Why a ‘Work-Life-Balance’ Alone Won’t Support a Flexible Work Request
Post COVID there has been a steady increase in flexible work requests at workplaces in Australia. However, an employer can refuse the employee’s flexible work arrangements if the request does not satisfy the ‘reasonable business grounds’ set out in the Fair Work Act (Act). Check out our article for more information on what constitutes as ‘reasonable business grounds’: Voice Lawyers — What are considered ‘reasonable business grounds’ when refusing a flexible work request? Moreover, in a recent case, the Fair Work Commission (FWC) agreed with the employer’s refusal and found that for a flexible working arrangement to be allowed, the employee needs to show a causal link between a change in their circumstances and the need for a flexible arrangement.[1]
Brief Background
The employee, who worked at a power station requested flexibility at work to support his son after a traumatic incident at his school in Townsville.
He requested to work remotely after his family relocated to Townsville including his child.
The employee explained to his employer that this remote arrangement would help him support his son’s education and allow his family to operate across two locations in North Queensland.
The employer initially approved the employee’s first flexible working request to work remotely every second week for three months to help his son settle back into school.
The employee then sought a second arrangement to work remotely one week each month for ten months. However, the employer refused the request based on operational requirements and costs but did offer an alternative of up to two weeks remote work every six months.
When can a Flexible Work Arrangement Request be Made?
The FWA has set out the following pre-requisites when asking for a flexible working arrangement:
The employee should satisfy at least one of the circumstances under the flexible working arrangements provisions set out in the Act. (In this case, the employee was a parent of school aged children). It should be based on the employee’s current circumstance and not an anticipatory circumstance.
The request for changed work arrangements is “because of” the relevant circumstances set out in the legislation[2].
The employee has a minimum period of service of 12 months.
The request needs to be in writing.
The request needs to set out the details of the change sought and the reasons for the change.
Why did the FWC reject the flexible work request?
“Because of” Requires an Operate Causal Connection
The FWC confirmed that a flexible work request must satisfy a cause-and-effect relationship.
The employee’s circumstances must show an operative reason for making the request. In this case, the employee’s request only said “this will assist me to care for my children and provide additional support to my wife as there has been recent changes to my son's educational.. needs…..the flexible work arrangements will allow my wife and I to alternate between locations to support both children's schooling needs”
However, the FWC found the operative reason unsatisfactory by saying “It is not enough to simply have children and to desire to spend more time with them during the week”. The FWC further said that “the purpose of the flexible working arrangements provisions under the Act is not to promote a work-life balance”.
Most importantly the FWC emphasized “The employee did not clearly explain how the request is related to the specific care needs of children, for example, by allowing the employee time to pick up or drop off their children at school.”. Instead, the employee “refers to having children, and states that his FWA would allow the Applicant to “support” his children’s needs”.
The FWC concluded the request was misleading and was not convinced that the employee’s request was to provide for the son’s needs. Instead saw it as a personal choice following his family’s decision to relocate.
Reasonable Business Grounds Still Matter – and Were Made Out
The FWC agreed with the employer’s refusal based on the following reasonable business grounds:
The employee’s role required mandatory physical inspections of the dam twice weekly.
Covering the employee’s responsibilities would require paying higher duties allowances to other staff.
Limited staffing made it impracticable to continuously cover the employee’s workload.
The employer’s Lone Worker Policy created additional staffing requirements.
Employers accept flexible work requests based on genuine, practical reasons and not personal preferences of employees. It is important that the employer documents the flexible work requests, negotiations and the alternatives suggested.
Key Takeaways for Employers
Past approval does not oblige employers to approve future requests and must be assessed based on the current circumstances.
Request clarity and documents from employees as employers need to understand how the proposed flexible arrangement addresses specific care needs.
Distinguish temporary absences from permanent reallocation of workload arising from an ongoing flexible arrangement.
Ensure any refusals are documented and are based on reasonable business grounds.
This article is general in nature and is not legal advice. If you need help dealing with working arrangements with employees, or require assistance with updating your workplace contracts, procedures and policies or another employment law matter, Voice Lawyers can assist you.
We help people navigate the complexities of the Fair Work Act and workplace laws with confident, practical advice. You can contact us at office@voicelawyers.com, or give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.