FLEXIBLE WORKING ARRANGEMENTS: A GUIDE FOR EMPLOYEES AND EMPLOYERS

What’s it all about?

From 1 July 2008, employees who have caring responsibilities will have the statutory “right to request” flexible working arrangements.

This guide explains how the “right to request” under Part 6AA of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 works.

To qualify employees must:

• Have care of another person
• Have been employed by their employer for 6 months or more
• Not have made another request, under Part 6AA, to work flexibly during the past 12 months.

“Right to request” and “duty to consider”

Employers have a “duty to consider” seriously any requests from their employees. 

Part 6AA provides certain employees with the “right to request” flexible working arrangements and employers have “a duty to consider” any requests made under this right.

So, employers have a legal obligation to consider an employee’s request carefully.

Start your Request early

Employers must consider and respond to a request within 3 months of receiving it. Consideration may take longer if complications arise.

This is designed to ensure that employers have sufficient time to assess the impact of the request on their business.

It also means that employees requesting flexible working arrangements need to plan in advance.

So talk to your employer as early as possible so that you can both explore what opportunities might be available well ahead of the proposed start date for your flexible working arrangement.

How we can all benefit

You may already be familiar with flexible working arrangements.
These can be agreed between employers and employees either informally, perhaps through a workplace policy, or by seeking a variation to individual terms and conditions of employment under Part 6 of the Employment Relations Act 2000.

Many employers have already adopted flexible working arrangements because they see them as making good business sense. They can help:

• retain skilled staff and reduce recruitment costs
• raise staff morale and decrease absenteeism
• meet labour market changes more effectively.

For employees, the opportunity to work flexibly can help them strike a better balance between their paid work and other responsibilities.

Flexible working arrangements benefit everyone— employers, employees, and their families. 

MAKING A Request

Under what circumstances can I make a request?

An employee can make a request for flexible working arrangements under Part 6AA only in order to help with the care of another person.

This may cover a range of circumstances. For example, it may allow the employee to:

• spend more time with their children
• provide care when professional care is unavailable. 

Who can make requests under Part 6AA?

Any employee who has the care of another person.
The Act does not define “care” or require a particular level of care. It can include but is not limited to, caring for:

• children (either your own or others)
•  adults (e.g. elderly parents or others)
•  whanau or ainga
•  friends
•  neighbours.

You do not need to be related to those you care for or live in the same place.

Which workers are covered?

Employees who have worked for their employer for 6 months or longer.

How often can a request be made?

You can make only one request under part 6AA every 12 months.
It makes no difference if a previous request was made in relation to a different caring responsibility.

The 12 month period runs from the date when the first application was made.

But remember, you can talk to your employer at any time about informally varying your terms and conditions of employment.

Will employers ask for evidence or proof of the caring responsibilities?

It is always helpful and good practice to provide employer’s with as much information as necessary, such as evidence of a caring relationship – although this is not required by the Act.

In some circumstances an employer might wish to be satisfied that a request is being made in good faith, but there is no requirement under the legislation to ask for proof of the caring responsibility.
Employees are not required under the law to demonstrate that any particular level of care is required. For example, an employee asking for a change in hours in order to care for an elderly parent will not need to show that the parent is unable to cope alone.

Nor are employees required to demonstrate why they personally are needed to provide that care. For example, a father asking for reduced hours in order to care for his child will not be required to demonstrate why the care cannot be provided by the mother or by somebody else. 

Requests for flexible working arrangements under Part 6AA can, however, only be made for the purpose of providing care, and not for other purposes.

What impact will a successful request for flexible working arrangements have on the employer’s business?

When making your request you need to explain what changes, if any, the employer may need to make if your request is approved.
It is also a good idea to suggest how the proposed working arrangement may benefit the business.  

For example, you may argue that arriving half an hour later will have minimal impact on the business as this is the quietest time of the day and you can make up the time during the lunch period when it is far busier. 

Your employer will make the decision on whether or not your request can be granted on business grounds rather than your personal circumstances.

So your application is most likely to succeed if it shows consideration for your employer’s business needs.

Will the change of working arrangement be permanent?

