Availability provisions: being on call beyond your hours

What an availability provision is

Section 67D defines it by two features together: whether you work depends on the employer making work available, and you are required to be available to accept any work the employer offers. It is being on call, on paper.

It can only sit in an agreement that sets out your agreed hours, including a number of guaranteed hours, and it can only cover time on top of those. The Act also says your agreed hours must be written into your agreement: the guaranteed hours, the days, the start and finish times, and any flexibility in them. So an agreement cannot guarantee you nothing and still require you to be available whenever asked.

A genuinely casual job is different: there is no guarantee of work, and you do not have to accept it. Our article on casual versus permanent part-time work explains where that line falls.

Genuine reasons and reasonable compensation

An employer can only include an availability provision if it has genuine reasons based on reasonable grounds, both for having one and for the number of hours in it. It must weigh whether it could meet demand for your work without one, how many hours you would have to be available, and how many that is compared with your agreed hours.

The provision must also pay reasonable compensation for being available. The Act sets no figure. It lists what decides it: how many hours you must keep free, how that compares with your agreed hours, any restrictions it puts on you, your rate of pay for the work, and your salary, if you are salaried. A salaried employee can agree that the salary already includes the compensation.

A provision that does not meet these rules is not enforceable against you.

Saying no to extra hours

Section 67E gives you the right to refuse work beyond your guaranteed hours if your agreement has no availability provision that pays reasonable compensation. Section 67F says your employer must not treat you adversely for refusing: no worse terms, training or promotion chances than others doing similar work, no dismissal or other detriment, and no pushing you to resign.

Employment New Zealand gives the example of Jenna, who has no guaranteed hours and said no to a shift because she could not arrange childcare. Her employer then cut her shifts and gave her the unpopular ones. Her shift history from before she said no, and the employer's own records of her hours, can show she is being disadvantaged.

Being disadvantaged by an agreement that breaks these rules, or being treated adversely for saying no, is a ground for a personal grievance. Raise it with your employer first, and Employment New Zealand (0800 20 90 20) can help.

Cancelled shifts, and checking an offer

If your agreement is for shift work, section 67G says your employer cannot cancel a shift unless the agreement sets a reasonable notice period and reasonable compensation for cancelling without it. You are paid what you would have earned for the shift if the agreement has no valid cancellation clause, if you are told only when the shift starts, or if you are sent home partway through. That pay also counts as part of your ordinary weekly pay and relevant daily pay, which holiday and leave pay are worked out from.

Before you accept an offer of part-time or shift work, check the agreement for the guaranteed hours, any clause that requires you to be available beyond them, what it pays for that, and how much notice you get of a cancelled shift. Our guide to job offers and employment agreements covers the rest of what to check.

Value an offer on the hours it promises. At $25 an hour for 20 guaranteed hours, that is $500 a week, or $26,000 a year before tax. Put $26,000 into the Offer Comparer to see it after tax beside another offer, with no account. In Everything mode, each job you save in jobtracker.co.nz keeps its contract type and hours per week beside its pay.

Keep every offer and its hours on record