Resource 4 - Establishing formal and informal flexible working arrangements

Resource 4 - Establishing formal and informal flexible working arrangements¹⁰

Below is a guide to establishing informal arrangements and requesting and considering formal arrangements, in the context of the agency’s policy and framework on flexible working.

As you develop processes for establishing flexible arrangements, we suggest you frame your thinking around the Principles of flexible-by-default (see Part one: page 3) and your decisions about the constraints and opportunities of flexible working within different types of roles (see Part one: page 11). This framing sets out the balance that needs to be achieved between what works for employees, what works for teams and what works for the agency. It also establishes expectations of fairness for all; employees, team members, colleagues outside of immediate teams and managers – and of openness and flexibility on all sides.

Employment agreements are mechanisms for ensuring that policies and practices to establish flexible working arrangements are sustained.

Arrangements can be formal or informal, ad hoc or regular, temporary or permanent and this should be made clear at the outset of any flexible arrangement. If temporary, there should be clear start and end times agreed by both parties.

Establishing informal flexible working arrangements

Some flexible arrangements can be managed on an informal basis and agreed between employees and their managers without going through a formal request and response process. In all cases of informal flexible working arrangements, we suggest teams discuss and record any reciprocal expectations or norms of behaviour (such as in a team charter), to help flexibility operate smoothly across teams. (See Tips for employees and Tips for teams in Resource 9).

Informal arrangements:

• are generally appropriate for flexibility that doesn’t involve changes to pay or employment agreements
• may be established at the request of an individual employee or by a manager proactively offering informal arrangements to everyone in their team
• may involve ad hoc arrangements which are agreed between managers and employees on an as-needs basis, such as variable start and finish times and/or working remotely on some days
• may also involve regular arrangements such as specific start and finish times on particular days, or regular days an employee will work remotely
• should involve give and take on the part of the employee, manager and team, to ensure team delivery is maintained.

These types of arrangements can be agreed verbally between managers and employees. We suggest, however, that if managers and employees agree on regular arrangements, they record these in an exchange of emails including regular review periods to provide more certainty and clarity for both parties. This may be especially helpful if a manager leaves or any issues arise with the flexible arrangement that need to be worked through.

Managers should approach employee requests for ad hoc or regular informal arrangements, in an open-minded and fair way, and focus on exploring all available alternatives that will work. We recommend that both employees making a request and their managers familiarise themselves with the agency’s flexible-by-default policy, any limitations on flexibility relating to particular roles ¹¹ (see Part one: page 11) and on the Principles of flexible-by-default (see Part one: page 3).

If an employee and manager fail to reach an agreement, we recommend they seek advice from their HR advisors to ensure all options have been considered. Employees who are union members may seek advice from their union. The employee may also consider making a formal request.

Processes for establishing informal flexible working arrangements

Establishing a formal flexible working arrangement

Where a flexible working arrangement involves changes to employment terms and conditions, such as working hours, patterns, location etc., we recommend agencies create a formal request and response process along the following lines. We also recommend that managers proactively discuss flexible working with their teams rather than waiting for individual requests.

Formal flexible working request and response process ¹²

REQUESTING a formal flexible working arrangement (employees)

Employees are responsible for applying in writing, making reference to Part 6AAC of the Employment Relations Act (ERA) 2000. The application should explain the arrangements you are seeking and whether it is permanent or for a set period and state the requested start date (and end date if applicable). It should also 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. It should also 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.

Tips for making a request:

1. Familiarise yourself with your agency’s flexible-by-default policy and limitations on flexible- working options for your type of role (see Part one: page 11).
2. Talk with your manager about your interest in flexible This is a chance to talk about the requested work arrangement in depth. Focus on why you are seeking flexibility, rather than on one specific arrangement, as this will help both you and your manager explore all the options available that might work for you and the team. This is also a chance to identify any barriers or issues and develop solutions on how these can be managed.
3. Complete the request form provided by your agency and submit it to your If no request form is provided, then ensure the above information is covered in an email.

Tips if agreement is not reached:

If you and your manager fail to reach an agreement, you can seek advice from your agency’s HR advisors to ensure all options have been considered. If you are a union member you may also seek advice from your union.

CONSIDERING a request for formal flexible working (manager)

Managers must consider requests for flexible working arrangements in a fair-minded way and in good faith. Remember that the legislative requirements provide specific minimum requirements for responding and these are incorporated in this process, for instance, minimum periods within which you need to respond to requests.

As you work through the process of considering and responding to formal requests, we recommend that you are guided by:

• the principles of flexible by default, especially ‘If not why not’, ‘Works for the role’, ‘Works for teams’, ‘Mutually beneficial’ and ‘Requires give and take’ (see Part one: page 3)
• your agency’s policy and framework and decisions on the constraints and opportunities of flexible working for different types of roles (see Part one: page 11).

You can also discuss requests with your HR advisor, if further advice is required.

