PSA challenge Government’s attempt to stop flexible working

On 23 September 2024, Public Service Minister Nicola Willis announced that the Public Service Commission Guidance which provides a flexible-by-default approach will be updated to make clear that working from home is not an entitlement and must be agreed and monitored. Check out our article on the announcement if you haven't already.

On 10 December 2024, the Public Service Association (PSA) filed proceedings with the Employment Relations Authority, challenging the Government's attempt to stop public servants working from home. The PSA are seeking a determination from the Authority that removing the flexible-by-default approach would violate both the Gender Pay Principles and the collective agreements currently in place.

The PSA is arguing that it reached an agreement with the Public Service Commission about the application of the flexible-by-default setting to the wider public sector, which was reflected in the Guidance referred to above (which was published by the Public Service Commission in 2020). The PSA is arguing that that agreement is enforceable.

In response to the PSA filing proceedings, the Minister of Finance Nicola Willis said there would still be opportunities for public servants to work from home and that the Public Service Commission was working with the PSA on the new guidelines.

It remains unclear whether the PSA filing proceedings signals a genuine attempt to engage in litigation or whether it is being used as a threat to stop the Government from undoing flexible working arrangements. The PSA has signalled that they would be willing to enter mediation with the Public Service Commission on the issue.

We note that even if the Government proceeds with removing the flexible-by-default approach, many public servants will retain a contractual right to flexible working. This is because in many cases work from home arrangements have already been formally documented and agreed. If working from home is a contractual entitlement, then updating the Guidance will not change this. The employer would only be able to remove the flexible working arrangement with agreement from the employee.

Further, many collective agreements incorporate flexible-by-default principles, and where that is the case, those principles must be adhered to, regardless of whether the Public Service Commission changes its Guidance.