'No express expectation for him to be available outside work hours,' argues employer
The Employment Relations Authority (ERA) recently dealt with a case involving a service manager who claimed he was entitled to on-call allowances for work performed outside regular hours.
The dispute centred around the interpretation of employment agreements and the nature of on-call work in the community care sector.
This case highlights the importance of clear terms in employment agreements regarding working hours and compensation. It serves as a reminder for both employers and employees to understand their rights and obligations in the workplace.
Manager's claim for on-call allowances
The case involved a service manager who worked for a community care trust in Christchurch from November 2021 to October 2022.
The worker's role was to establish the employer's presence in Christchurch and run an individual residence-based care service for adults with complex care issues. This job involved organising and managing caregivers providing 24-hour care arrangements.
The worker claimed that a significant portion of his work occurred outside agreed working hours, including arranging shift cover for caregivers, covering shifts himself, attending emergency call-outs, responding to staff calls when on duty, arranging urgent repair work, and attending to clients' family calls.
The employer, however, argued that there was no express expectation for the worker to be available outside core working hours. They also pointed out that there was no provision in the employment agreement for an on-call allowance.
Unclear employment agreement
One of the key issues in this case was the lack of clarity in the employment agreement. The ERA found that the agreement was imprecisely drafted and did not comply with the Employment Relations Act 2000 requirements for specifying hours of work.
The agreement stated: "The employee shall work on average, no less than 80 hours per week." However, the letter of offer indicated: "This position is for no less than 80 hours per fortnight commencing on 8th November 2021." This discrepancy added to the confusion about the worker's expected hours.
The ERA noted: "It is apparent that the wording of the [parties’ agreement] including its incorporated schedule, does not comply with s 67C(2) of the Act's requirement for how hours of work should be addressed."
Balancing flexibility and compensation
The employer argued that the worker was allowed to manage his own working time and was not required to record hours worked.
They claimed that the role had no on-call component and that the worker's salary covered all hours worked.
The worker, on the other hand, stated that he made himself available 24/7 and considered this to be his employer's expectation given the nature of the service.
The worker provided evidence of an email exchange where the operations manager acknowledged the excessive hours worked by team leaders and managers due to ongoing staff shortages.
Entitled to on-call allowance or not?
After considering the evidence, the ERA did not find that the worker was entitled to an on-call allowance. The Authority stated:
"In all of the circumstances I do not find [the worker] to have made out a case that his agreed terms of engagement including his individual employment agreement, required [the employer] to pay him an on-call allowance and s 67D of the Act is not triggered."
However, the ERA did make an important distinction regarding shift cover work. The Authority found: "I, however, do not consider that the employment agreement's salary provision despite it not providing for the payment of overtime in his normal role, extended to covering the times [the worker] covered rostered shifts."
This led to the ERA ordering the employer to identify and agree on rostered cover shifts the worker undertook and provide remuneration for such shifts at the prevailing care worker's hourly rate.
The ERA stated: "[The employer] is to, in consultation with [the worker], identify and agree on rostered cover shifts [the worker] undertook while in their employ and provide remuneration for such on the basis of the prevailing care worker's hourly rate for the hours worked."
This case emphasises the importance of clear and comprehensive employment agreements. The ERA's decision demonstrates that while employment agreements may cover a broad range of duties within a salary, there are limits to what can be considered part of normal duties.
The Authority's order also highlights the importance of record-keeping, even when not explicitly required by the employer. As stated in the decision: "Should the parties be unable to reach an agreement on the number of shifts worked or the compensation for such, they can both make submissions to the Authority by no later than 25 October 2024, and the Authority will determine the matter."
This case serves as a reminder for employers to carefully draft employment agreements and for employees to clarify expectations around work outside regular hours. It also underscores the need for both parties to maintain clear records of additional work performed to avoid potential disputes in the future.
