17 May 2016

Sleepover workers win pay case

5:15 pm on 17 May 2016

Nine people who worked sleepover shifts looking after children with sight problems have won their case claiming they should have been paid the minimum wage.

Unmade bed generic

Photo: 123RF

They worked in hostels in Auckland for the company Blind and Low Vision Education Network and while most slept during their shifts, the Employment Relations Authority ruled they were technically working.

The nine people were paid allowances of between $35 and $45 a shift and had to be on call from 10pm until 6.30am to help in emergencies such as illness, inability to sleep and homesickness, and to provide medication.

They were unable to smoke or drink alcohol during the shifts but could listen to the radio or television or use the staff computer as long as it was not too loud.

"The applicants were at times the first point of contact because there are records of them being disturbed in their sleep by students," the authority said.

"They were required to be aware of students who were at risk of self-harm and report any concerns."

The authority allowed the nine people to negotiate how much they were owed with the company.

Third in series of wins

Employment lawyer Andrew Scott-Howman said the latest win for people denied the minimum wage while working sleepover shifts - the third such victory in two months - showed the law still needed improving.

Mr Scott-Howman said he had been involved in similar cases and they typically involved low-paid workers in support roles.

He said the threshold for what constituted work was changing.

"Where the law may develop is where a person isn't literally required to spend their time with the client, but because of the nature of what they do, may be required to spend their time without the liberty to spend their time how they wish.

"So they can't take their son to the park to play soccer and they can't see their family at the weekend."

Last month, the authority ordered Hato Paora College - a boarding school for Maori boys near Feilding - to pay back wages to nine volunteers.

It also awarded an Auckland support worker, whose manager told her she did not pay people to sleep, $35,033.72 in unpaid wages, holiday pay and compensation.

The union E Tū said although the problem was not as great as it was a decade ago, there were still rogue employers breaking the law, if unconsciously.