A Court of Appeal decision yesterday confirmed a previous Employment Court ruling that “sleepovers” performed by disability support workers is “work” and should be paid at the adult minimum wage of $13 for every hour of their shift.
My congratulations to the disability support workers and their unions for their persistence and determination in pursuing this outcome. They’ve had everything thrown at them since the 2007, including an Employment Relations Authority hearing, an Employment Court case in 2009 and the Court of Appeal.
The government joined the appeal through the Attorney General to argue that the Minimum Wage Act enables averaging of the minimum wage across a pay period, but now the Court of Appeal has also disagreed.
The Court noted the union lawyer’s comment that “no-one had ever heard of the averaging theory until it was created for this case, and most unions, workers and employers consider it to be bizarre”. It seems that this argument had been dreamed up to avoid the obligation to pay minimum wage to these workers.
The Court has left it to the parties to reach an agreement over how the decision will be applied, with the option of returning if agreement can’t be reached. The government needs to meet with unions, disability support providers and representatives of service users to find a durable solution that will ensure a quality service can continue to be provided with workers being paid their basic entitlement to minimum wage.
It will mean that the government will have to fund providers to pay their staff the legal minimum wage and that clearly has significant implications for the health budget.
But New Zealand has relied on the goodwill of caregivers in disability support for years. These workers and the people they care for should now be able to rely on the government’s support for the important work they do.
We muddle through Robbo, as all parents of special needs kids do.
What you don’t seem to appreciate George, is that it is difficult to find people now to staff the residential units. It is bloody near impossible for me to get anyone for one night.There is a cumulative affect of a lack of,or, serial broken sleep.In the immediate I lose my short term memory.Lists are my friends.It affects everything from diet to relationships .
I have no doubt that the residential care workers find these are pretty tough work conditions.Why the need to prevent them from being fairly remunerated?
Or we could lock everyone up. Or drug them. Like we used to. In the good old days.
@Peter – my sympathy
Yeah thanks Spud. *l*
Can someone please explain how sleeping is working?
I understand that if a carer is up working then there should be a payment (possibly additional) for that. Otherwise I would say sure we will pay you, but then we also expect you to work. (not sure what work can be done through the night, but then maybe the cleaning, cooking, house keeping could be starters.
Nurses on night duty do not get to Sleep and only get up in case something happens, Police do not sleep on th ejob unless something happens. Firemen do – but they should not be. Firemen are lazy arrogant and precious with a Bully union.
Peter – I do feel for you. My only similar experience was when my children were very small and I know how that affected me. And that was only for relatively short periods, then stopped for a while. To endure it continually, and without prospect of it ever ceasing, must be a nightmare.
But that’s precisely why we have to agree what is fair remuneration. And that can’t be lots and lots more than everyone’s getting at the moment, because the country can’t afford it.
If those who sleep over are give this huge windfall (over what they knew they’d be paid when they went into the job) then it could lead to you situation getting worse, not better. Because the cost of providing a single night’s care will go through the roof. And as there’s no more money to spend the number of nights care provided will inevitably decline.
Beware those who promise you the earth regardless of the cost.
Monty…the person who sleeps over is the one who doesn’t go home at the end of the days work. This is how the IHC et al have been able to afford to run the houses.
The simple fact is that at the begining of all of this, is just how much money society considers it should spend on the disabled.At present it appears that the funding of the carers has been illegal and they have been underpaid.
Perhaps as you indicate as nurses have shifts so should residential care workers. I’m happy with that. Cost more though…
‘And as there’s no more money to spend the number of nights care provided will inevitably decline.’
George…we are talking of around three or four adults living permanently in a house…along with a full time carer.Are you suggesting that there will be no carer at nights? Because if you are then the alternative is a far more expensive option.These people cannot live unsupervised.
No, clearly that couldn’t happen. So whatever discretionary spending that could be cut to compensate would be. Which, by the sound of it would be most detrimental to people like you.
‘Which, by the sound of it would be most detrimental to people like you.’
Not about me George. It’s about the people in the house. Those who call it home and those who make it so.
and to show yet again how out of touch you are.
NZHerald has a poll with >8150 votes.
70% say NO to “Should disability carers be be paid minimum wage on sleepover shifts?”
your idea is polling at 30% – just like labour as humour would have it.
It’s like talking to brick walls sometimes. I feel sure if the average carer was paid $50k+ a year they would be happy to do the occassional sleepover, but they’re not, so they’re not. Let’s get to a point where no one does a sleepover, cos George et al wouldnt expect it for free (although they really do seem to expect that)… NOW who cares for those in need?
On another thread the same folks are talking about the beneficiairies who arent entitled to this and that and need to budget better blah blah and how they appreciate some are in genuine need, yet on this thread they’re fighting support for those in genuine need….
Opps. Missing end of blockquote. Where is that edit function?
To be fair, I don’t think he’d be able to fit it in to his busy schedule of trolling red alert from day break to the midnight hour.
Glad you got over that bout of gross exagerating stereotyping, Monty
I get up much earlier than daybreak, old chum.
