Application by an Employee for Flexible Work Arrangements
[2025] FWC 1125
•23 APRIL 2025
| [2025] FWC 1125 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.65B - Application for a dispute about requests for flexible work arrangements
Application by an Employee for Flexible Work Arrangements
(C2024/6956)
| COMMISSIONER SLOAN | SYDNEY, 23 APRIL 2025 |
Application to deal with a dispute about the right to request for flexible working arrangements
The Respondent[1] is a business that provides services in the areas of psychology, workplace rehabilitation and chronic pain management. It is based in Darwin. It employs the Applicant as a Provisional Psychologist.
The Applicant has a written employment contract. That contract provides that the Applicant is employed on a part-time basis of 22.5 hours per week, from 8.30am to 5.00pm on Wednesday, Thursday and Friday. The contract also provides that the Applicant is required to work from the Respondent’s business address in Darwin, unless otherwise reasonably requested by the Respondent.
On 14 August 2024, the Applicant took leave from her employment as a result of experiencing family and domestic violence. She remained certified as medically unfit to work until 24 September 2024.
Due to concerns regarding her safety and that of her child, on 27 August 2024 the Applicant flew with her child from Darwin to Sydney.
On 3 September 2024, the Applicant sent an email to the Director of the Respondent (“Director”), which attached a letter dated the same day requesting flexible work arrangements.[2] In her letter, the Applicant stated: “I would like to change my current working arrangements to work from home in…regional New South Wales by performing Zoom telehealth psychological therapy sessions with clients…”. The Applicant proposed that her hours of work remain as set out in her employment contract, aligned to the time in Darwin, and that the new arrangement start on 24 September 2024 and continue “on an ongoing basis”.
The letter set out the basis for the Applicant’s request. In summary, she stated that she and her child had been experiencing family and domestic violence; she had sole caring responsibility for her child; she had left Darwin to ensure the safety of herself and her child; the perpetrator of the family and domestic violence was subject to an Apprehended Domestic Violence Order, which restricted him from being within 800 metres of the Applicant’s place of work; and, the perpetrator had not complied with the ADVO.
The Applicant’s letter also set out at some length the steps she would take to be “set up to provide [her] telehealth consultations”, what she proposed to provide during the telehealth consultations, and what she proposed to provide for follow up and record keeping.
Over the following several weeks, correspondence was exchanged between the Applicant (and others on her behalf) and the Director. It is not necessary to explore that correspondence in detail. I note the following:
On 9 September 2024, the Director sent an email to the Applicant which stated in part:[3]
“Whilst you’re unfit to work it would not be appropriate to discuss work matters.
But I look forward to supporting you and discussing a flexible work arrangement on your return to work on the 24th September.”
In a further email to the Applicant on 15 September 2024, the Director stated:[4]
“I acknowledge receipt of your request dated 3 September. As you are on personal leave until 24 September, I propose a team [sic] meeting (as you have advised you are currently located interstate) to discuss your requests and possible alternatives so I can make a decision by 24 September.”
The Director later proposed a Teams meeting for 25 September 2024, the day after the Applicant’s leave was due to come to an end.
On 24 September 2024, RMB Lawyers sent a letter to the Director, on behalf of the Applicant. Amongst other things, the letter proposed that any meeting between the Applicant and the Director take place after the Respondent had responded to the Applicant’s request for flexible work arrangements. The letter requested that “all correspondence in relation to the above matters [be] kept in written correspondence with [the Applicant].”[5]
On 25 September 2024, the Director sent a letter to the Applicant, responding to the letter from RMB Lawyers. Amongst other things, the letter informed the Applicant that the Respondent had an obligation under the Fair Work Act to discuss her request prior to making a decision. The letter instructed the Applicant to attend a Zoom meeting the following day.
On 26 and 27 September 2024, the Applicant took part in Zoom meetings with the Director and an “HR consultant” engaged by the Respondent. The Applicant had a support person present. In those meetings, the Applicant described the family and domestic violence that she had experienced which caused her to leave Darwin; why those reasons continued to mean that she and her child could not return to Darwin; the Applicant’s grievances with the way the Respondent and the Director had responded to her circumstances; and the Applicant’s request for flexible work arrangements. At the meeting on 27 September 2024, the Director informed the Applicant that the Respondent did not approve of her request and provided its reasons.
Those reasons were confirmed in a letter from the Director to the Applicant dated 27 September 2024. That letter relevantly stated:[6]
“I refer to your request for Flexible & Remote working submitted on Tuesday, 3 September 2024.
…
On this occasion it is regrettable that your request is denied. As discussed on Friday, 27 September 2024, we are unable to approve your request for the following operational reasons:
a) Your current permanent part-time role is to provide in-person sessions to our clients as a Provisional Psychologist.
b) A fully remote role via telehealth is considered a new role.
c) [The Respondent] currently has no vacancies for telehealth psychologists at this time.
d) [The Respondent’s] existing telehealth psychologists are not permanent employees due to the low demand for telehealth services.
e) [The Respondent] is currently unable to provide the existing telehealth psychologists with regular sessions and engages them on a sessional basis for this reason.
f) The requested working arrangements would place an unsustainable financial burden on the business, which would require employing a replacement in-person practitioner.
g) Reducing in-person sessions or forcing a telehealth model onto existing clients who have opted into in-person services would have an unacceptable negative impact on our service delivery.
