Flexibility rewards employers

25 Jul 2013
Author: Andrea Twaddle

Despite a number of controversial aspects to the Employment Relations Amendment Bill being considered by Parliament at present, amendments to the provisions around flexible working arrangements have been relatively well received by employee advocates.

The Bill proposes to amend the provisions around flexible working, by allowing any employee to request flexible working arrangements. At present, the Act only confers eligibility on employees with caring responsibilities. Amendments also cover matters such as when and how often an employee may request flexible working arrangements and the deadline for an employer’s decision.

As the law stands, employees who are responsible for the care of any person may request flexible working hours. A request can be made once a year. Employers are not obligated to agree to a request and the grounds upon which an employer may refuse flexible working requests confer a relatively wide discretion on employers.

Flexible working arrangements may include flexible working hours, days of work and locations or methods. Requests must be made in writing, stating the request is made under the flexible working arrangements part of the Employment Relations Act. Requests must include specific information about the type of arrangements sought.

Employers have an obligation to deal with a request as soon as possible, but no later than three months after receiving it. (Sensibly, the Bill proposes to reduce this timeframe to one month). The employer must notify the employee whether the request has been approved or refused and if refused, the reasons why. Grounds for refusal include: an inability for the employer to accommodate the request because of an inability to reorganise work among existing staff; detrimental impact on quality or performance; the burden of additional costs; or a detrimental effect on ability to meet customer demand.

Rather than dismissing a request out of hand, employers are wise to meet with an employer to discuss the request in more detail. This may result in a compromised arrangement being reached. Even where a request is ultimately declined, a discussion of this nature can demonstrate to an employee that the request was considered in good faith and can be beneficial to maintaining a productive working relationship.

Technology and communication systems are available which enable remote working arrangements. This is more likely to be appropriate for knowledge based and client focused roles. Employers that have properly implemented flexible working arrangements point to a number of benefits, such as:

  • Improving the recruitment and retention of talented staff, without limiting the available pool of employees because of the need to follow a traditional 9 to 5 office-based working model;
  • Improving productivity and efficiency, by employees working during their most productive hours;
  • Increasing job satisfaction and staff loyalty;
  • Maintaining and retaining institutional knowledge;
  • Reducing lost time by commuting and travel;
  • Reducing overheads, such as the office space required.

Creating a workplace culture and open communication that support flexible working, ensures that there is give and take and the arrangements work for both parties to the employment relationship. Employers are wise to trial flexible arrangements for a period of time, thereby enabling any teething problems to be worked out upon review, or reverting to previous terms in the event the trial arrangements are unsuccessful.

In reality, employees and employers have always been able to discuss the option of flexible working arrangements. Good faith obligations on employers necessitate a requirement on employers to consider and respond to any proposal. The amendments merely provide a statutory right to request flexibility, although there is no statutory right to provide it. Many employers have already embraced the benefits of flexible working arrangements for all employees, not simply those with caring responsibilities. These employers are likely to enjoy a competitive advantage, given the long term benefits that can accompany flexible working arrangements and engaged staff.

This article was first published in the Waikato Times, 22 July 2013.

Flexibility rewards employers
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a member of the national Law Society Employment Law Reform Committee, a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a sought-after commentator and speaker on employment law issues at client and industry seminars. She provides specialist, strategic advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz