One of the hottest topics for the industry is around agreed hours of work and availability – the part of the legislation that aims to shut down so called “zero hour contracts”.
While your employment agreements do not have to include any agreed hours of work, if any hours of work have been agreed, they need to be recorded in the employment agreement. If no hours of work are agreed, you still need to provide an indication of the arrangements relating to the times the employee is to work. Remember though that you won’t be able to require an employee to work outside of their guaranteed hours if they don’t want to.
So, if you and your employee have agreed hours of work, outline them in their employment agreement, including any or all of the following:
- the number of guaranteed hours of work (e.g. the employee will work a minimum of 20 hours per week);
- the days of the week on which work is to be performed (e.g. the employee will be required to work on Saturday and Sunday);
- the start and finish times of work (e.g. the employee will be required to start at 10am for the lunch service); or
- any flexibility in the matters referred to in paragraph (b) or (c)
(e.g. the employee will be required to work on Saturday or Sunday, and start at 10am for the lunch service or 5pm for the dinner service).
So far, so confusing…
As the agreed hours form part of the employment agreement they can only be varied by mutual agreement between both the employer and the employee. So, you should provide as much detail as possible in the employment agreement, but still allow for flexibility and fluctuating business needs. For example, if you guarantee a minimum of 30 hours per week, you will be contractually bound to pay the employee for 30 hours a week, even if they work fewer than 30 hours because you are unable to provide the work.
Think about whether the employee will be required to work on any particular day or days of the week (i.e Monday to Sunday) and, importantly for our industry, whether the employee’s hours each week will be set out in a roster. In your employee’s employment agreement you may have, as an example:
- Agreed hours: A minimum of 20 hours per week to be worked on Monday, Tuesday, Wednesday and Sunday.
- Rostered hours of work: The business’ trading hours are usually 6am to 3pm Monday to Sunday. Your rostered hours of work each week will be displayed on a weekly roster. It is your responsibility to find out in advance the contents of the roster. You agree to work on the days and times rostered.
Remember, you will need to get the employees agreement if you need them to work more than their agreed hours at any time.
Need your employees to be “available” to work if you need them?
An availability provision means a provision in an employment agreement where the employee’s performance of work is conditional on the employer making work available to the employee; and the employee is required to be available to accept any work that the employer makes available. An availability provision can be included in your employment agreement but only if you have genuine reasons for including the provision and the number of hours of work specified in that provision.
You must also provide for the payment of reasonable compensation to the employee for making themselves available to work. Another point to note with regards to availability provisions is that they may only:
- be included in an employment agreement that specifies agreed hours of work and that includes guaranteed hours of work among those agreed hours; and
- relate to a period for which an employee is required to be available that is in addition to those guaranteed hours of work.
In considering whether there are genuine reasons for including an availability provision, you need to consider a number of relevant matters which are outlined in the new legislation. A genuine reason may be because you cater a series of events each year and during that period you may need employees to work extra hours in addition to their agreed or rostered hours. Another example is that you may need employees to be on stand by and available to work on Saturday night if required, as that is the busiest night for the business and is also a night that employees who are rostered on often call in sick or do not turn up for work.
However, if a business has a ‘pool’ of employees who may be called on to work additional hours by agreement – i.e. an employee may accept or decline the extra hours, it may not be necessary to have an availability provision that requires a particular employee to be on call, waiting for work. If an employee makes him or herself available to work if required, you have to compensate the employee for being ‘on-call’. The compensation amount has to be reasonable.
For example, it may not be reasonable to guarantee an employee only 1 hour of work per week, but require him or her to be available for an additional 39 hours per week if required, and only pay them $20 compensation for being available or ‘on-call’ for that week. This is exactly the type of situation that the new legislation aims to eliminate. Employment law is a minefield so the Restaurant Association is here to help members to adhere to best practice in relation to staff management.
Call us on 0800-737-827 for advice.