Introduction
Under the National Employment Standards certain employees have the right to request a ‘flexible working arrangement’. This is set out in s65 of the Fair Work Act 2009 (Cth) (Act).
Employers who receive a valid request for a flexible working arrangement from such employees must respond to the request, and may only refuse the request in limited situations. As a result of amendments to the Act that commenced in June 2023, an employer must respond in writing and within 21 days.
Two key questions are often asked by employers in relation to s65:
- When does an employee have the right to request a flexible working arrangement from their employer under s65?
- When can an employer refuse such a request?
These questions were considered by the Full Bench of the Fair Work Commission (FWC) in the recent decision of Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209.
The FWC provided a clear summary of the steps required of an employee when requesting flexible work arrangements, and the consequences for failing to comply with these steps.
Take home message
For there to be a valid request under s65, the employee must:
- have an identifiable circumstance under s65(1A) of the Act; and
- advise the employer of this circumstance in writing.
Where these elements are not present (all else being equal), the request is not likely to be valid and the process under s65 is not enlivened.
The decision also provides clarification for employers that a mere claim of the existence of a disability, without any supporting evidence, may not be sufficient to establish a valid request for flexible working arrangements.
The upshot is that employers should pay attention to requests purportedly made under s65 and assess each request on its merits and compliance with the Act.
Background to Quirke v BSR Australia Ltd
Ms Quirke had been employed by BSR Australia Ltd (BSR) for just less than twelve months when she requested that her working hours be changed.
BSR understood this request to be due to the issues that Ms Quirke had waking up and getting to work. Ms Quirke gave evidence that this request was due to a recommendation by her GP that she adjust her work hours to aid in the relief of her insomnia and anxiety. There was no evidence that Ms Quirke communicated to BSR that she had a disability.
Ms Quirke later emailed BSR with her proposed revised hours of work and commented that these hours ‘would be in-line with [her] doctor’s recommendations’. The email still did not make any reference to Ms Quirke having a disability.
After further discussion between Ms Quirke and BSR, BSR denied her request for change in working hours.
Requests for flexible work hours under s65
Section 65 of the Act grants certain employees the right to request flexible working arrangements from their employers.
Requests validly made under s65 can only be refused in accordance with ss 65A(3) and 65A(5) of the Act, which include a requirement that the refusal be on ‘reasonable business grounds’.
The FWC identified 6 requirements which must be met for a request for flexible working arrangements to have been validly made under s65 of the Act:
- At least one of the circumstances listed in s65(1A) of the Act must apply to the employee at the time the request is made.
Those circumstances are when the employee: is pregnant; is responsible for the care of a child or other person; has a disability; is 55 years or older; is experiencing family and domestic violence; or is providing support to a family member or member of their household who is experiencing family and domestic violence. - The employee’s desire for changed working arrangements must be because of the relevant circumstance, and the request for a change in working arrangements must relate to the relevant circumstance.
- A non-casual employee must have a minimum period of service of twelve months. A casual employee must have been employed for twelve months and hold a reasonable expectation of continuing employment on a regular and systematic basis.
- The request must be in writing.
- The request must set out the details of the change sought and the reasons for the change by identifying the relevant circumstance under s65(1A) and explaining how the proposed changed working arrangements relates to that circumstance.
- The request must have been made on or after 6 June 2023, being the date that the relevant sections of the Act commenced.
Ruling
The FWC ruled that Ms Quirke’s email to BSR did not satisfy the requirements of a valid request for flexible work hours because:
- she had not been employed by BRS for twelve months at the time of making the request;
- she failed to identify in writing the reasons for the change sought by reference to any of the circumstances in s65(1A); and
- the request pre-dated 6 June 2023.
Whilst this was enough to satisfy the FWC that Ms Quirke did not have a valid request, it went on to consider whether she had a ‘disability’ for the purposes of s65.
While acknowledging that the term ‘disability’ not only encompasses the underlying condition, but also the symptoms and manifestations of the disability, the FWC held that that an anxiety related mental disorder must be distinguished from anxiety as a normal emotional reaction to stress.
The FWC found that whilst Ms Quirke believed that she suffered from a disability, she had not provided any evidence that this was the case. Her GP’s comment that adjusted work hours may aid her anxiety, was found to be evidence that she was experiencing feelings of anxiety, and not a medical diagnosis of an anxiety related mental disorder.
More information
If you require assistance or advice regarding requests for flexible working arrangements, please contact:
Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au
Luke Phillips
Lawyer
T: (03) 6235 5184
E: lphillips@pageseager.com.au
Published: 20 March 2024
