What did the FWC have to say about making a valid request?
With the introduction of the Secure Jobs Act, the FWC has become an avenue that dissatisfied employees can access more regularly when they do not accept the decision of the employer – e.g. flexible working arrangements.
This decision in the case below highlights some technical matters that employers need to consider when determining whether a valid request has been made.
It also highlights that employers need to ensure their systems and processes comply with the new changes to flexible working requests under the Secure Jobs Act.
Jordan Quirke v BSR Australia Ltd  FWCFB (10 Novemebr 2023)
The Full Bench of the Fair Work Commission (FWC) has considered the Secure Jobs flexible working request dispute provisions for the first time.
In delivering its decision, the Full Bench took the opportunity to set out the key requirements for a proper request which the FWC can consider. It also made some pertinent comments concerning what constitutes a “disability”.
These types of applications for flexible working arrangements are likely to become more prevalent.
It is important for employers to understand their obligations in responding to a request as well as when the FWC will consider that a proper request for a flexible working arrangement has been made.
In summary, the dispute reached the FWC because an employee, Jordan Quirke, lodged a dispute with the FWC under the new legislation recently passed by Parliament.
The flexible working request was for changes to working hours as an aid for relief from insomnia and anxiety. This request was rejected by the employer and Ms Quirke filed her dispute in the FWC. Ms Quirke relied upon a letter from her medical practitioner as well as a “Mental Health Care Plan”. She did not have a report showing that she suffered from a specific diagnosis of anxiety.
Given this was the first matter of its kind to be considered by the FWC, the Full Bench considered it would be useful for it to set out its reasons for observing the difficulties with Ms Quirke’s evidence that she had a disability.
The Full Bench indicated it had difficulty with being satisfied on the evidence that Ms Quirke had a disability for the purposes of section 65(1) of the FW Act. The Full Bench made reference to differing definitions of what a “disability” means both at section 12 of the FW Act and Section 4 of the Disability Discrimination Act 1992 (Cth). It held that neither of these applied and that the meaning should also be consistent with the meaning of “disability” as used at section 351(1) of the FW Act. Therefore, the Full Bench held that the ordinary meaning applied and not any statutory definition.
In this context, the Full Bench noted there was no evidence before it of a medical diagnosis and held that evidence referencing anxiety was not sufficient to find that there has been a diagnosis of a “disability”. The Full Bench drew a distinction between a medically diagnosed disability and a form of anxiety which is a normal and emotional reaction to stress.
Charles Gregory v Maxxia Pty Ltd  FWC 2768 (16 November 2023)
Mr Gregory commenced his employment during Covid and had been working full time from home for most of his employment. Maxxia introduced a hybrid working guidelines policy that required employees to work at least 40% of their hours from the office. In response, Mr Gregory made a flexible working request to work permanently from home for two reasons:
- the first being that he suffered from a “situational crisis and inflammatory bowel disease”’ and
- to accommodate a custody arrangement he was seeking for his school aged child every second week.
Maxxia denied Mr Gregory’s request and proposed a staged re-introduction to working from the office starting at 20% and then increasing to 40% in line with the policy. Maxxia also acknowledged Mr Gregory’s custody arrangement, suggesting that he allocate his office days to the week he would not have custody of the child.
One of the grounds upon which Mr Gregory made his flexible working request was that he was suffering from a “disability” because of his inflammatory bowel disease diagnosis. The FWC considered whether in fact Mr Gregory was suffering from a disability and determined that he was not. It determined the condition from which Mr Gregory was suffering would be an “inconvenience” to him but on the medical evidence presented, it was not persuaded the illness was capable of being described as a disability as that word is ordinarily used.
In accordance with the principles outlined in Jordan Quirke v BSR Australia Ltd  FWCFB 209, this finding meant that the medical component of Mr Gregory’s flexible working request was not valid and the FWC had no jurisdiction to consider the disputed request on this basis.
