Court of Appeal Ruling on Sleepovers
The Court of Appeal on Wednesday upheld an Employment Court decision against an IHC provider which had paid a shift allowance of about $30 and was opposed to an hourly minimum-wage rate. This ruling could have implications for staff on school camps and school hostel workers.
The Court considered that all three factors applied to a significant degree in this case, and so concluded that Mr Dickson’s sleepovers constituted ―work‖ for the purposes of s 6 of the Act.
The point of the minimum wage legislation is to ensure workers are paid at least the minimum wage and, if necessary, to override private arrangements. Parliament did not intend employers and employees to be able to contract out of the legislation by agreeing between themselves that an employee’s functions are not ―work‖. If sleepovers are ―work‖, then Mr Dickson is ―entitled to receive from his employer payment ... at not less than [the] minimum rate‖, ―notwithstanding anything to the contrary in any enactment, award, collective agreement, determination, or contract of service.
The legislation explicitly provides for those situations when an employee works more than the ―ordinary‖ amount: see, for instance, para 4(c), which requires that workers within that category be paid $12.50 for every hour above 40 hours in a week they work.
We are satisfied that the majority of the Employment Court was correct in its rejection of the averaging argument.