[The Respondent] has taken into consideration your current personal circumstances and the impact of this decision. Unfortunately, the key aspect of your re-location [sic] makes the request unviable for the reasons listed above. The business and your employment is based in Darwin, NT. [The Respondent] cannot financially support a permanent telehealth position located interstate, as we do not have the service demand to justify the expense.”
On 2 October 2024, the Applicant applied to the Commission to deal with a dispute about the right to request for flexible working arrangements under section 65B of the Fair Work Act 2009.[7] She seeks an order that would allow for her to work entirely remotely.
Determination
I have determined not to grant the order that the Applicant seeks. My reasons follow.
The Commission’s jurisdiction
The legislation
Section 65 provides that, in prescribed circumstances, an employee may request of their employer that there be a change in working arrangements relating to those circumstances. Relevantly for present purposes, the prescribed circumstances include when the employee is experiencing family and domestic violence: section 65(1A)(e).
Section 65A(1) requires the employer to respond to a request within 21 days. If the employer refuses the request, its response must explain the grounds for the refusal: section 65A(6). Under section 65A(3), the employer may refuse the request only if:
1) it has discussed the request with the employee and genuinely tried to reach agreement with them on changes to the employee’s working arrangements to accommodate the relevant circumstances;
2) the employer and the employee have not reached such an agreement;
3) the employer has had regard to the consequences of the refusal for the employee; and
4) the refusal is on reasonable business grounds.
Section 65A(5) provides the following non-exhaustive list of what will constitute reasonable business grounds for refusing a request:
1) the new working arrangements requested by the employee would be too costly for the employer;
2) there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
3) it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;
4) the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity; or
5) the new working arrangements requested would be likely to have a significant negative impact on customer service.
The legislative note to section 65A(5) reads:
“The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).”
The Commission’s powers to resolve disputes
Where parties are in dispute over a request for flexible arrangements, they may be able to refer the matter to the Commission. There are two broad prerequisites to the Commission being able to deal with a dispute. There was no controversy that they are met in this case, so I will deal with them briefly.
There must be a relevant dispute
The first prerequisite is that the matter must amount to a dispute within the meaning of section 65B(1). Relevantly for present purposes, such a dispute will arise where an employee makes a request of their employer under section 65(1) for a change in working arrangements and the employer has refused the request. This in turn imports a requirement that the employee’s request must have been validly made under section 65(1).[8]
There are five preconditions to a request under section 65(1) being validly made.[9] I will deal with them in turn.
First, at least one of the circumstances in section 65(1A) must apply to the employee. The relevant circumstances must, as a matter of fact, exist (rather than be anticipated or the subject of anticipatory discussion) in respect of the employee at the time the request is made. In the present case, there is no dispute that the Applicant was experiencing family and domestic violence: section 65(1A)(e).
Second, the employee’s desire for changed working arrangements must be “because of” the relevant circumstances (section 65(1)(b)) and relate to them. That is, there must be a nexus between the request and the relevant circumstances. Again, there is no dispute that such a nexus exists in this case. The changes in working arrangements that the Applicant requested arose in response to the family and domestic violence she was experiencing.
Third, the employee must have completed a minimum period of service immediately before making the request: section 65(2). In this case, that period is 12 months of continuous service. The Applicant’s employment with the Respondent commenced on 20 April 2022, more than two years prior to her request.
Fourth, the request must have been made in writing: section 65(3)(a). The Applicant’s letter to the Director of 3 September 2024 meets that requirement.
Fifth, the request must set out the details of the change sought and the reasons for the change: section 65(3)(b). The requirement to set out the “reasons for the change” is to be understood as connected with the requirements for a valid request in section 65(1). That is, the reasons need to identify the relevant circumstance in section 65(1A) and explain how the proposed changed working arrangements relate to that circumstance. Once again, I am satisfied that the Applicant’s letter to the Director of 3 September 2024 meets that requirement.
Attempts to resolve the dispute at the workplace level
The second prerequisite is that the parties to the dispute must first attempt to resolve it at the workplace level, by discussions between them: section 65B(2). A party may only refer the dispute to the Commission “if discussions at the workplace level do not resolve the dispute”: section 65B(3).
Having regard to the correspondence that the parties exchanged between 3 and 27 September 2024, and the meetings held on 26 and 27 September 2024, I am satisfied that the parties attempted to resolve the dispute at the workplace level.
The Applicant was entitled to refer the dispute to the Commission
For the reasons set out above, I find that the Applicant was entitled to refer the dispute to the Commission and the Commission may deal with it noting that:
1)the Applicant made a valid request for a change in her working arrangements as a result of experiencing family and domestic violence;
2)the Respondent responded to that request in writing. It refused the request and explained the grounds for its refusal; and
3)the parties unsuccessfully attempted to resolve the dispute at the workplace level.
