Flexible Workplace Arrangements - How Much Flex Is Enough Flex?

By Damien Power, Principal Consultant, Mapien 

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’).

The Fair Work 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.

The background

Mr Gregory was a full-time employee and was employed to provide salary packaging advice and assistance to employers as well as manage cases, and had a further responsibility to be a Support Coach to the Coaching and Quality Assurance Team.

For much of his employment he worked from home due to COVID-19, however, as the severity of the pandemic moderated in 2023, Maxxia Pty Ltd (‘Maxxia’) sought to have its employees comply with its Hybrid Working Guidelines. Under that policy it asked employees to work at least 40% of their hours from the office.

In August 2023, Mr Gregory submitted his flexible working arrangement request and asked that he be allowed to work 100% of his full-time hours from home on an ongoing basis.

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.

Having considered these factors on the 18 August 2023, Maxxia replied to Mr Gregory and proposed:

• to allow Mr Gregory to work 20% in the office until the end of September 2023;
• then 40% in the office from 2 October 2023; and
• that he could allocate his office days to the week that he would not have custody of his son.

On 23 August 2023, Mr Gregory, and Maxxia met and discussed the Maxxia offer.

Mr Gregory rejected the offer and had his GP provide further medical evidence regarding his medical condition and cited his workstations distance to the bathroom as being a problem and asked that his flexible workplace request be granted whilst he worked through his health problems.

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 decision

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.

The FWC found that Maxxia had offered Mr Gregory the flexibility to work from home in the weeks that he was the primary care giver of his child and was prepared to provide the flexibility sought with respect to the working hours to allow the child to be collected from school.

The FWC accepted the position taken by Maxxia as to why it needed Mr Gregory to be present in the office for at least 40% of the time when he was not caring for his child.

It also accepted that face to face contact by Mr Gregory within his team would improve Mr Gregory’s performance in his job, enable Mr Gregory to more easily access coaching that would improve his productivity and that Mr Gregory’s presence in the office would be of benefit to employees with shorter tenure.

The FWC found that Maxxia’s reasons for refusing Mr Gregory’s request were based on reasonable business grounds.

Key takeaways

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.