Hours, shifts and breaks
Zero-hour contracts and availability clauses
How do I know if I have a “zero-hour” contract?
Employment Relations Act 2000, ss 65(4), 67C-67F
A “zero-hour” contract is where you have no guaranteed hours of work, but you are not allowed to turn down work that is offered to you.
As a general rule, you are usually free to turn down any work that is offered over and above your guaranteed hours (unless your employment agreement includes an “availability clause” – see below).
If you have no guaranteed hours (a “zero-hour” contract), you should have the freedom to turn down hours offered to you, without being disciplined or disadvantaged by your employer.
Note: If you and your employer have verbally agreed on the hours you will work, it is their responsibility to include this in writing, in your employment agreement. The employment agreement should include, amongst other things, the hours and days you will work, and your expected start and finish times. If your employer doesn’t include these details in your employment agreement, you (or a labour inspector) can complain to the ERA. Your employer may be required to pay a penalty for breaching your minimum rights.
What’s an “availability clause”?
Your employment agreement can include a clause that gives your employer some freedom about whether they make work available to you, and when you have to accept the work (“an availability clause”). The availability clause is only valid if:
- your agreement gives you some guaranteed hours, and
- you’re paid reasonable compensation (see below) for making yourself available above those guaranteed hours, and
- your employer has genuine reasons based on reasonable grounds for including this availability clause.
What’s “reasonable compensation” for agreeing to an availability clause?
Employment Relations Act 2000, s 67D
Relevant factors for what will be reasonable compensation for making yourself available above your guaranteed hours include:
- how many hours you have to make yourself available for work, and
- how that number compares to the number of guaranteed hours, and
- any restrictions placed on you by the clause – for example, if you can’t drink while you’re on call, or if you have to stay local rather than just being available by phone, and
- your regular pay or salary.
