(1) This subpart applies to—

• (a) the following employers:

  • (i) Idea Services:

  • (ii) Timata Hou:

  • (iii) any employer in the health and disability sector; and

• (b) each employee of the employers referred to in paragraph (a) who performed a sleepover.

(2) Subsection (1) is subject to—

• (a) section 24 (which provides a mechanism for extending the application of this subpart by Order in Council to other employers funded through a Vote and those other employers' employees); and

• (b) section 34 (which is a savings provision).

On the commencement of this Act, a claim for sleepover wages in respect of a sleepover performed before the commencement of this Act by an employee of Idea Services or Timata Hou—

• (a) is unenforceable and of no effect; and

• (b) must be treated as if it had been withdrawn.

On the commencement of this Act, a claim for sleepover wages lodged after 5 pm on 2 September 2011 in respect of a sleepover performed before the commencement of this Act by an employee of any employer in the health and disability sector—

• (a) is unenforceable and of no effect; and

• (b) must be treated as if it had been withdrawn.

(1) On and from the commencement of this Act, an employee to whom this subpart applies—

• (a) cannot name, join, or seek to name or join the employee's employer, the Crown, or any other person as a defendant or a third party or subsequent party in—

  • (i) any claim for sleepover wages in respect of a sleepover that is, could be, or could have been the subject of a claim for sleepover wages extinguished under section 9 or 10; or

  • (ii) any other civil proceedings relating to liability for sleepover wages in respect of that sleepover; and

• (b) cannot apply in any civil proceedings for any remedy or relief from the employee's employer, the Crown, or any other person in relation to any sleepover wages in respect of a sleepover that is, could be, or could have been the subject of a claim for sleepover wages extinguished under section 9 or 10.

(2) This section is subject to section 13(2) and (3).

(1) This subpart applies only to—

• (a) the following employers:

  • (i) Idea Services:

  • (ii) Timata Hou; and

• (b) each employee of Idea Services or Timata Hou who performs or performed a sleepover.

(2) Subsection (1) is subject to—

• (a) section 24 (which provides a mechanism for extending the application of this subpart by Order in Council to other employers funded through a Vote and those other employers' employees); and

• (b) section 34 (which is a savings provision).

(1) On and from the commencement of this Act, an employee to whom this subpart applies—

• (a) cannot name, join, or seek to name or join the employee's employer, the Crown, or any other person as a defendant or a third party or subsequent party in—

  • (i) any claim for sleepover wages in respect of a sleepover to which the employee is, could be, or could have been entitled under this subpart; or

  • (ii) any other civil proceedings relating to liability for sleepover wages in respect of that sleepover; and

• (b) cannot apply in any civil proceedings for any remedy or relief from the employee's employer, the Crown, or any other person in relation to any sleepover wages in respect of a sleepover to which the employee is, could be, or could have been entitled under this subpart.

(2) This section does not limit or prevent an action by an employee to whom this subpart applies for—

• (a) the recovery of sleepover wages in respect of a sleepover to which the employee is entitled under this subpart; or

• (b) the enforcement of any obligation imposed on an employer by this subpart.

(3) This section—

• (a) does not limit or affect any agreement entered into between the Crown and any person in relation to all or any of the matters dealt with by this Act; and

• (b) does not prevent any of the parties to the agreement commencing any proceedings in relation to—

  • (i) the interpretation or implementation of the agreement; or

  • (ii) the enforcement of any obligation imposed on a party to the agreement.

(1) A current employee to whom this subpart applies is entitled to be paid back wages for a sleepover if the employee—

• (a) performed the sleepover during the period beginning on 1 July 2005 and ending with the close of 30 June 2011; and

• (b) lodged a claim for sleepover wages by 5 pm on 2 September 2011.

(2) The amount of back wages payable to the current employee under subsection (1) is the amount calculated in accordance with the formula set out section 19(1).

(1) A recent employee to whom this subpart applies is entitled to be paid back wages for a sleepover if the employee—

• (a) performed the sleepover during the period beginning on 1 July 2005 and ending with the close of 30 June 2011; and

• (b) lodged a claim for sleepover wages by 5 pm on 2 September 2011.

(2) The amount of back wages payable to the recent employee under subsection (1) is the amount calculated in accordance with the formula set out in section 19(1).

(1) A historic employee to whom this subpart applies is entitled to be paid back wages for a sleepover if the employee—

• (a) performed the sleepover no earlier than 1 June 2004 during the 6-year period immediately before the date on which the employee lodged a claim for sleepover wages; and

• (b) lodged that claim by 5 pm on 2 September 2011.

(2) The amount of back wages payable to the historic employee under subsection (1) is the amount calculated in accordance with the formula set out in section 19(1).

To avoid doubt, an employee to whom this subpart applies may be entitled to payments for back wages under any or all of sections 14 to 16.

To avoid doubt, an employee to whom this subpart applies is not entitled to back wages for a sleepover except as provided in sections 14 to 16.

