Recent amendments to the Fair Work Act 2009 expand employee rights to make flexible working arrangement requests. The changes also require employers to follow a detailed process upon receipt of such requests. The amendments also permit employees to escalate their requests and seek orders from the Fair Work Commission (FWC).
The FWC has recently delivered two flexible work request decisions.
Jorden Quirke v BSR Australia was the first FWC decision. Here, the Full Bench considered the prerequisites for a valid flexible work request, together with the meaning of “disability”. Shortly after this decision, a second decision was made by the FWC, which considered an employer’s reasonable business grounds for refusing an employee’s request for flexible working arrangements.
These decisions are both outlined below.
Jorden Quirke v BSR Australia [2023] FWCFB 209
Facts
Ms Quirke commenced employment with BSR Australia Ltd (BSR) on 23 May 2022 in the role of Customer Experience Coordinator. Ms Quirke’s usual place of work was from her home, subject to one day per week which she worked from BSR’s office.
On 5 April 2023, following verbal discussions concerning working hours, Ms Quirke sent an email to her manager requesting to work the following mock roster in line with her doctor’s recommendations:
At the time, Ms Quirke did not communicate that she had a disability despite her email referring to her doctor’s recommendations.
Ms Quirke received no formal written response to her email, though she did exchange messages on Microsoft Teams about it with her manager. She then emailed BSR’s HR Manager her “ideal roster”, which was the following:
On 14 August 2023, Ms Quirk engaged in the following exchange on Microsoft Teams with her manager:
Quirke: need to have a chat about my hours (again lol) if there[‘]s a good time today, wasnt sure whether to speak to you or alex
Manager: I was gonna book some WIPs today – so we can chat
only problem
I feel I have passed stuff on before and it hits a wall but your call
Quirke: yeah thats why I wasnt sure hahaha
I might see if alex has some free time today, but ill let you know in the wip what the hippy hap is so youre at least aware [emoji]
On 30 August 2023, in a Teams meeting, BSR’s HR Manager verbally informed Ms Quirke that her request for a change in working hours was denied. Ms Quirke subsequently filed an application with the Commission seeking an order requiring BSR to grant her request for altered hours.
Issue(s)
The issue before the Full Bench was whether Ms Quirke had made a valid request for flexible working arrangements and, if so, whether the Full Bench had jurisdiction to resolve the dispute about the supposed request through arbitration.
Determination
The Full Bench held that Ms Quirke had not made a valid request under Act, and consequently, there could not be a dispute about such a request that was capable of being arbitrated by the Full Bench.
The Full Bench set out the six requirements that must be satisfied for a request for flexible working arrangements to be valid. These are –
At the time of the request, at least one of the following circumstances must apply to the employee: they must be pregnant, have parent or carer duties, have a disability, be 55 or older or be experiencing family and domestic violence.
The employee’s request for changed working arrangements must be ‘because of’ and ‘relat[e] to’ a relevant circumstance.
The employee must have completed a minimum period of 12 months continuous service before making the request.
The request must be in writing.
The request must set out the details of the change sought and the reasons for the change. The ‘reasons for the change’ must identify a relevant circumstance and explain how the proposed change in working arrangements relates to that circumstance.
The request must have been made on or after 6 June 2023 (i.e., when the changes to the Act came into effect).
The Full Bench found that neither the request for altered working hours contained in Ms Quirke’s email of 5 April 2023, nor Ms Quirke’s Microsoft Teams exchange of 14 August 2023, constituted a valid request for flexible working arrangements. Her email failed to satisfy the third, fifth and sixth requirements, and her Microsoft Teams exchange failed to satisfy the second and fifth requirements.
The Full Bench observed that it also would have been difficult to conclude, on the balance of probabilities, that Ms Quirke had a ‘disability’ for the purpose of satisfying the first requirement. The Full Bench considered that the term ‘disability’ should be given its ordinary meaning, that is, it should be understood as referring to ‘a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses’.[1]
Ms Quirke relied on both the assessment contained in the Mental Health Plan prepared by her GP, and the letter prepared by her GP stating that she ‘experiences anxiety’ as evidence that she had a ‘disability’. While the evidence indicated that Ms Quirke believed she suffered from a disability, the Full Bench was not satisfied that the evidence showed she had been diagnosed with an anxiety-related disorder, or that her anxiety limited her movements, activities or sense. The evidence was therefore unsatisfactory.
Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768
Facts
Mr Gregory commenced his employment with salary packaging company Maxxia Pty Ltd (Maxxia) during the COVID-19 pandemic. Consequently, he has spent much of his tenure working from home.
Maxxia introduced a Hybrid Working Guidelines policy that required its employees to work at least 40 per cent of their hours from the office. In response, Mr Gregory submitted a flexible working arrangement application form to Maxxia requesting that he work 100 per cent of his full-time hours from home. His request was made on two grounds: (1) Mr Gregory suffered from inflammatory bowel disease; and (2) Mr Gregory was seeking a custody arrangement in which he would care for his school-aged child every second week.