1. Ensure the request includes all the information needed and, if it does not, ask the employee to re-send the request when complete
2. Acknowledge the request in writing
3. Meet face to face with your employee to discuss the requested working arrangement in depth and consider how it could fit with the employee’s role and the team’s functions and deliverables.
4. Approach the request in an open-minded way, focusing on finding solutions that will To get the most from the meeting we suggest:
   • making a list of the issues you want to discuss at the meeting
   • familiarising yourself with your agency’s flexible-by-default policy, the rest of this resource (Resource 4) and the tips for managers in Resource 9.
5. Some important questions to consider when making your decision.
   • Is reorganising work necessary, and if so, how can it be managed?
   • If the employee works as part of a team, does the employee understand their commitment to the team under the new arrangement?
   • Are there peaks and troughs of demand in the business that this new arrangement could meet?
   • Are there health and safety implications (for example if the employee is working from home or if they are working alone late/early or out of core-business hours).
   • If the form of flexible working requested can’t be accommodated, which types could? Have these been fully explored with the employee?
6. Agree on a detailed arrangement with the employee, including a period during which the effectiveness of the arrangement will be tested g. 3 months, with annual reviews thereafter.

APPROVING a formal request for a flexible working arrangement (manager)

1. Once you’ve considered your employee’s request for flexible working arrangements, give them your decision in You must deal with a request no later than one month after you receive it. (Note: this is a statutory requirement).
2. Remember because this is a formal request it will signify a change to the employee’s terms and conditions of employment, unless agreed otherwise
3. Once you have made your decision and advised the employee, we suggest you discuss the arrangement with your You are responsible for deciding on the request, but it is useful to engage with the team as soon as possible as team members share responsibility for making flexible arrangements work and may have questions and concerns that are best worked through collaboratively. As noted above, the team may find it useful to agree on some norms of behaviour to help the arrangement run smoothly, for instance in a team charter.
4. Finally, we suggest you:
   • inform HR so that they can update their HR records
   • talk with HR/Payroll to understand whether the new working arrangement means changing your employee’s pay and what the impacts might be on holidays and leave
   • consider if health and safety requirements are still satisfied. This might be relevant if the employee is going to be working from another location or alone out of core- business ours.

DECLINING a request for flexible working arrangements (manager or higher level)

In a flexible-by-default workplace, you are encouraged to explore all options that may work for you, your employee, team and the agency before declining a request. This includes:

• talking to the employee who has made the flexible working request to ensure that all options and solutions have been explored
• consulting your manager to consider any options or solutions that may not be obvious or within your delegations
• talking to your HR advisor and/or manager if you still think it will not be possible to accommodate the request, to consider any possible solutions
• receiving approval to decline the request (if, for instance, your policy requires Tier 3 approval for requests to be declined).

You may not be able to approve the requested flexible working arrangement, as flexible-by-default does not mean all types of flexible working are always available for all roles.

Under the Employment Relations Act 2000, section 69AAF employers can only refuse a request on one or more of the following recognised business grounds:

• Cannot reorganise work amongst existing employees
• Cannot recruit additional employees
• Negative impact on quality
• Negative impact on performance
• Not enough work during the periods the employee proposes to work
• Planned structural changes
• Burden of additional costs
• Negative effect on ability to meet customer demand
• Employers must refuse a request that is inconsistent with a collective agreement that covers the employee.

Agencies are encouraged to examine their employment agreements (individual and collective) to look for provisions that can be a barrier to enabling various flexible-by-default options and practices, and where necessary seek to renegotiate these agreements.

Flexible working requests process under the Domestic Violence Victim Protection Act 2018

Remember that the Domestic Violence Victims Protection Act adds legal protections in the workplace for people affected by domestic violence.

Under Part 6AB of the ERA, all employees are entitled to make a request, or have a request made on their behalf, for a short-term change to working arrangements lasting up to 2 months, to enable them to deal with the effects of domestic violence (even if the domestic violence happened in the past).

If an employee is affected by domestic violence, they can ask for this kind of flexible working at any time.

Your agency will have policies on responding to these requests and we recommend they immediately request advice from your HR advisor. You advisor will also highlight any clauses in collective agreements relating to support for employees affected by domestic violence that need to be complied with.

An employer must respond to a request for short-term flexible working urgently as an employee may wish to change their working arrangements to stay safe.

Under the ERA, when declining a request, managers must, in writing and no later than 1 month from receiving the request:

• state the ground/s for your refusal, referencing the agencies flexible-by-default policies
• explain the reasons for these ground/s
• also advise the employee of their right of review.

The provisions under the ERA to deal with unresolved flexible working requests (Part 69 AAG, 69AAH, 69AAI) are:

• informal discussion between employee and employer
• a formal complaint
• third-party assistance (a Labour Inspector or mediation)
• the Employment Relations Authority.

¹⁰We have drawn heavily on a process developed by the Ministry for Primary Industries and we thank the Ministry for its support

¹¹Some employees work across multiple roles and those roles can be more or less suited to particular types of flexibility. In this situation employees and managers can explore whether a mixed approach to flexibility will work across the roles performed (for example, an employee might work remotely a few days a week while performing the administrative part of their role and then working onsite two days a week while performing the customer facing part of their role.

¹²The formal flexible working request and response process outlined here is in line with Part 6AAC of the Employment Relations Act (ERA), but also incorporates the flexible-by-default principles outlined in this guidance, as well as approaches to enable effective flexible working discussions between managers and employees