Requests from employees for flexible working hours

Employers should brace themselves for the extra statutory obligations the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (the "Act") brings when it comes into effect on 1 July 2008.


What it does

The Act allows employees who provide care for another person (regardless of their age and whether or not they are related to the employee) the right to request flexible working arrangements in the form of a variation to the hours, days and/or place of their work. Employers wanting to discuss urgent work matters with their employees may now have to set up meetings in advance as job sharing, part-time work or reduced hours, flexible starting and finishing times, compressed working weeks or working from home arrangements become a reality at the workplace.

Who qualifies?

After six-months in the job, employees who provide care for another person will qualify to make such a request. However, they are only entitled to make a request once every 12 months.

The request

A request by an employee will need to be in writing and should state:

  • the employee's name
  • the date the request is made
  • that the request is made under Part 6AA of the Employment Relations Act 2000 (the principal Act which is amended as a result of the passing of this Act)
  • the variation of the working arrangements requested
  • whether the variation proposed is to be temporary or permanent
  • when the variation proposed is to begin, and, if it is temporary, the end date
  • how, in the employee's view, the variation will help the employee provide better care for the person concerned, and
  • what changes in the employee's view the employer will have to made to accommodate the request.

Employer's duty

Upon receiving a request, employers have a duty to act as soon as possible (and within three months) to assess the request and to notify the employee whether the employee's request has been approved or refused. The employer's right to refuse a request is limited to the following grounds:

  • the employee's ineligibility to make a request
  • inability of the employer to reorganise work among existing statff
  • inability of the employer 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
  • the burden of additional costs, and/or
  • detrimental effect on ability to meet customer demand.

Give them a reason

Employers should never merely say "No" to a request. They must notify the grounds for the decision and provide an explanation as to why that ground has been relied on. If this process is not strictly followed, disgruntled employees may refer the matter to a Labour Inspector who must (to the extent practicable in the circumstances) assist the employee and employer to resolve the matter. If the employee is still dissatisfied with the result, the employee may refer the matter to mediation before applying to the Employment Relations Authority. If the employer's decision is not acceptable, the employer may be liable to a penalty not exceeding $2,000 (payable to the employee).

The Act clearly further curbs employers' rights to manage their businesses as and how they please. It will be cold comfort for many employers to discover that the Act will not be reviewed until two years after its commencement.

 

The content of this document is necessarily general and readers should seek specific advice on particular matters and not rely solely on this document.
If you would like further information on any of the topics in this document, please contact the writer or your usual Auld Brewer Mazengarb & McEwen adviser.
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