Case review – new flexible work arrangement laws
On 6 June 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2023 (Cth), dealing with flexible work arrangements, came into effect. Under the changes, the category of employees who make a change work request has been expanded to include when an employee or their immediate family/household members experience family or domestic violence.
Last year, we wrote about the proposed changes to employee flexible work arrangements, which you can read in our blog, “Changes to employee flexible work arrangements from June 2023”.
Critical changes to flexible working arrangements which have now come into effect
The changes expand on the pre-existing right for certain workers to request a change to their working arrangements that exists under section 65 of the Fair Work Act.
In particular, they have introduced avenues for employees to appeal a decision by an employer to reject such a request.
The amendments also oblige employers to genuinely try to reach an agreement with the employee. The changes also require that employers provide written reasons which explain the particular business grounds it relies on for refusing any request for adjustments to working arrangements.
The changes introduce the avenue of appeal for an employee. The employee may approach the Fair Work Commission for a conciliation and arbitration of the matter if they challenge the employer’s response.
The January 2023 decision of Ambulance Victoria v Natasha Fyfe  FWCFB 104 provides guidance as to how these recent changes will be interpreted by the Fair Work Commission.
Employee requests a change to shift hours which is denied
The Applicant, Ms Fyfe, is a young mother with three children aged under 5 years old. She is also a paramedic for the Respondent (Ambulance Victoria), and her employment is covered by the Ambulance Victoria Enterprise Agreement 2020 (AV Agreement).
The employee’s usual night shift commences at 6.00 pm and concludes at 8:00 am. She cannot work the full duration of this shift as she needs to be home until at least 6:30 pm and return home by 8:00 am in the morning so that she can care for her children while her partner is at work.
The employee proposed that she commence night shift at 9:00 pm and end at 6:00 am. The employer refused this request.
Fair Work Commission decision at first instance
At first instance, the Commissioner considered whether the employer had reasonable business grounds to refuse Ms Fyfe’s request in the context of clause 23 of the AV Agreement (which provided a right to make the request) and in light of the recent legislative amendments. Although the amendments were not in force at the time of the Commissioner’s decision, he considered them in reaching his decision.
The Commissioner observed that the onus of establishing reasonable business grounds lies with the employer. The Commissioner found that:
- the employer failed to hold discussions with the employee or genuinely try to reach agreement with her;
- the employee’s request would not result in unfunded shifts, as had been asserted by the employer;
- community needs would still be met under the employee’s flexible work arrangement;
- the impact of the arrangement on other employees was not a reasonable business ground. The Commissioner relied on earlier decisions which held that whether or not other employees have been granted flexible work arrangements is not a reasonable business ground for rejecting a new request; and
- the employer’s argument that, after Ms Fyfe’s request, it offered other flexible arrangements is not an answer to whether or not the decision to refuse the flexible work arrangement was fair.
On this basis, the Commissioner concluded that the employer had failed to discharge its onus of establishing that it had reasonable business grounds to refuse the employee’s request.
Full Bench decision
The employer appealed the decision of the Full Bench of the Fair Work Commission.
The Full Bench criticised the Commissioner’s interpretation of the AV Agreement, noting that the Commissioner erroneously considered that the employer was required to genuinely try to reach agreement with the employee. This was not in the wording of the AV Agreement, and the legislative changes were not yet in force.
This, however, was not enough for the Full Bench to overturn the Commissioner’s decision. Instead, the Full Bench dismissed the appeal on the basis that the employer’s response to the employee’s request failed to engage with the list of reasonable business grounds set out in the Fair Work Act.
In particular, the Full Bench was critical of the employer’s failure to:
- show that it had given weight to, or proper consideration to the employee’s personal arrangements and pressures, including that she had three children under the age of 5 to care for; and
- demonstrate that it had analysed the financial impact on its enterprise of the adoption of the flexible work request.
For these reasons, the appeal was dismissed.
The Commission’s approach confirms that the onus is squarely on the employer to demonstrate that it had reasonable business grounds to reject a flexible work arrangement request and had otherwise complied with the requirements under the Fair Work Act.
The decisions also demonstrate that employees may have an arguable claim, particularly in circumstances in which the written reasons denying a request fail to articulate all of the reasons for the refusal. Other flexible arrangements offered subsequent to the refusal are not relevant to determining the validity of the rejection.
Employees may also have a claim if the employer has failed to genuinely try to reach an agreement with them. Although this was not required under the AV Agreement, the changes require that employers try to reach an agreement with employees in relation to flexible work arrangement requests.
Get help from an employment lawyer
Getting good advice quickly when such issues arise at work is critical. Hall Payne are award-winning employment lawyers. If you’re experiencing any issues related to your employment, you should seek assistance from your Union or a lawyer experienced in workplace law.
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This article relates to Australian law; either at a State or Federal level.
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