Legal questions around requirements for overnight staff

13 Jan 20

Column written by Dunedin Partner John Farrow, published in the business section of the Otago Daily Times on Monday 6 January.

The University of Otago announced in October that it would build a $90 million residential hall. The plan is for a new 450-bed residential college on the corner of Albany and Forth Streets. The college will include professional college staff accommodation. Following the recent discovery of a deceased young man in a University of Canterbury hall of residence, it is anticipated there will be much more focus on pastoral care and supervision in university hostels. The Education Minister has said that halls of residence have a duty of care to students and that the Government will look closely at whether the regulatory framework is fit for purpose.

Along with providing suitable pastoral care comes the issue of proper payment for that care. A number of recent decisions from the Employment Relations Authority and court have addressed the circumstances of matrons in boarding hostels and house masters at schools. The same issues are likely to arise in university hostels if staff are required to sleep over.

The most recent Employment Relations Authority decision relates to Nelson College. This involved Ms Lukitau-Ngaamo, who was appointed house master of the hostel in 2017. Ms Lukitau-Ngaamo and her family lived in a separate apartment in the same building as the boarders. She claimed she should be paid for all the hours she worked on-call in the boarding house. These were approximately nine hours per night.

The college claimed it had agreed to pay her for any time-sheeted hours actually worked monitoring, caring for, or supervising boys between 10.30pm and 7am on nights she was in residence. The position description made it clear that the position was a ‘‘live-in’’ position. The rent for the house master residence was $375 per week which was paid by the school.Despite the employment agreement suggesting that Ms Lukitau-Ngaamo would record any monitoring, supervision of, or care for the boys between 10.30pm and 7am, no time-sheets were ever provided to her; she did not record her time and no-one asked her to provide time-sheets. Ms Lukitau-Ngaamo realised that she had not been paid for any work she had undertaken at nights and claimed for this.

The college maintained that she should have filled in time-sheets and should only be paid for any hours she was actively working through caring for, monitoring or supervising boys during the night hours. The college claimed she was well remunerated and pointed to the free family accommodation she received as well as non-contact hours during the school day.

The factors that the court considers in cases such as this are:

  • The constraints placed on the employee’s freedom.
  • The nature and extent of the responsibilities placed on the employee.
  • The benefit to the employer of having the employee perform the role.

The authority found that Ms Lukitau-Ngaamo was required to live on-site and that she was solely responsible between the hours of 10.30pm and 7am. During those hours she had to remain available for texts, telephone calls or someone ringing her doorbell. Sometimes parents would call her if they were worried about contact they had with their son. These constraints included having to be home during evening hours, not being able to drink more than one alcoholic beverage and restrictions on her social life.

Ms Lukitau-Ngaamo’s family also had to be considerate so that they did not disturb the boys. Ms Lukitau-Ngaamo had to pay particular care when her 3-year-old child was outside as there was no safe and fenced outdoor play area. She could not enjoy uninterrupted sleep every night. She regularly checked out any unusual noise after lights-out and responded to any call, knock or text.

The authority found that these were significant restrictions which benefited the college. The college could not have run the boarding houses without a responsible adult living on-site overnight. The authority found that Ms Lukitau-Ngaamo must be regarded as having been at work overnight on all the nights during term time that she was present living in the boarding house. She was entitled to receive a minimum wage for each hour worked.

The authority left it for the parties to agree whether the value of accommodation rental should be deducted from the weekly amount of minimum wage owed. While this case dealt with whether or not sleeping over amounted to work, the issue is much wider. For example, workers who are rostered to be available for call-outs may also claim that they should be paid for each hour they are rostered. The practice is often to pay an on-call allowance and, in addition, an enhanced payment if the worker is actually called out. However in certain situations, if the restrictions placed on the worker are sufficient, it may be that they are found to be working. For example, prohibitions on consuming alcohol and requirements to be close to the work locations are constraints placed on the employee’s freedom.

The one crucial difference in the sleep-over cases is the requirement to be present at the workplace. However, it is possible that a combination of restrictions on an employee, without the requirement to be present at the workplace, could still mean that the employee is working during the call-out period. Each situation requires a careful analysis.