Court of Appeal sleepover case information

PSA and SFWU
JOINT MEDIA RELEASE
February 16 2011
For Immediate use

Court of Appeal sleepover case information

What is the sleepover case?

The disability and community mental health sector has been chronically underfunded by government for years. The sleepover case is a legal action involving disability support workers who are being paid less than the minimum wage of $12.75 an hour. The government announced on February 7 2011 that it’s increasing the minimum wage to $13 an hour from April 1. The minimum wage applies to all employees aged 16 and over who are not in training.

What do disability support workers do?

The workers involved in the sleepover case work with men and women who require 24-hour support because of their disabilities or because of mental health issues. They live in residential houses staffed round-the-clock by support workers. The houses are operated by agencies such as Idea Services - the service arm of IHC, Spectrum Care and Healthcare of New Zealand. These agencies get the bulk of their funding from the government via the Ministry of Health.

What does their job involve?

Disability support workers based in residential houses provide 24-hour support for the house residents. They are responsible for the health and safety of the house residents and enabling them to live as full a life as possible.

Their work includes dispensing medication, providing meals, bathing and clothing the residents, doing their laundry, managing their personal finances, managing their personal development programmes, taking them to doctors appointments and community outings, cleaning the houses, doing the supermarket shopping, managing the house finances, keeping diaries on each resident, a house diary and writing a monthly report.

Are they paid the minimum wage for providing 24 hour support?

No. The disability support workers are required to staff the residential houses 24 hours a day. But when they work overnight sleepover shifts they are paid less than the minimum wage. Idea Services pays its disability support workers $34 for working a 9-hour sleepover shift from 10pm to 7am. That’s $3.77 an hour, a third of the minimum wage of $12.75 an hour. This is not a legal living wage and the low rate for sleepovers at Ideal Services is typical throughout the sector.

Why are they called sleepover shifts?

Support workers are allowed to sleep during the shift but they remain responsible for the health and safety of the house residents who need 24 hour support. They must be readily available to assist residents and if there is an incident they have to deal with it. Because of residents behavioural issues and disabilities there is often a lot of disturbance in the night even without incident.

Do other workers get full pay when allowed to sleep at work?

Yes. Firefighters, ambulance officers and resident doctors are allowed to sleep at work while doing overnight shifts and continue to get paid their full rate.

Firefighters are allowed to sleep at their stations between 11.30pm and 6.45am. Ambulance officers can sleep at work between 10pm and 6am.Resident doctors are allowed to sleep on 10pm to 8am shifts. They all continue to receive their full pay while sleeping during these overnight shifts. That is because they are at work and available if their services are required - just like disability support workers doing sleepover shifts.

What are disability support workers doing about this underpayment?

Through their unions - the Service and Foodworkers Union (SFWU) and the Public Service Association (PSA) – disability support workers launched the ‘sleepover’ case in 2007.

What was the unions’ case?

The unions’ case involves disability support worker and Service and Food Workers Union (SFWU) member Phil Dickson. He runs a residential house that is home to four men with intellectual disabilities. Phil is paid $34 for doing a 9 hour sleepover shift from 10pm to 7am. That is $3.77 an hour. The unions argued that a sleepover shift is “work” as defined in the Minimum Wage Act. So Phil Dickson should be paid the current minimum wage of $12.75 an hour for the shift.

What did the Employment Court say about the sleepover case

The Employment Court agreed with the unions’ case. The court ruled that being required to stay on the employer’s premises throughout the night to support people with intellectual disabilities was ‘work’ and should attract the minimum wage.

The court described Phil Dickson’s responsibilities on a sleepover shift as “weighty” and “critical to the business of the employer.” The Employment Court also ruled that “Mr Dickson was entitled to be paid not less than $12.50 for every hour he worked for Idea Services Ltd including the work done during sleepovers.”

The minimum wage was $12.50 an hour when the Employment Court heard the case in 2009. The government increased the minimum wage to $12.75 an hour on April 1 last year and may increase it to $13 an hour this year.

How does this decision affect workers throughout the sector?

Both the PSA and SFWU have filed cases on behalf of their members at dozens of disability providers. These cases are seeking a minimum wage for every support worker in accordance with the limitation period for a wage arrears claim.

How would the law change affect workers?

All workers would lose the certainty that the minimum wage is the lowest rate an employee aged 16 and over, who is not in training, can legally be paid. .Instead a worker could be paid $6 more than the minimum wage for some hours and $5 less for other hours. In theory a worker could receive no pay for some hours and have the pay made up with a higher rate for some other period in their pay cycle

This would hugely disadvantage workers if their low pay days fell on a public holiday when they are entitled to be paid at time and a half.

What is the cost of paying the disability workers $12.75 an hour for sleepovers?

The SFWU and PSA believe it would cost just over $250 million to pay disability support workers the minimum wage of $12.75 an hour for sleepover shifts. Most of this amount would be a one-off back payment for disability support workers who have worked sleepovers during the last six years.

The unions believe the ongoing cost would be about $50 million a year.

Should the government provide the money?

Yes. Disability support workers enhance the quality of life for thousands of New Zealanders with disabilities and in community mental health facilities. The sleepover case shows they have been underpaid for years. It’s time the government admitted this and took responsibility for funding the sector adequately so that employers can pay their workers what they are really worth - a legal, living wage.

ENDS

© Scoop Media