Flexible working arrangement disputes – What does the Fair Work Commission say?

Written by Steve Bowler, Nicola Martin, Kim Hodge and Grace Kim, Squire Patton Boggs

A little over a year has now passed since the Federal Government’s “Secure Jobs, Better Pay” changes relating to flexible working arrangements (FWA) became effective. Squire Patton Boggs writes.

Of all the changes, the introduction of a dispute resolution process was particularly significant (and controversial), as an employee’s ability to request an FWA had previously been specifically excluded from the Fair Work Commission’s (FWC) dispute resolution processes under the Fair Work Act 2009 (FW Act).

Many employers and business groups expressed concern at the time these changes were announced, fearing that they may be flooded with applications from employees hoping to have decisions refusing requests for FWAs overturned, including requests involving working from home.

So, what is the state of play a year later? Is there a trend of employees successfully challenging employers’ decisions, or is the FWC supporting employers’ right to refuse an FWA request on reasonable business grounds?

A review of some the FWC’s recent decisions paints an interesting picture.

Summary of changes

Effective from 6 June 2023, the FWA provisions in the FW Act were amended to:

• expand the circumstances in which an employee may an FWA;

• increase the employer’s obligations when considering an employee’s request. Specifically, an employer cannot refuse an employee’s request unless:

  the employer genuinely tried to reach an agreement with the employee about making alternative arrangements to accommodate their circumstances;

  the employer had regard to the consequences of the refusal for the employee; and

  the refusal is on “reasonable business grounds”; and

• introduce dispute resolution provisions that empower the FWC to make orders where an employer refuses an employee’s request.

Recent Decisions

Some recent decisions highlight the FWC’s approach to resolving FWA disputes, notably, when an employer is considered to have “genuinely tried” to reach a compromise and what constitutes “reasonable business grounds” for refusal.

Shane Gration v Bendigo and Adelaide Bank Limited (2024) FWC 717

Mr Gration applied to the FWC after his request to work solely from home was refused. Mr Gration argued that he needed to work from home because he was the carer for his wife who had sustained a serious foot injury and responsible for the care of his school-aged daughter.

Bendigo Bank refused Mr Gration’s request as it had already adopted a hybrid working model (while encouraging employees to work in the office to meet the needs of the business and provide opportunity for meaningful team connection). Bendigo Bank also offered to allow Mr Gration to work from home or take carer’s leave if he needed to provide care for his daughter.

The FWC found in the employer’s favour, finding that it could not conclude on the evidence that Mr Gration was a carer within the meaning of the Carer Recognition Act 2010 (Cth).

It also found that the bank’s offer of an alternative arrangement was an appropriate response and there was no need for him to work permanently from home. As the Commissioner stated, “The Employment relationship is a twoway street.”

The Police Federation of Australia v Victoria Police/Chief Commissioner of Police (2024) FWC 1631

This application, which was lodged by the Police Association on behalf of Senior Constable Beaumont, involved a request to perform eight 10-hour shifts per fortnight on the basis that he was over 55 year of age and needed to care for his elderly parents.

Victoria Police refused this request and offered an alternative arrangement (a blended roster of four 10-hour shifts and five 8-hour shifts per fortnight). This offer was rejected by Beaumont.

The FWC ultimately held that Victoria Police had reasonable business grounds for refusing Beaumont’s FWA request because:

• as police officers worked in pairs and since other officers operated on 8 hour-shifts, it was reasonable for Victoria Police to reject Beaumont’s proposal in order to maintain productivity in accordance with the applicable enterprise agreement; and

• as his proposal would result in the loss of up to two operational shifts per fortnight, this had the potential to create a service delivery problem.

Notably, the FWC also encouraged Beaumont to reconsider the alternative offer of a blended roster, with the commissioner stating, “a part-way compromise is still better than nothing at all."

Ambulance Victoria v Natasha Fyfe (2023) FWCFB 104

This was an appeal from a decision that predated the changes to the FWA provisions.

In the initial decision, Ms Fyfe, a paramedic, requested to amend the start and finish times of her night shift hours pursuant to her right to seek an FWA under her enterprise agreement, so she could care for her three young children.

Ambulance Victoria refused this request on the grounds that a shortened night shift did not exist, they were unable to accommodate shift start/finish times outside of the team roster configuration, and there was insufficient resourcing in Ms Fyfe’s area to accommodate the request. In the first instance, the FWC rejected Ambulance Victoria’s argument This decision was challenged on appeal.

The FWC found that Ambulance Victoria lacked reasonable grounds for refusing the request, noting that it did not attempt to meet or hold discussions with Ms Fyfe before confirming its decision.

In applying the newly introduced FWA provisions, the FWC upheld its initial decision.

The FWC found that Ambulance Victoria lacked reasonable grounds for refusing the request, noting that it did not attempt to meet or hold discussions with Ms Fyfe before confirming its decision.

The FWC also observed that the reasons provided for refusing the request were relatively trivial, likening Ambulance Victoria’s explanation that the service area could not provide start and finish times outside the roster configuration to the Little Britain catchphrase, “Computer says No”.

Key takeaways

These decisions show that the FWC is prepared to uphold an employer’s right to refuse a request on reasonable grounds, particularly if the request involves a significant change in working arrangements (such as solely working from home).

However, these grounds must be valid, explained in detail and conveyed clearly to the employee.

Further, these decisions illustrate the FWC’s focus on the “two-way street” nature of the employment relationship.

This means employers must genuinely try to accommodate the employee’s needs by offering alternative arrangements where a request cannot be fully accommodated, and employees must be willing to compromise where possible.

To minimise the risk of disputes being escalated to the FWC, employers need to ensure employee FWA requests are handled appropriately within the business.

Some key takeaways include:

• ensure there is no blanket “say no” approach to requests for FWAs. Employers should consider whether their FWA policies and/or procedures need to be updated to set clear guidelines on when the employer may refuse a request on “reasonable business grounds”;

• if a FWA request cannot be fully accommodated, consider whether an alternative arrangement can be made that takes into account an employee’s individual needs and circumstances; and

• ensure there is a clear process within the business for engaging with employees to discuss any alternative arrangements.