What are the implications of the "sleepover" case for
employers in other industries? When is a sleeping person working?
Whether the person is working all night depends on three relevant
What are the responsibilities of the person during the night
(and how often will they be disturbed)?
What are the constraints on the person to do as they please at
What is the benefit to the employer?
The Court of Appeal considered these three factors in Idea
Services Limited v Dickson  NZCA 14. Mr Dickson was a
community service worker who supported people with disabilities who
live in community houses. At times he was required to stay in the
community house overnight. After 10pm Mr Dickson was permitted to
rest and sleep, however he could not leave the home without
permission and cover, he had to be readily available to respond to
any matter requiring his attention, he could not drink or take
drugs, he could not have visitors without permission, and he must
not disturb residents of the home. He continued to be responsible
for property security and emergency evacuation if required. He had
to be available at all times to residents who were feeling unwell
or who just wanted to talk.
In these circumstances the Court of Appeal was satisfied that Mr
Dickson was working at night. He had significant restraints placed
on him, and important responsibilities, and there was substantial
benefit to the employer from Mr Dickson's role because it was
essential to proper functioning of the home. "Put shortly, Mr
Dickson was at the employer's disposal throughout the period of
the sleepover". His time was not his own.
A related question arises under the Holidays Act 2003, whether
an employee has or has not worked on a public holiday. The meaning
of "work" in this context was considered by the
Employment Court in New Zealand Airline Pilots Association Inc
v Air New Zealand (No 2)  ERNZ 62. International pilots
have layovers in overseas locations during a tour of duty. During a
layover a pilot has no duties to the employer, except the usual
obligations that would apply even at home: to turn up fit for work
at the start of a duty period, and not to bring the employer into
disrepute. The Court found that a pilot does not work during a
layover. Being away from home did not make the off duty hours
In the Air New Zealand case the union and employer had
already agreed that a pilot who is "on call" is not
working unless and until actually called upon to perform work
duties. Whether that is the case for other "on call"
staff will depend upon the degree of constraint on their
activities, for example their freedom of movement, ability to
consume alcohol, and the required response time.
A sleepover is likely to be of significant benefit to the
employer, to meet a contractual or legislative obligation to
provide a 24 hour service. But the extent of each employee's
duties and the degree of constraints on each employee will vary
considerably not just from one industry to another but also
potentially as between different employers and between different
What to pay them?
All employees must be paid not less than the minimum wage. Waged
staff who are paid by the hour, like Mr Dickson, are entitled to be
paid not less than the minimum wage for every hour worked. That is
currently $13.00. But the minimum wage for salaried staff is $520
for the first 40 hours of work and $13.00 per hour thereafter. An
employee who each week works 30 hours during the day and two 8 hour
sleepovers, could lawfully be paid a salary equating to $540 per
week plus an allowance of $30 each sleepover.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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