In a recent decision the Fair Work Commission granted a worker’s request for flexibility to work an extra day a fortnight at home until his toddler daughter reaches 2 years of age.
The decision emphasises that the flexible working arrangements provisions of the Fair Work Act allow orders to be made that may depart from the written terms of an employment agreement.
The Facts
The employee was an accounts manager with a logistics company, having worked from home 2 days per week since starting with the company in May 2021.
In August 2024 his wife started a new job with less flexibility to work from home to provide care to their daughter. He asked his manager if she minded how often he worked at home, and she said she did not.
However, three weeks later the company notified that it wanted him in the office more often, and that he should make a formal flexibility request if he wanted to maintain flexible arrangements.
He formally requested continuance of working from home 2 days per week and an extra 1 day per fortnight.
In a meeting to discuss the request the employer expressed concerns about complaints from clients about baby noises in the background when he took calls, and about his performance.
The employer rejected the flexibility request and proposed a 6-month trial continuing the 2 days per week, rejecting the extra day a fortnight.
The employee applied to the Fair Work Commission to resolve the dispute. A conference to conciliate the issues was unsuccessful.
The Decision
The Commissioner made an order granting the flexibility request until 31st July 2025, finding that:
- The flexible working arrangements provisions of the Fair Work Act allowed an order to depart from the written terms of the employment contract stating a usual location of work.
- The employment agreement’s terms did not bar the employee from changing his child’s nappies or settling her when required during working hours.
- The employer’s concern that a flexibility order would ‘create a precedent’ did not matter as the purpose of the flexibility provisions in the Act was to accommodate individual circumstances.
- The employer had only given limited evidence of impacts on customer service and business productivity.
Implications
The case illustrates the potentially broad reach of the flexibility provisions of the Fair Work Act, and that the Fair Work Commission can make orders that depart from the terms of an employment agreement.
The case is also a reminder to employers of the importance of having substantial supporting evidence for its business reasons for refusing a flexibility request.
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