This note is not part of the order, but is intended to indicate its general effect.
This order, which comes into force on 5 April 2013, modifies and extends the operation of the Sleepover Wages (Settlement) Act 2011 (the Act) to give effect to a settlement agreement reached between The Open Home Foundation of New Zealand (the specified employer) 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—
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 specified employer and its employees. Subpart 1 of Part 2 of the Act already applies to employees of the specified employer, 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 specified employer also perform sleepovers that are funded through Vote Social Development. Clause 5 requires section 8 of the Act to be read as if the specified employer 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 specified employer 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 specified employer and its employees, because no employees lodged claims regarding sleepover wages by the cut-off time.
Subpart 2 of Part 2 of Act: Settlement relating to specified employer
Clause 6 extends the effect of subpart 2 of Part 2 of the Act (which implements the Idea settlement) to the specified employer and its employees, but with certain modifications that are set out in clauses 7 and 8.
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 7 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 the specified employer for sleepovers performed during this time is the amount calculated in accordance with the formula specified in clause 7(3). The formula in clause 7(3) is the same as the formula set out in the Act for calculating the wages payable for sleepovers performed during this period, except that it includes a variable to represent the number of hours in the sleepover.
The modification also provides that the amount payable for sleepovers performed in this period 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 8 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 8, for sleepovers performed on or after 18 October 2011, an employee of the specified employer will be entitled to be paid either the 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.