This note is not part of the order, but is intended to indicate its general effect.

This order, which comes into force on 10 September 2012, modifies and extends the operation of the Sleepover Wages (Settlement) Act 2011 (the Act) to give effect to a settlement of litigation between Spectrum Care Trust Board and certain of its employees. The litigation relates to the payment of wages to employees who were permitted to sleep overnight at their workplace while on duty (sleepover wages).

The Act implements a settlement of similar 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 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 that 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 Spectrum Care Trust Board and its employees.

Subpart 1 of Part 2 of the Act already applies to employees of Spectrum Care Trust Board, to the extent that it applies to employees of all employers in the health and disability sector funded through Vote Health. However, Spectrum Care Trust Board employees also perform sleepovers that are funded through Vote Social Development. Clause 5 requires section 8 of the Act to be read as if Spectrum Care Trust Board were specifically named in that section. This is designed to ensure the provisions in subpart 1 of Part 2 of the Act apply to employees of Spectrum Care Trust Board irrespective of the source of funding for the sleepovers performed by those employees.

Section 9 of the Act extinguishes claims by employees of Idea Services Limited and Timata Hou Limited for sleepover wages in respect of sleepovers performed before the commencement of the Act. Clause 6 extends the effect of section 9 of the Act to employees of Spectrum Care Trust Board.

Clause 7 extends the effect of subpart 2 of Part 2 of the Act (which implements the Idea settlement) to Spectrum Care Trust Board and its employees, but with certain modifications that are set out in the following clauses.

Clauses 8, 9, and 10 (which modify sections 14, 15, and 16 of the Act respectively) apply to current, recent, and historic employees of Spectrum Care Trust Board. Sections 14, 15, and 16 of the Act relate to the payment of back wages. The modifications ensure that, in the case of claims for sleepovers funded through Vote Social Development, employees will be entitled to back wages if they made a claim by 17 February 2012.

Clause 11 modifies section 19 of the Act, which sets out how back wages for sleepovers must be calculated. 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 to represent the number of hours of a sleepover performed by employees of Spectrum Care Trust Board.

Clause 12 modifies section 20 of the Act, which sets out when back wages must be paid. It provides that back wages due to employees of Spectrum Care Trust Board 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 13 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 due to employees of Spectrum Care Trust Board for sleepovers performed during this time must be calculated in accordance with the formula specified in clause 14(4), and 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 14 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 modification set out in clause 14 provides that employees of Spectrum Care Trust Board will be entitled to be paid, for sleepovers performed in the period beginning on 18 October 2011 and ending with the close of 30 June 2012, an amount calculated in accordance with the agreed transitional formula set out in clause 14(4). This formula differs from that in the Act. For sleepovers performed in the period beginning on 1 July 2012 and ending with the close of 30 June 2013, employees of Spectrum Care Trust Board will be entitled to be paid 75% of the applicable minimum hourly rate, for each hour of sleepover performed. After 30 June 2013, employees will be entitled to be paid the full minimum wage for each hour of a sleepover.

The details of the staged progression towards full payment of the minimum wage set out in clauses 13 and 14 reflect the settlement agreed between Spectrum Care Trust Board and its employees.