Barbara Buckett and Associates Barristors and Solicitors

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august 2007

Employment Relations (Flexible Working Hours) Amendment Bill

The purpose of this bill is to amend the Employment Relations Act 2000 to allow certain employees to seek a change to their working hours. Unions have hailed the bill as an excellent step towards building a culture that recognises workers' responsibilities outside of the workplace. On the other hand employer groups are critical of the bill and say if passed into law ludicrous outcomes will result.

what could employees seek?

An employee could seek part-time or flexible work hours, changes to the days on when work is undertaken and working from another place of work, including from home.

Who could seek flexible work arrangements?

To qualify an employee must have been employed for six months immediately before their request; and (a) on average worked for not less than ten hours a week; and (b) for not less than one hour a week or 40 hours a month. An eligible employee must also have a dependent child under 5 years, a disabled child as defined by s39A of the Social Security Act 1964 or a dependent relative.

what would an employee have to include in their application?

Eligible employees will need to make a request in writing, setting out:

their name; and
the change applied for, the duration of the change, and the date on which it is proposed; and
the proposed effective date of the variation; and
how the proposed variation will allow the employee to provide better care for their child or dependent relative; and
what effect, if any, the employee thinks making the change applied for would have on his or her employer and how, in the employee's opinion, any such effect might be dealt with.

Employers will have a duty to seriously consider any such request and to make a formal business assessment of how such flexible working arrangements could be achieved. If a request is turned down, employers will need to demonstrate, if challenged, that a clear business case exists for rejecting the request. The bill sets out the reasons which would justify rejecting a request. These include:

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
undermining the terms of a collective agreement where the work done by the employee making the request comes within the coverage clause of the collective agreement.

what challenges could an employee make?

A Labour Inspector may be asked to provide assistance to an employee seeking flexible work arrangements. In an employer rejects the proposed variation the employee may seek mediation. If mediation does not resolve the matter the employee may refer the matter to the Employment Relations Authority for determination.

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