Over the last decade or so, there have been a string of cases colloquially referred to as the “sleepover cases” concerning employees whose duties include sleeping over as part of their role and their entitlement to be paid for those hours.
The Courts have made it clear that each case will require a factual enquiry to determine whether employees are actually “working” for the purposes of the Minimum Wage Act 1983 (Act). Most recently, in E Tu Incorporated v Mount Cook Airline Limited [2022] NZEmpC 48, the Employment Court found that cabin crew’s stopovers overnight were not considered work as minimal constraints were placed on them overnight and they had no responsibilities or duties to perform.
When may an employee be “working” overnight for the purposes of the Act?
In Idea Services v Dickson [2011] NZCA 14 the Employment Court considered three factors as relevant to the assessment:
- the constraints placed on the employee:
- the responsibilities of the employee; and
- the benefit to the employer.
The greater the extent to which these factors applied, the more likely it was that the sleepover would be regarded as work.
Previous decisions
The Employment Court applied these principles in Law v Board of Trustees of Woodford House [2014] NZEmpC 25, which involved matrons sleeping over in boarding schools. The Court found that sleepovers put considerable constraints on the freedoms of the matrons, who had extensive responsibilities for the safety and wellbeing of a large number of teenage girls. In addition, there was considerable benefit to the employer as they could not have lawfully maintained the hostel without them there. As such, the matrons were found to be working overnight.
In Sanderson v South Canterbury District Health Board [2017] NZERA Christchurch 37, anaesthetic technicians were rostered on call overnight. They were paid an on-call allowance and had to report to the hospital within 10 minutes if called. The Employment Relations Authority found the technicians were at work when on call as considerable constraints were placed on them, which included having to live away from their homes and families to meet the 10- minute reporting requirement. In addition to this, the nature of their role meant the responsibility placed on them was significant and the ability of the hospital to call back the technicians in order to deliver emergency health care was of great benefit to the hospital.
E Tu Incorporated v Mount Cook Airline Limited
By comparison, in the most recent case of E Tu Incorporated v Mount Cook Airline Limited, the Employment Court did not find the employees to be working during overnight stopovers. In this case, the airline’s roster meant that sometimes cabin crew finished their working day in another location, away from their hometown. The airline provided the employees with accommodation, transport to and from the airport and an overnight and meal allowance. The airline was prohibited from contacting the crew who were away from home and off duty, unless there had been a flight delay or cancellation.
The Union argued that there were limitations on the employees’ ability to pursue personal activities and that they were unable to consume alcohol 10 hours before their rostered start time. The airline pointed out that this applied to all cabin crew, regardless of their location, and that the constraints did not meet the threshold required to be considered work.
The Employment Court accepted that while the cabin crew might be inconvenienced being away from home, nothing was required of them overnight. In short, they were free to do as they pleased and the fact they were away from home did not, on its own, amount to a constraint of the sort seen in the earlier cases. While there was an obvious benefit to the airline, it was not enough to be considered work for the purposes of the Act.
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