In the last financial year, the Fair Work Commission received over 300 flexible working arrangement disputes. The Commission has been empowered to deal with such disputes since June 2023 under the Fair Work Act 2009 (Cth) (the Act).
Whilst the majority of these disputes were resolved through conciliation conferences, the Commission’s decisions on matters resolved through arbitration have provided useful guidance for employers as to how they must respond to a flexible work request, what must be considered when assessing a request, and what the Commission will accept as “reasonable business grounds” for refusing a flexible work request. The Commission’s decisions have also clarified when a flexible work request is validly made by an employee.
Making a flexible work request
Under the Act, permanent employees can request flexible working arrangements if they’ve worked with the same employer for at least 12 months and they:
- Are the parent, or have responsibility for the care, of a child who is school aged or younger
- Are a carer (under the Carer Recognition Act 2010)
- Are a person with disability
- Are 55 or older
- Are pregnant
- Are experiencing family and domestic violence, or
- Provide care or support to an immediate family or household member who is experiencing family and domestic violence.
Casual employees in the categories above who have worked with an employer for at least 12 months on a regular basis (and who have a reasonable expectation of continuing work on a regular and systematic basis) are also eligible to request flexible working arrangements.
Requests for flexible working arrangements must be in writing, explain what changes are being asked for and explain the reasons for the requested changes. Employees may seek flexible working arrangements to adjust their hours of work, their location of work or their starting or finishing times.
However, recent decisions from the Commission have emphasised that an employee will not have made a valid flexible work request purely because they are eligible to make a request by virtue of being within one of the categories above. The Commission has clarified that the relevant circumstance which makes an employee eligible to request flexible working arrangements (for example, the employee is over 55 years of age) must also be the reason the employee requires the requested arrangements. That is, there must be a nexus between the employee’s circumstances and the arrangements they have requested.
This point was highlighted in the decision of Tracey Smith v Costco Wholesale Australia Pty Ltd [2025] FWC 2691, in which the Commission found there was no nexus between Ms Smith being over 55 years of age and her request for a compressed working week. On this basis, Ms Smith’s flexible work request was invalid, and her employer was not required to consider or respond to it in accordance with the Act.
Responding to a request
When an employee makes a valid flexible work request, there are a number of procedural steps an employer must take before a formal response may be provided to comply with the Act. These include to discuss the request with the employee, genuinely try to reach agreement with the employee and, if the arrangements can’t be accommodated, suggest alternative arrangements which could be.
In addition to these matters, employers must consider the consequences of refusal for the employee when assessing a flexible work request. If an employer fails to complete this step (or any other procedural step), it will not be entitled to refuse requested arrangements.
The recent decision of Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82 clarified the importance of these procedural obligations, determining that Ms Naden’s employer had not been entitled to refuse her flexible work request on the basis that it had failed to consider the consequences of refusal on her. As a result of the employer’s failure, the Commission found it was irrelevant whether her employer had reasonable business grounds to refuse her request and granted Ms Naden’s flexible work request.
After all procedural steps have been complied with, an employer may only refuse a flexible work request on “reasonable business grounds”. The employer’s response either approving or refusing the request must be in writing and provided to the employee within 21 days of the request.
Reasonable business grounds
Under the Act, reasonable business grounds to refuse a flexible working arrangements request can include:
- the requested arrangements are too costly
- other employees’ working arrangements can’t be changed to accommodate the request
- it would be impractical to change other employees’ working arrangements or hire new employees to accommodate the request
- the request:
- is likely to result in a significant loss in efficiency or productivity, or
- would have a significant negative impact on customer service.
This list of examples is not exhaustive, and it is possible that other circumstances could constitute reasonable business grounds. However, decisions from the Commission have indicated that its consideration of what constitutes reasonable business grounds will be focused on matters which impact the employer’s productivity, efficiency and costs. Specifically, the Commission has suggested that the mere preference of the employer, for example a preference that employees work from the office rather than remotely, will generally not constitute reasonable business grounds for refusal.
Further, in the decision of Paper Australia Pty Ltd Trading AS Opal Australian Paper v Anthony May [2025] FWCFB 224, the Commission found that requested flexible workings arrangements being inconsistent with the terms of the employer’s enterprise agreement did not constitute reasonable business grounds to refuse the request. Similarly, in Kent Aoyama v FLSA Holdings Pty Ltd [2025] FWC 524¸ the Commission determined that purely because an employee’s flexible working arrangements would be inconsistent with certain terms of his employment agreement, this was not reasonable business grounds to refuse the requested arrangements.
Key takeaways
With the enhancement of the flexible working arrangements legislation in mid-2023 – which brought in new obligations for employers – and the new powers of the Fair Work Commission to deal with flexible working arrangement disputes, it is now more important than ever for employers to ensure they are considering and responding to flexible work requests in a compliant manner.
In light of this, employers should take care, upon receiving a flexible work request, to:
- Consider the request closely to determine if there is a nexus between the circumstances which make the employee eligible to submit a flexible work request and the requested arrangements.
- Complete all procedural steps, including to consider the consequences of refusing the requested arrangements on the employee, before responding to a request.
- Ensure, if refusing a request, that the grounds for refusal constitute reasonable business grounds.
If you would like assistance with navigating flexible working requests, please contact our team today.
