Employment Law
Flex work

After more than two years of Covid-19 lockdowns, alert level changes and the traffic light system, for many workplaces the mindset of 9-5 Monday to Friday at the workplace is shifting. Additionally, with borders re-opening and Kiwis heading off overseas, employers are having to work harder to retain and recruit skilled employees.

The above has resulted in an increase in pressure for employers to offer flexible work arrangements for employees. However these arrangements come with the added complication of ensuring compliance with legislation including the Holidays Act and the flexible working requirements under the Employment Relations Act.

‘Flexible working’ is a defined term used in the Employment Relations Act to describe individualised, permanent variations to an employee’s working conditions. It does not provide for blanket staff arrangements or benefits, nor does it allow employers to maintain overall flexibility on the terms.

Additionally, depending on the arrangement being offered, it may impact how annual leave is calculated for employees, as this accrued based on days and hours of work. For example if an employer were to implement a 4 day week policy, the 5th day of the week would not be considered an “ordinary day of work” under the Holidays Act, so annual leave would accrue at 4 days per week instead of 5.

There are some options available to employers, including implementing stand alone policies, which give flexibility outside of the usual employment requirements, but allow employers to maintain discretion around the benefit being offered as much as possible. A policy enables a number of issues to be covered off including:

  • Making it clear that the employer prioritises the wellbeing of its employees which assists with encouraging retention and recruitment;
  • The policy can clearly outline how it expects employees to perform their role;
  • Making it clear that the policy allows the employer discretion to amend, revoke or suspend elements of the policy to meet business demand; and
  • Measures to ensure that employee output is maintained.

There are a number of different initiatives that we can assist with advising on and drafting including:

  • Working from home;
  • Flexible start and finish times;
  • 4 day week;
  • 9 day fortnight;
  • Remote working;
  • Part time hours;
  • Job share arrangements; or
  • Paid study leave.

We recommend that employers wanting to offer flexible working arrangements get in touch with a member of our employment team to discuss preparing a bespoke flexible working policy that does not cut across any contractual or legislative rights or create legal risk.