For all employers who engage salaried staff to "sleepover" on the job, the Employment Court’s recent judgment, Victoria Law and others v The Board of Trustees of WoodfordHouse and The Trustees of Iona College is of relevance.

The case concerned the entitlement of matrons, employed in the two schools, to statutory minimum remuneration for so called "sleepovers" in the boarding hostels of the schools.

The employees had other boarding house duties either immediately before and/or after their rostered sleepovers. However, all of them lived or stayed at the boarding house premises at night and were responsible for the safety, security and wellbeing of the students staying and sleeping there.

The employees had sought a declaration that they were working during these sleepover periods and therefore were entitled to minimum remuneration under the Minimum Wage Act 1983 (MW Act).

As part of its deliberations, the Court was required to consider whether the MW Act applies to employees remunerated by an annual salary, paid periodically throughout the year.

In reaching its decision as to whether the employees were working during sleepover periods, the Court applied the same fundamental considerations that had been upheld by the Court of Appeal in 2011 in the original "sleepovers case" of Idea Services Ltd v Dickson(see our previous FYIs regarding this case Sleepover dispute put to bed and Costly sleepovers):

  • The impact the sleepover had on the employees’ personal freedoms
  • The nature and extent of the responsibilities of the employees
  • The importance of the sleepover to the employer.

The Court held that despite being able to sleep for part of the sleepovers, the employees must be considered in law to have been working during those times.

This is on the basis that their personal activities were significantly constrained during the relevant sleepovers and they were generally not able to enjoy either an uninterrupted period of sleep, or to pursue any recreational activities. Moreover, the schools’ expectations of the matrons were high and onerous.

The Court also held that employees in receipt of a salary were not excluded from coverage under the MW Act; and employees could claim arrears of pay going back six years before the claims were brought in the Employment Relations Authority.

The schools tried to argue that in respect of salaried employees the Court should apply an averaging approach, so that payment at less than the minimum rate for part of a period of work was effectively balanced by payment at a higher rate for another part. However, the Court rejected this approach, on the basis that payment should be made for, and identified with, each period of work. An averaging approach should not be permitted to reduce below the relevant minimum rate of remuneration for any particular identified period of work.

The Court has afforded the parties the opportunity to try and resolve the amount of any entitlements to which the employees are due, which in some cases may mean arrears of wages going back 6 years.

Finally, we note that in the last week the Government announced that the minimum wage (for adults) will increase to $14.25 per hour on 1 April 2014. For New Entrants (16 & 17) and Trainees (under 20) the minimum wage will increase to $11.40.