Fleming v Attorney-General

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 42/2024
[2024] NZSC 132

BETWEEN	CHRISTINE FLEMING Applicant
AND	ATTORNEY-GENERAL First Respondent JUSTIN JAMES COOTE Second Respondent

SC 44/2024
BETWEEN	PETER HUMPHREYS Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Winkelmann CJ, Ellen France and Kós JJ
Counsel:	P J Dale KC and M A Jeffries for Applicant in SC 42/2024 P Cranney for Applicant in SC 44/2024 S V McKechnie, B A Heenan and T J Bremner for First Respondent in SC 42/2024 and Respondent in SC 44/2024
Judgment:	4 October 2024

JUDGMENT OF THE COURT

A The application for leave to appeal by Ms Fleming is granted in part to the extent described below (Attorney‑General v Fleming [2024] NZCA 92).

BThe approved questions are whether the Court of Appeal was correct:

(i)to determine that Ms Fleming was not “engaged, employed or contracted” by the Ministry of Health | Manatū Hauora as a “homeworker” under s 5 of the Employment Relations Act 2000; and

(ii) as to the test for “work” when work is conducted by homeworkers who work overnight in their home.

C The application for leave to appeal by Mr Humphreys is granted (Attorney-General v Fleming [2024] NZCA 92).

D The approved question is whether the Court of Appeal was correct to determine that Mr Humphreys was not “engaged, employed or contracted” by the Ministry of Health | Manatū Hauora as a “homeworker” under s 5 of the Employment Relations Act 2000 for the period from August 2020 onwards when in receipt of funding under the Individualised Funding scheme.

E Counsel in both appeals are asked to address the matters set out at [1]–[2] below.

____________________________________________________________________

REASONS

In addressing the question of what constitutes engagement as a homeworker under s 5 of the Employment Relations Act 2000, the parties are asked to provide submissions on the relevance of the United Nations Convention on the Rights of Persons with Disabilities (the Convention) to that question, and whether the Court of Appeal was correct in its approach to that issue.[1] We interpolate here that this formulation of these two issues is sufficient to address Ms Fleming’s proposed ground relating to the Convention and so we say no more about it.
[1]Attorney-General v Fleming [2024] NZCA 92, [2024] 2 NZLR 245 (French, Brown and Courtney JJ); and see Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature 30 March 2007, entered into force 3 May 2008).
The parties’ submissions on the correct test for “work” should consider the application of Idea Services Ltd v Dickson to the applicants and whether the Court of Appeal was correct in its approach on this issue.[2]
[2]Idea Services Ltd v Dickson [2011] NZCA 14, [2011] 2 NZLR 522.
The application for leave by Ms Fleming raises a number of other grounds for leave including as to the effect of Part 4A of the New Zealand Public Health and Disability Act 2000 on the recovery of arrears and holiday pay; the effect of the s 88 notice (issued under the New Zealand Public Health and Disability Act) and the Ministry of Health | Manatū Hauora Operational Policy; and the potential to claim penalties under the Employment Relations Act.
In opposing leave, the Attorney-General submitted that if leave to appeal is granted on the question of whether Ms Fleming was a “homeworker”, leave was appropriately granted on the question of the correct test for “work” but that, otherwise, Ms Fleming’s proposed appeal “stands or falls” on the question of whether she was a homeworker. We agree that is the key question and accept the Attorney‑General’s submissions that the other matters Ms Fleming sought to raise are either encompassed within the two questions on which leave is granted, or, if they arise for consideration in Ms Fleming’s case, are without reasonable prospects of success. We need only add that we see the proposed grounds relating to the effect of Part 4A of the New Zealand Public Health and Disability Act and as to penalties as in the latter category.
The Registrar is directed to set both matters down for hearing together.

Solicitors:
M A Jeffries, Auckland for Applicant in SC 42/2024
Oakley Moran, Wellington for Applicant in SC 44/2024
Simpson Grierson, Wellington for First Respondent in SC 42/2024 and Respondent in SC 44/2024

In the case of Fleming v Attorney-General and Humphreys v Attorney-General, Christine Fleming and Peter Humphreys, the applicants, sought leave to appeal decisions of the Court of Appeal. The central issue in these appeals pertains to whether the applicants were considered "homeworkers" under the Employment Relations Act 2000 and, if so, the criteria determining their engagement in such work. The Attorney-General, acting as the first and second respondents, respectively, opposed the applications for leave to appeal. The applicants contested their classification as homeworkers, which affects their eligibility for employment rights and benefits. Additionally, the applicants sought clarification on the legal definition of "work" as it applies to homeworkers working overnight.

The Supreme Court of New Zealand, comprising Winkelmann CJ, Ellen France, and Kós JJ, was tasked with determining the admissibility of the appeals. The court had to decide whether the applicants were correctly classified as homeworkers and if the Court of Appeal's interpretation of the term "work" was accurate. The court also needed to consider the relevance of the United Nations Convention on the Rights of Persons with Disabilities in defining homeworker status. Furthermore, the court examined the application of the case law from Idea Services Ltd v Dickson to the applicants' circumstances.

The Supreme Court granted the applicants' leave to appeal on specific grounds. For Ms Fleming, the appeal was allowed concerning whether she was a homeworker under the Employment Relations Act 2000 and the test for determining "work" in the context of homeworkers working overnight. For Mr Humphreys, the appeal was allowed regarding whether he was a homeworker under the same act, specifically from August 2020 onwards when receiving funding under the Individualised Funding scheme. The court directed the Registrar to schedule both cases for a joint hearing to address these issues.

The court ruled that the central question of whether the applicants were homeworkers was pivotal and that other grounds raised by Ms Fleming, such as the impact of Part 4A of the New Zealand Public Health and Disability Act 2000 and the possibility of claiming penalties, were either encompassed within the approved questions or lacked reasonable prospects of success.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established