I digress to note that the Respondent did not respond to the request within 21 days, as required by section 65A(1). It provided its written response to the Applicant 24 days after she had made her request. However, this was not a matter about which the Applicant raised any particular concerns. It was stated as a fact in the Applicant’s written submissions in chief, and put forward as a matter which entitled her to refer the matter to the Commission under section 65B(1)(b). (It is not necessary to consider the correctness of that submission.)
In any event, section 65A clearly anticipates that if an employer is contemplating refusing or proposing a change to a request, it will discuss the request with the employee before providing its response. This was recognised by the Respondent in its correspondence to the Applicant. The Respondent had flagged in that correspondence that it may not be able to grant the request. The delay in the Respondent providing its response was occasioned in the main by having to defer meeting with the Applicant until she was fit to participate. In the circumstances, I do not regard the Respondent’s failure to respond within 21 days to be a material consideration.
Attempt to deal with the matter other than by arbitration
When a dispute is referred to it, the Commission must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances: section 65B(4)(a). I convened conferences with the parties on 17 October 2024 and 12 November 2024 during which I attempted to resolve the dispute by conciliation.
The Commission’s powers to arbitrate
Section 65C(1) sets out the orders that the Commission may make to deal with a dispute. The effect of the Applicant’s case is to seek an order under section 65C(1)(f) that the Respondent grant the request in her letter of 3 September 2024. It is a matter within my discretion as to whether such an order ought to be made.
However, I am only able to make an order if I am satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order: section 65C(3). In making any order, I must take into account fairness between the parties: section 65C(2).
The question I need to determine
The Respondent was only permitted to refuse the Applicant’s request if each of the four requirements in section 65A(3) were met.[10] There was no controversy regarding three of those requirements, namely:
1) that the Respondent had discussed the request with the Applicant and genuinely tried to reach agreement with her on changes to her working arrangements to accommodate her circumstances. I observe that in her written submissions, the Applicant contended that the Respondent had not genuinely attempted to reach agreement with her. However, that submission was not pressed at the hearing and I take it have been abandoned;
2) that the parties had not reached agreement; and
3) that the Respondent had had regard to the consequences of the refusal for the Applicant.
For completeness, I am satisfied on the evidence that those requirements are met. That evidence includes in particular the correspondence between the parties to which I have referred and records of meetings between the Applicant and the Director dated 26 September 2024 included in the Respondent’s evidence.
The controversy between the parties was whether the Respondent had reasonable business grounds for refusing the request. The Applicant submitted:[11]
“Commissioner, there is one primary question for the Commission to determine: that is whether there are reasonable business grounds under section 65A(3)(d) of the Fair Work Act for the [Respondent’s] refusal of [the Applicant’s] request for flexible working arrangements.”
The Applicant stated at the hearing that the only order she sought from the Commission was that she be permitted to work remotely, consistent with the request in her letter of 3 September 2024.[12]
To my mind, a finding that the Respondent did not have reasonable business grounds to refuse the request would not necessarily be the end of the matter, in that I would be compelled to make the order sought by the Applicant. I am arbitrating the parties’ dispute, not simply reviewing whether the Respondent refused the request on reasonable business grounds.[13]
On the other hand, a finding that the Respondent did have reasonable business grounds would be more determinative. The employer is entitled to refuse a request if the requirements of section 65A(3) are met. If they are met, it would to my mind be contrary to the legislative scheme to impose an outcome inconsistent with the express right of refusal in the Act. It would, in particular, be difficult to see how such an outcome would achieve fairness between the employer and the employee.
The evidence and submissions
The Applicant filed a significant amount of material in support of her application. The material she filed included:
1) a written outline of submissions in chief;
2) a document described as a “timeline”, which was in the nature of a statement or chronology by the Applicant, with a number of attachments;
3) two other witness statements by third parties;
4) an assortment of documents comprising more than 1,200 pages;
5) a statement by the Applicant (in reply) dated 24 January 2025, with twelve attachments (“Applicant’s Statement”); and
6) a written outline of submissions in reply.
At the hearing, the Applicant informed me that she only sought to rely on the Applicant’s Statement and the written submissions that she had filed in chief and in reply.
The Respondent relied on a document prepared by the Director dated 9 January 2025, which was a combination of evidence and submissions (“Director’s Statement”). It had 40 “attachments” (some of which comprised multiple documents).[14] As a consequence of the narrowing of the grounds requiring my determination and the relief sought by the Applicant, the Respondent did not press all of the contents of the Director’s Statement. As a result, not all of the attachments are relevant.
I note for completeness that the Respondent filed a number of documents in addition to the Director’s Statement and its attachments, but ultimately did not seek to rely on them.
In reaching my decision, I have only had regard to the material on which the parties relied or which came out at the hearing. I will refer to the relevant evidence and submissions as necessary in the discussion which follows.
