No flexibility in legislative compliance – FWC hands down its first flexible working arrangements dispute decision
On 10 November 2023, the Full Bench of the Fair Work Commission (FWC) handed down its first decision under sections 65B and 65C of the Fair Work Act 2009 (Cth) (Act) which deals with disputes about requests for flexible working arrangements.
The matter of Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 is the first of its type to be considered by the FWC and contains useful lessons for both employees and employers.
Facts
Ms Quirke commenced employment with BSR Australia Ltd (BSR) on 23 May 2022 in the role of Customer Experience Coordinator. Ms Quirke predominantly worked from home with her hours and locations of work consisting of the following:
Mon: 9am – 5pm (Office)
Tues: 4pm – 10pm (Home)
Wed: 4pm – 10pm (Home)
Thurs: Day Off or as required during peak selling periods (Home)
Fri: 4pm – 10pm (Home)
Sat: 9am – 5pm (Home)
Sun: Day Off or as required during peak selling periods (Home).
Following verbal discussions concerning her working hours, Ms Quirke sent an email to her manager on 5 April 2023 containing the following mock roster that she was requesting in line with her doctor’s recommendations:
|
Current |
Hours |
Desirable |
Hours |
|
Monday WFO Tuesday WFH Wednesday WFH Thursday OFF Friday WFH Saturday WFH Sunday OFF |
9-5 3-9 3-9 OFF 3-9 9-5 OFF |
Monday WFO Tuesday WFH Wednesday WFH Thursday Friday WFH Saturday WFH Sunday |
11-5 1-9 1-9 OFF 3-9 10-4 OFF |
At the time, Ms Quirke did not communicate that she had a disability however later presented evidence at the hearing that the reasoning for these requests was based on her GPs recommendations to assist her in dealing with insomnia and anxiety.
Ms Quirke received no formal written response to her email although she did exchange messages on Microsoft Teams (Teams) about it with her manager. Following this, Ms Quirke then emailed BSR’s HR Manager on 8 May 2023 containing her ‘ideal roster’, which was the following:
|
Desirable |
Hours |
|
Monday WFO Tuesday WFH Wednesday WFH Thursday Friday WFH Saturday WFH Sunday |
9-5 2-9 2-9 OFF 3-9 10-4 OFF |
On 14 August 2023, Ms Quirke engaged in the following conversation via Teams with her manager:
Quirke: need to have a chat about my hours (again lol) if there[’]s a good time today, wasnt sure whether to speak to you or alex
Manager: I was gonna book in some WIPs today – so we can chat
only problem
I feel I have passed stuff on before and it hits a wall, but your call
Quirke: yeah thats why I wasnt sure hahaha
I might see if alex has some free time today, but ill let you know in the wip
what the hippy hap is so youre at least aware [emoji]
On 30 August 2023, in a Teams meeting about Ms Quirke’s hours, BSR’s HR Manager verbally informed Ms Quirke that her request for a change in working hours was denied.
Consequently, on 2 September 2023 Ms Quirke filed an application with the FWC seeking an order requiring BSR to grant her request for altered hours.
Ms Quirke’s application proceeded on the basis that her request for flexible working arrangements under section 65(1) was her 5 April 2023 email. At the hearing before the Full Bench, she altered her position and contended that her request was constituted by her Teams messages to her Manager on 14 August 2023.
Issue(s)
The issue before the Full Bench was whether Ms Quirke made a valid request for flexible working arrangements and dependent on this whether they had jurisdiction to resolve the dispute about the supposed request through arbitration.
Decision
Ms Quirke did not make any valid requests under section 65(1) and consequently, there could not be a dispute about such request that is capable of being arbitrated by the FWC.
Ms Quirke’s application was dismissed.
Reasoning
The Full Bench outlined that there are five requirements under section 65(1) that must be satisfied in order for a request to have been validly made. These are:
One or more of the circumstances must apply to the employee (e.g. parental responsibilities, being 55 years of age or older, disability);
The employee’s request for changed working arrangements must be ‘because of’ and relate to these circumstances;
The employee has completed a minimum period of 12 months of continuous service before making the request;
The request must be in writing; and
The request must set out the details of the change sought and the reasons for the change.
There is also technically a sixth requirement that the request has to have been made on or after 6 June 2023, given the changes courtesy of the ‘Secure Jobs Better Pay’ legislation.
In order for the FWC to have jurisdiction to arbitrate a dispute about a request for flexible working arrangements, the dispute must be in relation to a request that meets these requirements.
The Full Bench found it plain that Ms Quirke’s email request of 5 April 2023 which she originally relied on for her application does not meet requirement 3 in that she had not completed 12 months of continuous service when making the request. It also did not meet requirement 5 because nowhere did Ms Quirke identify in writing the reasons for the change sought, nor does it meet requirement 6.
Ms Quirke’s altered position at the hearing that her request was constituted by her Teams message to her Manager on 14 August 2023 was also not considered a valid request by the Full Bench under section 65(1). It did not meet requirements 2 or 5 because she did not communicate any request for a change in working arrangements but only a request for a discussion.
The Full Bench also observed that they would have difficulty in being satisfied on the evidence presented that Ms Quirke had a disability to satisfy requirement 1. Whilst this observation was not necessary for the purpose of determining this matter, the Full Bench found it useful to set out its reasoning given that this was the first matter of its type being considered in the FWC.
The Full Bench considered that the term ‘disability’ in this context should be given its ordinary meaning rather than the definition under the Disability Discrimination Act 1992 (Cth) which relates to a different statutory scheme. In doing so, the Full Bench followed the approach in Hodkinson v The Commonwealth (2011) 207 IR 129 where it was interpreted that ‘disability’ should be understood to refer to a particular physical or mental weakness or incapacity, and includes a condition which limits a person’s movements, activities or senses.
In this case, Ms Quirke submitted that she ‘believes’ she suffers from a ‘psychosocial disability’ due to an anxiety-related disorder. On the evidence provided including a Mental Health Plan and consultations with a GP, the Full Bench was not satisfied that a clear diagnosis was provided. This medical evidence identified work-related reasons as the cause of Ms Quirke’s insomnia and contributing to her anxiety but did not give any diagnosis of an anxiety-related mental disorder or identify any limits in her ‘movements, activities or senses’.
Key Takeaways
The key lesson for the employee in this case is to ensure that a valid request for flexible working arrangements is made under the Act. If an improper request is made, then the FWC will not have jurisdiction to make a determination or order relating to the dispute.
From the employer’s perspective, whilst BSR’s handling of Ms Quirke’s requests was not a focal point of the matter, employers must ensure that they are aware whether an employee is making a formal request for flexible working arrangements under the Act or not. If so, employers need to deal with and respond to the request in accordance with the Act.
If you need advice on or assistance with flexible working arrangements, please contact:
Jordan Bauer
Senior Associate
E jbauer@ha.legal
T 03 9611 0130
M 0447 710 137
