Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016

1: Title
This Act is the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
1: Preliminary provisions
3: Purposes
1: The purposes of this Act are—
a: to facilitate the settlement of civil proceedings about the payment of wages to HCS employees at the minimum rate prescribed under the Minimum Wage Act 1983
b: to provide for payment by HCS employers to HCS employees for travel between clients from 1 July 2015.
2: To those ends, this Act—
a: extinguishes claims by HCS employees for wages payable under the Minimum Wage Act 1983
b: amends the Minimum Wage Act 1983
c: provides a minimum level of required payments to be made to HCS employees for travel between clients.
4: Interpretation
In this Act, unless the context otherwise requires,— ACC section 259 client visit client day
a: means a calendar day; but
b: in relation to an HCS employee who makes overnight client visits, means the employee’s work period within the meaning of section 69ZC deemed distance section 21(2) deemed travel time section 18(2) employee
a: is an employee within the meaning of that term in section 6(1)﻿(a) or (b)﻿(i)
b: is not paid a salary exceptional first client travel section 5(2)﻿(a) exceptional last client travel section 5(2)﻿(b) exceptional travel section 5(1) former HCS employer
a: means an entity listed in Schedule 2
b: if the former HCS employer does not itself have separate legal personality, means the person or persons who have the legal authority to make decisions on behalf of that employer HCS employee
a: means a person who—
i: is an employee of an HCS employer; and
ii: provides home and community-based support services to clients of the HCS employer; and
b: for the purposes of sections 8 9
i: was previously an employee of an HCS employer; and
ii: provided home and community-based support services to clients of the HCS employer HCS employer
a: means—
i: an entity listed in Schedule 3
ii: an entity that provides home and community-based support services on behalf of an entity listed in Schedule 3
b: if the HCS employer does not itself have separate legal personality, means the person or persons who have the legal authority to make decisions on behalf of that employer Health New Zealand section 4 home and community-based support services
a: means—
i: services funded by the Ministry of Health, Health New Zealand, or the Māori Health Authority
ii: services funded by ACC that are performed in a client’s home for the purposes of supporting the client's rehabilitation from an injury covered by the Accident Compensation Act 2001
b: does not include—
i: services that are performed for the purpose of preparing an intellectually disabled client to live independently in the community; or
ii: services purchased by a disabled client (or by a disabled client’s caregiver on the client’s behalf) using funding from the Ministry of Health or another agency to allow Māori Health Authority section 4 maximum travel distance section 5(1) mileage rate clause 1 qualifying distance clause 2(1) qualifying travel time clause 3(1) travel between clients
a: means the travel by an HCS employee in a day to get to each client; and
b: includes exceptional travel; but
c: does not include—
i: travel by the employee to the first client visit of the day (unless the travel is exceptional first client travel):
ii: travel by the employee after the employee leaves the last client visit of the day (unless the travel is exceptional last client travel). Section 4 DHB repealed 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 4 Health New Zealand inserted 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 4 home and community-based support services amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 4 home and community-based support services amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 4 Māori Health Authority inserted 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022
5: Meaning of exceptional travel and related terms
1: In this Act, unless the context otherwise requires,— exceptional travel
a: travel by an HCS employee between clients where the distance travelled is more than the maximum travel distance; and
b: exceptional first client travel by an HCS employee; and
c: exceptional last client travel by an HCS employee maximum travel distance section 16(2) clause 4
2: For the purposes of subsection (1),—
a: an HCS employee’s travel to the first client visit of the day is exceptional first client travel
b: an HCS employee’s travel from the last client visit of the day is exceptional last client travel
6: Transitional, savings, and related provisions
The transitional, savings, and related provisions (if any) set out in Schedule 1
7: Act binds the Crown
This Act binds the Crown.
2: Payment for travel between clients
Extinguishing claims for travel payments and statutory amendment to employment agreements
8: Certain claims extinguished
1: This section applies to—
a: any claim by or on behalf of an HCS employee for wages payable under the Minimum Wage Act 1983
b: any potential claim by or on behalf of an HCS employee against an HCS employer, a former HCS employer, Health New Zealand, ACC, or the Crown Minimum Wage Act 1983
2: The claim or potential claim cannot be pursued and must be treated as if it had been withdrawn or is incapable of being lodged.
3: Without limiting subsection (2), an HCS employee (or any person acting on his or her behalf) cannot—
a: name, join, or seek to name or join an HCS employer, a former HCS employer, Health New Zealand, ACC, or the Crown
b: apply in any civil proceedings for any remedy or relief from an HCS employer, a former HCS employer, Health New Zealand, ACC, or the Crown
4: This section is subject to section 9 Section 8(1)﻿(b) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 8(3)﻿(a) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 8(3)﻿(b) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022
9: Act does not affect enforcement of employment agreements requiring payment for travel before commencement of Act
Nothing in section 8
10: Act overrides existing terms and conditions in employment agreements requiring payment of greater amounts
1: This section applies to an employment agreement containing either or both of the following terms or conditions agreed before the commencement of this Act:
a: a term or condition that requires an HCS employee to be paid a greater amount for travel between clients than that required by this Act:
b: a term or condition that requires an HCS employee to be paid for—
i: travel by the employee to the first client visit of the day that is not exceptional first client travel; or
ii: travel by the employee from the last client visit of the day that is not exceptional last client travel.
