Asking to work flexibly in NZ

The right to ask

You have the right to ask your employer to change when, where or how you work. It sits in Part 6AA of the Employment Relations Act 2000, and Employment New Zealand sets out how it runs on its flexible working pages.

• Any employee can ask, from the first day of the job. There is no qualifying period and no six month wait.
• You can ask for any reason. You do not have to be caring for someone, and you do not have to explain your private life to get an answer.
• There is no limit on how many times you can ask. A no in March does not use up your right to ask again in September.
• You can ask for a permanent change or for a set period, and the change can be a small one.

That has been the law since 6 March 2015, when the Employment Relations Amendment Act 2014 widened the right. Before that you needed six months of service and a caring responsibility, and you could ask once in a year. If you have been told any of that, you have been told the old rules.

Be clear about what the right actually is. It is a right to ask, and to get a proper written answer inside a set time, on grounds the Act lists. It is not a right to get the change. Your employer can say no. It has to say no properly.

If you are affected by family violence there is a separate and faster route, under Part 6AB of the same Act: a short term change of up to 2 months, with an answer due in 10 working days. Leave entitlements in New Zealand covers that one.

What your request must say

A request under Part 6AA has to be in writing, and the Act says what goes in it. Employment New Zealand lists the required items:

• Your name, and the date you are making the request.
• A line saying the request is made under Part 6AA of the Employment Relations Act 2000. Use those words.
• The change you want: the hours, the days, the place of work, or all three, set out precisely.
• Whether the change is permanent or for a period, and if it is for a period, the start and end dates.
• The date you want it to take effect.
• What changes, if any, your employer may need to make if it says yes, as you see them.

That last item is the one people skip, and it is the one that does the work. It is your chance to answer the cost question and the coverage question before anyone asks them out loud.

An incomplete request may not count as a Part 6AA request at all, which means the clock never starts and your employer is not obliged to deal with it. Run down the list before you send. Put it all in one email, or one attached letter, rather than spread across a chat thread, so there is a single dated document.

Ask in writing even when you have already had a friendly conversation about it. The conversation gets you the answer. The letter gets you the deadline.

How long your employer has to answer

Your employer must deal with your request as soon as possible, and no later than 1 month after receiving it (Employment New Zealand: responding to a flexible working request). The answer must be in writing, and the request must be considered in good faith, a duty that runs through the whole Employment Relations Act 2000.

There are only two answers:

• Yes, in which case the change is a variation to your employment agreement. More on recording it below.
• No, in which case the letter must state which of the grounds in the Act applies, and explain the reasons for that ground. "Not at this time" on its own does not meet the Act.

The month can be extended if you both agree to trial the arrangement first. That is worth knowing, because it turns a permanent yes or no into something a nervous manager can actually agree to.

Three things to do on the day you send it:

• Put the date one month out in your calendar, with the words "answer due".
• If your employer comes back asking for detail, answer quickly and in writing. Delay from your side is the easiest way to lose the thread.
• If the month passes with nothing, write again, politely, and say the month has passed. Most of the time it is an oversight rather than a refusal, and naming it fixes it.

The grounds they can refuse on

The Act lists the grounds for refusing, and the list is closed. Employment New Zealand sets them out as follows.

A refusal is also lawful where the change would be inconsistent with a collective agreement that applies to you.

What is not on the list matters as much as what is. "We want everyone in the office" is not a ground. "It would not be fair on the others" is not a ground. "The policy says no" is not one either: a workplace policy cannot shrink a right given by the Act. If the letter you get back does not name a ground from this list and explain why it applies to your request, the process has not been followed.

If you are turned down

Start by reading the letter properly. It must name the ground and explain the reasons for it. If it does neither, that is the thing you raise.

You can challenge the process, not the business judgement. Employment New Zealand is explicit: you cannot complain simply because your employer declined, or because you disagree with the reasons given. What you can pursue is a failure to follow the process, such as no answer inside the month, no ground named, or no reasons given for the ground.

