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Flexible Working- What's New?

31 October 2015

Changes to the Employment Relations Act 2000 (ERA) relating to flexible working arrangements came into force earlier this year.  These changes were aimed at improving participation in the labour market and modernising the ERA so it better reflects modern lifestyles.  Although many employers and employees manage flexible working arrangements on a relatively informal basis, it is important to be aware of the statutory framework.

Previous criteria

The statutory right for an employee to make a flexible working request under Part 6AA of the ERA was created in 2008.  Under these provisions the employee had to have been employed by the employer for the immediately preceding 6 months.  The employee also had to have care-giving responsibilities for another person.

The employee’s request had to be in writing and it had to specify what changes were sought and whether or not these were to be permanent or for a defined period of time.  It also had to explain what changes (if any) the employee anticipated that the employer would need to make to accommodate the employee’s request if it was to be approved.  In addition, the employee could only apply once every 12 months.

New criteria

The changes introduced this year have made it much easier for employees to make flexible working requests.  An employee no longer has to have been employed by the employer for 6 months and can now make a request at any time.  The employee also no longer has to wait 12 months between applications. In addition, the employee requesting flexible working does not have to have care of another person.  Furthermore, the requirement on the employee to set out in writing the impact of their request on the workplace has also been lifted.

Therefore, an employee can now apply for a change in working arrangements at any time, as often as they like and for whatever purpose.

What are the employer’s obligations?

The employer must now deal with the request as soon as possible and within one month of receipt.  Previously the employer had three months to respond.  The employer’s response must notify the employee in writing whether request has been approved or refused.

If the request is refused, the employer has certain statutory hoops to jump through.  In the written notification of refusal, the employer must state that the request is refused because of a ground specified in section 69AAF(2) or (3), state the ground for refusal and also explain the reasons for that ground.  These requirements have not changed.

It is worth knowing that if an employer fails to handle flexible working requests appropriately and in accordance with the statutory requirements, they can be fined up to $2,000 paid directly to the employee.

The changes in this area have loosened up the requirements for employees making a request for flexible working.  Aside from tightening the time within which an employer has to respond, little else has changed in respect of the employer’s obligations.  It is now much easier for an employee to use the provisions of the ERA to alter their working arrangements.

This article is intended to provide a general guide on this topic.  Legal advice should be sought about your specific circumstances.

 

Carolyn Gardner is a Senior Solicitor in the Employment team at Norris Ward McKinnon. Contact Carolyn at carolyn.gardner@nwm.co.nz

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