Summarise with AI
The two conditions
An availability provision is lawful only where both of the following hold, and the provision is in the written employment agreement:
- the employee has agreed hours that include guaranteed hours, and the availability sits on top of them
- there are genuine reasons on reasonable grounds for requiring availability, and the employee receives reasonable compensation for it
Genuine reasons are assessed on the realities of the business: whether the work is unpredictable, whether another practicable alternative exists, and whether it is reasonable for the role. "It is convenient for us" is not one.
What reasonable compensation means
Compensation is for being available — it is separate from, and additional to, the pay for any work actually performed when called in. There is no statutory formula. What is reasonable is judged on the number and proportion of hours the employee must be available, the restrictions those place on them, and the nature of any constraint on their freedom during that time.
Salaried employees can have availability built into their salary, but only if the agreement specifically says the salary includes compensation for availability. Silence does not do it.
Without a compliant provision
If there is no availability provision, or it fails either condition, the employee may refuse to work outside their agreed hours — and refusing cannot be treated as a ground for adverse treatment, including in how future shifts are allocated.
That has a direct rostering consequence: a shift offered outside agreed hours is an offer, not an instruction, unless the agreement makes it one. Keeping agreed hours next to each person while the roster is being built is the practical answer — see rostering software and pay rule compliance.
