Two recent cases, the first before the Fair Work Commission (‘FWC’), and the second before Queensland Industrial Relations Commission (‘IR Commission’), provide two distinct examples of what employer should do, and what an employer should not do, in terms of assessing a flexible work arrangements request.

Fyfe v Ambulance Victoria – Fair Work Commission Case

In this case, the FWC found an employer made “no genuine attempt” to consider an employee’s flexible work request, even though the arrangement would have benefitted its business. The employee requested that her night shift be changed from 6pm – 8am (14 hours) to 9pm – 6am (9 hours) to better accommodate her caring responsibilities.

The Ambulance Victoria manager denied the request on the basis “that type of night shift did not exist” and implementing “bespoke night shifts” would pose difficulties to the rostering system. Following the rejection of the request, the employee applied to have the FWC deal with a dispute in relation to the requested flexible working arrangements. The parties then sought to have the FWC assess whether the employer had reasonable business grounds for denying the employee’s request.

The FWC acknowledged that rostering the employee for a reduced 9-hour shift as opposed to the regular 14-hour shift was “not ideal from an operational perspective”. However, the FWC noted that the employee’s actual request was that she be used as a “spare” officer to fill any vacancies across the relevant branches during the reduced hours. Therefore, the request effectively served the business needs, as in just six months, the employer had 147 unfilled night shifts and regularly relied on overtime work to fill those deficiencies.

During the proceedings, the employer attempted to establish that it did indeed have reasonable business grounds to refuse the request, namely the structure of the employer’s government funding, the bespoke or hybrid nature of the desired shifts, and the “confounding operational difficulties” associated with the shifts.   However, the FWC was only prepared to consider the reason provided to the employee at the time of the rejection – that is, the Employer could not provide shifts outside the traditional roster system.

It is also relevant to note that Commissioner Johns noted that it was clear the employer failed to give any genuine consideration to the request, because their decision fundamentally went against common sense, having found that there was “simply no reason why [the employer] could not have accepted the FWA request”.  Commissioner Johns also noted that doing so would have aided, rather than clashed with, the employer’s operational needs. Instead, in making orders that the employee’s request be accepted, Commissioner Johns stated the employer’s decision-making was rather reminiscent of Carol Beer’s catchphrase “Computer says ‘no’”.

Hardy v State of Queensland – Industrial Relations Commission Case

In this case, the IR Commission found in favour of an employer who had denied an employee’s “unfettered demands” regarding flexible work.

In this case, a Senior Officer of the Queensland Department of Environment and Science submitted a flexible work arrangements application requesting to work from home three days per week. The employee claimed this arrangement would be beneficial to her health, wellbeing and productivity.

The employer denied the request on the basis that granting the request would be an imposition on the employee’s team, and questioning the amount of actual flexibility that would be achieved if it approved the arrangement. However, the employer recommended the employee apply for an arrangement that involved working from home five days a fortnight, in line with the Department’s policy of encouraging employees to attend the office for 50% of their work week.

The employee rejected this suggestion and brought a public service appeal application in the IR Commission to contest the decision, and on the basis the employer did not consider her application on its individual merits.

However, Commissioner Dwyer found the evidence made it “patently obvious” that the employer gave considerable thought to the employee’s request, noting that there are “very real practical and logistical barriers” which prevented accommodating the arrangement proposed by the employee. These included the fact that the employee was required to undertake:

• “desk-based” work which included meetings with colleagues,
• proactive investigations in-person;
• reactive compliance work, including in urgent circumstances; and
• maintain relationships and attendance in meetings and training.

Commissioner Dwyer emphasised that although the employee had the right to ask for a flexible working arrangements, this right did not extend to the making of unfettered demands, particularly where the employee made no attempt to apply for the alternative arrangements posed by the employer. In particular, the Commission observed that the genesis of the employee’s problem was the fact she lived an hour away from the workplace. In response to this, Commissioner Dwyer stated that the consequences of an employee’s personal choice to live in an area which requires a lengthy commute to the workplace does not place an obligation on the employer to accommodate their demands.

Key takeaways for employers

The above cases highlight what employers should do, and what they should not do, with respect to assessing employee requests for flexible working arrangements.

Noting, that working from home has become increasingly popular across a variety of sectors, it is critical that employers give genuine consideration to every proposed flexible working arrangement request and rely only on reasonable business grounds if they wish to deny the request.  Aitken Legal expects that the case law will continue to develop in terms of what are reasonable business grounds, and what are not.  Employers who are unsure as to whether they have reasonable business grounds to refuse a flexible working arrangements request should seek legal advice before communicating with the employee about their request.

Employers should also note that the Federal Government’s Secure Jobs, Better Pay legislation reform has introduced changes to flexible work arrangements under the Fair Work Act which will take effect on 6 June 2023. The eligibility criteria for making a request for flexible work arrangements will expand to include pregnant employees as well as employees who are affected by family and domestic violence.  Further, employees will become entitled to bring an application in the Fair Work Commission if a dispute over a flexible work arrangement request cannot be resolved at the workplace level. While the Commission will be required to first attempt to resolve the dispute using non-binding methods, such as conciliation or mediation, it has been empowered to force employers into binding arbitration should those methods not resolve the matter.

Contact one of Aitken Legal’s specialised employment lawyers today for guidance and assistance with any employment related matter.