This note is not part of the order, but is intended to indicate its general effect.
This order, which comes into force on 14 December 2012, modifies and extends the operation of the Sleepover Wages (Settlement) Act 2011 (the Act) to give effect to a settlement agreement reached between Hamilton Residential Trust and certain of its employees. The settlement relates to the payment of wages to employees who are permitted to sleep overnight at their workplace while on duty (sleepover wages).
The Act implements a settlement of litigation between Idea Services Limited and Timata Hou Limited and their employees (the Idea settlement) relating to the payment of sleepover wages. Subpart 1 of Part 2 of the Act extinguishes certain claims for sleepover wages in the health and disability sector, and subpart 2 of Part 2 of the Act implements the terms of the Idea settlement.
Subpart 1 of Part 2 of Act: Extinguishing claims for sleepover wages
Subpart 1 of Part 2 of the Act already applies to Hamilton Residential Trust, because it applies to all employers in the health and disability sector funded through Vote Health. It extinguishes claims relating to sleepovers performed before the Act commenced, if those claims were lodged after 5 pm on 2 September 2011. Claims filed before that time are preserved. Section 9 of the Act extinguishes claims by employees of Idea Services Limited and Timata Hou Limited for sleepover wages. Clause 5 extends the effect of section 9 of the Act to employees of Hamilton Residential Trust and will have the effect of extinguishing existing claims for sleepover wages that were lodged by its employees before 5 pm on 2 September 2011.
Subpart 2 of Part 2 of Act: Settlement relating to Hamilton Residential Trust
Clause 6 extends the effect of subpart 2 of Part 2 of the Act (which implements the Idea settlement) to Hamilton Residential Trust and its employees, but with certain modifications that are set out in clauses 7 to 9.
Clause 7 modifies section 20 of the Act, which sets out when back wages must be paid to qualifying employees (being employees who filed claims with the Employment Relations Authority before 5 pm on 2 September 2011). It provides that back wages due to qualifying employees of Hamilton Residential Trust must be paid no later than 2 months after the date of commencement of this order.
Sections 21 and 22 of the Act provide for a staged progression towards the minimum hourly wage payable under the Minimum Wage Act 1983. Clause 8 modifies section 21 of the Act, which sets out an employee's entitlements for sleepovers performed between 1 July 2011 and 17 October 2011 (being the date immediately before commencement of the Act), and when those entitlements must be paid. The modification provides that the amount payable to employees of Hamilton Residential Trust for sleepovers performed during this time is either an amount calculated in accordance with the formula specified in clause 8(3) or the amount the employee would have received immediately before the date of commencement of this order (whichever is greater). The formula in clause 8(3) reflects the agreement reached between the parties. The formula differs from the formula set out in the Act for calculating the wages payable for sleepovers performed during the same period in 2 ways—
Clause 8(4) provides that the amount payable for sleepovers performed between 1 July 2011 and 17 October 2011 must be paid no later than 2 months after the date of commencement of this order. Section 28(c) of the Act permits this modification of the date on which payment is due only if the relevant Minister is satisfied that the proposed period has been agreed to by a simple majority of the employer's employees. The Minister has indicated that he is so satisfied.
Clause 9 modifies section 22(1) of the Act, which sets out how sleepover wages are to be calculated for sleepovers performed after commencement of the Act by those employees to whom subpart 2 of Part 2 of the Act applies. The section implements a staged progression towards payment of the full minimum hourly wage payable under the Minimum Wage Act 1983. The effect of clause 9 is to modify the staged progression set out in the Act in 3 respects—
for the period from 18 October 2011 to 30 June 2012, instead of requiring payment of 50% of the applicable minimum hourly rate, the order requires the amount payable to be calculated in accordance with the agreed transitional formula set out in clause 8(3):
the period of time during which an employee of Hamilton Residential Trust must be paid at least 75% of the applicable minimum hourly rate is extended to the close of 30 June 2013:
if an employee would have received a greater amount immediately before the date of commencement of this order, he or she will be entitled to be paid that greater amount.