The Fair Work Commission (FWC) now has expanded powers for how they deal with flexible work disputes. The new regime places additional pressure on employers to genuinely negotiate flexible work arrangements unless there is clear evidence to support their reasons for refusal. Unlike the previous regime, the FWC now has the power to arbitrate disputes through a hearing. This blog post provides practical guidance on what you can expect in flexible work disputes at the FWC and how to manage flexible work requests to avoid disputes.

s 65 of the Fair Work Act 2009 (Cth) allows employees to request to change their working arrangements if they meet certain criteria. From 6 June 2023, this legislative framework was amended to create additional obligations for employers. Employers must now discuss any request with the employee, genuinely try and reach agreement to accommodate the employee’s circumstances and have regard to the consequences of the refusal for the employee. The employer must identify any reasonable business grounds for making a refusal and inform the employee of their right to dispute the refusal.

Reasonable business grounds include, but are not limited to, where the change would be too costly, impractical, or where other employee’s arrangements cannot be changed. Whilst these reasons sound quite broad and vague, employers should ensure that they have well-evidenced reasons for refusing requests.

The FWC now has the power to deal with disputes arising from this provision in any manner that it considers appropriate including mediation, conciliation, making a recommendation, or expressing an opinion. The FWC may arbitrate if other means have been attempted first.

If you refuse a flexible work arrangement and the employee lodges a dispute in the FWC, you can expect the FWC to ask detailed and specific questions concerning your reasoning. Employers should be prepared to provide detailed explanations of the assessment they have done to determine whether the approval of the agreement would be too costly or burdensome. For example, if one of the reasons for refusing the request is the impact on other employees, the FWC would expect the employer to explain why they are unable to hire new staff to backfill or rearrange work allocation. There is additional pressure added by the prospect of proceeding to arbitration as this would involve the employer providing witness and documentary evidence to support the reasons for refusal. The Commissioner would then assess this evidence against the employee’s request.

If an employee lodges a dispute and agreement cannot be reached during a conference or conciliation, then the FWC may choose to arbitrate the matter which means that the parties would proceed to a hearing. To succeed in arguing that any refusal was based on reasonable business grounds it would be expected that the employer provides specific evidence that supports those reasons. This could include workflow assessments such as call logs or client meeting logs to support the claims regarding workload, alongside witness statements from managers to demonstrate why that workload cannot be reallocated. This is no simple feat as this level of detail may not always be recorded and without evidence, it is unlikely that the employer will succeed.

The burden rests with the employer to evidence and justify their refusal which can be challenging. Employers should bear this in mind when negotiating or refusing requests and try to reach an agreement where possible to avoid any unnecessary disputes in the FWC.