There are several occupations where the employee is required to be on call during the night. They can sleep, whether at home (for instance, IT helpdesk staff able to log on remotely), or at work, but if need be they have to get up and work as required. Should the minimum wage be paid for such on call time? The Employment Court, in a case involving employees caring for disabled people in community homes, has said yes.

Phillip Dickson works for Idea Services Ltd, which is owned by IHC. For part of the time (about 34 hours a week), Mr Dickson works in a house in which a small group of disabled people live, carrying out duties such as washing, preparing meals, and cleaning. For that work, which generally finishes at about 10pm, he is paid $17.66 per hour, well above the minimum wage of $12.50. Several nights a month, he performs "sleepovers", from around 10pm to 6-8am the next day, and spends nearly as much time on these as he does working. He is paid $34 per 8-10 hour sleepover shift, or about $4 an hour.

During the sleepover, care workers cannot leave the home. They must deal with any incident requiring their attention; they cannot be under the influence of alcohol, nor have visitors without their manager's permission, and the consent of the residents. They are responsible for keeping the house locked, even if that means getting up to lock up again when a resident returns late. Some residents frequently wake the care worker if they feel unwell or simply want to talk, just as young children do with their parents. Care workers must also complete incident reports for events occurring while on duty.

The Court was required to decide whether a sleepover constituted "work", the term used (but not defined) in the Minimum Wage Act. The Court said there were significant constraints and responsibilities on care workers during sleepovers, and it was critical to the employer's business that a care worker performed a sleepover in each group home every night. Otherwise, it would not be operating the homes appropriately and this might jeopardise funding. All this meant that sleepovers constituted work, and Mr Dickson was entitled to payment at the minimum wage.

This case has important ramifications for the care industry and for other sectors of the economy, given the wide range of occupations where employees must be on call during the night. Most of these group homes are owned or operated by charitable bodies such as IHC, and most of the operating costs are met through Government grants. Labour costs constitute a large part of the cost, and obviously if employers have to pay three times more per hour for sleepovers, either the taxpayer is going to have to stump up the extra cash, or the way in which the service is performed will have to change, with potentially significant implications for the disabled residents.

That said, the workers perform what is undeniably a valuable service. If we value delivering proper care to physically and mentally disabled people, we ought to be prepared, as a society, to pay for it.


Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.



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