Pay for Duty Time in New Zealand??
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Hey JetstarNZ / Jetconnect - Cough up??
IDEA SERVICES LIMITED V PHILLIP WILLIAM DICKSON CA CA405/2010 [16 February 2011]
This case was recently heard in the New Zealand Court of Appeal and a decision found in favour of Dickson. The Background is as follows:
The question I pose to the forum for discussion, particularly those employed under NZ Individual Employment Contracts under Australian Airline off-shoring arrangements (Jetstar / Jetconnect etc) is as follows:
Are your Contracts Legal in the sense that you are only paid for Block Time or Scheduled Block Time rather than being paid for your Duty Time (ie. the time that you are working)?
I will kick off the debate with a view that whilst the aviation industry is a totally different industry to the disabled care industry there are some important precedents that can be identified. From the background to the case above you will see that the two points of law being tested were the definition of 'work' and also the interpretation of the Minimum Wage Act which demands that that the minimum wage be paid for all hours worked and that averaging over a specified period is not allowed.
It is my assertion that those pilots and Cabin Crew who work under individual contracts that are based on block hours, or even worse scheduled block hours have an immediate claim to be paid at least the minimum wage of NZ$12.50 for each hour that the flight time or scheduled flight time paid for that is less than the duty period in which those flights took place. Similarly they are entitled to be paid for dead head transport (given this is accepted as duty for the purpose of the flight time regs), turnarounds and also for time spent in the simulator, training sessions or other work related duties. At a push I daresay that a good barrister can put up an argument for overnights to be paid!!
Note for the current Jetstar Cadets. I know for a fact that this legislation will blow the legality of the NZ Cadet Employment Contract out of the water and you should get advice from a lawyer or your union now!!!!
The Government have been hit hard and know very well the wide ranging effect of this decision. So much so that they are already seeking to change the legislation so you need to make your claims for backpay over the last six years now before the goalposts are moved.
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The Kelpie
This case was recently heard in the New Zealand Court of Appeal and a decision found in favour of Dickson. The Background is as follows:
Phillip Dickson was employed by IHC through a company called Idea Services. He was paid a sleepover allowance when he was sleeping in the group home for intellectually disabled people he worked in.
His freedom to do as he wished was constrained and he had responsibilities during his sleepover period. His work benefited the employer. Mr Dickson said that he should be paid the minimum wage when he slept over and not just the sleepover allowance because he said he was working.
Whether Mr Dickson was working when he slept over was the key issue for the Employment Court. The case will affect many workers in the voluntary and care sectors.
Group homes replaced large institutions such as Kimberley Hospital near Levin, where people with disabilities would be gathered and cared for in large numbers. During the 1980s a shift in the thinking behind the care of and support for disabled people resulted in moving such people into the community and having them live in small groups in houses within society.
As far as possible the group homes provide a conventional community living environment. They are more like a flatting situation but a significant feature of each home is that its residents are cared for by an onsite employee such as Mr Dickson.
Most of the operating costs for group homes are delivered by Government, although some funding comes from public donations, investment income and rental from occupiers. No doubt the shift from large institutions with employees on government rates to private group homes has saved the taxpayer a lot of money. No doubt also the IHC, which operates 900 group homes, pays out the money it gets from Government to run its homes.
Mr Dickson worked in several IHC homes in the Horowhenua area but principally one in Otaki. He was paid an hourly rate for some of his time when he worked assisting residents with domestic matters such as washing, making meals, cleaning and tidying and the preparation of lunches for the following day. He would also supervise social activities.
However, from 10pm until 6am or so the following day Mr Dickson frequently remained in the home on a sleepover. During that time he was not required to be actively and constantly engaged with service users, their visitors and others.
BUT he still had responsibilities. He had a room which was used as a staff room and office during the day but which had a bed and other modest furnishings for his use at night.
In deciding that Mr Dickson was working and should be paid the minimum wage for each hour of sleepover the court thought there were three important factors.
