Cases of interest: December 2025

Fleming v Attorney-General [2025] NZSC 188

Supreme Court – Employment status – Ministry of Health-funded caregivers – Caregivers caring for adult disabled children in their own home

At issue was whether the Ministry of Health (the Ministry) employed the 2 appellants as “homeworkers” under section 5 of the Employment Relations Act 2000(external link) (section 5), thus making them employees.

The appellants were two parents who each cared for their own adult disabled child. For certain periods, the Ministry of Health (the Ministry) funded the appellants to provide care to their children under one or other of two funding schemes: the “Funded Family Care” scheme and/or the “Individualised Funding” scheme. The Ministry:

• funded the first appellant under the Individualised Funding scheme from 2021
• funded the second appellant for:
  
  • about 6 years under the Funded Family Care scheme, until that scheme ended
  • after that, under the Individualised Funding scheme.

The Employment Court found that (see paragraph 5):

• Under either funding scheme, the Ministry employed the two caregivers as “homeworkers” under section 5 (see paragraph 5).
• When calculating what wages were owed to the first appellant, the case Idea Services Ltd v Dickson [2011] NZCA 14(external link), [2011] 2 NZLR 522 (Idea Services) applied).

The Supreme Court noted that in Idea Services the Court of Appeal (see paragraphs 5, 138–142):

• considered whether a community support worker was “working” and entitled to the minimum wage when he did sleepovers in a home for disabled people, for the purpose of dealing with any issues that arose. 
• in order to determine whether the employee was working while staying on call at the home, looked at:
  
  • the constraints on the employee’s freedom
  • the nature and extent of responsibilities placed on him
  • the benefit to the employer of having the employee perform the role
• found on the facts that he was working.

On appeal, the Court of Appeal found (see paragraphs 6–8):

• Neither appellant was a homeworker under section 5 when the Ministry funded them under the Individualised Funding scheme.
• The second appellant was a homeworker for the period when the Ministry funded him under the Funded Family Care scheme.   
• Idea Services did not apply to homeworkers.

The appellants appealed the decision to the Supreme Court on the following questions of law (see paragraphs 11, 12):

• Whether the Court of Appeal was correct to determine that the first appellant was not “engaged, employed or contracted” by the Ministry … as a “homeworker” under section 5.
• Whether the Court of Appeal was correct as to the test for “work” when work is conducted by homeworkers who work overnight in their [own] home.
• Whether the Court of Appeal was correct to decide the second appellant was not “engaged” by the Ministry as a homeworker under section 5 for the period when he was in receipt of funding under the Individualised Funding scheme. 

The Supreme Court found the Court of Appeal erred in finding that:

• The first appellant was not a “homeworker” (see paragraph 111).
• The second appellant changed from being a “homeworker” to not being one, when the Ministry changed his funding from the Funded Family Care scheme to the Individualised Funding scheme (see paragraph 132)
• Idea Services did not apply to homeworkers (see paragraphs 134, 143, 159).

The Supreme Court said calculating the first appellant’s [wages and holiday pay] was a factual inquiry that would be remitted back to the Employment Court (see paragraph 163). It observed that (see paragraphs 164, 165):

• It was difficult to see how she would not be working a 40-hour week.
• On that basis, she would have minimum entitlements for that period.
• A proposition that some lessor figure reflected her work was not attractive.
• A 40-hour maximum was a rough measure of where the balance between state and family responsibility might be struck.

The Supreme Court noted that the second appellant only sought a declaration that he was an employee and did not seek calculation of lost wages and holiday pay (see paragraph 162).

The Supreme Court (see paragraphs 166–170):

• reinstated the Employment Court declarations as to the employment status of both appellants
• remitted the quantum of remedies for the first appellant to the Employment Court
• allowed the second appellant’s appeal against the finding that he was not engaged as a homeworker when he received funding under the Individualised Funding scheme (see paragraph 12.)

Fleming v Attorney-General [2025] NZSC 188(external link)

Channel Infrastructure NZ Ltd v Holroyd [2025] NZEmpC 264

Employment Court – Holidays Act 2003, section 14(b) – Calculation of gross income – Discretionary payments – Payment on termination for unused ‘additional’ annual leave 

The employees’ collective employment agreement (the CEA) provided for more than the statutory minimum amount of paid leave (additional leave) once employees had worked with the employer for a sufficient length of time. The employer had a practice of paying out any unused additional annual leave when an employee left employment. The practice was not explicitly required as a term of the CEA.

The Employment Relations Authority (the Authority) determined (see paragraph 22): 

• The requirements to pay out additional leave on termination was a term of the CEA.
•  As such, the payments were:
  
  • not discretionary
  • not excluded from the calculation of gross income under the Holidays Act 2003, section 14(b).(external link)

An issue was whether the Authority erred in those determinations.

The Employment Court (the Court) found (see paragraph 81):

• The additional leave payments were not required to be paid out upon termination under the terms of the collective agreement.
• The payment for additional leave on termination was excluded from gross income as a discretionary payment.

In coming to that decision the Court took into account that:

• There was no evidence before the Court of the background knowledge available to the parties at the time of the contract, so it was necessary to ascertain the meaning solely from the CEA itself (see paragraph 35).
• The express terms did not require payout of additional leave (see paragraph 36).
• A practice in and of itself could not elevate something into a contractually binding term (see paragraph 37).
• The CEA specified that annual leave and other entitlements under the Holidays Act would be paid out on termination. The failure to specify payment of additional leave on termination must be taken to be deliberate (see paragraph 38).
• Objectively, it was not possible to read in a meaning that the company was required to pay out additional leave on termination (see paragraph 40).
• There was no contractual obligation to pay out additional leave on termination, meaning the payments were discretionary (see paragraph 51).

Channel Infrastructure NZ Ltd v Holroyd [2025] NZEmpC 264(external link)

Norton-Taylor v Steve Grant Excavating Ltd [2025] NZERA 830

Employment Relations Authority – Minimum employment standards breaches – Mine excavator operator

At issue was whether the employer in a new mining operation:

• employed the employee excavator driver on a casual or permanent basis
• owed the employee unpaid wages.

The employee had known the employer’s director for around 20 years. The employee said the employer initiated a discussion about getting him to work on a new mine site, operating an excavating machine. Initially the employee worked for free for approximately 6 weeks as repayment of a debt he owed the employer. Subsequently the employer paid him initially in cash and did not deduct PAYE. The employee said the employer promised to formalise things once the mine was operating at full capacity. There was no written employment agreement.

The employee said he worked regular hours of 30 hours a week but was paid sporadically in lump sums. The employment ended after approximately 8 months, when the employer decided not to offer any further work, allegedly because he found marijuana in the employee’s vehicle. 

The employee kept his own time records. He claimed the employer owed him 460 hours of wages at $30 per hour. The employer conceded it owed 400 hours, but said the pay rate was $20 per hour.

The Employment Relations Authority:

• accepted the employee’s time records, under the Holidays Act 2003, sections 83 (4)(external link) and the Employment Relations Act 2000, section 132(2)(external link), as the employer had no records (see paragraphs 15 to 17)
• awarded the employee 460 hours of wages at $30 per hour and holiday pay, subtracting $4,000 the employer had already paid (see paragraph 17)
• determined the employer’s director was liable for the amount owing, as someone who aided and abetted a breach of minimum employment standards (see paragraphs 20, 21). 

Norton-Taylor v Steve Grant Excavating Ltd [2025] NZERA 830(external link)