The Fair Work Commission (FWC) has the power to arbitrate over flexible work arrangements (FWA) if employers and employees cannot agree. In the decision of Quirke v BSR Australia Ltd [2023], the FWC exercised its powers in respect of an employer’s decision to reject an employee’s request for a FWA.

In that matter, the employee suffered from anxiety and depression alleged to have been contributed by their working hours. The employee was encouraged by their medical practitioner to seek FWA in respect of their hours. However, the FWC declined to deal with the dispute because the employee:

(a) Has not been employed with the employer for more than 12 months;

(b) Failed to outline the reasons for the change sought; and

(c) Made the request prior to the amendments to the Fair Work Act 2009 (Cth) (the Act) which granted the FWC powers to deal with the dispute.

Notwithstanding the FWC reasons to decline the request, it did confirm that a diagnosis of an anxiety-related mental disorder (in contrast to a natural response to stressors) could be grounds for a request for FWA.

In order for an employee to have sufficient grounds to request FWA relating to a mental health disorder, they must demonstrate that:

(a) They have received a formal diagnosis from a qualified medical practitioner; and

(b) The mental disorder limits their ability to perform their duties (e.g. limits their movements, activities and senses), to such extent that it is considered a disability under the Act.

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