Individualised Funding Legal Perspective Auckland Disability Law ADLPSA

Individualised Funding: Legal Perspective Auckland Disability Law ADL/PSA Forum: Defining our Futures 16 July 2015

Should you be concerned? It’s okay – I employ all my support workers as contractors! I went to my business coach and explained I didn’t know quite how to write my job descriptions, could she help me? She asked me if I was sure I could really handle IF. I stopped asking her for help. We’re being investigated by MOH. They say I’m an agent – but what does that mean? My Host Provider handles my payroll, so I don’t need to worry about this I have IF but my family manages all that stuff for me. Do I need to know what they do? I was afraid to have a personal grievance (PG) taken against me so I didn’t know what to do when my support worker told me I better sign off on false timesheets or they would leave me in the shower. I put in a 90 day clause so I can try out workers and dismiss them with no problems.

Responsibilities of the Employer ALL legal employment requirements Developing job descriptions and employment agreements Health and Safety Requirements Reasonable Kiwisaver, Annual Breaks Accommodations PAYE, ACC levy and Sick Leave, Holiday Pay, Parental Leave,

Responsibilities of the Employer Record keeping requirements Coordinating payroll Ensuring that caring is provided to an appropriate standard Notifying Host Agency of problems and changes Resolving problems with employees (including termination), following correct legal procedures Complying with monitoring

Treating Support Workers as Contractors Common tactic with hope of transferring responsibilities and obligations onto employee Complex test to determine if someone is a contractor: Does the employment agreement reflect contractor status? Does the person do business on their own account? How much control does the employer have? Can you show support worker brings their own equipment? Sets their own hours?

Treating Support Workers as Contractors ERA will likely not agree that worker is a contractor Employer’s responsibility to get this right Can award accrued annual leave, sick pay, payment of lost wages while employee looks for new job, and compensation Host Agencies in most cases do not support this arrangement Any defence charges, back pay, etc. will need to come out of YOUR budget Insurance available through some Host Agencies can have an excess of $1000 you must pay if you make a claim

Case Example: Meldrum v. O’Brien Support worker raised a PG: “unjustifiably dismissed” Employer had difficulty securing a lawyer Employment relationship documents not well recorded Employee Dispute did not work the expected hours around employee leaving: Abandoned position? Asked not to return?

Case Example: Meldrum v. O’Brien Determination: Employee does not have a grievance, no costs awarded Learnings: Important to have all documentation formalised, keep good records Need for affordable, skilled legal representation for IF employers Employer is generally the responsible party for ensuring all requirements are met Amount of time to go through mediation and ERA process is lengthy and a significant hassle Mr O’Brien could have been held responsible for thousands of dollars

Issues & Misconceptions Lack of clarity around employer role Issues with template employment agreements from Host Agencies Confusion around contracting support workers “Personal Grievance” taken against disabled person by support worker EMA membership benefits limited Not able to assist people paying for the service (refer clients to ADL) Cost of lawyers ($200/hr)

Issues & Misconceptions Liability insurance not uniformly available and high excess Role of Agent unclear Business coach role is limited People feeling if they reveal questions/concerns around employer role, IF will be taken from them Community Law Centres generally do not take cases on behalf of employers

Recommendations Proceed with caution Get advice/external review of job descriptions and employment agreements Ensure paperwork is signed, complete and on file Keep good records of conversations, approval notifications Consider host agency managing payroll Better training around employer responsibilities Need for hands-on individualised “coaching” by business coaches Keep a realistic budget for dealing with PGs: $3 -5, 000. 00

Questions?