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Flexible Work Arrangements For You, The Employer

By Jennifer Mills, Partner, and Anne Shirley, Senior Solicitor, at Minter Ellison Rudd Watts

A recent ‘Ask the Expert’ article looked at the issue of flexible working arrangements from an employee’s perspective.  However, women may not only wish to request such arrangements – they may also, as managers or employers, find themselves having to respond to respond to these requests.

We turned to Jennifer Mills, Partner at leading law firm Minter Ellison Rudd Watts and head of their Employment Law team in Auckland, and Anne Shirley, Senior Solicitor at Minter Ellison Rudd Watts for advice on dealing with requests for flexible working arrangements from an employers perspective.

Flexible working arrangements are undoubtedly becoming more common in workplaces.  Indeed, in the age of laptops, iPhones and wireless internet, it is perhaps surprising that the 9 to 5 office workday is still so prevalent.

Not the ‘Tried and True’

One of the reasons that this continues to be the case is that employers and managers are often reluctant to agree to different, non-traditional, arrangements.  This may in part be due to the fact that, particularly in the current economic environment, employers are hesitant to depart from ‘tried and true’ arrangements, or maybe it is difficult for employers to shake that old-fashioned belief that ‘bums on seats’ equals productivity.

Benefits for Employers

In fact, the exact opposite can be true.  When properly implemented, flexible working arrangements can have great benefits for employers such as:

  • improving productivity and efficiency (for example, if employees are able to work during their most productive hours);
  • lowering staff turnover and recruitment costs;
  • increasing staff loyalty;
  • maintaining and retaining corporate knowledge;
  • avoiding lost time commuting during peak hours (for example, if the employee is working from home);
  • increasing the geographically available labour pool, as well as giving employers access to employees with a broader range of knowledge, skills and experience; and/or
  • reducing overheads, such as by reducing how much office space is needed.

Requesting Flexible Work Arrangements

Essentially, employees and employers have always been able to raise the option of flexible working arrangements at any time.  The general duty of good faith that applies to all employment relationships requires the parties to be ‘responsive and communicative’.  This means that employers must consider any request they receive in good faith and respond to it.

However, in 2008, the Employment Relations (Flexible Working Arrangements) Amendment Act came into force, giving employees the ability to submit a formal request for flexible working arrangements and placing an obligation on employers to respond to that request.  The purpose of the amendment is to encourage employees and employers to consider and implement flexible working arrangements and, in particular, to assist employees to better care for their children or any other person to whom they provide care.

Who, What, How

Flexible working arrangements might include flexible working hours, flexible days of work, flexible working locations or methods, sabbaticals or job rotation.  Any employee who has been employed for six months and has the care of any person may make a request (provided they haven’t already made a request in the last six months).  The request must be in writing and state that it is a request under the flexible working arrangements part of the Employment Relations Act.  It must also include specific information about the type of flexible working arrangement the employee seeks.

Employers’ Obligations

So what are employers’ obligations when receiving a request for flexible working arrangements?  Employers must:

  • deal with a request as soon as possible, but not later than 3 months after receiving it;
  • notify the employee whether his or her request has been approved or refused;
  • if the request is refused, notify the employee that the request is refused because:
  1. the employee is not eligible to make a request; or
  2. because the request cannot be accommodated on one or more of the following grounds:
  • inability to reorganise work among existing staff;
  • inability to recruit additional staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • insufficiency of work during the periods the employee proposes to work;
  • planned structural changes;
  • burden of additional costs;
  • detrimental effect on ability to meet customer demand; and
  1. provide an explanation of the reasons for that ground.

The grounds for refusing a flexible working request are broad enough so that employers are unlikely to ever be forced into agreeing flexible working arrangements.  Certainly, when considering a request it will be important to consider what impact the requested arrangement is likely to have on the business in practice (and the grounds for refusing a request noted above can be used as a good checklist of factors to consider).

Finding Solutions

However, employers would be wise not to be too quick to dismiss a request out of hand.  If an employer has concerns about a flexible working request, it is often a useful step to meet with the employee to discuss his or her request in more detail, and to explore whether some form of compromise could be reached.  For example, an employer might not be able to accommodate a permanent change in working arrangements (particularly where the arrangements are untested/unproven), but a temporary change, or trial of the arrangement, might be a possibility.  Even if the employee’s request is ultimately declined, a discussion of this type can demonstrate to the employee that the issue was properly considered and can help to preserve a good working relationship.

Flexibility – A Growth Area

In any event, the issue of flexible working arrangements looks set to become of increasing importance in the workplace.  More and more employees seem to be looking for greater balance in their lives and according to the Department of Labour 43% of employees in New Zealand care for another person (whether a child or an elderly relative).  As such, employers who seriously turn their minds to how they can use flexible working arrangements in their businesses are likely to be employers of choice in the next decade.  They are also likely to have a competitive advantage, given the long-term benefits that flexible working arrangements can bring.

Acknowledgement

Minter Ellison Rudd Watt’s Employment Team has extensive experience in all matters relating to employment law, including industrial relations, human resource management, corporate governance and dispute resolution. They provide practical advice to clients regarding all areas of employment legislation such as parental leave, KiwiSaver and flexible working arrangements. They also develop and regularly conduct, training courses for employers and line managers on the practical application of employment legislation.

Jennifer Mills leads Minter Ellison’s Auckland employment practice. Jennifer is an extremely well regarded employment law expert who has acted for a large number of national and international companies and Jennifer was recently recognised as a leading individual in Chambers Global. Jennifer and the team advise clients on the full range of employment issues including corporate restructuring, employment agreements, disciplinary and termination procedures, ACC, privacy, restraints of trade, industrial action (including strikes and lockouts), health and safety (including workplace stress), good faith, collective bargaining issues and superannuation.

For more information and to go on the team’s employment update mailing list, please contact Jennifer Mills or her secretary on 09 353 9885.

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