The first was the constraints on his freedom during the evening. He could engage in only very limited activities overnight. He could not carry on normal family life or socialise with friends, and his privacy was limited. He did not have access to the comforts and resources of his own home and he must be sober and quiet. The greater the constraints the more likely he was in paid work.
Second, his responsibilities were important. The greater they were, the more likely he was to be working. He had to care for and support service users and ensure the safety and security of the group house. The responsibilities were continuous whether he was asleep or awake and he was not relieved of these till another staff member arrived in the morning.
Third, the court looked at the benefit to the employer of having Mr Dickson assume the role in question. The greater the importance to the employer, the more likely it is that Mr Dickson was working.
It was critical to the business of the IHC through Idea Services that there be a community service worker performing a sleepover in each group home every night. Without their presence the employer would be in breach of its obligations to operate the homes in an appropriate manner and that would jeopardise its funding.
Weighing up each of these factors, the court decided that when Mr Dickson was engaged on sleepovers that was work for the purposes of the Minimum Wage Act and he was entitled to be paid not less than the minimum hourly rate for all of that time.
The case has not been finally resolved, however. The IHC argued there should be an averaging of wages. The fact that the employer paid above the minimum rate for the period when wages were paid should be taken into account.
Mr Dickson should get the minimum wage throughout the whole period of his engagement and so-called overpayments should compensate for periods when he was only paid a sleepover allowance.
Mr Dickson argued the so- called overpayment should not be taken into account. He should be paid for each hour of sleepover at the minimum hourly rate.
His freedom to do as he wished was constrained and he had responsibilities during his sleepover period. His work benefited the employer. Mr Dickson said that he should be paid the minimum wage when he slept over and not just the sleepover allowance because he said he was working.
Whether Mr Dickson was working when he slept over was the key issue for the Employment Court. The case will affect many workers in the voluntary and care sectors.
Group homes replaced large institutions such as Kimberley Hospital near Levin, where people with disabilities would be gathered and cared for in large numbers. During the 1980s a shift in the thinking behind the care of and support for disabled people resulted in moving such people into the community and having them live in small groups in houses within society.
As far as possible the group homes provide a conventional community living environment. They are more like a flatting situation but a significant feature of each home is that its residents are cared for by an onsite employee such as Mr Dickson.
Most of the operating costs for group homes are delivered by Government, although some funding comes from public donations, investment income and rental from occupiers. No doubt the shift from large institutions with employees on government rates to private group homes has saved the taxpayer a lot of money. No doubt also the IHC, which operates 900 group homes, pays out the money it gets from Government to run its homes.
Mr Dickson worked in several IHC homes in the Horowhenua area but principally one in Otaki. He was paid an hourly rate for some of his time when he worked assisting residents with domestic matters such as washing, making meals, cleaning and tidying and the preparation of lunches for the following day. He would also supervise social activities.
However, from 10pm until 6am or so the following day Mr Dickson frequently remained in the home on a sleepover. During that time he was not required to be actively and constantly engaged with service users, their visitors and others.
BUT he still had responsibilities. He had a room which was used as a staff room and office during the day but which had a bed and other modest furnishings for his use at night.
In deciding that Mr Dickson was working and should be paid the minimum wage for each hour of sleepover the court thought there were three important factors.
The first was the constraints on his freedom during the evening. He could engage in only very limited activities overnight. He could not carry on normal family life or socialise with friends, and his privacy was limited. He did not have access to the comforts and resources of his own home and he must be sober and quiet. The greater the constraints the more likely he was in paid work.
Second, his responsibilities were important. The greater they were, the more likely he was to be working. He had to care for and support service users and ensure the safety and security of the group house. The responsibilities were continuous whether he was asleep or awake and he was not relieved of these till another staff member arrived in the morning.
Third, the court looked at the benefit to the employer of having Mr Dickson assume the role in question. The greater the importance to the employer, the more likely it is that Mr Dickson was working.
It was critical to the business of the IHC through Idea Services that there be a community service worker performing a sleepover in each group home every night. Without their presence the employer would be in breach of its obligations to operate the homes in an appropriate manner and that would jeopardise its funding.
