Availability provisions – Postal Workers Union of Aotearoa Inc v New Zealand Post Ltd (July 2019)

An ‘availability provision’ is a provision in an employment agreement which requires an employee to make themselves available for work on top of their usual hours of work.  Reasonable compensation is required for this availability.

In the recent Postal Workers case, the Court was required to decide whether NZ Post could require delivery agents (essentially posties) to perform extra hours of work in addition to their standard hours without compensating them for their availability.  The relevant clause stated that posties may be required to work reasonable overtime in excess of their standard hours.  No reference to compensation was made.  NZ Post’s arguments included that the clause was not an availability provision, the Employment Relations Act (“the Act”) was really aimed at preventing ‘zero-hour’ contracts, and that the posties were remunerated by way of salary, which included reasonable compensation for availability.  The Employment Court found in favour of the posties, with the following themes emerging:

  • An employee’s free time is a commodity which has value.
  • The Act is not limited to addressing ‘zero-hour’ contracts, but ensures that reasonable compensation is payable to employees who make themselves available for their employer’s benefit.
  • Employment agreements with availability provisions will be unenforceable if they are not drafted appropriately.

What this all means in practice is that, in the absence of a compliant availability provision, an employee may refuse to work outside their usual hours of work.  In turn, ‘compliance’ will depend on a number of factors such as: the structure of work, the type of remuneration and how the requirement for availability is drafted in the employment agreements.  What we can also say is that simply being paid a salary will not mean an employee has a compliant availability provision – as is often the case, the devil will be in the detail.

‘Triangular employment relationships’ – new Bill to widen the personal grievance net

The classic example of a ‘triangular employment relationship’ is a labour hire model.  Recent changes to employment law via the Employment Relations (Triangular Employment) Amendment Bill, will create an expanded personal grievance regime.  This includes that the new law will enable personal grievance claims to be brought against controlling third parties – in the labour hire model, that is the business the workers are doing the work for.  This significant change has the potential to affect a large number of businesses across various sectors.  The net has been widened.

For advice from our employment law specialists on any of the issues covered above, either call us on 04 801 5427, or contact us via email:

Paul McBride (Partner) – paul@mdjlaw.co.nz
Guido Ballara (Partner) – guido@mdjlaw.co.nz
Frances Lear (Senior Associate) – frances@mdjlaw.co.nz
Saadi Radcliffe (Solicitor) – saadi@mdjlaw.co.nz

Disclaimer – this newsletter is necessarily brief and general in nature. You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

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