Fair Work Commission makes first Flexible Working Arrangement Order

Employers have been afforded a valuable insight into how to comply with their obligations under the Fair Work Act 2009 (Cth) (FW Act) in circumstances where they propose to refuse an employee’s request for a “flexible work arrangement”, in the recent decision of Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex (2024) FWC 1845 (Ridings v Fedex).

Ridings v Fedex is the first decision in which the Fair Work Commission (FWC) has handed down flexible work arrangements orders. The FWC was given new powers to arbitrate and conciliate disputes about flexible work arrangements on 6 June 2023, and although a few flexible work arrangement disputes have been heard by the FWC, on each previous occasion the FWC has found it did not have jurisdiction to make orders based on the individual facts of each case.

Flexible work arrangements under the FW Act

Pursuant to the National Employment Standards and FW Act, permanent employees who have worked for their employer for at least 12 months, and casual employees who have worked for the same employer on a regular and systematic basis for at least 12 months, have a right to request flexible work arrangements from their employer in circumstances where they are:

the parent, or has responsibility for the care, of a child who is school aged or younger;
a carer (under the Carer Recognition Act 2010 (Cth));
a person with disability;
55 years of age or older;
pregnant;
experiencing family and domestic violence; or
providing care or support to an immediate family or household member who is experiencing family and domestic violence,

and the request for flexible work arrangements directly relates to those circumstances.

An employer may refuse a request for flexible work arrangements only if:

they have discussed the request with the employee;
made genuine, but unsuccessful attempts to reach agreement with the employee, taking into account the consequences that refusing the request will have for the employee; and
where agreement has still not been reached, the refusal is on “reasonable business grounds”.

Ridings v Fedex

In Ridings v Fedex, the employee, Mr Ridings, who had been employed as a Clearance Classifier for Fedex since April 2015, made four separate requests for flexible work arrangements over a period of 3.5 years on the basis that he was a carer for his children and wife, all of whom had complex medical needs.

Each of Mr Ridings’s requests for flexible work arrangements asked for increasingly more days working from home, with his fourth request being to work from home 100% of the time. Fedex refused each of Mr Ridings’ requests.

However, the FWC found that Fedex had made genuine attempts to discuss Mr Ridings’ request for flexible work arrangements with him and to reach genuine agreement, based on the information provided to them by Mr Ridings. In response to the fourth request, Fedex tried to arrange meetings with Mr Ridings and request additional information from him to understand the specific time constraints created by his role as carer to his wife and children. The FWC found that Mr Ridings was neither forthcoming nor cooperative during this process, wanting to record meetings, refusing to meet in person, insisting on corresponding in writing and refusing reasonable, alternative flexible work arrangements put forward by Fedex.

Although Fedex had tried to reach genuine agreement with Mr Ridings, the FWC found that Fedex had failed to take into account Mr Ridings’ personal circumstances and/or demonstrate that there were reasonable business grounds for refusing the request. For example, although Fedex had concerns that working exclusively from home would cause Mr Riding to have decreased productivity and efficiency, this issue was never raised with Mr Ridings and no evidence was produced by Fedex to substantiate that concern. The FWC also found that Fedex had provided Mr Ridings with generic business grounds for refusing his requests which failed to consider or address Mr Riding’s personal circumstances or demonstrate how approving Mr Ridings’ requests would be detrimental to Fedex’s business.

Based on the history of the matter, the FWC determined that there were no reasonable prospects of the parties resolving the dispute and it was therefore appropriate to make an order. Before making the order, the FWC considered the practical realities of the order to ensure that the objects of the FW Act would be achieved. In particular, the FWC considered:

the processes undertaken by Fedex in reviewing Mr Riding’s request. The FWC found that Fedex had provided Mr Ridings with 3 alternative options, but Mr Ridings had not provided any alternative options and had not compromised from his position of working from home 100% of the time;
the operational needs of Fedex, including Fedex’s need to ensure that Mr Ridings’ productivity was not lower than his colleagues and also Fedex’s desire to increase collaboration and teamwork amongst its employees by encouraging work from the office;
Mr Ridings’ circumstances and their gravity. In considering this, the FWC considered it relevant that Mr Ridings’ family could receive care 1 day per week through NDIS funding and that Mr Ridings did not live so far from work so as to make it unfair to require him to travel to the office one day per week;
other factors relevant in affecting the practicality of the order and whether it could be complied with, including that it would be unfair to grant Mr Ridings’ request to work from home every day given his lack of cooperation in working with Fedex to find a flexible work arrangement that would work for both parties; and
that the flexible work arrangement should not be for an indefinite time period and should be subject to review, in this case after 3 months.

Ultimately, the FWC ordered that:

Mr Ridings may work from home for 3 days per week and must work from the office 1 day per week (this was the flexible work arrangement that had been put to Mr Ridings by Fedex during the proceedings);
that Fedex may lawfully and reasonably request Mr Ridings to work at the office on the days that he is permitted to work from home in circumstances where Mr Ridings does not attend the office for 2 consecutive weeks; there are performance concerns; or there are genuine operational requirements which require Mr Ridings’ attendance;
the order would be valid for 3 months, upon which time the parties would be able to review Mr Ridings’ circumstances and Fedex would be able to assess its operational requirements; and
should Mr Ridings wish to extend or vary the flexible working arrangement of this order upon its expiry, he would need to lodge a new flexible work arrangements request.

Key Takeaways

Employers must take reasonably practicable steps to reach genuine agreement. Where the grounds for an employee’s request for flexible work arrangements are not understood, employers should request additional information and arrange meetings with the relevant employee to discuss.
Generic and blanket answers are not sufficient alone to establish a reasonable business ground for refusing a request.
Flexible work arrangements can be agreed on a temporary or trial basis to allow both parties to test the arrangement.
The FWC has power to make orders which impact the contractual arrangements between an employer and employee.