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Flexible working rights a reality
Legislation came into force this week which gives many employees the right to request flexible working arrangements - a small step towards achieving what has become the Holy Grail of the modern workplace: work-life balance.
The Employment Relations (Flexible Working Arrangements) Act (which will amend the Employment Relations Act 2000) gives an employee responsible for the care of another person the right to request a variation in their "working arrangements". This piece of legislation was originally part of a Green Party MP Members' Bill and was picked up by the Government as part of the Department of Labour's Work Life Balance Project.
Understanding the scope and application of the legislation and putting in place the right processes to deal with requests for flexible working arrangements will be key to its success.
Who is entitled to what?
The "working arrangements" that an employee may request to vary include an employee's hours of work, days of work or place of work.
An employee who is "responsible for the care of any person", and has been employed by their employer for the immediately preceding six months, can request a variation in their working arrangements.
The level of responsibility required, or the care that an employee must provide, is not defined in the legislation. However, sample request documents produced by the Department of Labour include a section where an employee must specify how the request would, if granted, "enable the employee to provide better care for the person concerned."
The legislation appears to apply to those with a pre-existing ongoing responsibility to ensure the care, welfare and/or safety of another. It is not limited to parents of school-aged children, as the care of disabled and elderly will fall within the definition.
The legislation does not extend the right to request a variation in working arrangements to all employees – care of a person is required. For employees who want alternative working arrangements for another purpose, this must be the subject of a separate discussion and agreement between employee and employer outside the bounds of this new legislation.
Steps for employees
An employee's request to vary their working arrangements must be in the correct form: it must be in writing, specify the nature of the variation and the period of time for which the variation is proposed, any changes required by the employer to accommodate the request and, in particular, how the variation will enable the employee to better care for the particular person.
Steps for employers
To achieve administrative convenience, and what will become best practice, employers should develop a request form incorporating these elements. The Department of Labour has a basic template request form, which an employer can adapt appropriately.
An employer, upon receiving a request, must deal with it as soon as possible, and no later than three months after receiving it. The employer must then inform the employee whether their request has been approved or refused.
Dealing with the request will require the employer to investigate whether the employee is entitled to make a request, and decide whether the request could be accommodated (including by making any changes to the workplace that the employee may have suggested).
Yay or nay?
There are eight particular grounds for refusing a request. These are: the inability to reorganise work among existing staff, the inability to recruit additional staff, a detrimental impact on quality, a detrimental impact on performance, insufficiency of work during the periods the employee proposes to work, planned structural changes, the burden of additional costs and a detrimental effect on ability to meet customer demand.
An employee may only make one request in any 12 month period. In addition, a request to vary working arrangements which have previously been negotiated under a collective agreement must be refused by an employer. This may have particular significance in workplaces where collectives govern the work of a large number of employees, and separate advice should be sought in any particular situation in which the working arrangements under a collective may be varied.
An employer must deal with a request in a reasonable manner, and only refuse a request if it cannot be accommodated on the basis of the grounds mentioned above. There is no specific requirement for a refusal to be in writing – but best practice would require an employer to do so (especially if the employee is dissatisfied with the decision, and seeks to raise an employment problem). Again, the Department of Labour has a basic template refusal form.
An employee has the right to refer a refusal to a Labour Inspector in the first instance and, if dissatisfied, to the Mediation Service. A final right of appeal can be made to the Employment Relations Authority, which has the power to impose a penalty up to a maximum of $2,000 where an employer does not follow the appropriate processes described above when dealing with a request.
Regardless, the Authority has no power to require an employer to implement the employee's proposed working arrangements. In other words, employees are unable to challenge the substantive grounds relied on by an employer to decline a request.
This part of the Act will be reviewed after two years and employers will have the opportunity to provide feedback on this new legislation.
For further information, please contact your usual Bell Gully adviser or:
Auckland
Rob Towner
Partner
Clare Abaffy
Solicitor
Deborah Doak
Senior Legal Assistant
Wellington
Andrew Scott-Howman
Partner
Maria Berryman
Senior Associate
Matt McGoldrick
Solicitor
Disclaimer
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
