Australia’s FWC rules in first ever flexible working arrangement dispute

The decision (18-page PDF/365KB) is the first of its kind since the introduction of important changes to the flexible working provisions in the Fair Work Act 2009 (Act) in 2022. The claim was brought by an employee against her employer for rejecting her flexible working request. The basis for her changes in working hours was on the recommendation of her GP “to aid the relief of her insomnia and anxiety”.

Sydney-based workplace relations experts Neil Napper and Stefania Silvestro of Pinsent Masons said that although the decision is the first of its kind, applications by employees to the FWC to deal with flexible working disputes are likely to increase.

“As employers continue to push for a return to the office post-COVID, it is important they understand the rights and avenues employees have when making requests for workplace flexibility and how to respond to those requests,” said Napper.

In its decision, the FWC made it clear that to deal with a dispute about requests for flexible working arrangements, it is a pre-requisite that a request for flexible work arrangements be made under section 65(1) of the Act.

The FWC set out the requirements for a validly made flexible work arrangement request. It requires the employee to meet at least one of the relevant set of circumstances as provided by the Act; the request for a change in working arrangements must relate to the relevant circumstances applying to the employee; the employee must have completed 12 months’ continuous service; the request must have been formally made to the employer in writing; and the request must explain both the nature of the changes sought and the basis for them.

As the ruling demonstrated, to be a valid request, all of these requirements must be satisfied. The absence of one requirement will invalidate the entire request. In addition, the request itself had to have been made on or after 6 June 2023, once the relevant flexible working provisions came into effect.

In this case, the FWC held the employee’s request was invalid because she did not identify in writing the reasons for the change sought by reference to any of the circumstances under the Act and she had less than 12 months’ continuous employment.

The FWC also made clear that other communications made via Microsoft Teams messages between the employee and her manager could not constitute “requests” for the purposes of the flexible work provisions. The FWC stated: “[the] Teams message could not, on any view, be considered a request under s 65(1) because it does not communicate any request for a change in working arrangements supported by reasons, but is rather only a request for a discussion”.

“It is clear that the FWC will take a strict and technical approach to flexible working disputes.  It is imperative that employers educate and train their people mangers to understand the requirements for valid flexible working requests and how to properly consider and respond to such requests,” said Napper.

While the FWC was satisfied that the employee’s request was invalid, given the novelty of the dispute, it went on to make significant comments about whether the employee would have been able to demonstrate she had a disability as the basis for her request.

The FWC clarified that the term “disability” ought to be given its ordinary meaning, which is “the underlying diagnosed medical or physiological or psychological condition”, as well as “the symptoms or manifestations of the disability”.

On the employee’s evidence, it was apparent she “believed” she suffered from a disability. However, the FWC said there is an important distinction between a diagnosed anxiety-related mental disorder – which would indeed constitute a disability – and anxiety as “a normal emotional reaction to stress”.

In a separate decision shortly after, the FWC held similarly that an employee’s inflammatory bowel disease, although no doubt “an inconvenience”, was “not capable of being described as a disability” such as to form the basis of a flexible working request.

“Contrary to popular misconception, and discrimination issues aside, not everyone is eligible to make a request for flexible working arrangements under the FW Act,” said Silvestro.

There are seven circumstances in which an employee is eligible to do so under the Fair Work Act. Those include where the employee has responsibility for the care of a child who is at school-age or younger or where the employee has a disability, she explained.

“Although the employee was unsuccessful in her application in this instance, it is important to note that each employee’s circumstances will be different, and ought to be assessed individually.  Certain requests by employees may trigger other obligations by the employer, including for example possible obligations to make reasonable adjustments to the employee’s role, under discrimination legislation,” she said.