An urgent hearing of an appeal in the case involving sleepovers and the averaging of wages is being sought following a Court of Appeal judgement this month.
The case, which could have multimillion-dollar ramifications for the Government, involves Idea Services (an IHC service) community house worker Phillip William Dickson's bid to be paid at least the minimum hourly wage rate for each hour of his sleepover shifts rather than a $34 allowance for the shift.
To date, an Employment Relations Authority decision and two Employment Court judgements have gone in favour of Mr Dickson, who is a member of the Service and Food Workers Union.
Sleepover time was found to be work and the Employment Court, in a majority decision, also found that each hour of work had to be paid at the minimum rate to meet the requirements of the Minimum Wage Act, rather than averaging total hours over a pay period.
Last month, Idea Services sought leave to appeal the Employment Court rulings before Justices Arnold, France and Baragwanath in the Court of Appeal.
This was granted on two questions, one of them whether averaging would comply with the Minimum Wage Act.
Delivering the court's reasons, Justice Arnold said the averaging approach "seems to require a significant gloss" to be placed on the statutory language.
"We find it difficult on the basis of the limited argument that we have heard to see any justification for that."
Among the reasons given for allowing the appeal on this issue were its "obvious importance", the fact the averaging approach was supported in a previous case, and had been adopted by Judge Barrie Travis in his dissenting view in the Employment Court ruling.
The other question to be considered in the future appeal is whether the definition of work in the Minimum Wage Act covers the entire time of sleepovers and whether the terms of an applicable collective agreement are relevant to that.
Reference was made by Justice Arnold to the fact that the issues in this question were of much wider significance than Mr Dickson's case alone.
Idea Services counsel Kit Toogood QC and Mr Dickson's counsel, Peter Cranney, filed a joint memorandum on Wednesday with the court seeking an urgent fixture.
The parties proposed having their written submissions filed by July 28 and indicated they would be available, given 10 days' notice, to proceed as soon as possible after August 13.
Service and Food Workers Union national secretary John Ryall said Mr Dickson and 1400 other members who were also sleepover workers had already lodged claims in the Employment Relations Authority for claims for up to six years' wages arrears.
This would not be the final number.
The Employment Court has urged the authority to delay any final determination of such claims until the end of the current court action.
