The Fair Work Commission Finds Employee Entitled to Work from Home to Facilitate Childcare: Implications in the Transport Sector

In a recent decision handed down by the Fair Work Commission, the Commission considered a decision to refuse a Flexible Working Arrangement (FWA) request and in turn provided guidance on the considerations employers should be taking into account when considering these requests under the Fair Work Act 2009 (Cth)[1]. Ms Karlene Chandler, employed by Westpac since 2002, made a request in January of this year, to change her working arrangements due to her long commute and childcare responsibilities. Westpac rejected her request, instead insisting she attend the corporate office in Kogarah or Paramatta for at least 2 days per week, contending that “working from home is no substitution for childcare”.[2]

Fair Work Act 2009 (Cth)

Relying on section 65 of the Fair Work Act 2009 (Cth), Ms Chandler made a written request for a change in her working arrangement to allow her to work from home or alternatively at a branch closer to home. She was eligible to make the request, having over 12 months of continuous service with Westpac and having primary care of her young children.

Under section 65A, where a written request for flexible working arrangements is made, employers are required to engage in discussions with the employee about the request and respond in writing within 21 days. Employers are only entitled to refuse the request on “reasonable business grounds” and must have had regard to the consequences of refusal for the employee before making a decision. Reasonable business grounds under the Fair Work Act 2009 (Cth) include:

1.    The flexible working arrangement would be too costly for the employer;

2.  There is no capacity, or it would be impractical to change the arrangements of other employees or recruit new employees to accommodate the request;

3. The proposed arrangement would likely result in a significant loss in efficiency and productivity; or,

4. The proposed arrangement would likely have a significant negative impact on customer service.

Fair Work Commission Decision

Following the refusal of Ms Chandler’s request, she commenced proceedings in the Fair Work Commission, contending that the request ought to have been approved.

Deputy President Roberts found that Westpac:

·         had failed to notify Ms Chandler in writing within 21 days of a decision;

·         issued the refusal before engaging in a discussion with Ms Chandler;

·         had not demonstrated any “reasonable business grounds” for the refusal; and

·         had not considered the prejudicial consequences of refusal for Ms Chandler.

Given Ms Chandler had been performing her role remotely on and off for a number of years, the majority of her team members were located interstate and her commute to the office and childcare arrangements meant that she would face difficulties attending the office, Deputy President Roberts considered that “[o]n balance having considered the evidence in totality, I am of the view that fairness considerations weigh in favour of the making of an order”.[3] The Commissioner dismissed Westpac’s arguments that activities such as training sessions and team ‘huddles’ required in person attendance and instead found they could conducted online when required.

The Commission also clarified that an enterprise agreement or employment policy cannot contain provisions that have detrimental effects on an employee’s entitlements under the Fair Work Act 2009. While a flexible working under s 65 is not an “absolute right”, the statutory structure means that employers must comply with the process outlined in section 65A, regardless of the wording of any employment contract or Enterprise Agreement.

Implications for Transport Operators

Under section 65 of the Fair Work Act 2009 (Cth), the following employees are entitled to request flexible working arrangements after they have completed 12 months of service as a part time or full-time employee with the employer: 

·         employees who are carers or parents;

·         employees who have a disability;

·         employees over 55 years old; or

·         employees who are experiencing domestic or family violence.

Once a request is made, employers must engage in discussions with the employee before issuing a written response within 21 days. Employers are only entitled to refuse the request on reasonable business grounds such as a demonstratable cost, a lack of capacity of other employees to accommodate the request, impracticality or an impact on efficiency or customer service. 

While many roles within the transport sector, such as pilots, engineers and maintenance personnel, must by their nature be performed onsite, this decision serves as an important reminder for the sector. For roles that can be performed remotely, employers should be mindful to carefully assess each flexible work request on its merits and to ensure the process required by the Fair Work Act 2009 (Cth) is adhered to before responding to any request.

Contacts 

Adam Martin 
+61 3 9119 2585
adam.martin@nortonwhite.com

Alison McKenzie 
+61 3 9119 2535
alison.mckenzie@nortonwhite.com

Keira Nelson
+ 61 2 9230 9440
keira.nelson@nortonwhite.com