What is work? And when should you be paid for it?

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The home-care worker is arguing that she, and hundreds of others like her in New Zealand, should be paid for the time spent travelling between clients. “Lots of other people get paid for travel time. Plumbers, builders, electricians charge travel time and people don’t quibble with that,” she told The Dominion Post.

The Service and Food Workers Union has filed a test case on her behalf with the Employment Relations Authority (ERA), asking them to refer the case to the Employment Court. (The ERA has the authority to do so when the case turns on a point of law, rather than a matter of fact, and when the issue at hand is sufficiently important.)

The key legal issue is whether or not the time that a home-care worker spends travelling between various assignments can be defined as ‘work’. Perhaps surprisingly, there is no definition of what constitutes ‘work’ in New Zealand law – hence the dispute.

“This is in some respects a continuation of the ‘sleep-over’ cases that we’ve seen over the past couple of years,” said Blair Scotland, senior associate – Chen Palmer. In the ‘sleep-over’ cases, it was argued that employees who were required to sleep on their employer’s premises, to look after troubled youth, for example, were working, and therefore entitled to be paid for the time they were sleeping.

The employees in those cases were successful, and Scotland said that he believed that the employee in this case could be as well. “Without seeing the legal information, it’s difficult to make a judgment, but, on the face of it, it seems that they have a fairly arguable case. I wouldn’t be surprised if they had some success,” he said.

While the circumstances of home-care workers may be unique – since electricians and plumbers are often contractors, and sales reps are generally paid a salary – the case holds serious implications for those in the industry. If successful, workers would be able to claim back pay for up to six years. “It could involve liabilities in the millions of dollars for employers,” Scotland warned. 

On the other hand, Scotland dismissed the idea that this could lead to employees arguing that they should be paid for the time that it takes them to travel to and from work.

  • K.C on 22/01/2013 9:26:19 p.m.

    Agree with Mary-Ann

  • Mary-Ann de Kort on 11/12/2012 10:10:50 a.m.

    This is a no brainer really. I guess the question to ask would be "Would the worker be travelling to and from these places if they were not working"? The answer would be no, so then it must be work and they should be paid accordingly. They also get such a low mileage rate that it cannot possibly cover their vehicle expenses so this should also be a consideration.

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