What defines work may be in for a shake up

Wanaka lawyer Janice Hughes, director of Aspiring Law. PHOTO: SUPPLIED


What defines paid work could be in for shake up, following the recent Gloriavale case.

Working nine to five may be a thing of the past, but it is still universally accepted that most of us must work for a living.

But what happens if that work sits outside the norm, and should it be paid?

The Minimum Wage Act 1983 says if activities are determined to be work, then, any employee is entitled to be paid no less than the minimum wage.

There are three factors that are important in assessing if an activity is work: the constraints placed on the freedom of the employee; the nature and extent of the responsibilities placed on them; and the benefit to the employer.

The greater the constraints and responsibilities on the individual, and the benefit to the employer, the more likely the activity is considered to be work.

The Gloriavale case has brought the issue to the forefront yet again.

Three former members brought a case against the Gloriavale leaders after previous investigations found Gloriavale residents were not employees and therefore not protected by New Zealand employment laws.

The members were all born in Gloriavale and worked from the age of six for up to 70 hours a week. Contrary to the previous ruling, the Employment Court found the members were employees when they worked in the community’s commercial businesses, and not volunteers.

This paves the way for them and others to be compensated, and will likely lead to defined minimum employment standards.

There are other examples too where the courts have determined activities to be work.

You might recall a few years ago, Smiths City hit the headlines for making employees attend pre-work meetings and not paying them.

That case went to court and the Employment Court found there was pressure put on Smith Citys employees to attend the meetings.

The employees felt to satisfy the company’s expectation, and not be seen as poor performers, they were obliged to attend the meetings.

The court said a constraint had been put upon them – they had responsibilities to sit and listen during the meetings, and in some cases, even give presentations.

This all pointed toward the activity of attending the meetings being work, and it was clear that the employer benefited exclusively from this.

It was a cost-free opportunity to prepare staff for the working day and hold the company meetings. Not surprisingly, it was found the meetings were in fact work, and therefore employees needed to be paid for that time.

More recently, in March, the court was asked to consider the case of Mount Cook Airlines overnight stopovers.

The question was whether part-time cabin crew required to be away from home on overnight stopovers were in fact working during that time.

There was some inconvenience to crew caused by being away from home, but after their duty ended and before the next one begun, they were free to do whatever they pleased.

The court said while Mount Cook Airlines benefited because the crew were available to begin their duty the next day to suit its flight schedules, the absence of any constraints or responsibilities on them meant they were not in fact working during the overnight stopovers and therefore did not need to be paid.

In all cases, the specifics of the activities were important to the outcome.

When it comes to your employees expected hours of work and pay, review your working arrangements to make sure you are meeting your obligations as an employer

If you’re not paying your employees for certain activities that may be work, update your approach to make sure you’re doing right by your employees.