Point No.1, as stated in the Collective Agreement between IHC NZ Inc (and its subsidiary companies) and the the Service and Food Workers Union (SFWU):
All residential staff are required as a condition of employment to be available to sleepover for the purposes of being on call during the night
Let's be clear, Community Support Workers employed by the subsidiaries of IHC are required to be available, it is a mandatory provision of their employment, not an optional one.
Let's get past the emotion and go and read the judgements from all three. Let's start with the ERA:
1. It is clear that in order to ensure the safety of people living in group homes ... sleepover arrangements are required
2. The only question at issue is whether or not attendance at a sleepover constitutes work for purposes of section 6 of the Minimum Wage Act 1983
3. the term work in s.6 does not appear to have been closely analysed. This is not so in relation to the law over payment for public holidays.
The original decision from the ERA then relies heavily on another decision in 2008 between the NZ Airline Pilots Association and Air New Zealand Limited in relation to the Holidays Act 2003, that the definition of work is "an intensely practical one". In other words, how the Oxford Concise Dictionary defines "work" is not necessarily all that matters.
Let's stop and pause for breath for a moment, and skip to the Court of Appeal judgement released on 16 February 2011:
As the (Employment) Court noted, legislation applies to circumstances as they arise (s6 Interpretation Act 1999) and so it would be a brave court that attempted to divine or craft an exhaustive definition of what work meant in 1983, or in 1945 (the date of the Act the current legislation is modelled on), or, for that matter, what it means in 2010.
If anyone wants to play the blame-game and point the finger, the target should be the legislators. Not National, or Labour - this is an apolitical issue in that no matter what left or right Government has been in power for the past (arguably) 66 years, the Minimum Wage Act 1983 (based heavily on an Act of Parliament in 1945), has not kept abreast of the changes in society that have occured since 1945.
As the Court of Appeal stated in their judgement:
If the result of this judgment is of concern to the Government, the solution is to have the 1983 Act amended. It must be said that the Act is rather simplistic in its formulation. It is effectively in the same terms as the original 1945 legislation. It is very much premised upon the idea of employees working nine to five, five days a week, a work pattern now enjoyed by, perhaps, only 60 per cent of workers.
In simple terms, this mess is (at least) partially the fault of legislators - read the Government, and it is immaterial whether the colour of their website is red or blue as they have both been in power for reasonable periods since 1945 - as they have not ensured legislation keeps up-to-date with societal changes in relation to how citizens perform work (i.e earn wages).
Back to the ERA. There was another case at the ERA involving a disability support worker around the same time (Harding v Spectrum Care) and that judgement is here:
http://dol.govt.nz/workplace/determinations/PDF/2008/AA%20314_08.pdf
I prefer its reasoning over the Dickson case, as it seems to state more clearly how sleeping can be regarded as work.
During an uninterrupted sleepover, while he is actually asleep no doubt Mr Harding does not labour or think consciously, but by being present in the house for a period of 8 hours he is in my view productive. For all that time he is the residents’ protector. Even without actually doing anything he discharges functions and responsibilities akin to those of a parent. By his presence he maintains the well-being physically and emotionally of the clients who live in the house, with regard to their safety and health and also the security of Spectrum’s house property. These things may not be tangible but they are real and valuable to the service-providing relationship between Spectrum and its clients. They are also valuable consideration for reward under an employment agreement.
Further on, it is stated:
His presence, in my view, is consideration equally as valuable as labour involving physical and/or mental activity. While Mr Harding may produce no goods during the sleepover, he does maintain the safety, health and security of the residents of the house by being present.
Both ERA decisions also comment on the restrictions placed on workers during sleepovers. The Harding case notes Because of his restricted freedom during a sleepover, Mr Harding is not truly at rest or even on-call, while the Dickson case discusses at some length various restrictions and their applicability, before concluding:
Mr Dickson must be available to attend immediately to the needs of his employer’s clients and this immediate attention is required for valid health and safety reasons. If Mr Dickson or some other employee of Idea Services was not in attendance, someone else would have to be. I conclude that these restrictions are so pervasive as to constitute work for the purposes of the Minimum Wage Act.
I believe the public has not yet understood that this is not a simple or usual "on-call" arrangement. Being "on-call" at home, able to pursue a personal and family life and "do what you please" until and if a call is received, is completely different to being required to remain at a place of employment to provide continual functions of safety, health and security.
So, in the absence of any decent legislative direction, three Courts have examined the relationship between disability support workers and their employer and concluded, based on the responsibilities involved and the significant restrictions imposed on the workers, they are "working", even if they are "sleeping".
I know that's difficult for some people to get their head around. Any outrage that some people may feel that these people get "paid to sleep" needs to be partly directed at IHC and the way they have structured their operation and how it is staffed. Another topic for another day.
