The Fair Work Commission (FWC) has power to arbitrate disputes about employee requests for flexible work arrangements.

When can the FWC arbitrate disputes?

For the FWC to have the power to arbitrate disputes, the following conditions must be met:

• a specified circumstance must presently apply to the employee, e.g. current carer responsibilities as opposed to anticipated future carer responsibilities;
• the employee’s desire for a change in working arrangements must be because of the relevant circumstance and the request for a change in work arrangements must relate to it;
• the employee must have served a minimum period of service of 12 months; and
• the employee’s request must be in writing and set out the details and reasons for the arrangement sought.

The FWC cannot arbitrate a dispute until it attempts to resolve the dispute through other means, such as conciliation or mediation, unless there are exceptional circumstances.

In this respect, the FWC will have regard to whether the employer:

• met its obligation to discuss the employee’s request with the employee; and
• made a genuine attempt to reach an agreement with the employee about changes to their work arrangements that would accommodate their circumstances.

Generally, it should be open to the employer and the employee to negotiate an outcome that addresses the employee’s circumstances. However, if the FWC is satisfied there is no reasonable prospect of the dispute being resolved without making an order, the FWC will issue one.

When can an employer refuse a request?

The employer’s refusal must be on reasonable business grounds. In this respect, the employer can only refuse a request based on the information that has been presented to it by the employee, after taking reasonable steps to enquire about their circumstances. There may be instances where all the relevant information is not available, such as where the employee is experiencing domestic violence, and the employer will need to exercise proper discretion in dealing with these matters.

The employer must demonstrate a likely detriment to the business if it wishes to refuse a flexible work arrangement. If there is no detriment to the employer in accommodating the request, it is in the employer’s interest to accommodate the employee to encourage employee retention and provide job security.

A request is not approved until the employer or the FWC grants the flexible work arrangement request. Until such approval is granted, the employee cannot work the requested flexible work arrangement, and they are expected to follow the lawful and reasonable direction of the employer.

Stay tuned…

In next week’s bulletin, we will examine a recent case in which the FWC arbitrated a dispute about a part-time employee’s request to work from home to accommodate his caring responsibilities.

In the meantime, you can find out more about the law around flexible work arrangements in the Employment Law Handbook chapter, Flexible work arrangements.