Changes to the Fair Work Act will, from 6 June 2023, give employees enhanced rights to request flexible working arrangements. For the first time employees will have a right to apply to the Fair Work Commission to review an employer’s decision or failure to respond to a request. See our recent article for more detail.
The changes will not however remove the employer’s right to refuse a flexibility request on reasonable business grounds.
In a recent decision* the Queensland Industrial Relations Commission refused a police prosecutor’s case for flexibility, after considering various matters including the employer’s operational grounds. The case is helpful for understanding how similar circumstances could be approached by Fair Work.
The Facts
A police prosecutor applied for a flexible work arrangement that would allow him to work from home for one day each week. The Queensland Police Service rejected the application and instead allowed him to trial working from home one day a month, helping with sentencing schedules, but said his performance of the task had to improve for it to continue.
The prosecutor provided information from a doctor raising concerns about conditions at the arrest courts. Acknowledging that some days can be long with minimal breaks, the QPS (by an inspector) also said, “…they only go to show why having a member of the prosecutions team working from home is counterproductive if they are not physically present to assist other prosecutors and provide them with relief”.
The decision to reject the prosecutor’s application was affirmed by the QPS on review, a QPS superintendent also saying the prosecutor’s absence from the workplace:
- placed an additional workload on other prosecutors;
- had occupational health and safety implications for others;
- challenged Prosecution Services’ ability to meet service delivery obligations.
A QPS grievance review officer also recommended that if the prosecutor was seeking reasonable adjustment to his current duties or hours of work due to a medical condition, “…then this needs to be clearly identified and coordinated by the QPS Health and Safety Unit as part of the process of implementing a suitable duties plan”.
The Appeal
The prosecutor appealed to the Queensland Industrial Relations Commission on various grounds, including that:
- his medical condition was inadequately considered by the QPS;
- working from the office adds to his external stresses associated with his family life and negatively affects his mental health when compared with working from home;
- he can better manage his health when working from home; and
- working from home boosts his productivity, focus and concentration; and
- QPS should be “leading the way in modelling initiatives that support living a healthier lifestyle”.
The Decision
In dismissing the appeal, the Commissioner found that the QPS had taken a reasonable and responsible approach in the circumstances, including that:
- it was unsustainable to have other staff absorbing the prosecutor’s absence if he worked from home once a week;
- the significant consideration when considering workplace flexibility was the need for prosecutors to service the courts daily, including making personal appearances; and
- the decision to refuse the prosecutor’s flexibility request was “properly related to the specific circumstances of [his] employment at that time” and could be periodically reviewed and factor in changed circumstances.
The Commissioner observed that it was incumbent upon the QPS to further consider reasonable adjustments where medical grounds exist, that appropriately such a process should be undertaken with the QPS Health and Safety Unit, and that it was reasonable for the QPS to determine that the best way forward was to discuss suitable adjustments, rather than a flexible work agreement.
Implications
The case gives a helpful insight to how the Fair Work Commission may assess the reasonableness of the business grounds put forward by an employer as its reasons for refusing an employee’s request for flexibility.
The Fair Work Commission may be especially interested in factors such as the key purpose of the role, the sustainability of the change requested, and the potential for adverse impacts upon others.
Employers should be careful and thorough in their assessment of flexibility requests. The employer’s grounds for refusing a request will be scrutinised by the Fair Work Commission if the employee applies for review of the decision.
Employees should carefully consider the information and detail they are providing in support of a flexibility request. Employees should also be aware that, in some situations, a request based on their medical information and health grounds may be more appropriately made as a “reasonable adjustments” request.
*Fraser v State of Queensland (Queensland Police Service) [2023] QIRC 89 (21 March 2023)
Some more information is available here or you can book online for an initial no-obligation chat about reviewing an employment contract or contractor agreement.