Working remotely – will permanent change result from the pandemic?

In a bid to curb the coronavirus outbreak, New Zealand employers put in place precautions to stop the spread of COVID-19 including remote working – where employees were based partly or fully from home. If you had an existing Working from Home Policy this transition may have been smoother than scrambling to come up with resources and procedures to allow remote working to occur.

Now that we are in Alert Level 1, many employers are investigating permanently implementing the flexible remote-work model that was so successful over lockdown. Location bias is a critical and as yet, poorly understood factor standing in the way of successful flexible workplace policies in New Zealand. The prime minister has made informal comments suggesting employers consider a four-day working week and other flexible working options, as a way to help employees address work/life balance issues. Many employers have already adopted flexible working arrangements because they see them as making good business sense.

They can help:

  • retain skilled staff and reduce recruitment costs
  • raise staff morale and decrease absenteeism
  • meet labour market changes more effectively.

Perpetual Guardian, a business of more than 200 people, transitioned to a four-day work week in 2018. The business found the shift made employees happier and more productive and had the added benefit of helping the environment, climate change and their family and social lives.

AMP Wealth Management surveyed its staff and found 70 per cent preferred to combine home and office work, while 22 per cent wanted to work primarily from home, and only 8 per cent wanted to work from the office all the time. Post-COVID, AMP are moving out of their central city Auckland and Wellington offices and staff and clients who need to meet face-to-face will do so in smaller meeting-based premises outside the central city areas.

How to start Remote- working

Employers may already be familiar with flexible working arrangements, which can be agreed upon between employers and employees either informally, through a workplace policy, or by seeking a variation to individual terms and conditions of employment under Part 6 of the Employment Relations Act 2000. Implementing successful remote-working requires a good faith consultation process, and flexible working arrangements can include variation(s) of the working arrangements, such as:

  • Hours of work
  • Days of work
  • Change to the start and/or finish times
  • Change to total number of hours worked
  • Place of work (for example, at home)
  • Reduction of remuneration for agreed reduced hours

Unless both parties specify that the new working arrangement will be for a set period of time, the agreed changes will be a permanent variation to the terms and conditions of employment. Employers should be aware that making a permanent change to an employment agreement is a big step and should not be entered into lightly. The parties could consider a trial period or a limited period of remote-working flexibly so that any problems can be ironed out before things are put into a more permanent basis – for employees bound by a collective agreement they would need to follow a normal collective agreement variation.

As with all contractual variations, experience shows that the best way for both parties to understand each other’s position and identify a solution that meets all their needs is by discussion. As the employer, it is recommended that you draft a Remote-work Checklist which covers the basics. Your list needs to build a case that both meets the business needs and those of your employee. A structured discussion will provide both parties with the opportunity to talk about the proposed remote-working arrangement in depth and consider how it might be accommodated. It will help if both the employer and the employee are prepared to be flexible. If the requested working arrangement cannot be accommodated, a discussion may help identify an alternative working arrangement.

Some items for consideration are:

  • What kind of changes can the business sustain?
  • What changes (if any) the employer may need to make? For example, changes to the way the team works together, changes to the physical set up of the workplace.
  • What potential problems may arise and how do you propose to overcome them? For example staff may no longer be at work when the business opens, but you may be able to show that this is not important because it is not a busy time, or, a colleague can stand in for others.
  • Will there have to be agreement to a reduction in pay if the employee will be working fewer hours?
  • Would a trial period help?

The Requirements

Once the discussion has generated an agreed remote-working arrangement, the normal rules of Employment contract variation applies. Remote-working arrangements must:

  • Be in writing and be signed
  • Have a clear start date (and end date if fixed term)
  • Provide as much detail as possible about the working arrangement
  • Detail exactly what appropriate support and information will be provided by the employer during the course of the variation e.g. is the employer to contribute to the employee’s ’running expenses’ in light of the agreed working arrangement
  • Ensure that all health and safety requirements have been satisfied e.g. desk height and style of chair, lighting, security of files and so on
  • Specify what dispute resolution process must be followed if there is a disagreement.

EMA Working-from-Home Policy

Over the COVID-19 lockdown period, EMA Legal made its Working-from-Home Policy available at no cost to all New Zealand employers. It is recommended that employers use this as a starting point to draft their Remote-Working variations and do not hesitate to contact an EMA solicitor to assist you with tailoring yours. 

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