Worker availability - is 24/7, 365 legal?

A recent decision of the Employment Court is set to change the working hours and structure of ‘wharfies’ (waterfront workers) around New Zealand, after a stevedoring contractor which operates around the country has had availability provisions in their employment agreements declared unlawful.

What is an availability provision?

An availability provision is a clause in an employment agreement that states an employee’s work is conditional on the employer offering it to them, and the employee is required to be available to accept any work the employee offers. i.e. there are no guaranteed hours of work. Availability provisions can be legally included in employment agreements, but only if they comply with 67D of the Employment Relations Act. The agreement must:

  • Specify agreed hours of work which includes guaranteed hours of work among those agreed hours.
  • Only relate to a period for which an employee is required to be available that is in addition to those guaranteed hours of work.
  • Provide genuine reasons based on reasonable grounds for including the provision and the number of hours of work specified in the provision, and
  • Provide reasonable compensation to employees who make themselves available for work.

24/7, 365 - unreasonable

The workers under this employment agreement were required to be available 24/7, 365 days a year, and, despite being guaranteed 60-80 hours of work a fortnight, they had no idea when their next shift would be yet had to always be ready to attend work. The availability provisions put immense strain on the personal lives of the workers, being unable to plan out anything in the short-term when they may get called in for any shift.

The employer argued that the availability provisions provided them the necessary flexibility to continue their 24/7 operations, however, the Employment Court was unconvinced by this argument and found that this did not make the provisions lawful. The Maritime Union stated that the cost of this flexibility forced workers to park their lives, and that similar employment agreements are prevalent throughout the industry.

The takeaway for employers and employees

If you own / operate / are employed by a business that relies upon availability provisions, now is a good time to review your employment agreements to ensure they comply with the Employment Relations Act.

If you have any questions about availability provisions, please feel free to get in contact with one of our employment team at PRLaw.