Did the Respondent have reasonable business grounds for refusing the request?
In considering whether the Respondent had reasonable business grounds for refusing the Applicant’s request, it is not the role of the Commission to stand in the Respondent’s shoes and consider whether it would have refused the request, substituting its own reasons. Rather, the Commission’s task is to make an assessment as to whether the grounds the Respondent put forward are reasonable business grounds in the circumstances. That requires an objective assessment of those reasons.[15]
I am mindful that as part of the National Employment Standards, the purpose of flexible working arrangements is to accommodate the circumstances of individual employees if the employer is in a position to do so.[16] The Commission has recognised that almost all requests for flexible work arrangements will result in some cost, loss of efficiency or adverse impact on customer service, even if only very small.[17] The question, which arises from the use of the word “reasonable”, is whether the employer can demonstrate that any detriment it would suffer through granting the request outweighs the employee’s personal considerations.[18] That is, there must be “some form of balancing”.[19]
The Respondent’s case in outline
The basis on which the Respondent claimed that it had reasonable business grounds to refuse the Applicant’s request may be summarised as follows:
1) The Respondent is a small business. As at the date of the hearing, it employed two full-time and three part-time clinicians, including the Director. However, it was expected that in the near future one clinician would retire and another would embark on maternity leave.
2) The Respondent employed the Applicant to provide services as a Provisional Psychologist to its clients. The overwhelming majority of those services were provided in face-to-face sessions.
3) The Respondent generates revenue from the provision of those services.
4) The premise of the Applicant’s request is that she would provide her services remotely through telehealth consultations. However, there is insufficient demand for telehealth consultations to support the Applicant’s part-time status of 22.5 hours per week.
5) It follows that were it to accommodate the Applicant’s request, the Respondent would either be paying the Applicant to do nothing or for performing administrative or like tasks. This would be tantamount to placing the Applicant in a new role.
6) At the same time as being required to pay the Applicant to perform non-revenue producing work, the Respondent would need to engage another clinician to conduct the face-to-face sessions that the Applicant would otherwise have done in Darwin. This would place an “unreasonable financial strain on the business”.[20]
7) In any event, as a Provisional Psychologist, the Applicant is not authorised to work entirely remotely without approval from the Psychology Board. That approval has not been obtained.
The Respondent raised as an “additional consideration” the fact that the Director had lost trust and confidence in the Applicant to work autonomously and not disparage the Respondent in a way that may cause damage to its reputation and stakeholder relationships. This was said to be the result of information that had come to light since the commencement of these proceedings, including the content of some of the material that the Applicant had filed in the matter.
The availability of telehealth services
In her letter to the Director of 3 September 2024, the Applicant stated that the change she sought to her working arrangements was that she “work from home in…regional New South Wales by performing Zoom telehealth psychological therapy sessions with clients…”.[21] From the terms of the Respondent’s letter to the Applicant of 27 September 2024, the asserted lack of demand for telehealth consultations was a significant factor in its decision to refuse the request. Unsurprisingly, the availability or otherwise of telehealth work was the subject of particular focus in the proceedings.
To place the discussion which follows into context, the Applicant works 22.5 hours per week. The Director gave evidence that this would entail the Applicant performing about 18 hours of clinical work, which would equate to the Applicant seeing up to 18 clients a week.[22]
The Director stated:[23]
“7.3.10 Demand for Telehealth Does Not Support a Permanent Part-Time Role
a. [The Respondent] introduced telehealth services in 2019 to address workforce shortages that exist in the NT. [It] has made efforts since then to generate telehealth demand. …
b. [The Respondent] found there was low uptake of the telehealth service and that the demand was and continues to be mostly for face-to-face services. During Covid, where mandates enforced social distancing and restricted in-person service provision, the majority of clients in Darwin simply waited until face-to-face sessions resumed to access services.
c. Service Demand 2024 Financial Year. Despite the current high demand for psychological services, demand is primarily for face-to-face consultations (79.96%) supplemented by hybrid consultations (7.6%). Hybrid consultations are where clients attend a mix of face-to-face sessions and occasionally supplement with telehealth sessions if they are unable to attend the clinic for any reason (travel, illness, etc). Telehealth sessions accounted for 12.43% of all sessions.
d. During the quarter ending 30/09/24, 44.88% of all telehealth appointments were provided outside of business hours (weekday evenings and Saturdays), which further reduces the amount of remote telehealth work available to the Applicant who proposes to work within business hours ACST… Of the clients that opted into telehealth during the 2024 financial year, only 6.06% of them were suitable to be seen by the Applicant. Telehealth appointments comprised 2.49% of the Applicants client work in the 2024 financial year. …
…
f. Contractor Model. Due to the low volume of telehealth sessions, the current remote telehealth providers are not employees as the Respondent can’t guarantee regular work. All four (4) are contractors who are engaged on a sessional basis. …
g. The Respondent does not have any remote telehealth clinicians who have achieved a workload of 14 sessions/week in the 5 years that telehealth has been available at [the Respondent]. …
h. Clients have 100% choice and control of whether they attend face to face or via telehealth. The first intake question clients are asked is whether they want to attend in person or via telehealth, then clinicians are matched by presenting issue. Not all clients who consent to telehealth will be suitable to allocate to the Applicant based on;
i.client preference or age/gender of clinician and preferred level of experience. The Applicant is an early career psychologist and some clients will specifically request an experienced, confident clinician.
