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:
Examples of reasonable business grounds set out in section 65(5A) of the Act include the following:
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.
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.”2
If you would like to discuss flexible working arrangements in your workplace, please do not hesitate to contact Lavan’s Employment and Education team.
 Phillips v Integrated Medical Solutions Group Pty Ltd  FWC 6225
 Phillips v Integrated Medical Solutions Group Pty Ltd  FWC 6225 at