Getting Paid to Sleep? The Law on Sleepover Shifts in NZ

In the initial case of Idea Services Ltd v Dickson [2011] NZCA 14, the Court of Appeal held Mr Dickson was entitled to minimum wage entitlements for his sleep over shift.

Whilst being fact specific, it produced three relevant factors to the assessment:

1. The constraints placed on the employee,
2. The responsibilities of the employee; and
3. The benefit to the employer.

As stated by the Court at paragraph [8] of its decision, “the greater the degree or extent for which each factor applies, the more likely the activity in question ought to be regarded as “work”.

After considering the facts of the matter, the Court held that Mr Dickson held a large amount of responsibility for the safety and wellbeing of service-users and was significantly constrained in the following ways:

• he could not leave the home during the period of the sleepover,
• if he slept, he had to remain available to be woken to respond to any incident, therefore not being able to sleep behind a locked door,
• he was not allowed to consume or be affected by alcohol or drugs,
• he was not allowed visitors without prior permission, and
• he was not allowed to engage in any activity that would disturb the service users during the night.

Therefore, he was entitled to be paid an hourly rate for this work.

This same test has been successfully applied in subsequent cases, one of which being Victoria Law v Board of trustees of Woodford House [2014] NZEmpC 25.

In this case, it was found that matrons sleeping over at a boarding house were significantly constrained in the following ways:

• they were prohibited from having any male visitors,
• they had to remain sober at all times, therefore could not consume any drugs or alcohol,
• they were limited in their ability to socialise whilst on school property,
• there were restrictions on internet use,
• they were expected to conduct themselves quietly so as not to disturb the boarders, and
• during sleepovers, they were expected to be in a position to respond immediately to an emergency or any other disturbance.

It was found that the matrons had an extensive responsibility for the safety and wellbeing of the teenage girls and were of a considerable benefit to the employee.  As such, it was held that the matrons were working overnight.

Another notable case that helps to frame the definition of sleepover work is that of South Canterbury District Health Board v Sanderson [2017] NZERA Christchurch 37.

As a point of difference, this case involved anaesthetic technicians who were not required to sleep at the hospital overnight but were “on-call” and had to report to the hospital within 10 minutes if called.  As such, the hospital provided shared, on-site accommodation which was used by most out of necessity.

The decision in this case further expanded on what the Courts interpreted as paid work.  The circumstances, analysed with the test set out in Idea Services v Dickson [2011] led to a finding by the New Zealand Employment Court that the anaesthetic technicians were entitled to minimum wage payments overnight.

In summary, they were significantly constrained in the following ways:

• the staff had to live or stay in shared accommodation within 10 minutes distance of the hospital – often away from their own home and families,
• they could not undertake activities that would prevent them from being at the hospital within 10 minutes if called, and
• they had to remain available within a 10 minute period, preventing periods of rest or sleep.

It was found that there was a great amount of responsibility placed on the employees in this role.  They were required to be ready to respond at all times, with a failure to comply leading to endangerment of life.  These requirements were of a clear benefit to the hospital as they were able to deliver emergency healthcare around the clock.

Of course, the Idea Services test has not always been successful.  This is illustrated in the case of E Tū Inc v Mount Cook Airline Ltd [2022] NZEmpC 48, in which the New Zealand Employment Court held cabin crew were not working while on stopovers between flights.  

In summary, while they were away from home and somewhat confined to a specific location, there was nothing required of them overnight.  In fact, the Airline was prohibited from contacting the crew unless for absolute necessity.  As such, the constraints were not significant enough to constitute “work” for the purposes of the minimum wage requirements.