Workplace Flexibility and Work-Life Balance: Employment Law Developments

WRITTEN BY John Wilson & Kieran Pender

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The nature of work is changing. That is true across the entire economy, even in professions like the law that pride themselves on traditionalism. In light of the career-focus theme of this edition of Ethos, we thought it appropriate to explore two significant shifts in the way we work: workplace flexibility and changes to how we approach work-life balance. These inter-related issues have been supercharged by legislative developments in recent months, making it timely to take stock and consider how our workplace obligations – whether as employees or as managers – are evolving.


The origins of modern employment law lie in the master-servant relationships of pre-industrial feudal England. Concepts of workplace flexibility and work-life balance would have seemed absurd in that context; workers were considered part of a master’s household, and the master could exercise round-the-clock control (and had concomitant 24/7 responsibility, including when things went wrong). But the endurance of employment law over the centuries has been in its flexibility and its ability to evolve to adapt to changing workplace conditions.

A defined place of work has never been a prerequisite of employment – Mark Irving KC quips ‘after all, sailors were employees before there was GPS.’[1] And where once a master could exercise total control over their servant, in time the relationship became carefully confined – with employees punching in and punching out. For a period, those hours of work – at a factory, say – were the only time during which an employer could regulate the employment. ‘Provided it did not diminish their capacity to perform the work, the out of hours opinions, hobbies and odd jobs of these employees were of little interest,’ scholar Ron McCallum once wrote.[2]

In recent years, a number of trends and developments have converged to lead to the modern employment paradigm, at least in professional services and other work which can be done remotely. The workplace has never been more ever-present, with the internet, emails and mobile phones meaning that work-related ‘stuff’ is lurking first-thing in the morning and late at night. Conversely, these technologies have also enabled work from home, from the beach, from overseas – employees are no longer chained to their office desks.

The Covid-19 pandemic and mandatory work from home requirements normalised flexible working, and although office attendance rates have crept up in subsequent years, many workers are still working from home at least a day or two per week. In the law, and other sectors, much work can be done anytime, anywhere – with the positives and negatives that come from the ever-present, flexible nature of the modern workplace.

Flexible Working Requests

In this time of flux, the law has responded through legislative evolution. For some time now, the Fair Work Act 2009 (Cth) has provided for workers to make flexible working arrangement requests, which employers are then required to consider. However, this regime was strengthened last year through the Albanese Government’s Secure Jobs, Better Pay law.

Under the new regime, in Part 2-2 of the Fair Work Act, employees who fall into various categories can make a request to change working arrangements, including in relation to hours of work, patterns of work or location of work. Relevant categories include employees who are pregnant, are a parent or have caring responsibilities for school age children, are a carer (within the meaning of the Carer Recognition Act 2010 (Cth)), have a disability, are over 55 or are experiencing family or domestic violence (or supporting an immediately family member who is). To be eligible, the employee must have completed 12 months service, or be a regular and systemic casual employee for the same period.

Once a request is made (which should be in writing and set out the change sought and the basis for the request), an employer is required to respond within 21 days. The response must either: (i) grant the request; (ii) grant a revised set of flexible work arrangements; or (iii) refuse the request. If an employer is to refuse the request, they must first discuss the matter with the employee, genuinely attempt to reach an agreement and consider the consequences of refusal for the employee. An employer can only refuse on ‘reasonable business grounds’ – and must set out those grounds in writing.

Section 65A(5) of the Fair Work Act sets out indicative examples of reasonable business grounds for refusal. These include:

(a) that the new working arrangements requested would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;

(d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.

Significantly, following the recent changes, the Fair Work Commission now has jurisdiction to arbitrate disputes where an employer refuses a flexible working request. The Commission is required to first seek to meditate the dispute, before formally determining the request if mediation is unsuccessful.

Recent Case Law

While the Commission’s jurisdiction to consider flexible working requests is in its infancy, two recent cases shed light on how such matters might be approached.