Weighing up each of these factors, the court decided that when Mr Dickson was engaged on sleepovers that was work for the purposes of the Minimum Wage Act and he was entitled to be paid not less than the minimum hourly rate for all of that time.
The case has not been finally resolved, however. The IHC argued there should be an averaging of wages. The fact that the employer paid above the minimum rate for the period when wages were paid should be taken into account.
Mr Dickson should get the minimum wage throughout the whole period of his engagement and so-called overpayments should compensate for periods when he was only paid a sleepover allowance.
Mr Dickson argued the so- called overpayment should not be taken into account. He should be paid for each hour of sleepover at the minimum hourly rate.
Are your Contracts Legal in the sense that you are only paid for Block Time or Scheduled Block Time rather than being paid for your Duty Time (ie. the time that you are working)?
I will kick off the debate with a view that whilst the aviation industry is a totally different industry to the disabled care industry there are some important precedents that can be identified. From the background to the case above you will see that the two points of law being tested were the definition of 'work' and also the interpretation of the Minimum Wage Act which demands that that the minimum wage be paid for all hours worked and that averaging over a specified period is not allowed.
It is my assertion that those pilots and Cabin Crew who work under individual contracts that are based on block hours, or even worse scheduled block hours have an immediate claim to be paid at least the minimum wage of NZ$12.50 for each hour that the flight time or scheduled flight time paid for that is less than the duty period in which those flights took place. Similarly they are entitled to be paid for dead head transport (given this is accepted as duty for the purpose of the flight time regs), turnarounds and also for time spent in the simulator, training sessions or other work related duties. At a push I daresay that a good barrister can put up an argument for overnights to be paid!!
Note for the current Jetstar Cadets. I know for a fact that this legislation will blow the legality of the NZ Cadet Employment Contract out of the water and you should get advice from a lawyer or your union now!!!!
The Government have been hit hard and know very well the wide ranging effect of this decision. So much so that they are already seeking to change the legislation so you need to make your claims for backpay over the last six years now before the goalposts are moved.
More to Follow
The Kelpie
Last edited by The Kelpie; 21st Feb 2011 at 04:28. Reason: New Title
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Or maybe we're all suffering from "yet another QF vs JQ thread" fatigue.
(No disrespect intended to the thread starter)
(No disrespect intended to the thread starter)
Last edited by Hugh Jarse; 22nd Feb 2011 at 04:35. Reason: Not taking a shot at anyone
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To be fair if 'The Kelpie' manages to bring to light an arrangement that is less than proper, so that someone with a grievance can legally challenge it, he/she will have done the vast majority of us a favour to help keep jobs from being off-shored to the cheapest alternative, when those very same people are being 'ripped-off'.
Perhaps the Law Courts will have the strength to tell the airline managers, "If you don't like it, leave". (I'd like to see that).
Good on you Kelpie.
Perhaps the Law Courts will have the strength to tell the airline managers, "If you don't like it, leave". (I'd like to see that).
Good on you Kelpie.
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The question I have is " If what Jetconnect and Jetstar are doing sets a Legal precedent that is not challenged, what then is to stop all the mining companys setting up offshore shells and then have their staff "fly-in,fly-out" from say somewhere in Asia on a fraction of the wage that Aussies are currently on?"
Isn't Clifford an ex-mining poobah? Do you think his mates who dig big holes in the ground aren't waiting with 'bated breath over this one?
Isn't Clifford an ex-mining poobah? Do you think his mates who dig big holes in the ground aren't waiting with 'bated breath over this one?
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The guy is a wage earner. Both jetstar and Jetconnect are salary earners.
In NZ when you are a salary earner, it doesn't matter how many duty hours you work. That's why you have DTA that takes care of every duty hour you are at work,( another way of paying an overnight allowance) and incentive to take care of every block hour over 65 hours.
Jetstar are on individual contracts and Jetconnect are on a collective agreement.
