- In its recent review of the Fair Work Act 2009 (Cth) (FW Act), the Review Panel considered submissions on the operation of the right to request flexible work arrangements. The FW Act currently provides that certain employees responsible for the care of a child under school age, or a child with a disability who is under 18, can request a change in working arrangements to assist with their carer responsibilities. Employers can only refuse such a request on reasonable business grounds.
- The Review Panel recommended that the right to request flexible work arrangements be extended to allow a wider range of people with caring responsibilities access to the provisions (eg for elder care). The Review Panel also recommended amendment so that an employer can only refuse a request for flexible work arrangements after the employer has held at least one meeting with the employee to discuss the request.
- While the government has not yet indicated whether it will adopt and implement these recommendations, two recent cases provide some guidance on the considerations that are relevant when a decision to refuse a request for flexible work arrangements is made.
- These cases demonstrate that employers have scope to refuse requests for flexible work arrangements where the arrangements conflict with the employer’s genuine and reasonable operational needs.
Considering a request for flexible work arrangements under an enterprise Agreement
In AMWU v Mildura Rural City Council,1 Fair Work Australia (FWA) was asked to determine the proper application of the Council’s Enterprise Agreement (EA). The EA stated that an employer and employee ‘may agree to make’ an individual flexibility agreement.
Mr Hickey was a council labourer who requested that his standard work hours of 7:30am–4pm be changed to 8:30am–5pm to allow him to take his son to school in the mornings. His request was considered by the Council and was refused for operational and occupational health and safety reasons.
Deputy President Smith noted that the clause in question was facilitative and not mandatory. However, this did not mean that the Council had scope to refuse a request for ‘artificial or capricious reasons’. Deputy President Smith found that the Council properly considered the request and made its decision after having closely examined its operational needs. He noted the following relevant factors:
- the Council established that it had previously supported a large number of flexible work requests from employees.
Mr Hickey’s proposed alteration of working hours would have a significant impact on the Council’s operations because, under his proposal:
- Mr Hickey would require special transport to and from the various sites at which he was required to work,
- for a part of the day, Mr Hickey would be working alone and without adequate support if an incident occurred, and
- Mr Hickey would miss important weekly toolbox meetings that often dealt with administrative and occupational health and safety matters.
FWA was satisfied that this amounted to proper consideration of the request and agreed that these factors justified its refusal.
Reasonableness of policies mandating certain work arrangements
In Carlisle v Commissioner of Police,2 a public servant of the Western Australia Police (WAPOL) made various complaints of breach of equal opportunity legislation on the basis that his requests to work from home to care for his sick wife were rejected.
The case deals with claims of discrimination on the basis of family responsibilities under the Equal Opportunity Act 1984 (WA) and has a complicated factual background, however the Tribunal made some helpful comments regarding the reasonableness of policies which require attendance at the workplace and also highlighted the importance of employees properly communicating their request for flexible work to their employer.
WAPOL had a policy which dealt with home-based work arrangements. The policy required that home-based employees spend at least 20% of their time at the workplace to:
- maintain communication, knowledge and awareness of workplace issues,
- attend relevant meetings and planning days, and
- meet with managers or supervisors to discuss work progress etc.
The Tribunal held that this requirement was reasonable in light of the benefits of ensuring attendance, namely participation in meetings, avoiding isolation, training, and career development.
This decision also highlights the importance of employees properly articulating their request for flexible work arrangements and the reason for those requests if they are to be properly considered by employers. It was found that a number of Mr Carlisle’s alleged requests were not communicated as requests for flexible work arrangements (as opposed to, for example, requests for unpaid leave) and Mr Carlisle did not make it clear that the reason for his requests was the need to care for his sick wife.
All claims were rejected by the Tribunal.
Implications for employers
- While the right to request flexible work under the FW Act is confined to employees with certain parental responsibilities (as identified above), equal opportunity legislation may impose obligations on employers in relation to requests for flexible work made by a broader range of employees. For example, under the Victorian Equal Opportunity Act 2010, employers must not unreasonably refuse to accommodate the responsibilities an employee has as a parent or carer. The definition of carer under the Act is broad and includes any person on whom another person is wholly or substantially dependent for ongoing care or attention.
- Where a court or tribunal is asked to consider an employer’s decision to refuse a request for flexible work arrangements, the focus will be on the reasons for the decision. Documentation of the consideration process and the reasons against granting the request will be important. Employers should ensure that those within the business who are involved in this process understand the ‘reasonable business grounds’ considerations, consider all relevant options and keep proper records of their deliberation process.
- While employers need to give proper consideration to employees’ requests, such requests can legitimately be refused where, after proper consideration, they can be shown to conflict with genuine operational needs.
- Where employers can point to a history or pattern of support for individual flexibility agreements, courts are likely to be more sympathetic to their refusal of a particular request.