(1) Any back wages for a sleepover payable under any of sections 14 to 16 must be calculated in accordance with the following formula:

(2) In subsection (1), applicable minimum hourly rate means the minimum hourly rate of wage prescribed under section 4 of the Minimum Wage Act 1983 that applied at the time the employee to whom this subpart applies performed the sleepover.

An employer must pay any back wages for a sleepover that are payable to an employee to whom this subpart applies no later than 2 months after the date of commencement of this Act.

(1) During the period beginning on 1 July 2011 and ending with the close of the day before the commencement of this Act, an employer must pay an employee to whom this subpart applies an amount calculated in accordance with the formula set out in section 19(1) (which applies with any necessary modifications) for each sleepover that the employee performed during that period.

(2) An employer must pay any amount payable to the employee under subsection (1) no later than 2 months after the date of commencement of this Act.

(1) An employer must pay an employee to whom this subpart applies for each hour of sleepover that the employee performs during the period specified in the first column of the following table at the minimum hourly rate opposite that period specified in the second column of the following table:

(2) On and after 1 July 2013, an employer must pay an employee to whom this subpart applies for each hour of a sleepover performed by the employee at not less than the rate of minimum hourly wage that applies under the Minimum Wage Act 1983.

(3) To avoid doubt, this section does not limit or affect any deductions that may lawfully be made to an amount payable under subsection (1) or (2).

In sections 24 to 28,—

(1) The Governor-General may, by Order in Council made on the recommendation of the relevant Minister after consultation with the Minister of Labour, modify or extend both subparts 1 and 2, or only subpart 2, to apply to the following (to whom those subparts do not, or that subpart does not, otherwise apply):

• (a) any other employer; and

• (b) that other employer's employees.

(1) The Governor-General may, by Order in Council made on the recommendation of the relevant Minister after consultation with the Minister of Labour, modify or extend the application of—

• (a) both subparts 1 and 2 in relation to the following to whom those subparts together do not otherwise apply:

  • (i) any other employer; and

  • (ii) that other employer's employees:

• (b) only subpart 2 in relation to the following to whom that subpart does not otherwise apply:

  • (i) any other employer; and

  • (ii) that other employer's employees.

(2) An Order in Council made under subsection (1) may, subject to subsection (2A) and section 25, 26, 27, or 28 (as the case may be), modify or extend any provisions of subparts 1 and 2 for either or both of the purposes stated in section 3(1)(a) and (b) as if they related to the other employer and that other employer's employees.

(2A) An Order in Council made under subsection (1) must not provide for a process for achieving a staged progression to the minimum hourly rate of wage that applies under the Minimum Wage Act 1983 if that process will result in the other employer's employees receiving payment for a sleepover at less than the rate they were receiving from the other employer immediately before the Order in Council is made.

(3) An Order in Council made under subsection (1)—

• (a) may specify a date in accordance with section 25(b) or 26(a) that is before, on, or after the date on which the Order in Council comes into force; but

• (b) may be retrospective only to the extent provided in paragraph (a).

In order to give effect to a proposed settlement between any other employer and that other employer's employees, a modification or extension of a provision in subpart 1 may do 1 or more of the following:

• (a) extend the application of that subpart by declaring the other employer to be an employer to which that subpart applies:

• (b) specify different dates or different requirements in relation to the extinguishment of claims for sleepover wages made by the other employer's employees:

• (c) in relation to an employer in the health and disability sector, make any modifications to extend the effect of section 9 to that employer.

In order to give effect to a proposed settlement between any other employer and that other employer's employees, a modification or extension of a provision in subpart 2 may do 1 or more of the following:

• (a) specify different dates by which claims for sleepover wages must be made in order for the other employer's employees to be entitled to back wages:

• (b) substitute different periods of sleepovers performed by the other employer's employees in respect of which back wages are payable:

• (c) prescribe a different formula or method for calculating back wages for those sleepovers:

• (ca) provide for a different period by which back wages must be paid as long as—

  • (i) that period is within 2 months after the date of commencement of the Order in Council concerned; or

  • (ii) the relevant Minister is satisfied that the proposed period for payment has been agreed to by a simple majority of the other employer's employees:

• (d) provide for a different process for achieving a staged progression to the minimum hourly rate of wage that applies under the Minimum Wage Act 1983 for the other employer's employees.

(1) This section applies if a settlement between any other employer and that other employer's employees cannot be reached.

(2) If this section applies,—

• (a) the relevant Minister must not recommend the making of an Order in Council under section 24 that modifies or extends subparts 1 and 2, or only subpart 2, unless the relevant Minister is satisfied that the recommendation has the written support of the parliamentary leaders of the political parties represented in Parliament that together command a simple majority in the House of Representatives; and

• (b) a modification or extension of a provision in subpart 2 may only provide for the matter specified in section 26(d) if the effect of the modification or extension is that the other employer's employees will receive payment for a sleepover at not less than the rate they were receiving from the other employer immediately before the Order in Council is made.

