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Right To Refuse Flexible Work Request

Posted on by Katy Russell

There have been two recent decisions in the Fair Work Commission (FWC) concerning flexible working arrangements, particularly in relation to an employer’s obligations when refusing a flexible work request from an employee.

Currently under section 65 of the Fair Work Act 2009 as part of the National Employment Standards certain categories of employees (mainly carers, older employees or disabled employees) have the right to request flexible working arrangements. An employer must respond to a written request within 21 days and may only refuse the request on “reasonable business grounds”. The written response must include details of the reasons for the refusal.

The first case of note is a full bench decision on 25 September arising from the four yearly review of Modern Awards ([2018] FWCFB 5753). In March 2018 the FWC released an interim decision proposing a provisional “model term” for flexible working arrangements which would be inserted into Modern Awards and supplement section 65 of the Act. After further submissions from the parties, the Full Bench has now finalised the model terms.

Most if not all Modern Awards are likely to be varied to include the model terms.

The main way in which the model terms supplement the current obligations of section 65 is the detail that an employer must provide to an employee if a flexible work request is refused.

The response must include not only details of the reasons for the refusal, but also how the ground or grounds apply. Furthermore, the response must state whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances and set out those changes in working arrangements.

The second case is a single commissioner decision that highlights the high threshold that an employer must satisfy to demonstrate “reasonable business grounds” when refusing a flexible work request ([2018] FWC 5695). A 57 year old police office made a request for flexible working arrangements under a provision of the 2015 Victorian Police officers agreement based on section 65 of the Act. The detective sought to compress his 8 hour shifts into four weekly 10 hour shifts to allow for an additional two days rest per fortnight as he transitioned towards retirement.

The Victoria Police refused the request and provided their reasons to the detective. These included an argument that overtime was an inherent requirement of the position and there was an OHS fatigue risk if the detective was required to perform overtime in excess of his longer shifts. There were also reasons related to the financial burden on the employer because of a commuted overtime allowance and operational difficulties in accommodating the shift change in the roster.

The matter came before the FWC as a dispute and Commissioner Wilson dismissed all of the arguments raised by the employer either as lacking in evidence or being not strong enough grounds to establish a “reasonable business ground” for the refusal.

Therefore, even without the new model term in awards, it is clear that employers must have detailed and evidence based reasoning to refuse a flexible work request. It has effectively become a reverse onus of proof: it is not up to an employee to prove that a flexible work arrangements can work, it is up to an employer to prove it can’t in order to refuse a request.

This can be a challenging process for employers to navigate and our consultants can assist you in responding to flexible work requests in a manner that minimises risk and maximises the likelihood of an outcome that satisfies the needs of all parties. For further information or to speak to one of our consultants, please contact us on +61 7 3833 1200 or solution@livingstones.com.au

Written by Katy Russell

Katy Russell

As the Livingstones in-house expert in conflict resolution, resolving conflict is the main focus of Katy’s consulting role. She uses a strategic approach to diagnose the root causes of conflict and develops inventive, yet practical, advice to manage difficult situations. Katy thrives on the challenge of converting difficult situations and people issues into successful outcomes. Her extensive background and experience in industrial relations and law means she understands the context of complaints and grievances.

Her interest in conflict resolution led her to train as a mediator in 2005 and she is accredited under the National Mediator Accreditation System. She has also seen first-hand the benefits that flow to organisations and individuals from enhanced interpersonal skills and the application of effective preventive measures.

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