Employers have faced new obligations in dealing with requests for flexible working arrangements made under Section 65 of the Fair Work Act (the Act) since June 2023. Significantly, if the employer refuses the request on reasonable business grounds, the employee may apply to the Fair Work Commission (FWC) to deal with the dispute under s65B of the Act. Until recently, the FWC has refused to make a flexible working arrangements order on the facts of each case, finding it did not have jurisdiction to make an order.

However, in the recent decision in Ridings v Fedex Express Australia Pty Ltd the FWC made its first flexible working arrangements order. It found that an employee could work three of four days from home.

Background

Joining FedEx in April 2015 as a clearance classifier, Peter Ridings (the applicant) made a series of flexible working arrangement requests between 2019 and 2024. These arrangements were to enable him to better care for the medical needs of his wife and two children. Deputy President Lake accepted there was sufficient evidence that the applicant’s wife has signs of Ehlers Danlos Syndrome, as well as her diagnosis of Level 2 autism. Furthermore, the FWC acknowledged that the applicants’ two children have an intellectual disability and Level 3 autism.

The applicant was allowed to work from home all four of his working days each week during the pandemic. However, by mid-2023, FedEx began requiring employees to return to the office at least three days a week. The applicant made new requests for flexible working arrangements including his most recent request to work four days a week from home indefinitely.

FedEx refused this request. It cited the necessity of collaboration and interaction in the office in relation to his classifier role to promote ‘more productive and efficient working’. The applicant’s travel time to the workplace was also deemed as ‘not unreasonable’.

During the proceedings, FedEx offered the applicant to work only one day a week in the office. However, the applicant didn’t attend the office as directed and the matter was referred to arbitration.

Did the applicant have grounds to make a request?

Common to the approach in each of the decided cases on these provisions, the FWC first considered the applicant’s eligibility to make the request under s65 of the Act. It was satisfied that the applicant was a carer under the Fair Work Act and that his application was brought in response to dealing with his family’s medical needs.

The FWC was satisfied the other requirements of s65 were met as the applicant’s period of service was more than 12-months, his application was made in writing and it set out the reasons for the change requested.

Did FedEx have the grounds to refuse the request?

Deputy President Lake recognised FedEx’s genuine attempt to reach an agreement and accepted the benefits of in-office collaboration with the applicant’s colleagues. This is largely because the applicant only provided an explanation of his ‘carer demands’ during the hearing. This is crucial information which would have enabled FedEx to genuinely consider the applicant circumstances before reaching an agreement.

Regardless, the FWC held that FedEx failed to properly consider the applicant’s personal circumstances. Given that the applicant hadn’t been in the office since September 2023, the Commission considered a reasonable employer would check in and ensure the applicant’s caretaking duties were accounted for.

FedEx also failed to substantiate any detriment to the business if the request were to be approved. No evidence was provided that the applicant’s productivity or efficiency would decrease due to a lack of interaction and collaboration.

Therefore, whilst there were concerns about the classifier’s situation and the requirements of his role, the FWC determined that FedEx did not have reasonable business grounds to refuse his flexible working request.

Final decision – How would the working arrangement apply?

Whilst the applicant’s most recent proposed arrangement was not granted, FedEx was still ordered to adjust his working arrangements enabling him to work three days at home and one day at the office each week.

Whilst this still appears to be a significant win for the applicant, the order has ‘certain caveats’ in place to ensure the arrangement remains effective for FedEx. Namely, FedEx has the right to lawfully and reasonably direct the applicant to attend the office on another day if he fails to appear ‘after two consecutive weeks’ (excludes his statutory leave entitlements). Those limitations arose from Deputy President Lake’s concerns that the applicant won’t follow the order in good faith as he has ‘avoided attending the office at all possible costs’ when he had ‘no authority to do so’. The applicant relied on an incorrect assumption that he didn’t require approval before adopting the four-day flexible working arrangement.

Significantly, the flexible working arrangements were temporary, lasting for three months. After the arrangement expires, the FWC noted the parties should review the applicant’s circumstances and FedEx’s operational needs. If the applicant wishes to extend the arrangement he will need to lodge a further request under the Act.

Key takeaways

• Employers need to avoid providing ‘generic and blanket HR answers’ when establishing grounds for declining flexibility requests. Therefore, proper consideration towards an employee’s personal circumstances is critical in order to refuse a request on reasonable business grounds.
• Any argument that flexible working arrangements will affect productivity or efficiency needs to be supported by evidence. For example, when working remotely:
  • Is the employee not meeting targets?
  • Are they difficult to contact?
  • Are tasks not being performed to the required standard?
• Flexible working arrangements can be agreed on a trial basis. This allows both parties to assess how well the arrangements are working them.
• Making a request for flexible work arrangements does not entitle an employee to work as if the request has already been granted in the absence of employer approval or an FWC order. Until such time, the employee is required to comply with reasonable and lawful directions which may include working in the office.

If you have any questions or concerns regarding your current flexible working arrangement, please contact Coleman Greig’s Employment Law team.