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Employment Court finds for union on availability provision

06 May 2019

The Employment Court has said "no" to the question of whether NZ Post can require its agents to perform extra hours of work without compensating them for their availability.

The Employment Court has released its decision in Postal Workers Union of Aotearoa Inc v New Zealand Post [2019] 114/2018.

NZ Post delivery agents are employed under a collective agreement. Clause O20 of that agreement provides that delivery agents may be required to work reasonable overtime in excess of their standard hours. There is no reference to compensation in that clause.

The Employment Relations Act (ERA) provides (under s67E) that an employee is entitled to refuse to perform additional hours if the agreement does not contain an availability provision that provides for the payment of reasonable compensation to the employee for making himself or herself available.

NZ Post argued that cl O20 was not an availability provision, rather it was directed at regulating ‘zero-hour’ contracts and that s67E only permits employees to refuse to perform work in addition to any guaranteed hours specified in an employment agreement and the as the collective agreement did not specify ‘guaranteed hours’ of work s67E was not engaged. They also argued that even if cl O20 was an availability provision no issue arose because delivery agents were paid by salary, which incorporates reasonable compensation for availability (s67D(7)).

The Employment Court has held that s67D was not intended to be limited to ‘zero-hour’ contracts, but rather that it was intended to ensure that reasonable compensation was payable to employees who make themselves available for the employer’s benefit. Further, the Court declared that cl O20 was an availability provision and it did not comply with s67E of the ERA as no provision was made for reasonable compensation. Delivery agents are therefore entitled to refuse to perform work in addition to their guaranteed hours on rostered days.

The Court did not accept that delivery agents were paid by salary as the agreement provided for differing hourly rates for work in excess of 37.40 hours.

Last updated on the 16th September 2019