What if a flexible work request is based on preference rather than a genuine need? A recent FWC case offers important lessons for employers on balancing legal obligations, business needs and employee expectations.

A recent ruling by the Fair Work Commission (FWC) has clarified the legal line between flexible work as a preference and flexible work as a necessity.

In this case, a technical specialist at a software company requested to work from home two days per week to help manage his responsibilities as a parent of school-aged children. The company had recently withdrawn the hybrid model his team previously used, reinstating full-time office attendance.

The employer told him his request could not be accommodated, but offered to compromise by allowing him to work from home one day per week. After refusing this offer, the employee submitted the case to the FWC for arbitration.

The FWC ultimately backed the employer’s refusal after finding the employee was not legally entitled to make the request. 

Given that the FWC’s power to arbitrate flexible work disputes is relatively new, this ruling is an important lesson on how the commission approaches these matters under the current legal framework, says employment lawyer Chris Hill, Principal at Onside Law.

“There are two broad questions that the FWC looked at, which were: was the employee eligible to make a request? And did the employer have reasonable business grounds to say no?”

“Importantly, the FWC seemed to accept the idea that just because remote work happened during COVID and for some time after, that doesn’t mean it has to continue – employers are entitled to make a change.”

When are employees eligible to make a flexible work request?

The crux of the FWC’s decision in this case was that the employee failed to show a clear connection between his flexible work request and his caring responsibilities.

In response to a request to provide full details of his circumstances, the employee simply wrote, ‘[I] would like to retain the pattern that I’ve been on since offices reopened after COVID,’ and did not provide information about any caring duties that he would struggle to maintain if he was required to work from the office.

Under legislation introduced in June 2023, certain employees are entitled to request flexible working arrangements and challenge refusals through the FWC. These entitlements currently only apply to employees who are:

• Over 55
• Living with a disability
• Pregnant
• The parent or has caring responsibilities for infants or school-aged children
• Carers (within the meaning of the Carer Recognition Act 2010), or
• Experiencing family and domestic violence, or caring for someone who is.

That said, recent AHRI research found almost half (48 per cent) of HR practitioners and business leaders surveyed would like to see the right to request flexible working extended to all employees immediately. Just under a third (30 per cent) support the policy, but not before 2027.

Although the employee in this case is the parent of two school-aged children, his request fell at the first hurdle by failing to demonstrate a genuine need to work two days per week remotely.

“He conceded in cross-examination by the lawyer representing the company that he actually wasn’t caring for children between the hours of nine and five, and that he and his wife were able to manage school dropoffs and pickups with the existing flexibility they had,” says Hill.

“If he’d been able to show evidence that he did have a caring responsibility for the children between nine and five, maybe he would have cleared that hurdle… but the FWC didn’t have to go that far [to determine he was not eligible].”

Instead, the FWC supported the employer’s argument that the request was based on “convenience rather than genuine necessity”, and reiterated that a “preference” for remote working is not enough to compel an employer to grant a request.

“If you refuse a request, and the employee litigates it, it’s probably not enough to say, ‘We think it will have an impact.’ If you’ve got evidence and data, that’s going to go a long way.” – Chris Hill, Principal, Onside Law

When is a refusal justified?

The employer in this case followed a clear process and attempted to find a middle ground with the employee.

“As an employer, you can only refuse a flexible work request if you’ve discussed it with them, and you’ve genuinely tried to reach an agreement with them,” says Hill.

This doesn’t mean employers are obliged to offer different work arrangements to reach a compromise, as the employer did in this case. However, if the case goes to the FWC, making an offer like this will help employers prove they have tried to find a middle ground, he says.

“What the legislation is trying to do is influence employers to proactively think about these requests, instead of just saying ‘Computer says no,’” he says. “And the commission is going to take that into account when working out if it’s a genuine refusal.”

The employer in this case also presented clear business grounds for its decision. It cited internal survey results showing a 28 per cent drop in customer satisfaction under the previous hybrid model, and emphasised the value of face-to-face collaboration for knowledge sharing and mentoring among the employee’s team. 

“This is a really good lesson for employers – if you refuse a request, and the employee litigates it, it’s probably not enough to say, ‘We think it will have an impact.’ If you’ve got evidence and data, that’s going to go a long way,” he says.

Crucially, the employer also met its legal requirement to respond to the request within 21 days with a clear written explanation.

As well as adhering to this time limit, there are some critical requirements employers need to meet when formally declining a flexible work request, says Hill.

“It needs to state that you’re refusing the request, and include details of the reasons, including the reasonable business grounds and how they link to the employee’s specific request and circumstances. 

“You also have to tell the employee they can apply to get this arbitrated by the Fair Work Commission – you actually have to proactively tell them of their rights. This is a point that employers can sometimes miss.” 

Finding the balance between employee and business needs

As expectations around flexibility continue to shift, employers are increasingly facing the difficult task of weighing employee needs against operational requirements. Getting that balance wrong can have a lasting impact not only on compliance, but on trust and workplace culture.

“It’s not like an unfair dismissal, where the employee has left – the employer still has to deal with the aftermath,” says Hill.

HR practitioners are well-versed in connecting workforce strategy to business objectives, and therefore play a key role in guiding discussions around flexible work requests.

“Sometimes that could come from a discussion where the business says, ‘We just want everyone in the office.’ In that case, HR needs to say, ‘We need to be able to say why that is, because now, the employee can apply to the FWC, and it is also best practice,’” he says.

Without being intrusive, it’s important to understand the employee’s personal circumstances and why they are making the request, he adds. This will help the business determine whether there is a reasonable middle ground before a dispute escalates to the FWC.

“I feel that part of the intent of the legislature is that in those discussions, it might just get worked out between the two parties,” says Hill.

But when those conversations don’t happen, or aren’t handled carefully, the consequences can extend well beyond the impact of the original request.

“This case is just another example of how, with these changes, an external party like the Fair Work Commission can now put a lens over what you’ve done as an employer,” says Hill. 

“These cases are publicly reportable and newsworthy. You’ll see headlines like ‘Worker barred from working from home’ in the mainstream press. That’s a big shift. 

“We have an open justice system, but previously, some flexible work matters would have stayed in-house. Now, there is more transparency.”

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