Fair Work Commission upholds employer’s decision to reject flexible work application

The federal government’s recent expansion of flexible work laws was put to the test in a Fair Work Commission case concerning an employee’s request to work exclusively from home.

Last week, commissioner Christopher Platt upheld an employer’s decision to refuse an employee’s application to work exclusively from home, citing business grounds.

First test to new laws

The National Employment Standards make provision for, among other things, the circumstances in which an employee can request a more flexible working arrangement. Among those circumstances are parenting duties, pregnancy, caring responsibilities, disabilities, family and domestic violence, age considerations, and others.

These circumstances are considerably broader than was previously the case prior to the federal government’s recent Secure Jobs, Better Pay reforms, when an employee was entitled to make a flexible working request only if they had parental or caretaking responsibilities or a disability.

Commissioner’s consideration

As noted by commissioner Platt, Mr Gregory’s application had “two limbs”. The first concerned his having a medical condition that requires him to “go to the toilet with urgency and more frequently than usual”. Commissioner Platt found that the condition did not reach the standards required to be considered a disability under the legislation.

The second limb concerned Mr Gregory’s parenting duties. Specifically, Mr Gregory was intending on negotiating with the mother of his child to allow him to host his child every other week. If so, Mr Gregory wanted an assurance that he could permanently work from home and have some additional flexibility and breaks to allow him to collect his child from school.

In response, the employer offered to let Mr Gregory work from home every other week and accepted his application for flexibility around working hours for school collection.

Crucially, the commissioner agreed with the employer in concluding that it is desirable for Mr Gregory to be physically present for work to some degree.

“I accept that it is desirable for there to be face-to-face contact within [a] workforce team. I accept that a face-to-face presence would allow for observation, interaction, and (if necessary) coaching to improve Mr Gregory’s productivity and provide him with greater support,” said commissioner Platt.

“I accept that Mr Gregory’s knowledge and experience could be more easily accessed by less experienced team members on a face-to-face basis.”

Watershed or inconsequential?

Though the ruling recognised the importance of coming into the office, generally, it’s important to note that Mr Gregory and the employer’s circumstances were unique.

For instance, commissioner Platt referred to the employer’s reputation for quick, reliable lines of communication with clients and potential exposure to “significant financial penalties” should it fail to meet its contractual obligations.

This is not to mention the existing productivity concerns surrounding Mr Gregory’s job performance (his daily productivity was approximately 50 per cent at the relevant time while his target was 85 per cent).

That said, Australian Chamber of Commerce and Industry chief executive Andrew McKellar said: “While we know that flexible work arrangement requests must be considered on a case-by-case basis, it is encouraging that the Fair Work Commission has recognised the importance of working in the office.”

Despite the persistence of hybrid working arrangements, many business leaders are calling for a return to the office. For instance, as noted in a recent HR Leader article, nearly two-thirds of CEOs globally believe hybrid working will be a thing of the past by 2050.

Though the true impact of this ruling is difficult to ascertain, what’s clear is that the “right” to work from home is not absolute.