Unless you specify that your request for a new working arrangement will be for a set period of time, your request will be a permanent change to your terms and conditions of employment. 

Neither the employee nor the employer has a right to revert back to the previous working arrangement unless otherwise agreed. So, for example, if your new flexible working arrangement involves working reduced hours you have no right to revert to working the hours you previously worked unless your employer agrees that you can do so.

Making a permanent change to an employment agreement is a big step and should not to be entered into lightly. 

It’s a good idea for both employee and employer to consider a trial period or a limited period of working flexibly so that any problems can be ironed out before things are put on a permanent basis. 

What kind of changes can be applied for?

There is scope to apply for a wide variety of working arrangements. Eligible employees can make a request to vary their:

• hours of work
• days of work
• place of work.

Flexible working arrangements incorporate a wide variety of working practices.

It doesn’t just mean being able to work part-time rather than full-time or being able to change shifts.

The options available are entirely up to you and your employer.
Some of the more common options are described in Definitions of Flexible Working Arrangements.

Make your request in writing

Your request must be made in writing but you can do this in whatever forms suits you best.

You can communicate with your employer by:

• Letter
• Email
• Form

What to include in your request

The clearer your request is the better its chances of success.
It’s up to you to explain the working arrangement you want and how it can be made to work for both you and your employer.
To help you along, we’ve put together two handy guides:

Request Checklist

This lists the information you’ll need to include in your request and the issues you’ll need to consider when preparing it.

How to help your employer approve your request

This lists the types of things you’ll need to include to help your employer make a decision.

Request Checklist

When first putting your request together, make sure you cover the basic points listed in the Request Checklist.

The Request Checklist covers the basics.

Now you need to build a case that both meets your needs and those of your employer. To help you complete this part of your request, we’ve prepared the following guide.

How to help your employer consider your request

Remember, in all cases, it is in your interest to be as clear and explicit as possible.

Flexible Working Arrangements: Rights and Responsibilities of Employees and Employers

WHAT TO DO WHEN YOU RECEIVE A REQUEST

“Duty to consider” a request

Employers have a legal duty to consider all requests. You should consider each request objectively and not attempt to judge whether one applicant’s need for flexible working arrangements is greater than another’s.

How should requests be acknowledged?

• It is best practice to acknowledge receipt of the request. An acknowledgement slip is included on the bottom of Form A: Request Form for flexible working arrangements. This allows you to readily confirm the date on which the request was made and can be particularly important if there has been a delay in the request reaching you.

What happens if the request is incomplete?

If an employee fails to provide all the information required, you should let the employee know what they have omitted and ask them to re-submit the request when complete. You should also inform the employee that you are not obliged to consider the request until it is complete and re-submitted.

HOW TO CONSIDER A REQUEST

Timing

Employers must deal with a request as soon as possible but no later than 3 months after they received it.

Advice on what to think about when considering a request is provided in the Factsheet for Employers.

What happens if the employer needs more time to reach a final decision?

While the 3 month time limit for dealing with a request should provide ample time for an employer to make a decision, it is possible that you may need more. In these circumstances, you should discuss this with the employee and come to an agreement about when a decision will be reached.

What if the employer is unsure about accepting a request?

Experience shows that the best way for both parties to understand each other’s position and identify a solution that meets all their needs is to discuss the request face-to-face. However, such a meeting is not required under the law.

A discussion will provide both parties with the opportunity to talk about the desired working arrangement in depth and consider how it might be accommodated. It will help if both the employer and the employee are prepared to be flexible.

If the requested working arrangement cannot be accommodated, a discussion may help identify an alternative working arrangement.

Would a trial period help?

Trial periods can help both employees and employers because they provide an opportunity, without commitment, to test a particular arrangement to see if it works out to the satisfaction of all. 

An employee may, for example, be concerned about making a permanent change to their employment agreement, while the employer might be concerned about how the proposed working arrangement may affect other staff or business operations. 
A trial period of, say, 12 weeks will give both the employee and the employer a chance to find out whether the chosen arrangement will really work out well in practice. 

How would a trial period work in practice?

Trial periods can happen in two ways.

