Employment Relations Amendment Act 2016

9 New sections 67C to 67H inserted

After section 67B, insert:

67C Agreed hours of work

(1)

Hours of work agreed by an employer and employee must be specified as follows:

(a)

in the case of an employee covered by a collective agreement,—

(i)

in the collective agreement; and

(ii)

if section 61 applies, in the employee’s additional terms and conditions of employment included under that section; or

(b)

in the case of an employee covered by an individual employment agreement, in the employee’s individual employment agreement.

(2)

In subsection (1), hours of work includes any or all of the following:

(a)

the number of guaranteed hours of work:

(b)

the days of the week on which work is to be performed:

(c)

the start and finish times of work:

(d)

any flexibility in the matters referred to in paragraph (b) or (c).

67D Availability provision

(1)

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

(a)

the employee’s performance of work is conditional on the employer making work available to the employee; and

(b)

the employee is required to be available to accept any work that the employer makes available.

(2)

An availability provision may only—

(a)

be included in an employment agreement that specifies agreed hours of work and that includes guaranteed hours of work among those agreed hours; and

(b)

relate to a period for which an employee is required to be available that is in addition to those guaranteed hours of work.

(3)

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

(a)

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

(b)

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.

(4)

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

(5)

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:

(a)

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:

(b)

the number of hours for which the employee would be required to be available:

(c)

the proportion of the hours referred to in paragraph (b) to the agreed hours of work.

(6)

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

(a)

the number of hours for which the employee is required to be available:

(b)

the proportion of the hours referred to in paragraph (a) to the agreed hours of work:

(c)

the nature of any restrictions resulting from the availability provision:

(d)

the rate of payment under the employment agreement for the work for which the employee is available:

(e)

if the employee is remunerated by way of salary, the amount of the salary.

(7)

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.

67E Employee may refuse to perform certain work

An employee is entitled to refuse to perform work in addition to any guaranteed hours specified in the employee’s employment agreement if the agreement does not contain an availability provision that provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the availability provision.

67F Employee not to be treated adversely because of refusal to perform certain work

(1)

An employer must not treat adversely an employee who refuses to perform work under section 67E.

(2)

In this section, an employer treats an employee adversely if the employer—

(a)

refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially the same qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(b)

dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or

(c)

retires that employee, or requires or causes that employee to retire or resign.

(3)

For the purposes of subsection (2)(b), detriment includes anything that has a detrimental effect on that employee’s employment, job performance, or job satisfaction.

67G Cancellation of shifts

(1)

This section applies in relation to an employee who is required under the employee’s employment agreement to undertake shift work.

(2)

The employer must not cancel a shift of the employee unless the employee’s employment agreement specifies—

(a)

a reasonable period of notice that must be given before the cancellation of a shift; and

(b)

reasonable compensation that must be paid to the employee if the employer cancels a shift of the employee without giving the specified notice.

(3)

In cancelling a shift of an employee, the employer must—

(a)

give the employee the notice specified in the employee’s employment agreement under subsection (2)(a); or

(b)

if that notice is not given, pay to the employee the compensation specified in the employee’s employment agreement under subsection (2)(b).

(4)

The period of notice specified under subsection (2)(a) must be determined having regard to all relevant factors, including—

(a)

the nature of the employer’s business, including the employer’s ability to control or foresee the circumstances that have given rise to the proposed cancellation; and

(b)

the nature of the employee’s work, including the likely effect of the cancellation on the employee; and

(c)

the nature of the employee’s employment arrangements, including whether there are agreed hours of work in the employee’s employment agreement and, if so, the number of guaranteed hours of work (if any) included among those agreed hours.

(5)

Compensation specified under subsection (2)(b) must be determined having regard to all relevant matters, including the following:

(a)

the period of notice specified in the employee’s employment agreement under subsection (2)(a):

(b)

the remuneration that the employee would have received for working the shift:

(c)

whether the nature of the work requires the employee to incur any costs in preparing for the shift.

(6)

Without limiting subsection (5), an employee is entitled to what he or she would have earned for working a shift if—

(a)

the shift is cancelled and the employee’s employment agreement does not comply with this section; or

(b)

the shift is cancelled, but the employee has not been notified of the cancellation until the commencement of the shift; or

(c)

the remainder of a shift is cancelled after the shift has begun.

(7)

If an employee whose shift is cancelled is entitled, under his or her employment agreement or under subsection (6), to the remuneration that he or she would have earned for working the shift, that remuneration is a part of the employee’s ordinary weekly pay and relevant daily pay for the purposes of sections 8 and 9 of the Holidays Act 2003.

(8)

To avoid doubt, nothing in this section enables an employer to cancel an employee’s shift if that cancellation would breach the employee’s employment agreement.

(9)

In this section, shift means a period of work performed in a system of work in which periods of work—

(a)

are continuous or effectively continuous; and

(b)

may occur at different times on different days of the week.

67H Secondary employment provisions

(1)

In this section, a secondary employment provision is a provision in an employee’s employment agreement that—

(a)

prohibits or restricts the employee from performing work for another person; or

(b)

prohibits or restricts the employee from performing work for another person without the employer’s consent.

(2)

A secondary employment provision must not be included in an employee’s employment agreement unless—

(a)

the employer has genuine reasons based on reasonable grounds for including the provision; and

(b)

the reasons are stated in the employee’s employment agreement.

(3)

For the purposes of subsection (2)(a) and without limiting that provision, a genuine reason may relate to—

(a)

protecting an employer’s commercially sensitive information; or

(b)

protecting an employer’s intellectual property rights; or

(c)

protecting an employer’s commercial reputation; or

(d)

preventing a real conflict of interest that cannot be managed without including a secondary employment provision.

(4)

A secondary employment provision in an employee’s employment agreement must not—

(a)

prohibit the employee from performing work for another person unless it is necessary having regard to the reasons for which the provision is included; or

(b)

restrict the employee from performing work for another person to a greater extent than is necessary having regard to the reasons for which the provision is included.

(5)

This section does not limit or affect the law relating to restraint of trade provisions.