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Queensland Government Bulletin

26 September 2022

#Government, #Workplace Relations & Safety

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Queensland Government Bulletin

Can employers reasonably deny multi-day work from home requests?

In Petrie v State of Queensland (Queensland Mental Health Commission) [2022] QIRC 343, the appellant, who is a full-time business support officer, made a ‘flexible work application’ (FWA) to the respondent, the Mental Health Commissioner, seeking to work from home two days per week. His reason for the request was that he has responsibilities as the primary carer of his elderly parents.

The respondent approved the appellant to work from home two days per week for three months, followed by one day per week for a further three months. The respondent submitted that the temporary working-from-home arrangement was approved to assist the appellant in organising alternative care arrangements for his parents.

The approval to work from home two days per week was extended for a further three months to allow the appellant more time to arrange support for his parents.

The appellant requested a further extension of his two day per week working-from-home arrangement. But the respondent only partially approved the request, granting him one day of working from home per week for a period of six months.

The appellant appealed against this decision under the public service appeals provisions of the Public Service Act 2008 (Qld) on the grounds that the partial approval was unfair and unreasonable.

The appellant submitted that the respondent adopted a “one size fits all” approach to flexible working arrangements which did not consider his individual circumstances. He contended that he was not advised of how his working from home arrangement may significantly impact the unit’s operational requirements. His line manager was said to have strongly supported his request.

The respondent acknowledged that there were certain tasks that the appellant could perform at home. It was for this reason he approved one day per week working from home for six months.

The respondent submitted, however, that the appellant’s role requires him to provide a wide range of in-office support and assistance, including ad-hoc assistance and IT support, to the unit manager and others across the Queensland Mental Health Commission. The respondent also submitted that the appellant’s role requires his presence in the office most of the time and that in his absence whilst working from home, others in the office had to perform some of his tasks. The respondent considered that this posed an unfair burden on the appellant’s colleagues.

In her decision, Industrial Commissioner (IC) Power noted that section 4(k) of the Industrial Relations Act 2016 (IR Act) provides that one of the purposes of the IR Act is to promote diversity and inclusion in the workforce, including providing a right for employees to request FWAs to help balance their work and family responsibilities. Sections 27 and 28 of the IR Act also make provision for employees to request FWAs and outlines what the employer may decide to do in responding to such a request.

However, in considering the appellant’s case, IC Power held that the appellant was not entitled to “more” flexibility than his work colleagues because of his particular circumstances. Ultimately, she held, it was a matter for the respondent to determine how best to decide flexible work arrangements to ensure fairness across all employees whilst considering each request on a case-by-case basis.

IC Power was satisfied that the respondent provided a reasonable process allowing sufficient time for the appellant to put in place arrangements to support his parents. She remarked that the difficulty was not that there were particular incidents of the appellant’s absence causing “significant impacts” on the unit’s operations, but rather his absence led to a greater workload for other staff members.

IC Power found that the respondent’s reasons for this decision demonstrated his consideration of the appellant’s personal circumstances, and held that the decision to approve only one day of working from home was reasonably open to the respondent.

In determining that the decision was not unreasonable, IC Power relied on the principles outlined by Ryan J in Gilmour v Waddell & Ors [2019] QSC 170 at [207]-[209], where it was held that:

“The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.”

IC Power did not consider that the decision lacked justification in the circumstances.

The decision appealed against was confirmed.

Key takeaways

Working from home is not an entitlement, but in deciding flexible and WFH arrangements, decision makers must deal with requests on a case-by-case basis, taking into account the personal circumstances of the employee and the burden this may pose on the employee’s colleagues.

Authors: Jackie Hamilton & James Phillips

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Human Rights and government decision making (11 October 2022)

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Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118
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Bills introduced by Government

Holidays and Other Legislation Amendment Bill 2022

Public Health and Other Legislation (COVID-19 Management) Amendment Bill 2022

Bills introduced by Private Member

Residential Tenancies and Rooming Accommodation (Rent Freeze) Amendment Bill 2022

Bills passed without amendment

Holidays and Other Legislation Amendment Bill 2022

Inspector of Detention Services Bill 2022

Transport Legislation (Road Safety and Other Matters) Amendment Bill 2022

Bills amended during passage

Acts assented to

Holidays and Other Legislation Amendment Act 2022 No. 20 - Assent 15 September 2022

Inspector of Detention Services Act 2022 No. 18 - Assent 7 September 2022

Transport Legislation (Road Safety and Other Matters) Amendment Act 2022 No. 19 - Assent 7 September 2022

Appropriation (Parliament) Act 2022 No. 15 - Assent 29 August 2022

Appropriation Act 2022 No. 16 - Assent 29 August 2022

Trading (Allowable Hours) and Other Legislation Amendment Act 2022 No. 17 - Assent 29 August 2022

Acts repealed

Appropriation (2020–2021) Act 2021

Appropriation (COVID-19) Act 2020

Appropriation (Parliament) (2020–2021) Act 2021

Appropriation (Parliament) Act 2020

Appropriation Act 2020

Subordinate legislation notified

Public Health (Further Extension of Declared Public Health Emergency—COVID-19) Regulation (No. 3) 2022

Transport Operations (Passenger Transport) Amendment Regulation 2022

Environmental Protection (Water and Wetland Biodiversity) Amendment Policy 2022

Land Title Regulation 2022

Major Events (Motor Racing Events) (Gold Coast 500) Amendment Regulation 2022

Nature Conservation (Protected Areas) Amendment Regulation 2022

Planning (Economic Support Instruments) Amendment Regulation 2022

Transport and Other Legislation Amendment Regulation (No. 3) 2022

Legal Profession (Australian Solicitors Conduct Rules) Notice 2022

Vegetation Management (Regional Ecosystems) Amendment Regulation 2022

Voluntary Assisted Dying Regulation 2022

Water Plan (Fitzroy Basin) Amendment Plan 2022

Energy and Water Ombudsman Regulation 2022

Status of Children Regulation 2022

Statutory Instruments Regulation 2022

Sugar Industry Regulation 2022

Subordinate legislation tabled

Energy and Water Ombudsman Regulation 2022

Evidence (Domestic Violence Proceedings) Amendment Regulation 2022

Geothermal Energy Regulation 2022

Guardianship and Administration Regulation 2022

Legal Profession (Australian Solicitors Conduct Rules) Notice 2022

Proclamation—Evidence and Other Legislation Amendment Act 2022 (commencing remaining provisions)

Status of Children Regulation 2022

Statutory Instruments Regulation 2022

Sugar Industry Regulation 2022

Taxation Administration Regulation 2022

Water Plan (Fitzroy Basin) (Postponement of Expiry) Notice 2022

Subordinate legislation repealed

Guardianship and Administration Regulation 2012

Legal Profession (Australian Solicitors Conduct Rules) Notice 2012

Status of Children Regulation 2012

Statutory Instruments Regulation 2012

Energy and Water Ombudsman Regulation 2007

Subordinate legislation expired

Forensic Disability Regulation 2011

Sugar Industry Regulation 2010

Commissions of Inquiry (Child Protection Inquiry—Evidence) Regulation 2012

Education and Care Services National Law (Queensland) Regulation 2011

Geothermal Energy Regulation 2012

Government Owned Corporations (NQBP Amalgamation) Regulation 2012

Taxation Administration Regulation 2012

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