The Full Bench of the Fair Work Commission has handed down the first decision on the new flexible working arrangement (FWA) reforms under the Fair Work Act.
Following the reforms, it has been possible from 6 June 2023 for employees to arbitrate a refusal of a FWA request in the Commission provided that certain jurisdictional requirements are met.
In this case, the employee alleged that she suffered from a disability and made a purported FWA request to her employer to work a different pattern of hours. After this request was denied, the employee commenced arbitration proceedings in the Commission.
The Full Bench unanimously dismissed the employee’s application on jurisdictional grounds. The Full Bench found that the employee had not made a valid “request” for the purposes of the Fair Work Act, and also had not established the requisite requirement on the balance of probabilities that she suffered from a disability.
In its decision, the Full Bench has provided some useful guidance on the jurisdictional requirements for an employee to make a valid FWA request that employers should be aware of. This includes that:
1. the circumstances listed in s 65(1A) of the Fair Work Act, being the circumstances that an employee can rely on to make a FWA request (such as caring responsibilities, pregnancy, disability, etc), must exist as a matter of fact at the time the request is made. These circumstances cannot be anticipatory or based on possible future events. Employers may require employees to provide evidence of the circumstances relied on in support of their FWA request to be satisfied this requirement has been met.
2. there must be a causal link between the circumstances listed in s 65(1A) and the FWA request. That is, the FWA request must be made “because of” the relevant circumstances, and not for any extraneous reason.
3. the employee’s FWA request must be made wholly in writing (i.e. not partly written and oral) and must set out the details for the change being sought and the reasons for that change. In this case, the employee sought to rely on a Microsoft Teams message to satisfy this requirement that mentioned having a “chat about my hours”. The Full Bench found that this message did not constitute a “request”, as it did not set out the change to the employee’s work hours or the reasons for the requested change.
4. any written FWA request must be made after 6 June 2023 for the Commission to have jurisdiction to arbitrate.
A copy of the Full Bench’s decision is available here: https://lnkd.in/gFMX5btz
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