In NZ when you are a salary earner, it doesn't matter how many duty hours you work. That's why you have DTA that takes care of every duty hour you are at work,( another way of paying an overnight allowance) and incentive to take care of every block hour over 65 hours.
Jetstar are on individual contracts and Jetconnect are on a collective agreement.
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Fruet
You are not salaried when you 'salary' varies each month depending on how many hours you fly. This is certainly the case with the cadet contract, dunno about the others.
You are not salaried when you 'salary' varies each month depending on how many hours you fly. This is certainly the case with the cadet contract, dunno about the others.
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Mate I'm just referring to a salary earner who earns a salary plus incentive pay. The guy in your article is a wage earner (hourly rate). He is paid an hourly rate hence his beef if he is paid under that rate whilst still at work.
I'm not sure what deal the cadets are on but I would imagine it would involve a pinneaple and a bottom!
In NZ a salary is a salary and can't be adjusted for the amount of hours you work.
I'm not sure what deal the cadets are on but I would imagine it would involve a pinneaple and a bottom!
In NZ a salary is a salary and can't be adjusted for the amount of hours you work.
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The critical Court observation appears to be:
The synopsis you posted does not support that reasoning.
Without their presence the employer would be in breach of its obligations to operate the homes in an appropriate manner and that would jeopardise its funding.
At a push I daresay that a good barrister can put up an argument for overnights to be paid!!
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Air Ace
I put this up to generate some debate and to brainstorn whether a case could be made to make New Zealand off-shoring uneconomical to the airlines thus encouraging employers to retain their crew on shore in Australia.
The point you make refers to satisfying conditions to maintain funding, clearly this does not occur in the aviation industry.
What you have to realise is that the case refers to the disability care sector and you will not be able to apply the specifics, what you can apply is the points of law.
The points of law are:
Definition of Work: Do some reasearch on the case yourself and find out what factors the courts took into account to decide whether essentially 'standby' was work such things as ability to socialise with friends, ability to drink alcohol, ability to go home and do the things you normally do when not working ie how is your personal freedom restricted. It is restricted because for an operational reason the employer does not want to get you home at night.
Application of the Minimum Wage Act: A requirement to be paid for all hours worked. 'wage averaging not allowed'.
When logging duty time are you physically or mentally carrying out tasks on behalf of the employer? Yes, so you are working and you are entitled to be paid for all hours worked.
Case said that averaging is not allowed, so if your pay is based upon flight hours they cannot get the duty hours around the flight hours for free. Including deadheading, sim training, admin, writing safety reports etc etc.
Go and see your union and ask them to look into this, they should provide a free legal service as part of your subscriptions.
I put this up to generate some debate and to brainstorn whether a case could be made to make New Zealand off-shoring uneconomical to the airlines thus encouraging employers to retain their crew on shore in Australia.
The point you make refers to satisfying conditions to maintain funding, clearly this does not occur in the aviation industry.
What you have to realise is that the case refers to the disability care sector and you will not be able to apply the specifics, what you can apply is the points of law.
The points of law are:
Definition of Work: Do some reasearch on the case yourself and find out what factors the courts took into account to decide whether essentially 'standby' was work such things as ability to socialise with friends, ability to drink alcohol, ability to go home and do the things you normally do when not working ie how is your personal freedom restricted. It is restricted because for an operational reason the employer does not want to get you home at night.
Application of the Minimum Wage Act: A requirement to be paid for all hours worked. 'wage averaging not allowed'.
When logging duty time are you physically or mentally carrying out tasks on behalf of the employer? Yes, so you are working and you are entitled to be paid for all hours worked.
Case said that averaging is not allowed, so if your pay is based upon flight hours they cannot get the duty hours around the flight hours for free. Including deadheading, sim training, admin, writing safety reports etc etc.
Go and see your union and ask them to look into this, they should provide a free legal service as part of your subscriptions.
Last edited by The Kelpie; 6th Mar 2011 at 23:41.
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In NZ a salary is a salary and can't be adjusted for the amount of hours you work.
So how do you argue that Jetconnect Jetstar pilots are salaried when they are paid additional pay when they fly more than a specified number of hours per duty cycle??
