Not long ago, working from home was considered a Covid-19-imposed necessity, or perhaps a luxury afforded only to knowledge workers. Either way, both employers and employees seemed to benefit from flexible working arrangements; employers gained productivity and retention, while employees gained autonomy and better work-life balance.
Yet recent headlines suggest the pendulum may be swinging back towards office-based work. In 2025 and 2026, both MBIE and ACC faced significant pushback after attempting to tighten work-from-home arrangements, only to ultimately step back following legal action and employee resistance.
Against that backdrop, it is worth revisiting a question that is often misunderstood: what are employees actually entitled to when it comes to flexible working in New Zealand?
The statutory right: more powerful than many realise
Under Part 6AA of the Employment Relations Act 2000 (Act), every employee has a legal right to request flexible working arrangements. This right is broad, and importantly, it is not limited to parents or caregivers. Employees can request flexibility for any reason, at any time, from their first day of employment.
“Flexible working arrangements” is also widely defined. It can include changes to:
- hours of work
- days of work
- place of work (including working from home).
Process matters
Part 6AA of the Act does not just give employees a right to make a request, it also imposes clear obligations on employers as to how flexible working requests are handled and responded to.
The employees’ request must be in writing and cover the following:
- The employee’s name, the date of the request, and that it is made under Part 6AA of the Act.
- Specify the variation of working arrangements sought and whether it is permanent or for a stated period.
- Specify the proposed start date (and, if temporary, the proposed end date).
- Explain, in the employee’s view, what changes the employer may need to make to its arrangements if the request is approved.
At its core, the regime is about proper process and good faith. Once an employee makes a request, provided the request complies with the requirements set out in Part 6AA, the employer must:
- Properly consider the request in good faith.
- Assess the impact on the employer’s business.
- Respond as soon as possible, and no later than one month after receiving it.
The employer’s response must be genuine. A perfunctory or pre-determined refusal risks breaching the duty of good faith that underpins New Zealand employment law.
There are, of course, lawful grounds for an employer to decline a request. These typically relate to operational feasibility, for example, the burden of additional costs, an inability to reorganise work, recruit additional staff, or avoid negative impacts on quality or performance.
The key takeaway is that the burden sits with the employer to justify the refusal, not with the employee to justify the request.
A notable carveout is that an employer must refuse a request where the request is from an employee who is bound by a collective agreement, 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 if the employer were to approve the request.
When flexibility becomes friction
The recent MBIE and ACC disputes highlight how quickly flexible working arrangements can move from a practical convenience to a legal flashpoint.
At MBIE, attempts to restrict working from home were challenged as inconsistent with existing collective employment agreements, ultimately resulting in a last-minute change of stance (ie backdown) by MBIE before the Employment Relations Authority hearing.
ACC faced criticism and legal action after proposing increased in-office requirements, with employees arguing that the changes contradicted earlier representations about flexibility. ACC had told staff that they were required to work in the office three days a week, rather than the two days which had been advertised in its job advertisements.
These examples underline the point that, once flexible working expectations are established, whether through employment agreements, policies, or custom and practice, they can be difficult for employers to step back from.
What employers should be thinking about
For employers, legal risk doesn’t usually arise from the employer’s decision to decline a request, but with the process around how that decision is reached and communicated.
A robust approach will typically involve:
- Engaging with the employee early and openly.
- Exploring alternative arrangements if the request is not workable.
- Documenting the business rationale clearly.
- Ensuring consistency across the employer’s workforce.
As highlighted by the MBIE and ACC news stories, employers should also be mindful that once a flexible arrangement is agreed upon, it can become part of the employee’s terms and conditions, which means making unilateral changes will be risky.
A shifting landscape
The modern reality is that flexibility is no longer an exception but an embedded feature of many employment relationships. As the New Zealand Law Society notes, flexible working has become a key tool for attracting and retaining staff in a competitive labour market.
However, the legal framework stops short of granting an automatic entitlement to flexible work itself. Instead, it provides something more nuanced: a structured right to ask.
- For employees, the right is clear: you can ask, and your request must be taken seriously.
- For employers, the obligation is equally clear: you must engage, consider, and respond in good faith, even if the answer is ultimately to decline the request.
The current tension between “return to office” pressures and statutory flexible working rights reflects a broader shift in how work is organised. At the same time, the legislative framework and recent disputes reinforce that flexibility cannot simply be rolled back without careful consideration.
If you would like assistance in understanding your workplace rights and obligations when it comes to flexible working arrangements please contact our expert Employment Law Team.
