What began as a case about whether disability support workers doing “sleepovers” on their employer’s premises were “working” and therefore should be paid at least the minimum hourly wage has taken an interesting turn in the Employment Court.
Earlier on, the Court had agreed that IDEA Services worker, Phillip Dickson was working when carrying out a sleepover shift and should be entitled to an hourly minimum wage of $12.50 an hour instead of the $34 allowance for the whole shift. Workers have done sleepover shifts for years in residential care facilities and they are an invention out of the ark. Workers have to head out for what is essentially another shift, leaving their families at home in bed and are expected to be deal with anything that happens during the night – but they are paid a small allowance on the pretence that they are only “sleeping over”.
However, the case became more complicated when the employer (IHC) argued that that minimum hourly wage of $12.50 an hour was only an average rate, and if the worker received a higher hourly rate for other hours worked outside of the sleepover, that meant the minimum wage was being paid.
The Court asked to hear further submissions on the Employer’s argument on this issue and IHC, the Department of Labour, Business NZ and other employers all lined up to argue that “averaging” was acceptable.
Fortunately, the full bench of the Employment Court has disagreed. They have taken a strong stand in favour of the statutory minimum pay rate for hourly workers saying it cannot be undermined by allowing employers to do an “averaging” calculation over a weekly, fortnightly, monthly or seasonal pay period.
As John Ryall says in his blog today :
“It was particularly galling to see the Department of Labour, whose Labour Inspectorate is tasked with enforcing the Minimum Wages Act for tens of thousands of vulnerable workers, saying that it might be legal for an individual agreement rate of $3.00 an hour to be legal if the employer paid the worker a much higher rate for other hours, so that an “average” of $12.50 an hour was achieved…….”
“The DoL and employer argument could also lead to workers being paid $3.00 an hour for their sick leave if they happened to be sick on a day that they normally were paid $3.00 an hour, or to be paid $4.50 an hour if a public holiday occurred on that day and they were required to work.”
It’s good to see Phillip and other residential care workers doing “sleepovers” closer to having their work properly valued. And it’s good to see the Employment Court taking a stand on minimum wage, on which unfortunately, so many workers depend.
And that reminds me – Kate W is coming up due to announce minimum wage changes for 2010 soon. What’s your guess on an increase?
They deserve a decent wage.
I’m really pleased about the Employment Court’s decision. However, there is still the problem about where the money for wages comes from. I fear that unless the Government pays IHC more for providing residential care, there will be cutbacks in staff and resourcing. So let’s hope the Government ups the contracts, and increases benefits too so that residents don’t have to live in poverty. And of course, wages for this skilled and important work supporting other humans, need to rise too.
Yes, you’re right Hilary. Basically, the government will have to stump up. However, I’m particularly pleased the minimum wage wasn’t further eroded through this court process.
Im concerned about the proposal to redefine ’serious harm’ in workplace accidents that was announced Dec 03.
There was the usual puffery about reducing paperwork etc but no details. Surely they have time to get the EMA proposals sorted out , as it would be them who are doing the work on this. My guess is the details will be aanounced toward the end of February while the holiday mood still lasts
@gwwnz – yes, I’ve had a look at that and watching it carefully. Did you see the doubling of workplace accidents in the last five months?
I think one of the key elements of the proposal us to reduce from ten days to seven for the incapacitation. But I guess we will see the real agenda later.
Well done to Phillip and his workmates, and their Union
These care workers are not exactly brain surgeons are they.
$12.50 is about what they are worth, and no, they should not be paid to sleep on the job.
They are care workers, human service workers, workers who are responsible for the health and wellbeing of vulnerable adults. They need to be highly skilled and professional organisers, behaviour managers, motivators, teachers, clinicians, cooks, cleaners, nurses and also empathetic and respectful. A brain surgeon probably wouldn’t last the night in a home with some high needs disabled adults.
I think they need to be paid more. I don’t think it’s sleeping on the job to be turning an invalid or whatever else they have to do. Yes they should be paid.
Finally. This was my first job after completing a degree in psychology. The first support workers were just ex warfies used as muscle (laborers). When I came along a skill set was required and the majority were burned out teachers. There was a great increase in the use of support workers when private contractors started tendering for community rehab (de-institutionalization). ie they were cheaper than registered nurses, and could do most of the same job. The nurses often were there to legally dish out drugs + physical health issues. Now the role is well defined and many places (contracts) require the worker to have a diploma in support work.
I had the same argument in 1993-1996 re sleepovers. This behavior was due to company cost cutting (hospitals don’t do sleepovers) to win contracts, and I suspect lack of good free legal advice for employees.
Just been talking to a RN from England and he did not know what a sleepover was. If you are there you are working, If you fall asleep you get reported.
Strange how these companies would not try this on a unionized professional group!
Good on this man for sticking up for all the workers in this industry, at his own expense.
Jeremy, while Phil Dickson fronted the case very ably, as an elected Service and Food Workers Union workplace delegate, he is representing more than 3000 unionised IHC support workers.
Phil works up to 250 hours a fortnight but for up to 140 of these hours he gets paid about $3.77 an hour because according to his employer he is not working, but merely “sleeping over”.
When the Employment Court heard his evidence in July and had the opportunity to cross-examine him, they declared unanimously that living on your employer’s premises to look after five intellectually disabled people during the night is indeed “work” and should attract the minimum wage.
This decision, which is consistent with similar decisions covering these workers in most Western countries, led to a counter-offensive argument over how the minimum wage was applied.
It is good to see that the Court has rejected the concept of “averaging” as an excuse for not paying the $12.50 minimum hourly rate.
It is sad though that the Department of Labour, as the legal enforcer of the Minimum Wages Act, decided to invent this excuse for exploitation.
Five!!! That is a huge patient to carer ratio!
At the end of the day the residents of IHC are not living at
home with their family’s they are being looked after 24/7 by people who are unrelated to them 24/7 and it is a big responsiblity to take care of other people’s kin, etc, at the end of the day these worker’s have to be highly skilled and have patience with the demands of IHC residents, and Management. Calling a night shift a sleepover is just another way of IHC justifying only paying an allowance for that worker of $30 and no more than $40 a night and that allowance is Taxed!! did you all know that part of it, the workers are required to be alert at all time’s during the night even if they get a rest it is NOT a sleep as we know it, its half a wake.