Idea Services will seek leave to appeal Employment Court rulings in a case which could have multimillion-dollar implications for the Government.
Counsel for Idea Services, Kit Toogood, confirmed yesterday he would be making application to the Court of Appeal for leave to appeal the December ruling on the issue of whether employers can "average" wages of employees under the Minimum Wages Act.
The organisation had already lodged an application over the related July ruling that sleepover time constituted work, but a hearing of this application had been delayed pending a decision on the averaging issue.
Mr Toogood said he would be drafting the papers for the appeal application on Monday, and said if the application was accepted, he would be surprised if it were heard before the middle of the year.
It is anticipated that the two appeals, if accepted, would be heard together.
The case is being closely watched by organisations which employ sleepover workers - such as nursing homes - many of which rely on Government funding.
Estimates of what it might cost the health sector to pay all such workers the minimum wage of $12.50, range between $40 million to $100 million a year.
Ministry of Health deputy director-general Geraldine Woods said yesterday no decision had yet been made on whether to join Idea Services in the appeal.
The decision was still under consideration.
The case concerns IHC community house disability support worker Phillip William Dickson and the $34 payment he received for sleepover shifts.
The Employment Relations Authority initially determined the sleepover time as work, a finding upheld by the July Employment Court ruling after a challenge from Idea Services (an IHC service).
The court called for separate submissions in September on the issue of averaging of wages.
Since Mr Dickson was paid $17.66 an hour for some of his fortnightly work, outside the time he was asleep, Idea Services argued it should be able to set off that amount against what was effectively a $3.50 sleepover rate.
Over a fortnight, his pay would then average out to at least the minimum wage rate.
The Service and Food Workers Union successfully argued that each hour needed to be paid at the minimum rate of $12.50.
The court's ruling, however, was not unanimous, with one of the three judges, Judge Barrie Davis presenting a dissenting view agreeing with the averaging approach.
Union national secretary John Ryall said yesterday said while the decision to seek an appeal was expected, it was disappointing.
He had hoped that the Ministry of Health might get involved in supporting the court decision and coming up with a way of funding to pay providers such as Idea Services.
elspeth.mclean@odt.co.nz