The second component of the request was that Mr Gregory was a parent with responsibility for the care of a child who is of school age. The custody arrangements were valid grounds for making a flexible working request and therefore the dispute did fall under the jurisdiction of the FWC. Mr Gregory’s request was that he be able to work full time from home and have flexible working hours and breaks (particularly in the afternoon) to accommodate school pick-up times. Mr Gregory rejected all other proposals by Maxxia, including those which allowed him to work from home on the days he had custody of his child.
The FWC noted a series of reasons that were considered by Maxxia before rejecting Mr Gregory’s proposal and which included amongst other things:
- their clients have high expectations of service delivery and productivity
- significant financial penalties under client contracts if Maxxia didn’t meet contractual obligations
- Mr Gregory’s daily productivity was approximately 50% at the time he recommenced working in his current team, this being below the target of 85%.
- Mr Gregory’s manager had already scheduled fortnightly support sessions (on Teams) with Mr Gregory to assist him to regain the skillset he required for his role and increase his productivity
- the existing support put in place for Mr Gregory was not achieving an increase in productivity and, so it would be advantageous to observe and support Mr Gregory in the office
- someone with the tenure of Mr Gregory was valuable and needed to contribute to the team culture, training and discussions for employees’ benefit with lesser tenure (more effective from the office)
- Mr Gregory’s manager wanted to remain fair and consistent across the team with the hybrid working expectations, and only allowed exceptions where genuinely required
- Mr Gregory’s manager had noticed Mr Gregory was struggling mentally, and his manager felt he was not in a position to support him properly as a team leader while Mr Gregory worked from home.
In reviewing the facts, the FWC held there was a sufficient nexus between Mr Gregory being a carer and the request that Mr Gregory had made. It also found this nexus would only be triggered when the custody arrangement was in place and for the period during which Mr Gregory was the primary caregiver. As such, the written request by Mr Gregory, in terms of the childcare component, met all the requirements for a valid flexible working request.
The FWC found that Maxxia had reasonable business grounds for refusing the request and noted the following reasons:
- the desirability for there to be face to face contact within the workforce team
- a face to face presence would allow for observation, interaction and coaching to improve and support Mr Gregory’s productivity
- Mr Gregory’s knowledge and experience would be more easily accessible by less experienced team members when working from the office.
Relevantly, the FWC determined Maxxia had followed all the procedural requirements in responding to the request, including genuinely trying to reach an agreement with the employee. This is in circumstances where Maxxia suggested multiple alternative arrangements to address Mr Gregory’s concerns.
Finally, in coming to this decision, the FWC stated that Maxxia was now within its rights to require its employees to return to the office in accordance with their employment contract. This was on the basis that Mr Gregory’s full time employment contract required him to attend at Maxxia’s premises to perform work.
The reasons why Maxxia determined it could not meet the request by Mr Gregory were detailed and persuasive from the FWC’s perspective. These reasons provide a very useful framework for employers to consider when receiving requests for full time remote working arrangements. In this context, the statement by the FWC that employers can rely upon the terms of their employment contracts requiring work to be performed at their premises is a relevant and material factor.
The Requirements for a Valid Working Request
Before the FWC has jurisdiction to deal with a dispute under section 65B of the FW Act, the request for a flexible working arrangement must have been validly made. The Full Bench identified six requirements that must be satisfied for a valid flexible working request to attract the jurisdiction of the FWC:
- the FWC must be satisfied that, at the time of making the request, the employee qualified under at least one of the prescribed circumstances that must form the basis for a flexible working request – e.g. being a carer, being 55 years of age or older and/or having a disability
- employee’s request for changed working conditions must be “because of” a prescribed circumstance
- employee must have completed the minimum required period of service which is 12 months prior to making the request for a permanent employee
- the request must be in writing
- the request must set out the details of the change sought and the reason for the change
- the request must be made on or after 6 June 2023.
Source: Holding Redlich
Lessons for Employers
These decisions also highlight that the FWC will adopt a “strict” approach to determining whether it has the relevant jurisdiction to decide a dispute over a flexible working request and, in particular, whether the request is “because of” one of the prescribed circumstances including, – e.g. a disability.
Contact Akyra for an obligation-free conversation about your particular circumstances and whether you have the appropriate systems and processes in place to manage a flexible working arrangement request.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.