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The short answer is, yes, as a recent Employment Court decision involving retail chain, Smiths City, has confirmed.

While the Minimum Wage Act 1983 (Act) does not include a definition of “work”, the Courts have provided guidance on the term in a string of recent cases.  For example, the Court has held that employees who “sleep over” at work are working during the sleepover period, and we wrote about on call workers being held to be working  here.  The latest case involves Smiths City, a national retailer, and many other retailers have since been named as having the same unlawful practice.

Smiths City Case
Smiths City stores around the country held meetings each morning for 15 minutes before opening for business, over a period of  15 years. Attendance was expected, yet no wage or time records were kept and employees were not paid for attendance.

Smiths City said the meetings were unpaid as they were not compulsory and no disciplinary action was taken against staff for not attending.  It also emphasised that their staff were entitled to flexible working hours, longer breaks and the ability to leave early when the store was quiet.  However, the Court found many employees believed attendance at the meetings was compulsory, commenting that “there was an expectation to attend and the pressure placed on staff to do so, was direct and forceful”.

The Court held that the meetings were “work”, and accordingly that the sales staff who attended should have been paid at least the hourly minimum wage rate for their time at the meetings.

While Smiths City argued that it complied with the Act because of the way in which it calculated and paid commissions and incentives, the Court did not accept this because there was no opportunity to earn commission or incentive payments during the 15 minute meetings each morning.  The Court commented that the commissions and incentive payments could therefore not be used to cover minimum wage entitlements.

Message for Employers
The upshot of these cases is that many employers need to look at their practices and payment of staff, to make sure they’re meeting minimum wage obligations with payment for all work done.  Employers should consider if there could be any time employees have “worked” which have not been accounted for.  Employment agreements, and in particular hours of work clauses, are likely to need revision if so.

If you are unsure about whether something could be considered “work” or if you have any questions regarding your obligations as an employer under the Act, our team of specialists can offer guidance.

Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.

May 2018