Mcdonald`s Employee Availability Agreement
While the introduction of stricter rules on availability and zero-hour contracts is not new, the first decision to address this issue has given some interesting insights into how to tackle availability. The employer must have good reasons for determining availability. Among the factors that the employer must take into consideration are: an “availability provision” is a clause in an employment contract that states whether or not the worker is working depends on whether the employer makes the work available; and staff must be available for acceptance of the work. These provisions have generally been used in sectors where some flexibility is needed in the establishment of employment, such as for example. B in the retail trade. In Fraser v. McDonald`s Restaurants (New Zealand) Limited  NZEmpC 95, the Labour Court considered McDonald`s individual employment contracts guaranteeing employees 80% security of their capped weekly working time, based on an average of the predetermined working hours of the predetermined quarter (there is a calculation for new employees who did not work full quarter). The Court did not support these arguments. It decided that the McDonalds clauses were not rules of availability: the availability provision must provide for the payment of adequate compensation to the worker for the provision of himself for the service. Among the factors that the employer must take into account in determining the amount of remuneration, it should be noted that after the change, an employer may retain a certain degree of flexibility by including in the employment contract an “availability provision” relating to a period for which a worker must be available beyond his guaranteed hours. An availability provision will determine: [In the Fraser case (see below), the Labour Court stated that these grounds had to be in writing in the employment contract, failing which the availability provision would not be applicable] McDonalds also created the possibility of scheduling staff beyond these guaranteed hours due to different customer demand.
As part of the individual employment contract and a brochure/brochure explaining the terms and conditions of employment, there was a procedure that the worker had to follow if he could not work these overtime hours, including a reasonable notice period for refusal. There was also a trial when they worried about planning. The Labour Court concluded that a request for working time, in addition to an employee`s working schedule, was not a prerequisite and that such a request could be rejected without penalty. This meant that it was operated legally and was not an availability provision. The complainant`s case was that McDonald`s had effectively created a right for itself to require a worker to accept any scheduled work and that the rotation system required workers to work beyond the guaranteed hours. In particular, given that the minimum hours were calculated on the previous quarter, the applicant argued that the workers were obliged to accept shifts, on pain of reducing their minimum hours. . .