Back To The Office? An Employer/Employee Tug O’ War

Flexible Working

Partner Troy Wano gives an inside scoop on this post-covid predicament.

At the risk of dating myself, terms such as flexible working arrangements or employee wellbeing were not concepts discussed, or even contemplated, when I made my first steps into a legal career. You can add to those terms, the four-day week, anti-work, hybrid-work….the list goes on.

Collectively, the relevancy of these terms, in 2022, is that focusing on salary alone may not secure you the pick of the employee crop in any given industry. To underline the point, in the recent Randstad employment survey, which ranks New Zealand’s most attractive companies to work for, the ability to work flexibly ranked ahead of salary as the top priority for employees.

A further recent global workplace report indicated that as many as 71% of employees would like more flexibility as to when they work; approximately 50% would accept a pay cut if it meant improving their work-life balance; only one in six 18-24 year-olds say that career progression is important to them.

With the uptake to alternative working arguably slow in this country – keeping in mind that in terms of legislation, flexible working arrangements were first introduced via the Employment Relations Act back in July 2008; the four-day working week as an actual practice was introduced in this country in 2018 – few employees, and fewer employers appear to have taken up these possibilities.

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What may have accelerated the discussion, alongside a possible general generational shift, are two factors – advances in technology, and circumstance. The latter is a reference to Covid. Since early 2020, the world has seen an enforced experiment into a largescale workplace change. What we largely know now, two and a half years down the track, in New Zealand at least, is that the technology has enabled us to collectively get out of traditional workspaces and, for example, work from home. That is not to say that this change was largely successful, or desirable, but that it forced wide open the door to the conversation: “do I need to work in the office?”

If New Zealand has been relatively slow off the mark, despite the best efforts of certain politicians and Perpetual Guardian (who first trialled the four-day week), those conversations have further expanded to include:

“Do I need to perform my city job, in the city?”
“Do I need to work a five-day plus week to be a star employee?”

Add to this a cost-of-living crisis coupled with somewhat stagnant wage increases, low unemployment, the re-opening of international borders and the prospect of higher wages abroad, and the traditional Big OE, and employers, at large, are experiencing pressure on recruitment at levels never seen before.

The relaxation of immigration policies and possibly even advances in AI might provide some answers but for now the battle (and it is a battle), for staffing resources has seen a complete re-think in the way employers approach both the recruitment and retention of staff.

Also, these are not discussions solely confined to your blue-chip companies, many of whom have long understood that there is a struggle underway, and that their success (possibly even their survival) is partly based on winning that struggle.

If you look to those parts of the world we like to compare ourselves with – Australia, Europe, North America, change is already well underway. Arguably many large international corporations (they know who they are), view labour solely as a means to control profit, but at a governmental level, countries like Iceland, Belgium, Spain and Portugal have announced legislation for four-day weeks. Here in New Zealand, we could point to our very own wellbeing Budget.

Anecdotally, these current workplace pressures may in part be responsible for the significant number of workplace disputes that have made their way to my desk since March 2020 (both the one in the office and the one I have at home). Covid of course may have also played its part in both a direct and indirect way. The point is that both employees and employers continue to grapple with providing (and working in) the ideal work environment. The fact that many require a lawyer to provide some balance, may simply mean that change often comes following a series of corrections. The likelihood is however, that we will continue to grapple with these issues.

Regardless, the nature of work - where it is performed, its relevancy and impact on our general wellbeing, what we look for when we apply for a role, how we approach the question of recruitment and retention of staff – will inevitably change. Arguably, it already has.

Currently, Part 6AA of the Employment Relations Act, acts as a way into requesting, for employees, flexible working arrangements. That is focused on the hours of work, the days of work, and the place of work. Employers can push back on any such request if there is a good business reason not to allow it.

What now appears to be happening is that rather than wait for such a request, employers around the country are beginning to think about having those arrangements in place before an employee even steps into the office, indeed, quite possibly the home office.


About the author: 

Troy - HubDB - ProfileTroy Wano
Partner | Employment Law Team

Troy is a Partner and leads the Employment Law Team. Troy provides legal advice and support while working hard to provide each client with a bespoke legal experience.

Troy has an extensive background in general civil and commercial litigation, including breach of contract, employment, insolvency, property law, debt recovery, and company law disputes. Troy also regularly appears in the Māori Land Court dealing with Māori land and governance issues for Māori organisations.

Troy also advises on day-to-day employment isses, developing employment policies and implementing disciplinary procedures (and conducting disciplinary meetings). He has advised a number of Māori organisations in this regard.