Flexible Work Obligations
Under the Act, permanent employees can request flexible working arrangements if they’ve worked with the same employer for at least 12 months and they:
- Are the parent, or have responsibility for the care, of a child who is school aged or younger
- Are a carer (under the Carer Recognition Act 2010)
- Are a person with disability
- Are 55 or older
- Are pregnant
- Are experiencing family and domestic violence, or
- Provide care or support to an immediate family or household member who is experiencing family and domestic violence.
Casual employees in the categories above who have worked with an employer for at least 12 months on a regular basis (and who have a reasonable expectation of continuing work on a regular and systematic basis) are also eligible to request flexible working arrangements.
Requests for flexible working arrangements must be in writing, explain what changes are being asked for and explain the reasons for the requested change – and an employer must respond (in writing) within 21 days outlining whether the request is approved or refused. Notably, an employer can only refuse a request on reasonable business grounds – and if they have genuinely tried to reach an agreement with the employee.
Recent case update: Ridings v Fedex Express Australia Pty Ltd T/A Fedex
Mr Peter Ridings was engaged by FedEx on a full time basis working onsite.
Mr Ridings had 2 teenage children with autism and intellectual disabilities. Mr Ridings’ wife also had autism, and a range of physical limitations. Therefore Mr Ridings qualified as a carer, and was eligible to request flexible working arrangements.
The history of Mr Riding’s flexible working arrangements is summarised below:
- In July 2019, it was agreed that Mr Ridings would work 4 days per week in the office.
- During COVID in October 2021, it was agreed that Mr Ridings would work 4 days per week from home. In support of Mr Ridings’ flexible working request, he provided evidence including medical documentation demonstrating his children and wife’s special needs.
- From September 2022, following a direction from Fedex, Mr Ridings worked 2 days in the office, and 2 days at home.
- In July 2023, Fedex directed employees to work in the office at least 3 days per week.
- Mr Ridings lodged a new flexible working request to work from home 3 days per week and 1 day in the office, and provided medical evidence in support of this.
- On 21 July 2023, FedEx directed all employees work from the office for 3 days per week from 1 August 2023.
- On 1 August 2023, Fedex rejected Mr Riding’s request due to “business and operational requirements” namely that the proposed arrangement would be “likely to have loss of efficiency or productivity” and that Fedex “encourages intentional and effective collaboration among team members and more in person interactions in office so expected employees to work at least 3-days a week”.
- FedEx did offer an alternative, being that Mr Ridings work 2 days a week in the office and 2 days a week at home, which he had previously done. Whilst Mr Ridings agreed to this, Mr Ridings took annual leave every Wednesday – being a day he was required to attend the office.
- In January 2024, Mr Ridings made another flexible working request seeking to work from home 4 days per week on an indefinite basis.
- After a series of consultations between Fedex and Mr Ridings, FedEx ultimately rejected the Mr Riding’s request in writing. Fedex however confirmed that it was prepared to allow Mr Ridings to continue working 2 days in the office and 2 days at home.
Mr Ridings then lodged an application with the FWC to deal with the dispute.
Findings
The FWC considered all of the facts and circumstances, and found that Fedex failed to provide reasonable business grounds for refusing Mr Riding’s flexible work requests, but also reinforced that Mr Ridings did not have an entitlement to refuse to attend the office.
After weighing up both Mr Ridings’ personal circumstances, and the business and operational requirements of Fedex, the FWC ordered that Mr Ridings should work from home for 3 days per week and 1 day from the office. The FWC also ordered that if Mr Ridings failed to do so, or if FedEx had performance concerns or genuine operational requirements requiring Mr Ridings’ attendance in the office, it could lawfully request that Mr Ridings work at the office on the days he is permitted to work from home.
