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Sleeping when on the clock

The Dominion Post 22 July 2009

Phillip Dickson was employed by IHC through a company called Idea Services. He was paid a sleepover allowance when he was sleeping in the group home for intellectually disabled people he worked in.

His freedom to do as he wished was constrained and he had responsibilities during his sleepover period. His work benefited the employer. Mr Dickson said that he should be paid the minimum wage when he slept over and not just the sleepover allowance because he said he was working.

Whether Mr Dickson was working when he slept over was the key issue for the Employment Court. The case will affect many workers in the voluntary and care sectors.

Group homes replaced large institutions such as Kimberley Hospital near Levin, where people with disabilities would be gathered and cared for in large numbers. During the 1980s a shift in the thinking behind the care of and support for disabled people resulted in moving such people into the community and having them live in small groups in houses within society.

As far as possible the group homes provide a conventional community living environment. They are more like a flatting situation but a significant feature of each home is that its residents are cared for by an onsite employee such as Mr Dickson.

Most of the operating costs for group homes are delivered by Government, although some funding comes from public donations, investment income and rental from occupiers. No doubt the shift from large institutions with employees on government rates to private group homes has saved the taxpayer a lot of money. No doubt also the IHC, which operates 900 group homes, pays out the money it gets from Government to run its homes.

Mr Dickson worked in several IHC homes in the Horowhenua area but principally one in Otaki. He was paid an hourly rate for some of his time when he worked assisting residents with domestic matters such as washing, making meals, cleaning and tidying and the preparation of lunches for the following day. He would also supervise social activities.

However, from 10pm until 6am or so the following day Mr Dickson frequently remained in the home on a sleepover. During that time he was not required to be actively and constantly engaged with service users, their visitors and others.

BUT he still had responsibilities. He had a room which was used as a staff room and office during the day but which had a bed and other modest furnishings for his use at night.

In deciding that Mr Dickson was working and should be paid the minimum wage for each hour of sleepover the court thought there were three important factors.

The first was the constraints on his freedom during the evening. He could engage in only very limited activities overnight. He could not carry on normal family life or socialise with friends, and his privacy was limited. He did not have access to the comforts and resources of his own home and he must be sober and quiet. The greater the constraints the more likely he was in paid work.

Second, his responsibilities were important. The greater they were, the more likely he was to be working. He had to care for and support service users and ensure the safety and security of the group house. The responsibilities were continuous whether he was asleep or awake and he was not relieved of these till another staff member arrived in the morning.

Third, the court looked at the benefit to the employer of having Mr Dickson assume the role in question. The greater the importance to the employer, the more likely it is that Mr Dickson was working.

It was critical to the business of the IHC through Idea Services that there be a community service worker performing a sleepover in each group home every night. Without their presence the employer would be in breach of its obligations to operate the homes in an appropriate manner and that would jeopardise its funding.

Weighing up each of these factors, the court decided that when Mr Dickson was engaged on sleepovers that was work for the purposes of the Minimum Wage Act and he was entitled to be paid not less than the minimum hourly rate for all of that time.

The case has not been finally resolved, however. The IHC argued there should be an averaging of wages. The fact that the employer paid above the minimum rate for the period when wages were paid should be taken into account.

Mr Dickson should get the minimum wage throughout the whole period of his engagement and so-called overpayments should compensate for periods when he was only paid a sleepover allowance.

Mr Dickson argued the so- called overpayment should not be taken into account. He should be paid for each hour of sleepover at the minimum hourly rate.

The court has yet to decide the question of whether there should be the averaging of wages for a period of work so that payment at less than the minimum wage for part of the period is balanced by payment at a greater rate for another part.

This is an important case for caregivers, their employers and also no doubt for the Government, which effectively funds organisations like IHC to provide the service it does. IHC will no doubt ask Government to foot the bill.

It will be interesting to watch the Government's response and to learn the court's final decision on the averaging argument. Watch this space.

Peter Cullen is a partner at Cullen - the Employment Law Firm

Email: peter@cullenlaw.co.nz

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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