Flexible working arrangement requests are often thought of as requests to change an employee’s hours, work pattern or place of work. Settled work health and safety controls may now be reviewed as part of such requests.
The Fair Work Commission (FWC) has just handed down a decision, indicating that the concept of a change to an employee’s “working arrangements” may extend to considering the compromise of work health and safety measures, beyond the traditional examples of changes to hours, patterns and locations of work.
The decision concerned an application under s 65B of the Fair Work Act 2009 (Cth) regarding a dispute about a request for flexible working arrangements.
In this case, the FWC found that an employee’s request for an exception to a workplace policy was a request for a flexible working arrangement under the Fair Work Act 2009 (Cth) (FW Act).
What is a flexible working arrangement?
Flexible working arrangements refer to changes in an employee’s standard working arrangement, in accordance with the rules in the FW Act.
For a refresher about these requests, who is eligible to make them and the process for responding, see our earlier article: How to Legally Manage a Flexible Work Request in Australia: Recent FWC Case Lessons.
The One Minute Briefing:
DHL has a WHS Policy prohibiting carrying and use of personal mobile phones in safety critical working zones (Mobile Phone Prohibition).
An employee submitted a request for an exception to the Mobile Phone Prohibition on basis that:
he was entitled to make such a request as a parent of a school aged child (Flexible Request Threshold); and
he needed to be ‘on call’ for his child who suffered from a serious medical condition (Flexible Work Compromise Request).
DHL declined the Flexible Work Compromise Request on the basis that it was not able to accommodate the compromise on safety grounds and was a reasonable business ground (Safety Reasonable Business Ground).
The FWC Found:
DHL was obliged to consider the Flexible Work Compromise Request as the employee met the Flexible Request Threshold; and
DHL was entitled to decline the Flexible Work Compromise Request based on the Safety Reasonable Business Ground.
The employee was represented by the United Workers’ Union.
What happened?
In Thanh Long Duong v DHL Supply Chain (Australia) Pty Ltd [2026] FWC 2799, an employee sought an exemption from DHL's electronic devices policy to allow him to carry his personal mobile phone while working in a warehouse.
The policy prohibited employees from carrying personal mobile phones in operational areas of the workplace.
The employee argued that access to his phone was necessary because he had caring responsibilities for his children, who suffered from serious medical conditions (severe asthma and anaphylaxis).
DHL declined the employee’s request on workplace safety grounds. It maintained that the prohibition on employees carrying personal mobile phones formed part of its broader safety framework and was designed to minimise distractions in a dangerous environment. DHL also identified alternative mechanisms through which the employee could be contacted while at work.
The employee took the refusal of his flexible working arrangement request to the FWC.
What did the FWC decide?
Although the FWC (single member decision by Deputy President Bell) ultimately upheld DHL’s decision to refuse Mr Duong’s request on reasonable business grounds, the decision is significant because of what it says about the scope of matters these requests can be made about.
The FWC found that Mr Duong’s request for an exception to the policy concerned a change to his “working arrangements” under the FW Act.
While the request sought an exception to DHL’s mobile phone policy, that policy regulated what Mr Duong could carry while safely undertaking his duties in the warehouse’s operational area. Deputy President Bell found that the policy was sufficiently connected to the performance of his work to fall within the meaning of “working arrangement”, and therefore the flexible working arrangement request framework.
This confirms that changes to an employee’s “working arrangements” may not be confined to the usual examples of changes to their hours, work patterns and work location. Depending on the circumstances, a request for an exemption from a workplace policy may also be a flexible work request where the policy affects how work is performed.
Reminder: Exception sought must be connected to basis for the flexible working request
In this case the employee made the request for an exception to the policy on the basis that he was a parent of a child who is of school age. Put another way, his status as a parent was the employee’s qualifying circumstances to make the request under the FW Act framework.
Deputy President Bell expressed doubt about whether the change requested by the employee was sufficiently connected to his qualifying circumstances. The Deputy President considered the facts of the matter, including that the employee’s wife would receive calls from the school without restriction, that the employee was not providing medical care by telephone and the medical evidence that had been filed in the proceeding about the rationale for the employee needing to carry his phone.
Although it was not necessary for the FWC to determine this point, these comments are a helpful reminder about what the FWC will consider when determining these disputes, and that a sufficient connection is vital.
Key takeaways for employers
This decision is an important reminder about the breadth of the types of requests that can enliven the flexible working arrangement framework, and the potential consequences that may flow from adopting too narrow a view.
Businesses should consider updating any relevant policies and training for Managers or other employees who are responsible for considering these requests to ensure that they are aware just how broad these requests can be, and that although a request may not look like a “traditional” flexible work request, they should consider whether it is a request to change a “working arrangement”.
Failure to keep an open mind about this is essential because the failure to recognise when a request has been made may result in non-compliance with the timeframes and other criteria for a response to these requests set out in the FW Act and potentially mean the employee can file a dispute in the FWC.
If your organisation is reviewing a flexible work request, workplace policy or the processes used by managers to assess these requests, Contact Joe Murphy or Caroline Beasley from our Employment team to help ensure your approach is practical, compliant and appropriately balances employee circumstances with legitimate business and safety considerations.
Joe Murphy and Caroline Beasley wish to thank Lara Roets for her contribution to this insight.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.