RA paid illegally by Massey University, says lawyer

A Manawatū residential assistant (RA) says they are not paid for the full time they are on-call and not able to leave campus, only allowed to log half an hour of work for each call. 

However, a law professor argues Massey’s RA contract for overnight on-call work is illegal. 

In 2011, the NZ Supreme Court ruled that an on-call sleepover is ‘work’ for the purposes of the Minimum Wage Act 1983. The ruling was for an Idea Services care worker on sleepover shifts. 

Yesterday was the final day for students to apply to be a Massey Halls staff member for 2024—and the university is allegedly reducing contract hours. 

Riley*, who spoke to Massive anonymously, was paid a salary of 17 hours a week, with rent and tax deducted. 

They said if their hours on-call were included as work, it would often be more than 17 hours a week.  

There are five Massey Halls in Palmerston North, some costing over $17,000 dollars a year. Photo / Massey University 

Riley* found the job to sometimes be “constraining” and “stressful”.  

They said RAs had been told the pay next year will be reduced to 15 hours a week as “management have not seen the justification for 17 hours”. 

The RA was consistently struggling to meet 17 hours a week even after taking on extra shifts as, “holding the phone sometimes means getting no calls”.  

The emergency phone is held for all hours on the weekends, and from 5pm to 9am on weekdays, Riley* said. 

A Massey University spokesperson said, “The university will not comment on individual employment matters.” 

Earlier this year, the university announced a year-to-date operating deficit of $14.2 million dollars and have recently been cutting staff and courses.  

“The Student Accommodation management team is currently in the process of confirming staffing requirements for 2024. There have been no decisions regarding this as yet.” 

Annick Masselot, professor of Law at the University of Canterbury, said an RA’s on-call period fits all the criteria of ‘work’ and should be paid.  

A similar case occurred in 2018 when six anaesthetic technicians were not paid during on-call periods where they had to stay in accommodation close to the Timaru Hospital, away from their families. The workers were only paid for the time they spent at the Hospital. The Court concluded the workers’ on-call period was ‘work’.  

Masselot, whose research expertise is in employment law, said it was rubbish to cut down the salary by two hours, “It's just cutting corners on salary, it's just ridiculous.” 

The NZ Supreme Court has ruled that you must consider three factors when deciding if activity is work: The constraints placed on the freedom the employee would otherwise have to do as they please, the nature and extent of the responsibilities placed on the employee, and the benefit to the employer of having the employee perform the role. 

If an on-call period is considered work, payment of at least minimum wage must be made for each hour. 

Nic Hill, Headmaster of Christchurch Boys’ High School and studying a Master of Law, wrote an article in the International Journal of Law and Education that looked at ‘work’ in terms of boarding school supervisors.  

He told Massive: “If you’re on call, but you’re asleep, you’re still working.” 

He wrote that many schools use salaries to work around the swings of a roster through implied averaging of hours on duty.  

The RA’s contract with Massey University did not specifically state if an on-call period was ‘work’, however said their hours “are unlikely to exceed an average of 17 hours per week”.  

Hill wrote that salaries are “problematic” and they do not avoid the implications of the Minimum Wage Act 1983.  

“Averaging wage payment is not a viable means of avoiding Minimum Wage Act 1983 obligations.” 

Hill said, “You can’t contract out of the law … This is a more expensive model for schools, but it's also a legal model.” 

There are five Massey Halls in Palmerston North, some costing over $17,000 a year.  

The RA’s contract with the university stated: “We will act in good faith, providing fair and proper treatment in all aspects of your employment.” 

*Name changed for anonymity