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employment

Flexible working arrangements: Employee rights to ask

Key Takeaway

Employees in New Zealand have a legal right to request flexible working arrangements from their employer. The Employment Relations Act 2000 outlines the process, requiring requests to be in writing and employers to respond within a specified timeframe, considering certain grounds for refusal. Disputes can be referred to mediation.

Flexible Working Arrangements: Employee Rights to Ask

In New Zealand, employees have a statutory right to request flexible working arrangements from their employers. This right is primarily governed by the Employment Relations Act 2000. The purpose of these provisions is to promote the ability of employees and employers to agree on working arrangements that work for them [Source: Employment Relations Act 2000, s 69AAA].

What are Flexible Working Arrangements?

A flexible working arrangement refers to a working pattern that differs from the employee's existing pattern of work [Source: Employment Relations Act 2000, s 69AAB]. This can include changes to:

  • The hours of work (e.g., part-time work, compressed hours).
  • The days of work (e.g., fewer days, different days).
  • The place of work (e.g., working from home).

Employee's Right to Request Flexible Working

An employee is entitled to make a request for a flexible working arrangement once they have been continuously employed by their employer for at least 6 months [Source: Employment Relations Act 2000, s 69AAC(1)]. An employee can only make 1 request for a flexible working arrangement in any 12-month period, unless their employer agrees to consider more frequent requests [Source: Employment Relations Act 2000, s 69AAC(2)].

Making a Request

An employee who wishes to make a request for a flexible working arrangement must do so in writing. The written request must:

  • State that the request is made under section 69AAD of the Employment Relations Act 2000 [Source: Employment Relations Act 2000, s 69AAD(2)(a)].
  • Specify the flexible working arrangement requested [Source: Employment Relations Act 2000, s 69AAD(2)(b)].
  • Explain what changes, if any, the employee considers may be needed to the employer's working arrangements as a consequence of the new working arrangement [Source: Employment Relations Act 2000, s 69AAD(2)(c)].
  • State whether the employee has previously made a request for a flexible working arrangement to the employer, and if so, when that request was made [Source: Employment Relations Act 2000, s 69AAD(2)(d)].

Employer's Obligations When Receiving a Request

Upon receiving a written request for a flexible working arrangement, an employer has specific obligations:

  1. Response Timeframe: The employer must respond to the employee's request as soon as possible, but no later than 1 month after receiving it [Source: Employment Relations Act 2000, s 69AAE(1)(a)].
  2. Written Response: The response must be in writing [Source: Employment Relations Act 2000, s 69AAE(1)(b)].
  3. Acceptance or Refusal: The employer must either agree to the request (which may include agreeing to a modified version of the request) or refuse the request [Source: Employment Relations Act 2000, s 69AAE(1)(c)].
  4. Reason for Refusal: If the employer refuses the request, the response must state the grounds for the refusal [Source: Employment Relations Act 2000, s 69AAE(2)(a)].

Both parties must deal with a request for a flexible working arrangement in good faith [Source: Employment Relations Act 2000, s 69AAG]. Good faith is a fundamental principle of employment relations in New Zealand, requiring parties to be active and constructive in their relationship, honest, open, and not to mislead each other [Source: Employment Relations Act 2000, s 4].

Grounds for Refusal

An employer may only refuse a request for a flexible working arrangement on specific grounds. These grounds relate to the employer's business and include:

  • The inability to reorganise work among existing staff [Source: Employment Relations Act 2000, s 69AAF(a)].
  • The inability to recruit additional staff [Source: Employment Relations Act 2000, s 69AAF(b)].
  • A detrimental impact on quality [Source: Employment Relations Act 2000, s 69AAF(c)].
  • A detrimental impact on performance [Source: Employment Relations Act 2000, s 69AAF(d)].
  • A detrimental effect on the ability to meet customer demand [Source: Employment Relations Act 2000, s 69AAF(e)].
  • Planned structural changes [Source: Employment Relations Act 2000, s 69AAF(f)].
  • A detrimental impact on other aspects of the business, such as efficiency or safety [Source: Employment Relations Act 2000, s 69AAF(g)].
  • Insufficient work for the periods the employee proposes to work [Source: Employment Relations Act 2000, s 69AAF(h)].
  • A burden of additional costs [Source: Employment Relations Act 2000, s 69AAF(i)].

Dispute Resolution

If a dispute arises concerning a request for a flexible working arrangement, either the employee or the employer may refer the matter to mediation [Source: Employment Relations Act 2000, s 69AAH(1)]. Mediation is a process where an independent third party (a mediator) helps the parties to a dispute to communicate and negotiate in order to reach a mutually acceptable resolution [Source: Employment Relations Act 2000, s 136]. If the dispute remains unresolved after mediation, it can then be referred to the Employment Relations Authority (ERA) [Source: Employment Relations Act 2000, s 69AAH(2)]. The ERA is an independent body that investigates and determines employment relationship problems [Source: Employment Relations Act 2000, s 159].

When to Seek Independent Legal Advice

Individuals seeking to understand their specific rights and obligations regarding flexible working arrangements or experiencing an employment dispute should consider seeking independent legal advice. Information and assistance can be obtained from official bodies such as Employment New Zealand, and free advice is available from Community Law Centres.

Key Resources