| 11 June 2019

Availability provisions: overtime clauses called into question by the Court

The 2016 amendments to the Employment Relations Act 2000 (the Act) introduced a range of measures that
focused on employer practices regarded as exploitative and lacking in mutuality, including shift cancellation
without notice, unfair restrictions on secondary employment and availability provisions which require
employees to be available to accept work which may not be offered. The new sections in the Act relating to
availability have not yet been the subject of extensive litigation, but the full Court’s recent judgment in Postal
Workers Union of Aotearoa Inc v New Zealand Post Limited [2019] NZEmpC 47 now provides employers
with further guidance on availability provisions following the 2017 case of Fraser v McDonald’s Restaurants
(New Zealand) Ltd [2017] NZEmpC 95. As a result of the judgment, it is highly likely that clauses which
require employees to work overtime will be considered availability provisions.


By Hannah King, Senior Associate