A recent case from the Employment Court confirmed that employees should be paid for pre or post-work meetings if those meetings are an integral part of the employee’s work.
The case was brought by the Labour Inspectorate, which is tasked with enforcing minimum entitlements such as the minimum wage. The employer that was the target of the Labour Inspectorate was Smith’s City, a retailer. The New Zealand Council of Trade Unions provided submissions in support of the Labour Inspectorate as an intervener. The Employment Court sometimes allows the NZCTU or Business New Zealand to make submissions in important labour law cases, even if they’re not a party to the case.
The case concerned pre-work meetings. Employees were expected to attend the meetings, but they were not paid for them.
While Smith’s City said the meetings were not compulsory, the evidence established employees were expected to attend. Managers would follow up with employees if they were late to the meetings and tended to regard employees who regularly failed to attend the meetings as poor performers.
The purpose of the pre-shift meetings was to convey important sales information. The Employment Court found this was an integral part of employees’ work as sales staff and that the meetings were therefore work that needed to be paid for.
The Employment Court referred to some American cases dealing with factory workers who had to change into work clothes before a shift started and meat workers who had to sharpen knives before their shifts. In those cases, the United States Supreme Court found the employees should be paid for the time because the pre-shift work was integral to their jobs. The Employment Court recognised the law in the United States is different, but found the cases to be useful by way of example.
The Employment Court also analysed the constraints on employees during the meetings, the responsibilities of employees during the meetings and the benefit to the employer of these pre-work meetings. It found an analysis of these factors also showed the meetings were work.
The Employment Court found the employees needed to be paid the minimum wage for this work. Smith’s City then argued that even if employees had to be paid the minimum wage for this work, if you averaged out the total amounts they were paid, including commission and incentive payments, over the total number of hours worked, employees were paid above the minimum wage.
The Employment Court rejected this approach, finding that because the employees were waged employees who were paid by the hour, the Minimum Wage Act 1983 applied to each hour worked. Therefore, the employer wasn’t allowed to take an averaging approach to payment of the minimum wage.
This case is of some interest and we may see unions attempting to extend the precedent. There are a number of cases from overseas jurisdictions known as “portal to portal” cases. They involve issues such as payment for the time spent at work preparing for work before officially clocking in, or time spent travelling within an employer’s workplace before starting work. Each case will be fact‑dependent.