May 8, 2024

Flexible working: Where has the law landed in 2024?

Flexible work has been a topic for some time but in the wake of the COVID-19 pandemic, it became a necessity for many workplaces.

Many employees found they enjoyed these arrangements, especially when it could afford them a better work/life balance. Some employers found it useful, too, with some studies finding productivity actually lifted when people were working from home.

But not all employers want their employees working flexibly, all the time. And often that’s for good reason too. There can be real benefits to being in the office on a regular basis, such as human connection, the opportunity for more collaboration and even the chance to work in a proper optimised workspace without distractions. 

With that in mind, we thought it was time to look at recent legislative changes and case law to see what employers need to do when it comes to flexible working in 2024. 

What the legislation says

The right to flexible working is enshrined in section 65 of the Fair Work Act 2009. Under these laws, most employees can request flexible working arrangements if they’ve worked for an employer for 12 months and they’re:

  • the parent of a school-aged child or younger (or if they have responsibility for one)
  • a carer
  • a person with a disability
  • 55 years or older
  • pregnant
  • experiencing family or domestic violence or providing care to a family or household member who is.

What must employers do when an employee makes a request for flexible work?

If an employee makes a request for flexible work, an employer needs to respond in writing within 21 days, stating whether the request has been approved or denied. However, it can only been able to refuse a request on reasonable business grounds, including:

  • the request would be too costly
  • it can’t change other employees’ working arrangements to accommodate the request
  • changing other employees’ working arrangements or hiring new employees to accommodate the request would be impractical
  • the request would likely lead to a significant loss in efficiency or productivity, or
  • the request would have a significant negative impact on customer service.

From June 2023, employers have also been obliged to:

  • discuss the request with the employee and genuinely try to reach an agreement or alternative arrangements to accommodate them, and
  • consider the consequences of refusing the request.

What the case law says

If an employer fails to meet these obligations, the employee has the right to appeal to the Fair Work Commission. Recently, a couple of cases have shed light on an employer’s right to refuse flexible working. 

Case one: Refusal to reduce shifts

In Ambulance Victoria v Natasha Fyfe [2023] FWCFB 104, the Full Bench of the Fair Work Commission was asked to consider Ambulance Victoria’s refusal to grant a mother of three the right to work a reduced shift.

The employee, a paramedic, had been asked to work shifts from 8 p.m. to 6 a.m. However, she requested a 9 p.m. start because her husband was still at work and nobody was available to look after her children (all of whom were under five years old).

The request was made in accordance with the provisions of her Enterprise Agreement, which mirrored section 65 of the FW Act. However, Ambulance Victoria refused her request.

When the case first went before the FWC, it found in favour of the employee. It noted that the employer hadn’t held any discussions with the employee and that community needs would still be met, even though Ambulance Victoria claimed that other employees would be affected. 

The FWC concluded that Ambulance Victoria’s refusal hadn’t been made on reasonable business grounds.

Ambulance Victoria appealed to the full bench of the FWC. However, the full bench again found in favour of the employee. 

The full bench ruled that the employer hadn’t given weight or proper consideration to the employee’s personal arrangements. It noted that Ambulance Victoria should have taken into account that she had three children under five who needed to be looked after. It also noted that Ambulance Victoria had failed to analyse how the request would impact the organisation financially.

That said, the Full Bench observed that the employer was not required to genuinely reach an agreement because this wasn’t included in the wording of the Enterprise Agreement, and s 65 hadn’t been altered at the time of the refusal (i.e., it was pre-June 2023).

Case two: Forcing a worker to return to the office

In another recent case, which was decided under the unfair dismissal laws, the FWC awarded compensation to an employee who was sacked when she refused to return to the office after a long period of remote work.

The employee claimed she had been working from home full-time since 2013 to juggle her employment, home-schooling her children, and family care. In 2023, the employer asked her to return to the office.  

When she didn’t comply, the employer sacked her—ostensibly for performance-related issues. However, the FWC found no evidence to support the idea that her work was unsatisfactory. It also noted that the employer had conflated work performance with remote working. In doing so, it risked the possibility of discriminating against the employee.

Unfortunately, by the time of the hearing, the employer had gone into liquidation. Because it could not rehire the worker, it ordered it to pay the employee $5,000. 

What these decisions mean for employers

Flexible working is now a right for many Australian workers – and one that employers need to take seriously. That means addressing each request genuinely and on a case-by-case basis.

While many employers would like their staff to return to the office permanently, compelling them to do so can be risky. It’s vital to get it right or risk a discrimination or unfair dismissal claim.

If you’d like to find out more about how this applies to your workplace, get in touch. 

say hi to our author

Merilyn founded Catalina Consultants in 2012 on the belief that all organisations, regardless of size, should have access to top quality bespoke HR services. She enjoys working closely with her clients and believes that the best results are built on relationships of rapport, trust and authenticity. Growing up, Merilyn had her sight set on stardom and dreamed of becoming an actor. She also sang and played the piano, but ended up studying accounting and HR. Whilst she hasn’t won her Grammy just yet, she still loves a good karaoke night. Merilyn loves to travel with her family, with South Africa being one of her most memorable destinations.

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