One of the National Employment Standards in the Fair Work Act 2009 (Cth) (the FW Act) is the right to request a flexible working arrangement in certain circumstances. In or about mid-2023, the FW Act was amended to give the Fair Work Commission (the FWC) power to conciliate and arbitrate disputes about such requests.
This power was recently exercised by the FWC in the decision of Ridings v Fedex Express Australia Pty Ltd [2024] FWC 1845. The FWC’s comments in this matter provide some helpful guidance to employers about best practice for dealing with requests for flexible working arrangements.
The employee in this matter is employed by FedEx Express Australia Pty Ltd (the Employer)as a part-time clearance classifier.
Prior to the COVID-19 lockdown, he worked four days a week in the office. During the lockdown, he performed all of his working hours entirely from home. From September 2022, he worked two days a week in the office and two days from home, in accordance with the Employer’s hybrid working model. Then, in July 2023, employees were notified that they would be required to return to the office for three days a week.
After receiving this notice, the employee made a request for a flexible working arrangement. The request was to work in the office one day a week, with the remaining three days to be worked from home.
The basis for this request was that the employee has two children who are intellectually disabled and autistic, and his wife had also been diagnosed with autism. The Employer had been aware of these circumstances since at least October 2021; however, this most recent request also provided new information that his wife was diagnosed with Ehlers Danlos Syndrome and that the children had transitioned to homeschooling.
The employee sought the flexible working arrangement to enable him to provide support from home and mitigate risks by being able to help with small tasks from home. The employee stated that this was difficult to manage while he was in the office, but that he could do one day a week in the office as a compromise.
This request was refused on the basis that the arrangement would likely result in a loss of efficiency and productivity and because the Employer was seeking to encourage intentional and effective collaboration with more in-person interactions in the office.
While the request was denied, the Employer offered to continue the current arrangement of two days in the office a week. The employee agreed to this, but sought further clarification on the Employer’s concerns about a loss of efficiency and productivity. No response was received.
Ultimately, the employee did not return to the office and he took a significant period of time off work until December 2023 – largely due to an unrelated injury that prevented him from driving to work. When he returned to work, he continued to work entirely from home.
In January 2024, he submitted another request for a flexible working arrangement. This request was to work from home four days a week on an indefinite basis. The request was supported by largely the same information that he provided in July 2023.
Over the next two months, the Employer made several attempts to contact the employee and obtain further information about the request, specifically any changes to his circumstances since his last request and how he proposed to make this arrangement work both on a short- and long-term basis. While the Employer considered the request, it required the employee to attend the office twice a week.
The employee’s response was that his wife was having other conditions diagnosed but no medical treatment was available to improve/alleviate her condition, and that obtaining assessments of his circumstances was not feasible as it was too costly. Ultimately, he refused to return to the office at all.
The Employer met with the employee to proffer alternative options such as working his hours over five days or reducing his ordinary hours (and therefore, pay); however all were refused by the employee. The employee also sought to have meetings recorded and all correspondence provided to him in writing.
The employee’s request for a flexible working arrangement was ultimately refused again, on the basis that the Employer was committed to in-person collaboration and interaction and believed that it would lead to more productive and efficient working, the expectation for all employees was three days in the office, face-to-face presence allowed a balance of digital and physical interaction, and travelling to and from work was requirement of the employee’s role.
The employee rejected the refusal on the basis that there were no reasonable business grounds, there were no issues with his productivity and his personal circumstances were not taken into account.
There were two issues before the FWC – namely, that the Employer could only refuse the request if it had genuinely tried to reach agreement with the employee about making changes to his working arrangement to accommodate his circumstances, and only if the refusal was on reasonable business grounds.
The FWC was satisfied that the Employer had genuinely tried to reach agreement with the employee, but that the employee had not been entirely transparent about the circumstances that led to his most recent request. At the hearing, the employee raised that his carer demands had increased as his wife’s condition had worsened to the point that she was having difficulty swallowing food, but this had not been clearly put to the Employer. According to the FWC, had the employee provided this updated information, the Employer could have considered different working arrangements.
As to whether or not the Employer had reasonable business grounds to refuse the request, the FWC found that the Employer did not provide a sufficient explanation to the employee about the grounds for refusal.
It noted that the Employer was required to demonstrate a likely detriment to the business if the request was granted. However, the Employer did not substantiate its argument that there would be a likely detriment to productivity and efficiency. The FWC noted that there may have been concerns for the employee’s wellbeing, which necessitated regular attendance at the office so that the Employer could ensure adequate support processes, but this was not raised.
In finding that the Employer did not provide reasonable grounds for refusal, the FWC warned that “generic and blanket HR answers are not sufficient alone to establish a reasonable business ground for refusing a request”.
In deciding to make orders for a varied flexible working arrangement, the FWC noted its concerns that the employee had refused to comply with a reasonable and lawful direction to attend the office and had decided to work according to his own preference, without any authority to do so.
Accordingly, the FWC ordered a trial working arrangement (for three months) to allow the employee to work from home three days a week, with one day in the office. This was on the proviso that if the employee did not attend for two consecutive weeks or there were performance concerns / genuine operational requirements requiring his attendance, then the Employer could lawfully and reasonably request he work at the office.
As mentioned above, this decision provides some helpful guidance to employers about managing requests for flexible working arrangements.
Firstly, an employer must genuinely try to reach agreement with an employee about their working arrangements before it can refuse a request, including by seeking to better understand the employee’s circumstances (if necessary) and making effort to accommodate them as much as possible.
Secondly, employers must provide reasonable business grounds to support a refusal. These must be genuinely considered having regard to the specific circumstances of the request and should not be generic or blanket responses.
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