An employer has won a dispute in the Fair Work Commission (FWC) concerning the right to refuse a worker’s request to work remotely 100% of the time, a significant decision in light of recent changes to workplace law. 

The Secure Jobs, Better Pay reforms came into effect in June this year introducing new obligations for employers when handling requests for flexible working arrangements. 

These include: 

• discussing the request with the employee; 
• making a genuine effort to find alternative arrangements to accommodate the employee’s circumstances; 
• consider the consequences of refusal; 
• provide a written response that includes:
  – an explanation for the refusal, on reasonable business grounds
  – alternative arrangements the employer is willing to take to accommodate the request
  – information about referring a dispute to the FWC. 

The FWC now has the power to deal with disputes relating to requests for flexible work through conciliation or arbitration.   

The case 

This recent case – the first to go before the FWC since the reforms came into effect in June – involves a worker contesting his employer, Maxxia’s, decision to deny his request for flexible work.  

The employee requested a 100% remote arrangement on his full-time hours, based on his parenting responsibilities and health reasons.  

The employer argued the employee’s daily productivity was about 50%, below the 85% target. 

The employee had recently stepped back into a specialist role, which required a different skillset. Maxxia says attempts to assist the employee to regain his skill set through fortnightly support sessions had failed to reach the desired outcome. Maxxia emphasised the importance of the employee’s physical presence in the office to provide support, contribute to team culture, engage in training and participate in discussions.  

Maxxia’s hybrid working guidelines policy requires its employees to work at least 40% of their hours from the office.  

On August 18, the employer responded to the employee’s request to work 20% in the office until the end of September, and then 40% in the office from October 2 and allocate his office days to the week he did not have custody of his son.  

However, during a meeting on August 23, the worker rejected the offer, insisting on working 100% remotely.  

A few days later, he cited a doctor’s email outlining his health issues for needing to work from home. On the same day, the employer declined the request, in writing.

The decision 

The FWC did not find the health issues the doctor cited to meet the criteria under the Fair Work Act. Prior to ruling, the FWC found the employee’s parental responsibilities were contingent on when the employee had custody of his child, and Maxxia had made reasonable consideration to allow the employee to work from home on these days. The FWC accepted it was desirable to have face-to-face contact with the work team, as well as allowing for observation, interaction and coaching. 

In his ruling, Fair Work Commissioner Christopher Platt found Maxxia’s refusal was based on valid justifications.  

Before making any changes to staffing arrangements, we recommend you call CCIWA’s Employee Relations Advice Centre on (08) 9365 7660, or email [email protected].