Why are Flexible Working Arrangements increasingly a cause for concern for employers and their staff?
The COVID-19 pandemic normalised working from home, and many employees now view flexibility as an entitlement rather than an exception. As employers scale back remote work policies and require staff to return to the office, requests for Flexible Working Arrangements (FWAs) have increased significantly, and so have disputes about how those requests should be managed.
For employers, the stakes are high. FWAs must balance the circumstances of individual employees against the genuine operational needs of the business, and the Fair Work Commission is now handing down decisions that make clear what getting this wrong looks like in practice.
What is a Flexible Working Arrangement?
Under the National Employment Standards in the Fair Work Act 2009 (Cth) (FW Act), full-time, part-time and eligible casual employees have a statutory right to request an FWA.
A FWA is an agreement between an employer and employee to make permanent or temporary changes to working arrangements, such as:
- changes in hours, including adjusting start and finish times or a gradual increase or decrease.
- changes in work patterns, such as split shifts, job-sharing or transitioning to part-time or casual work.
- changes to the location of work, including working from home.
- purchasing extra paid leave or banking extra hours in exchange for time off
How does an employee request a valid FWA?
To make a valid FWA request, the employee must meet at least one of the following eligibility criteria under section 65(1A) of the FW Act:
- They are pregnant.
- They are a parent or have responsibility for the care of a child of school age or younger.
- They are a carer within the meaning of the Carer Recognition Act 2010 (Cth)
- They have a disability.
- They are aged 55 or older.
- They are experiencing family or domestic violence.
- They require care or support because they, or an immediate family or household member, are experiencing family or domestic violence.
The FW Act also provides for an employee's right to request return to work on a part-time basis following a period of parental leave.
What constitutes a valid FWA request?
In Quirke v BSR Australia Ltd [2023] FWCFB 209, the Full Bench confirmed that to make a valid FWA request, an employee must ensure that:
- At least one of the circumstances in section 65(1A) of the FW Act applies to them at the time the request is made.
- The request for changed arrangements is "because of" that relevant circumstance.
- They have completed a minimum of 12 months continuous service.
- The request is made in writing.
- The request sets out the details of the change sought and the reasons for it.
In Quirke, the employees’ request failed on multiple grounds. She had not completed 12 months of service at the time of the request, and her written request did not identify how the FWA related to a prescribed circumstance under section 65(1A). The Full Bench was clear that an employee cannot simply invoke a personal attribute and expect to work in a manner of their choosing.
How should a business respond to a valid FWA request?
Once a valid FWA request is received, the employer must respond in writing within 21 days. The employer may:
- Approve the request.
- Agree to an alternative arrangement following discussion with the employee.
- Refusing the request on reasonable business grounds
Critically, an employer cannot move straight to refusal. Before declining a request, the employer must genuinely attempt to reach agreement with the employee and consider alternative arrangements.
The importance of this consultation obligation was highlighted in the 2025 decision of Naden v Catholic Schools Broken Bay Limited [2025] FWCFB 82. In that case, the Full Bench overturned an initial decision that had found the employer had reasonable business grounds to refuse a part-time request for an executive role. Despite those grounds being accepted, the refusal was set aside because the employer had not properly consulted with the employee before refusing.
The Full Bench confirmed that a valid refusal requires the employer to have:
- Held genuine discussions with the employee and tried to reach agreement.
- Been unable to reach agreement through those discussions.
- Had regard to the consequences of the refusal for the employee.
- Refused on reasonable business grounds.
Because the employer's written response failed to address the reasons for refusal or its impact on the employee, the Full Bench ordered the employer to implement the FWA. The lesson is clear: even where reasonable business grounds exist, a failure to consult properly can be fatal to the refusal.
What are reasonable business grounds for refusing an FWA request?
Reasonable business grounds for refusing an FWA request may include:
- The arrangement would be too costly to implement.
- There is no capacity to change the arrangements of other employees to accommodate the request.
- It would be impractical to change working arrangements or recruit new employees to accommodate the request.
- It would likely result in significant loss of efficiency or productivity.
- It would likely have a significant negative impact on customer service.
However, these are starting points, not automatic justifications. The Commission assesses each case on its own facts and expects employers to demonstrate the actual impact on their specific business, not simply assert it.
In Gration v Bendigo Bank [2024] FWC 717, the Commission accepted that requiring office attendance enhanced learning and coaching, face-to-face communication, and employee wellbeing through social interaction. On that basis, the employer's refusal of a full-time work-from-home request was upheld as being on reasonable business grounds.
