Update on Sleepover hours in the aged and residential care industry
Immigration New Zealand’s Visa Pak issue 465 dated 1st April 2021 has issued a clarification on rules for sleepover clauses in employment contracts. This immigration communique will clarify the impact on the processing of both Essential skills and Skilled Migrant Category visas.
Some employment agreements in the Aged and Residential Care Industry include a sleepover clause where the applicant is paid lesser than the standard amount (currently $25.50) for the hours where they are allowed to sleep during the shift.
Immigration Instruction SM6.20 (g) states that each hour of work must be paid at or above the applicable per hour remuneration threshold.
Some employment agreements in the Aged and Residential Care Industry include a sleepover clause where the applicant is paid below the applicable remuneration threshold (currently $25.50) for any hours the applicant is allowed to sleep during a shift. Sleepover hours are considered hours of work as the sleepover is an activity performed for gain or reward and is not an activity excluded from the meaning of ‘work’ under immigration instructions (W2.2.1). If an applicant is paid less than the remuneration threshold for sleepover hours included in their contract then SM6.20(g) is not met.
To make it easier, let’s take the help of a hypothetical example.
Example: John works as a care worker with sleepover shifts included in his contract. During his shifts, he is allowed to sleep if his services are not required (this is allowed only under some conditions). He is provided with suitable facilities to allow him to sleep at his workplace.
This means that sleepover hours are considered hours of work as the sleepover is an activity performed for gain or reward during his work hours and is not an activity excluded from the meaning of ‘work’ under immigration instructions (W2.2.1). So, if John is paid less for these hours than the standard amount, SM6.20 (g) is not met.
As per the immigration instruction WK3.5.5 (g), payment for each hour should be at least $25.50 for employment to be identified as paid at or more than the average wage. (Refer to WK3.5.1.b).
For situations where the total wage criteria are not met, the immigration visa officer would provide an applicant with the opportunity to comment before a decision is made on his/her application. Here he or she is free to re-submit the contract without adding the sleepover clause or the employer can reconfirm the amount to be paid for sleepover hours.
If you want to know more about the sleepover hours or how it impacts the assessment of concerned visa types, contact Immigration Advisers New Zealand Ltd at [email protected] or call on +64 09 3790219
Vandana Rai is a Senior Licensed Immigration Adviser and has built a reputation around her rare set of skills, which could be considered ideal for her legal profession.