Sleepover Wages (Settlement) (The Mount Cargill Trust) Order 2012

  • revoked
  • Sleepover Wages (Settlement) (The Mount Cargill Trust) Order 2012: revoked, on the close of 18 October 2016, pursuant to section 7(2) of the Sleepover Wages (Settlement) Act 2011 (2011 No 98).

Reprint as at 19 October 2016

Coat of Arms of New Zealand

Sleepover Wages (Settlement) (The Mount Cargill Trust) Order 2012

(SR 2012/384)

Sleepover Wages (Settlement) (The Mount Cargill Trust) Order 2012: revoked, on the close of 18 October 2016, pursuant to section 7(2) of the Sleepover Wages (Settlement) Act 2011 (2011 No 98).

Jerry Mateparae, Governor-General

Order in Council

At Wellington this 10th day of December 2012

Present:
His Excellency the Governor-General in Council

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This order is administered by the Ministry of Health.

Pursuant to section 24 of the Sleepover Wages (Settlement) Act 2011, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, and on the recommendation of the Minister of Health (made after consultation with the Minister of Social Development and the Minister of Labour), makes the following order.

Order

1 Title

This order is the Sleepover Wages (Settlement) (The Mount Cargill Trust) Order 2012.

2 Commencement

This order comes into force on 14 December 2012.

Part 1 Preliminary provisions

3 Effect

The modifications and extensions of the Sleepover Wages (Settlement) Act 2011 made by this order do not affect the text of the Act but require it to be read as if it had been amended in the manner indicated in this order.

4 Interpretation

In this order, Act means the Sleepover Wages (Settlement) Act 2011.

Part 2 Modifications and extensions of Part 2 of Act

Subpart 1—Extinguishing claims for sleepover wages

5 Extension of subpart 1 of Part 2 to employees of The Mount Cargill Trust

Section 8 of the Act must be read as if the following subparagraph were inserted after subsection (1)(a)(ii):

(iia)

The Mount Cargill Trust:

Subpart 2—Settlement relating to The Mount Cargill Trust

6 Extension of subpart 2 of Part 2 to The Mount Cargill Trust

Subpart 2 of Part 2 of the Act, as modified and extended by this subpart, applies to—

(a)

The Mount Cargill Trust (as employer); and

(b)

each employee of The Mount Cargill Trust who performs or performed a sleepover.

7 Modification of section 19 (calculation of wages)

For the purposes of calculating the wages payable to employees of The Mount Cargill Trust, the formula in section 19(1) of the Act is modified by replacing “9” with “8.5” as the multiplier for variable a.

8 Modification of section 21 (entitlement of employees for sleepovers performed immediately before 18 October 2011)

(1)

This clause applies instead of section 21 of the Act in relation to the entitlements of employees of The Mount Cargill Trust.

(2)

In relation to a sleepover performed by an employee during the period beginning on 1 July 2011 and ending with the close of 17 October 2011, The Mount Cargill Trust must pay the employee an amount calculated in accordance with the formula set out in section 19(1) of the Act (as modified by clause 7).

(3)

The Mount Cargill Trust must pay any amount payable to an employee under subclause (2) no later than 2 months after the date of commencement of this order.

9 Modification of section 22(1) (entitlement to be paid minimum hourly rates for sleepovers performed on and after 18 October 2011)

(1)

This clause applies instead of section 22(1) of the Act in relation to the entitlements of employees of The Mount Cargill Trust for sleepovers performed on and after 18 October 2011.

(2)

In relation to a sleepover performed by an employee on or after 18 October 2011, The Mount Cargill Trust must pay the employee the greater of—

(a)

an amount calculated by multiplying the number of hours in the sleepover by the relevant minimum hourly rate specified in subclause (3):

(b)

the amount the employee would have received for that sleepover immediately before the date of commencement of this order.

(3)

The amount payable for each hour of sleepover that an employee performs during the period specified in the first column of the following table is the minimum hourly rate specified opposite that period in the second column of the following table:

Specified periodMinimum hourly rate
Period beginning on 18 October 2011 and ending with the close of 30 June 201250% of the applicable minimum hourly rate
Period beginning on 1 July 2012 and ending with the close of 24 December 201275% of the applicable minimum hourly rate
Period beginning on 25 December 2012 and ending with the close of 30 June 2013100% of the applicable minimum hourly rate

Michael Webster,
for Clerk of the Executive Council.

Explanatory note

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.

Clause 5 extends the application of subpart 1 of Part 2 of the Act to The Mount Cargill Trust and its employees.

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.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 13 December 2012.

Reprints notes
1 General

This is a reprint of the Sleepover Wages (Settlement) (The Mount Cargill Trust) Order 2012 that incorporates all the amendments to that order as at the date of the last amendment to it.

2 Legal status

Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes

Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.

4 Amendments incorporated in this reprint

Sleepover Wages (Settlement) Act 2011 (2011 No 98): section 7(2)