2: To the extent that the term or condition exceeds the requirements of this Act, the term or condition has no effect, and is not enforceable, for travel on and from the commencement of this Act.
11: Act does not prevent new terms and conditions in employment agreements requiring payment of greater amounts
This Act does not prevent an HCS employer from paying an HCS employee a greater amount for travel between clients than that required by this Act or for travel described in section 10(1)﻿(b)
12: No HCS employee to be financially disadvantaged
1: Subsection (2) applies if, because of the operation of section 10
2: The HCS employer must compensate the employee for the reduced entitlement by inserting a term in the employee’s employment agreement that has the effect of requiring the employer to pay the employee an amount for travel between clients greater than that required by this Act.
3: The amount must be no less than the amount that is equal to the employee’s total entitlement before 1 July 2015.
4: An HCS employer and an HCS employee—
a: may agree to enhance a term inserted in the employee’s employment agreement under subsection (2); but
b: may not agree to otherwise amend or remove the term at any time while the employee is employed by the employer.
5: In this section,— post-commencement travel entitlement pre-commencement travel entitlement section 10
a: travel between clients in the pay period immediately after 1 March 2016; and
b: travel described in section 10(1)﻿(b)
13: Payment of lesser amounts prohibited
An employment agreement that contains a term or condition that excludes, restricts, or reduces an HCS employee’s entitlements under this Act—
a: has no effect to the extent that it does so, regardless of whether the term or condition was agreed before or after the commencement of this Act; but
b: is not an illegal contract under subpart 5 Section 13(b) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017 Time spent in travel between clients
14: Time spent in travel between clients
1: An HCS employer must pay an HCS employee for the time spent by the employee on or after 1 July 2015 in travel between clients.
2: For travel between clients during the period starting on 1 July 2015 and ending on 29 February 2016, the minimum amount payable must be calculated in accordance with sections 15 16
3: For travel between clients on or after 1 March 2016—
a: that is not exceptional travel, the minimum amount payable must be calculated in accordance with section 17
b: that is exceptional travel, the minimum amount payable must be calculated in accordance with section 18
15: Minimum amounts payable for travel before 1 March 2016 funded by Ministry of Health or Health New Zealand
1: This section applies to travel between clients, whether exceptional travel or not, by an HCS employee for the purpose of a client visit—
a: in which the HCS employee provides services described in paragraph (a)﻿(i) of the definition of home and community-based support services in section 4
b: that is not the first client visit for the HCS employee in a day.
2: The minimum amount payable to an HCS employee for each client visit is $2.28. Section 15 heading replaced 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022
16: Minimum amounts payable for travel before 1 March 2016 funded by ACC
1: This section applies to travel between clients by an HCS employee for the purpose of a client visit in which the HCS employee provides services described in paragraph (a)﻿(ii) of the definition of home and community-based support services in section 4
2: The minimum amount payable to an HCS employee is—
a: for travel that is not exceptional travel, $1.89 for each client visit; and
b: for exceptional travel, the amount calculated in accordance with section 18
3: For the purposes of subsection (2), the maximum travel distance
17: Minimum amount payable for travel on and from 1 March 2016 (other than for exceptional travel)
The minimum amount payable each day to an HCS employee is calculated as follows: a = b × (c ÷ 60) where— a is the minimum amount payable b is the minimum hourly rate of wage prescribed under section 4 c is the qualifying travel time in minutes for the employee for that day calculated in accordance with clause 3(2)
18: Minimum amount payable for exceptional travel on and from 1 March 2016
1: The minimum amount payable each day to an HCS employee is calculated as follows: a = b × (c ÷ 60) where— a is the minimum amount payable b is the minimum hourly rate of wage prescribed under section 4 c is the deemed travel time in minutes for exceptional travel for the employee for that day.
2: In this section, deemed travel time
a: taking the most efficient route; and
b: when travelling at the same time of day and on the same day of the week. Costs relating to travel between clients
19: Costs relating to travel between clients
1: An HCS employer must pay an HCS employee a contribution towards the costs relating to travel between clients by the employee on or after 1 March 2016.
2: For travel between clients that is not exceptional travel, the minimum amount payable must be calculated in accordance with section 20
3: For travel between clients that is exceptional travel, the minimum amount payable must be calculated in accordance with section 21
4: Subsection (1) does not apply to any travel between clients for which—
a: an HCS employee uses a vehicle provided by the HCS employer; and
b: the employer is responsible for all the costs associated with the use of the vehicle.
20: Minimum amount payable towards costs (other than for exceptional travel)
The minimum amount payable each day to an HCS employee is calculated as follows: a = b × c where— a is the minimum amount payable b is the mileage rate c is the qualifying distance in kilometres for the employee for that day calculated in accordance with clause 2(2)
21: Minimum amount payable towards costs for exceptional travel
1: The minimum amount payable each day to an HCS employee is calculated as follows: a = b × c where— a is the minimum amount payable b is the mileage rate c is the deemed distance in kilometres of exceptional travel by the employee for that day.
