Flexing on flexible work requests

There has been a lot of discussion about organisations and leaders requiring employees to return to the office.

Flexible work is part of the structural and cultural change we need to empower parents and carers in the workplace to manage (as some weeks that's all we can hope for), progress and thrive. It is not the only solution, but it's part of it. For many women in particular, it has been a game changer in balancing work and care. As the gender pay gap persists and the progress of women into senior leadership roles is painstakingly slow, insisting on a full time return to work in the office is dangerous.

From a diversity, equity, inclusion and well being point of view, the research on this and data shared in Broken to Safe is undeniable including insights from Catherine Fox AM Lisa Annese and Diversity Council Australia Ltd. Flexible work benefits workers, organisations, communities and our economy. The benefits are win win. This is not a zero sum game.

Putting all this aside (although we shouldn't) - what does the law say?

Can employers and leaders insist on a blanket return to the office?

In short: It depends.

Following is our analysis of the current law and evolving Fair Work Commission (FWC) decisions with thanks to our talented Hall & Wilcox senior associate Emily Capener for her contribution to this piece.

The current legislation

On 6 June 2023, amendments to the Fair Work Australia Act 2008 (Cth) (the Act) gave the FWC power to conciliate and arbitrate disputes in relation to requests for flexible work arrangements (FWA). There have been several decisions since this time that provide insight into the key considerations of the FWC when determining a FWA dispute.

Eligibility criteria at law

To make a valid request, employees must meet certain eligibility criteria pursuant to section 65 of the Act. An employer can reject a request where an employee does not:

• meet the minimum period of service 12 months;
• fall within a circumstance under section 65(1A);
• make the request in writing; and
• set out details of the change and reasons for change.

In Jordan Quirke v BSR Australia Ltd, the FWC found a Microsoft Teams message asking to discuss a request for altered working hours was not valid.[1] In this case, the employee had made an initial request prior to the amendments and sought to rely upon a subsequent Microsoft Teams message as the basis for its application.

'Circumstances' where flexible work requests are permitted at law

To be eligible to make a request, an employee must first fall within a circumstance specified under section 65(1A) of the Act, being the employee:

• is pregnant;
• is a parent or has the responsibility for the care, of a child who is of school age or younger;
• is a carer (within the meaning of the Carer Recognition Act 2010);
• has a disability;
• is 55 years or older;
• is experiencing violence from a member of the employees’ family; or
• 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.

Employees must provide sufficient evidence relevant to the circumstance. An employer can request information to confirm whether an employee falls within circumstances and can reject a request where information is not provided. The FWC has indicated that further evidence may be necessary in order to confirm the existence of an employee’s disability or carer status.

In Gregory v Maxxia Pty Ltd, the employee submitted a request to work from home full time on the basis that he was suffering from a ‘disability’ due to his inflammatory bowel disease.[2] Whilst the FWC accepted the condition may have caused an ‘inconvenience’, the employee failed to provide medical evidence which persuaded the FWC that he suffered from a disability within the ordinary meaning of the word.[3]

In another case, Gration v Bendigo Bank, the employee requested to work from home full time on the basis that he was the carer for his wife suffering from a foot injury and school aged child diagnosed with ADHA.[4] The FWC considered there was insufficient evidence which supported the position that he met the definition of ‘carer’ within section 5 of the Carers Recognition Act. In particular, the FWC focused upon the lack of medical evidence regarding the wife’s medical condition and information concerning her support needs.[5]

Nexus between the request and the relevant circumstance

The FWC has held the mere existence of the circumstance is insufficient. Employees need to also demonstrate an ‘objective and rational connection’ between the relevant circumstance and the request being made.[6] Employers must consider whether the employee has demonstrated that such a connection exists. The FWC has indicated where an employee seeks to rely on their age as reason for their desired change to working arrangements, it may be more difficult to establish a ‘rational and objective’ connection and further evidence may be required.

In Lloyd v Australia And New Zealand Banking Group Limited, the FWC considered a FWA dispute relating to an employee’s request to work from home because they were over 55 years old and therefore at higher risk of contracting COVID-19.[7] Here, the requesting employee did not provide specific evidence to demonstrate how their risk of contracting COVID-19 was higher because of their age.

Similarly, in Fogo v Boeing Aerostructures Australia Pty Ltd, a full time engineer made a request to work from home two days a week on the basis that he was over the age of 55 and wanted to ease his transition into retirement.[8] The employee lived alone and was concerned his mental health would decline when he retired from the reduced social exposure of no longer being in a workplace. The FWC was not persuaded a ‘rational and objective’ connection existed between the employee’s request and decision to retire sometime in the future. In? coming to its decision, the FWC noted that apart from living alone, the requesting employee failed to advance any other evidence which supported the position that his mental health would decline upon retirement, including medical evidence.

