Archive for February, 2011

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.


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