Rewriting law has repercussions

Has the Court of Appeal decision on "sleepovers" opened the back-pay floodgates? Andrew Geddis canvasses the reactions to it and the constitutional implications of possible responses to the ruling.

Last Tuesday, the Court of Appeal unanimously ruled that Mr Dickson, a carer working at an IHC community home, is entitled to be paid the hourly minimum wage while he is on sleepover duty.

He instead was being paid a fixed $34 shift allowance for this 8-10 hour time period. This finding affirmed earlier decisions by the Employment Relations Authority and the Employment Court that Mr Dickson's duties while sleeping over constitute "work" under the relevant legislation.

Consequently, by law he had to receive at least the minimum wage for every hour he spent on such duties.

While the case only deals with one employee's claim, both the IHC and the Government have claimed that it sets a precedent that will eventually cost millions of dollars in back pay and ongoing employment payments.

The precise amount of those extra costs is somewhat unclear at present.

Figures in excess of $560 million over the next three years have been cited, but this seems to be very much a "worst case" scenario.

Nevertheless, the National Government has indicated that it believes the potential cost of this decision is unaffordable in the present economic climate.

It is now working through its options of to how to respond.

One avenue that is of course available is an appeal.

If the Government honestly believes that the Court of Appeal has made an error in interpreting what constitutes "work" under the relevant legislation, then it can ask the Supreme Court to overturn the decision.

That would be the proper way for the Government to approach the matter, if it really thinks the Court of Appeal misapplied the relevant legislation.

The reason we have tiers of appellate courts is to examine and rectify mistakes of law made lower down the chain.

However, there is a pretty compelling motive for the Government not to proceed down this appeal route.

Its legal case just does not look very strong.

Consequently, it is questionable whether the Supreme Court would even agree to hear an appeal, much less overturn the Court of Appeal's ruling.