FWC arbitrates dispute about a safety policy as a flexible work arrangement dispute

In Duong v DHL (2026), the Fair Work Commission (FWC) had to determine whether an employee’s request to be exempted from a policy that prohibited carrying a mobile telephone while at work was a flexible work arrangement request under the Fair Work Act 2009 (Cth) (FW Act).

Flexible work arrangement requests under the FW Act

The FW Act gives eligible employees a right to request a flexible work arrangement, that is, a change in their working arrangements relating to specified circumstances, e.g. having parental responsibilities. Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

The change the employee in this case requested was exemption from a workplace policy that prohibited employees from carrying their mobile phones on the work floor. The employee sought the exemption so he could receive calls from the school of his children or his wife (at which point, he would leave the work floor to take the call).

Is a phone prohibition a work arrangement?

The employer argued the right to request flexible work arrangements did not apply to incidental or other types of conditions, such as a qualification, a licence, a requirement to wear a uniform, or a term prohibiting the use or carrying of personal electronic devices.

However, the FWC, with some hesitation, ruled that the policy regarding mobile phones was a safety arrangement, which was sufficiently connected to work to be a work arrangement.

The FWC accepted there was sufficient nexus between the employee’s request to carry his personal mobile telephone with him and his parental responsibilities to allow the FWC to arbitrate the dispute.

Was the request refused on reasonable business grounds?

The FWC ruled the reasons for refusal to exempt the employee from the policy were reasonable measures aimed at reducing the risk of injury within the workplace and the request was refused on reasonable business grounds.

The prohibition on carrying mobile telephones reduces or eliminates a known risk – namely the risk of distraction – in a work environment otherwise attended by the operation of machinery that could cause serious injury or damage in the event of distraction. The employee argued there were no incidents in the 3 years where he carried his telephone. However, the FWC declined to substitute its assessment of what risks should be acceptable to the employer.

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