In Ambulance Victoria v Fyfe,[3] the Full Bench of the Fair Work Commission considered a refusal on reasonable business grounds. The decision arose prior to the recent changes, but came before the Commission through a dispute resolution clause in the workplace’s enterprise agreement. Natasha Fyfe was a paramedic with three children under five. Commissioner Johns had observed at first instance: ‘Like many working carers/parents (disproportionately mothers) Ms Fyfe is trying to balance her work and family life.’[4]

Ms Fyfe had made a flexible working request to shift her work hours, from 6pm-8am to 9pm-6am so she could care for her children while her partner was at work. Ambulance Victoria refused the request, on the basis that shortened night shifts ‘did not exist’ at the workplace, shift times outside the ordinary roster configuration could not be provided and there was insufficient resourcing to accommodate the request.

Ultimately, at first instance and on appeal, that refusal was considered to be unreasonable. The full bench considered that Ambulance Victoria, in its response to Ms Fyfe’s request, had failed to engage with its own flexible working arrangement policies and procedures, which contemplated altered shift timings and a balance in employer-employee interests. Ambulance Victoria had also not exhibited any meaningful engagement with Ms Fyfe’s personal circumstances, nor provided any analysis of the financial or workload impacts from the change.

In Gregory v Maxxia Pty Ltd,[5] on the other hand, one of the few flexible work request cases decided in the Commission’s new jurisdiction, Commissioner Platt held that an employer did have valid grounds for a refusal. In that case, the employee requested to work from home on a full time basis, on the grounds that he was caring for his child on an ad hoc basis but had sought custody whereby he would be caring full time every alternate week. During the pandemic, the employee – Charles Gregory – had worked from home for large periods. However, the employer, a salary packaging provider, had implemented a hybrid work policy requiring employees to be in the office 40% of the time.

The employer responded to Mr Gregory’s request by proposing he could work in the office 20% of the time for a certain period, and then 40% from a later date, and that he could allocate his office days to the week he did not have custody of his son. Mr Gregory lodged a dispute in the Commission. During the hearing, the employer indicated that if Mr Gregory’s access to his son increased, he would be permitted to vary his start, finish and mealtimes to provide additional flexibility.

The Commissioner accepted that there was a sound basis for working from home during weeks where Mr Gregory had custody of his son. However, the nexus between the request and the circumstances had not yet been triggered, given custody arrangements were still up in the air.

Additionally, the Commissioner determined that in the context of Mr Gregory’s role (a support coach to the quality assurance team), face-to-face contact was desirable, allowing for observation, interaction and coaching to improve Mr Gregory’s productivity. The employee’s knowledge and experience could also be more easily accessed by junior team members if he was in the office. For these reasons, Commissioner Platt held that the refusal was based on reasonable business grounds.

The contrasting outcomes in these cases are instructive as to the need for employers to properly consider requests on their merits and provide considered reasons for a refusal. That Mr Gregory’s employer was otherwise seemingly quite eager to support his flexible working and parenting obligations, albeit in a way that did not involve 100% work from home, no doubt assisted their cause before the Commission.

Ren v BOM

A recent unfair dismissal decision provides a cautionary note for employees pushing their work from home arrangements to the limit. Diandong Ren was a research scientist at the Bureau of Meteorology. In mid-2022, he took a period of leave. However, after the date on which Mr Ren was due to return to work, his supervisor grew concerned that he was not in fact back at work. The supervisor was suspicious that Mr Ren ‘was still overseas but representing himself to be working in Australia and was unresponsive during work hours.’[6] Mr Ren was asked to provide proof that he had returned to Australia, and had not sought to access his work IT account from overseas (which was contrary to policy). In another incident, Mr Ren went on another overseas trip (for personal reasons) and again failed to return to the office – being ‘largely uncontactable’ and having left his work laptop in the office, where he was not sighted ‘for 10 days’.[7]

