s.65B - Application for a dispute about requests for flexible work arrangements

Request for flexible working arrangements - expression of opinion

• [1] At a conference earlier this morning, in the course of dealing with a dispute under s 65B by means other than arbitration (see s 65B(4)(a)), I expressed an opinion, which was that, based on the material before me, the application appeared to have no merit. The working arrangements sought by the applicant were that he be allowed to work from home full-time, as he had done for several years following the COVID-19 pandemic. The circumstances he relied on were that he was a carer (he sometimes needs to drive his child to daycare), and because he had a disability, namely PTSD from a car accident in 2007 which causes him to have flashbacks when travelling in a car, particularly if he is not the driver, and when he is on public transport. My opinion was that the applicant had not identified any link between the circumstance of being a carer and any need to work from home full-time; and that the suggested link between his disability and the proposed working arrangements was not credible, because prior to the pandemic he drove to work (although the office was then closer), and he could also take the train: the notion that train travel could be associated with a car accident is difficult to accept.

• [2] A link between a circumstance in s 65(1A) and the proposed working arrangements is a jurisdictional requirement of an application under s 65B. The Act is very clear that the desired change in working arrangements must be 'because of' the relevant circumstance in s 65(1A) (see s 65(1)(b)), and the request for change must relate to the relevant circumstance (see Quirke v BSR Australia Ltd [2023] FWCFB 209 at [23]). An applicant cannot simply invoke a personal attribute and expect to be able to work in a manner of his choosing. My opinion was that there is no link here, but if there is one, it is tenuous and the employer has good reasons as to why its workers should attend the workplace at least some of the time. In this regard, the employer was prepared to discuss a compromise that would allow the applicant to work from home on some days. To this the applicant said that the office setup was not suitable or appropriate. But this has nothing to do with the two circumstances that the applicant relies on. It suggests to me that the applicant simply does not want to work in the office.

• [3] The applicant will advise the Commission by 4.00pm on Monday 14 April 2025 whether he presses the application. If he does, it will be listed for hearing in the Commission at 11 Exhibition Street Melbourne 3000. If I do not hear from applicant, the file will be closed on the basis that my opinion has resolved the matter.

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