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One of the effects of the amendments to the Fair Work Act 2009 (Cth) (FW Act) which came into effect on 6 June 2023 is that employers now have greater obligations when responding to requests for flexible working arrangements made under s 65 of the FW Act.

Specifically, employers must now discuss the request with the employee and genuinely try to reach agreement prior to refusing the request. Further, employers must provide a written response to the request which includes details of the “reasonable business grounds” for refusal and any changes the employer would be willing to make.

In the recent decision of Dudley v State of Queensland (Office of Industrial Relations) [2023] QIRC 212, the Queensland Industrial Relations Commission (the Commission) sheds light on how an employer may“ genuinely try to reach agreement” with an employee.  

The employee was employed as a full-time Tribunal Officer for the State of Queensland (Office of Industrial Relations) (the Employer).

After returning from a period of maternity leave in 2018, the employee worked under a series of agreed arrangements that allowed her to reduce her working days and work from home. The employee’s working from home arrangements were extended throughout the COVID-19 pandemic, however, she was eventually requested to transition back to work.

The employee subsequently entered a temporary Flexible Work Arrangement (FWA) where she worked two days a week. When this FWA expired, the Employer attempted to reach agreement with the employee about expanding her working days in office, however, it ultimately agreed to a further temporary FWA to allow time to assess the organisational impact of her absence.

Over the months that followed, the Employer continued in its discussions for the employee to increase her workdays and return to office. The discussions eventually ended when the employee rejected the Employer’s proposal that she work three days per week, with one of those days working from home.

The Employer provided the employee with written reasons as to why it was unable to support a further extension of her FWA. These reasons included that it was difficult to recruit suitably qualified staff who may be interested in part time or job share arrangements, an increase in the department’s workload, and other staff having to perform the employee’s duties when she wasn’t in the office.

The employee sought an internal review of the Employer’s decision however the decisionmaker ultimately agreed with the primary decision (the Internal Review).

The employee then appealed the Internal Review decision before the Commission, submitting that it was unfair and unreasonable for the Employer to refuse to accommodate her FWA given she hadn’t worked full-time for more than five years.

She further submitted that the Employer had been “disingenuous”, applied a “flawed logic” and confused genuine operational considerations with its “inability to effectively advertise and recruit”.

The Commission found the employee’s assertions to be a “slap in the face” of the Employer given the Employer had gone above and beyond to accommodate her requests throughout her employment.

The Commission stated with the passing of the pandemic, “operational requirements must again take precedence”, finding that the measures taken by the Employer during this time could not form a template for the employee’s role in the long term without mutual agreement.

On the evidence, the Commission found that the Employer had adhered to its obligations in refusing the employee’s request for the FWA, stating that:

• it had invested “too much time and effort” in trying to accommodate the employee, noting that “even half of the effort displayed” would have constituted genuine consideration;
• it had reasonable grounds to refuse the request, agreeing that it was required to ensure it has appropriate staffing levels to meet operational demands, which included managing employees’ working patterns across the work week; and
• it had clearly set out its reasons for refusal to the employee in writing, however, the employee was not prepared to accept any of these explanations.

The Commission went on to note that the fact the parties had failed to reach an agreement did not “displace the obvious genuineness” of the Employer’s consideration.

The Commission was therefore satisfied that the Employer had been fair and reasonable in refusing the employee’s request for a flexible working arrangement.

The Commission concluded the decision by acknowledging that while flexible working arrangements are an emerging trend in some workplaces, their long-term feasibility is still unknown, and they are “very far from having the status of being an inalienable employee right”.

‍Lessons for employers

Employers should be mindful of their increased obligations under the FW Act when responding to requests of flexible working arrangements. This decision is a prime example of how employers should genuinely try to reach agreement when it comes to flexible working arrangement requests.

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