Mr Ren was subsequently dismissed, and brought proceedings in the Fair Work Commission. Commissioner Connolly found that the BOM had a valid reason to dismiss Mr Ren. ‘While I accept Mr Ren had no malice or ill intent in accessing his employer’s IT systems from overseas’, the Commissioner held, it was contrary to government policies and Mr Ren did not have permission to do so.[8] Mr Ren also submitted, without evidence, that his passport had been stolen and the subsequent overseas trip was not taken by him – the Commissioner did not accept this, and found the further trip constituted an additional ground for dismissal.

Ren is a cautionary tale, then, of the need for employees to be frank about remote work arrangements and comply with relevant IT policies around remote access. It might be tempting for employees to think, in the modern era, that the ability to work from home is interchangeable with the ability to work remotely from Bali, or the United States. It is not.

Right to Disconnect

The latest change to the Fair Work Act, legislated in February 2024, is the so-called ‘right to disconnect’. The amendment, which generated significant controversy and column inches, empowers employees to refuse to read or respond to employer or work-related third party contact outside of work hours, unless that refusal is unreasonable. Notably, employees of small business employers are excluded from the right to disconnect.

The new s 333M of the Fair Work Act, once it comes into effect mid-year, will provide that factors relevant to assessing the reasonableness of a refusal include:

(a) the reason for the contact or attempted contact;

(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

(c) the extent to which the employee is compensated:

(i) to remain available to perform work during the period in which the contact or attempted contact is made; or

(ii) for working additional hours outside of the employee’s ordinary hours of work;

(d) the nature of the employee’s role and the employee’s level of responsibility;

(e) the employee’s personal circumstances (including family or caring responsibilities).

The right to disconnect is a workplace right, which means that an employer is prohibited from taking adverse action against an employee for exercising the right. The Fair Work Commission has also been granted jurisdiction to determine disputes relating to the right, including making orders to stop refusing contact, or orders that the refusal is reasonable. The Commission is also required to issue guidelines in relation to the right, which will no doubt be forthcoming. The right will require employers to think more carefully about when, why and how they interact with employees out of hours.

Future Directions

It remains to be seen how the right to disconnect plays out in practice. Few workers readily take their employer to the Fair Work Commission – it is rare that workplace relationships recover in that event. The relatively low take-up of the Commission’s anti-bullying jurisdiction is perhaps indicative of the likely future of the right to disconnect.

More likely, the new regime will influence conduct within the workplace – we all operate in the shadow of the law. The right may also arise peripherally, in the conduct of unfair dismissal or general protections claims. Whatever the practical implications, the symbolic impact is considerable – employers will face greater scrutiny over intrusions into the after-hours time of employees.

Time will tell how significant these changes will prove. No doubt in the years ahead workplace approaches and societal attitudes to flexible working and work-life balance will continue to evolve. The only certainty is that employment law will continue to evolve with it – this will not be the last of legislative changes seeking to adapt to changing approaches to the workplace. As the French say, plus ça change.

John Wilson is the managing legal director at BAL Lawyers and an accredited specialist in industrial relations and employment law. Kieran Pender is an honorary lecturer at the ANU College of Law and a consultant at BAL Lawyers. The authors thank Varshini Viswanath for her research assistance.

[1] Mark Irving KC, The Contract of Employment (LexisNexis Butterworths, 2nd edition, 2019) 87.

[2] Ronald McCallum, Employer Controls Over Private Life (UNSW Press, 2000) 21.

[3] [2023] FWCFB 104 (14 June 2023).

[4] [2023] FWC 49 (6 January 2023) [2].

[5] [2023] FWC 2768 (16 November 2023).

[6] Ren v Commonwealth of Australia as represented by the Bureau of Meteorology [2023] FWC 3157 (29 December 2023) [7].

[7] Ibid [71].

[8] Ibid [98].

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