Your rights: When some turns into every

By CHRIS PATTERSON

Q. My employment contract states "I may be required to live in to carry out some overnight shifts". When I asked my boss to clarify this clause he put in writing that I have to be on call Friday and Saturday nights.

After three of four weeks of being on call these nights I advised my employer in writing that the commitment to these particular two nights was onerous and I would like to negotiate alternative nights.

He said the only other person who could fulfil these duties was the onsite building manager and Friday and Saturday were her days off. Unless I could come up with an acceptable alternative, I would permanently be required to work these two nights.

I suggested a fairer sharing of these two nights between myself, the building manager and her partner (also an employee, who does regular after-hours work during the week with the building manager). I asked for independent mediation.

My boss has refused, stating that a mediator cannot "wave a magic wand". I cannot afford to pay a lawyer and feel unwittingly duped into this unacceptable arrangement.

Recently I requested a Saturday night off to attend a party and suggested I swap for another night. However my employer preferred to deduct my wages, which I told him was not my preference.

Can he expect me to be permanently available for these two particular nights on call? Can he deduct my wages if I ask for one of these nights off in return for working an alternative night? If he can, can I then opt to be unavailable for either one of these nights when inclined, considering I am not going to be paid for them anyway?

Ideally I want to be able to renegotiate my after-hours obligations so that Friday and Saturday nights are equitably shared among everyone involved in the business. What are my rights and what should my employer be required to do to make this happen?

A. The unspecific wording in your employment agreement - "some overnight shifts" - is problematic. It would be difficult for either your employer or you to enforce the obligation "to carry out some overnight shifts" because "some" is not defined - it could mean many things.

Your employer should have specified Friday and Saturday nights if it was intended that you would always work them. "Some overnight shifts" cannot mean every Friday and Saturday, but rather a more casual arrangement. I doubt your employer can legally expect you to be available those particular nights on call.

Your employer cannot make any deductions from your wages without your express agreement - the Wages Protection Act 1983 prohibits this.

Your employer needs someone to be available every Friday and Saturday night, but it is his responsibility, not yours, to cover those shifts.

Ideally, your employer would take on board your suggestion as it goes part of the way to solving the problem.

I have taken part in nearly 1000 mediations and have yet to met a mediator who has a magic wand. However, a good mediator can help employers and employees, who appear to have an entrenched position, to widen their view and discover solutions that were not initially obvious. The Department of Labour's mediation service is free and claims an 80 per cent success rate.

Try suggesting mediation again. You could ask the Employment Relations Authority to direct your employer to attempt mediation in good faith. In the meantime, continue working the shifts but make it clear that you do not concede that you are legally obliged to work them.

* Send us an employment law question

(Put "Your rights" in the subject line)