What legal provisions cover flexible work in NZ?

Failure to respond to a request for flexible working could mean a penalty of up to $2,000

BY Rachel Ranosa 20 Nov 2019

Workers in New Zealand who have flexible work hours are more likely to report greater job satisfaction and work-life balance than those who don’t, according to a survey by Stats NZ.

Flexible working can take on many forms: more than 50% of Kiwis, for instance, are able to begin and end their shift at different times every day while a third are allowed to work remotely.

No matter the arrangement, however, employers need to understand some of the basic legal provisions that govern flexible work options.

In 2015, changes to the Employment Relations Act placed the onus on employers to accommodate requests for flexible work arrangements more freely. These amendments include:

Enabling employees to make a request starting from their first day on the job
Removing the cap on the number of requests made throughout the year
Requiring employers to respond to the request, in writing, within a month

Employees have a right to request modifying not only where and when they work but also how. This means companies and their staff will have to coordinate closely regarding how best to support the business while considering the workers’ needs.

According to Employment New Zealand, workers may ask to render flexible hours either temporarily or permanently and for any reason, such as having to care for family members, volunteering in the community, or pursuing personal development or side projects.

Employers have a “duty to consider” such requests but may also refuse them if there is a compelling reason to decline. In case of refusal, the company will have to state explicitly why or how such request cannot be granted.

The Ministry of Business, Innovation and Employment outlines the following reasons for an employer to refuse the request:

The employer is unable to redistribute or reassign the workload to other employees
The employer is unable to hire additional workers
The arrangement will negatively affect work quality
The arrangement will negatively affect performance
The arrangement will negatively affect the company’s ability to meet customer demands
The workload is too minimal
The company is planning structural changes
The company will incur additional costs

Flexible work arrangements can help ensure companies retain their talent and respond to changes in the labour market more efficiently, Employment New Zealand suggests.

Employers need to keep pace with the changes. Failure to comply with flexible working provisions in the Employment Relations Act could mean a penalty of up to $2,000 as recompense to the employee making the request.

Are you eager to learn more about your legal obligations in managing a flexible and digital workforce? Sign up for HRD’s Employment Law Masterclass Auckland today.