This month has seen two cases come through the Fair Work Commission concerning requests for flexible work arrangements. We will delve into the implications of these cases and what this means for employers.

In November 2023, we saw two cases make their way before the Fair Work Commission (FWC) which concern the right to request flexible work arrangements under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs Act) . 

In this article, we will explore what the laws around flexible work arrangements are and analyse the cases of Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 and Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768 to determine the implications for employers.

Under the National Employment Standards (NES) some employees have the right to request flexible work arrangements. 

Previously, an employer's decision about such requests was final, provided they were made on 'reasonable business grounds'. Employers were not obliged to negotiate or compromise on arrangements if they did not accept the terms of the request.

Going forward, amendments to the Secure Jobs Act define the process by which such requests must be reviewed and how they can be appealed. 

Criteria to make a request

From 6 June 2023, under section 65, the categories of employees able to make flexible work arrangement requests is expanded to include pregnant employees, as well as broadening the right to employees who are 'experiencing family and domestic violence'.

The circumstances in which employees can request a change in working arrangements are:

• the employee is pregnant;

• the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

• the employee is a carer (within the meaning of the Carer Recognition Act 2010);

• the employee has a disability;

• the employee is 55 or older;

• the employee is experiencing family and domestic violence;

• the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing family and domestic violence.

Increased right to request flexible work arrangements

Under the amendments in section 65A, employers are now obliged to discuss any request with the employee and make genuine efforts to reach an agreement. This can include where a subsequent agreement is different in substance to the initial request. In such cases, the employer's response must set out the new agreement.

Employers are still entitled to deny a request on 'reasonable business grounds' within 21 days of receiving the request. The criteria for this remains the same (ie cost, capacity to change, impracticality of request, loss in efficiency or productivity etc); however, employer's must now specifically refer to these reasons in their written reasons for denial under section 65A(6).

New right to appeal and jurisdiction of the FWC

Under new sections 65B and 65C, employees can now lodge disputes over employer decisions rejecting flexible working arrangements requests and can be referred to the FWC up to and including arbitration. It is available to the FWC to make an order such as whether or not the employer's reasons are 'reasonable business grounds', or ordering that the employer grant the request or grant the request with certain changes. 

The FWC's power to make orders is limited to orders that are both fair and consistent with the Fair Work Act 2009 (Cth) (FW Act). Further, it must be satisfied that there is no reasonable prospect of the dispute between the employer and employee being resolved without the order being made.

In the case of Jordan Quirke v BSR Australia Ltd, the Applicant, lodged a dispute with the FWC under section 65B of the FW Act as amended by the Secure Jobs Act. The flexible working request was for changes to working hours as an aid for relief from insomnia and anxiety.

Held

As this was the inaugural case of its nature considered by the FWC, the Full Bench deemed it valuable to articulate its rationale for scrutinising the challenges associated with Ms Quirke's assertion of having a disability.

The Full Bench conveyed its struggle in being convinced, based on the presented evidence, that Ms Quirke met the criteria for having a "disability" for the purposes of section 65(1) of the FW Act. Reference was made to varying definitions of "disability" found in section 12 of the FW Act and section 4 of the Disability Discrimination Act 1992 (Cth), with the conclusion that neither was applicable. The Full Bench held that the ordinary meaning should prevail over any statutory definition.

Within this framework, the Full Bench highlighted the absence of medical diagnosis evidence and emphasised that references to anxiety alone were insufficient to establish the existence of a "disability." A distinction was drawn between a formally diagnosed medical condition and anxiety categorised as a normal emotional response to stress.

In the case of Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768, Mr Charles Gregory (the Applicant), initiated a dispute under section 65B of the FW Act with his employer, Maxxia Pty Ltd (the Respondent), pertaining to his request for a flexible work arrangement. Maxxia, specialising in salary packaging advice, employed Mr Gregory in a role involving advice provision and case management. Recently, he was seconded to the Coaching and Quality Assurance Team. The company's Hybrid Working Guidelines policy mandated a minimum of 40% in office hours.

The Applicant, seeking to work 100% from home consistently, cited being a parent with custody arrangements for a child as grounds. He also submitted a doctor's letter referring to his inflammatory bowel disease. Although the medical condition wasn't explicitly cited in the application, it supported the flexible working request. Mr Henderson, the Team Leader, considered factors such as client service expectations, financial penalties, the Applicant's productivity, the specialised nature of his role, and his mental well-being.

In response, Mr Henderson proposed a phased approach: the Applicant working 20% in the office until September's end and then increasing to 40%, aligning office days with non-custodial weeks. Additional accommodations included relocating the Applicant's desk nearer to a bathroom and permitting remote work during custody weeks, with flexible start and finish times.

Ultimately, the decision concluded that the employer had considered the implications for the employee, and the refusal was grounded in reasonable business considerations.

• Following the COVID-19 pandemic, employers can require employees to return to the office in accordance with their contracts of employment (Jason Lubiejewski v Australian Federal Police [2022] FWC 15). 

• When an employer applies for a flexible working arrangement, the employer and employees should try to genuinely reach an agreement to accommodate the employee's circumstances. 

• An employer must respond in writing to a flexible work arrangement request within 21 days and set out alternative working arrangements that they have agreed with the employee. 

• An employer can refuse a request only if they have attempted to reach an agreement with the employee about making changes to accommodate their circumstances, and they have considered the consequences of refusal, and the refusal is on reasonable business grounds.

Reasonable business grounds include but are not limited to:

• Cost: requested arrangements are too costly for employer;

• Capacity: there is no capacity to alter the working arrangements of other employees to accommodate request;

• Practicability: impractical to accommodate request;

• Inefficiency or impact: requested arrangement would likely result in loss of efficiency or productivity, or negatively impact customer service.

• Flexibility around start and finish times (for example, an employee may have parental responsibilities and this may assist for school pick-ups and drop-offs);

• Job sharing;

• Compressed work hours; or

• Working from home - hybrid models.

Work from home (WFH) and flexible working arrangements are now part of the character of Australian working life. However, recent cases demonstrate that the work from home street is not one way. Employers can reasonably ask employees to work in the office, to maintain team connections and to meet the reasonable needs of the business. 

The fact remains that for some businesses WFH will not be appropriate - direct care roles, like schools, child care, health care, aged care, client-facing roles in Government, retail and service provision, mining, manufacturing and any work that requires a worker to be at the workplace. Other flexibilities might be possible, including hours of work, roster arrangements and job sharing. Even where a flexible work request appears inconsistent with an employer's business, employers must be able to demonstrate consideration of the request and a reasonable approach in the response. 

If you receive a flexible work request, treat it carefully, respond in a considered way and look for common ground. If the employee remains unwilling to negotiate do not be afraid to defend your decision on reasonable business grounds.