Working 9 to 5 may be a thing of the past, but it’s still universally accepted that most of us must work for a living. In return for money, we carry out certain mental or physical tasks – work!

But how is it decided what constitutes work if it sits outside the norm?

Circumstances will always play a critical role in determining if a task is work or not, and it’s entirely possible that one person ‘on call’ for their job might be considered to be working, while another might not.

The Minimum Wage Act 1983 (MWA) says that if activities are determined to be ‘work’, then, any employee is entitled to be paid no less than the minimum wage for the time they spend undertaking them.

Although the MWA does not give a legal definition of work, cases that have gone through the courts do shed some light on what might be considered work.

Three factors are important in assessing it:

  • the constraints placed on the freedom of the employee;
  • the nature and extent of the responsibility’s placed on them; and
  • the benefit to the employer.  

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

Here are a few examples where the courts decided the activities were work:

  • A community service worker was required to stay overnight in a community home with residents.
  • A boarding school hostel that required a responsible adult to be present overnight.
  • An anaesthetic technician required to be on call.
  • Meetings outside normal working hours where attendance is expected by the business.

The specifics of the activities in these examples were very important to the outcome.  That makes it paramount to look at all the facts of a situation to assess whether the activity is work or not.

Let’s look at two examples in a little more detail. 

You might remember that 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 City’s employees to attend those meetings. Employees felt that 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 this year, what is work came before the courts again. This time the court was asked to consider Mount Cook Airline’s overnight stopovers. The question was whether part-time cabin crew who were 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 that 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.

Our message to employers

When it comes to your employee’s 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.  

If you need help with any employment relations matters, remember – we’re here to help, just give us a call. 

Access our other employment relations articles here.

Employment & HR