February 2023 – FWC deems employer’s denial of flexible work request unfair

The Fair Work Commission has deemed a Victorian employer’s refusal to grant a working mother’s flexible work request to be unfair. With the incoming Secure Jobs, Better Pay Bill changes, we could see more cases like this emerging.

Flexible working arrangements are a key part of many Australians’ professional lives. They allow employees to shift their work hours, patterns of work and/or work locations to take on other commitments such as carer and/or family responsibilities.

While many companies have already adopted some form of flexible work post COVID-19, it’s important to remember that flexible working arrangements are an enshrined right under section 65 of the Fair Work Act 2009 (Cth) (the Act). Under the Act, companies may only refuse requests for flexible working arrangements on ‘reasonable’ business grounds.

A common question that arises is, ‘What constitutes a reasonable request?’

In a recent Fair Work Commission (FWC) case, it was determined that a Victorian government agency lacked reasonable business grounds for rejecting an employee’s flexible working request related to parenting responsibilities.

Mother’s flexible work request denied

The employee concerned performed the role of an Advance Life Support Ambulance Paramedic. She is also a mother with three young children.

The employee was rostered to work overnight shifts between 6.00 pm and 8.00 am. However, the employee requested to change her shifts so she could work between 9.00 pm to 6.00 am to care for her children while her partner was at work.

The employee’s proposed roster would have allowed her to work 64 per cent of the overnight shift. The agency stated that the employee’s request was not practicable and therefore not possible. No further explanation was given.

The employee subsequently made an application under section 739 of the Fair Work Act 2009 (Cth) (the FW Act) for the FWC to resolve the dispute.

The employer’s reasoning

Commissioner Johns observed that the government agency, when refusing the request, informed the employee that it was simply not in a position to accommodate her request.

The agency, at no point in time, met and/or discussed with the employee its decision, nor did it make any genuine attempts to reach with the employee a mutually workable agreement.

During the hearing, the agency offered several explanations as to why it could not accommodate the request, including that it offered alternative forms of flexibility within the current rostering structure. But these explanations came a little too late. The issue was that none of these points were genuinely discussed with the employee before the agency declined the request.

Likening the agency’s refusal as having “all the hallmarks of Carol Beer’s drolly-delivered catchphrase in the sketch comedy TV program Little Britain: ‘Computer says ‘No”, Commissioner Johns, applying his own initiative, offered alternative rostering arrangements (within the parameters of the agency’s organisational structure) in which the employee could be rostered.

“There is simply no reason why [the agency] could not have accepted the [flexible working arrangement],” he remarked and, ultimately, decided that the agency’s refusal was unreasonable.

Lessons for HR and upcoming changes

This case is important for two reasons.

Firstly, it serves as a precedent providing useful insight into how the FWC may consider and determine disputes concerning flexible working arrangements moving forward. Traditionally, the FWC has generally been reluctant to intervene in matters involving flexible workplace arrangements, nor were disputes of this kind generally brought forward.

Secondly, the case sends a clear message to organisations reminding them that they cannot (and certainly should not) provide lip service or assume a tick-and-flick approach when refusing an employee’s request.

The upcoming changes from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 will provide a more stringent criteria for HR practitioners when refusing an employee’s flexible work request, requiring practitioners to specifically explain how those grounds apply to the request and, where possible, set out the proposed changes if they can be made to any extent. These changes take effect from 6 June 2023.

As part of the impending changes, an employee may request a change in their working arrangements if they require flexibility because they:

  • are the parent, or have responsibility for the care, of a child who is of school age or younger
  • are a carer (within the meaning of the Carer Recognition Act 2010)
  • have a disability
  • are 55 or older
  • are pregnant
  • are experiencing violence from a member of their family, or
  • provide care or support to a member of their immediate family or household, who requires care or support because they are experiencing violence from their family.

If an employee is the parent of a child or has responsibility for the care of a child and is returning to work after taking parental or adoption leave, the employee may request to return to work on a part-time basis to help them care for the child.

This case, together with the upcoming changes, reflect the changing perceptions of flexible work which have largely been prompted by the COVID-19 pandemic. To stress the point, HR practitioners are reminded that they should not outright reject an employee’s request for a flexible working arrangement under the guise of a ‘reasonable business ground.’

HR practitioners should carefully consider each and every request with the view to reach a workable solution. If a solution cannot be reached, clear-founded explanations should be provided within 21 days of receiving the request.

Abraham Ash is a Director and Victor Song is an Associate at Australian Business Lawyers & Advisors.

Source: HRM Online

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