Employment Update - May 2019: Overtime or an availability provision?

The Union successfully argued that the wording of the collective agreement included an unlawful 'availability provision'.
New Zealand Employment and HR
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Employment Court rules that required overtime amounts to an "availability provision"

Since their introduction in 2016, there has been uncertainty about the how broadly the rules around "availability provisions" would be applied. This uncertainty has now been ruled on by a Full Bench of the Employment Court.

In Postal Workers Union of Aotearoa Inc v New Zealand Post Limited [2019] NZEmpC 47, the Full Bench reached the view that the intent of the law is to be far-reaching with the purpose of addressing unfair working practices relating to employee availability, not just zero-hour contracts.

In this particular case, the Employment Court considered overtime practices of delivery agents (posties) hired by New Zealand Post Limited. The Union successfully argued that the wording of the collective agreement provided for an unlawful 'availability provision', where posties may be required to work overtime at the end of their shift, if NZ Post required it.

The 2016 amendments to the Employment Relations Act 2000 introduced rules around when and how an availability provision can be included in an employment agreement. The fact that the collective agreement required posties to be available and did not comply with these rules meant that NZ Post could not enforce the requirement that they work additional hours. On this basis, posties were entitled to refuse to perform extra work after their usual finish time.

The Court clarified that the changes in 2016 were to ensure that employees receive reasonable compensation for making themselves available to work, for their employer's benefit. Importantly, the Court discussed the value of an employee's private time. In reaching its decision, the Court expressed the view that it is not reasonable to expect employees for forego personal activities outside of work, on the off-chance they may be required to work overtime at the end of a shift, or be called in, without reasonable compensation for being available.

Employers should carefully consider their overtime expectations of both salaried and waged staff, and ensure that the wording of their employment agreements meets the requirements of the legislation, as clarified by the Employment Court.

Looking ahead to June – changes relating to discrimination

The final amendment from the Employment Relations Amendment Act 2018 will come into effect on 12 June 2019. From this date, union membership status and involvement in union activities will be included as a form of employment related discrimination. This means that employees will be protected against discrimination from an employer on this basis, if the discrimination occurs within 18 months of employees participating in union activities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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