ii.whether the Applicant has the appropriate clinical skills and experience to deal with the presenting issue eg, the Applicant could not be allocated to couples therapy, family therapy or executive/leadership issues as the applicant does not have training or experience in these areas.
iii.if the presenting issues are likely to cause countertransference (when a therapist projects their own unresolved conflicts onto the client) for the therapist. eg. the applicant has legitimately indicated in their timeline that they cannot see clients experiencing FDV. The Respondent would suggest that clients experiencing relationship issues would also be unsuitable to be seen by the Applicant for this reason. There may also be other issues that are identified on an emergent basis that are not suitable for the Applicant to see.
i. The Applicant’s caseload have all opted into face-to-face appointments with other clinicians or been discharged…
j. Existing remote work cannot be taken off the current remote clinicians and given to the Applicant because;
i.Those clients who have opted into telehealth have choice and control to remain with their treating clinician for continuity of care.
ii.The Applicant may not have the most suitable skill set based on the clients presenting issue
iii.The Applicant may not be suitable to work with a client due to identified countertransference issues.”
(Other than for redacting the name of the Respondent, reproduced verbatim. Emphasis in italics added.)
The Applicant did not lead evidence to dispute that of the Director. Her only response to par 7.3.10 of the Director’s Statement was to produce a copy of a “Support and Recommendations Paper” from the NSW and ACT Primary Health Networks titled “Incorporating telehealth into the future of Australian Primary Healthcare”.[24] The paper is dated May 2020. The Applicant stated that it “has provided strong support for telehealth”.[25] Be that as it may, there was no evidence that there was or is a demand for telehealth services in the Respondent’s business beyond that stated by the Director.
The Director’s evidence was also not materially shaken in cross-examination. To the contrary, her evidence under cross-examination bolstered her written evidence. She referred to graphs she had prepared recording the telehealth sessions conducted by the Respondent’s contractors in the first quarter of 2025.[26] She stated that of that work, only 1.38 sessions per week on average were “viable clients who could potentially be seen by [the Applicant]”.[27]
The Director gave the following further evidence under cross-examination:[28]
“During the triage process, you give people an opportunity to nominate whether (indistinct) personal telehealth appointments, don’t you? ‑Yes. That’s correct. And so I guess the people who have currently comprised [the Applicant’s] caseload - so they will actually come with that already assessed, so they’re triaged by a separate organisation. They’re referred to us and it will indicate on thar [sic] referral whether that person will engage in telehealth or if they’ve elected for face to face, if they’ve elected to see a male clinician, a female clinician.
Yes? ‑Obviously if they want a male clinician in person, we can’t provide that, so we would have to decline that referral, but in terms of - if we were being directly contacted, our triage process; the first question is, you know, ‘Are you hoping to see someone via telehealth [or] in person’, and overwhelmingly, people want to see clinicians in person.
But there is some demand for telehealth appointments, isn’t there? ‑Yes, there is some demand, but it’s underwhelming.
And that process that you described before, how – what’s the organisation that provides that referral process to you? Is it done through State health? ‑So it’s through an organisation called Neami.
Which stands for? ‑They don’t know either, so apparently, they named themselves a long time ago and forgot what the acronym is, but ‑ ‑ ‑
And they’re a referral service for, I assume primary healthcare and other sorts of therapeutic professions to refer to other clinicians, is that correct? ‑Yes. So they’re what we call a navigator service. So they’re a point of contact for GPs, consumers, health professionals, family friends and their job is to navigate consumers to services.
And so if you approached Neami and said, ‘We’ve had [an] employee who mainly is to work remotely for certain reasons and we have more capacity for telehealth appointments, could you please send us more telehealth appointments’, why wouldn’t they do that? ‑Because they’re experiencing the same thing, which is the demand is for in person services. So they’ve got access to any number of telehealth services, but the issue is that we’ve got large numbers of people who are wanting to access face to face services.”
Later in the cross-examination, the Director gave the following evidence:[29]
“You mentioned clients who would be happy to have telehealth appointments notwithstanding that they had been triaged to in-person appointments? ‑No. That that [sic] isn’t our experience.”
In her written submissions in reply, the Applicant contended that “[t]here is plainly some level of demand for telehealth”[30] and that “[m]erely that previous demand for telehealth may have been low says little about future demand”.[31] She accepted that clients may elect which clinicians they wish to see, but rejected the Respondent’s submissions as to potential limitations caused by her skillset or countertransference issues as “wholly speculative”.[32]
There appeared to be some movement in the Applicant’s position, when she submitted at the hearing:[33]
“There is no reason why [the Applicant] if she’s qualified and has the skills to see a particular patient shouldn’t have that patient triaged to her as opposed to some other clinician.”
