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Disability Support Workers Gain Historic Legal Victory

Fuseworks Media
Fuseworks Media

Disability support workers are celebrating an historic legal victory in their battle to be paid at least the minimum wage for providing round-the-clock support for people with disabilities.

The Employment Court has ruled that disability support workers are working when doing 'sleepover' shifts and should be paid the minimum adult wage for all of that time.

The case is one of two brought by the Service and Food Workers Union and the Public Service Association. These unions have thousands of members working 'sleepover' shifts in the disability, mental health and aged care sectors.

The case involved disability support worker Phil Dickson. He works at an IHC community house that is home to five service users with intellectual disabilities.

As part of his job Mr Dickson does 'sleepover' shifts from 10pm to 7am for which he's paid $34. This amounts to $3.77 an hour, less than a third of the minimum adult wage of $12.50 an hour.

Mr Dickson is allowed to sleep during the shift but is frequently disturbed and often has to get up to provide support for the service users living in the community house. The court described the responsibilities he has during sleepovers as 'weighty' and 'critical to the business of the employer.' The IHC argued that doing a 'sleepover' shift is not work and so Phil does not have to be paid the adult minimum wage while doing the shift.

"The Employment Court did not accept the IHC argument," says SFWU national secretary John Ryall. "The court has ruled that doing a 'sleepover' shift is working and Mr Dickson should be paid the minimum adult wage for a 'sleepover' shift."

"This is a significant and historic decision because there are thousands of workers being paid less than the minimum wage for 'sleepover shifts," says John Ryall.

The court's ruling is in line with decisions on similar cases heard in Britain, Europe, Canada and the United States. These cases all defined work as time spent on-call or sleeping, when the worker is required to be at work and to be available immediately to do their job.

"The government must take notice of this decision," says PSA national secretary Richard Wagstaff.

"That's because it needs to ensure employers have the funding they need to pay disability support workers, and others working 'sleepover shifts', at least the minimum wage."

The Court has asked for further submissions from the Council of Trade Unions and Business New Zealand about some issues as to how the payment under the Minimum Wage Act 1983 must be made.

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