New provisions of the Fair Work Act allow a broader category of person to make a request for Flexible Work Arrangements. However, in a significant decision under the Secure Jobs Act’s flexible work provisions, the Fair Work Commission (FWC) ruled against an employee with irritable bowel syndrome who sought to continue working from home full-time. The employee, an advisor at Maxxia Pty Ltd, had requested to work exclusively from home to manage both this medical condition and a potential new custody arrangement for his school-age child.

Maxxia, a salary packaging company, had introduced a hybrid working policy requiring employees to work at least 40% of their hours from the office. The advisor, who had been working from home due to the COVID-19 pandemic, argued for continued remote work citing his medical condition and child care responsibilities.

While the employee provided evidence supporting his request by way of letters from an online medical provider, whom he had never attended in person, about his “situational crisis” and inflammatory bowel disease, the Commissioner found that the medical condition did not constitute a disability in the context of s65(1A)(c) of the Act. The Commissioner acknowledged that the disease would be an inconvenience, however found it was not a disability in the normal context of that word.

Additionally, while acknowledging the advisor’s role as a parent, the commissioner noted that the link between his request and his parental responsibilities would only apply once the new custody arrangement was in place and during the periods he had custody of his child.

Maxxia had offered a compromise, proposing that the advisor work from the office 20% of the time until September, increasing to 40% from October, with adjustments to his schedule to accommodate his child care responsibilities. The advisor declined this offer.

The key factors influencing the decision included:

• The company’s clients had high expectations of service delivery and productivity.
• There were significant penalties for the company under the client contract if they did not meet these expectations.
• The advisor’s productivity was below the company’s target (by 35%), and the team leader believed in-person support could improve his performance.
• The advisor was stepping back into a specialist role, which required different skills compared to the skills originally required under his contract.
• The need for the advisor to contribute to team culture and training, especially for employees with less tenure.
• A desire for fairness and consistency in applying the hybrid working policy across the team.

The Commissioner agreed that face-to-face interaction was desirable for team dynamics, coaching, and support. He acknowledged that with the easing of the pandemic, the employer was within its rights to require office presence in line with employment contracts. The commissioner concluded that Maxxia’s refusal of the childcare-related request was based on reasonable business grounds and declined to make any further order.

This decision reflects the FWC’s approach to balancing employee requests for flexible working arrangements with employers’ business needs and operational requirements under the Secure Jobs Act. This decision provides employers with a framework for the process that should be followed when considering a flexible work request.

Lessons for Employers:

• Employers are within their rights to require office presence in line with employment contracts;
• Employers should ensure that they engage in a process of consultation with employees that request flexible working arrangements;
• There must be reasonable business grounds to decline a flexible working arrangement if the employee meets the legislative criteria.

If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.