Working overtime or extra shifts

Many employees receive payment if their employer asks them to work more than their normal hours.

Pay for working overtime or extra shifts

Paying employees for working overtime or extra shift needs to be agreed to by the employer and employee and included in the . For example, overtime may be factored into the employee’s salary. Or it will be paid at the employee’s normal rate of pay. This must be at least the or a higher rate of pay. Employment Agreement Builder contains a sample clause on overtime.

Overtime - Employment Agreement Builder(external link)

If an employee has worked more than their normal hours and believes they have not been properly compensated, they should try to resolve this with their employer.

Steps to resolve problems

Having to be available for work or shifts

An availability clause means working is conditional on the employer making work available to an employee. It requires the employee to be available to accept any work the employer offers.

An employment agreement must not have an availability clause unless:

  • the employment agreement specifies agreed hours of work and includes guaranteed hours of work among those agreed hours. The availability clause is in addition to those guaranteed hours of work
  • the employer has genuine reasons based on reasonable grounds for including the availability clause and the number of hours of work specified
  • the availability clause gives the employee reasonable compensation for being available to work.

Good faith

To decide whether there are genuine reasons based on reasonable grounds, an employer needs to think about such things as:

  • whether they’re able to meet their business demands for the employee’s work without an availability clause
  • the number of hours that the employee needs to be available
  • the proportion of these hours compared with their agreed hours of work.

Hours of work

To decide whether the compensation is reasonable, the employer must think about all relevant factors. These include:

  • the number of hours that the employee has to be available, and the proportion of these hours compared with their agreed hours of work
  • the nature of any restrictions on the employee if there is an availability clause
  • how much the employee gets paid for the work they are available for
  • the employee’s salary (if that’s how they are paid). If they are paid by salary, then the employee and employer can agree that the employee’s salary includes compensation for being available for work under an availability clause in their employment agreement.

Types of pay

Keeping records

Saying ‘no’ to work

If an employment agreement does not have a valid availability clause that provides reasonable compensation, then an employee can say “no” to work that is not part of any guaranteed hours in their employment agreement.

An employer cannot disadvantage an employee if they turn down the work. This means that an employer cannot:

  • refuse or not offer the same employment terms, work conditions, fringe benefits, and training, promotion and transfer opportunities, as other employees with more or less the same qualifications, experience and skills employed in the same or very similar circumstances, or
  • dismiss or do anything to an employee that has a negative effect on the employment, job performance or job satisfaction, when other employees employed to do the same type of work are not treated the same.

Jenna has no guaranteed hours of work and said “no” to a shift because she could not arrange childcare. Her employer then reduced the number of shifts she was offered and gave her all the unpopular shifts because she said no.

In this situation, Jenna can make sure she has a copy of her previous shift history before she said no. Her employer must keep accurate records of employees’ time worked. Jenna could use this to show she was now being disadvantaged.

Staying safe and avoiding fatigue

Employers and employees need to take all practicable steps to ensure the health and safety of themselves and others in the workplace. This includes working safe hours of work and avoiding fatigue. If employees have safety concerns about the hours they are required to work, they should discuss this with their employer, union or WorkSafe.

Fatigue quick guide - WorkSafe New Zealand(external link)

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