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 again 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.
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:
- the employee is not eligible to make a request; or
- 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
3. 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
3539885.