Sleepover Wages (Settlement) Act 2011

1: Title
This Act is the Sleepover Wages (Settlement) Act 2011.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
1: Preliminary provisions
3: Purposes
1: The purposes of this Act are—
a: to facilitate the settlement of civil proceedings between certain parties about the payment of wages at the minimum rate prescribed under the Minimum Wage Act 1983
b: to provide for a staged progression towards full compliance with the Minimum Wage Act 1983
c: to provide a mechanism for extending the application of subparts 1 2
2: To those ends, this Act—
a: gives legal effect to certain aspects of the terms of the settlement of the parties referred to in subsection (1)﻿(a); and
b: extinguishes certain claims for sleepover wages in respect of sleepovers performed before the commencement of this Act; and
c: creates entitlements to back wages for certain sleepovers; and
d: provides for a staged progression of payments for sleepovers towards the minimum hourly rate prescribed under the Minimum Wage Act 1983
e: provides an Order in Council mechanism for extending the application of subparts 1 2
f: preserves the agreement dated 13 September 2011 between the Crown, Idea Services Limited, 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
4: Interpretation
1: In this Act, unless the context otherwise requires,— applicable minimum hourly rate section 19(2) back wages claim for sleepover wages section 11 current employee disability support services section 6(1) employee employer employer in the health and disability sector Employment Court section 186 Employment Relations Authority Authority section 156 health services section 6(1) historic employee Idea Services recent employee settlement section 30(3) sleepover
a: required to be at the employee's workplace; and
b: allowed to sleep at the workplace while on duty; and
c: required to be available to attend to his or her duties during the course of the night as necessary sleepover wages
a: means wages in respect of a sleepover payable under the Minimum Wage Act 1983
b: includes, as the context requires, wages in respect of a sleepover payable under this Act Timata Hou Vote section 2(1) wages
a: includes—
i: back wages:
ii: productivity or incentive-based payments; but
b: does not include—
i: non-taxable allowances paid by the employer to the employee:
ii: any payment of an employer contribution to a superannuation scheme for the benefit of the employee workplace section 5
2: A reference in this Act to an employee, in relation to the payment of any sleepover wages under this Act must, unless the context otherwise requires, be taken to include a person who, at the time that the payment is required to be made under this Act,—
a: is entitled to the payment; but
b: has ceased to be in the employment of the employer concerned.
5: Act binds the Crown
This Act binds the Crown.
6: Relationship between this Act and other law
This Act applies despite anything to the contrary in the following:
a: the Minimum Wage Act 1983
b: any other enactment:
c: any rule of law.
7: Expiry
1: This Act expires on the close of the day that is 5 years after the date of its commencement.
2: On the expiry of this Act, Orders in Council made under section 24 2016-10-19 Sleepover Wages (Settlement) Act 2011 Sleepover Wages (Settlement) (CCS Disability Action Otago Incorporated) Order 2013 Sleepover Wages (Settlement) (CCS Disability Action Southland Incorporated) Order 2013 Sleepover Wages (Settlement) (Community Living Limited) Order 2013 Sleepover Wages (Settlement) (Hawke's Bay District Health Board) Order 2013 Sleepover Wages (Settlement) (Health Action Trust (Nelson)) Order 2013 Sleepover Wages (Settlement) (IRIS Limited) Order 2013 Sleepover Wages (Settlement) (The Carroll Street Trust) Order 2013 Sleepover Wages (Settlement) (Te Anua Nua Trust) Order 2013 Sleepover Wages (Settlement) (Te Whare Mahana Trust Board) Order 2013 Sleepover Wages (Settlement) (Wellington After-Care Association Incorporated) Order 2013 Sleepover Wages (Settlement) (Christchurch Residential Care Limited) Order 2013 Sleepover Wages (Settlement) (GIFT Centre) Order 2013 Sleepover Wages (Settlement) (Greenways Trust) Order 2013 Sleepover Wages (Settlement) (Hohepa Homes Trust Board) Order 2013 Sleepover Wages (Settlement) (Independence House Connelly Trust) Order 2013 Sleepover Wages (Settlement) (Manaaki Trust) Order 2013 Sleepover Wages (Settlement) (MASH Trust) Order 2013 Sleepover Wages (Settlement) (Nelson Marlborough District Health Board) Order 2013 Sleepover Wages (Settlement) (Q-nique Limited) Order 2013 Sleepover Wages (Settlement) (Ranfurly Care Society Incorporated) Order 2013 