The Court of Appeal has finally clarified the rights of community support workers who are required to sleep on their employers’ premises to be on-call for those people with disabilities or mental health issues whom they are supporting.
Cases were filed in the Employment Relations Authority by both the SFWU and PSA in 2007 to remedy the underpayments of workers employed by disability providers IDEA Services and Spectrum Trust.
The case that appeared first was that of a SFWU member Phil Dickson, who was working over 200 hours a fortnight for IDEA Services but only being paid an ordinary rate for 77 of those hours. The other hours were paid at the rate of $3.77 per hour.
Despite the submissions of IDEA Services, the representatives of Intellectual Disability Providers and the Department of Labour that this practice was quite legal, the Employment Court ruled in 2009 that “sleeping over” on the employer’s premises was “work” and Phil Dickson should be paid a minimum of $12.75 an hour for each hour worked.
IDEA Services appealed this decision to the Court of Appeal and were joined by the Government, in the form of the Attorney-General. IDEA Services argued that “sleeping over” was not work because it did not contain any “mental or physical exhaustion” and collaborated with the Attorney-General in a submission that even if sleeping over was work that Phil’s payment of $18.00 an hour for some of his work could be overset against $3.77 an hour for other parts of his work to give him a lawful “average” of at least $12.75 an hour.
The Court of Appeal judges have unanimously rejected both these arguments.
In rejecting the “mental and physical exertion” argument they point out that “few workers are required to physically or mentally exert themselves at every moment of their work day” and point to meat workers during a stock shortage, fruit pickers during inclement weather or shop assistants when there are no customers often experiencing long periods when no such exertion is required.
In regard to the “averaging” argument the Court noted the union lawyer’s comment that “no-one had ever heard of the averaging theory until it was created for this case, and most unions, workers and employers consider it to be bizarre”.
The indication from the Court of Appeal is that they considered that this argument had only been dreamed up to avoid what was an obvious conclusion from the time this case was filed in 2007.
The conclusion was that community support workers provide a fantastic service for people with disabilities and mental health issues, that they have been unrecognised and underpaid for years and it is only now after four years of litigation that they are being taken seriously.
There are 5000 cases filed by the SFWU and PSA in the Employment Relations Authority waiting for the Court of Appeal decision. We hope that the litigation can stop here and the Government commence discussions with the unions and sector employers to sort the matter out once and for all and pay the workers what they deserve.
their is winning and there is winning. the end of the day so long as there is caring people in care will come out on top.
glyn
wanganui
Glyn, you may wish to proof read and edit your post. I think I know what you are getting at, however, your post is very badly written. I’m sure you have some insightful things to say. Don’t drink and blog buddy.
yes lol point taken, thanks Ben.
‘With service users and their family members speak out on this issue, we will be back paid’
John, my wife is one of those 5000 cases and I wish you luck. However, my cynicism suggests that despite having won the battle three times the war is not over.
I am disgusted and angry that the Ministry of Health continue to bury their head in the sand over this. I’m expecting this to end up in the Supreme Court but at the very least provision should be made NOW (it should have happened 14 months ago when the Employment Court decision came out) in budgets for the difference between $34 and $13/hr, and placed somewhere like a trust account so money is available to pay workers should the final outcome confirm what two courts have already ruled.
You know the high probability that litigation won’t stop – the IHC have already said they will appeal (they “have to” because they have no money to pay, according to reported comments. Pretty flimsy reason for a legal appeal as an aside). So, workers will continue to receive $34 for the overnight shift while this gets dragged out another 18 months – 2 years?
I’ve read the judgement and if anything, the Court of Appeal have left even less wriggle room for an appeal than the Employment Court did. Time to play hard-ball with these jokers if they continue to dodge their responsibilities.
have heard rumours that Idea might change to wakeovers, and leave some houses without staff during the night.Surely this would be at a higher rate than the minimum hourly rate- How can Idea afford this option as it also becomes an issue under Health and Safety regulations?
The struggle to recognise the work of disability support workers has gone on since we first filed Phil Dickson’s claim in the Employment Relations Authority back in 2007.
We won’t stop until we get recognition that disability support workers are as valuable as ambulance drivers and firefighters and should be at least paid the statutory minimum hourly rate during the time they are required to remain on-call on their employer’s premises.
