Legal battle over sleepover shifts demonstrates union role in women’s pay equity struggle

Horizontal labour market segregation on the basis of gender has been well-entrenched in New Zealand’s economy, including within the care sector which is majority-comprised of women workers. The following article by Kelly Pope – a member of the Christchurch branch of the Workers Party who works as a mental health support person – demonstrates the continued relevance of the workers’ movement and trade unionism in addressing equal pay issues.

In 2007 the Service and Food Workers’ Union (SFWU) and the Public Service Association (PSA) took cases against two major residential service providers in the intellectual disability sector, attempting to gain minimum wage pay for hours spent on sleepover shifts. After a decision by the Employment Relations Authority that considered sleeping over to be work, the issue was appealed to the Employment Court by IHC in May 2009. A support worker who was employed by IHC’s IDEA Services, Phil Dickson, was the individual applicant in this case.

Since then, the Employment Court has found the existing payment of sleepover rates to be in breach of the Minimum Wage Act, ruling in favour of Mr Dickson and the union. A subsequent case taken to the Court of Appeal by IHC has resulted in the same outcome. Since this decision on 16th February 2011, the case has been taken further by IHC and will now be considered by the Supreme Court with a decision expected sometime after this year’s general election. While this long legal process has been unfolding, the PSA has filed additional legal proceedings against more than thirty health and disability support employers also currently paying below minimum wage sleepover rates, including Barnardos, Hawkes Bay DHB, Spectrum Care and Healthcare NZ.

This week Alisdair Thompson of the Employers and Manufacturers Association asserted that the gendered wage gap is justified because women have periods. This clearly illustrates the role of the employing class in holding back women's equality and also exposes the class nature of women's oppression.

Though the lawyer for IHC, Kit Toogood QC, argued that the service was not in breach of the Minimum Wage Act because Mr Dickson’s pay averaged out to pay the minimum hourly wage, this argument was rejected by the courts. This means that if IDEA Services and IHC are unsuccessful in the appeals process, workers effected by the ruling will receive minimum wage for each hour of a sleepover shift in addition to the $15 to $20 per hour paid for day time hours worked.

Andrew Geddis, an expert in constitutional law fromOtagoUniversitybelieves it is unlikely that the Supreme Court will reach a different finding to those of the three preceding hearings. If the Supreme Court’s decision is consistent with the previous hearings, to comply with the law as it currently exists, IDEA Services will be required to pay at least minimum wage for each hour worked in a sleepover shift. The finding in the IDEA Services case is significant because it sets a legal precedent for future cases of the same nature. Considering that large numbers of similar cases are now being filed by unions such as the PSA, this could have significant implications for the health and disability sector on the whole, its service providers and their funders.

In a December 2010 publication by the SFWU, IHC chief executive Ralph Jones was quoted criticising the union for not considering the impact legal action would have on the organisation and its staff. Jones estimates that changes made to staff pay could cost $176m in back pay with wage costs rising up to $30m a year. Based on the PSA’s action against more than thirty organisations, costs associated with the replacement of sleepover rates with the minimum hourly wage is expected to cost up to $500m in back payments. Because the community sector receives almost all of its financial resources from the state, this cost can only be met with increased government funding.

In a publication on the sleepover rates issue, the SFWU notes the continued underfunding of IHC subsidiary companies IDEA Services and Timata Hou by the government as a barrier to securing higher sleepover rates for workers in the past. The limited liability status of IDEA Services means that the company is under statutory management and payouts would have to be covered by the government, not out of service funding.

Service management staff have commented on the government’s unwillingness to increase funding, with Philippa Sellens, spokesperson for IHC, saying the organisation wishes to be able to pay workers more but “the money we have to pay our staff is what the government gives us”. Unions have also noted that “the reason that IHC has been forced to put its trading companies into statutory management is because the government, as the funder, has sat on its hands and refused to acknowledge that disability support workers have been ripped off for the last 20 years”. In response to the estimated additional funding which will be required if the Supreme Court ruling sets a precedent that results in all sleepover staff gaining hourly pay, the government is considering changes to current minimum wage legislation to once again exclude health and disability sector workers from reasonable hourly rates for sleepover work.

Provider organisations have insisted on the necessity of sleepover pay at a lower rate than hourly wages to continue providing de-institutionalised care in the community. Resultantly, support workers and the unions who represent them have been framed as self-interested and willing to compromise the care of their clients. However, what the court cases and following media attention has highlighted is that sleepover work is real work deserving real pay. Articles with titles such as IHC sleepover staff not slumber party attendees (this was the title of an Alliance Party press release published by Stuff) have challenged the perception that sleepover shifts are good money for a good nights sleep.

In relation to Phil Dickson’s role working for IDEA Services the court noted that sleepover staff could not leave the facility without organising cover, have visitors, or engage in any activity which might disturb service users and would need to be available to be woken any time during the night to manage incidents. Employees in the sector whose work is largely made up of sleepover shifts with few daytime hours, primarily women balancing work with caring for their children, can expect to work five sleepover shifts a week with rates which amount to roughly a third of the minimum wage per hour.

In my job as a mental health support worker many people I’ve talked to who work in the field feel that the current sleepover rates are not adequate recompense for the work that is required. Some staff working in residential units estimate they manage about four hours of broken sleep during a sleepover shift, and when staff who sleep well at work mention this to their managers they can be told that they do not deserve sleepover work if they cannot sleep lightly and stay alert for the night. The response from providers and the government to sleepover rate challenges suggests this will be a long struggle but one worth following and getting involved in. Up to date information and links to news articles can be found on the Facebook page “New Zealanders who do Sleepovers Discussion and Poll” for those wanting to find out more about the issue. As the PSA has commented, the government has been getting employees in the health and disability field “too cheap” for too long. This is one of the key struggles relevant to pay equity in New Zealand today.

(For latest figures on income and employment inequality on the basis of gender, visit http://workersparty.org.nz/2011/06/22/women-still-coming-off-worse-under-capitalism/)

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