(Emphasis added)
However, in other oral submissions at the hearing, the Applicant contended:[34]
“Demand is a little more complex. It seems that there is, without putting too fine a point on it, much less demand for Telehealth consults than in person consults, but there does seem to be some demand. In fact the respondent…contracts with four contractors, some more, some less, for only providing Telehealth consults, and you will see in part 7.3.10(c), which is on page 19 of the submissions part of exhibit 2, that Telehealth sessions accounted for 12.43 per cent of all sessions [the Respondent] conducted in the 2024 financial year, and that hybrid consultations, being a combination of face to face and Telehealth accounted for 7.6 per cent. So there is some demand.
In [the Applicant’s] submission, in my submission, that 20 per cent of Telehealth and hybrid consultation process represents a sufficient demand for her to be engaged in at least a substantial amount of her 0.6 full-time equivalent work.”
Those submissions are premised on all available telehealth work being referred to the Applicant. That does not take into account the evidence that the Applicant may not have the skillset or expertise to deal with all of the presenting problems, which the Applicant appeared to concede. It is not enough for the Applicant to dismiss the Respondent’s concerns as speculative; that was the Director’s uncontroverted evidence.
Further, the “hybrid” work involves a clinician conducting both face-to-face and telehealth consultations. Even assuming that the Applicant was qualified to deal with a particular client, I am not persuaded that it would be appropriate for that client to be required to meet with the Applicant for telehealth consultations in place of their regular clinician.
Rather, I accept the following oral submissions of the Respondent:[35]
“Removing telehealth clients from other personnel and allocating them to [the Applicant] simply isn’t an option in the context of mental health care. Our clinicians work really hard to build trusting therapeutic relationships with our clients and we try to maintain that continuity of care. There are limitations in terms of the presenting issues through telehealth and what [the Applicant] would be fit to deliver, and I’m thinking particularly in relation to our demand for relationship therapy, which comprises approximately half of our sessions. This would likely result in a negative impact to our services delivered.”
But aside from these matters, the Applicant’s case did not grapple with the totality of the evidence as to the lack of demand for telehealth services. It is not to the point that there is “some demand” for such services. The question is whether there is sufficient demand for that work to support the Applicant working remotely. On the evidence, the answer to that question is no. The Director’s largely uncontroverted evidence makes it clear that there is insufficient demand for telehealth services in the Respondent’s business to provide the approximately 18 sessions that would be required to meet the expectations of the Applicant’s position.
For these reasons, I am satisfied that at the time the Respondent refused the Applicant’s request, there was insufficient demand for telehealth services to support the Applicant performing her duties remotely. The Applicant’s submission that merely because previous demand for telehealth may have been low “says little about future demand” is, on the evidence and to adopt the Applicant’s words, wholly speculative.
What other work is available for the Applicant to perform?
The question which next arises is, in the absence of sufficient telehealth consultations, what work would the Applicant perform? This is a question that was put to the Applicant in cross-examination. She stated that she would “complete paperwork…complete my registration”.[36] She also had this exchange with the Director: [37]
“That is my conclusion that there is no work. So what we’re now looking at is how can your wage being supported by the work that you’re proposing? ‑Well, I told you I was willing to invest in the business. There’s no reason that – you know, there are primary health networks here in New South Wales as well and there’s no reason why it’s not possible to tap into other avenues to source that work to provide to me.”
In response to a question from me, the Applicant stated:[38]
“I’m saying that if [the Director] makes the decision or comes to some conclusion that there is no work for me, I can’t control it. I’m ready. I’m willing to work.”
The Applicant’s evidence created the clear impression that, to her mind, it was enough that she was ready and willing to work. After that, it was up to the Respondent to do what was necessary to make the proposed new arrangements work. If the work is currently not there to be done, the Respondent must somehow source it and provide it to her. It is difficult to see how such a stance would allow for the Respondent to refuse her request on any grounds, let alone reasonable business grounds.
In any event, the Applicant led no evidence as to the “other avenues” that the Respondent could “tap” to source work for her. There is only an oblique reference in the Applicant’s Statement to having “generated further discussion with the Respondent by providing alternative options as I develop knowledge of the local area demographics and the NSW health system and legislation”.[39]
In her statement, the Director addressed potential sources of work that the Applicant had proposed (but which did not form part of the Applicant’s evidence). The Director explained why those avenues were not viable sources of work. That evidence was not challenged.
I am also mindful that the Respondent is a small business, based in Darwin. I am not persuaded that it can, or should be required to, obtain work for the Applicant in regional New South Wales.
For these reasons, there is some force to the Respondent’s submission that the Applicant is not merely requesting flexible work arrangements; she is asking to be appointed to a fundamentally different position to that in which she is employed.
