A recent decision of the Fair Work Commission (“FWC”) has cast a spotlight on the right to request flexible working arrangements, the obligations on employers to consider such requests and what constitutes “reasonable business grounds” for refusal. 

What happened? 

The employee had been on a period of parental leave and sought to return to work on a part-time basis working three days a week for approximately six months before returning in a full-time capacity. The employer refused stating that such an arrangement could not be accommodated if the employee wished to remain in their executive position (the employee was the Religious Education Coordinator at a school) during this proposed period of flexibility. 

The employer advised the employee that as a matter of policy it could not provide flexible working arrangements for executive roles and put forward a number of alternatives, including: 

• working three days a week as a classroom teacher for a full school year, before returning to the executive role the following year; 

• working three days a week as a classroom teacher before changing to a full-time classroom teacher role; or 

• working three days a week as a classroom teacher for the first two terms before returning to the executive role. 

The rationale behind the alternative arrangements presented by the employer was that they could not allow the employee to perform their executive role part-time because:  

• the request was not in the best interests of the students; 

• accommodating the request would impose significant cost increases; 

• accommodating the request would adversely impact the workload of other employees; and 

• the request would reduce the strengths, availability and support of the executive team. 

Following the refusal of the flexible working arrangement request the employee made an application to the FWC to deal with the dispute.  

What did the FWC say? 

The FWC acknowledged that “at the heart of the dispute is the question of whether the employer has reasonable business grounds for refusing the request”. 

The FWC found in favour of the employer, stating that the grounds for refusal advanced by the employer were reasonable business grounds in the circumstances. 

In accepting that there were reasonable business grounds for refusal, the FWC commented that the employer was “not serving customers who are buying widgets. It’s product is of critical value to society, being the provision of education to primary school children in the formative years of their life, and proposals that impact the school’s capacity to effectively deliver education effectively and which risk detriment to student learning should not be taken lightly”. 

Other considerations from the case 

The case gives employers some clear guidance on when they can say no to a flexible working arrangement request involving an employee in a senior position. However, this is not the only consideration employers have when refusing a flexible working arrangement request. The Fair Work Act 2009 (Cth) (“FW Act”) requires that employers provide a written response within 21 days, discuss the request with an employee, genuinely try to reach agreement, have regard to the consequences of refusal and only refuse on reasonable business grounds (you can read more about what constitutes “reasonable business grounds” in our recent article).  

The FWC also provided guidance on the steps an employer must take to demonstrate they have genuinely tried to reach agreement with an employee. The FWC stated that a common sense and practical response would require: 

• initiating meaningful discussions with an employee to explore options; 

• evaluating proposed arrangements and considering the benefits to the organisation; 

• identifying the changes required to accommodate a request and clearly communicating considerations with an employee prior to any refusal; and 

• assessing requests on their individual merits as opposed to applying a strict blanket approach. 

This is important guidance as the FW Act does not contain any detail regarding what is required to genuinely try and reach an agreement with an employee regarding a flexible working arrangement.