Navigating Flexible Work Arrangements

Law Squared graduate lawyer, Amogh Kadhe, unpacks the Fair Work Commission’s recent decision in Charles Gregory v Maxxia Pty Ltd and what it means for employers handling flexible work requests.

The pandemic has disrupted the way we work. It has forced organisations to adapt, and allow people to work more flexibly. This has resulted in employees wanting flexible working arrangements (FWA).

A recent decision from the Fair Work Commission has shed some light on when employees are entitled to work flexibly, and when an employer is within its rights to refuse such an accommodation.

Charles Gregory v Maxxia Pty Ltd

Mr Charles Gregory, was employed by Maxxia Pty Ltd (Maxxia), an organisation that provides salary packaging advice and assistance to employers. Mr Gregory’s role required him to provide advice and manage cases and required him to attend Maxxia’s premises to perform his duties.

Mr Gregory submitted a request to work 100% of his full-time hours from home, stating that he had a health condition (inflammatory bowel disease) and that he had to look after his son.

Maxxia had a Hybrid Working Guidelines policy in place, and required its employees to work at least 40% of their hours from the office (~ 2 days per week for full time employees)

The Legislative Framework

Part 2-2 of the Fair Work Act (FW Act), sets out the legislative framework for employees to request FWA (some examples of this include flexible start and finish times, working from home or another location, etc.).

Under the FW Act, there are key requirements that must be satisfied for a FWA request under s65(1) to be validly made. These include:

1.     The employee must be able to point to at least one of the circumstances set out in s65(1A) that apply to them (some examples include, whether the employee is a parent, whether they have a disability, etc.);

2.     The employee’s request for a FWA must be “because of the circumstances listed in s65(1A) (i.e. there must be a nexus between the request made and the circumstance described in s65(1A));

3.     The employee requesting FWA has a minimum period of service which for non-casual employees is at least 12 months of continuous service immediately before that request is made.

4.     The request must be in writing; and

5.     The request must set out the change sought by the employee and the reasons for the change.

The FW Act also requires employers to provide a written response to any FWA request within 21 days stating whether that request has been approved or rejected. Employers are allowed to reject the request based on “reasonable business grounds” which are also defined in the FW Act, and include factors such as costs, whether other accommodations have been made, whether the new FWA would likely lead to loss of productivity, etc.

The Decision

Maxxia considered Mr. Gregory’s FWA request, and in doing so turned their mind to the following:

1.     The high expectations of Maxxia’s clients with respect to service delivery and productivity meant that employees in turn were expected to maintain a certain level of productivity  – with an expectation that 99% of the calls are answered within 3 minutes and emails within 2 business days;

2.     The significant financial penalties under client contracts if Maxxia did not meet their contractual obligations;

3.     Mr. Gregory’s productivity was already below the target requirement;

4.     Mr. Gregory was stepping into a specialist role which required different set of skills;

5.     Mr. Gregory’s employer had already made certain accommodations to assist him, including scheduling fortnightly support sessions to assist with productivity, allowing him to work flexibly on days when he had custody of his son, etc.;

6.     The requirement on Maxxia to remain fair and consistent across the team with any FWA, and only allow exceptions where genuinely required.

The Commission found that the employer had established a “reasonable business ground” under the FW Act in refusing Mr. Gregory’s request to work from home 100% of the time.

This decision provides employers with further clarity on when they can refuse a flexible working arrangement request. It showcases the delicate balance between accommodating an employee’s request to work flexibly and ensuring that employer expectations are being met.

If you are an employer, we recommend having a Flexible Working policy in place. If you have any questions around how this policy can be drafted or need assistance navigating with any other workplace issues please reach out to our Employment + Workplace Relations lawyers here.