Background

Changes to the Fair Work Act 2009 (Cth) (“FW Act”) introduced in 2023 have resulted in limited grounds for refusing flexible working arrangement requests and the ability of the Fair Work Commission (“FWC”) to arbitrate disputes involving flexible working arrangement requests.

The FWC recently considered an application involving a dispute over a request for flexible working arrangements. The employee, who had worked remotely on a full-time basis from the commencement of her employment in 2020, sought an exemption from a new company directive requiring all staff to attend the office at least three days per week.

The request was made under section 65 of the FW Act, which allows employees to seek flexible working arrangements due to specific circumstances, including being a parent or carer. In this case the employee argued that a working from home arrangement would allow her to minimise the risk of infection for her daughter, who had cystic fibrosis.

The employer’s response

Rather than engaging with the substance of the request, the employer focused on undermining its credibility. Specifically, the employer argued that as the employee’s daughter:

• attended school daily;
• rode the school bus; and
• played soccer on weekends

she was already exposed to potential infection risks, and therefore the employee’s request to work remotely was unnecessary.

Findings

The FWC rejected the employer’s approach and found in favour of the employee. Specifically, the FWC found:

• The employee’s request was not based on medical necessity, but rather on minimising exposure to reduce the risk of serious lung injury for her daughter.
• The employee did not claim her daughter must be housebound, but that reducing overall exposure was a reasonable and protective measure.
• The request was properly linked to the employee’s circumstances as a parent and carer, satisfying the relevant requirements of the FW Act.
• The employer failed to provide any evidentiary basis for its refusal, such as operational impacts or business needs that would be compromised by the employee’s continued remote work.

The FWC noted that the employer’s logic would require the employee’s family to be effectively housebound for the request to be valid and that this was an unreasonable and unrealistic standard.

Key takeaways

The decision serves as a critical reminder for employers about how to lawfully and respectfully manage flexible work requests.

Importantly, employers must engage meaningfully with flexible work requests. It is not enough to simply contest the employee’s reasoning in making an application – employers must also demonstrate why the request cannot be accommodated. Under the FW Act, employers can only refuse a request if they have reasonable business grounds to do so.

Reasonable business grounds might include:

• that there would be significant cost implications for the business;
• the working arrangements requested would be likely to have a negative impact on customer service;
• there is a lack of capacity to reorganise work among existing staff; and
• there would be a detriment to productivity or efficiency in the business.

The employer’s failure to provide evidence of reasonable business grounds meant that their refusal was not justified. As this case demonstrates, employers must approach requests with care and a clear understanding of their legal obligations.

There have been a number of decisions of the FWC involving flexible working arrangement requests. You can read some of our other articles here, here and here.