Contactable by Mobile for Medical Emergencies? Not at the Sake of Safety

There has been a sharp increase in the number of flexible working arrangement disputes.Since the Fair Work Act 2009 (Cth) (FW Act) was amended in late 2022, the Fair Work Commission has repeatedly been called in to determine whether employers have followed the statutory process in responding to these requests and decide whether refusals have been on reasonable business grounds.

Many of these cases have considered orthodox requests about matters such as working location or hours. Not so in Duong v DHL Supply Chain (Australia) Pty Ltd [2026] FWC 2799. In this case, an employee sought a flexible working arrangement to allow him to carry his mobile phone with him while at work. Although he was ultimately unsuccessful, the Commission accepted that this request was the kind that fell within the scope of the statutory regime.

Duong v DHL signals the Commission’s willingness to test the boundaries of the flexible working arrangement scheme, while providing guidance on how employers can mitigate the risk that a refusal could be overturned.

Mr Duong and his wife have two young children, both suffering from severe asthma and anaphylaxis. They occasionally require medical attention from a hospital.To coordinate care for his children, Mr Duong wanted to be able to take phone calls while at work in the event his children experienced a medical episode.

However, Mr Duong worked as a Storeworker at a warehouse operated by DHL. As is typical of this kind of work, there was a lot of manual handling by machinery like forklifts, reach trucks and pickers. People working on the warehouse floor were at risk of colliding with these machines. If they are distracted by their mobile phones, then that risk is even higher.

To mitigate against this risk, DHL banned mobile phone use when workers were in operational areas.This prohibition was set out in one of DHL’s safety policies.In preparing that policy, DHL kept a risk register setting out the likelihood of injury and its seriousness.Although the risk of collision was low, the consequence was thought to be major.

Several years into his employment, Mr Duong provided a medical certificate to DHL, one setting out his children’s medical condition and his doctor’s view that Mr Duong needed to be contactable by mobile phone. Mr Duong believed this was sufficient for him to have an exception to the policy and so carried his phone with him for years without incident.

This changed when DHL eventually enforced its policy and directed Mr Duong not to carry his mobile phone. Acknowledging his circumstances, DHL proposed an alternative: Mr Duong’s wife or his children’s school could contact DHL directly in the event of an emergency, and DHL would then contact Mr Duong if he were on the warehouse floor. Mr Duong did not agree, concerned the alternative would be unreliable.

The situation escalated when Mr Duong sought to formalise the arrangement by making a flexible working arrangement request to DHL.This was refused by DHL, who met with Mr Duong and explained its reasons for doing so.

With the parties unable to resolve the dispute between them, Mr Duong applied to the Commission seeking that his flexible working arrangements request be granted.

Out of the gate, DHL challenged whether the Request even fell within the scope of Mr Duong’s “working arrangements”. DHL argued that the phrase means “the way in which work is arranged and performed by that employee”. According to DHL, the question of mobile phone use while at work was not a matter the Commission could deal with.

In making this argument, DHL relied on an earlier decision that identified the kinds of matters that do fall within scope, being rosters, hours of work, shift arrangements, leave arrangements, location of work, job description, qualifications, skills, experience.[1] DHL’s position was that incidental issues — like what was being dealt with here — are not included.

Deputy President Bell disagreed. Recalling that the prohibition on carrying a mobile phone was due to underlying safety arrangements, this meant that the issue was sufficiently connected to Mr Duong’s work as to qualify as a “working arrangement”.

Satisfied that the matter was within scope, the Deputy President then considered whether the request should be granted.In doing so, the Deputy President found that:

• DHL had discussed the request and tried to reach agreement with Mr Duong, as required by section 65A(3)(a) of the FW Act (even though DHL had already decided to reject the request prior to the meeting);
• DHL genuinely considered the consequences of refusing the request as required by section 65A(3)(c) (as evidenced by the fact there had been conversations predating the formal request, and that DHL had proposed an alternative arrangement intended to accommodate Mr Duong’s circumstances); and
• the refusal was on reasonable business grounds within the meaning of s 65(3)(d) (specifically because the underlying policy was intended to meet DHL’s overarching duty to eliminate health and safety risks as far as reasonably practicable, and the prohibition on using mobile phones in an environment where distraction may result in injury was therefore reasonable).

The Deputy President dismissed Mr Duong’s application with some sharp concluding remarks.

I am persuaded that the reasons for refusal are soundly based, being as they were grounded in reasonable measures aimed at reducing the risk of injury within the workplace … the simple reality was that it was highly unlikely either party would agree even if further rounds of discussion ensued … For Mr Duong, nothing short of carrying his phone on him was acceptable … More tellingly, for DHL, its views on workplace safety meant it was always going to place a high premium on eliminating the risks of avoidable distractions on the busy warehouse floor and personal mobile devices were considered such a distraction.

• Document your safety rationale: A refusal on safety grounds should be supported by more than assertion. Ensure you have an established policy, a risk register entry identifying the relevant hazard, and where a specific request is made, a tailored risk assessment that considers the particular circumstances of the request. In Duong v DHL, the employer’s specific risk assessment (undertaken after the formal request) was a key factor in establishing reasonable business grounds.
• Engage genuinely with the request: Even if refusal is likely, employers must still discuss the request with the employee and genuinely try to reach an agreement about alternative accommodations. A meeting where the employer explains its position, listens to the employee’s circumstances, and explores alternatives (even if the outcome does not change) will likely satisfy the statutory requirements. A refusal delivered by letter alone, without any meeting, is unlikely to suffice.
• Offer workable alternatives: The Commission looked favourably on DHL’s alternative contact arrangements. Employers should identify and offer practical alternatives that accommodate the employee’s underlying needs even if those alternatives do not perfectly replicate what the employee has requested. This demonstrates genuine effort to accommodate and reduces the risk of an adverse finding on the “genuinely tried to reach agreement” limb.
• Treat all flexible work requests seriously: The jurisdictional scope of “working arrangements” remains unsettled. Until the Full Bench provides further guidance, employers should assume that any request framed under section 65, even one relating to incidental workplace conditions such as personal device policies, may engage the statutory framework. Following the full process protects the employer regardless of how the jurisdictional question is ultimately resolved.

References

[1] Transport Workers’ Union of Australia v Viva Energy Australia Ltd (2019) 289 IR 178, [2019] FWCFB 6212

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This article was co-authored by Kale Beale, Associate, in our Perth office.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation.

Photo by Taylor Grote on Unsplash