Last year, we discussed the new jurisdiction of the Fair Work Commission (“FWC”) and its ability to determine disputes arising from requests for flexible working arrangements. Guidance has emerged from recent decisions as to how the FWC will attempt to strike the right balance between the interests and priorities of the employer and those of the employee, in a given context. Increasingly the employer context or catalyst for disputes includes the introduction of policies with increased requirements to attend the office, often labelled as a “return to office mandate”.

A recent decision is informative as it concerned a dispute arising from the introduction of a hybrid work policy that required employees to attend the office two to three days per week. 

Employee’s request 

In 2021, the relevant employee had relocated 500km away from the employer’s city office to a regional town due to experiencing family and domestic violence. The employer had allowed informal arrangements however, did not propose to continue them in light of the introduction of the hybrid work policy. 

The employee made a request for a flexible working arrangement. Initially, the employee requested to work from her hometown on the basis of experiencing family and domestic violence, and her carer responsibilities for her primary school-age child.  

During the proceedings, the employee asked the FWC to make orders that included: 

• when required to travel between home and the employer’s office, she be permitted to travel in work time between 7am and 7pm, or alternatively travel outside of these hours be treated as work time; and 

• to accommodate her caring duties for her primary school aged child, her work be limited to involve three days’ overnight travel per fortnight.  

(the “Requested Orders”). 

Employer’s response 

The employer raised several reasonable business grounds for its refusal, including that: 

• in light of her position, face-to-face attendance was required;  

• the new policy sought to address inequity created by exclusive remote working; and 

• it was unfair for the employee to be allowed to travel to the office on work time and have the expenses covered when, for the same reasons, the employer had denied the requests of other employees who had relocated. 

Outcome 

Having regard to the specific circumstances of the employee, the FWC made the Requested Orders. However, the Requested Orders were made as a practical transitional arrangement and would conclude at the end of the second school term to minimise disruption to the employee’s child.  

At the conclusion of the transitional arrangement, the FWC said that the employee would be required to comply with her employer’s lawful and reasonable directions in respect of its requirements for the employee to work from the office as contemplated by the hybrid work policy.   

The FWC confirmed it was “entirely reasonable” for the employer to require the employee to attend the office in light of her role and, further, preventing the employer from having an employee meet face-to-face requirements for a very lengthy period did not “strike the right balance”.  

However, the employer was criticised for insufficient consultation with the employee that did not explore bespoke transitional arrangements given the unique challenges faced by the employee.  The FWC said, “In particular, bringing the arrangements to an end without discussion about the consequences and how they may be mitigated was unreasonable in the circumstances.”  

Key considerations 

Should employers find themselves considering a request for flexible working arrangements, it is necessary to consider each request on a case-by-case basis. The more unique an employee’s circumstances the more likely an employer will be expected to “think outside the box” and pressure test alternative arrangements including temporary or transitional arrangements. 

In addition, the importance of effective consultation and communication should not be forgotten. This decision confirms that when trying to effect change and get the balance right the FWC will, at the same time, expect an employer to have made the effort to engage in consultation and communication with employees and the level of engagement that is appropriate could differ between employees depending on their circumstances.