Since 6 June 2023, the Fair Work Commission (FWC) has had increased powers to resolve disputes between employees requesting flexible work arrangements and their employer. The FWC can resolve a dispute by conciliation, mediation or mandatory arbitration. Unless there are exceptional circumstances, the FWC must first attempt to resolve the dispute using non-binding methods, such as conciliation or mediation, before it can arbitrate a dispute.

5 requirements for exercising dispute-resolution powers

To exercise its dispute-resolution powers, the FWC must be satisfied the following requirements are met:

1. The dispute must relate to a request by the employee to the employer under the Fair Work Act 2009 (Cth) (FW Act) for a change in working arrangements. The employer must either have refused the request or not given the employee a written response within 21 days.
2. The request must be in writing, setting out the details of the change sought and the reasons for the change. The required reasons would need to identify the relevant circumstance and explain how the proposed changed working arrangements relates to that circumstance.
3. The relevant circumstance must, as a matter of fact, exist rather than being anticipated or the subject of anticipatory discussions when the request is made.
4. The employee’s desire for changed working arrangements must be because of the relevant circumstance, and the request for a change in working arrangements must relate to the relevant circumstance. This requires a nexus between the request and the relevant circumstance.
5. The employee must have a minimum period of service which, in the case of a non-casual employee, is 12 months of continuous service immediately before making the request.

The FWC exercises its powers in Gregory v Maxxia Pty Ltd (2023)

In one of the first reported determinations by the FWC under the new powers to arbitrate disputes, the FWC has sided with the employer.

In Gregory v Maxxia Pty Ltd (2023), the employee requested to work from home on a full-time basis because he had a school-aged child that, dependent on the outcome of a custody dispute, he hoped to care for every second week. The request was further supported by a letter from a doctor confirming that the employee suffered from inflammatory bowel disease, which necessitated urgent and frequent trips to the toilet.

Employer’s reasons for refusing request

The employer considered the request, along with the following factors:

• The employer was the sole provider of salary packaging services for the South Australian Government. There is an expectation that 99% of calls to the business are answered within 3 minutes, and emails within 2 business days. The employer suffered significant financial penalties under client contracts if contractual obligations were not met. The employee’s daily productivity was approximately 50% below the target of 85%. He was stepping back into a specialist role, which required different skills, and fortnightly support sessions (on Teams) were scheduled to assist him to regain the skillset he required for his role and increase his productivity. However, this was not achieving an increase in productivity, and so it was considered advantageous to observe and support the employee in the office.
• The employee had long service and was valuable, and he was needed to contribute to team culture, training and discussions for the benefit of employees with less service. This was more effectively done if he was in the office.
• The employer wanted to remain fair and consistent across the team with the hybrid working expectations, and only allow exceptions where genuinely required.
• The employee was “struggling mentally” and the employer considered proper support required that he not work from home exclusively.

Proposed alternative arrangements

The employer proposed to allow the employee to work 20% in the office for a month and then 40% in the office on days he would not have custody of his son. This was rejected by the employee who insisted he work 100% from home.

The employer discussed with the employee changes that may better accommodate the employee’s circumstances and the employer, and offered changes to suit his child-caring responsibilities and medical condition, including:

• the employee working from home every second week alongside changes to his start and finish times and meal breaks to accommodate school drop-off/pick-up; and
• relocating the employee’s desk to be near the office toilets to accommodate his inflammatory bowel disease.

The employee did not accept this resolved the dispute.

The FWC’s ruling

The FWC ruled the employee’s medical condition (medical evidence was produced that showed he suffered from a situational crisis and inflammatory bowel disease) was not a disability for the purposes of the FW Act right to request a flexible work arrangement. Moreover, the FWC considered the employee could not justify working from home during weeks he did not have custody of the child.

The FWC accepted it was reasonable for the employer to refuse the employee’s request to work from home 100% of the time and to require him to be present in the office for at least 40% of the time when he was not caring for his child. The FWC accepted it was desirable for there to be face-to-face contact within the workforce team, and for a face-to-face presence to allow for observation, interaction and (if necessary) coaching to improve his productivity and provide him with greater support.