Flexibility. The preference of many employees in a post pandemic world appears to be at the very least a ‘hybrid’ model of working – a mixture between work-from-home (or work-from-anywhere) and work from the office.
Over the last almost three years, employees have structured their lives in a way that the requirement to return to the office five days a week is inconvenient at best, and impossible at worst, particularly those now with childcare (or COVID pet care) responsibilities.
Post-pandemic, an employee’s right to request flexible working arrangements has never been so front of mind for employers that are wanting employees to return to the office more regularly.
Refusing an employee’s request is likely to become more technical for employers if the Government’s new Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Proposed Bill) passes into legislation.
If passed, the Proposed Bill, amongst many other proposed changes, will change an employer’s obligations upon receipt of an employee’s request for a flexible working arrangement, further strengthening and regulating employees’ rights in those circumstances. However the Proposed Bill will not become binding law until it passes through both Houses of Parliament, a process which will undoubtedly subject the Bill to a raft of amendments.
So, what legal obligations do employers have in relation to flexible working arrangements and what impact will the proposed changes have?
Employees with particular circumstances have a right to ask their employer for a flexible working arrangement.
The right falls under the national employment standards (NES) in the Fair Work Act 2009 (Cth) (FW Act), which are minimum standards of employment which an employer and employee cannot contract out of.
For example, an employee with the responsibility for the care of a child who is school age or younger has a right to request a flexible working arrangement from their employer, provided they have worked for the employer for at least 12 months.
Where an employee asks their employer to start and finish earlier each day because they have childcare obligations in the afternoon, that request would be for a flexible working arrangement.
Any request made by an employee, must be in writing setting out the details of the changes sought and the reasons for the change.
An employer must provide a written response to an employee’s request for a flexible working arrangement within 21 days, stating whether the employer grants or refuses the request.
An employer may only refuse a request on reasonable business grounds.
Currently, where an employer does refuse the request, the employer’s written response must include details of the reasons for the refusal.
The Government has previously argued that in refusing an employee’s flexible working arrangement request, employers currently have little obligation to make a genuine effort to find alternative arrangements.
The Proposed Bill introduces new requirements to attempt to cure that issue, by setting out that an employer must first discuss the request with an employee, and genuinely attempt to reach an agreement to accommodate the employees’ particular circumstances.
Where such an agreement cannot be reached, the employer must then have regard to the consequences of the refusal for the employee, in addition to having reasonable business grounds to refuse.
If the Proposed Bill is passed into legislation, where an employer does refuse a request on reasonable business grounds, it will have to include details of the refusal including setting out the particular business grounds for refusing the request and explaining how those grounds apply to the request.
The FW Act identifies, without limitation, some reasonable business grounds for refusing a request, including:
Although, where a request is refused by an employer, whether that refusal was based on reasonable business grounds will turn on the relevant facts and circumstances present at the time.
Currently, the Commission must not deal with an application to determine if an employer refused an employee’s request on reasonable business grounds unless the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the Commission dealing with the matter.
The Proposed Bill proposes to change that by granting the Commission power to arbitrate a dispute about an employer’s refusal, where conciliation fails, and make orders including an order that the employer grant the flexible working arrangement request.
Where a modern award or enterprise agreement applies, it may set out additional requirements for employers dealing with flexible working arrangement requests.
Many awards and enterprise agreements already include requirements that an employer consult with the employee, and genuinely try and reach agreement on a change that will reasonably accommodate the employee’s circumstances.
In a tight jobs market, being able to attract and retain good workers is critical for employers, and the ability to work flexibly is continuing to prove high on the list of priorities for employees.
As the impacts of the pandemic begin to recede in our rapidly recovering society, employers are now turning their minds to navigating the return to office process more permanently.
Employers seeking to improve employee connection, workplace culture and employee morale, are indicating a desire for employees to return to pre pandemic settings.
Although, for many employees, expectations about how and where work is performed has shifted, perhaps permanently.
In this current environment, where an employee requests a flexible working arrangement, and that request is refused, an employee may decide to seek more flexible employment elsewhere.
Most NES provisions of the FW Act are civil remedy provisions.
That means, for most breaches of the NES, there is a risk for employers that a court may, on application, order that the employer pay a penalty. The maximum penalty is currently $66,000 for a Company per breach.
Currently, under the FW Act such an order cannot be made for a contravention or alleged contravention of the provision that enables employers to refuse a flexible working arrangement request on reasonable business grounds.
The Proposed Bill proposes to change that by allowing for civil penalties to be imposed where employers are found to have failed to properly consider flexible working arrangement requests.
Modern Award or Enterprise Agreement compliance
Where a modern award or enterprise agreement applies, employers must be careful to strictly comply with relevant award provisions when assessing a flexible working arrangement, or they may face a dispute application at the Commission, and may also face an order to pay penalties for breaching the terms of the applicable modern award or enterprise agreement.
There is also a risk an employee may bring Commission proceedings against the employer, including unfair dismissal or general protections proceedings, subject to them being eligible to do so.
Additionally, employers should be aware of their obligations arising under anti-discrimination legislation when considering a flexible working arrangement request. The requirements and obligations under such legislation will differ from state to state but generally have the same essential protections.
An employee with particular circumstances that makes a flexible working arrangement request because of those circumstances, may be protected from unlawful discrimination.
For example, the Anti-Discrimination Act 1977 (NSW) provides that an employer must not discriminate against a person on the ground of the person’s carer responsibilities.
The Equal Opportunity Act 2010 (VIC) also provides, more specifically, that an employer must not, in relation to the work arrangements of a person offered employment, unreasonably refuse to accommodate the responsibilities that the person has as a parent or carer.
It is understandable that employers want to achieve some form of business normality after a long period of disruption.
However, employers seeking to return to pre pandemic settings, particularly in relation to employees returning to work from the office, might find some inertia from employees.
A tool an employee may use to avoid an employer’s direction to return to the office on a full-time basis, may be to request a flexible working arrangement.
Refusing such a request has potential risks for employers, both legal risks (which are likely to become more significant), as well as risks of losing good workers in a tight jobs market.
There is plenty to consider for employers when assessing whether to approve or refuse a request for a flexible working arrangement, and legal advice may be necessary.
If you require advice in navigating flexible working arrangements in a post pandemic world, our Employment, Workplace Relations, and Safety team at McCabes Lawyers can assist.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.