Many employers offer some level of flexibility for employees to work from home or remotely, some full time, others for a few days per week. This increased dramatically during the height of the COVID-19 pandemic, but since that time, employers are starting to decrease the level of flexibility offered and require employees to be in the office, either full time or at least for part of their hours. Naturally, this has resulted in some resistance from employees reluctant to return to the office, but what rights do employees have under the Fair Work Act 2009 (Cth) to insist on such arrangements, and how has the Fair Work Commission (the Commission) approached such claims?

Some employees can request flexible working arrangements. Employees need to have worked for the same employer for at least 12 months. Examples of flexible working arrangements include changes to:

• hours of work – for example, changes to start and finish times;
• patterns of work – for example, split shifts or job sharing; and
• locations of work – for example, working from home.

Employees need to follow certain rules when requesting flexible working arrangements. Employers need to follow certain rules when responding to these requests. If a dispute about these requests cannot be resolved at the workplace, the Commission can assist through conciliation or arbitration.

Full-time and part-time employees can request flexible work arrangements if they have worked with the same employer for at least 12 months and they are:

• the parent, or have responsibility for the care, of a child who is school aged or younger;
• a carer (under the Carer Recognition Act, 2010);
• a person with disability;
• 55 or older;
• pregnant;
• experiencing family and domestic violence; or
• a supporter or carer to an immediate family or household member experiencing family and/or domestic violence.

Casual employees can request flexible work arrangements if:

• they meet one of the above criteria (such as being a person with disability, being a carer or pregnant);
• they have been working for the same employer regularly and systematically for at least 12 months; and
• there is a reasonable expectation of continuing work with the employer on a regular and systematic basis.

Requests for flexible working arrangements must:

• be in writing;
• explain what changes are being asked for; and
• explain the reasons for the requested change.

Employers who get a request from an employee for flexible working arrangements need to respond in writing within 21 days. The response has to include whether the request is approved or refused. Employers and employees can agree to working arrangements that are different from what the employee had originally requested. Where this happens, the employer needs to confirm the agreed changes in writing within 21 days of getting the employee’s request.

An employer can only refuse a request on reasonable business grounds and if they have:

• discussed the request with the employee and genuinely tried to reach an agreement on alternative arrangements to accommodate the employee’s circumstances; and
• considered the consequences for refusing the employee’s request.

Reasonable business grounds can include:

• the requested arrangements are too costly;
• other employees’ working arrangements cannot be changed to accommodate the request;
• it would be impractical to change other employees’ working arrangements or hire new employees to accommodate the request; or
• the request:
  • is likely to result in a significant loss in efficiency or productivity; or
  • would have a significant negative impact on customer service.

The employer’s circumstances can be factored in when considering if the employer has reasonable business grounds for refusing a request. For example, the employer’s size and nature of the business.

When an employer refuses a request, the written response needs to include:

• the reasons for the refusal, including an explanation of the grounds for refusing and how they apply to the request;
• other changes the employer is willing to make or a statement that there are not any changes to be made; and
• information about getting help from the Commission for disputes about flexible working arrangements.

If the employer and employee cannot resolve a dispute about flexible working arrangements, they can apply to the Commission for help.

In a recent case, the Commission made it clear that a “mere preference” for working at home without providing sufficient evidence of responsibilities or needs, will not pass the first hurdle for a flexible work order. A long-serving technical specialist for a global software company applied for an order that would enable him to continue working from home two days a week, after the company ended its COVID-19 arrangements in February and directed employees to return to the office.

Although the employer cited a decline in customer satisfaction with IT support as well as cultural, mentoring and collaboration benefits, the specialist requested to continue working from home on Wednesdays and Thursdays, citing work-life balance and shared caring responsibilities for 8- and 10-year-old children with his wife, also an employee of the company. While the employer denied the request, it offered a one-day-a-week compromise, which the specialist rejected.

Deputy President Lyndall Dean said the specialist had not established “the requisite nexus between his stated circumstance namely, his responsibilities as a parent of school-aged children, and the change in working arrangements he seeks…[His] written request merely expressed a preference to continue with a pre-existing pattern of remote work and failed to articulate how working from home two days per week specifically supported or related to his parental responsibilities.”

The deputy president continued that while she understood that the specialist shared parental responsibilities for two school-aged children, “the evidence does not demonstrate that he is required to work from home two days per week in order to meet those responsibilities…[He] conceded in cross examination that he has no specific caring duties between the core working hours of 9:00 am and 5:00 pm, and that he and his wife are able to manage school drop-offs and pick-ups through existing flexibility including adjusted start and finish times.”

Further, the employer made genuine attempts to reach a compromise, including working shorter hours on specific days, she noted. “The [specialist] gave no explanation as to why these alternatives were unsuitable,” she said.

Valid requests for flexible work arrangements must be properly considered by employers and responded to in accordance with the Fair Work Act 2009 (Cth), but not every request must be granted, and legal advice can assist in resisting a request that cannot reasonably be accommodated.

This article was written by Chris Morey, Special Counsel, and reviewed by Clare Raimondo, Partner.