Since 6 June 2023, the Fair Work Commission (FWC) has had the power to arbitrate disputes about employee requests for flexible work arrangements. The FWC recently issued a decision clarifying the operation of the new powers (Quirke v BSR Australia Ltd [2023]).

The decision concerned an employer’s rejection of an employee’s flexible work request.

The employee based the flexible work request on a disability related to anxiety and depression caused in part by her working hours. The employee had been encouraged by her general practitioner's recommendation to seek changes to her hours to improve her mental health.

After the employer refused the employee’s request for a flexible work arrangement, the dispute was referred to the FWC.

The FWC declined to deal with the dispute because:

• the employee had not been with her employer for 12 months of continuous service;
• the request did not outline the reasons for the change sought; and
• the request predated the 6 June 2023 amendments.

The FWC did confirm that a diagnosed anxiety-related mental disorder (as opposed to anxiety that is a natural or ordinary human response to particular circumstances) could provide grounds for a valid request for flexible work arrangements under the Fair Work Act 2009 (Cth) (FW Act). However, the employee struck out in her request because:

• the employee did not provide evidence of a formal diagnosis, and only relied on a mental health plan based on the results of a screening tool used by the employee’s general practitioner; and
• the employee failed to establish that the anxiety limited her movements, activities or senses, which is a critical factor for qualifying as a disability under the FW Act.