Idea Services Ltd v Dickson - [2010] NZCA 241

IN THE COURT OF APPEAL OF NEW ZEALAND
CA465/2009
CA41/2010
[2010] NZCA 241
BETWEENIDEA SERVICES LIMITED
Applicant

ANDPHILLIP WILLIAM DICKSON
Respondent

Hearing:18 May 2010

Court:Arnold, Ellen France and Baragwanath JJ
Counsel:C H Toogood QC for Applicant
P Cranney and A J Connor for Respondent

Judgment:9 June 2010 at 4 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted on the following questions:
Does “work” in s 6 of the Minimum Wage Act 1983 cover the entire duration of “sleepovers” performed by the respondent given their nature, and, in particular, are the terms of the applicable collective agreement relevant to that question?
Is the applicant entitled to average the hourly rates payable to the respondent during the course of a pay period in order to achieve compliance with s 6 of the Minimum Wage Act 1983?

B        Costs are reserved.
REASONS OF THE COURT
(Given by Arnold J)
[1]       The applicant seeks leave to appeal from two decisions of the Full Court of the Employment Court concerning the application of the Minimum Wage Act 1983 (the Act) to what are described as “sleepovers” performed by the respondent, one of its employees.[1] The point at issue in the first of these decisions was whether “sleepovers” constituted “work” for the purposes of s 6, so that the minimum rate of pay prescribed under the Minimum Wage Orders (the latest being the Minimum Wage Order 2009 (the Order)) applied to them. The second concerned how wages were to be calculated consistently with the Act and the Order, in particular, whether an averaging approach could be adopted whereby payment at less than the minimum rate for part of a period could be balanced against payment at a greater rate for another part. We will refer to these decisions respectively as the work decision and the averaging decision.
Background
[1]      Idea Services v Dickson EmpC Wellington WC 17/09, 8 July 2009 and 11 December 2009.
[2]       The applicant employs the respondent and others as community services workers under a collective agreement. They provide care and support for people with disabilities who live in community homes. The respondent is paid an hourly rate which is significantly above the minimum wage ($17.66 as opposed to $12.50). He receives his pay fortnightly.
[3]       Several times a month, the respondent performs “sleepovers”, that is, he sleeps at the home so that he can deal with any issues that arise in the course of the night. During a sleepover, the respondent’s time is his own unless and until he is required to deal with something arising in the home. When he performs a sleepover, the respondent is paid an allowance of $34, plus his hourly rate of $17.66 for any time that he is required to spend tending to the needs of the occupants. If there are no incidents during the course of the night, the respondent receives simply the allowance, which works out at between $3.40 and $4.30 per hour depending on the length of the sleepover.
[4]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Idea Services Ltd v Dickson

Details

AGLC: Idea Services Ltd v Dickson [2010] NZCA 241
Case: [2010] NZCA 241
Decision Date: 9 June 2010

CaseChat Overview and Summary

In the case of Idea Services Ltd v Dickson, the Court of Appeal of New Zealand was asked to consider whether "work" in s 6 of the Minimum Wage Act 1983 covered the entire duration of "sleepovers" performed by the respondent, and whether the applicant could average the hourly rates payable to the respondent during a pay period to achieve compliance with the Act. The applicant, Idea Services, employed the respondent as a community services worker under a collective agreement. The respondent performed "sleepovers" at the homes of the people they cared for, during which they were required to be available to deal with any issues that arose in the course of the night. The respondent claimed that sleepovers were "work" for the purposes of s 6 of the Act, entitling them to be paid the minimum wage for the entire period of any sleepover. The Employment Court had accepted the respondent's claim. The applicant sought leave to appeal on the basis that the Employment Court had erred in law in concluding that sleepovers constituted "work" for the purposes of the Act and in rejecting the applicant's argument that it was entitled to average the hourly rates payable to the respondent during a pay period. The Court of Appeal granted leave to appeal on the questions of whether sleepovers constituted "work" for the purposes of the Act and whether the applicant was entitled to average the hourly rates payable to the respondent during a pay period. The Court found that the questions raised were of general or public importance and ought to be submitted to the Court. The Court noted that the principles involved in the case were potentially of wide application and that the approach taken by the Employment Court could have significant implications for employers and employees in similar situations.
The Court of Appeal granted leave to appeal on the questions of whether sleepovers constituted "work" for the purposes of the Act and whether the applicant was entitled to average the hourly rates payable to the respondent during a pay period. The Court found that the questions raised were of general or public importance and ought to be submitted to the Court. The Court noted that the principles involved in the case were potentially of wide application and that the approach taken by the Employment Court could have significant implications for employers and employees in similar situations. The appeal was allowed, and the matter was remitted to the Employment Court for further consideration in light of the Court of Appeal's reasoning. The Court of Appeal's decision provides important guidance on the application of the Minimum Wage Act 1983 to "sleepovers" and the calculation of wages in pay periods where the minimum wage is not paid for all hours worked.

Orders