KEY POINTS:
Extra Government funding set aside to boost the wages of resthome employees has already been passed on, care providers for the aged said yesterday.
The wage changes, forced on providers by district health boards (DHBs) were unlawful, the High Court has found.
DHBs were given the extra money this year, with two clauses linked to the funding. These were raising the minimum wage for the sector's workers to $12.55 an hour, and requiring employers to take reasonable steps to allow collective employment contracts.
But Justice Andrew McGechan has found DHBs acted unlawfully in including the clauses.
HealthCare Providers NZ, which represents 520 residential care homes, had asked Justice McGechan to set aside the clauses that it said were forcibly inserted.
Council of Trade Unions president Helen Kelly said it was disappointing a "technicality" meant providers would be able to avoid increasing wages in the short term.
"In these circumstances, the only honourable thing is for these business people to hand back the money until this issue is sorted out."
Ms Kelly said many providers were committed to investing in their workforce, and wages had risen as required in these facilities.
But HealthCare Providers NZ chief executive Martin Taylor said yesterday that the funding had already been passed on.
"The funding that was allocated was passed on immediately.
"The whole assertion that the money hasn't been passed on is entirely incorrect ... and anyone that I find who is a member that hasn't, I'll be telling them in the strongest terms that they should do it immediately," he said.
The difficulty occurred because DHBs had been told by then health minister Pete Hodgson to put a dollar amount on the minimum wage increase, Mr Taylor said.
"Clearly the funding did not cover that dollar amount - that was the whole basis for the judicial review."
Justice McGechan said DHBs were "caught out by delays of their own making and by ministerial intervention".
The two clauses were tabled late and with insufficient time for providers to respond.
"[DHBs] then said 'take it or leave it' on pain of serious financial consequences," Justice McGechan said.
"DHBs created a timing problem by their own delays and then sought to transfer that problem on to the providers."
Justice McGechan said that was a breach of providers' rights to meaningful participation.
He did not find what occurred was the result of bad faith but said it was procedurally unfair.
Justice McGechan ruled that the application for orders setting aside the two clauses should stand adjourned "for a reasonable time" to allow "informed analysis and discussion".
Mr Taylor said: "We have clearly achieved our goal, we've won the judicial review and I am sure DHBs will be considering their positions and they'll be approaching us."
- NZPA