By contrast, in Paper Australia Pty Ltd trading as Opal Australian Paper v May [2025] FWCFB 224, the Full Bench confirmed that pointing to a roster clause in an enterprise agreement is not sufficient. The employer was required to explain the real and practical consequences to the business, not simply rely on the wording of the agreement. Unable to do so, the employer was ordered to grant the FWA.
This decision also confirms that an employee's right to request an FWA under the National Employment Standards will prevail over any conflicting terms in an award, enterprise agreement or employment contract.
What happens when an FWA request is refused?
When an FWA request is refused, the employee should first attempt to resolve the dispute internally, including by requesting further discussion about the employer's stated grounds or proposed alternatives.
If the dispute cannot be resolved internally, the employee may escalate it to the Fair Work Commission, which can deal with the matter by mediation, conciliation, or arbitration. An employee may also escalate directly to the Commission if the employer fails to respond within the 21-day window.
How long does my employer have to respond to a flexible work request?
Your employer must respond in writing within 21 days of receiving your request. If they fail to respond within that time, it is treated as an automatic refusal, and you may escalate the matter directly to the Fair Work Commission.
What can I do if my employer ignores my request?
If your employer fails to respond within 21 days, or if your request is refused and you cannot resolve the dispute internally, you can escalate the matter to the Fair Work Commission. The Commission can deal with the dispute by mediation, conciliation, or arbitration, and has the power to order an employer to grant a flexible arrangement.
Do I qualify to make a flexible work request?
You may qualify if you have completed at least 12 months of continuous service and at least one of the following applies to you: you are pregnant, a parent or carer of a child of school age or younger, a carer under the Carer Recognition Act, a person with a disability, aged 55 or older, or experiencing or supporting someone affected by family or domestic violence.
Can I take my employer to the Fair Work Commission?
Yes. If your request has been refused and you have been unable to resolve the dispute internally, you can apply to the Fair Work Commission. The Commission can conciliate, mediate, or arbitrate the dispute and, where a refusal was not based on legitimate reasonable business grounds, can order the employer to grant the flexible arrangement.
We are here to help
Speak to our employment law team, our solicitors specialise in employment law and represent clients throughout Newcastle, the Hunter Region, Sydney and the Central Coast. We have the experience to guide employers and employees through complex workplace matters from beginning to end.
If you have a question about flexible work requests or any other workplace issue, contact our employment law team on 1300 529 444 or submit a contact form to arrange a case assessment today.
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Very Helpful, Very Organized approach in defending you in court, Fourtree Lawyers are the company to chose if you want all the confusion and stress to be explained to you and for you in regard to facing court, these people are the Answer.
I’d like to thank Kevin and Jane for meeting me on the weekend and saving me a trip to the central coast (without a licence). I’d also like to thank Paul Popescu for doing a fantastic job representing me on a serious driving charge, he gave me clear instructions on what I needed to do and he was spot on, I received the best possible sentence. I would highly recommend Fourtree Lawyers, they travel all over NSW.
We found Fourtree Lawyers on Google after hours. I called on a Sunday and got some good advice. So went in to meet Kevin on the Monday. The outcome was a section 10(1)(b). We were so pleased and relieved. Thank so much to Kevin and Jane!! Would definitely recommend Fourtree Lawyers! Worth every cent! – JM Terrigal
I was recommend to Fourtree Lawyers from a friend whom also experienced a serious driving infringement. My situation was slightly more serious, being charged with drive while suspended, shared with a reasonably extensive driving record, meant my chances of driving home were minimal. Kevin’s realistic and knowledgeable approach not only prepared & educated me upon all possible verdicts, but also supported me with all possible optimistic outcomes. Kevin’s extensive knowledge of the legal system, combined with the understanding of the Judges expectations, and vast life experience resulted with an outstanding result,...
Court Results
Section 10(1)(a) - Not comply mass requirements - severe risk - Kurri Kurri Local Court
Our client owns an interstate heavy haulage business based in Queensland. His business was charged with not comply with mass requirements - severe risk which carries a base penalty of $10,790 plus an additional $540 for every % point over the limit. His vehicle was moving a dump truck from a quarry in Queensland to a quarry in NSW. Solicitor Kevin Vierboom made submissions that the method of calculating mass requirements was flawed and the 40% overload alleged was, in fact, less than 3% when everything was taken into consideration. After consideration of the technical case put forward along with submissions as to our client’s previous good character and repute, the Magistrate decided that the matter should be dismissed pursuant to Section 10(1)(a) with no conviction recorded against our client or his business. Professional costs of $254 were agreed to by our client.