The financial implications of making the change
One of the reasons that the Respondent gave for refusing the Applicant’s request for flexible work arrangements, as set out in its letter to the Applicant of 27 September 2024, was that it “would place an unsustainable financial burden on the business, which would require employing a replacement in person practitioner”. In her statement, the Director stated that:[40]
In order to avoid adverse impacts on customer service, the Applicant would need to be replaced with a clinician able to provide face-to-face services in Darwin. The projected costs for recruiting a replacement are between $7,722 and $12,870.
There would be a significant loss in productivity and cost to the business, as the Respondent would be paying the Applicant to complete non-revenue producing tasks. This cost would be over and above the remuneration that would have to be paid to the Applicant’s replacement in Darwin.
In its oral submissions at the hearing, the Respondent contended:[41]
“So in the absence of remote telehealth work, the applicant has requested to be paid to perform non-revenue producing tasks. We don’t exist on grants or lump sums of money. We earn revenue one session at a time. So to pay an employee and to not be able to have that wage offset against any revenue will simply cripple the business. So even based on the figures that we’ve discussed today, with on-costs, the total wage costs would be 50 per cent of revenue, so that would be relying on the applicant bringing revenue in. Service industries would normally work off percentages of 15 to 30 per cent labour costs. So it just leaves very little in the way of room for operational costs and the costs of running the business.”
The Respondent further submitted that “the financial and the demand constraints that we face with a 100 per cent remote work role on a permanent part-time basis are simply insurmountable”.[42]
The Applicant submitted, and I accept, that the Respondent did not produce any financial evidence to substantiate its contentions. It is not possible for me to draw any firm conclusions as to the precise quantum of the financial impact on the Respondent’s business of accommodating the Applicant’s request. I certainly cannot conclude that the arrangements would “cripple the business” or be “insurmountable”.
At the same time, it is relevant to consider “the nature and size of the enterprise carried on by the employer”.[43] The Respondent is a small business. Were it to have accommodated the Applicant’s request, it would be required to pay the Applicant a salary with no certainty as to what, if any, revenue she would generate. At the same time, it would be required to recruit and pay another clinician to work in Darwin. While it is not possible for me to quantify precisely the scale of that cost to the business, or the impact that it would have on the Respondent’s ongoing viability, I can readily accept that agreeing to the proposed changes to work arrangements would have had a more than negligible negative impact on the Respondent’s financial position.
Regulatory limitations on the Applicant’s ability to work remotely
The Director gave evidence that the Applicant “is a provisionally registered psychologist with the Australian Health Practitioner Regulation Agency (AHPRA) and is required to participate in a supervised practice program (approved by the Psychology Board) as a condition of provisional registration”.[44] She stated that the Applicant does not have approval to work independently or in a remote work arrangement. The Applicant would need “formal written approval from the Psychology Board to vary their work role, which they have not provided”.[45]
There was some focus on these matters in the parties’ evidence and at the hearing. The Applicant gave evidence to the effect that the only impediment to the Psychology Board approving her remote work arrangement was the Respondent’s refusal of her flexible work arrangement request. She stated that the College of Professional Psychology had indicated to her that it was in support of the arrangement and that remote supervision was already in place. She stated that it is for her workplace supervisor or line manager to apply to Psychology Board for the necessary approval, not her.
The Director accepted under cross-examination that the College and AHPRA have permitted the Applicant to be supervised remotely. She questioned, however, whether the approval of the Psychology Board to a remote work arrangement would be obtained, due to her concerns as to the Applicant’s ability to work remotely. Those concerns were said to arise from two sources. First, issues with the Applicant’s professional practice which were identified after the Applicant left Darwin. Second, disparaging and highly critical comments in material the Applicant filed in these proceedings. The Director stated that she had lost trust and confidence in the Applicant.
I am not satisfied that these matters are relevant for present purposes. There is nothing to suggest that regulatory restraints formed part of the Respondent’s decision to refuse the Applicant’s request on 27 September 2024. Nor is there any evidence that at that time the Respondent had any concerns with the Applicant’s performance or conduct. Indeed, the Director appeared to accept that her concerns regarding the “trust and confidence” that she could repose in the Applicant had only arisen in the course of these proceedings. To that extent, these matters cannot be seen as forming part of the Respondent’s reasonable business grounds as at the date it made its decision.
Conclusions
The Applicant has experienced family and domestic violence. Her description of the events that led to her leaving Darwin suddenly with her child are disturbing. She should never have been put in the position she was.
It follows that the issue before me is not whether the Applicant was entitled to request flexible work arrangements; she clearly was. It is also not whether the Applicant is entitled to feel aggrieved that the Respondent refused her request; she is.
But that is not to say that the Respondent acted inappropriately. It was not obliged to accommodate the Applicant’s request, as the terms and tenor of some of the Applicant’s evidence suggests. The Respondent was entitled to refuse the request if the requirements of section 65A(3) were met. The only controversy between the parties was whether the requirement that the Respondent have reasonable business grounds for refusing the request was met.