The route, in order:

• Raise it with your employer first, in good faith. Ask for a meeting. Ask which ground was used, what would have to be different for the answer to change, and whether they would trial it instead. Most of these end here, and they end better.
• A Labour Inspector. Unlike a personal grievance, a flexible working complaint goes first to a Labour Inspector to try to resolve it. Employment New Zealand is on 0800 20 90 20.
• Mediation, free through Employment New Zealand, if the Inspector cannot settle it.
• The Employment Relations Authority, which can order a penalty of up to $2,000, paid to you, where your employer did not give the information the Act requires.

There is a time limit. Employment New Zealand puts it at 12 months from the date you were told of the refusal, so do not sit on it. Write down what happened and when, while you still remember the detail: dates, who said what, which ground was named.

How to make a yes more likely

The Act gives you the deadline. Everything after that is persuasion, and the shape of a successful request is fairly consistent.

• Propose a trial. Three months, with a review date and an agreed way to judge it. A manager who is nervous can say yes to a trial when they cannot say yes to forever, and the Act lets the one month deadline be extended by agreement so a trial can run.
• Answer the cost question before it is asked. If the answer is nothing, say so and show your working. If there is a cost, name it and say how it is covered.
• Answer the coverage question too. Who picks up the Friday phone. Which hours you are reachable. How a handover works. What happens when somebody else is away.
• Put the team first, not yourself. "I would like Wednesdays at home" is a preference. "Wednesdays at home means the reporting run gets done without interruptions, and I will still be on the 9am call" is a proposal.
• Be specific. Exact days, exact hours, exact start date. A vague request is easy to decline and hard to refuse properly.
• Name what does not change. Deadlines, on call, the meetings you will still attend, the response time you will hold to.
• Pick your timing. Not in the middle of a restructure, which is a listed ground for refusing. Not in the busiest fortnight of the year.
• Ask for the smallest change that solves your problem. Two days is easier to grant than five, and two days granted is a precedent you can build on later.

Changes worth asking for

Working from home is only one of them, and it is the one most likely to run into a listed ground. The Act covers hours, days and place of work, so the field is wider than most people use.

• A compressed week. The same hours in fewer, longer days. It costs your employer nothing in hours, which often makes it the easiest yes on this list.
• Staggered hours. Start and finish an hour or two earlier or later. Useful for a school run, a commute or a health condition, and usually invisible to customers.
• Reduced hours, or part time. Your pay drops with your hours, and so does your employer's KiwiSaver contribution, because it is a percentage of your pay. Work the whole number out before you ask, not after.
• Term time working. You work during school terms and not in the holidays, with pay either following the hours or averaged across the year. Ask which, in writing, before you agree.
• A job share. Two people, one role. Much stronger if you bring the other person and a proposed split with you.
• A different site, if your employer has more than one, or a hybrid split that names the days rather than leaving them to the week.

Two things do not shrink when your hours do. Under the Holidays Act 2003 you still get 10 days of paid sick leave a year once you qualify at six months, whether you are full time or part time, and you still get 4 weeks of annual holidays: what changes is what a week means. Leave entitlements in New Zealand has the detail.

Put it in your employment agreement

A flexible arrangement your employer approves is a variation to your employment agreement, not a favour. Treat it that way from the first day, because the person who approved it may not be there in two years.

Ask for a short signed variation, and check that it says:

• The new hours, days and place of work, in numbers and days of the week, not in adjectives.
• The date it starts, and whether it is permanent or runs to a date.
• What happens to your pay, and to anything calculated from it.
• How either of you can change it back: what notice, and after what conversation.
• The review date, if it is a trial, and what happens by default if nobody does anything on that date.

Watch for a line that lets your employer withdraw the arrangement at any time, for any reason, with no notice. That turns a variation back into a favour. If it is there, ask for notice and a reason instead. You are asking for something reasonable, and you can say so in those words.

An email confirming the arrangement is far better than nothing, and it is evidence. A signed variation is better again, because a new manager will read the agreement rather than the thread. Keep both, with their dates, somewhere that belongs to you rather than on a work drive you lose access to on your last day. NZ job offers and employment agreements covers what else should be in there.