Employment changes should make workplaces fairer, if they are implemented
McDonald's workers protest their zero hour contracts in Wellington in 2015.
OPINION: It's been more than two years since a phrase new to most people popped into our everyday lives via the news media – 'zero hours'.
All through 2015 it was a debate that raged on as more people came forward with stories that to many in the street seemed unfair – employed on a contract where the employer was under no obligation to provide work, but for which they were expected to be available at any time.
For many, it was a case of front up if and when asked or we'll find someone else to do the job.
Wellington Chamber of Commerce chief executive John Milford.
Like the student who had worked at a fast-food outlet for two years.
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His work week varied from a high of 42 hours one week, to just four in another, with greatly varying hours.
He had to be available when called on or he would be off the roster.
As a result of public pressure, and after much debate, the issue was addressed in the Employment Standards Legislation Act, which came into force on April 1 last year.
Among other changes related to zero hours, in what became the Employment Relations Act 2016, were improvements to secondary employment provisions and shift work.
It's these three issues that came again into focus last Saturday – April 1 – when the circle was effectively closed and all existing employment agreements had to have been amended to comply.
On zero hours, the law determined that such contracts are permissible, but only by agreement.
That's sensible, because in many cases those contracts work to the benefit of both parties. Now, if the employer requires the employee to be available, he or she must be compensated for being on standby.
Agreements must also specify agreed days and hours of work and any associated flexibility.
If they include an availability provision, it must specify agreed hours of work, including guaranteed hours, and provide the employee with reasonable compensation for agreeing to be available.
Furthermore, employers must have "genuine reasons" based on "reasonable grounds" for negotiating an availability provision and for the number of hours of work specified.
Such reasons can be whether business demands make the provision necessary, the number of hours when the employee needs to be available, and the proportion of availability hours to agreed hours.
Those on a salary may agree that the salary includes compensation for being available under an availability provision.
Without such provision, they may refuse to work more than any guaranteed hours. An availability provision not in the agreement is not enforceable.
In the case of secondary employment provisions, employees can now be stopped from working for other employers – but only if there are genuine reasons based on reasonable grounds, and only if these are in the employment agreement.
Examples include protecting an employer's commercially sensitive information, intellectual property rights, and commercial reputation, or preventing a conflict of interest that can't be managed without a secondary employment provision.
Also required to be in employment agreements from last Saturday are provisions that specify reasonable notice to cancel shift work and the payment of reasonable compensation if the specified notice isn't given.
Such a reasonable notice period depends on whether the circumstances leading to the cancellation might be foreseen or controlled, the likely effect on the employee, and if there are agreed hours of work.
Reasonable compensation depends on the notice period specified, what the employee would have been paid for working the shift, and whether the nature of the work means the employee will incur costs in preparing for the shift.
All of these provisions are designed to make workplaces fairer and better places to work, and it's up to employers to ensure they're properly implemented.
John Milford is the chief executive of the Wellington Chamber of Commerce
- Stuff
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