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In NZ you are either a "salary" earner or a "wage" earner. A salary earner is paid a part of their yearly salary every fortnight. A wage earner is paid for how many hours he/she has worked. If a wage earner worked 72 hours over the fortnight he/she will only be paid 72 hours at the rate he/she has agreed to in their contract. A salary earner could potentially work only 10 hours in a fortnight but still earn his full fortnightly salary.
If you are a salary earner in Jetconnect or Jetstar you are paid 1/26th of your yearly salary every fortnight. If you work in excess of 65 block hours per month you receive incentive pay per hour over and above your salary.
The chap in your story is a wage earner, in NZ it is totally different to a salary earner.
It's in the Jetconnect collective agreement and the Jetstar individual contract.
They don't receive more money per duty cycle but rather incentive pay over and above 65 block hours. So when you hear about Jetconnect/Jetstar pilots earning bugger all, their salary is based on 65hours of flying per month(about 12days work) It doesn't include incentive pay for block hours over 65 hours.
Jetconnect/Jetstar are not guaranteed a certain amount of hours per month.
I hope this clears things up a little Kelpie, cheers.
If you are a salary earner in Jetconnect or Jetstar you are paid 1/26th of your yearly salary every fortnight. If you work in excess of 65 block hours per month you receive incentive pay per hour over and above your salary.
The chap in your story is a wage earner, in NZ it is totally different to a salary earner.
Fruet
So how do you argue that Jetconnect Jetstar pilots are salaried when they are paid additional pay when they fly more than a specified number of hours per duty cycle??
So how do you argue that Jetconnect Jetstar pilots are salaried when they are paid additional pay when they fly more than a specified number of hours per duty cycle??
They don't receive more money per duty cycle but rather incentive pay over and above 65 block hours. So when you hear about Jetconnect/Jetstar pilots earning bugger all, their salary is based on 65hours of flying per month(about 12days work) It doesn't include incentive pay for block hours over 65 hours.
Jetconnect/Jetstar are not guaranteed a certain amount of hours per month.
I hope this clears things up a little Kelpie, cheers.
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And dont forget QF mainline shorthaul in AUS are paid block hours only, with minimum guarantee of 53.5 hours per 28 day roster. They could work a 12 hour day and still only get paid 4-5 hours. Not only in NZ!
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Unfortunately, legislation is NZ and not applicable to Aus.
Look I think it is worth the unions looking into this given this new precedent.
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The Kelpie
Look I think it is worth the unions looking into this given this new precedent.
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The Kelpie
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JetConnect/JetstarNZ average monthly hours
Fruet,
Do you know what the typical fleet average hours per month are? Again, on average, what sort of incentive dollars are being earned? What happens if they get sick?
AoA,
Block hours with a guarantee is a different kettle of fish - that is a minimum salary plus incentives and there is an efficiency pressure on management to get at least the guaranteed hours flown within the available duty time.
Stay Alive,
Do you know what the typical fleet average hours per month are? Again, on average, what sort of incentive dollars are being earned? What happens if they get sick?
AoA,
Block hours with a guarantee is a different kettle of fish - that is a minimum salary plus incentives and there is an efficiency pressure on management to get at least the guaranteed hours flown within the available duty time.
Stay Alive,
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Guys
We are not lawyers, but through our Unions we have access to free legal advice / assistance.
Can we get it checked? I am not NZ based so I cannot make the approach.
I think you may all be missing the point - you must be paid for all hours worked ie duty time. The FDL are just that limits - you are only being paid for flight time.
It may be that the structure of your contracts are now illegal given this latest precedent.
More to Follow
The Kelpie
We are not lawyers, but through our Unions we have access to free legal advice / assistance.
Can we get it checked? I am not NZ based so I cannot make the approach.
I think you may all be missing the point - you must be paid for all hours worked ie duty time. The FDL are just that limits - you are only being paid for flight time.
It may be that the structure of your contracts are now illegal given this latest precedent.
More to Follow
The Kelpie
