A guide for employees and employers
Approving a request
Employers who, after considering a request, agree with the new working arrangement, must notify the employee of their approval. You aren’t required to put this notification in writing but it would be good practice to do so—that way there will be a record of the decisions made. Form B: Flexible working arrangements request approval form can be used to confirm a new working arrangement.
The agreed new working arrangement will be a permanent change to the employee’s terms and conditions of employment, unless agreed otherwise. Where a trial period or time-limited period has been agreed this should also be detailed.
How should a request be declined?
There will always be circumstances where, due to the needs of the business, the employer feels they are unable to accept a request.
Employers are able to refuse a request:
- if the employee is not eligible to make a request under Part 6AA
- on one or more of the following Recognised Business Grounds.
- if it conflicts with a collective agreement.
Recognised Business Grounds are:
- 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.
Conflicts with a collective employment agreement
Employers must refuse a request if the proposed new working arrangement conflicts with the provisions of an employee’s collective employment agreement.
Situations like this could arise in a number of sectors and industries.
However, there are also likely to be instances where a compromise can be reached between the employer, the employee making the request, and other employees in the workplace.
Employers, employees and unions are encouraged to discuss these issues with a view to developing procedures for dealing with such conflicts before they arise.
Employers are required to notify the employee of their decision, and if the request is refused, to give reasons for the refusal.
You aren’t required to put your notification in writing but it is always good practice to do so.
To make the process a bit easier, we’ve developed a Request Refusal Form.
How should the refusal be explained?
In addition to providing a Recognised Business Ground, the employer must include an explanation of the reasons for that ground.
Making things clear always helps. Employees will always be disappointed if their request is declined but they are more likely to accept that their request has been considered seriously if the reasons for the decision are clear.
Your explanation should include all the key facts and clearly identify why the Recognised Business Ground applies in this case. It’s good business practice and it will also help keep your staff on side.
What to do if you suspect an employee is ineligible to make a request under Part 6AA
Employers who have reason to think that an employee is ineligible to make a request under Part 6AA, should request additional information from the employee.
Obviously, this will be something that will need to be handled sensitively as people are usually hesitant to talk about personal matters.
It is an issue, however, that will have to be broached sometimes — not the least because of the potential that exists to confuse the different provisions of the Employment Act.
Any employee can at any time and for any reason request a variation to their terms of conditions under section 63A of the Employment Relations Act.
So it is important to always clearly determine whether or not a request is being made under Part 6AA.
A request that at first may appear to fall under Part 6AA, may actually have been submitted on an entirely different and appropriate basis. So, if you have any doubts, checking the basics at the start is entirely appropriate.
However, if an employer is certain that the employee is ineligible to make a request under Part 6AA they can decline it on that basis.