Conversely, in Farquharson v CCL Label Australia, a graphic designer, over the age of 55, made a request to reduce her workdays from five to four (with no reduction in hours).[9] In this case, the FWC considered there was a sufficient connection between the request to reduce working days to better balance the employee’s volunteer activities with her paid work as she approached retirement age.

Requests can only be refused on reasonable business grounds

An employer must consider, consult and provide a written response to the employees request for FWA within 21 days. An employer can only refuse a request on reasonable business grounds. Each request must be assessed on a case-by-case basis. The FWC has warned against employers giving ‘generic and HR blanket answers’ when providing reasonable business.[10] Employers should instead provide ‘a sufficient explanation’ for refusing the request on reasonable business grounds.

There must be an objective basis for refusing the request, which considers the impact of the requested change on the employee and the employer.[11] An employer should be able to demonstrate that any adverse impact on the employer sufficiently outweighs the impact on the employees’ personal circumstances.

Section 65A(5) of the Act provides a non-exhaustive list of reasonable business grounds:

• the requested arrangements are too costly;
• there is no capacity to change the working arrangements of other employees to accommodate the request;
• it would be impractical to change other employees’ working arrangements or recruit new employees to accommodate the request;
• the request is likely to result in a significant loss in efficiency or productivity; or
• the request would have a significant negative impact on customer service.

What constitutes reasonable business grounds will differ depending upon the employer’s business, and the role or position held by the requesting employee.

In Gregory v Maxxia Pty Ltd, where the employee held a long tenure and was stepping back into a specialist role, the FWC considered that the need for supervision, increased productivity, team culture and the importance of face-to-face interactions and learning opportunities for less experienced team members, constituted reasonable business grounds for refusing a FWA request.[12]

In Lloyd v Australia And New Zealand Banking Group Limited, the FWC considered that a line manager’s support for the request, the absence of supervisory responsibilities, nature of the employee’s duties, and work performance while working from home, as relevant considerations which weighed in favour of the employee.[13]

In Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust, the FWC upheld a primary school’s decision to refuse an employee’s request to return from parental leave to her position in a part time, job share arrangement for the first two school terms.[14] The FWC held that the employer had reasonable business grounds to refuse the employee’s request, particularly as the request would impact the school’s ability to deliver effective education to its students. ?

Genuine consultation before decision

Employers must engage in genuine consultation with employees prior to making a decision on a request for FWA. ?During this consultation process, compromise by both parties is encouraged. The FWC has indicated that where employers or employees appear unwilling to try to reach a compromise, this will rule against their favour.

In Ridings v Fedex Express Australia Pty Ltd T/A Fedex, the FWC in refusing an employee’s request to work from home fulltime, considered that it would be unfair to grant the request given the employees lack of cooperation in seeking an arrangement which would work for both parties.[15]

Key Takeaways         

Employers and leaders should:

1. approach every request on a case-by-case basis having regard to the employees’ personal circumstances, their position within the organisation, and the business’s own operational needs.
2. engage in genuine consultation with a requesting employee, such as, seeking further information or evidence where appropriate, and providing options for alternative arrangements.
3. be aware that parties who demonstrate a willingness to compromise tend to be viewed more favourably by the FWC.
4. ensure they provide a sufficient explanation when refusing a request on reasonable business grounds which is objectively sound.
5. be able to demonstrate that the adverse impact on the business outweighs the personal impact to the employee when a refusing a request.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances.?

[1] Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 at [37].

[2] Gregory v Maxxia Pty Ltd [2023] FWC 2768.?

[3] Gregory v Maxxia Pty Ltd [2023] FWC 2768 at [39].

[4] Gration v Bendigo Bank [2024] FWC 717.

[5] Gration v Bendigo Bank [2024] FWC 717 at [47].

[6] Lloyd v Australia And New Zealand Banking Group Limited [2024] FWC 2231 at [51].

[7] Lloyd v Australia And New Zealand Banking Group Limited [2024] FWC 2231.

[8] Fogo v Boeing Aerostructures Australia Pty Limited [2024] FWC 3037.

[9] Farquharson v CCL Label Australia [2024] FWC 670.

[10]Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWC 1845 at [71].

[11] Ambulance Victoria v Natasha Fyfe [2023] FWCFB 104 at [81].

[12] Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768 at [45].

[13] Lloyd v Australia And New Zealand Banking Group Limited [2024] FWC 2231 at [86] - [87].

[14] Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWC 317.

[15] Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWC 1845 at [85].