2: In this section, deemed distance Relationship with Employment Relations Act 2000
22: Compliance dispute is employment relationship problem
To avoid doubt,—
a: a dispute about whether an HCS employer is complying, or has complied, with this Act is an employment relationship problem within the meaning of that term in section 5
b: the dispute must be resolved in accordance with that Act.
23: HCS employee may recover arrears
The failure by an HCS employer to pay an HCS employee an amount required by this Act, either in whole or in part, constitutes payment of wages or other money at a rate lower than that legally payable for the purposes of section 131 Record keeping
24: Record of amounts paid, qualifying travel time, and qualifying travel distance
1: An HCS employer must keep a record, for each HCS employee employed by the employer, of—
a: the amounts paid to the employee under this Act for each pay period; and
b: the qualifying travel times, qualifying distances, deemed travel times, and deemed distances used as the basis for calculating the amounts.
2: A record kept for the purposes of subsection (1) is deemed, for the purposes of the Employment Relations Act 2000 section 130 Penalty for non-compliance
25: Penalty for non-compliance
An HCS employer who fails to comply with an obligation imposed on the employer by this Act is liable to a penalty imposed by the Employment Relations Authority under the Employment Relations Act 2000 Other employers and employees unaffected
26: Other employers and employees unaffected
1: Nothing in this Act limits or affects the rights, duties, or obligations relating to payment for employment-related travel of any employer or employee (within the meaning of those terms in the Employment Relations Act 2000
2: This section is to avoid doubt. Amendments to Act by Order in Council
27: Power to amend Schedule 3
1: The Governor-General may, by Order in Council made on the recommendation of the Minister of Health, amend Schedule 3
a: replace the name of an HCS employer in recognition of a change in the employer’s name:
b: insert the name of an employer who begins providing home and community-based support services after 1 December 2015.
2: Before making a recommendation under subsection (1)﻿(b), the Minister of Health must—
a: consult ACC and the Minister for ACC; and
b: obtain the consent of—
i: any unions representing 1 or more HCS employees of the employer; and
ii: any HCS employees of the employer who are not represented by a union.
3: An order made under subsection (1)﻿(b) may apply retrospectively from the date that the HCS employer started providing home and community-based support services but only if the parties listed in subsection (2)﻿(b) agree.
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 27(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
28: Power to amend Schedule 4
1: The Governor-General may, by Order in Council made on the recommendation of the Minister of Health and the Minister for ACC,—
a: adjust the figure specified in clause 1
b: adjust the figure specified in clause 2(1)
c: adjust the figure specified in clause 3(1)
d: adjust the figure specified in clause 4
2: Before making a recommendation under subsection (1), the following parties must be consulted:
a: ACC:
b: Health New Zealand:
c: all HCS employers listed in Schedule 3
d: any unions representing 1 or more HCS employees.
3: Before making a recommendation under subsection (1)﻿(b), the Minister of Health and the Minister for ACC must be satisfied that the adjusted figure is a fair approximation of the actual distance HCS employees would travel between clients.
4: Before making a recommendation under subsection (1)﻿(c), the Minister of Health and the Minister for ACC must be satisfied that the adjusted figure is a fair approximation of the actual amount of time HCS employees would spend travelling between clients.
5: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 28(2)﻿(b) replaced 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 28(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
29: Annual review of Schedule 4
1: The Minister of Health must, on or before 30 May 2017 and every 12 months after that date,—
a: review clauses 1 2(1) 3(1) 4
b: decide whether to recommend the making of an order under section 28(1)
2: For the purpose of undertaking the review, the Minister must consult—
a: the Minister for ACC; and
b: ACC; and
c: Health New Zealand; and
d: all HCS employers listed in Schedule 3
e: any unions representing 1 or more HCS employees. Section 29(2)﻿(c) replaced 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022
3: Amendments to other Acts
30: Amendment to Minimum Wage Act 1983
1: This section amends the Minimum Wage Act 1983
2: After section 9(d)
e: employees to whom the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 applies, in respect of travel between clients (as defined in section 4 2016-02-25 Minimum Wage Act 1983
31: Amendments to Employment Relations Act 2000
1: This section amends the Employment Relations Act 2000
2: In section 5 minimum entitlements Holidays Act 2003 or the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016
3: After section 161(1)﻿(m)﻿(iii)
iiia: under section 25
4: After section 223(1)﻿(c)
ca: the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016; and
5: After section 236(4)﻿(d)
da: the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016: 2016-02-25 Employment Relations Act 2000
32: Amendment to Holidays Act 2003
1: This section amends the Holidays Act 2003
2: After section 10
10A: Treatment of payments made under Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016
For the purposes of sections 8, 9, and 14, the ordinary weekly pay, relevant daily pay, or gross earnings (as the case may be) of an employee—
a: includes payments made to the employee under section 14 Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016
b: excludes payments made to the employee under section 19 Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 2016-02-25 Holidays Act 2003