Fair Work Commission rejects employee’s flexible work request

One Minute Summary

After the employer had agreed to a short-term working from home arrangement the employee requested a second more substantial long-term arrangement. When the employer rejected this second request on business grounds, the employee lodge a flexible work dispute with the Fair Work Commission.
The Commission found the employee’s request was not valid as it did not meet the specific requirements under the Act.
The Commission found the employer had reasonable business grounds to deny the request as the most of the employee’s work (a Utility Trades Worker) required his physical presence on site. His absence from site at home would have required back filling at the site and additional costs.
There was a detailed discussion about whether the employer had formally responded within 21 days, however the Commission found this requirement had ultimately been met.

We regularly receive questions from employers as to how flexible they need to be when employees make flexible work requests. This includes whether the reasons provided by the employee are valid as well as what business grounds are sufficient to reject a request.

A recent Fair Work decision provides some useful pointers for employers in respect to both of these questions. The key questions addressed in this decision are:

Was the employee’s request valid and in line with the Fair Work parameters?
Did the employer have reasonable business grounds to reject the employee’s request?

In this matter Mr Hutchinson made his first request to his employer (Cleanco) to work from home every second week in September 2024 for about 8 weeks. This included working from home. This first request related helping his son who had Autism, Attention deficit/hyperactivity disorder and Anxiety, to settle into his new school. While it caused inconvenience and additional cost the employer agreed to the request because it was for a limited duration. During his time at home Mr Hutchinson reviewed policies and cleared up administrative backlog (document review) for his employer as well as attending video meetings from home.

In February 2025 Mr Hutchinson made his second request for working from home. This was to work from home one week a month for 10 months. He claimed he had a right to work from home because he had school age children.

The employer denied his request due to the inconvenience caused by Mr Hutchinson’s regular absence from site. Mr Hutchinson is employed as a Utility Trades Worker which largely requires his presence on the work site to carry out his duties. This included dam inspections, grounds maintenance, cleaning of screens and other onsite tasks as required. As a safety practice he often worked in isolated areas together with the second UTW. If Mr Hutchinson was absent from site they would need to backfill the second position (removing someone else from their normal duties) to ensure the second UTW employee was not working by themselves in isolation.

The employer proposed an alternative arrangement to Mr Hutchinson which included a combination of working from home (mush less frequently than Mr Hutchinson had requested) and the taking of accrued leave. Mr Hutchinson rejected the alternative and notified a working from home dispute with the Fair Work Commission.

Was the employee’s request validly made?

The Commission firstly examined the circumstances of Mr Hutchinson’s request in light of Section 65(1A) of the Fair Work Act which outlines when an employee is able to make a flexible work request. S65(1A)(a) states ‘the employee is a parent, or has the responsibility for the care, of a child who is school age or younger’.

The Deputy President stated ‘the pre-requisite which requires consideration in this case is whether the request for changed work arrangements is ‘because of’ the relevant circumstances in s.65(1A)’

While acknowledging he had school age children, and that his son had special needs, the Deputy President found that Mr Hutchinson’s request was not made because of his circumstances under s65(1A). ‘It’s not enough to simply have school age children and desire to spend more time with them during the working week…. The purpose of the flexible working arrangement provisions under the Act is not to promote a ‘work-life-balance’….’The employee must articulate how the FWA request is related to the specific needs of children’. The Applicant does not clearly articulate this nexus in his written material’.….he states ‘that his FWA would allow the Applicant to "support” his children’s needs. If there is a nexus it is very tenuous. The operative reason for the request instead…… the Applicant wants to spend more time in Townsville’ (with his daughter) This did not relate to his son’s special needs.

I sympathize with the Applicant’s desire to spend more time with his family, but this is not a relevant circumstance under s.65(1A).

Did the employer have Reasonable Business Grounds to reject the request?

The second part of the decision related whether the employer had reasonable business grounds to refuse Mr Hutchinson’s request.

Mr Hutchinson had argued that because the employer had previously agreed to a working from home arrangement this meant they could not deny his new (second) request on business grounds.

The Deputy President rejected this line of argument stating, ‘An employer may grant an FWA at one point in time and decide on reasonable business grounds, at a later point, not to grant an FWA’.

The Deputy President outlined the reasonable business grounds for rejecting a flexible work request in the Act (s65A(5)) as follows

that the new working arrangements requested would be too costly for the employer;
that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested
that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;
that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;
that the new working arrangements requested would be likely to have a significant negative impact on customer service

In addition, it was noted in the decision that the nature and size of the business are key factors in determining reasonable business grounds in relation to the above.

The Commission accepted the employer’s position that the nature of Mr Hutchinson’s role (80-85%) involved site-based tasks involving manual work. It also acknowledged that the isolated nature of some of work required alternative arrangements and backfill (with extra cost) to be organised on site when Mr Hutchinson was not present.

The Deputy President found the employer had reasonable business grounds for refusing the FWA. The Decision also states that the request made by Mr Hutchinson was not validly made – as outlined above. The flexible work dispute application made by Mr Hutchinson was dismissed.

Commentary

While the reasonable business grounds would have allowed the employer to legitimately deny the request the employee’s request was flawed. If the employee had outlined his request in a more considered/carefully word manner the Commission may have been more accommodating to his ‘needs’.

An important element discussed in this decision included whether the employer has responded to the employee’s request within 21 days. While the employer asked for more details from employee and made suggestions no formal response was provided. If employers do not provide a formal response within 21 days they run the risk of the Fair Work Commission finding in favour of the employee regardless of the facts.

In this matter it became obvious from the decision that the employee was quite ‘assertive’ in his ‘requests’ for flexible working. The employer was not reactive but provided a considered response including suggesting alternatives. While an employee can behave in such a manner an employer is likely to get criticised for using the same approach.

It’s important that employers implement a policy around working from home requests. Under such a policy an employee may be ‘granted’ the right to work from home and have it reviewed on a regular basis. Such guidelines will then reduce the risk of potential problems down the track where an employee has simply been allowed to work from home without any conditions. Once a such a right has been given it can be very difficult to remove it even if conditions change.

The Fair Work Commission is currently progressing a test case in the Clerks Private sector Award. A decision is likely in the first half of 2026. The union movement is seeking working from home as a right while employers want the facility to work from home by agreement.

Employers seeking guidance on a developing a flexible work / working from home policy or require assistance to responding to an employee’s request should contact Hunter Employee Relations.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au