Fair Work Commission offers guidance on flexible work arrangements

The media has been filled with recent reports of various companies including ANZ, Origin Energy, Suncorp and Amazon mandating that employees return to working from the office for certain percentages of time. Many of these companies are imposing penalties, such as withholding bonuses for employees who do not meet minimum office attendance requirements. So how do these attendance mandates work in the context of the Fair Work Act 2009 (Cth) (FW Act) and the rights for certain employees to make flexible work requests?

Two recent decisions of the Fair Work Commission (FWC) provide guidance for employers about the FWC's approach to disputes about requests for flexible working arrangements.

As a result of amendments to the FW Act, the FWC has had power to conciliate and arbitrate disputes about flexible work requests since 6 June 2023.

Jordan Quirke v BSR Australia Ltd¹ (Quirke) is the first Full Bench consideration of these new provisions and provides a helpful restatement of the requirements for a valid request for flexible working arrangements. In Charles Gregory v Maxxia Pty Ltd² (Gregory), Commissioner Platt agreed with the employer that reasonable business grounds could include matters such as productivity and supervision, learning opportunities for junior team members, and interaction with others.

Key takeaways for employers

This matter demonstrates that an employee is only eligible to make a request for flexible working arrangements if:

• at least one of the following circumstances under section 65(1A) of the FW Act applies to the employee at the time of the request:
  • the employee is a parent of a child of school age or younger;
  • the employee is a carer;
  • the employee has a disability;
  • the employee is aged 55 or over;
  • the employee is experiencing family violence or is supporting an immediate family member or household member facing family violence; or
  • the employee is pregnant;
• the employee's request for flexible work is "because of" that relevant circumstance - there must be a causal link;
• the employee meets the relevant minimum period of service immediately before making the request (12 months for non-casual employees); and
• the request is made in writing, setting out the details of the change sought and the reasons for the change. In Quirke, a Microsoft Teams message requesting a discussion about flexible working arrangements did not meet these formality requirements.

It also highlights that:

• the FWC can deal with disputes about flexible work requests provided the request was made on or after 6 June 2023 and the dispute has not been resolved internally.
• where the reason for a request is an employee's disability, sufficient medical evidence is required of that disability. In Quirke, the Full Bench was not satisfied that the applicant's anxiety constituted a disability, having regard to anxiety as a normal emotional response to stress as opposed to anxiety as a diagnosed medical disorder.
• factors such as supervision, productivity, team culture and learning opportunities provided by face-to-face office attendance may constitute reasonable business grounds for refusing a request to work remotely. Of course, this will depend on the employee's role, as well as the particular circumstances of the employee and employer.

Employers also need to remember that discrimination law can have a role to play and that a failure to agree to a flexible work request could amount to a failure to make reasonable adjustments and be unlawfully discriminatory in certain circumstances.

Employee's flexible work request falls down on all requirements

In Quirke, a Full Bench considered a refusal by BSR Australia Limited to grant a request for flexible working arrangements.

In April 2023, before the new provisions under the FW Act were in effect, Ms Quirke emailed her team leader and provided a "mock roster" which she said would "be in-line with [her] doctor's recommendations". She forwarded this email to the HR manager in May 2023. In August 2023, Ms Quirke then sent a Microsoft Teams message to her team leader saying she "need[ed] to have a chat about [her] hours (again lol)". She was subsequently verbally informed that her request was denied. Ms Quirke made an application to the FWC challenging her employer's refusal of the request on reasonable business grounds. The Full Bench upheld the refusal for the following reasons:

• Ms Quirke did not identify in writing the reasons for the requested change by reference to any of the circumstances in section 65(1A) of the FW Act. Although Ms Quirke's April 2023 email referred to her doctor's recommendation, it made no reference to Ms Quirke having a disability.
• Ms Quirke had not completed 12 months' continuous service when she made the email request in April, nor when she forwarded the request in May.
• In any case, the April request predated the commencement of the new FW Act provisions on 6 June 2023.
• Ms Quirke's Microsoft Teams message in August 2023 did not constitute a request within the meaning of section 65 of the FW Act. This was because it only included a request for a discussion, rather than being a request for a change in working arrangements supported by reasons.
• Even if Ms Quirke had complied with the formality requirements, the Full Bench would have had difficulty being satisfied on the evidence that Ms Quirke had a disability within the meaning of the FW Act.

Anxiety as a normal emotional response distinguished from disability

Given Ms Quirke's application was the first of its kind under the new provisions, the Full Bench provided some guidance regarding its observations about the insufficiency of the evidence regarding the alleged disability.

• "Disability" is not defined in the FW Act and should be given its ordinary meaning.
• While a diagnosed anxiety-related mental disorder may constitute a "disability" within the ordinary meaning of that term, this can be distinguished from anxiety as a normal emotional reaction to stress.
• Ms Quirke had provided a letter from her general practitioner stating that her shift roster had been identified as the cause of her insomnia and as a contributor to her anxiety. However, the letter did not say that Ms Quirke had been diagnosed with an anxiety-related disorder nor did the letter say that the anxiety limited her movements, activities or senses.
• While the Full Bench did not need to express a definitive conclusion in circumstances where the request itself was not valid, the Full Bench noted that it was difficult to conclude on the balance of probabilities that Ms Quirke had a disability in the absence of clear evidence of a medical diagnosis.

Similarly, in Gregory, Commissioner Platt found there was insufficient medical evidence to establish that Mr Gregory's irritable bowel syndrome (IBS) constituted a disability, and only his caring responsibilities for his school-aged child were relevant in assessing his flexible work request. Needing to go to the toilet with more urgency and more frequently than usual was acknowledged as "an inconvenience", and the medical evidence provided was not sufficient to establish a disability. Commissioner Platt noted that Mr Gregory had not sought ongoing treatment and had only attended a couple of online medical appointments for his condition.

Reasonable business grounds to refuse 100% work from home request

In Gregory, Mr Gregory had made a request to work from home 100 percent of the time due to his caring responsibilities and IBS.

This was refused by Maxxia on reasonable business grounds including:

• Mr Gregory's low productivity (daily productivity of approximately 50 percent, below the target of 85 percent);
• Mr Gregory was moving into a specialist role which had a different skill set;
• it would be advantageous for Maxxia to observe and support Mr Gregory in the workplace, in order to improve productivity and reduce errors, but also in relation to his mental health; and
• an employee of Mr Gregory's tenure was valuable and needed to contribute to team culture, training and discussions, for the benefit of employees with lesser tenure, and this could be done more productively from the office.

Maxxia proposed a 20 percent work-from-office arrangement, increasing to 40 percent only in the weeks when Mr Gregory did not have custody of his son. Mr Gregory did not accept this proposal and subsequently made an application to the Fair Work Commission.

Commissioner Platt accepted that the request had been refused on reasonable business grounds. Helpfully, Commissioner Platt specifically noted that factors such as supervision, productivity and increased support, as well as the importance of face-to-face interactions with less experienced team members, constituted reasonable business grounds for refusing a request for flexible work arrangements.

Next steps

Employers are reminded of the importance of having clear processes in place for assessing and responding to requests for flexible working arrangements.

For guidance on employer obligations under the FW Act, examples of common flexible working arrangements, and possible reasonable business grounds for refusing a request, view our previous update.

Please contact our Workplace Relations & Safety team for assistance with reviewing and updating your practices for responding to flexible work requests.

¹ [2023] FWCFB 209.

² [2023] FWC 2768.