There are many employers who require their employees to stay overnight as part of their job, asleep, but on duty if needed.  These employees are often paid a flat rate for their overnight stay, rather than their usual hourly wage.

According to a Court of Appeal case in February 2011 however, if you are required to sleep over as part of your work shift, you are entitled to be paid at least a minimum wage for every hour you are working.

For example, Katherine worked at a community home for children and young adults with disabilities, providing them with support and care. She occasionally had to sleep overnight at the house as part of her registered work hours.  She was paid $30 for each time she slept over, plus her usual hourly rate of $15.65 for any time she spent actively tending to residents during the night.

According to the Court of Appeal’s recent decision Katherine was actually working while sleeping over at the home, and so was entitled under the Minimum Wage Act 1983 to be paid the minimum wage for every hour she was rostered on, including those during which she was sleeping. For an 8 hour shift she would be entitled to $125.20 instead of the $30 she was paid.  This is a huge difference for both the employee and employer.

The Court’s ruling was that sleepovers in these situations constituted “work” for three reasons.  First, the constraints it placed on Katherine’s freedom; second, the nature and extent of her responsibility during that time; and finally, the benefit to Katherine’s employer of her presence.
The manager of the home argued that because Katherine wasn’t “physically and mentally exerting” herself she couldn’t be working, but the Court held that was irrelevant.  They said physical and mental exertion was not required to be “working” as very few people are ever physically and mentally exerting themselves for the entirety of their working hours, and it was unlikely that Parliament would have intended the minimum wage legislation to not apply.

So if you are an employer with employees who “sleep over” for work, please take note that while no legislative changes have come into effect in this area, the precedent has been set, and, if tested in the Courts, employees would be entitled to be paid at least the minimum wage for all the hours they sleep over for work, whether awake or not.

If you would like further advice in this area please feel free to contact Alan Knowsley.