Court backs posties who want compensation for being available for work

Friday, 3 May 2019

The court said some of the factors that affected the time it took to make deliveries were outside NZ Post's control.

New Zealand Post has been told it needs to pay its staff if it wants them to make themselves available for more than the hours in their contract.

The Postal Workers Union took NZ Post to the Employment Court, asking for clarification on whether the company could require delivery agents to perform extra hours of work, on top of their standard hours, without compensating them for keeping themselves available to do so.

They are employed under a collective agreement which states that they may be required to work 'reasonable overtime' provided the work is voluntary on days that are otherwise non-rostered days.

There are limited circumstances under the law in which an availability provision, requiring workers to be available to work, can be included in an agreement.

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An employer must have genuine reasons based on reasonable grounds, and the agreement must provide for the payment of reasonable compensation for the employee's availability.

The Postal Workers Union took NZ Post to the Employment Court

The employee can refuse to work more than their guaranteed hours if this is not in place.

The Employment Court rejected the argument from NZ Post, supported by BusinessNZ, that the law was intended to tackle 'zero-hour contracts' and wider application could have 'significant unforeseen consequences.'

The court said the intention of the law was to ensure reasonable compensation was payable to employees who made themselves available for work, for their employer's benefit, and so were unable to accept other work or engage in any other activity.

It heard from Michael Hunter, a long-time postie and now a delivery agent, who described his involvement with community orchestras, and the difficulties he would face if he was unable to commit to attending rehearsals at particular times of the day because he might be required by NZ Post to undertake overtime, including without notice.

'He gave evidence, which we accept, that if [the clause] was enforced by NZ Post he may be obliged to relinquish his involvement in the orchestras. Other difficulties were also referred to, including interference with family life, difficulties with childcare responsibilities, and with being able to commit to various personal activities and voluntary work within the community. '

'While it benefits NZ Post to have delivery agents holding themselves available to work overtime to enable it to meet its fluctuating business needs, this comes at a personal cost to the affected employee.'

The court said the availability provisions in the law appeared to reflect a statutory recognition that an employee's time was a commodity which had value.

'That ought not to be regarded as a startling or novel proposition.

'It seems to us to be self-evident that the value of an employee's otherwise private time applies equally whether they are waiting to be called in for work or on the off-chance they might be required to undertake additional hours of work at the end of their usual working day. In either case the employee is forgoing opportunities in their private life.'

As it stood, the clause in the collective contract was unenforceable and delivery staff were entitled to refuse to perform extra work.

'We accept that various factors affect the time it takes to meet the operational delivery needs of NZ Post's business, including the day of the week; planned and unplanned delivery agent absences; the volume of product to be delivered and other contingencies,' its judgment said.

'We accept, too, that some of these factors are outside of NZ Post's control and that some are within the control of individual delivery agents. While we appreciate that it is difficult for NZ Post to know with certainty what hours will be required to complete deliveries from day to day, we do not think that this factor materially assists in determining whether the requirements of [the law] are met.'

The court directed New Zealand Post and the Postal Workers Union to mediation to resolve any remaining issues.

John Maynard, the union's national president, said the legal proceedings arose when NZ Post changed its rosters for most delivery employees, requiring them to work longer shifts of nine hours and 25 minutes on rostered days.

'Delivery employees asked the union if it was compulsory for them to work overtime on top of the nine-hour-25-minute shifts, because if it was compulsory then they wouldn't be able to collect their children from childcare on some days, and often wouldn't be able to attend sporting, cultural or family activities in the evenings, or take second jobs.'

He said the two parties agreed together to go to court for a swift determination.

'The union appreciates that NZ Post has not disciplined any union members who have refused to work overtime while the court's judgement has been awaited. The court's decision means that delivery employees can now have certainty that they can finish work at the time they are rostered to finish, and plan their personal lives accordingly. Some may agree to remain available for overtime, and be compensated for that.'

A spokeswoman for NZ Post said it 'works constructively with the unions representing our people, and we have been working alongside them during these Employment Court proceedings.

'We will continue to work with them now the decision is out on the implications for our rosters and people, including through mediation.'