Fair enough, george.
Guess you have to fit in all those posts here, some how.
George keeps on repeating that he doesn’t think that support workers required to stay on their employer’s premises in order to be available for their 4-5 intellectually disabled residents should be paid $12.75/hour, but should be paid an allowance instead.
You can call the payment whatever you like but the Minimum Wage Act says that employees must be at least $12.75/hour for each hour worked.
The state of NZ employment law is currently so bad that everything is about “willing buyer, willing seller” apart from a couple of statutory protections that stop workers in poor bargaining situations falling below what is a socially acceptable minimum.
One of these pieces of legislation is the Minimum Wage Act. The fact that the Government now wants to amend the Act to allow payments below the $12.75/hour level shows how far NZ is falling compared to other countries in the Western World.
It’s like we all said before the 2008 election – The nats have nothing new, except a leader with media training. Give them a couple of years to balls it all up, and we’ll be spoon fed all the old failed policy of the 90s they thought NZ had forgotten.
Let’s remember, we had 9 years of Labour because the nats were so poor.
It’s all history repeating
The whole thing hinges on one’s definition of the word ‘work’.
Some of us contend that sleeping isn’t work, and that recompense for it by way of a flat fee is adequate.
Someone has said that the provisions shouldn’t apply to boarding school teachers because they’re salaried. This just seems to be a semantic difference to me. It’s either work or it isn’t, isn’t it?
Perhaps, harping back to a discussion that went on a few weeks ago, if the service providers are faced with costs going through the roof they’ll consider putting the posts out to tender for fulfilment by ‘independent contractors’. That way those providing the service would be entirely outside the provisions of the employment act, wouldn’t they?
George said:
The whole thing hinges on one’s definition of the word ‘work’.
Exactly. And three authorities have ruled (the ERA, the Employment Court and the Court of Appeal) what disability support workers do on overnight shifts is “work”. Feel free to argue against it, but not on an emotive level that being paid to sleep is not work, but on what the judgements have said and the basis behind it. Then I might take you seriously.
There is a difference between salaried and waged workers. It is relevant, and do you really need it spelled out?
So, here’s the options ahead :
1. The government and IHC waste more money appealing the decision, even although three courts have now said the workers are right. Silly.
2. The government changes the Minimum Wage Act to include their new theory of “averaging” – affecting hundreds of thousands of workers in the calculation of piece work, overtime, holiday pay, public holidays and sick leave – doesn’t seem a fight worth buying but you never know with JK.
3. The government meets with stakeholders and figures out a way forward for the sector that funds quality services and fair wages for all hours worked.
4. Some, like George (and probably the government) think the workers should just give up; they should just be grateful to have a job. Not going to happen, I’m sorry.
Best option : Obvious – number 3. The offer’s there. Ball’s in the government’s court.
Maybe IHC should sue the government over its contracts with the Ministry of Health because they were based on an inaccurate assessment of the cost of providing care?
Darien, I have to admit, I’ve never voted Labour. I’m only interested in this because my wife is one of the workers affected. But based on your post, I’m wavering =)
It’s obvious that option 3 is the only way forward. But this should not be turned into a political issue, it has been around for 10 years. I shouldn’t need to point out who was in Govt prior to 2008.
Anton has a point, in that IHC has been almost negligent in their negotiations with the MoH over funding – but understandable when a non-profit organisation is 98% dependent on Government contracts for their income (research “mission drift”).
Darien, I appreciate your support on behalf of the workers involved, but don’t fall into the trap of the blame-game. It’s far more important for the sector and the disdvantaged members of our society to find a workable solution moving forward, not to pick over the carcass of the past and find who was at fault.
@Robbo : I agree and that’s why I’ve been calling for the government to meet with stakeholders and negotiate a solution. However, I don’t want to see the government legislate either, because it will not only affect your wife, but hundreds of thousands of other workers and you can expect me and Labour to be very strongly opposed to this.
@Robbo – the point about the contracts is really asking the question whether they are valid given they were entered into on the basis of incorrect information, i.e. on an assessment of how much it costs to provide care that is woefully inadequate. I don’t think it’s a matter of IHC being negligent (although I think there’s hypocrisy on IHC’s part given their stance on the state of the disability workforce and disabled people’s right to be paid the minimum wage), rather than whether contracts can stand. Everyone’s talking about the problem as if it’s about government funding – it’s not. The contracts are real live contracts, enforceable in the courts. One would think that this would be a last resort and that once the problem is characterised in this way government would see sense and front up so that, as you say, we can all get on with things before we begin to turn the lives of disabled people upside down. Trying to convince this government to “increase funding” is probably futile, so it’s just a suggestion that we look to something a bit stronger that’ll force government’s hand. Maybe the nat’s tendency to prefer contracts over funding will come back and bite them – maybe.
Anton, there is a relevant point in that it doesn’t matter what an employee and employer may agree, (from what I have read in the judgements and without going to get the relevant material) the Minimum Wage Act states an employee/employer cannot contract out of the provisions of the Act.
