Working time: salaried hours work; sleeping time
The legislation that applies to this page is as follows:
For pay reference periods commencing
* on or after 6 April 2015; National Minimum Wage Regulations 2015, regulation 27(2) * before 6 April 2015; National Minimum Wage Regulations 1999, regulation 16(1A)
The hours when a worker performing salaried hours work is waiting for work (NMWM08160) or “on call” (NMWM08170) need careful consideration to determine whether such time needs to be included when considering whether excess hours have been worked (NMWM08110).
Generally, where employers require a worker performing salaried hours work to be available at or near a place of work such hours are included in the excess hours calculation (i.e. treated as working time). The exception to this rule is where a worker is not working and able to use sleeping facilities provided at or near the place of work.
Any hours where the worker is not working and able to use sleeping facilities will not be included when considering excess hours as long as;
- the facilities are suitable for the purpose (for example the worker is provided with a bed in a location where it is reasonable to sleep); and
- the worker is not awake for the purposes of working.
However, any hours for which a worker is provided with sleeping facilities but is in fact awake for the purpose of working must be included (i.e. will be working time) when considering excess hours.
When considering such arrangements it is important to identify whether the worker is working or not. It might be helpful when forming a view to consider the contractual arrangements between the parties and to identify any work-related responsibilities being performed. For example, a worker who is required to be in attendance to meet an obligation of the employer, such as a statutory requirement, could be working regardless of the level of activity of the worker.