SOUTH CANTERBURY DISTRICT HEALTH BOARD v STUART SANDERSON [2018] NZCA 82 [10 April 2018]

SOUTH CANTERBURY DISTRICT HEALTH BOARD v STUART SANDERSON [2018] NZCA 82[10 April 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA651/2017[2018] NZCA 82BETWEEN SOUTH CANTERBURY DISTRICTHEALTH BOARDApplicantAND STUART SANDERSONFirst RespondentSARAH SANDERSONSecond RespondentDIANE BEACHThird RespondentMAUREEN CHAMBERLAINFourth RespondentJOHN SNUGGSFifth RespondentBETHAN WILLIAMSSixth RespondentHearing: 19 March 2018Court: Kós P, Brown and J Williams JJCounsel: S L Hornsby-Geluk and C N Luscombe for ApplicantP Cranney and C A Mayston for RespondentsJudgment: 10 April 2018 at 12.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondents' costs for a standard application on a bandA basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The applicant, South Canterbury District Health Board, applies for leave toappeal under s 214(1) of the Employment Relations Act 2000 against a decision ofthe Employment Court in which Judge Corkill held that the respondent anaesthetictechnicians ought to be regarded as undertaking work for the purposes of s 6 ofthe Minimum Wage Act 1983 (the Act) when they were on call on week nights and onweekends.1[2] Leave to appeal may be granted if, in the opinion of this Court, a question oflaw involved in the proposed appeal is one that, by reason of its general or publicimportance or for any other reason, ought to be submitted to this Court for decision.2Background[3] Because Timaru Public Hospital delivers theatre services outside normalbusiness hours when there is a need to do so, such services are potentially availablefor 24 hours in each day. Consequently, the applicant maintains a call-back roster fortheatre staff including anaesthetic technicians outside of business hours.The applicant's expectation is that, when on call, anaesthetic technicians must attendthe hospital within ten minutes of being called back for theatre duties.[4] For the respondents who resided well outside the boundaries of Timaru andwho could not travel from their homes to the hospital within ten minutes, the hospitalprovided free accommodation at or adjacent to the hospital in which the out of townanaesthetic technicians could stay when they were rostered on call. The issue fordetermination in the Employment Court was whether those technicians who resided ata distance from the hospital and who stayed in the free accommodation when on callwere then considered at work for the purposes of the Act.1 South Canterbury District Health Board v Sanderson [2017] NZEmpC 127.2 Employment Relations Act 2000, s 214(3).[5] The Employment Relations Authority determined that in the circumstances thetime spent by the respondents on call should be regarded as work.3 In reaching thesame conclusion Judge Corkill applied the so-called 'sleep-over principles' approvedby this Court in Idea Services Ltd v Dickson:4(a) the constraints placed on the freedom the employee would otherwisehave to do as he or she pleases;(b) the nature and extent of responsibilities placed on an employee; and(c) the benefit to the employer of having the employee perform the role.[6] After undertaking what he viewed as an inevitably case-specific assessmentJudge Corkill was satisfied that the three Idea Services factors were sufficientlysignificant as to lead to the conclusion that when on call the respondents ought to beregarded as undertaking work for the purposes of s 6 of the Act.5Questions of law[7] The application did not formulate proposed questions of law. Instead itidentified as grounds of appeal five respects in which it contended thatthe Employment Court erred in determining that the respondents were undertakingwork for the purposes of the Act whilst on call:(a) In finding that the choice of the individual respondents to live at adistance from their employment was not a particularly significant factorin assessing the constraints on them when they were on call.(b) In concluding that the constraints on the respondents when they wereon call were significant.3 Sanderson v South Canterbury District Health Board [2017] NZERA Christchurch 37.4 Idea Services Ltd v Dickson [2011] NZCA 14, [2011] 2 NZLR 522 at [7] and [10].5 South Canterbury District Health Board v Sanderson, above n 1, at [136].(c) In finding that the sole requirement to be available to respond to anemergency call during on call periods amounted to a significant and attimes very significant responsibility.(d) In finding that s 56 of the Holidays Act 2003 was of no assistance inthe interpretation application of s 6 of the Act.(e) In failing to determine whether s 67D of the Employment Relations Act2000 was of relevance in the interpretation and application of s 6 ofthe Act.Analysis[8] The first, second and third alleged errors were simply matters of factualevaluation undertaken in the course of considering the three Idea Services factors.They do not involve questions of law.[9] The consideration of the interplay between different statutory provisions canconstitute a question of law. But the significance for the statutory interpretation taskof provisions in other statutory contexts will be dependent at least in part on the degreeof relatedness. With reference to s 56 we note that this Court observed in Idea Servicesthat the Holidays Act is quite different legislation from the Act.6Similarly Judge Corkill did not consider that the Holidays Act, enacted many yearsafter the Act, was intended to impact on the interpretation or application of s 6.7[10] Nor is it apparent why the recently enacted8 provision in s 67D ofthe Employment Relations Act relating to availability provisions should be accordedsignificance in the context of the intensely practical inquiry which the EmploymentCourt undertakes in deciding whether a person is working for the purposes of s 6 ofthe Act. Judge Corkill recorded that he was not referred to any extrinsic materialswhich would support the contention that Parliament had addressed or intended ins 67D to make a distinction between on-call and sleep-over arrangements. Nor had6 Idea Services Ltd v Dickson, above n 4, at [16].7 South Canterbury District Health Board v Sanderson, above n 1, at [131].8 Employment Relations Amendment Act 2016, s 9.any relevant amendment been made to the Act, a possibility which the Judge thoughtmight well have required consideration were it the case that such a distinction was toapply.[11] We can discern no error in the manner in which Judge Corkill addressed theseother two statutory provisions.9 This Court will not grant leave where the proposedquestion of law is not seriously arguable.10[12] The Employment Court decision concerns only the six respondents. We wereinformed that the issue does not arise in relation to the other 17 anaesthetic technicianswho live within ten minutes travel time of Timaru Public Hospital. However anaffidavit of Mr K G McFadgen of DHB Shared Services suggested that the impact ofthe decision would be significant not just for South Canterbury District Health Boardbut for the sector generally.[13] By contrast Mr Cranney submitted that the case is very specific and is limitedto the actual parties. Any subsequent cases would be determined on a fact-basedanalysis in accordance with the Idea Services approach. He pointed to the affidavit ofMr A Shankar, the National Organiser for the health sector of the New Zealand PublicService Association Te Pūkenga Here Tikanga Mahi, who explained in some detail theuse of on call arrangements across the 20 District Health Boards, both within andoutside the union's membership. For the reasons he explained Mr Shankar did notagree that the Employment Court decision would have a significant effect on the healthsector.[14] Having reviewed the evidence, we are not satisfied, even if the fourth or fifthalleged errors were framed as questions of law which were arguable, they wouldqualify as questions which ought to be submitted to this Court for decision whether byreason of either general or public importance or for any other reason.9 South Canterbury District Health Board v Sanderson, above n 1, at [130]–[135].10 AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc[2017] NZCA 453 at [10].Result[15] The application for leave to appeal is declined.[16] The applicant must pay the respondents' costs for a standard application on aband A basis and usual disbursements.Solicitors:Dundas Street, Wellington for ApplicantOakley Moran, Wellington for Respondents