Spring 2017 – Availability Provisions



In April 2016 sections 67C and 67D were inserted into the Employment Relations Act 2000 to address ‘zero-hour contracts’.

These are where there are no guaranteed hours of work, but the employee is required to be available to work whenever their employer has work for them.

The issue has now been addressed by the full Employment Court, in Fraser v McDonald’s Restaurants (New Zealand) Limited [2017] NZEmpC 95.

The claim was that the employment agreement contained an availability provision because employees indicated their availability to work, and the employer rostered them within their availability hours up to an agreed minimum, and in addition extra work was available.

The relevant wording was that “[f]rom time to time you may be requested to work hours in addition to [your] work schedule”.

The Court did not agree there was an availability provision, finding that the core issue was mutuality of obligations.  That is, the employer could ask, but the employees could say no.

As such, there was no availability provision, despite a system operating with agreed minimum hours, plus additional hours.

It is therefore apparent that an availability provision situation, as triggering the specific requirements of reasonableness (having genuine reasons for requiring availability), and providing compensation for ‘availability’ (paying extra for that), will arise only where there are minimum guaranteed hours, and a situation where the employee cannot say no to extra work.

However, a situation where work is provided flexibly, but there is no element of compulsion, will not fall within the definition of an availability provision (and so in that case the employment agreement will also not require guaranteed hours of work).

The required analysis will depend on your specific facts, and so if you would like advice on availability provisions, or to discuss anything referred to above, one of our team would be happy to help.  Either call us on 04 801 5427, or contact us via email:

Paul McBride (Partner) – paul@mdjlaw.co.nz
Geoff Davenport (Partner) – geoff@mdjlaw.co.nz
Tanya Kennedy (Senior Associate) – tanya@mdjlaw.co.nz
Guido Ballara (Senior Associate) – guido@mdjlaw.co.nz
Frances Lear (Senior Associate) – frances@mdjlaw.co.nz

Finally, we would like to thank all of our clients who nominated us for the NZ Law Awards.  We have now been named as finalists for ‘Employment Law Specialist Law Firm of the Year’ and ‘Boutique Law Firm of the Year’, and that could not have happened without your support.  Thank you!

This newsletter is necessarily brief and general in nature.  You should seek professional legal advice before taking any action in relation to any matter dealt with in this newsletter.  © McBride Davenport James.

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