(2) If this section applies, the relevant Minister must not recommend the making of an Order in Council under section 24 that modifies or extends subparts 1 and 2, or only subpart 2, unless the relevant Minister—

• (a) has given written notice to the parliamentary leaders of all political parties represented in Parliament of the proposed recommendation to make the Order in Council; and

• (b) is satisfied that the recommendation has the written support of the parliamentary leaders of those political parties that together command a simple majority in the House of Representatives.

Despite sections 25 and 26, a modification or extension of subparts 1 and 2, or only subpart 2, that relates to any employer in the health and disability sector and that employer's employees must not do any of the following:

• (a) amend the formula for calculating back wages set out in section 19(1) unless the amendment relates to specifying a different multiplier for variable “a” in order to reflect the number of hours of a sleepover performed by the other employer's employees:

• (b) extend the deadline for paying 100% of the applicable minimum hourly rate to a date later than 30 June 2013:

• (c) substitute a different period within which back wages must be paid under section 20 or within which the specified amount referred to in section 21(1) must be paid under section 21(2) unless the relevant Minister is satisfied that the proposed period has been agreed to by a simple majority of the other employer's employees:

• (d) provide for any of the matters specified in section 25(b) or 26(a) or (b).

• (e) provide a different process for the matter specified in section 26(d) if that process will result in the other employer's employees receiving payment for a sleepover at less than the rate they were receiving from the other employer as at 1 July 2011.

An Order in Council made under section 24 is a regulation for the purposes of—

• (a) the Acts and Regulations Publication Act 1989; and

• (b) the Regulations (Disallowance) Act 1989.

(1) This section applies to a dispute between an employee and that employee's employer about—

• (a) any entitlement to, or calculation of, any sleepover wages payable to the employee under this Act; or

• (b) any failure by the employer to pay sleepover wages to which the employee is entitled under this Act.

(2) If the dispute is not disposed of between the employee and the employee's employer,—

• (a) the parties may access mediation services provided under section 144 of the Employment Relations Act 2000 and, subject to subsection (3), sections 145 to 154 of that Act apply to the mediation services provided to the parties:

• (b) proceedings to resolve the dispute may be commenced before the Employment Relations Authority in accordance with section 158 of the Employment Relations Act 2000.

(3) Despite subsection (2)(a), section 148A(2) of the Employment Relations Act 2000 does not apply in relation to any agreed terms of settlement in which a party agrees to forgo all, or part, of that party's minimum entitlements to the extent permitted by this Act.

(4) In subsection (3), minimum entitlements has the same meaning as in section 5 of the Employment Relations Act 2000.

(1) If proceedings are commenced before the Employment Relations Authority in accordance with section 30(2)(b),—

• (a) the Authority has all the powers and functions it has under the Employment Relations Act 2000; and

• (b) the provisions of the Employment Relations Act 2000 and of any regulations made under that Act apply, with any necessary modifications, to the extent that those provisions are relevant to the resolution of the dispute.

(2) Without limiting subsection (1), the following provisions of the Employment Relations Act 2000 apply, with any necessary modifications, to the proceedings (with any necessary modifications):

• (aa) sections 137 to 140 (which relate to compliance orders made by the Employment Relations Authority or the Employment Court):

• (a) sections 157 to 160, 162 to 165, and 173 to 176 (which relate to the role, functions, duties, and powers of the Authority):

• (b) sections 177 to 184 and 188 to 199 (which relate to the referral of questions of law, challenges to determinations of the Employment Relations Authority, the removal of proceedings to the Employment Court, and provisions applying to the Employment Court):

• (c) sections 214 to 215 (which relate to appeals to the Court of Appeal and Supreme Court on questions of law).

An order made or judgment given by the Employment Relations Authority or the Employment Court under section 31 may be filed in any District Court and is then enforceable in the same manner as an order made or judgment given by the District Court.

(1) An employer who fails to comply with an obligation imposed on the employer by this Act is liable to a penalty imposed by the Employment Relations Authority.

(2) Section 135 of the Employment Relations Act 2000 applies, with any necessary modifications, to the imposition and recovery of a penalty imposed under subsection (1).

(2) For the purposes of subsection (1), the following provisions of the Employment Relations Act 2000 apply, with any necessary modifications, in relation to a penalty imposed under that subsection:

• (a) section 135 (which relates to the amount and recovery of penalties):

• (b) sections 137 to 140 (which relate to compliance orders made by the Employment Relations Authority or the Employment Court).

Nothing in this Act limits or affects the agreement dated 13 September 2011 between the Crown, Idea Services, Phillip William Dickson, and the Service and Food Workers Union Nga Ringa Tota as it relates to the decision of the Court of Appeal in Idea Services Limited v Phillip William Dickson [2011] NZCA 14.