Flexible working arrangements
Under the Fair Work Act 2009 (Cth), an employee is eligible to request a flexible working arrangement (FWA) if they have completed at least 12 months of continuous service with their employer and meet one of the following criteria:
- are pregnant
- are the parent, or someone with the responsibility for the care, of a child who is of school age or younger
- are a carer
- have a disability
- are 55 or older
- are experiencing family and domestic violence
- provide care or support to a member of their immediate family, or a member of their household, who requires care or support because they are experiencing family and domestic violence.
Examples of arrangements that employees may request include changes to their working location, a reduction in their working hours or days, or changes to their rostering arrangements. However, an employee is not limited in the type of FWA that they may request.
Employers can refuse a request for an FWA if the refusal meets the following criteria:
- the employer has discussed the request with the employee and genuinely tried to reach an agreement with them about making changes to their working arrangements to accommodate their circumstances
- the employer and employee have not reached an agreement
- the employer has had regard to the consequences of the refusal for the employee
- the refusal is on reasonable business grounds.
A refusal must be given to the employee in writing within 21 days of the request being made.
The Fair Work Commission is beginning to hear more disputes between employers and employees regarding FWAs. The following cases provide important lessons for employers.
Request for three-day week following return from parental leave
In the case of Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82, Ms Naden was employed as a teacher and a religious education coordinator at Sacred Heart Primary School. Following a period of parental leave, the employee made a request for an FWA. The employee wanted to return to work on a three-day per week basis for the first two terms of the school year to facilitate the care of her child.
Following discussions with the employee, the School refused the FWA request. The School was willing to allow the employee return to her teacher role on a part-time basis. However, the religious education coordinator role was an executive role and the School considered that it would not be in the best interests of students for the employee to return to this position on a part-time basis.
The employee commenced proceedings in the Commission over the School's refusal of her FWA request.
The Commission considered that an employer can only refuse an employee's FWA request if all of the requirements in the Fair Work Act are met. Here, the employee and the School had been unable to reach an agreement following genuine discussions regarding the FWA request. The first two requirements had therefore been met.
However, under the Act, there is a positive obligation on the employer to consider the consequences of a refusal on the employee. It is expected that the employer will discuss these consequences with the employee during the consultation process and in any written reasons.
In giving written reasons for a refusal, employers are required to provide details of the reasons. The Commission found that this includes not only that the employer had regard to the consequences of the refusal for the employee, but also how it has had regard to those matters.
The School did not give consideration to the consequences of the refusal for the employee. The employee had raised with the School that she wished to maintain the religious education coordinator position and that a refusal of this request would have financial consequences for her. The School was aware of the consequences of a refusal but did not adequately discuss these consequences with the employee and did not refer to these consequences in its written response.
In this case, it was irrelevant whether or not the School had reasonable business grounds to refuse the FWA request. As the requirement to consider the consequences of the refusal was not met, the School could not refuse the employee's request.
The Commission made an order requiring the School to implement the FWA in accordance with the employee's request.
Request for change to working location
In the case of Kent Aoyama v FLSA Holdings Pty Ltd [2025] FWC 524, Mr Aoyama was a full-time employee of Frontier Logistics. He had a one-year-old child and worked from home two days a week to assist with their care.
Following a transfer of business, the employee was required to submit a formal request for an FWA. The proposed arrangement involved the employee working in the office five days a fortnight and the remaining five days either from home or at 'Bubbadesk', a combined shared workspace and childcare centre. This proposed arrangement would last for nine months.
The employer did not agree to this request. The employer's basis for the refusal included the need for the employee to be responsive to customers during business hours and the potential negative customer perception associated with this arrangement. The employer was also concerned that granting the request for the FWA could set a precedent across its business. However, it was willing to allow the employee to work from home two days per week for six months on a trial basis.
The employee applied to the Commission for an order requiring the employer to grant his request for an FWA.
The Commission considered that the purpose of an FWA is to accommodate the circumstances of an individual employee where their employer is in position to do so. To fulfil this objective, a departure from the terms of an employment contract may be necessary. In this case, it was irrelevant that the employee's employment contract specified that his usual place of work was the employer's office, and this was no bar to the employer allowing him to work under a working-from-home arrangement.
The employer was also unable to demonstrate that the employee's current working-from-home arrangement had a negative effect on customer service or business productivity. The Commission was not satisfied that granting the employee's FWA request would affect his ability to provide efficient and productive work.
The Commission further stated that it would place no weight on the employer's submission that granting the request would create a precedent for other employees. It considered that the purpose of FWAs is to accommodate the circumstances of individual employees and that it would not refuse a request simply because it may alert other employees to their rights to request an FWA.
The Commission was satisfied that the employer did not have reasonable business grounds to refuse the employee's request and issued an order requiring the employer to grant the employee's FWA request.
Request to work entirely from home
In the case of Application by an Employee for Flexible Work Arrangements [2025] FWC 1125, the employee was employed as a provisional psychologist. The employer provided psychology and workplace rehabilitation services and was based in Darwin.
The employee took a period of leave from work and relocated with her child from Darwin to Sydney as she was experiencing family and domestic violence.
The employee submitted a request for an FWA on the basis that she had been experiencing family and domestic violence and that she had the sole caring responsibility for her child. The FWA would allow her to work entirely from home by performing telehealth therapy sessions with clients by Zoom. The employee's hours of work would not change under this proposed arrangement.
Following discussions between the employer and the employee, the employer denied the request on the basis that there was a low demand for telehealth services and that the requested arrangement would place an unsustainable financial burden on the business. The employee commenced proceedings in the Commission.
The Commission accepted that there would be a negative effect on the quality of services delivered by the employer if the employee did commence working remotely, and that there are limitations on the issues that can be dealt with in the context of mental health care through telehealth. As a result, there was insufficient demand in the employer's business for telehealth services that would allow the employee to work according to the requested arrangement.
Further, any alternative work that the employee could perform instead of providing therapy services were primarily administrative in nature and were not revenue generating. This would be a fundamental change in the nature of the employee's employment as they were employed to generate revenue for the business. The employer was also a small business and there would be a negative financial effect on its business if it supported the employee's request and recruited another employee to take over their in-person work.
The Commission found that the employer did have reasonable business grounds to refuse the employee's FWA request.
Conclusion
These cases provide the following key lessons for employers responding to requests for FWAs:
- When consulting with an employee regarding an FWA request, there is a positive obligation to consider the consequences for the employee of a refusal and to discuss these consequences with the employee.
- If an FWA request is refused, the written reasons for refusal need to include that the employer has had regard to the consequences of the refusal for the employee and how it has had regard to those consequences.
- An employer can generally not rely on 'setting a precedent' for other employees as a reason to refuse an FWA request as an FWA is designed to accommodate the individual needs of an employee.
- If an employer is proposing to refuse an employee's request on the basis of reduced productivity or performance, they will need to show how the proposed arrangement will have this effect.
- An employer will be more likely to have reasonable business grounds to refuse an FWA request if:
- the requested arrangement would require a fundamental change to the employee's role
- they can demonstrate that granting the request would negatively affect the quality of services provided and the financial position of the business.
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