A recent decision of the Fair Work Commission (FWC) has sounded a loud alarm bell for employers required to respond to flexible work requests of their employees.
As most readers will likely be aware, under the National Employment Standards (NES), certain employees have the right to request flexible working arrangements.
Eligible employees who have been employed for at least 12 months (casual employees must be regular and systematic) can formally request changes to their working arrangements if they fall into one of the qualifying categories, which include them:
- being a parent, or having responsibility for the care, of a child who is of school age or younger
- being a carer (under the Carer Recognition Act 2010)
- being a person with disability
- being aged 55 years or more
- being pregnant
- experiencing family and domestic violence, or
- providing care or support to an immediate family or household member who is experiencing family and domestic violence.
Changes that an eligible employee can request might include arrangements such as:
- Different start and finish times
- Working from home
- Part-time work
- Job sharing
Importantly:
- The request must be made in writing by the employee and explain the reasons for the change.
- Employers must consult and respond in writing to such requests within 21 days.
- Employer refusals to such requests can only be based upon reasonable business grounds, and the response must clearly set out those reasons.
The recent decision from the Full Bench of the FWC has highlighted the critical need for employers to carefully handle flexible work requests in accordance with legislative requirements.
The Case
The case involved a teacher at a primary school who fitted into one of the qualifying categories and hence had the right to formally request changes to her working arrangements. The employer refused the request on reasonable business grounds.
While the FWC found that the employer had valid grounds on which to refuse the employee’s request to return to work part-time after parental leave, the Full Bench of the Commission ultimately overturned the employer’s decision because they did not follow the correct process when considering the request.
What went wrong?
- The school took 82 days to respond to the employee’s request instead of the required 21 days.
- More critically, the school did not appear to consider the impact that their refusal would have on the employee, and failed to address this matter in its written response to the employee.
- The Full Bench said this failure meant the school didn’t meet the legal rules for refusing the request.
What are the key lessons in this case?
Even if you have valid business reasons for refusing a request, if you don’t handle the request properly, you could lose the right to refuse it.
The Fair Work Act requirements are clear – if an eligible employee makes a formal flexible working request, you must:
- Discuss the request with the employee.
- Genuinely try to reach an agreement, including considering alternatives if you cannot agree to their initial request.
- Consider the impact on the employee of rejecting a request.
- Have reasonable and genuine business grounds for refusing any request.
- Respond in writing within 21 days, clearly explaining your reasons and outlining that you have consulted with the employee, considered alternatives and also considered the potential impact of refusal upon the employee.
You can check out the full process requirements on the Fair Work Ombudsman’s website.
What this means for your business
- Don’t delay — act quickly when you receive a flexible work request.
- Ensure you have genuine business reasons for any refusal.
- Follow the process carefully (including consulting with the employee, considering alternatives and the potential impact of a refusal etc..), even if you plan to say no.
- Document everything — discussions, considerations, and the final decision.
- Seek advice early if you’re unsure.
As we can see by the case highlighted, getting the process wrong can mean you lose control of the decision — even if your business reasons are solid.
Case reference: Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82.
This is general information which we believe to be correct at the time of posting. Information provided must not be considered complete, professional or legal advice. If you’re an employer and need support that takes into account your particular circumstances, please contact us directly.
