When can an employer reasonably decline an employee’s request for work flexibility?

Work-from-home and other flexible work arrangements have dramatically increased in many workplaces across Australia over the past 2 years.

As the COVID-19 pandemic transitions into a new phase many employers are reassessing the balance of time worked from home by their employees and many employees are considering if they will ask for the continuation of their current work-from-home arrangement.

A recent decision of the Qld Industrial Relations Commission to reject a worker’s request to continue to work full-time from home has highlighted some of the factors that should be considered by both employers and employees, when an employee has a right to request flexibility.

The Worker

The Applicant, Ms Hair, was a Human Resources advisor with Qld Health.  In January 2020 she was allowed to work remotely for 1 day per week.  From March 2020 she started to work remotely full-time as a safety measure due to the COVID-19 response and continued in those arrangements for some 18 months.

Request for Full-Time Remote Work Arrangements

Ms Hair formally requested flexible work arrangements to work remotely from NSW in September 2021 as her partner was relocating.  The request was denied by her employer on grounds including:

• The initial full-time flexible arrangements were largely in response to the urgent need to limit the number of people in the workplace due to a public health emergency.
• Some of the duties of her position – including providing in‑person assistance with coaching, and preparing managers to do performance management, and giving performance feedback – would be difficult to perform remotely in the longer-term.
• Although her work group may be comfortable with her work being done online the client group could change in the future.
• Although she offered to fly to Brisbane if required, the travel time may limit her preparation.
• Her colleagues would have to cover her where personal attendance was required and she was unavailable.
• Her absence could result in an unfair distribution of duties among the team.
• At that time her travel to Qld required a 14-day quarantine.

The Appeal

Ms Hair appealed to the QIRC under the Public Service Act 2008 that the decision was unfair and unreasonable.  Ms Hair submitted to the QIRC that:

1. The employer’s decision was based on hypothetical issues that had not occurred and that she had worked remotely without any concerns;
2. The employer should have offered alternatives; and
3. The employer should have considered the significant impact its decision could have upon her personal relationship.

Queensland Health submitted, amongst other things, that:

1. The team in which Ms Hair was working would now be looking to ‘find the optimal blend of remote and in-person working’;
2. Granting Ms Hair’s request would set a precedent that could not be accommodated in a fair and equitable manner for other staff; and
3. It remained a requirement of human resource advisory roles to provide significant face-to-face support.

The Decision

The QIRC held that the employer’s decision to decline the request for flexible working arrangements was fair and reasonable because the request would be practically and operationally unviable for Queensland Health.

The QIRC also found that:

1. Queensland Health was planning to transition from the remote working arrangements that were in place during the COVID-19 pandemic, similar to many other employers;
2. It was reasonable for an employer to determine its operational requirement; and,
3. An employee’s preference to work in a particular way must be balanced with the operational requirements of the employer.

Implications for Employers and Employees

Most non-public service employees are “national system” employees who do not have a right of appeal of the kind exercised by Ms Hair.   Their location of work is usually determined by their employment contract and is a matter of contractual negotiation.

However, an employer of a “national system” employee who is:

• the parent of a child who is of school age or younger;
• a carer, has a disability, is 55 years or older;
• is experiencing violence from a family member; or
• providing care to a member of their family or household.

is required by the Fair Work Act 2009 (Cth) to consider requests for flexible working arrangements.

Employers may only refuse requests on reasonable business grounds.

The QIRC’s decision provides helpful guidance to employers and employees as to when a flexible working request is reasonable, and reminds that some relevant considerations include:

• Is the flexible work request practically and operationally viable?
• What impacts may there be on other workers?
• Is there a significant risk of loss of efficiency and levels of customer service?
• Can it align with the employer’s (reasonable) broader planning goals for its workforce?