers were agents for those authorities.