In 2016, legislative changes were made to prevent “zero hours contracts”, i.e. the practice where employees did not have guaranteed hours of work, but were required to be available to take on any work their employer made available, making it hard to plan their finances and personal lives. The aim of the legislative change was to increase certainty about what an employee could expect from an employer and to allow flexibility where both the employer and employee agreed to certain hours from the outset.
In the first test case, McDonald’s has now successfully defended the union’s claim that McDonald’s employment agreements contained an “availability provision”. An availability provision is a provision in an employment agreement where an employee is required to be available to accept any work the employer makes available in addition to the guaranteed hours of work. For an availability provision to be lawful, employment agreements must now specify the agreed hours of work, whether an employee is required to be available to work any hours in addition to those guaranteed agreed hours and provide reasonable compensation for the employee making himself /herself available to work those additional hours.
In this case, the union argued that McDonald’s had an availability provision in its employment agreement and that it did not provide for reasonable compensation for the requirement to work additional hours. The union’s claim was rejected. The Employment Court found that there was no “availability provision” (and therefore that additional compensation for being available did not need to be provided) because the employees were not “required” to work additional hours, instead, any request to work additional hours could be declined. The Court found that the word “requested” in the work schedule provisions meant that employees could be asked, but not compelled, to be available for hours beyond the guaranteed hours, i.e. they were not “required” to work additional hours.