Welcome to Fair Work Friday! This week we’re looking at a Fair Work Commission decision that could significantly broaden how employers think about flexible work requests.
When most employers hear “flexible work request”, they think about changes to hours, working from home arrangements, or adjusted start and finish times.
However, a recent decision involving logistics giant DHL considered whether an employee could use the flexible work provisions of the Fair Work Act to seek an exemption from a workplace mobile phone ban that had been implemented for safety reasons.
The employee ultimately lost the case, but the Commission’s reasoning may have wider implications for employers managing workplace policies.
The Case: A Flexible Work Request or a Challenge to a Workplace Policy?
Mr Thanh Long Duong worked in a DHL warehouse that prohibited employees from carrying personal electronic devices while performing operational duties.
The policy was implemented as a safety measure to reduce distractions and minimise the risk of workplace incidents.
Mr Duong sought an exemption from the ban due to his family circumstances. His children suffer from serious medical conditions, including severe asthma and anaphylaxis, and he wanted to be contactable should an emergency arise.
Rather than simply requesting an exception to the policy, Mr Duong relied on the flexible work provisions under section 65 of the Fair Work Act and argued that being permitted to carry his phone was a change to his “working arrangements”.
DHL argued the request did not relate to a working arrangement at all and that the flexible work provisions were intended to address matters such as working hours, work patterns and work location.
The Background: Why the Decision Matters
Before determining whether DHL was entitled to refuse the request, the Fair Work Commission first had to decide whether the request was capable of being considered under the flexible work provisions.
This was the critical issue.
Deputy President Bell found that the mobile phone prohibition was sufficiently connected to the performance of work to potentially constitute a “working arrangement”.
While the Commission ultimately accepted that DHL had reasonable business grounds to refuse the “flexible work request” due to workplace safety concerns, the decision confirmed that flexible work requests may extend beyond traditional arrangements such as hours and locations of work.
In practical terms, the Commission recognised that workplace policies may, in some circumstances, fall within the scope of the flexible work framework.
For employers, that is arguably the most significant aspect of the decision. Even though in this case the request was denied, the potential that employees may challenge workplace policies through a flexible work request is the issue. It means that flexible work requests are broader than employers previously understood.
How to Do It Better
1. Don’t Assume Flexible Work Requests Only Relate to Hours and Working from Home
Employers should carefully assess the substance of a request rather than dismissing it because it does not fit a traditional flexible work scenario. The Commission’s approach suggests that other workplace arrangements may also require consideration under the flexible work provisions.
2. Ensure Your Refusal Reasons Are Well Documented
DHL was successful because it could demonstrate legitimate workplace safety concerns and reasonable business grounds for refusing the request. Employers should ensure they can clearly articulate and evidence the operational, safety or financial reasons supporting any refusal.
3. Focus on the Process as Much as the Outcome
Even where an employer ultimately refuses a request, the consultation process matters. Taking the time to genuinely consider the employee’s circumstances and explore alternatives will place an employer in a much stronger position if the decision is later challenged.
The Bloom HR Takeaway
This decision highlights how difficult it is becoming for employers to navigate an ever-expanding range of workplace obligations.
Most employers would reasonably expect flexible work requests to deal with issues such as working hours, work patterns or location. Few would anticipate that a workplace safety policy could potentially become the subject of a flexible work dispute.
While the Commission ultimately upheld DHL’s decision, the broader interpretation of what may constitute a “working arrangement” creates further uncertainty for employers already trying to balance operational requirements, employee needs and workplace safety obligations.
The challenge is not that employers are unwilling to provide flexibility. The challenge is knowing where the boundaries are.
When concepts designed for one purpose begin extending into entirely different areas of workplace management, it becomes increasingly difficult for employers to understand their obligations with confidence. If HR professionals, lawyers and Commissioners are debating where those boundaries sit, it is easy to see why many employers are struggling to keep up.
Has your organisation reviewed its flexible work request process to ensure it is equipped to respond to increasingly complex requests? At Bloom HR, we help employers assess flexible work requests, manage risk, and balance compliance obligations with practical operational needs.
Schedule a 30 minute free consultation by calling us on (02) 8114 4449 or booking a meeting with a senior consultant here.
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