Do you pay workers to sleep on the job?
Some occupations require and/or expect employees to be available ‘on call’ during times when they aren’t at work.
In many of these circumstances, the employer is required to pay the employee for these hours.
For instance, if a supervising nurse is needed to perform a ‘sleepover shift’ at a hospital, this could be found to be ‘work’ rather than merely being ‘on call’.
Whether an employee is entitled to payment for being ‘on call’ depends on how the award, enterprise agreement or employment contract that regulates the employee’s wage entitlement is interpreted.
Generally, if you direct an employee to attend a place of employment for a period of time and be available to provide services at the premises as required by you, the employee is working for you.
In some situations, if you don’t pay your worker to snooze, you lose
In the case FWO v Kensington Management Services Pty Ltd (2012), the Fair Work Ombudsman (FWO) prosecuted a retirement village for underpaying a couple it employed as caretakers.
As part of their employment, the couple were required to live together in designated caretaker’s accommodation in the village and be available to work at all times during specified ‘attendance hours’.
They were paid a single wage consisting of a weekly net ‘on call allowance’ as well as receiving the benefit of the accommodation.
The Court ruled that the statutory minimum wage was payable for all required hours of attendance at the employer’s premises, for both active and passive caretaking duties, which included times when the employees were asleep.
This was regardless of whether the caretaker was provided with residential accommodation on the employer’s premises, and whether the required hours of attendance included nights or weekends.
The Court viewed that a caretaker may not always be required to be physically or mentally active during employment periods, and in some situations their work can include times when they are asleep or not required to perform actual duties.
Being ‘on call’ is not a worker’s legal duty
In another legal case Sheldrick v Hazeldene’s Chicken Farm Pty Ltd (2014), an IT systems developer applied for unfair dismissal remedy when his employer terminated his employment for not being ‘on call’ while he was on annual leave.
The employee did not respond to ‘non-urgent’ voice messages the manager had left on his phone.
At the hearing, the employer submitted that the worker had refused a “reasonable and lawful direction to undertake on-call duties”.
However, it wasn’t stipulated in the employee’s existing contract that the he was required to be ‘on call’ and even though the employer had changed the contract to include this additional requirement, it couldn’t be enforced as the employee didn’t agree to the new terms.
The Fair Work Commissioner rejected the employer’s assumed legal right to compel him to participate in “on-call arrangements” and said he was “entitled to annual leave without interruption”.
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