And I am satisfied that it was, in two respects. First, there was inadequate demand for the telehealth services that the Applicant proposed that she would provide remotely. Any other work that the Applicant suggested she perform was not revenue-generating. This was a fundamental change in the nature of the employment given that the Applicant was employed by the Respondent to generate revenue. As I have already observed, the effect of the request was not so much a change to working arrangements, but a change to the Applicant’s position. Second, the proposed new arrangements would have a negative on the Respondent’s financial position. I am satisfied that this impact would have been more than a notional one.
To make the order the Applicant seeks would be tantamount to a finding that the Respondent ought not to have refused her request, despite it being entitled under section 65A(3) to do so. That would be inconsistent with the statutory scheme. It would not achieve fairness between the parties.
I decline to make the order the Applicant seeks. She did not seek any other order. The only appropriate order available to me is under section 65C(1)(b)(i).
Order
In accordance with section 65C(1)(b)(i), I order that the grounds on which the Respondent refused the Applicant’s request be taken to have been reasonable business grounds.
COMMISSIONER
Appearances:
Hamish Clift of Counsel, for the Applicant
Director, for the Respondent
Hearing details:
28 January 2025
Sydney (by video)
[1] I have not identified either party in this decision. At the hearing, the Applicant requested orders under section 594(1) of the Fair Work Act 2009 preventing the publication of any information that would identify either the Applicant or the Respondent as being a party to this proceeding. The Respondent did not object to such orders being made. Given the context which gave rise to the dispute between the parties, I determined to make, and did make, orders that:
a)the publication and disclosure of any information which identifies the applicant or respondent as being a party to this proceeding, including the publication of documents or evidence lodged in the Commission, and any information in those documents, is limited to the parties, their legal advisors, and any treating health professional; and
b)the applicant, respondent, and any person, business or other thing that could identify the applicant or respondent in any publication of or concerning this proceeding is to be referred to by pseudonym.
[2] Respondent’s Bundle of Documents, Attachment 7
[3] Respondent’s Bundle of Documents, Attachment 8
[4] Respondent’s Bundle of Documents, Attachment 9
[5] Respondent’s Bundle of Documents, Attachment 12
[6] Respondent’s Bundle of Documents, Attachment 15
[7] All references in this decision to legislative provisions are to provisions of the Fair Work Act 2009
[8] Jordan Quirke v BSR Australia Ltd[2023] FWCFB 209 at [21]
[9] See Jordan Quirke v BSR Australia Ltd[2023] FWCFB 209 at [22]-[25]
[10] Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust[2025] FWCFB 82 at [39]
[11] Transcript, 28 January 2025, PN8
[12] The Applicant did not suggest orders that might be made in the alternative which had been mooted in her filed material. As a result, it is not necessary that such alternatives be traversed.
[13] See Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex[2024] FWCFB 473 at [34], although I query whether the observations of the Full Bench in that passage are consistent with the analysis of the Full Bench in Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust[2025] FWCFB 82, in particular at [39] and [50]. Given the findings I have made, I do not need to explore those authorities.
[14] At the hearing, the Director’s Statement and the 40 attachments were referred to as the “Respondent’s Bundle of Documents”
[15] The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police[2018] FWC 5695 at [45]; Fyfe v Ambulance Victoria (2023) 321 IR 260; [2023] FWC 49 at [45]
[16] Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex[2024] FWC 1845, quoted without criticism by the Full Bench in Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex[2024] FWCFB 473 at [16]
[17] Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council[2013] FWC 5 at [15], quoted with approval in Fyfe v Ambulance Victoria (2023) 321 IR 260; [2023] FWC 49 at [85]
[18] Fyfe v Ambulance Victoria (2023) 321 IR 260; [2023] FWC 49 at [49] and [88], quoting Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council[2013] FWC 5 at, respectively, [20] and [16]
[19] Fyfe v Ambulance Victoria (2023) 321 IR 260; [2023] FWC 49 at [51], cf. Police Federation of Australia (Vic Police Branch) v Chief Commissioner of Police[2022] FWC 2223 at [74]
[20] Director’s Statement, par 6.1(d)
[21] Respondent’s Bundle of Documents, Attachment 7
[22] See Transcript, 28 January 2025, PN142-PN144
[23] Director’s Statement
[24] Applicant’s Statement, Annexure 12
[25] Applicant’s Statement, par 26.1
[26] Respondent’s Bundle of Documents, Attachment 36
[27] Transcript, 28 January 2025, PN260
[28] Transcript, 28 January 2025, PN236-PN242
[29] Transcript, 28 January 2025, PN266
[30] At par 16
[31] At par 17
[32] At par 18
[33] Transcript, 28 January 2025, PN303
[34] Transcript, 28 January 2025, PN297-PN298
[35] Transcript, 28 January 2025, PN339
[36] Transcript, 28 January 2025, PN63
[37] Transcript, 28 January 2025, PN74
[38] Transcript, 28 January 2025, PN72
[39] At par 32.5
[40] See par 7.3.4
[41] Transcript, 28 January 2025, PN333
[42] Transcript, 28 January 2025, PN340
[43] Legislative note to section 65A(5)
[44] Director’s Statement, par 7.2a
[45] Director’s Statement, par 7.2.1c
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