Flexible working arrangements do not mean bending over backwards

The right of an employee to request flexible working arrangements is provided for by section 65 of the Fair Work Act.  The right has also been incorporated into all modern awards since December 2018.  The inclusion of the right has been construed by some to mean that all requests for flexible working arrangements must be agreed by employers.  The Fair Work Commission in Phillips v Integrated Medical Solutions Group Pty Ltd however, confirmed that such flexibility is not a certainty.1

 

Section 65 of the Fair Work Act states that an employee may make a request for flexible working arrangements in particular circumstances, and that such request can only be refused by their employer on “reasonable business grounds”.

Particular circumstances prescribed in section 65(1A) of the Act are that:

  • the employee is the parent, or has responsibility of the care, of a child who is of school age or younger;
  • the employee is a carer;
  • the employee has a disability;
  • the employee is 55 or older;
  • the employee is experiencing violence from a member of the employee’s family; or
  • the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

Examples of reasonable business grounds set out in section 65(5A) of the Act include the following:

  • new working arrangements requested by the employee would be too costly for the employer;
  • there being no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
  • it being impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  • the new working arrangements requested by the employee being likely to result in a significant loss in efficiency or productivity; or
  • the new working arrangements requested by the employee being likely to have a significant negative impact on customer service.

The list above is not exhaustive.  Hence any proper and reasonable business ground is available to be raised in this context. 

In Phillips v Integrated Medical Solutions Group Pty Ltd, a 24-year-old receptionist, Ms Phillips, was given indefinite leave by her employer, Integrated Medical Solutions, after her mother was diagnosed with a terminal illness in late 2018 and subsequently passed away.  Ms Phillips then had to assume responsibility for her 10-year-old sister.  She then hence requested modified hours of work from 10am to 2pm, Monday to Friday, and that she be given at least one week off in school holidays and three weeks off during summer holidays.

Integrated declined her request.  It said that the business had more need for staff at opening and closing times, and employed a large number of working parents who also required school holiday leave.

Integrated proposed three alternatives to Ms Phillips: namely, that she return to her full-time job as it was previously, accept casual employment, or work part-time from 8:30am to 2:30pm, Monday to Friday.

Remaining on unpaid leave, Ms Phillips replied that she was “disheartened” 16 days later.  Integrated reiterated their offer.  After another 14 days, Integrated emailed Ms Phillips to say that if she did not reply within eight days “we will assume that you do not intend to return to work”.  A response was not received for three weeks, when Ms Phillips requested a separation certificate.

Ms Phillips then made an application in the Fair Work Commission claiming she was constructively dismissed because her employer refused to modify her hours and guarantee her school holiday leave.

The Commission however found, that Integrated as employer had “repeatedly, reasonably and professionally corresponded with Ms Phillips about the reduced hours of work it could accommodate on her return”.  It found that Ms Phillips “had a substantive job to return to and she chose not to accept Integrated Medical Solutions reasonable and accommodating hours of work given her personal circumstances.   The Commission therefore found that Integrated did not unreasonably refuse her request for a flexible working arrangements nor did it constructively dismiss her from her employment.

Lavan comment

A request made for flexible working arrangements must be properly assessed by the recipient employer and considered on its merits.  Each request is a case by case consideration.  The request must be in writing and then responded to in writing within 21 days. 

When making the assessment, employers are not restricted as to what are “reasonable business grounds”.  Hence any reasonable and proper ground is a consideration. 

As stated by the Commission, “as unfortunate as Ms Phillips’ circumstances are, an employer in the respondent’s position is not bound to accept Ms Phillips’ request ... An employer has an obligation to consider all requests for flexible working arrangements, but can reasonably refuse such requests.”

If you would like to discuss flexible working arrangements in your workplace, please do not hesitate to contact Lavan’s Employment and Education team.

AUTHOR
Ian Curlewis
Partner
AUTHOR
Charmaine Tsang
Partner
AUTHOR
Michael Jensen
Senior Associate
AUTHOR
Steve Bowler
Senior Associate
SERVICES
Employment and Safety


FOOTNOTES

[1] Phillips v Integrated Medical Solutions Group Pty Ltd [2019] FWC 6225

[2] Phillips v Integrated Medical Solutions Group Pty Ltd [2019] FWC 6225 at [50]