On, or off the clock?
By: Anthony Drake
Published: 4/06/2019
We live in a time where influences on aspects of work and work-life balance are being questioned like never before.  Workers are wanting enough time to pursue both work and personal interests.  While life balance is a perceived state: a failure to control hours worked is perceived as imbalance.

There is a trend in a number of recent employment cases[1] where the courts have considered the demands of work and the demands of family or personal life.  In a recent decision of the Employment Court the full court ruled that an employee’s private time is a valuable commodity and accepted the proposition that where an employer purports to reserve the unilateral ability to require an employee to work past their usual hours it does materially constrain a worker’s ability to plan their life away from work.  The Court found in Postal Workers Union of Aotearoa Inc v New Zealand Post Limited[2] that where an employer wishes to rely on being able to require an employee to work overtime then it must provide reasonable compensation.

In the Postal Workers case the particular wording of the agreement was key to the Court’s analysis in determining whether the clause was an availability provision within the meaning of sections 67D and 67E of the Employment Relations Act 2000.  The clause said: ‘delivery agents may be required to work reasonable overtime in excess of their standard hours (subject to safe operating procedures), provided that work is voluntary on days which are otherwise non-rostered days for an individual employee’.  The Court considered this clause to be an availability clause.  More importantly, the Court found that availability provisions were not limited to zero-hours contracts.  

The importance of this finding cannot be overlooked as many New Zealand employment agreements contain similar work hours provisions which say (to the same effect) “Your ordinary hours of work are 40 hours per week between Monday and Friday.  However, you may be required at time to work beyond your ordinary hours, including weekends, to fulfil your duties and responsibilities.” 

Flexibility is an important part of maintaining a good work-life balance.  The current trend in employment cases shows that flexibility will cost employers.  If an employer wants the ability to require an employee to work beyond their ordinary hours of work then the employer will need to compensate the worker for that right.  Creating an employment agreement is an important starting point when hiring staff.  Employers should review their employment agreements, check the wording of the work hours provisions and assess the risks in this area.  Your Wynn Williams employment team can help you with your employment needs.
Anthony Drake, Partner

Email: anthony.drake@wynnwilliams.co.nz
Telephone: +64 9 300 2615
[1] Fraser v McDonald’s Restaurants (NZ) Ltd [2017] NZEmpC 95 and Idea Services v Dickson [2011] NZCA 14
[2] Postal Workers Union of Aotearoa Inc v New Zealand Post Limited [2019] NZEmpC 47
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