Did Flexible Work Arrangements for over 55’s just get easier?

One Minute Summary

The employee requested a flexible work arrangement (to work the same fulltime hours over 4 days) because he was over 55 and was preparing for retirement through establishing other income streams.
The employer objected and offered an alternative which the employee did not accept.
The employee lodged a Fair Work dispute. The employer responded arguing that the Commission did not have the jurisdiction to deal with the matter as the employee’s FWA request was not valid.
The Commissioner made a straightforward link between being over 55 and preparing for retirement and dismissed the employer’s objection.

The Fair Work Commission has ruled against a jurisdictional objection by an employer that the employee’s request for a Flexible Work Arrangement because of his age was not valid.

The Applicant, Mr Murray, notified a dispute to the Fair Work Commission after his employer (Watpac Construction) rejected his request for a flexible work arrangement because he was over the age of 55.

Two years after commencing his position of Services Manager, Mr Murray (67), requested a change to his working hours to work the same 38 hours over 4 days per week instead of 5 days.

He stated he was ‘restructuring certain aspects of his life in order to dedicate more time to pursue his creative writing, with the objective of monetising these endeavours throughout his retirement’.

After he formally lodged his request pursuant to s.65 of the Fair Work Act discussions took place with the employer. Watpac indicated it could not agree to the request on reasonable business grounds and proposed an alternative option. Mr Murray rejected the reasonable business grounds and refused the alternative option. He lodged a dispute with the Fair Work Commission.

Watpac responded indicating that because the flexible work arrangement request had not been validly made the Commission lacked the jurisdiction to deal with the matter. This decision deals with that initial jurisdiction issue.

Under section 65 of the FW Act an employee may request a change in working arrangements if;

(a) any of the circumstances referred to in subsection (1A) apply to the employee (in this case being over 55 years of age); and

(b) the employee would like to change his or her working arrangements because of those circumstances. The employee may then request a change of working arrangements relating to those circumstances.

Mr Murray submitted that his request was expressly made to ‘facilitate a transition to retirement by improving my work-life balance and allowing me to pursue personal creative projects’. He further stated that ‘his situation meets the test as it is a classic transitional arrangement, he is not reducing his output or hours and is simply restricting the pattern of work to create space for retirement planning and new income streams’.

In response lawyers for Watpac argued that the FWA request was not validly made in accordance with the FW Act in that Mr Murray failed to satisfy (b) above.

Watpac submitted that: ‘at no point has the Applicant (Mr Murray) explained how the requested changes in the FWA Request are sought ‘because of’ the circumstance of being over 55 years of age. The Respondent asserts that the Applicant has not identified any age-related limitation, requirement, or circumstance that necessitates the flexible working arrangement sought.’ …. or… ‘accommodating an age-related transition from work.’

They further submitted that Mr Murray had not identified an improvement in his work/life balance. Further he was not seeking fewer hours and proposed to take on additional work.

Commissioner Simpson took a very straight forward approach linking his age and a request to ‘facilitate a transition to retirement by improving his work-life balance and allowing him to pursue personal creative projects.’

‘The Applicant submitted he is not yet financially able to retire fully and is therefore, responsible for creating alternative income steams while continuing to meet his contractual obligations. He satisfies the required nexus under s.65(1)(b)’

With the Commission dismissing the employer’s jurisdictional argument the matter can now proceed to assessing the claim on the merits.

Commentary

This decision appears to open a broader front for employees over 55 seeking to have more flexible work arrangements while heading for an undetermined retirement time frame. In previous decisions there was a stronger link with reducing hours of work or changing the current work life balance as a transition process.

In the early stages of this matter while it was still in discussion at the workplace level the employer raised reasonable business grounds for not accepting Mr Murray’s request. These included:

The inherent requirements of the position (undefined)
The operational impact on project deliverables and timelines
Difficulties associated with the redistribution of the Applicant’s duties.

These will now be examined more closely by the FWC. Past decisions have provided guidance that where reasonable business grounds are provided, they must be accompanied by sufficient evidence. Given the straightforward approach taken by the Commission I suspect that these grounds may not be accepted – particularly given that Mr Murray would still be working the same hours as before. It would be an acceptable assertion to make that he would not be present in the office for 5 days each week into the future as he will be taking sick leave and annual leave from time to time. If this matter is not settled and proceeds to arbitration then we may have a sequel decision based on the merits.

Where an employee makes a flexible work arrangement request employers have 21 days to provide a formal written response. Proper consideration must be given if objecting to any change on reasonable business grounds as they could well be tested. Where employers require assistance with such matters please contact Michael.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au