1. Option One: Informal request  
   The employer gives informal agreement to a trial before the employee submits a formal request.
   
   After this informal trial period, employer and employee may conclude that a permanent change to the employment arrangement is not the best option.
   
   This option also allows the employee to make a formal request at a later date.
2. Option Two: Formal Request
   A formal request is made but an extension of time for the employer to make a decision is also agreed.
   
   The trial period then takes place before a final agreement is confirmed.

If the trial period works out successfully, the new working arrangement can then be confirmed by a formal agreement.
However, if this option is taken, the employee has no right under Part 6AA to make another request for 12 months.

Put it in writing

No matter how informal an arrangement is, it is always a good idea to put it in writing.

Recording the terms of the trial period in writing will ensure both employee and employer are clear about start and end dates and have an agreed understanding of other important considerations such as a reduction in the employee’s wages or salary.

Would a temporary period of working flexibly be appropriate?

A permanent change to an employment agreement may not always be the best option.

This might be the case, for example, where an employee is caring for someone who has a fluctuating condition.

In cases like this two options are available.

1. Option One: Informal agreement
   This involves an informal agreement between employer and employee – outside the framework of Part 6AA - to flexible working for a limited period or a provision to make flexible work available as and when the need arises.
   
   In this case, the employee still has the right under Part 6AA to make a formal request at a later date.
2. Option Two: Time-limited agreement
   Alternatively, the employer and employee might agree to a time-limited change after which they would revert back to the original arrangement.
   
   In this case, the employee would then have no right under Part 6AA to make another request within 12 months if he or she subsequently wanted the change to be made permanent.

Employer/Employee Checklist: How to ensure you get the most from a meeting to discuss a request

Approving a request

Employers who, after considering a request, agree with the new working arrangement, must notify the employee of their approval. You aren’t required to put this notification in writing but it would be good practice to do so—that way there will be a record of the decisions made. Form B: Flexible working arrangements request approval form can be used to confirm a new working arrangement.

The agreed new working arrangement will be a permanent change to the employee’s terms and conditions of employment, unless agreed otherwise. Where a trial period or time-limited period has been agreed this should also be detailed.

Employer Checklist  - how to action an approved request

DECLINING A REQUEST

How should a request be declined?

There will always be circumstances where, due to the needs of the business, the employer feels they are unable to accept a request. 
Employers are able to refuse a request:

• if the employee is not eligible to make a request under Part 6AA
• on one or more of the following Recognised Business Grounds.
• if it conflicts with a collective agreement.

Recognised Business Grounds are:

• 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.

Conflicts with a collective employment agreement

Employers must refuse a request if the proposed new working arrangement conflicts with the provisions of an employee’s collective employment agreement.

Situations like this could arise in a number of sectors and industries.

However, there are also likely to be instances where a compromise can be reached between the employer, the employee making the request, and other employees in the workplace.

Employers, employees and unions are encouraged to discuss these issues with a view to developing procedures for dealing with such conflicts before they arise.

Notification

Employers are required to notify the employee of their decision, and if the request is refused, to give reasons for the refusal.
You aren’t required to put your notification in writing but it is always good practice to do so.

To make the process a bit easier, we’ve developed a Request Refusal Form.

Form C: Flexible working arrangements request refusal form

How should the refusal be explained?

In addition to providing a Recognised Business Ground, the employer must include an explanation of the reasons for that ground.

Making things clear always helps. Employees will always be disappointed if their request is declined but they are more likely to accept that their request has been considered seriously if the reasons for the decision are clear.

Your explanation should include all the key facts and clearly identify why the Recognised Business Ground applies in this case. It’s good business practice and it will also help keep your staff on side.

Example of how to explain the grounds for a refusal

What to do if you suspect an employee is ineligible to make a request under Part 6AA

Employers who have reason to think that an employee is ineligible to make a request under Part 6AA, should request additional information from the employee.

Obviously, this will be something that will need to be handled sensitively as people are usually hesitant to talk about personal matters.

It is an issue, however, that will have to be broached sometimes — not the least because of the potential that exists to confuse the different provisions of the Employment Act.

