Fair Work makes first order to vary flexible work arrangements

An employee who wanted to work from home 100% for family/carer reasons has been ordered to work at the office for one day per week on a trial basis. 

The employer wanted all employees to work in the office at least three days per week. The case established that the employer did not prove it had reasonable business grounds for requiring the employee to work that many days in the office, and failed to prove a detriment to the business if he did not. However, it did demonstrate that there would be benefits if the employee attended the office at least one day per week. This is believed to be the first time the Fair Work Commission (FWC) has arbitrated the terms of a request for flexible work arrangements.

Facts of case

The employee had a four-day work week and requested to work entirely from home. The employer temporarily allowed him to work one day at the office and three at home, but the employee did not work in the office at all, taking annual leave each day he was scheduled to be in the office. Standard employer policy at the time was a minimum of two days per week in the office, which it sought to change across the board to three days per week in the office. During COVID-19 restrictions, employees were allowed to work entirely from home, but the employer wanted a return to working in the office at least part of the time.

The employee then made a second request to work every day from home, claiming that he needed to care for his special needs children, who were autistic and schooled from home. Also, his wife had autism and was physically disabled and receiving therapy. He claimed that it was already a struggle for him to manage with his current work arrangements.

The employer rejected his request, arguing that it would adversely impact productivity, efficiency and employee collaboration. In addition, it claimed to be concerned about his wellbeing and wanted to ensure there were adequate support processes at work for him, given his stressful home environment.

The employee then lodged a flexible work arrangements request with the FWC, seeking to work every day from home.

The FWC found that the employer did not prove it had reasonable business grounds for its requirement that employees work in the office at least three days per week. It failed to prove that there would be detrimental effects on productivity, efficiency and employee collaboration. However, it did prove there would be beneficial effects from its requirement, including potentially being able to check on the employee’s wellbeing and whether the caring arrangements at home were working well enough.

The FWC said that the employee did not have to provide extensive evidence about his carer’s duties, but did have to demonstrate how they restricted his ability to attend the office. He had some carer support via NDIS funding. The employee had not provided evidence of a change in his circumstances between his initial request to work three days from home, and the later one to work all four days from home. Therefore, the employer was not fully informed before making its decision.

Decision

The FWC concluded that the parties could not agree on a solution, so it needed to arbitrate the matter.

It ordered that the employee be required to work in the office for one day each week on a trial basis for three months. The employer also had the right to request that he attend on a different day if he had not been in the office for two consecutive weeks, or if it had concerns about his job performance.

What this means for employers

The decision clarifies the scope of an employer’s “reasonable business grounds” for refusing a request for flexible work arrangements, including working from home. The employer has to prove that a detriment to the business would result (eg delays caused by lack of contact, statistical impact on productivity, loss of customers), it cannot merely assert that this would happen. The employee in turn needs to provide evidence of how family/carer’s responsibilities would adversely impact his/her ability to work in the office.

Legislation requires the employer to genuinely try to reach an agreement with the employee before deciding to refuse a flexible work arrangement request.

Read the judgment

Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWC 1845 (12 July 2024)