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Flexibility and New Zealand legislation

Employers have a legal obligation under the Employment Relations Amendment Act (2014) to provide a process for any employee to request a flexible working arrangement.

Renee Graham"You have a legal obligation under the Employment Relations Amendment Act (2014) to consider any employee’s request for a flexible working arrangement. All levels of your organisation should understand the legislation on workplace flexibility, understand the benefits of flexibility, and have open, ‘good faith’ based communication."

Renee Graham, Champion and Chief Executive of the Ministry for Women


Liam O'Reilly"Not only do we have a legal obligation under the Employment Relations Amendment Act (2014), but it's generally just good for business. We have worked in a flexible working environment for more than 10 years now, and as a result of that we've seen employee engagement results that have just kept going higher and higher."

Liam O'Reilly, Champion and CEO, Paymark


How the legislation works

Women with folder talking with man.

Employers have a legal obligation under the Employment Relations Amendment Act (2014) (The Act) to provide a process for any employee to request a flexibleworking arrangement. This applies to any permanent full or part-time employee, at any stage of their employment lifecycle and for any reason.

Arrangements can involve changes to:

  • flexibility of role – how a role is performed or divided
  • flexibility of place – working from alternative locations
  • flexibility of work schedule – working flexible hours
  • flexibility of leave – supporting flexible leave arrangements.

The Act provides employers and employees with a process to consider the application and come to a decision. Employers must consider these requests ‘in good faith’, but don't have to agree to them if there's a good business reason not to.

Find out more about different types of flexibility.

Most recent changes

Changes to flexible working arrangements came into effect under the Employment Relations Amendment Act 2014 on 6 March 2015.

The changes included widening the flexible work provisions to include all workers, and include:

  • extending the statutory right to all employees, to request flexible working arrangements (this must be in writing)
  • removing the requirement of six months' prior employment with the employer, so that employees can ask for flexibility from their first day on the job
  • removing the limit on the number of requests an employee can make in a year
  • reducing the timeframe within which an employer must respond to a request from three months to one (with the response to be made in writing including an explanation of any refusal)
  • specifying the grounds on which employers can refuse the request
  • providing for reference of the matter to a Labour Inspector, then to mediation, and then to the Employment Relations Authority for remedy, if an employer does not deal with a request in accordance with the process specified in Section 69AA of the Act.

The what: legislation in detail

Changes to flexible working arrangements came into effect under the Employment Relations Amendment Act 2014 on 6 March 2015.

The changes included widening the flexible work provisions to include all workers.

The key changes were:

  • extending the statutory right to all employees, to request flexible working arrangements (this must be in writing)
  • removing the requirement of six months' prior employment with the employer, so that employees can ask for flexibility from their first day on the job
  • removing the limit on the number of requests an employee can make in a year
  • reducing the timeframe within which an employer must respond to a request from three months to one (with the response to be made in writing including an explanation of any refusal)
  • specifying the grounds on which employers can refuse the request
  • providing for reference of the matter to a Labour Inspector, then to mediation, and then to the Employment Relations Authority for remedy, if an employer does not deal with a request in accordance with the process specified in Section 69AA of the Act.

In practice: here’s what the process could look like

Employees should initiate the application for flexible work arrangements

Three business women talking

It is the responsibility of the employee to make an application in writing (an email is acceptable) and it must make reference to Part 6AAC of the Employment Relations Act 2000.

The application should:

  • explain the working arrangement the employee is seeking and whether it is to be permanent or for a set period of time
  • state the date that the employee wants the new working arrangement to start and, if the new working arrangement is for a set period of time, state the date the arrangement is to end
  • explain why the employee is requesting a flexible working arrangement (e.g. to provide better care for a family member)
  • explain what changes (if any) the employer may need to make to the current business arrangements if the request is approved. 

How long will it take for the proposal to be approved or declined

Part 6AAE of the Act requires that employers deal with a request within one calendar month of receiving it and sets out certain grounds on which a request can be refused.

Under Part 69AAF of the Act an employer may refuse a request only if the employer determines that the request cannot be accommodated on one or more of the grounds specified below:

  • 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.

What if the request is declined?

If an employee’s request is declined, they should be notified by the employer in writing and reasons for that decision given.

There are provisions under the Act to deal with unresolved flexible work arrangements requests (Part 69 AAG, AAH, AAI):

There are time limits

Employees must apply to the ERA:

  • within 12 months of the employer’s refusal of the request, or
  • where the request is not responded to, the employee has 13 months from the date that the employer received the employee’s request.

An employer who does not comply with the legislation is liable to a penalty not exceeding $2,000, imposed by the Authority (Part 69AAJ).

A flexible work arrangement can be changed

If either the employee or employer wants to change the arrangement, including returning to an original working arrangement, this needs to be discussed and agreed by both parties. Neither an employer nor an employee can change an arrangement, without getting agreement from the other person.

Additional considerations

Employers need to keep accurate records of the actual hours worked each day and the days worked  

As an employer, you must keep wage and time, and holidays and leave records that comply with the Employment Relations Act 2000 and the Holidays Act 2003. In particular, you must be able to show that you’ve correctly given your employees all minimum employment entitlements such as the minimum wage and annual holidays.  

For additional information and access to templates:

Get your calculations right

Leave calculations must include certain regular and additional payments. Not including these payments often leads to underpayments.  

Employers must pay at least the amount identified in the Act. Using a ‘standard rate’ for any time off work can lead to non-compliance if the rate is lower than prescribed.  

Part-time employees entitlements are effectively pro-rated. These employees are not casual workers and are entitled to leave and holidays.  

For additional information and a calculation tool

Further resources

Employment Relations Act 2000 No 24 as at 01 July 2017 Public Act Part6AA Flexible working New Zealand Legislation

Flexible working: Full legislative provisions

Legislative provisions of the Employment Relations Act 2000 No 24.

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06 Flexibility and New Zealand legislation thumb

NZ Legislation and workplace flexibility

Download further details on workplace flexibility and NZ legislation.

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Flexible work Employment New Zealand

Guidance on flexible working arrangements

Employment New Zealand guidance on expectations of employers.

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