Last Tuesday, the Court of Appeal unanimously ruled that Mr Dickson, a carer working at an IHC community home, is entitled to be paid the hourly minimum wage while he is on sleepover duty.
He instead was being paid a fixed $34 shift allowance for this 8-10 hour time period. This finding affirmed earlier decisions by the Employment Relations Authority and the Employment Court that Mr Dickson's duties while sleeping over constitute "work" under the relevant legislation.
Consequently, by law he had to receive at least the minimum wage for every hour he spent on such duties.
While the case only deals with one employee's claim, both the IHC and the Government have claimed that it sets a precedent that will eventually cost millions of dollars in back pay and ongoing employment payments.
The precise amount of those extra costs is somewhat unclear at present.
Figures in excess of $560 million over the next three years have been cited, but this seems to be very much a "worst case" scenario.
Nevertheless, the National Government has indicated that it believes the potential cost of this decision is unaffordable in the present economic climate.
It is now working through its options of to how to respond.
One avenue that is of course available is an appeal.
If the Government honestly believes that the Court of Appeal has made an error in interpreting what constitutes "work" under the relevant legislation, then it can ask the Supreme Court to overturn the decision.
That would be the proper way for the Government to approach the matter, if it really thinks the Court of Appeal misapplied the relevant legislation.
The reason we have tiers of appellate courts is to examine and rectify mistakes of law made lower down the chain.
However, there is a pretty compelling motive for the Government not to proceed down this appeal route.
Its legal case just does not look very strong.
Consequently, it is questionable whether the Supreme Court would even agree to hear an appeal, much less overturn the Court of Appeal's ruling.
There does not seem to be a glaring error here that needs to be corrected.
Perhaps for this reason, the Government instead is making noises about passing legislation to undo the effect of the Court of Appeal's decision.
Or, at least, Health Minister Tony Ryall pointedly refused to rule out this response when asked, rather saying that the relevant legislation is "antiquated and based on a 1945 lifestyle of people working nine to five".
There is, of course, nothing wrong with the Government asking Parliament to amend one of its own statutes if it thinks updating is needed.
Indeed, the Court of Appeal itself expressly noted that, "If the result of this judgement is of concern to the Government, the solution is to have the [relevant] Act amended."
However, the effect of any proposed amendment needs careful examination.
Will it simply change the law that applies from the time of the amendment, or will it purport to retrospectively change the law as it applied in the past?The former presents no particular problems.
You may or may not agree with that change as a matter of policy, but ultimately it is the job of Parliament to decide what laws we will live under now and in the future.
However, what if the Government were to seek to avoid any obligation to provide back pay by asking Parliament to change the law so that Mr Dickson (and others like him) were deemed not to have engaged in "work" in the past?
As a formal legal matter, Parliament could do this.
Not only can it change what the law will be tomorrow, it can change what the law was yesterday.
However, any such retrospective law change would be deeply problematic from a constitutional perspective.
First of all, it would unfairly deprive Mr Dickson of the fruits of a legal victory that he has fought to win.
Even if his union covered his legal costs, he has spent considerable time and effort gaining a judicial ruling that vindicates his legal rights.
Second, it would terminate the cases of any other individual workers who have lodged claims with the Employment Relations Authority and are awaiting the outcome of this case.
Their right to have their claims heard and rights decided under existing law would be removed.
But most importantly, retrospective legislation would breach the rule of law by freeing the Government from its legal obligations at the expense of individuals who enjoy legal rights.
If the Government were to change the law to avoid the result of a court decision it finds inconvenient, then it is in effect denying that it is constrained by the law.
That would be a real problem.
One of the foundational principles of our constitution is that government must respect the law - like any individual - and that government may not act in ways that breach the law.
This principle then serves as an important check on governmental power.
It is upheld by the courts, which independently determine the meaning of the law and thus the constraints under which government must act.
But if government can escape those constraints entirely by getting Parliament to undo the effect of a law it does not like, then there is nothing to limit what it can and cannot do.
And given the omnipresence of government in our lives, this means we can never be sure what its powers or obligations towards us will be.
Of course, it must be noted that Mr Ryall has not yet said that the Government does intend to legislate retrospectively in regards to this case.
However, given that most of the costs he claims are unaffordable relate to possible back-pay claims, it looks like it is an option under real consideration.
For the sake of the rule of law and New Zealand's constitution, I hope it goes no further than that.
- Andrew Geddis is a professor in the faculty of law at the University of Otago.