Sleepover Wages (Settlement) (Rescare Management Limited) Order 2013 Sleepover Wages (Settlement) (Solway Trust) Order 2013 Sleepover Wages (Settlement) (The South Waikato Achievement Trust) Order 2013 Sleepover Wages (Settlement) (S R S Limited) Order 2013 Sleepover Wages (Settlement) (Te Awamutu Gracelands Trust) Order 2013 Sleepover Wages (Settlement) (Te Roopu Whakapakari Ora Trust) Order 2013 Sleepover Wages (Settlement) (Te Runanga o Toa Rangatira Incorporated) Order 2013 Sleepover Wages (Settlement) (The Eastgate Community Trust) Order 2013 Sleepover Wages (Settlement) (The Karldon Trust) Order 2013 Sleepover Wages (Settlement) (The Open Home Foundation of New Zealand) Order 2013 Sleepover Wages (Settlement) (The Paulownia Trust) Order 2013 Sleepover Wages (Settlement) (The Salvation Army New Zealand Trust) Order 2013 Sleepover Wages (Settlement) (The Wellink Trust) Order 2013 Sleepover Wages (Settlement) (Anglican Trust for Women and Children) Order 2013 Sleepover Wages (Settlement) (Barnardos New Zealand Incorporated) Order 2013 Sleepover Wages (Settlement) (The Home and Family Society Christchurch Incorporated) Order 2013 Sleepover Wages (Settlement) (Brackenridge Estate Limited) Order 2013 Sleepover Wages (Settlement) (Claddagh Haven Trust Board) Order 2013 Sleepover Wages (Settlement) (Donaldson Residential Trust) Order 2013 Sleepover Wages (Settlement) (Geraldine Pathways Centre Trust) Order 2013 Sleepover Wages (Settlement) (Henderson Home Community Homes Limited) Order 2013 Sleepover Wages (Settlement) (Laura Fergusson Trust (Canterbury)) Order 2013 Sleepover Wages (Settlement) (Te Tomika Trust) Order 2013 Sleepover Wages (Settlement) (Te Whanau Tokotokorangi Charitable Trust) Order 2013 Sleepover Wages (Settlement) (Healthcare of New Zealand Limited) Order 2013 Sleepover Wages (Settlement) (Pact Group) Order 2013 Sleepover Wages (Settlement) (Te Roopu Taurima O Manukau Trust) Order 2013 Sleepover Wages (Settlement) (Te Rori a Mua Trust) Order 2013 Sleepover Wages (Settlement) (Arataki Ministries Limited) Order 2013 Sleepover Wages (Settlement) (Ballymena Properties Limited) Order 2013 Sleepover Wages (Settlement) (Braeburn House Limited) Order 2013 Sleepover Wages (Settlement) (Central Health Limited) Order 2013 Sleepover Wages (Settlement) (Corstorphine Baptist Community Trust) Order 2013 Sleepover Wages (Settlement) (Framework Trust) Order 2013 Sleepover Wages (Settlement) (Gateway Housing Trust) Order 2013 Sleepover Wages (Settlement) (Kotuku Trust) Order 2013 Sleepover Wages (Settlement) (St. Marks Society) Order 2013 Sleepover Wages (Settlement) (Te Awhi Whanau Charitable Trust) Order 2013 Sleepover Wages (Settlement) (Te Mana Oranga Trust) Order 2013 Sleepover Wages (Settlement) (Te Oranganui Trust (Incorporated)) Order 2013 Sleepover Wages (Settlement) (Toucan Taranaki 2004 Limited) Order 2013 Sleepover Wages (Settlement) (Totara 61 Limited) Order 2013 Sleepover Wages (Settlement) (West Auckland Living Skills Homes Trust Board) Order 2013 Sleepover Wages (Settlement) (Taonga Education Centre Charitable Trust) Order 2013 Sleepover Wages (Settlement) (Hinemoa Lodge Limited) Order 2013 Sleepover Wages (Settlement) (Te Kotuku Ki Te Rangi Charitable Trust) Order 2013 Sleepover Wages (Settlement) (Ngatihine Health Trust Board) Order 2013 Sleepover Wages (Settlement) (Pathways Health Limited) Order 2013 Sleepover Wages (Settlement) (Recovery Solutions Services Limited) Order 2013 Sleepover Wages (Settlement) (Richmond Services Limited) Order 2013 Sleepover Wages (Settlement) (Arahura Charitable Trust) Order 2014 Sleepover Wages (Settlement) (Mahitahi Trust) Order 2014 Sleepover Wages (Settlement) (Hauora Waikato Maori Mental Health Services) Order 2014 Sleepover Wages (Settlement) (Raukura Hauora O Tainui Trust) Order 2014 Sleepover Wages (Settlement) (BUPA Care Services NZ Limited) Order 2014 Sleepover Wages (Settlement) (Totara Trust Horowhenua Board) Order 2014 Sleepover Wages (Settlement) (Te Roopu Manaaki I Te Hunga Haua Incorporated) Order 2014 Sleepover Wages (Settlement) (Central Otago Living Options Limited) Order 2014 Sleepover Wages (Settlement) (Mount Tabor Trust) Order 2014
2: Sleepover wages
1: Extinguishing claims for sleepover wages
Preliminary
8: Application of this subpart
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
b: section 34 Extinguishment
9: Certain claims for sleepover wages by employees of Idea Services and Timata Hou extinguished
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.
10: Certain claims for sleepover wages by employees of other employers in health and disability sector extinguished
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.
