Hybrid Working – Here to Stay

The COVID-19 pandemic saw us adapt to new ways of working. While the lockdowns and mandates may be a distant memory, there are a significant number of employers that continue to allow, and even encourage, employees to work from home on either a full-time or part-time basis (the hybrid model).

A 2021 report by the Global Workplace Analytics and Design Public Group found that employers could save just under $19,000 NZD for each employee that works from home half of the time.[1] These savings coming from increased productivity, reduced real estate costs, reduced absenteeism, increased business continuity, and reduced turnover.

However, we are observing a shift towards employers requiring employees to spend more time in the office to capitalise on collegiality and collaboration that is often absent in a hybrid working model.

Late last year, the ANZ Bank advised staff that their annual bonuses may be cut if they failed to spend at least 50% of their scheduled working hours in the office.[2]

One NZ has also recently amended its working from home policy that requires all contact centre employees to come into the office for at least three days, which was met with staunch opposition by Unite Union, who represents 115 workers at the company.[3]

Changes to Working from Home Arrangements and Policies

What happens if a business wishes to change its position on working from home?

The starting point is to look at the employee’s individual employment agreement, which is required to include an indication of where the employee is to perform their work.

While hybrid working has been widely implemented, we have found that very few employers have formally documented these changes in the form of a variation to the employment agreement. Many have instead opted for informal arrangements or understandings between the parties, which can be problematic.

Flexible Work Provisions

In the absence of a contractual term or workplace policy that allows an employee to work from home, an employee could make a request to work from home in accordance with the flexible work provisions set out in the Employment Relations Act 2000 (“the Act”).

Under Part 6AA of the Act, employees can ask at any time to change their:

• Hours of work (over a week, day, or year);
• Place of work; and
• Days of work.

The request must be made in writing and:

• state:
  • the employee’s name;
  • the date on which the request is made; and
  • that the request is made under Part 6AA of the Act; and
• specify the variation of the working arrangements requested and whether the variation is permanent or for a period of time; and
• specify the date on which the employee proposes that the variation take effect and, if the variation is for a period of time, the date on which the variation is to end; and
• explain, in the employee’s view, what changes, if any, the employer may need to make to the employer’s arrangements if the employee’s request is approved.

Employers must provide a written response to the request as soon as possible, but no later than one month after receiving the request.

The grounds for refusing a request are recorded in the Act, which include detrimental impact on work quality, detrimental impact on performance, and planned structural changes.

Employers must also refuse a request from an employee bound by a collective agreement if the request would be inconsistent with that collective agreement.

Changes to Working from Home Arrangements

Employers should proceed with caution when looking to implement changes to work from home policies.

As a starting point, employers should review their employment agreements to see whether there are any contractual requirements to consult with employees in relation to proposed changes to workplace policies.

Even in the absence of a contractual consultation requirement, employers will benefit from engaging with staff as to plans to increase time required to be spent in the office. This is also consistent with an employer’s duty of good faith under the Act.

Practical Considerations

Flexible working arrangements will assist organisations in the attraction and retention of staff, which is proving difficult given the current skills shortage in New Zealand.

Ultimately, it will be a balancing exercise for employers to undertake when deciding how to manage flexible working conditions and requests.

Contact the team at Black Door Law if you have any questions regarding flexible working or working from home arrangements.

Disclaimer: This information is intended as general legal information and does not constitute legal advice. If you have a specific issue and wish to discuss it get in contact with the Black Door Law team.

[1] Global Workplace Analytics, The Business Case for Remote Work, 2021. https://allwork.space/2021/02/future-of-work-hybrid-work-models-could-help-businesses-save-500b-a-year/

[2] https://www.afr.com/work-and-careers/workplace/anz-tells-staff-50pc-of-time-in-the-office-or-your-bonus-may-be-cut-20231122-p5elvm

[3] https://www.unite.org.nz/post/one-nz-workers-the-fight-to-work-from-home