UNSW Employee Loses Bid for Full-Time Remote Work After Fair Work Commission Ruling
A mother has lost her legal bid to work from home full-time after the Fair Work Commission ruled against her request to relocate to Queensland while maintaining her position at the University of New South Wales.
Flexible Working Request Denied
Kellie Fitzpatrick, an employee at the University of New South Wales, had sought to change her existing flexible working arrangement to allow full-time remote work. She was already on a three-day working week and only required to attend the Sydney campus once weekly, which accommodated her childcare responsibilities for her young child.
Ms Fitzpatrick argued that if her family moved to Queensland to support her partner's significant job opportunity, but she still needed to travel to Sydney one day per week, she would be unable to care for her child on those travel days. She brought her case before the Fair Work Commission seeking approval for permanent remote work.
Commissioner's Ruling
Fair Work Commissioner Sarah McKinnon delivered her decision on Monday, stating that UNSW was not obligated to approve the request. The Commissioner determined that Ms Fitzpatrick's reasons were more focused on supporting her partner's career and improving the family's financial position rather than being primarily about childcare needs.
Ms Fitzpatrick wants, but is not required, to move to Queensland to support her partner's health and career while also improving the family's financial position, Commissioner McKinnon stated. Her reasons are understandable, but they are not circumstances of the kind that engage the right to request under section 65.
Legal Framework for Flexible Work
Under section 65A of the Fair Work Act, employees with at least 12 months of service can request flexible working arrangements if they meet specific eligibility criteria. These include being a parent of a child, a carer, pregnant, over 55 years old, or living with a disability.
The Commissioner noted several uncertainties in Ms Fitzpatrick's case, including the lack of definite plans for the Queensland move, unclear childcare arrangements, and timing issues. The request could not have been made because of circumstances that did not yet exist, Commissioner McKinnon explained.
Contrasting Precedent
This dismissal contrasts with last year's landmark case where Sydney mother Karlene Chandler won the right to work from home in a dispute with Westpac. Ms Chandler, mother of six-year-old twins, successfully argued that working from her Wilton home would help manage school pick-ups and drop-offs while avoiding a two-hour commute in the opposite direction from her children's school.
That decision was hailed as a major victory for working parents and was expected to set an important precedent for future flexible-work disputes. The Commission made clear in that ruling that employers cannot simply dismiss such requests without proper consideration.
Increasing Flexible Work Requests
Australian Business Lawyers and Advisors director Julian Arndt has observed a rise in both the number and creativity of flexible working requests. He attributes part of this trend to people using tools like ChatGPT to formulate more ambitious proposals.
Mr Arndt noted that many employers fail to understand the breadth of employee rights under section 65 of the Fair Work Act, which covers a huge proportion of the employee population. He predicts that Fair Work Commission applications regarding flexible work arrangements will vastly increase as awareness of these rights grows.
The Fitzpatrick case highlights the ongoing tension between employee desires for greater flexibility and employer needs, while clarifying that not all personal circumstances qualify for protected flexible work requests under current Australian law.
