Nov 2007

The Employment Relations (Flexible Working Arrangements) Amendment Bill was passed yesterday and is set to come into force on 1 July 2008. There are a number of amendments to the original Bill (as a result of submissions received at Select Committee stage) which brings it into line with existing legislation in the United Kingdom.

• Employees will have a statutory right to make a request for flexible working arrangements where they have the care of "any person".  This provision will be a significant extension on the previous proposal to limit flexible working requests to situations where an employee cares for a child under 5 years of age or a disabled child who is up to and including 18 years of age.
  
  
• What constitutes “care” remains undefined.
  
  
• Flexible working arrangements will include changes to an employee's location (for example, work from home), as well as hours and days of work.
  
  
• The grounds for refusing a request for flexible working will be extended to include situations where flexible working will give rise to the burden of additional costs, and where it will have a detrimental effect on the ability to meet customer demand.
  
  
• An employer must refuse a request for flexible working if:
  
  
  • the employee is bound by a collective agreement; and
    
    
  • the request relates to working arrangements to which the collective agreement applies; and
    
    
  • the employee's working arrangements would be inconsistent with the collective agreement.
    
    
• Employees will have 12 months to submit a claim if they believe their employer has failed to comply with the flexible working provisions.Failure to comply will result in:
  
  
  • an order requiring the employer to reconsider the employee's application;
    
    
  • a maximum compensation award of 8 weeks' pay; and
    
    
  • a penalty of up to $2,000 (payable to the employee).

In summary, there has been a broadening of the legislation to cover all employees who have the care of any person, not just those who have the care of young or disabled children.  (The United Kingdom brought in similar extended coverage to its equivalent legislation earlier this year).  However, the ability for employers to refuse requests for flexible working has also been extended to include situations where additional costs will arise, or where customer demand will not be able to be met.

This newsletter is produced by Simpson Grierson. It is intended to provide general information in summary form. The contents do not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.