Any employee can at any time and for any reason request a variation to their terms of conditions under section 63A of the Employment Relations Act.

So it is important to always clearly determine whether or not a request is being made under Part 6AA.

A request that at first may appear to fall under Part 6AA, may actually have been submitted on an entirely different and appropriate basis. So, if you have any doubts, checking the basics at the start is entirely appropriate.

However, if an employer is certain that the employee is ineligible to make a request under Part 6AA they can decline it on that basis. 

HOW TO DEAL WITH AN UNRESOLVED REQUEST

Most requests will conclude when the employer gives their decision.

But there will always be some instances where an employee feels their request has not been dealt with to their satisfaction. The employee may want to involve a third party or think about making a formal complaint. This section outlines the options available.

Informal discussion between the employee and employer

In the first instance, it is likely to be in the interest of all parties to try to resolve the problem within the workplace.

It may be that the employee believes there has been a simple misunderstanding of the procedure and that this has affected the employer’s decision.

If the employee feels able to discuss a complaint with the manager, it may be possible to resolve the issue without the need to resort to more formal mechanisms. Where a time limit has not been met, for example, it may be far more effective to speak to the manager directly. In this case, letting management know that they need to reply as soon as possible due to their breach, rather than seeking to pursue the matter through the formal dispute resolution process, would be the best option for everyone.

Third party assistance

Despite the best efforts of both parties, there will be cases where it may not be possible to resolve a disputed request in the workplace. However, neither the employee nor the employer may want to use the formal dispute resolution process. Both may want to try to resolve the matter in an informal fashion. In such circumstances, either party can seek assistance from the Department of Labour.

In specific circumstances, employees may make a formal complaint first to a Labour Inspector and then possibly the Mediation Service and the Employment Relations Authority.

Another external third party may also be appropriate, for example, a union representative, a local business representative body or another person with appropriate expertise.

The third party may attempt to resolve the problem through discussion. They will talk through the issues surrounding the problem, outline the law relating to the case where necessary and generally help parties become aware of the options open to them.

In what circumstances can a formal complaint be made?

Employees can make a formal complaint only where they believe the employer has made a wrong determination about their eligibility and/or if the employer has failed to comply with the process set out in Part 6AA.

If an employee believes that his or her employer has not complied with the process set out in the law, they can refer the non-compliance to the Department of Labour. The Department, through a Labour Inspector, must assist the employee and employer to resolve the matter to the extent practicable in the circumstances. If after working with a Labour Inspector, the matter remains unresolved, the employee may request mediation.

If mediation does not resolve the matter, the employee may apply to the Employment Relations Authority. A matter may be taken to the Authority if, for example, the reason for refusal given by the employer is not one of the Recognised Business Grounds (as this would be noncompliance with the required process).

Employees, however, have no right to make a complaint where they simply disagree with the grounds provided by the employer for refusing a request. The Authority does not have the power to question the employer’s reasons for declining a request nor can it consider whether or not the employer acted fairly or reasonably.

As a matter of good practice, employers should always provide an explanation that is as full and open as possible.

Time limits

Employees must apply to the Authority:

• within 12 months of the employer’s refusal of the request
• or where the request is not responded to, up to 15 months after the employer received the request.

Remedies and compensation

If the Authority determines that the employer has wrongly determined that an employee is ineligible, the employer must follow the process to consider the request as soon as practicable.
If the Authority determines that the employer has not complied with the process as set out in the law, it can impose a penalty of $2000 payable by the employer to the employee concerned.
The Authority cannot require the employer to accept and implement the requested working arrangement.

What is a labour inspector/mediation/the Employment Relations Authority?

For information on the range of services and institutions available to support good employment relations, visit: www.ers.govt.nz.

How the “right to request” interacts with other legislation
The “right to request” is one way for employers and employees to find flexible working arrangements that suit them both. Failure to follow the process will provide the employee with a basis to take their case to mediation or the Employment Relations Authority.
Other legislation that employers should be aware of when considering requests for flexible work includes the Health and Safety in Employment Act 1992 and the Holidays Act 2003. For information about these Acts, visit: www.ers.govt.nz