Employees in Australia have a right to request flexible working arrangements under section 65B of the Fair Work Act 2009 (Cth) (the Fair Work Act). The right to request flexible working arrangements is not new. However, there has been no decisions in this area until recently. The Fair Work Commission (the Commission), in one of the first decisions on section 65 of the Fair Work Act, considered a request to work full time from home indefinitely in Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWC 1845 (Ridings v Fedex). In doing so, the Commission provided valuable insight into how it will balance a request for flexible working arrangements with the business needs of an organisation.

The facts

The Applicant, Mr Ridings, was a clearance classifier at Fedex Express Australia Pty Ltd (FedEx). Mr Ridings was already approved to work one day a week from the office instead of his usual four days a week from the office.

Mr Ridings subsequently requested a further flexible working arrangement under section 65 of the Fair Work Act to enable him to work entirely from home on an indefinite basis. The request was made on the basis that Mr Ridings was required to care for his children and support his wife.

FedEx considered and rejected Mr Riding’s request on the basis of operational and business grounds, including the adverse impact that the arrangement would have on the employee’s efficiency, productivity and ability to collaborate with his colleagues.

The decision

The Commission ultimately ordered Mr Ridings to attend the office one day per week for three months subject to FedEx being entitled to lawfully and reasonably direct Mr Ridings to attend the office on a different day in the following circumstances:

1. Mr Ridings failed to attend the office for two consecutive weeks;
2. FedEx is genuinely concerned about Mr Riding’s performance; and
3. There are genuine operational requirements of the business requiring Mr Riding’s attendance.

As part of the decision above, the Commission considered the following:

1. Mr Ridings failed to provide compelling and recent information in relation to his carer responsibilities, particularly the change in circumstances from his first and second request and how his ability to attend the office has been hindered. This is important because it emphasises that an employee has an obligation to support their request with information, reasons or documentation;
2. Mr Ridings was not cooperative with FedEx prior to initiating the Commission application and did not trial an alternative arrangement proposed by FedEx;
3. Mr Ridings’ residential address is in close proximity to FedEx’s office;
4. Mr Ridings is already detached from his colleagues, which adversely impacts Mr Ridings and his colleagues; and
5. Mr Ridings’ efficiency and productivity.

Key takeaways

Accordingly, Ridings v FedEx provides insight into the factors that the Commission will consider as part of determining a flexible working arrangement request, including how it will balance the needs of a business with the individual needs of an employee. There are important lessons from the Commission’s decision including:

1. Employers and employees must be aware of the technical requirements of the Fair Work Act and must comply with those requirements before raising a dispute in the Commission. For example, a request made by an employee must be in a specific form. Equally, employers must ensure that any decision in relation to the request also complies with the requirements of the Fair Work Act;
2. Genuine attempts must be made by both sides to resolve the dispute;
3. An employer must genuinely engage with a worker in making a decision, including balancing the specific needs of the worker with the operational requirements of the business;
4. An employer cannot rely on generic statements about the productivity of working in the office in order to refuse a request, and must be specific as to how productivity or efficiency is impacted;
5. An incorrect refusal decision can give rise to a time consuming claim in the Commission which results in management downtime and potentially bad publicity.

Practical tips

Flexible working arrangement requests are likely to increase. It is important that businesses are prepared by updating employment agreements or preparing a stand-alone flexible working arrangement policy that sets out the process required to make a flexible working arrangement request and the circumstances that the business will consider in determining a request.

This area is also rapidly changing and it is important that businesses seek legal advice to ensure that they are across the technical requirements of the Fair Work Act and any further changes.