An employee will only be eligible to request a flexible working arrangement if they are able to demonstrate that there is a sufficient nexus between one of the prescribed circumstances under the Fair Work Act 2009 (Cth) (FW Act) and the request itself.
Section 65(1A) of the FW Act provides a limited list of circumstances which may form the basis of an employee’s flexible working request – including, but not limited to, if the employee is pregnant, is the parent or has the responsibility for the care of a child, has a disability or is over 55 years of age.
The connection between an employee’s individual circumstances and their request was recently considered by the Fair Work Commission (FWC) in the decision of Fogo v Boeing Aerostructures Australia Pty Limited [2024] FWC 3037.
The employee in this matter is employed by Boeing Aerostructures Australia Pty Limited (the Employer) as a full-time Planning Engineer. He applied to the FWC to deal with a dispute about his flexible working request and sought orders for his request to be granted.
The FWC heard that the employee made a request for a flexible working arrangement in or around March 2024 to work from home Mondays and Fridays each week.
The request was made on the basis that the employee is over 55 years of age and is seeking to transition to retirement. The employee lived alone and was concerned about the state of his mental health during retirement in circumstances where he benefits from social exposure while at work.
In or around April 2024, the Employer met with the employee to discuss his request. At the meeting, the Employer proposed an alternate arrangement of the employee working from home for up to three days per month. The employee ultimately rejected this proposal.
As a result, the Employer provided the employee with a letter refusing his request on reasonable business grounds and restating its alternate proposal. The business grounds relied on by the Employer were as follows:
The Employer cited that its reasons for refusal considered the nature of the employee’s role (which was not passive and able to be performed in a remote environment) and its desire to capitalise on his experience and expertise in light of the change in business circumstances since the COVID-19 pandemic.
The FWC was required to consider two issues – the first being whether the employee had requested a flexible working arrangement in accordance with the FW Act and the second being whether the request was refused on reasonable business grounds.
In relation to the first issue, the FWC stated that for there to be a sufficient nexus between an employee’s individual circumstances (as prescribed under the FW Act) and their request, consideration must be given to whether there is an “objective and rationale connection between the circumstances of the employee and the request”.
The FWC stated that it was uncontroversial for employees over 55 years of age to be at a stage in their working life where they are considering retirement.
However, in the present case, the FWC found that the employee had not established a connection between his circumstances (being over 55 years of age and transitioning to retirement) and his request to work from home on Mondays and Fridays.
In coming to this position, the FWC found that the employee had failed to:
The FWC added that it was not clear how working from home would assist the employee in transitioning to retirement in circumstances where he would still be performing his normal hours of work and interacting with colleagues as required, but in a digital environment.
It is for these reasons that the FWC determined that there was no objective rational connection between the employee’s age and his flexible working request. Accordingly, the FWC held that it did not have jurisdiction to arbitrate the dispute.
The FWC was not required to consider the second issue in dispute due to want of jurisdiction. However, for completeness, it found that the Employer had provided sufficient evidence to demonstrate that it had reasonable business grounds to refuse the request.
In dismissing the application, the FWC encouraged the employee to return to the alternate proposal offered by the Employer and reconsider his position.
This decision provides some useful guidance for employers when navigating employee requests for flexible working arrangements.
Specifically, employers should consider whether the employee has demonstrated that there is an “objective and rational” connection between their individual circumstances (which are limited to those set out under section 65(1A) of the FW Act) and the request itself.
In this decision, the FWC was notsatisfied that such a connection existed between the employee’s age and his requestto work from home two days a week.
As a sidenote, it may be prudent, in light of people now living much longer, for the FWC and governments to reconsider whether 55 is still the appropriate age for retirement discussions.
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