Flexible Workplace Arrangements – How Much Flex Is Enough Flex?

The Fair Work Commission (‘FWC’) recently reviewed an application from an employee whose employer had denied his request for a flexible working arrangement. Charles Gregory v Maxxia Pty Ltd (C2023/5280) has provided employers with some useful lessons in understanding how much they need to “flex” when it comes to requests under section 65 of the Fair Work Act 2009 (Cth) (‘Act’).

Section 65 (1A) of the Act provides that employees may make requests for flexible working arrangements where:

(a) the employee is pregnant;

(b) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

(c) the employee is a carer (within the meaning of the Carer Recognition Act 2010);

(d) the employee has a disability;

(e) the employee is 55 or older;

(f) the employee is experiencing family and domestic violence;

(g) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing family and domestic violence.

An employee is not entitled to make the request unless the employee is a permanent employee and has completed at least 12 months of continuous service with the employer immediately before making the request, or is a casual employee, who immediately before making the request, was a regular casual employee of the employer and who was employed on that basis for a sequence of periods of employment during a period of at least 12 months and had a reasonable expectation of continuing employment by the employer on a regular and systematic basis

Finally, the Act provides that any request for a flexible working arrangement must be in writing and must outline the details of the change sought and of the reasons for the change.

There were two grounds for his request:

1. Mr Gregory was the parent of a child who was of school age. At the time of applying for the arrangement Mr Gregory was caring for his child for one day every two weeks but was separately seeking a custody arrangement that would provide him custodial access on a week on week off basis; and
2. Mr Gregory suffered from inflammatory bowel disease, which was confirmed by his General Practitioner (‘GP’).

Maxxia considered Mr Gregory’s application and assessed the following factors:

• Maxxia’s clients services and employee productivity expectations and the possibility of significant financial penalties should Maxxia not meet its contractual obligations;
• Mr Gregory’s current level of productivity (which at the time was below targets);
• Mr Gregory’s recent role change into a specialist role and the additional training and support sessions Maxxia had provided to Mr Gregory;
• Maxia’s desire for Mr Gregory to be able to share his experience and contribute to team culture, team training and team discussions; and
• Maxia’s desire to adopt a fair and consistent approach across the team in applying the Hybrid Working Guidelines, and only allow exceptions that were genuinely required.

Later the same day Maxxia advised Mr Gregory in writing that it would not agree to the request, on the basis that:

• there had been formal discussions between the parties;
• Maxxia had made genuine efforts to reach agreement about a flexible working arrangement to accommodate his medical condition and parental responsibilities;
• Maxxia had committed to other forms of flexibility if Mr Gregory’s access to his son under custodial arrangements increased; and
• Maxxia had considered the consequences of refusal and said that the application was refused on reasonable business grounds pursuant to section 65A(3)(d) of the Act.

Mr Gregory, who was the Applicant, lodged an application for the FWC to deal with a dispute under section 65B of the Act regarding his request for a flexible work arrangement which had been declined by his employer, Maxxia, who was the Respondent.

The FWC found that Mr Gregory was entitled to apply for a flexible working arrangement as he had more than 12 months continuous service and was a permanent employee.

The FWC was not persuaded by either of the two justifications given by Mr Gregory in support of his application for a flexible working arrangement:

(a) in relation to Mr Gregory suffering an inflammatory bowel disease that required him to go to the toilet with urgency and more frequently than usual, the FWC did not find the medical evidence submitted compelling and noted Mr Gregory was not seeking on-going treatment to address his condition. The FWC did not find the medical condition sufficient to meet the definition of a disability as per section 65(1A)(c) of the Act and instead characterised it as an inconvenience; and

(b) in relation to Mr Gregory’s intention to negotiate an agreement with the mother of his child that would secure him increased custodial access from one day a fortnight to one week out of two, the FWC noted that the flexible working arrangement to work from home 100% of the time would only be necessary once the custodial arrangement was changed and he would only need to work from home 100% of the time in the weeks where he had custodial responsibilities.

In a post COVID-19 environment where the issue of what is a reasonable level of flexibility is in flux, this case illustrates the need for employers to:

• give proper and genuine consideration to requests made by employees for flexible working arrangements;
• engage with employees in genuine discussions about the flexible working arrangement request;
• earnestly try and find solutions including employers offering alternative flexible working arrangements;
• make reasonable accommodations to facilitate a flexible working arrangement; and
• document the process, outcomes and formally advise employees in writing of the decision reached.

It also illustrates that employers can (where all the steps above have been followed) deny a flexible working arrangement request based on reasonable business grounds, and that they do not need to provide unlimited flexibility to employees when it comes to flexible working arrangements.

If you would like to know more about flexible workplace arrangements and how to proactively manage the challenges and demands of modern working flexibilities, please contact us and a Mapien Workplace Strategist will be in touch within 24 hours.