Section 10(1)(a) - Severity Appeal - Gosford District Court
Our client was a 32-year-old male. He has a heavy vehicle licence and drives semi-trailers for a living to support his young family. He was charged with exceeding the speed limit for doing 100 in an 80 zone. Roadworks were under construction on the Pacific Highway at the time with both 80km and 100km signs. in the local court, he was fined $300 and lost six demerit points. As a result, he lost his heavy vehicle licence and his job. Kevin Vierboom appealed the decision to the District Court on the basis of severity and the appeal was upheld. Our client is now able to resume his employment and provide for his family again. He was extremely relieved at the outcome.
Drive/permit heavy vehicle not comply mass requirement – severe | $750 fine | Goulburn & Gosford Local Court
Our client is a civil earthmoving and transport company, operating in the Sydney area.
While transporting an excavator from North Richmond to Wagga Wagga, our client was required to pull into a weigh station where they were found to be carrying a load 29% over the vehicle's limit. The matter was listed in the Goulburn Local Court where a plea of guilty was entered and the matter moved to Gosford Local Court for sentencing.
The offence carried a maximum penalty of $11,210 for an individual. However, as the defendant was a corporation the operation of section 596 of the in HVNL exposed our client to a possible penalty of $56,050.
Ms. Denise McCarthy attended Gosford Local Court and made submissions, inter alia, that our client was not aware of the difference between the specifications of weight limits provided by Volvo and what the weight limits the RMS requires for various types of vehicles.
Our client plead guilty at the earliest opportunity. The court saw fit to impose a penalty of $750 plus court costs.
Section 10(1)(b) – Class B m/v exceed speed > 30km/h – Lidar – Gosford District Court
Our client, a 29-year-old male who lives on the Central Coast, was charged with Class B m/v exceed speed > 30 km/h – Lidar. The maximum penalty for this offence is a 3-month licence disqualification period and a fine of $2,200.00. Our client is a bus driver by trade. Therefore, his livelihood depends on maintaining his licence. He is extremely valued by his supervisor and his work colleagues for being a hardworking and reliable employee. Initially, our client was convicted and charged with an $800.00 fine as well as a 3-month licence disqualification period. Solicitor Kevin Vierboom represented our client in an Appeal to the District Court on the basis that the penalty was too severe. Solicitor Kevin Vierboom tendered subjective evidence to the Court and made extensive submissions with regard to our client’s subjective circumstances including his good character. The Magistrate accepted the evidence and ordered an 8-month Good Behaviour Bond in accordance with section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Our client was extremely relieved with this outcome. Our client can now continue working and maintain his livelihood.
Section 10(1)(a) - Solo driver work more than BFM maximum time - severe risk – Gosford Local Court
Our client is employed as a driver by a national distribution company. He is married with 2 small children. He had previously been retained an advisor to the local council on heavy vehicle safety concerning several issues relating to heavy vehicle movements in the local government area. Our client was charged with a log book offence in relation to time recording and fatigue management. Solicitor Kevin Vierboom made submissions as to issues related to the accurate completion of logbook entries, our client’s previously clean record, his outstanding references and his contribution to safety in the community. After consideration of the case put forward along with submissions as to our client’s previous good character and repute, the Magistrate decided that the matter should be dismissed pursuant to Section 10(1)(a) with no conviction recorded against our client or his employer.
Matter Dismissed - Make false or misleading entry in work record - Kurri Kurri Local Court
Our client is an interstate truck driver based in Sydney. Our client was charged with make false or misleading entry in work record. This offence carries a maximum penalty of $10.000. Solicitor Kevin Vierboom entered a plea of not guilty on behalf of our client and set the matter down for a defended hearing. After consideration of the case put forward by our solicitor and the lack of evidence provided by the prosecution, the Magistrate dismissed the charges with no conviction recorded against our client or his employer.
No Conviction | $2,000 donation to the Children's Hospital - Failure to Comply with Improvement Notice – Latrobe Valley Magistrate's Court
Our client is a large road freight company based in Victoria. The business has been operating for over 50 years and has a reputable standing across Victoria and New South Wales. The company sought our help when charged with regulatory offences under the Victorian Heavy Vehicle National Law. The company’s director also faced charges under the same law.
The maximum penalties for this offence are $10,000 for an individual and $50,000 for a company.
Solicitor Kevin Vierboom attended the Latrobe Local Magistrate’s Court in Victoria to represent our client. Kevin’s submissions centred on the company’s unblemished record to date, the steps taken by the company to rectify the breach and the substantial contribution the business makes to the local community.
