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 The Mount Cargill 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). 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: Extinguishing claims for sleepover wages
Subpart 1 of Part 2 of the Act—
extinguishes the following claims for sleepover wages in respect of sleepovers performed before the Act commenced:
claims by employees of Idea Services Limited or Timata Hou Limited (section 9):
claims by employees of other employers in the health and disability sector funded through Vote Heath, if those claims were not lodged by 5 pm on 2 September 2011 (section 10):
prevents employees to whom the subpart applies bringing new proceedings for sleepover wages in respect of sleepovers that were or could have been the subject of a claim extinguished under section 9 or 10 (section 11).
Claims by employees of employers funded through a Vote other than Vote Health are not extinguished by the provisions in subpart 1 of Part 2 of the Act.
Subpart 1 of Part 2 of the Act already applies to employees of The Mount Cargill Trust, to the extent that it applies to employees of all employers in the health and disability sector funded through Vote Health. However, employees of The Mount Cargill Trust also perform sleepovers that are funded through Vote Social Development. Clause 5 requires section 8 of the Act to be read as if The Mount Cargill Trust were specifically named in that section. This is designed to ensure the provisions in subpart 1 of Part 2 of the Act apply to all employees of The Mount Cargill Trust irrespective of the source of funding for the sleepovers performed by those employees.
It is not necessary to extend the application of section 9 of the Act to The Mount Cargill Trust and its employees, because no employees lodged claims regarding sleepover wages by the cut-off time.
Subpart 2 of Part 2: Settlement relating to The Mount Cargill Trust
Clause 6 extends the effect of subpart 2 of Part 2 of the Act (which implements the Idea settlement) to The Mount Cargill Trust and its employees, but with certain modifications that are set out in the following clauses.
Clause 7 modifies section 19 of the Act, which sets out the formula for calculating back wages for sleepovers. The formula in section 19 involves multiplying the applicable minimum hourly rate by 9, which represents the number of hours of a sleepover performed by employees of Idea Services Limited and Timata Hou Limited. The formula in section 19 is amended so that the applicable minimum hourly rate will instead be multiplied by 8.5 to represent the number of hours of a sleepover performed by employees of The Mount Cargill Trust.
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 modifications provide that—
the formula to calculate the wages payable for sleepovers performed during this period is the formula in section 19 of the Act, as modified by Clause 7):
the amounts due to employees of The Mount Cargill Trust for sleepovers performed during this time 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 only if the relevant Minister is satisfied that the proposed period has been agreed to by a simple majority of the employer’s employees, and 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. Under clause 9, for sleepovers performed on or after 18 October 2011, an employee of The Mount Cargill Trust will be entitled to be paid either the same rate that is specified in the Act for the relevant period of time or the amount the employee would have received immediately before the date of commencement of this order, whichever is greater.
The details of the staged progression towards full payment of the minimum wage set out in clauses 8 and 9 reflect the settlement agreed between The Mount Cargill Trust and its employees.