| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 314/08 |
| Hearing date | 8 Aug 2008 |
| Determination date | 01 September 2008 |
| Member | A Dumbleton |
| Representation | P Cranney ; P White, A Shirley |
| Location | Auckland |
| Parties | Harding v Spectrum Care Trust Board |
| Summary | DISPUTE - Question whether part of applicant’s employment known as “sleepover” amounted to “work” within meaning of s6 Minimum Wage Act 1983 (“MWA”) - If so, applicant to be paid minimum wage for time, even if current pay rate complied with collective employment agreement - Payment for sleepovers by allowance, with extra allowance for dealing with disturbances - Applicant sought finding that pay incorrect and order requiring respondent pay minimum legal entitlement for past and future “sleepovers” - Respondent was charitable trust providing services for people with disabilities - “Sleepover” was eight hour overnight period between two shifts where applicant stayed at one of respondent’s houses with clients - No dispute applicant “worker” under MWA so work subject to s6 MWA - Respondent argued fundamental indicator of work was physical and/or intellectual activity present to some degree - Authority of view applicant productive even when asleep during “sleepover” - Applicant’s presence in house equally as valuable as labour involving physical and/or mental activity - Presence maintained physical and emotional well-being of clients and security of respondent’s property - Presence constituted valuable consideration for reward under employment agreement - Applicant’s freedom restricted during “sleepover’, so not truly at rest or even in on-call situation - Authority found as question of mixed fact and law that what occurred when applicant rostered to “sleepover” did amount to work under MWA - Each “sleepover” occurring during pay cycle to be taken into account in assessing whether applicant paid at least at rate entitled to under MWA - Authority accepted respondent’s calculations which showed applicant’s rate of pay not less than rate required by MWA - Respondent in compliance with s6 MWA - Therefore no underpayment and no arrears owing - Community Support Worker |
| Result | Questions answered ; Costs reserved |
| Main Category | Dispute |
| Statutes | Acts Interpretation Act 1924 s5(d) (repealed);Holidays Act 2003 s50;Interpretation Act 1999 s6;Wages Protection Act 1983;Minimum Wage Act 1983 s6 |
| Cases Cited | Landeshaupstadt Kiel v Jaeger [2003] IRLR 804;MacCartney v Oversleys House Management UKEAT/0500/05/MAA 31 July 2006 Richardson J;New Zealand Air Line Pilots Association Inc v Air New Zealand Limited [2008] ERNZ 62;Sealord Group v NZ Fishing Industry Guild [2005] ERNZ 535;Udovenko v Karelrybflot [2000] 2 NZLR 24;Udovenko v Karelrybflot unreported Young J, 27 April 1999, AD 90/98 |
| Number of Pages | 19 |
| PDF File Link: | aa 314_08.pdf [pdf 63 KB] |