67DAvailability provision

1. In this section and section 67E, an availability provision means a provision in an employment agreement under which—

2. the employee’s performance of work is conditional on the employer making work available to the employee; and
3. the employee is required to be available to accept any work that the employer makes available.

4. An availability provision may only—

5. be included in an employment agreement that specifies agreed hours of work and that includes guaranteed hours of work among those agreed hours; and
6. relate to a period for which an employee is required to be available that is in addition to those guaranteed hours of work.

7. An availability provision must not be included in an employment agreement unless—

8. the employer has genuine reasons based on reasonable grounds for including the availability provision and the number of hours of work specified in that provision; and
9. the availability provision provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the provision.

10. An availability provision that is not included in an employment agreement in accordance with subsection (3) is not enforceable against the employee.

11. In considering whether there are genuine reasons based on reasonable grounds for including an availability provision, an employer must have regard to all relevant matters, including the following:

12. whether it is practicable for the employer to meet business demands for the work to be performed by the employee without including an availability provision:
13. the number of hours for which the employee would be required to be available:
14. the proportion of the hours referred to in paragraph (b) to the agreed hours of work.

15. Compensation payable under an availability provision must be determined having regard to all relevant matters, including the following:

16. the number of hours for which the employee is required to be available:
17. the proportion of the hours referred to in paragraph (a) to the agreed hours of work:
18. the nature of any restrictions resulting from the availability provision:
19. the rate of payment under the employment agreement for the work for which the employee is available:
20. if the employee is remunerated by way of salary, the amount of the salary.

21. For the purposes of subsection (3)(b), an employer and an employee who is remunerated for agreed hours of work by way of salary may agree that the employee’s remuneration includes compensation for the employee making himself or herself available for work under an availability provision.

Notes

• Section 67D: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9).