Employment Relations (Flexible Working Hours) Amendment Bill

5 April 2005

Attorney-General

1. We have considered the Employment Relations (Flexible Working Hours) Amendment Bill (the "Bill"), a Member’s Bill in the name of Rod Donald MP, for consistency with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights Act"). The Bill was introduced to the House of Representatives on Thursday, 17 March 2005 and is currently awaiting its First Reading. It is our understanding that the next Members’ Day is scheduled for Wednesday, 6 April 2005.

2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In reaching this conclusion, we considered two potential issues of inconsistency with section 19(1) (right to be free from discrimination) of the Bill of Rights Act, which can both be justified in terms of section 5 of that Act.

PURPOSE

3. The Bill seeks to amend the Employment Relations Act 2000 to provide employees with young and dependent children who have worked with the same employer for at least six months ("qualifying employees") the right to request part-time and flexible hours. The Bill sets out a framework in which qualifying employees can negotiate reduced working hours. Under this framework, an employer must acknowledge that a qualifying employee has the right to request flexible working arrangements and deal with such requests as soon as possible. However, the employer may refuse the request when it cannot reasonably be accommodated because of:

• the inability to re-organise work among existing staff or recruit additional staff
• the detrimental impact on quality or performance,
• the insufficiency of work during the periods the employee proposes to work; or
• structural changes.

4. The Bill therefore can be considered a remedial measure to increase the employment rate for parents of young and dependent children by offering them expanded flexible working opportunities and assist parents to balance work and family commitments.

ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT

Section 19: right to be free from discrimination

5. We have considered whether the Bill could give rise to issues of discrimination under section 19 of the Bill of Rights Act. Section 19(1) provides the right to freedom from discrimination on the grounds of discrimination set out in the Human Rights Act 1993 (the "Human Rights Act"). These grounds include, inter alia, age and family status.

6. In our view, taking account of the various domestic and overseas judicial pronouncements as to the meaning of discrimination, the key questions in assessing whether discrimination under section 19 exists are:

1. Does the legislation draw a distinction based on one of the prohibited grounds of discrimination? and if so,
2. Does the distinction involve disadvantage to one or more classes of individuals?

7. If these questions are answered in the affirmative, we consider that the legislation gives rise to a prima facie issue of "discrimination" under section 19(1) of the Bill of Rights Act. Where this is the case, the legislation falls to be justified under section 5 of that Act.

Possible Discrimination on Grounds of Family Status

8. The Bill, as outlined above, provides employees who have full-time care of a child or children under 5 years; or full-time care of a disabled child or children up to and including 18 years with the right to change their working hours. It could be argued that because this right is not available to an employee who does not have children, the Bill gives rise to a distinction on the grounds of family status, which is defined in section 21 of the Human Rights Act as including having responsibility for part-time care or full-time care of children or other dependants, and conversely not having responsibility for the care of children or other dependants. Since the right to change working hours is not available to an employee who has full-time care of another third person, such as a dependent spouse or parent, the Bill also gives rise to an intra-ground distinction based on the status of a third person who is receiving full-time care from the employee.

9. However, we do not consider that this distinction involves disadvantage to one or more classes of individuals. Firstly, we note that the Bill focuses on the difficulties faced by parents of young and dependent children staying in the workforce. As noted in the Explanatory Note:

• many parents drop out of the labour market because they cannot find ways of combining paid work and the demands of looking after young children as well as those with a disability;
• women – who are often the main caregivers of young and dependent children – are frequently burdened with the extra stress from having to do both paid work and domestic labour.

10. The Bill addresses these difficulties by providing qualifying employees the right to request part-time and flexible hours. The Bill does not affect the ability of employees who do not have young or dependent children to negotiate the terms and conditions of their employment. The Employment Relations Act 2000 guarantees the right of employees to seek whatever terms and conditions of employment they desire, including part-time and flexible hours. Employers are required to consider such requests in good faith. In any case, we note that the right guaranteed to qualifying employees is not an absolute right to change working hours, but more of a qualified right. That is, rather than simply considering the request in good faith, the employer has to grant the request unless one of the stated exceptions apply, which as set out in paragraph 3 are broadly defined.

11. Secondly, there is a widely held view that parents have a social responsibility to care for and raise their children. There is also a legal obligation for parents to care for and nurture their child or children during their formative years. A similar legal obligation is not placed upon a person who has no children or whose spouse or parent needs full-time care. While there are a variety of early childcare facilities available many parents will choose to care for their children during their early years before they start formal education. This is often because early childcare facilities are in short supply, have limited spaces available for very young children and because fees are incurred for accessing most early childcare services.

12. This is unlike aged care services where either the elderly parent will pay for the care they receive or the state will cover the care costs. There are also many voluntary organisations that specifically provide services for the elderly. Furthermore a dependent spouse or parent will usually not require as much care and nurturing as a child under the age of 5 and a disabled child up to and including 18 years of age.

13. For these reasons we do not consider that the distinction that is made between employees based on the full-time care they provide to a third party can be regarded as discriminatory, either in intent or effect.

Age as a criterion for determining eligibility

14. The Bill uses the age of an employee’s young and dependent children as a criterion for determining whether the employee is entitled to request part-time and flexible hours. The use of age for determining eligibility gives rise to potential issues of discrimination on the grounds of age. However, age is defined under the Human Rights Act as referring to "any age commencing with the age of 16 years" (section 21(1)(1)(i)). Consequently, the issue of age discrimination only arises in respect of the ability of employees to request part-time and flexible hours to care for their disabled children (who are defined as those up to and including 18 years of age).

15. The effect of this aspect of the Bill is that parents of children aged over 18 years are not guaranteed the right to change their working hours. While the Bill draws a distinction based on age, we do not consider that this gives rise to any disadvantage for many of same reasons set out above. This entitlement concentrates on the difficulties faced by working parents of dependent children. Although persons caring for their disabled adult offspring face certain problems, the degree of difficulty associated with them staying in the workforce is not the same. There are many voluntary organisations that can assist these persons by providing services for their disabled offspring, most of whom will be eligible to receive either an invalids benefit or sickness benefit from the State.

Conclusion

16. We have concluded that the Bill does not appear to be inconsistent with the rights and freedoms contained in the Bill of Rights Act.

17. In accordance with your instructions we attach a copy of this opinion for referral to the Minister of Justice. Copies are also attached for referral to the Minister of Labour and Rod Donald MP, if you agree.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Employment Relations (Flexible Working Hours) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.