So, if what disability support workers do is defined as “work”, what is in the employment agreement is null and void, insofar as the Minimum Wage Act over-rides whatever is in the agreement between employee and employer.
Further, while you are technically correct in that it is not a government funding problem – I agree, it’s an employment matter between IHC and their workers – unfortunately, IHC are 98% dependent on Govt contracts for their income (and by implication, the services they provide).
When the Employment Court delivered their decision in Dec 09, Ryall’s response was this is an issue between the provider (IHC) and their employees. I think even he has realised that, despite placing IHC in statutory management in Oct 2010, letting “nature take its course”, workers win, but employeer goes under/bankrupt, is not in the best interests of anybody
To Chris,
You might want to look at that NZH poll again, mate. 70% say YES, disability support workers SHOULD BE PAID the minimum wage.
Loser
Define work – Paid employment. My definition (and others I talk to) is the loss of liberty (by agreement). Ie you give me money and I agree to go where you want me to and perform the tasks you ask. It matters not that you tell me to sleep, but that you ask me to remain at the workplace, unable to choose to (go to pub, go home, visit my bank, whatever). To find an equivalent circumstance think of a fishing boat or tour bus (Kiwi expe), they are ‘on’ for a week at a time (and paid a significant fee). Compared that with a city bus driver if waiting for a school group at the zoo must be returned to their car or paid time.
We’re told that complying with the standard minimum wage obligations for sleepover shifts adds about $50m per year.
To give some sense of perspective, that is less that 2% of the government’s annual disability support spending of about $3b. It’s still 2% even if you add Tony Ryall’s red herrings from other sectors.
This is only a matter of priorities when it seems there’s plenty in the kitty for bailing out wealthy investors without the slightest challenge or delay.
Yes Robbo, the matter is between IHC and employees, and yes of course minimum requirements of the legislation override the employment contract, which is precisely what the case was about. The status quo then is that IHC owe arrears to employees and must pay at least the minimum wage for the time an employee sleeps over from now on. My point is about the future, and simply suggests that IHC may have a case to sue the MOH in contract (not the employment contracts) but the contracts they have and have had with MOH to provide services to disable people, on the basis that the information those contracts were based on is false i.e. the cost of providing those services which we now know is higher than the “sleepover rate”. How do we know this? Because the Court of Appeal has told us. All this talk about cost is on the basis of the status quo being that IHC owe money in arrears to employees, and that the cost of providing services is higher than what MOH currently pay. There are a number of obvious issues to look at of course, like when the current contract is up for renegotiation, and whether government of the MOH will be prepared to factor in the extra costs when contracts are renegotiated. Government is of course talking about legislating, which my understanding would mean putting an exception into the Minimum Wage Act that allows for sleepover rates to be paid less than the minimum wage – they may even try to make it retrospective, I don’t know – it would be extremely unconstitutional. However, my point was simply suggesting a way that could make the contracts invalid because they’ve been negotiated on erroneous information – that’s all. Whether it’s a goer or not, I don’t know. But I think it’d have more chance than an appeal to the Supreme Court on the minimum wage and sleepover rate issue. That’s got no hope. The Supreme Court I’d guess would likely refuse to even hear it.
Gotcha Anton, understand now. Something I read in the weekend would suggest there might be an avenue for IHC to sue MoH:
“Because the directors of IDEA Services and Timata Hou still considered there was a legal obligation for the Ministry under S20 of the contract to fund the adverse sleepover decision a claim against Ministry of Health was disclosed as a contingent asset.”
Whether a NGO that is 98% dependent on Govt contracts for their income would pursue that option with much rigour is the $64 question. (would love to get my hands on that contract and see what s20 actually says)
I also wonder about the “good faith / partnership” ideals that have been ushered in over the last 10 years into government – voluntary sector relations, cause I ain’t seein’ much of it in this case.
Yippee. IHC have applied (on the last possible day) for leave to appeal to the Supreme Court. And so the saga continues =(
@Robbo : I know. Waste of money and the government has been totally irresponsible in not getting the stakeholders together to try to find a solution. I’m really sorry that the workers are going to have to jump through a whole new set of hoops to get justice.
No need to apologise. Not your fault.
I still would love to know what s20 of the contract between MoH and IHC actually says … I have just as much anger towards IHC as I do the Govt cause if they really cared about their employees and the service users they’d assert their independence that non-profit organisations are supposedly meant to have =(
Yes contract might be an angle, but more litigation required, more money wasted and guess who has the resources to fight? Understand the anger about IHC and there’s been plenty of instances in the past where they have used tactics against their staff that were, quite frankly, appalling. But the responsibility this time around is the governments and they have failed both the workers and the people they fund IHC to care for. And its not only IHC affected. There are thousands of workers with claims lined up in the Employment Authority, many of whom work for other disability or mental health support providers,
Darien, have only just seen this now. My point about contract isn’t necessarily about more litigation, but about pointing out to government that they may in fact be liable over those contracts so they’d might as well start talking to avoid more litigation. Looks like this may have somehow finally sunk in.