Clear guidelines have just been established around Availability Periods by the Employment Court in Postal Workers Union of Aotearoa Inc v New Zealand Post Limited [2019] NZEmpC 47.
Guided by this case law, there are some learnings here.
Section 67D (1) of the Employment Relations Act 2000 explains the meaning of the availability provision in an employment agreement as;
(a) the employee’s performance of work is conditional on the employer making work available to the employee; and
(b) the employee is required to be available to accept any work that the employer makes available.
- We get from this part that the provision must be in writing and must be agreed on between the parties.
- Further it is clear that the employer must make additional work available to the employee and the employee must be available to accept the additional work offered.
Section 67D (2) of the Act is prescriptive on certain requirements when wanting to enforce the availability provision, specifically relating to working hours;
- The IEA (Individual Employment Agreement) must specify agreed hours of work for the employee, for example, Monday to Friday, 09:00 to 15:00; and
- The agreed hours as mentioned above, should include the guaranteed minimum hours of work, for example, 30 hours a week;
- The availability provision must clearly mention that the period of availability is in addition to the guaranteed hours, for example, Monday to Friday, 15:00 to 17:00.
Section 67D (3) warns against the intention of the employer adding an Availability Provision into the IEA.
- The section states that the employer must have genuine reasons based on reasonable grounds for adding the provision and the number of hours to the agreement; and
- The provision must provide for the payment of reasonable compensation to the employee for making himself or herself available.
Section 67D (4) in no uncertain terms states that if the availability provision doesn't comply with the requirements of section 67D (3), as discussed above, the provision will be unenforceable for the employer.
Section 67D (5) is kind enough to guide us towards certain points to consider if we would like to establish genuine reasons based on reasonable grounds, as mentioned in section 67D (3), being;
- Is it practicable for the employer to meet business demands, for the work to be performed by the employee, without including an availability provision?
- The number of hours for which the employee would be required to be available; and
- The proportion of the hours required to be available versus the agreed hours of work as specified in the IEA.
Section 67D (6) provides certain matters that must be considered when determining the compensation payable to the employee for being available. They are;
- Number of hours that the employee must be available;
- The proportion of the hours required to be available versus the agreed hours of work as specified in the IEA;
- The nature of any restrictions resulting from the availability provision;
- The rate of pay for the work that the employee is employed to do;
- If the employee is paid by way of a salary, the amount of the salary.
Section 67D (7) allows for an employee that is remunerated for agreed hours of work, by way of a salary to agree in the IEA that the said salary/remuneration includes compensation for the availability provision.
- Important to take note on this point, that if this is included in the salary/remuneration, the amount must be higher than the minimum wage, otherwise there is no provision for compensation in the payment.
Lastly, section 67E allows the employee to refuse any additional work over his/her guaranteed hours if the IEA doesn't contain an availability provision that provides for compensation to the employee for being available.
The Employment Court in Postal Workers Union of Aotearoa Inc v New Zealand Post Limited [2019] NZEmpC 47 found that even though there was an availability clause in the collective agreement, the provision was unenforceable as no provision was made for reasonable compensation, therefore employees could refuse to perform work in addition to the guaranteed hours on rostered days, without being dismissed.
All Employers Assistance Ltd.'s online agreements and software have the option to elect an availability provision when creating an agreement. If the availability provision is selected, the Schedule of Personal Terms wizard will automatically guide you to complete all the requirements as mentioned in this article.