The Magistrate noted the improvements made by the company and accounted for the company’s good standing. As a result, the Magistrate ordered that no conviction be recorded and $2,000 be donated to the Children’s Hospital. The client was relieved and very happy with this result.
12 Month CRO – no conviction | Breach of Heavy Vehicle National Law (solo driver work more than standard maximum time: critical risk) | Gosford Local Court | 15/3/2019
Our client is a 47-year-old male who lives in the Newcastle area with his wife. He has been working as a heavy vehicle truck driver for around 9 months.
Our client was found in breach of the work/rest ratio prescribed by the Heavy Vehicle National Law. The maximum penalty for this offence is a fine of $16,510 and 4 demerit points.
Our client had not been confident that he understood the guidelines and had made several unsuccessful attempts to ascertain the right information regarding logbook entries.
Principal Solicitor Kevin Vierboom made submissions in mitigation of the possible penalty, focusing on our client’s positive traffic record – 2 offences in 16 years of driving – as well as our client’s responsible character, the Magistrate saw fit to impose a 12-month Conditional Release Order with no conviction.
Our client was ordered to pay $100 Professional Costs to the Roads & Maritime Service. Considering the maximum fine of $16.510, this was a great result.
Our client is a 64-year-old male who has six children.
Our client was stopped for a random check of his driver's license and national heavy vehicle diary by officers from the Traffic Task Force.
Our client is the main income earner in his household and the retention of his demerit points is paramount given that he drives trucks in the course of his employment. The imposition of a fine would also have been very burdensome for our client.
The maximum penalty for this offence is a fine of $16,510 and 3 demerit points.
Senior Solicitor Denise McCarthy attended Gosford Local Court and made strenuous submissions in mitigation of the penalty. Matters raised in her submissions included our client’s accreditation and sound driving record. Denise managed to convince the Magistrate to impose a Section 10(1)(a) dismissal with no conviction recorded.
The avoidance of a fine or loss of demerit points for our client was a huge relief.
Class B M/V Exceed Speed | Conditional Release Order without Conviction | Gosford Local Court
Our client is a 49 year old male who is a truck driver by profession.
Our client was detected by a speed camera travelling a 55km/h in a signposted 40km/h zone. As he is a truck driver it is crucial for him to retain his license in order to carry out his work.
Our client attended our office and conveyed the stress that this pending Court matter had placed on him, and the importance of him retaining his license.
The maximum penalty for this offence in the Local Court is a fine of $2,200 and loss of six demerit points.
Senior solicitor Denise McCarthy attended Gosford Local Court and made strenuous submissions in mitigation of the penalty. Our client’s circumstances were put before the Court to reduce the penalty imposed. Our client was sentenced to a Conditional Release Order for 12 months without proceeding to conviction. No pecuniary penalty was imposed.
Our client was relieved that Denise was able to achieve such a favourable outcome for him. The problems he was facing in the event of losing his license were all consuming and the relief was immediate for him.
Section 10(1)(a) Dismissal | Solo driver work more than Standard maximum time - Critical risk | Goulburn Local Court
An employed heavy vehicle driver from Newcastle contacted us to get advice on a Court Attendance notice he had been issued in NSW. An application was made to move the matter to Gosford Court.
Our client had been charged with Solo Driver rest less than BFM minimum time - critical risk - Heavy Vehicle National Law (NSW) Section 254(1)(b). This offence carries a maximum penalty of a fine of $16,830.00 and the loss of 4 demerit points.
Our client is in the process of obtaining Australian citizenship and has paid out over $18,000 in application and filing fees. He was very concerned that a conviction could jeopardise his application for citizenship and see him lose his employment.
Our client is said to have failed to observe the required 7 hours of unbroken rest over the 24 hours between 3.30am on 24 January 2019 and 3.30am on 25 January 2019. After reviewing the schedule of work and rest during the time in which the offence occurred our client was working less than 38% of the time and well within the requirements for avoiding fatigue within that period.
Our solicitor set about explaining to the Magistrate all the circumstances leading up to the offence. After considering our submissions, the Magistrate found the offence proven, however, the charge was dismissed under section 10(1)(a).
Our client was very relieved at the outcome.
Client Reviews
From the first phone conversation Fourtrees gave us the confidence and reassurance that that our matter would be handled with professionalism and an outcome we were hoping for. The submissions given outlined how we felt and defended our matter perfectly. We couldn’t be happier with the care and comfort we received. We would recommend Fourtrees to anyone needing legal advice & will use Fourtrees for all and any of our future legal matters.
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