In Jordan Quirke v BSR Australia Ltd  FWCFB 209 (10 November 2023), the Full Bench of the Fair Work Commission (FWC) has considered the Secure Jobs flexible working request dispute provisions for the first time. In delivering its decision, the Full Bench took the opportunity to set out the key requirements for a proper request which the FWC can consider. It also made some pertinent comments concerning what constitutes a "disability".
These types of applications are likely to become more prevalent. It is important for employers to understand their obligations in responding to a request as well as when the FWC will consider that a proper request for a flexible working arrangement has been made. In part 2 of our series on flexible working disputes, we consider another recent case from the FWC discussing the types of reasonable business grounds which may support a requirement to return to the office.
In summary, the dispute reached the FWC because an employee, Jordan Quirke, lodged a dispute with the FWC under section 65B of the Fair Work Act 2009 (Cth) (FW Act) as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs Act). The flexible working request was for changes to working hours as an aid for relief from insomnia and anxiety. This request was rejected by the employer and Ms Quirke filed her dispute in the FWC. Ms Quirke relied upon a letter from her medical practitioner as well as a "Mental Health Care Plan". She did not have a report showing that she suffered from a specific diagnosis of anxiety.
The requirements for a valid flexible working request
Before the FWC has jurisdiction to deal with a dispute under section 65B of the FW Act, the request for a flexible working arrangement must have been validly made. The Full Bench identified six requirements that must be satisfied for a valid flexible working request to attract the jurisdiction of the FWC:
- the FWC must be satisfied that, at the time of making the request, the employee qualified under at least one of the prescribed circumstances that must form the basis for a flexible working request. These prescribed circumstances include for example, being a carer, being 55 years of age or older and/or having a disability
- the employee's request for changed working conditions must be "because of" the prescribed circumstance
- the employee must have completed the minimum required period of service which is 12 months prior to making the request for a permanent employee
- the request must be in writing
- the request must set out the details of the change sought and the reason for the change
- the request must be made on or after 6 June 2023.
In the circumstances of the dispute as notified by Ms Quirke to the FWC, the Full Bench held that the requirements at (c), (e) and (f) had not been met. As such, the Full Bench considered that the employee had not made a valid request under section 65(1) of the FW Act and the request could not be the subject of arbitration by the FWC.
Could the employee show that the request was "because of" a disability?
Given this was the first matter of its kind to be considered by the FWC, the Full Bench considered that that it would be useful for it to set out its reasons for observing the difficulties with Ms Quirke's evidence that she had a disability.
The Full Bench indicated that it had difficulty with being satisfied on the evidence that Ms Quirke had a disability for the purposes of section 65(1) of the FW Act. The Full Bench made reference to differing definitions of what a "disability" means both at section 12 of the FW Act and Section 4 of the Disability Discrimination Act 1992 (Cth). It held that neither of these applied and that the meaning should also be consistent with the meaning of "disability" as used at section 351(1) of the FW Act. Therefore, the Full Bench held that the ordinary meaning applied and not any statutory definition.
In this context, the Full Bench noted that there was no evidence before it of a medical diagnosis and held that evidence referencing anxiety was not sufficient to find that there has been a diagnosis of a "disability". The Full Bench drew a distinction between a medically diagnosed disability and a form of anxiety which is a normal and emotional reaction to stress.
A refresher on these new provisions
With the introduction of the Secure Jobs Act, the FWC has become an avenue that dissatisfied employees can access more regularly when they do not accept the decision of the employer, including now, in the context of requests for flexible working arrangements.
This decision highlights some technical matters that employers need to consider when determining whether a valid request has been made. It also highlights that employers need to ensure that their systems and processes comply with the new changes to flexible working requests under the Secure Jobs Act.
The changes now in operation under the Secure Jobs Act and this decision are a reminder for employers to refresh their internal processes and systems in respect of FW Act compliance. It is also a prompt to ensure that employers adapt to the new environment which is designed for the FWC to have a more active role to play as "umpire" in many more circumstances than has previously been the case.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.