Service industries will be re-doing their sums after a Court of Appeal ruling that staff on call overnight are entitled to at least the minimum hourly pay rate, even while asleep in the absence of a callout. Expect some quick footwork as levies are imposed for use of sleeping facilities in order to claw back some of the extra pay demanded.
While the Court of Appeal case concerned community care workers caring for the intellectual handicapped, it potentially affects a wide swathe of employment including watchman and emergency personnel.
The Court was told care workers staffed accommodation for intellectual handicapped in residential care. Those rostered for “sleepovers” carried out a supervisory role overnight. They dealt with any incidents which arose and maintained security. Supervisors could not receive visitors, could not consume alcohol or other drugs and could not leave the premises without first arranging for cover but otherwise were free to sleep when no direct supervision was required.
The Court ruled that this level of constraint on a supervisor’s choice of action amounted to “work” for the entire period of each sleepover.
Supervisors received a flat rate payment of $34 for each sleepover, topped up by further payments of $17.66 per hour for time logged actively tending to the needs of residents overnight.
The Court ruled that a flat rate payment was in breach of the Minimum Wage Act 1983. It amounted to about four dollars per hour for the working period covered by a sleepover.
Supervisors were entitled to backpay as compensation for hours worked at less than the minimum wage during sleepovers.
Idea Services Ltd v. Dickson – Court of Appeal (16.02.11)
02.11.001