During an Employment Court hearing last year the Chief Judge supported an IHC case that one of their services should be recognised as an “essential service” so that the union needed to give 14 days notice of strike action. The Chief Judge said that the work carried out in this IHC service was very similar to that carried out in a prison.
It did not pass the notice of our members that prison guards get paid almost a third more than they do.
There is a basic injustice about the way disability support services have been funded since the state psychopaedic hospitals closed down in the 1980s. That injustice is the low wage rates that the community support workers are expected to be paid.
This case has clearly brought that point home to everyone apart from those who do the funding – the Government.
People with dis-Abilities are our most vunerable people in society and those who care for them must work thru read tape, with little support and everyone knows little pay.
I get paid $34 to sleepova at my wrk. Im not happy with that rate, no one is. I truly care about the people I care for and their future.
The reality of sleepova’s is that I dont really sleep, because I’m on alert listening to wether the people im looking after are jst toileting or doing something they’re not meant to. Im not aloud to have a lock on my door while im resting, even tho in some cases we shud. When I’m at home I automatically wake up @ 3am cause thats the time I get woken @ wrk. I have wrkd for idea 4 only a yr and I’m surprised that an organistion that cares for people apeals that court decision twice & shows little care for their workers.
kia ora and congrats to all our caregivers in this game of hardball with the govt/ihc we have the advantage at the halfway stage lets sincerely hope when the final whistle blows our hardworking members have the most points on the board
i heard the goverment is changing laws so they dont have to pay out.
i think if the goverment changes the law so they dont have to pay out we all should get togeather and do a mass walk out go on strike. the goverment and idea will bend as thier is not enough people out thier to take care of the service users if we were to take strike action.
Judging by all the newspaper editorials and the NZ Herald poll, which gave us 70% support to be paid the minimum wage for sleepovers, it would be a brave government that deprived us of our win.
We are urging our members to write letters to their local newspapers and to visit their local National Party MP to reinforce our determination to continue to fight to have the work of disability support workers recognised.
Well, I was so relieved to hear about the result of the court case (again)…However the next week the earthquake in Christchurch hit..God bless all people involved…no disrespect at all to them for the following statement. I think the govt. will use this as a ploy not to back pay us, making us look like greedy workers to the nation, with the backing of the media. I agree that if service users and their families supported us, the govt would think more seriously about settling with us… We have waited so long for fairness. Last year our PM immediately jumped into action when Warner Bros. were going to pull the plug on Peter Jacksons new movie being shot here, paying millions, and changing the law for actors!! What have actors ever done for the real people of NZ!! We are in the communities everyday with people we support, taking care of them, not just acting like we care!
WHY ARE WE STILL WAITING TO BE PAID FOR SLEEPOVERS!!IT’S BEEN NEARLY A MONTH SINCE THE COURT OF APPEAL RULING THAT WE SHOULD BE PAID BY THE HOUR FOR SLEEPOVERS!! I DON’T KNOW WHY WE GET STUFFED AROUND LIKE THIS….WE SHOULD ALL STRIKE AND SEE IF WE GET ANY KIND OF REACTION THEN!! ATLEAST SOME SORT OF COMMUNICATION ON THIS MATTER!!THE WAITING IS AN INSULT!!!!
Be patient Emma. IHC and the Government have one more throw of the legal dice (the Supreme Court), which they will need to exercise in the next two weeks.
Meanwhile get your workmates and the families of those you support to speak to their local National Party MP and tell them to start talking to the union about the funding for a settlement of this long running issue.
It is about justice for disability support workers, but it also about a better deal for those who we support.
John, when i asked my boss today if he had any news on whats happening with situation regarding us still only recieving the flat $35 a night for sleepovers, his response was,we expect the government will legislate so we will wait till that happens. Im sorry but at the moment i have 11 people to look after in the facility im working in, when i started 2 years ago we 8 people max. Im getting tired of being not heard and given the standard answer -just wait-.
Everybody seems to be just waiting.
Luke, we understand that tomorrow is the last date that IHC can apply to the Supreme Court to seek leave to appeal.
The waiting may not be too much longer before we take action to implement payment.
Meanwhile, our members are visiting National Part MPs to discuss the reasons why support workers should receive the statutory minimum wage.
So far the reaction has been very supportive. Whether this is because we are 8 months away from a general election, who knows.
The Government will need to be involved because it is the funder of disability support services. We have commenced talking to them about taking up their responsibilities, without which their will be no solution.
So they waited until the last day to file an appeal. My cynicism grows.