Welcome to the March 2023 HR Law Newsletter. 

This month we discuss policies and procedures, managing psychosocial risks in the workplace and flexible working arrangements.  We also discuss a case in which an employer was found to lack reasonable grounds for refusing a flexible work arrangement that was requested by an employee.

Policies and Procedures

Policies and procedures are essential to communicate an organisation’s values and expectations of their employees’ behaviours and performance in the workplace.  Well written policies can help employers manage their staff more effectively by clearly defining acceptable and unacceptable behaviour and setting out the implications of not complying with those policies.  In contrast, poorly written policies can see employers in trouble, especially where disciplinary action is taken against an employee.

In the recent case of Eptesam Al Bankani v Western Sydney Migrant Resource Centre Ltd [2023] FWC 557, the Fair Work Commission cautioned that “employer policy documents and manuals must be accessible, understandable and reasonable in their terms“. 

In this case, it was found that an employee was unfairly dismissed after she breached the organisation’s “long, complex and legalistic” policy manual.  The dismissal occurred after the employee had deleted data stored on a work-issued mobile phone.

 Deputy President Easton found that while erasing the contents of a work-issued device without authorisation provided a valid reason for dismissal, “if deleting information on a mobile phone was regarded … as serious misconduct, its stated policies should have unambiguously spelt out the requirements for retaining and preserving information held on mobile phones and the very serious consequences for not complying with those requirements”.

If you require any policies and procedures to be reviewed, or if you are looking to implement some in your workplace, contact HR Law for a quote.

Managing Psychosocial Risks in the Workplace

On 1 April 2023, a new Code of Practice (“the Code”) will be introduced in Queensland, which will expand the obligations owed by employers and other persons conducting a business or undertaking regarding managing the risks of psychosocial hazards at work.

Under the Work Health and Safety Act 2011 (Qld) (“WHS Act”), an employer has an obligation to provide a safe work environment.   The aim of the Code is to provide practical guidance on how employers can achieve the standards of health and safety required under the WHS Act and its Regulations.

The Code will apply to the performance of all work and to all workplaces covered by the WHS Act where there is a risk to health and safety from psychosocial hazards.

HR Law recently held a webinar to explain how these changes will impact employers and their obligations owed at law.  Click here for the recording.

Flexible Working Arrangements

From 6 June 2023, the Fair Work Act 2009 (Cth) will strengthen an employee’s right to request and negotiate flexible working arrangements (“FWA”) and to reduce the ability of employers to refuse such requests.  Notably, employers will have a positive obligation to discuss a request for FWA with an employee and once an employer receives a request, a response must be given in writing in 21 days.  The employer must respond by either:

  • accepting the request;
  • if this is not possible, proposing alternative arrangements; or
  • if this is not possible, refuse the request. If the request is refused, the reasons for this must be given in writing and be on “reasonable business grounds”.

An employee will also be able to make an application to the Commission to deal with any disputes. 


In light of these upcoming changes, this month’s case brief considers the Commission decision of Natasha Fyfe v Ambulance Victoria (C2022/3750).  Ms Fyfe (“the Applicant”) was a full-time Advance Life Support Ambulance Paramedic for Ambulance Victoria (“AV”).  The Applicant had made an application for flexibility in the nightshift portion of her roster. Specifically, she requested that her shifts start at 9.00pm instead of the usual 6.00pm and finish at 6.00am rather than 8.00am so she could care for her three children aged five years or younger whilst her partner was at work.

The Applicant’s request was rejected by AV because that night shift “doesn’t exist” and that the organisation was “currently not able to provide shift start and finish times outside the… Team roster configuration”.

The dispute was ultimately brought before the Commission pursuant to section 739 of the FW Act.  Commissioner Johns held that AV lacked reasonable grounds for refusing the flexible work arrangement under clause 23.4 of its Ambulance Victoria Enterprise Agreement 2020 (“the Agreement”), finding that “Ambulance Victoria acted unreasonably, and that unreasonableness infected its decision.”  In reaching their decision, Commissioner Johns accepted that clause 23 of the Agreement did “not contain the express reference to discussions and genuinely trying to reach agreement” with the Applicant.  However, Commissioner Johns found it “difficult to see how I can make a finding that Ambulance Victoria had reasonable (i.e. affected by reason and sound judgment) business grounds if it did not have a discussion with [the paramedic] and seek to reach an agreement with her“.

Practical implications for employers

This case highlights that employers must genuinely try to consider and accommodate their employee’s flexible working arrangement requests.   An employer’s obligations will become more burdensome come 6 June 2023, whereby employers will have a positive obligation to consult with employees to try to genuinely reach an agreement before refusing the flexible work arrangement request.  Now is the time for employers to update their policies to ensure their policies align with the criteria.   Employers should also have a procedure for considering and responding to requests.  If you would like assistance preparing for the upcoming changes to flexible work arrangements, contact the team at HR Law. 


HR Law will be hosting a Deep Dive Into Flexible Working Arrangements Webinar next week, at 10.00am on Wednesday, 5 April 2023.  During this Webinar, we will:

  • re-cap obligations for flexibility requests;
  • explain the new changes to the law;
  • explain the process for managing requests for flexibility;
  • explain the new powers of the Fair Work Commission; and
  • explain practical guidance on how to meet your legal obligations.

To find the details for the Webinar, click here.


Prohibition of Sexual Harassment in the Workplace Webinar

On 6 March 2023, changes from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) relating to the prohibition of sexual harassment in the workplace took effect.

HR Law recently held a Webinar to explain how these changes will impact employers and their obligations owed at law.  In the Webinar, it was explained:

  • the definition of sexual harassment at law;
  • the new changes to the law;
  • how they affect your obligations and risks as an employer; and
  • practical guidance on how to meet your legal obligations.

Click here for the recording.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.

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