Maxxia considered Mr Gregory’s request in light of the following factors:
Maxxia’s clients have high expectations of service delivery and productivity; they are the sole provider of salary packaging services for the South Australia Government; and there is an expectation that 99 per cent of calls are answered within three minutes, and emails within 2 business days; and
there are significant financial penalties under client contracts if Maxxia do not meet their contractual obligations; and
Mr Gregory’s daily productivity was approximately 50 per cent at the time he returned from secondment, which was below the target of 85 per cent; and
the existing support put in place for Mr Gregory was not achieving an increase in his productivity, and so it was advantageous to observe and support Mr Gregory in the office; and
someone with the tenure of Mr Gregory was valuable and needed to contribute to team culture, training and discussions, for the benefit of employees with lessor tenure and this can be done more effectively from the office.
Maxxia denied Mr Gregory’s request to work 100 per cent of his full-time hours from home, and instead proposed to allow him to work 20 per cent in the office until the end of September, and then 40 per cent in the office from 2 October 2023; and to allocate his office days to the week that he would not have custody of his son. Mr Gregory rejected the offer and sought to work 100 per cent from home.
After considering the further medical evidence from Mr Gregory’s doctor stating that he was suffering from a ‘situational crisis and inflammatory bowel disease’, Maxxia advised in writing that it would not agree to Mr Gregory working 100 per cent from home.
Issue(s)
The issue before the FWC was whether Mr Gegory had made a valid request for flexible working arrangements and, if so, whether Maxxia had refused the request on reasonable business grounds.
Decision
The FWC declined Mr Gregory’s orders to allow his request for flexible working arrangements on the basis that part of his request was not validly made and otherwise Maxxia had reasonable business grounds for refusing his request.
Judgement
The FWC adopted the principles laid down by the Full Bench in Jordan Quirke v BSR Australia Ltd.
The first ground upon which Mr Gregory made his request for flexible working arrangements was that he was suffering from a medical condition (inflammatory bowel disease) that required him to go to ‘the toilet with urgency and more frequency than usual’. The FWC therefore had to determine whether Mr Gregory’s medical condition constituted a “disability”.
The FWC accepted that Mr Gregory’s medical condition would be an ‘inconvenience’. However, it was not persuaded, on the medical evidence provided, that his condition was ‘capable of being described as a disability in the normal context of that word’. The medical component of Mr Gregory’s request was not valid, and therefore the FWC had no jurisdiction to make any orders on that part of the dispute.
There was no dispute that Mr Gregory’s responsibility as a parent for his school-aged child was a valid ground for requesting flexible working arrangements. This component of the dispute therefore fell within the jurisdiction of the FWC.
The FWC held that the nexus between Mr Gregory’s parental responsibilities and his request would only be triggered when the custody arrangement was agreed, and it would only relate to the period that he had custody of the child.
Ultimately, the FWC concluded that Maxxia had reasonable business grounds for refusing Mr Gregory’s request to work 100 per cent of his full-time hours from home. It accepted that ‘it is desirable for there to be face to face contact within [a] workforce team’ and that ‘a face-to-face presence would allow for observation, interaction and (if necessary) coaching to improve Mr Gregory’s productivity’. It also accepted that ‘Mr Gregory’s knowledge and experience could be more easily accessed by less experienced team members on a face-to-face basis’.
Relevantly, the FWC determined that Maxxia had followed all the procedural requirements in responding to Mr Gregory’s request for flexible working arrangements, including genuinely trying to reach an agreement with Mr Gregory and proposing alternative arrangements to accommodate his circumstances.
Finally, the FWC stated that Maxxia was ‘now within its rights to require its employees to return to the office in accordance with their contracts of employment’. Mr Gregory’s employment contract required him to attend Maxxia’s premises to perform work.
The Key Takeaways
The key lessons in these cases are –
Employees must provide evidence of a diagnosis of an anxiety-related or other mental health disorder, or demonstrate that their anxiety or other mental health issues ‘limit their movements, activities or senses’, to constitute a “disability” under the Act.
Employees must ensure that a valid request for flexible working arrangements is made. If an improper request is made, then the Commission will not have jurisdiction to make any orders relating to the dispute.
The FWC is most likely to adopt a “strict” approach to determining whether it has the relevant jurisdiction to decide a dispute over a request for flexible working arrangements.
Employers must ensure that they are aware whether an employee is making a formal request for flexible working arrangements under the Act. If so, employers need to deal with and respond to the request in accordance with the Act.
The reasons provided by Maxxia for refusing Mr Gregory’s request for flexible working arrangements provide a useful framework for employers to consider when receiving requests for full-time remote working arrangements.
Jasmine O’Brien
Principal
T +61 3 9611 0149
jobrien@sladen.com.au
Jordan Bauer
Senior Associate
T +61 3 9611 0130
jbauer@sladen.com.au
[1] Hodkinson v The Commonwealth [2011] FMCA 171, 207 IR 129.