11: Effect of this subpart on other civil proceedings
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 10
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 10
2: This section is subject to section 13(2) and (3)
2: Settlement relating to Idea Services and Timata Hou
Preliminary
12: Application of this subpart
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
b: section 34
13: Effect of this subpart on civil proceedings
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. Back wages for sleepover
14: Entitlement of current employees
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)
15: Entitlement of recent employees
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)
16: Entitlement of historic employees
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)
17: Entitlements may be several
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
18: Disentitlement to back wages for other sleepovers
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
19: Calculation of back wages
1: Any back wages for a sleepover payable under any of sections 14 to 16 (((a × 9) – b) + c) × 0.50 = d where— a is the applicable minimum hourly rate b is the amount of taxable allowances for a sleepover that was actually payable by the employer to the employee to whom this subpart applies at the time the employee performed the sleepover c in relation to the sleepover, is the difference between—
a: the amount the employer would have paid in respect of annual holidays taken by the employee to whom this subpart applies had the applicable minimum hourly rate been paid for the sleepover; and
b: the amount actually paid by the employer to the employee to whom this subpart applies in respect of annual holidays taken by the employee d is the gross amount of back wages payable to an employee to whom this subpart applies before tax is withheld.
2: In subsection (1) applicable minimum hourly rate section 4
20: When back wages must be paid
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. Staged progression to minimum wage
21: Entitlement of employees to specified amount for sleepover performed immediately before 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)
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.
22: Entitlement to be paid minimum hourly rates for sleepovers performed after 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: The following table is small in size and has 2 columns. Column 1 is headed Specified period. Column 2 is headed Minimum hourly rate. Specified period Minimum hourly rate Period beginning on the commencement of this Act and ending with the close of 30 June 2012 50% of the applicable minimum hourly rate Period beginning on 1 July 2012 and ending with the close of 24 December 2012 75% of the applicable minimum hourly rate Period beginning on 25 December 2012 and ending with the close of 30 June 2013 100% of the applicable minimum hourly rate
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).
3: Miscellaneous
Application of subparts 1 and 2 to other employers and other employers' employees
23: Definitions for sections 24 to 28
In sections 24 to 28 other employer
a: any employer in the health and disability sector:
b: any employer in any other employment sector funded through a Vote other employer's employees relevant Minister
24: Power to extend subparts 1 and 2 to other employers and other employers' employees by Order in Council
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 2
i: any other employer; and
ii: that other employer's employees:
b: only subpart 2
i: any other employer; and
ii: that other employer's employees.
2: An Order in Council made under subsection (1) section 25 26 27 28 subparts 1 2 section 3(1)﻿(a) and (b)
3: 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
4: An Order in Council made under subsection (1)—
a: may specify a date in accordance with section 25(b) 26(a)
b: may be retrospective only to the extent provided in paragraph (a).
25: Modifications or extensions to subpart 1
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
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
26: Modifications or extensions to subpart 2
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
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:
d: 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:
e: 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
27: Limitations on modifications or extensions to subparts 1 and 2 if settlement cannot be reached
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, the relevant Minister must not recommend the making of an Order in Council under section 24 subparts 1 2 subpart 2
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.
28: Limitations on modifications or extensions to subparts 1 and 2 in relation to health and disability sector
Despite sections 25 26 subparts 1 2
a: amend the formula for calculating back wages set out in section 19(1) a
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 the specified amount referred to in section 21(1) section 21(2)
d: provide for any of the matters specified in section 25(b) 26(a) or (b)
29: Application of Legislation Act 2012
An Order in Council made under section 24 Legislation Act 2012 section 41 Section 29 replaced 5 August 2013 section 77(3) Legislation Act 2012 Dispute resolution under Act
30: Access to mediation services or Employment Relations Authority
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 sections 145 to 154
b: proceedings to resolve the dispute may be commenced before the Employment Relations Authority in accordance with section 158
3: Despite subsection (2)﻿(a), section 148A(2)
4: In subsection (3), minimum entitlements means wages or holiday pay or other money payable by the employer to the employee under the Holidays Act 2003 Minimum Wage Act 1983 Section 30(4) amended 1 April 2016 section 39 Employment Relations Amendment Act 2016
31: Application of 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
b: the provisions of the Employment Relations Act 2000
2: Without limiting subsection (1), the following provisions of the Employment Relations Act 2000
a: sections 137 to 140
b: sections 157 to 160 162 to 165 173 to 176
c: sections 177 to 184 188 to 199
d: sections 214 to 215
32: Enforcement of orders and judgments
1: An order made or judgment given by the Employment Relations Authority or the Employment Court under section 31
2: To avoid doubt, an order imposing a fine is enforceable under Part 3
3: In an order imposing a fine under section 140(6) Section 32(2) inserted 1 April 2016 section 39 Employment Relations Amendment Act 2016 Section 32(3) inserted 1 April 2016 section 39 Employment Relations Amendment Act 2016 Enforcement of obligations under Act
33: Penalty for non-compliance
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: For the purposes of subsection (1), the following provisions of the Employment Relations Act 2000
a: section 135 and section 135A
b: sections 137 to 140 Section 33(2)﻿(a) amended 1 April 2016 section 39 Employment Relations Amendment Act 2016 Savings
34: Savings
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